Supreme Court of India

MADANversusSTATE OF UTTAR PRADESH

Citation: 2023 INSC 990
Decided: 9 November 2023
Disposal: Disposed off
Bench: BHUSHAN RAMKRISHNA GAVAI

Holding

The Supreme Court affirmed the conviction under Section 302 IPC, held the case to be "rarest of rare" but commuted the death sentence of appellant Madan to a fixed term of 20 years without remission.

Summary

The case arose from a 2003 incident in Muzzafarnagar where six persons were killed by indiscriminate firing by the appellants Madan, Sudesh Pal and others, allegedly motivated by political rivalry. The trial court convicted the accused under Section 302 read with Section 149 of the IPC and sentenced Madan and Sudesh Pal to death, while another accused received life imprisonment. On appeal, the High Court upheld Madan's death sentence, commuted Sudesh Pal's to life, and confirmed the convictions. The Supreme Court examined the reliability of eye‑witness testimony, the applicability of the "rarest of rare" doctrine, and the presence of mitigating factors such as the appellant's age, good conduct in prison and possibility of reform. It held that the prosecution proved the case beyond reasonable doubt, that the crime qualified as "rarest of rare", but that death was not the only appropriate punishment. Consequently, Madan's death sentence was commuted to a fixed term of 20 years without remission, while Sudesh Pal's appeal was dismissed.

Issues considered

The prosecution proved the case for conviction under Section 302 IPC beyond reasonable doubt.
Whether the murders constitute a "rarest of rare" case warranting death penalty.
Whether the death sentence imposed on appellant Madan should be maintained in view of mitigating circumstances.

Legislation cited

Arms Act, 1959s. 25
Code of Criminal Procedure, 1973s. 174, s. 354(3), s. 401
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 323, s. 449, s. 452
Prisons Acts. 59

Subjects

murderdeath penaltyrarest of rareIPC Section 302Section 149capital punishmentcommutationevidenceeye‑witness testimonysentencing guidelinescriminal appeal

Judgment

[2023] 16 S.C.R. 765 : 2023 INSC 990

CASE DETAILS

MADAN
v.
STATE OF UTTAR PRADESH
(Criminal Appeal Nos. 1381-1382 of 2017)
NOVEMBER 09, 2023
[B. R. GAVAI, B.V. NAGARATHNA AND
PRASHANT KUMAR MISHRA, JJ.]

HEADNOTES

Issue for consideration: Six deaths were caused on account of brutal
ﬁring by the appellants and other accused persons. The trial court imposed
sentence of capital punishment to the appellants (‘M’ and ‘S’) herein for the
oﬀence punishable u/s. 302 r/w. s.149 of IPC, while it sentenced accused
‘I’ to imprisonment for life for the same. (i) Whether the prosecution has
proved beyond reasonable doubt the case for conviction u/s. 302 of IPC;
(ii) Whether the present case falls in the category of rarest of rare cases; (ii)
Whether on the facts of the present case, the capital punishment imposed
on appellant- deserves to be maintained or not.
Penal Code, 1860 – s. 302 r/w. s.149 – The High Court, by the
impugned judgment, while commuting the sentence of appellant ‘S’ from
capital punishment to imprisonment for life, dismissed the appeals ﬁled
by appellant ‘M’ and accused ‘I’ and conﬁrmed their conviction and
sentence awarded by the trial court – The High Court further conﬁrmed
the Death Reference of the appellant ‘M’ – Propriety:
Held: The incident has taken place in two parts: The ﬁrst place is near
the house of ‘R’ – Appellant ‘M’ along with ‘I’ and other accused armed with
licensed guns, riﬂes and country-made pistols came from behind and started
ﬁring indiscriminately – As a result of which, two fell down on the Khadanja
and died on the spot – When ‘MA’, after hearing the sound of gunﬁre, came
out of his house, the accused persons also ﬁred shots at him – As a result of
which, he also fell down – The second place is the house of Up-Pradhan-
765
766 SUPREME COURT REPORTS [2023] 16 S.C.R.

‘RN’ – After indiscriminate ﬁring by the accused persons, deceased ‘RK’ and
PW-2 ran away to save their lives and RK entered the house of ‘RN’ – The
accused persons followed them and entered into the house of ‘RN’ and ﬁred
shots at RK and two other persons – As a result of which, all three died – The
prosecution has duly proved its case beyond reasonable doubt in view of the
testimony of PW-1 being duly corroborated by the testimonies of PW-10
and PW-11 – This Court is of the considered view that the testimonies of
these witnesses duly establish that these witnesses have witnessed the ﬁring
on three persons, who died on the spot – These witnesses have also seen
the accused persons assaulting RK and PW-2 who had received the ﬁrearm
injuries, who ran to the house of to take shelter – This Court is further of the
considered view that though PW-7 is a sole witness insofar as the ﬁring on
deceased three persons is concerned, his testimony is cogent, reliable and
trustworthy and can be made basis for coming to a conclusion that it is the
present appellants along with other accused who have caused the death of
deceased – In any case, his testimony is duly corroborated by the evidence
of PW-1 who had immediately come to the second spot after the occurrence
of the incident when PW-7 informed PW-1 about the incident occurring
in his house – In the instant case, both the High Court and the trial court
have meticulously scrutinized the evidence and found the testimony of the
eye witnesses trustworthy and reliable – This Court after scrutinizing the
evidence again ﬁnd that merely because there are certain inconsistencies
in the evidence of the witnesses, their evidence cannot be discarded – In
totality of the circumstances, the prosecution has proved beyond reasonable
doubt the case for conviction u/s. 302 of IPC and the appeals in that regard
are liable to be rejected. [Paras 27, 39, 42, 43, 49]
Penal Code, 1860 – Whether the present case falls in the category
of rarest of rare cases:
Held: Six deaths were caused on account of brutal ﬁring by the
appellants and other accused persons – The entire village and the people
residing in the surrounding areas must have been shocked by such heinous
and gruesome act – Not only that, one of the eye witnesses was also murdered
during the pendency of the trial – The terror of the appellants and other
accused persons was of such a high magnitude that even the witnesses who
had received grievous injuries did not support the prosecution case and were
MADAN v. STATE OF UTTAR PRADESH 767

required to be declared hostile – As such, four innocent persons were shot
from behind – Therefore, the act of the appellants and the other accused
would certainly be the one which shocked the collective conscience of the
society and fall in the category of rarest of rare cases. [Para 57]
Penal Code, 1860 – Whether on the facts of the present case, the
capital punishment imposed on appellants deserves to be maintained
or not.
Held: As per the Prison Conduct Report submitted by the
Superintendent, District Jail, appellant ‘M’ is currently 64 years old – He
has been in prison for 18 years 3 months – During this entire duration, he
has no history of any kind of prison oﬀence – The Report further shows
that he has not been involved in any form of quarrels or ﬁghts in prison –
The Report shows that he has cordial relations with other prisoners in his
barrack and follows the prison rules – Taking into consideration all these
factors, this Court ﬁnds that the present case is not a case wherein it can
be held that imposition of death penalty is the only alternative – Another
reason that weighs is that from the evidence of the witnesses, it is clear
that the role attributed to all the accused persons has been similar – The
evidence of witnesses would show that the role attributed is that all the
accused persons including both the appellants herein had ﬁred shots and
indiscriminately indulged in the said ﬁring – The role attributed in the
evidence of the eye witnesses is identical to all the accused – In that view
of the matter, the High Court was not justiﬁed in imposing death penalty
on appellant ‘M’ while converting the death penalty imposed upon ‘S’ to
life imprisonment – If the judgment of the High Court is maintained, it
would lead to an anomalous situation – Whereas appellant ‘S’ would be
entitled for consideration of his case for remission and pre-mature release
on completion of a particular number of years in accordance with the
relevant rules, appellant ‘M’ will have to face death penalty – Therefore,
the interest of justice would be met by converting death penalty into life
imprisonment i.e. actual imprisonment for a period of 20 years without
remission – Appeal ﬁled by ‘S’ dismissed and the appeal ﬁled by appellant-
‘M’partly allowed by converting his death penalty into imprisonment for
a ﬁx term of 20 years.[Paras 69, 76-78]
768 SUPREME COURT REPORTS [2023] 16 S.C.R.

LIST OF CITATIONS AND OTHER REFERENCES

Bachan Singh v. State of Punjab (1980) 2 SCC 684 – followed.
Piara Singh and Others v. State of Punjab [1978] 1 SCR 597 : (1977) 4
SCC 452; State of Uttar Pradesh v. Krishna Master and Others [2010] 9 SCR
563 : (2010)12 SCC 324; State of Andhra Pradesh v. Bogam Chandraiah
and Another (1986) 3 SCC 637; Darbara Singh v. State of Punjab [2012] 7
SCR 541 : (2012) 10 SCC 476; Subodh Nath and Another v. State of Tripura
[2013] 4 SCR 581 : (2013) 4 SCC 122; Karnel Singh v. State of M.P. [1995]
2 Suppl. SCR 629 : (1995) 5 SCC 518; Machhi Singh and Others v. State
of Punjab [1983] 3 SCR 413 : (1983) 3 SCC 470; Ramnaresh and Others
v. State of Chhattisgarh [2012] 3 SCR 630 : (2012) 4 SCC 257; Swamy
Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka
[2008] 11 SCR 93 : (2008) 13 SCC 767; Mohinder Singh v. State of Punjab
[2013] 3 SCR 90 : (2013) 3 SCC 294 – relied on.
Jaikam Khan v. State of Uttar Pradesh (2021) 13 SCC 716; Khema
@ Khem Chandra v. State of Uttar Pradesh 2022 SCC OnLine SC 991;
Acharaparambath Pradeepan and Another v. State of Kerala [2006] 10
Suppl. SCR 1101 : (2006) 13 SCC 643; Harjinder Singh alias Bhola v. State
of Punjab (2004) 11 SCC 253; Waman and Others v. State of Maharashtra
[2011] 6 SCR 1072 : (2011) 7 SCC 295; Shera Singh v. State of Punjab
(1996) 10 SCC 330; Shankar Kisanrao Khade v. State of Maharashtra
[2013] 6 SCR 949 : (2013) 5 SCC 546; Gandi Doddabasappa alias Gandhi
Basavaraj v. State of Karnataka (2017) 5 SCC 415 : [2017] 2 SCR 62;
Prakash Dhawal Khairnar (Patil) v. State of Maharashtra (2002) 2 SCC
35 : [2001] 5 Suppl. SCR 612; Sundar @ Sundarrajan v. State by Inspector
of Police 2023 SCC OnLine SC 310; Rajendra Pralhadrao Wasnik v. State
of Maharashtra [2018] 14 SCR 585 : (2019) 12 SCC 460; Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 : [2009]
9 SCR 90; Chhannu Lal Verma v. State of Chhattisgarh [2018] 14 SCR 355
: (2019) 12 SCC 438; Manoj and Others v. State of Madhya Pradesh (2023)
2 SCC 353; Babasaheb Maruti Kamble v. State of Maharashtra (2019) 13
SCC 640; Irappa Siddappa Murgannavar v. State of Karnataka (2022) 2
SCC 801 – referred to.
MADAN v. STATE OF UTTAR PRADESH 769

OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
1381-1382 of 2017.
From the Judgment and Order dated 22.02.2017 of the High Court of
Judicature at Allahabad in CCN No. 3520 of 2015 and RN No. 09 of 2015.
With
Criminal Appeal No. 1790 of 2017.
Appearances:
Anand Grover, Sr. Adv., Aarif Ali, Mohd. Irshad Hanif, Ms. Shreya
Rastogi, Mujahid Ahmed, Mohd. Ehatsham Rao, Kailesh U. More, Khalid
Azeez, Bhavesh Seth, Aditya P. Rath, Ms. Harini Raghupathy, Manish
Kumar Vikkey, Ms. Sunita Sharma, Himanshu Mehra, Ms. Kanchan Jha,
Advs. for the Appellant.
Brijender Chahar, Sr. Adv., Vishwa Pal Singh, Dr. Vijendra Singh
Mahndiyan, Mukesh Kumar, Bharpur Singh, Sandeep Kumar, Ashutosh
Bhardwaj, Advs. for the Respondent.

JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT
B. R. GAVAI, J.
1. These appeals challenge the judgment and order dated 22 nd
February 2017, passed by the Division Bench of the High Court of
Judicature at Allahabad in Capital Case Nos. 3359 and 3520 of 2015 with
Reference No. 9 of 2015 and Criminal Appeal No. 3519 of 2015, thereby
dismissing the appeals ﬁled by appellant Madan and another accused
Ishwar; whereas, it allowed in part, the appeal ﬁled by appellant Sudesh
Pal. By the said judgment, the High Court conﬁrmed the judgment and
order of conviction and sentence dated 31st July 2015 passed by the Court
of Additional Sessions Judge, Court No. 3, Muzzaﬀarnagar (hereinafter
referred to as “trial court”) in Sessions Case No. 09/2005 with Sessions
Case No. 838 of 2005 and 10/2005, in respect of appellant – Madan, while
770 SUPREME COURT REPORTS [2023] 16 S.C.R.

commuting the sentence of capital punishment to life imprisonment in
respect of appellant – Sudesh Pal.
2. Shorn of details, the facts leading to the present appeals are as under:
2.1 The First Information Report (“FIR” for short) was lodged on a
written report given by informant Lokendra (PW-1), on 14th October 2003 at
P.S. Babri, District Muzzafarnagar, which was registered as Crime No. 197
of 2003, for oﬀences punishable under Sections 147, 148, 149, 302, 307, 323
and 452 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
The incident took place at 5.30 PM and the FIR came to be registered on
the same day at 7.40 PM.
2.2 The report was recorded by one, Naresh Pal s/o Vijay Pal r/o
village Barwala, District Baghpat on the oral report of Lokendra (PW-
1). According to the FIR, Smt. Vimla Devi, who was the mother of Ram
Kishan, cousin of Lokendra (PW-1), was a candidate in the election
for Gram Pradhan; whereas the wife of one Arshad was the opposing
candidate. On the one hand, Lokendra (PW-1) supported the candidature
of Vimla Devi; whereas, the family of appellant Madan and Ram Bhajan
supported the candidature of the wife of Arshad. When Vimla Devi came
to be elected as Gram Pradhan along with Lokendra (PW-1), who also
came to be elected as a member of the Gram Panchayat, appellant Madan
and his family members bore a grudge with Lokendra (PW-1) and others
on account of the feeling of jealousy.
2.3 The FIR states that on 14th October 2003, at about 5.30 PM,
when Satendra, the real brother of Lokendra (PW-1), his nephew Sunil s/o
Chandrapal, cousin Ram Kishan s/o Narain Singh @ Lala, Sukhpal Singh
(PW-2) s/o Lotan Singh and his father Jai Singh (PW-8) s/o Ganga Ram
were going to the house of Up-Pradhan Rizwan s/o Irshad Khan (PW-7) for
discussing problems of the village, and had reached the house of Rashid s/o
Mustafa, appellant Madan along with Rajveer, Ram Bhajan, Ramveer, and
Kanwar Pal who were the sons of Ishwar along with Ishwar himself, who
was the brother-in-law (sala) of appellant Madan, also known as Pahalwan,
appellant Sudesh Pal, who was the real brother-in-law (sadu) of appellant
Madan along with Neetu, who was the nephew of appellant Madan, armed
with licensed guns, riﬂes and country-made pistols came from behind and
MADAN v. STATE OF UTTAR PRADESH 771
[B. R. GAVAI, J.]

started ﬁring indiscriminately. As a result of the said ﬁring, Satendra and
Sunil fell down on ‘Khadanja’. When Masooq Ali s/o Abdul Gaﬀur came out
of his house upon hearing the sound of gunﬁre, the accused persons shot ﬁre
at him due to which he also fell down. Following which, Ram Kishan and
Sukhpal Singh (PW-2) ran away to save their lives. Ram Kishan thereafter
entered into the house of the Up-Pradhan Rizwan.
2.4 It is further stated in the FIR that the accused persons thereafter
entered the house of Up-Pradhan Rizwan and ﬁred shots at Ram Kishan,
Rizwan and Rihan. They also ﬁred shots at Sukhpal Singh (PW-2). Ram
Kishan, Sunil and Satendra died on the spot. When Mumtaz Khan (PW-
5) s/o Imtyaz reached at the place of incident, the accused persons ﬁred
shots at him as well. The accused persons further assaulted Jai Singh
(PW-8), father of Lokendra (PW-1) with the ‘butt’ of the gun who then
ran away to save his life. Following which, when the villagers were taking
Rizwan, Rihan, Masooq Ali, Sukhpal Singh (PW-2) and Mumtaz Khan
(PW-5) to the hospital; Rizwan, Rihan and Masooq Ali succumbed to
their injuries and died on the way and their bodies were accordingly kept
in their houses. When the accused persons were ﬁring at the place of the
incident, Ram Pal s/o Salet, Sudhir (PW-11) s/o Mahendra, Anil (PW-3)
s/o Chandrapal, Mahesh Pal (PW-4) s/o Prahlad, Harpal Singh (PW-10)
s/o Dhara, Mahipal s/o Atal Singh along with other villagers reached and
saw the said incident. Lokendra (PW-1) also reached the place of the
incident and witnessed the incident with his own eyes and requested to
register the report and take legal action.
2.5 The FIR was registered and the investigation was subsequently
taken over on 14th October 2003 by Mr. Raghunandan Singh Bhadauria (PW-
24), who was the then Station House Oﬃcer (for short ‘SHO’). He recorded
the statement of Lokendra (PW-1) and proceeded to the place of the incident
in front of the house of Rashid s/o Mustafa where he found the dead bodies
of Satendra, Jai Singh (PW-8) and Sunil in a pool of blood. The dead body of
Masooq Ali s/o Abdul Gafoor was on the cot in his house. When he reached
the house of Rizwan, where he found the dead bodies of Rizwan and Rihan
s/o Irshad Khan (PW-7) lying on the cot, whereas the body of Ram Kishan
s/o Narain Singh was found lying in a pool of blood in the veranda of the
said house. Upon inspection of the place of the incident, Raghunandan Singh
772 SUPREME COURT REPORTS [2023] 16 S.C.R.

Bhadauria (PW-24) found empty cartridges near the dead body which were
taken into possession. Three empty cartridges of 12 bore 9 mm were found
and taken into possession in the presence of witnesses Anil Kumar (PW-3) s/o
Chandrapal Jat and Sri Dheer Singh s/o Prahlad Singh. The recovery memo
(Ext. Ka – 2) was accordingly prepared and signed. He then took plain and
blood-stained mud from the spot in the presence of the said witnesses. The
recovery memo for the same was prepared and kept sealed in two separate
containers (Ext. Ka-3). He also collected plain and blood-stained mud
from where the bodies of Rizwan, Rihan and Ram Kishan were lying and
a recovery memo (Ext. Ka – 6) was prepared to that eﬀect. Further, empty
cartridges of 12 bore 9 mm, 5 bullets along with another such bullet were
recovered and taken into custody which were then sealed in the presence of
the witnesses. However, Raghunandan Singh Bhadauria (PW-24) could not
recover the blood-stained mud from the place where Masooq Ali, Rizwan
and Rihan fell down and were subsequently taken to the hospital due to the
movement of persons at the place of occurrence.
2.6 The Investigating Oﬃcer then recorded the statement of other
witnesses after which he inspected the place of the incident and prepared
the site plan. After panchayatnama of the dead bodies, the same were sent
for post-mortem examination through Head Constable Surendra Singh,
Head Constable Ram Kumar, Constable Yashpal and Constable Satya
Prakash. After Raghunandan Singh Bhadauria (PW-24) was transferred,
the investigation was taken over by Surajpal Singh (PW-23), SHO on 18 th
October 2003. He took steps to execute non-bailable warrants issued against
the accused persons and also took steps to initiate proceedings under Sections
82-83 of the Code of Criminal Procedure, 1973 (hereinafter referred to as
“Cr.P.C.”). After the copies of the post-mortem report were obtained, the
same were noted and enclosed with the C.D. of the deceased Ram Kishan,
Masooq Ali, Rizwan, Rihan, Satendra and Sunil. Statements of witnesses
Sudhir (PW-11), Harpal Singh (PW-10), Mahesh Pal (PW-4), and Mahipal
were recorded at village Butrada. Surajpal Singh (PW-23) also recorded the
statements of Rashid Sachdev and Ram Mehar, who were the witnesses of
the panchayatnama. During investigation, Surajpal Singh (PW-23) received
information that one co-accused, who was involved along with the accused
persons named in the FIR had died in the same incident and his body was
taken away by the accused persons and the same was found and recovered
MADAN v. STATE OF UTTAR PRADESH 773
[B. R. GAVAI, J.]

from the jungle (agricultural ﬁeld) of village Pinana regarding which,
Case Crime No. 799 of 2003 was registered at P.S. Kotwali, for oﬀences
punishable under Sections 302 and 201 of IPC. Surajpal Singh (PW-23)
thereafter recorded the statements of other witnesses and also raided the
house of the accused persons.
2.7 Thereafter, investigation was transferred and taken over on 21st
December 2003 by Inspector Adesh Kumar Sharma (PW-20), EOW, Meerut.
Accused persons Ishwar and Kunwar Pal were taken in police remand. He
then proceeded to the place of the incident along with police personnel for
the recovery of weapon; whereupon, a country-made pistol and the gun used
in the incident were recovered at the instance of accused persons Ishwar
and Kanwar Pal. Further, one empty cartridge was found in the gun whereas
one empty cartridge of 9 mm was found in the country-made pistol. Both
the ﬁre-arms were in operating condition and the Recovery Memo for the
gun and the country-made pistol were prepared and sealed in two separate
clothes. Following which, panchayatnama was prepared by Sub-Inspector
Surendra Singh (PW-16) with regards to the three deceased, namely, Masooq
Ali, Rihan and Rizwan. Additionally, panchayatnama and inquest reports
with regards to the deceased, namely, Ram Kishan, Satendra and Sunil were
prepared by another Sub-Inspector.
2.8 Subsequently, the investigation was transferred and handed over to
Bahadur Singh Chauhan, the then C.B.C.I.D. (PW-17) on 13th January 2004
by the orders of higher authority. Bahadur Singh Chauhan (PW-17) recorded
the statement of Lokendra (PW-1), inspected the place of the incident and
accordingly prepared a site plan. The statements of other witnesses were
also recorded. Bahadur Singh Chauhan (PW-17) thereafter recorded the
statements of earlier investigating oﬃcers in C.D.
2.9 Subsequently, the investigation was again transferred from
C.B.C.I.D. to the civil police. After the chargesheet was submitted by
Bahadur Singh Chauhan (PW-17) against appellant Madan along with
other accused persons, namely, Kanwar Pal and Ishwar; the investigation
was taken over by the then S.H.O. P.S. Babri, Siddh Narayan Yadav on 18 th
October 2004 who was examined as PW-19. Siddh Narayan Yadav (PW-19)
submitted the chargesheet against appellant Sudesh Pal and another accused
person who was absconding at the time. Siddh Narayan Yadav (PW-19) was
774 SUPREME COURT REPORTS [2023] 16 S.C.R.

the ﬁfth IO of this case and he also submitted a chargesheet against accused
Rajvir along with other accused persons.
2.10 The post-mortem of deceased Ram Kishan was conducted by Dr.
Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 12.50 PM. The
injuries sustained by deceased Ram Kishan are thus:
1. Wound of ﬁrearm 4 cm X 1.5 cm in depth of the muscle in the
right side oﬀ ace and aside of the nose. Around the wound there
were tattooing in the area of 20 cm x 7 cm.
2. Wound of entering of 8 ﬁrearms 20 cm X 19 cm towards left side
of chest which was in deep ranging from ½ cm X ½ cm from the
surface of the chest. Around the wound no blacking and tattooing
were present. One metal pellet was taken out from the cavity of
the chest.
3. Wound of entering of ﬁrearm ½ cm X ½ cm X till the cavity of
abdomen, towards left of abdomen and 1 cm above of tunica crest.
4. Wound of entering of ﬁrearms towards right side of the chest, 5
m away from the right side nipple. As per position of 2 hrs. 1.5
cm X 1 cm in deep in the cavity of the chest.
5. Wound of entering of ﬁrearm ½ cm X ½ cm in deep of cavity of
the abdomen, around 5 cm away from the right side navel, in the
position of 8 hrs.
6. Mark of bruises towards the opposite of chest in the area of 1.4
cm X 7 cm in right side of the chest.
7. Wound of exit of ﬁrearm in the area of 33 cm X 21 cm, towards
back side of the chest and was in deep from 2 cm X 1.5 cm to
1cm X 1 cm in the cavity of the chest.
8. Wound of entering of ﬁrearm 1.5 cm X 1 cm in depth of the
muscle, beneath knee on right forearm.
9. Wound of exit of ﬁrearm 3.5 cm to 3 cm in depth of the muscle
in the mid of right side arm in the correspondence of injury No.
8 which is wound of entering of ﬁrearm.
MADAN v. STATE OF UTTAR PRADESH 775
[B. R. GAVAI, J.]

10. Wound of entering of ﬁrearm in depth of muscle from 1 cm X ½
cm, in the inner portion of left upper side arm but 5 cm beneath
from armpit. Around the wound the tattooing was present.
11. Wound of exit of ﬁrearm in depth of the muscle 1 cm X 1.5 cm,
corresponding the injury No. 10.
12. Brusted wound in the area of 1.5 cm X 6 cm to 2.5 cm X 1 cm
deep in the muscle.
2.11 The post-mortem of deceased Masooq Ali was conducted by Dr.
Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 1.30 PM. The
injuries sustained by deceased Masooq Ali are thus:
1. Wound of entering of ﬁrearm measuring ½ cm X ½ cm deep in
the cavity of the chest and 8 cm away from left side nipple in the
position of 11.00 hrs.
2. Wound of exit of ﬁrearm measuring 2 cm X 1.5 cm in deep in
the cavity of chest, towards right side of chest beneath 11 cm of
armpit and 14 cm away from the nipple in the position of 9 hrs.
2.12 The post-mortem of deceased Rizwan was conducted by Dr.
Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 1.45 PM. The
injuries sustained by deceased Rizwan are thus:
1. Wound of entering of ﬁrearm in deep of cavity of chest measuring
½ cm X ½ cm towards left side of chest, 2 cm beneath the outer
portion of clavicle.
2. Wound of entering of ﬁrearm in deep of cavity of chest measuring
1 cm X 1 cm in front of the left side of chest 4 cm away from left
nipple in the position of 7.00 hrs.
3. Wound of exit of ﬁrearm 2 cm X 1.5 cm in deep of the cavity
of the chest towards back side of the chest 3 cm away from the
middle line in right side and 7 cm beneath the neck corresponding
the injury No. 2.
2.13 The post-mortem of deceased Rihan was conducted by Dr. Arvind
Kumar Aggarwal (PW-14) on 15th October 2013 at 2.10 PM. The injuries
sustained by deceased Rihan are thus:
776 SUPREME COURT REPORTS [2023] 16 S.C.R.

1. Wound of entering of ﬁrearm 1.2 cm X 1.2 cm in deep of the bone,
on upper side of the left shoulder. Around the wound tattooing
was present. The bone beneath the injury was fractured.
2. Wound of exit of ﬁrearm 1 cm X 1 cm in deep of the cavity of the
chest towards right side of the chest, 12 cm beneath of imprear
angle of Scapula and 15 cm away from the middle line.
2.14 The post-mortem of deceased Satendra was conducted by Dr.
Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 2.30 PM. The
injuries sustained by deceased Satendra are thus:
1. Wound of entering of ﬁrearm ½ cm X ½ cm in deep of the bone
towards the back side of the right shoulder and 7 cm beneath the
upper portion. The bone beneath the injury was fractured.
2. Wound of exit of ﬁrearm 1.5 cm X 1 cm corresponding the injury
No. 1 and on outer portion of right side collarbone.
3. Wound of exit of ﬁrearm ½ cm X ½ cm in deep of cavity of chest,
towards left side of chest and 7 cm beneath the left nipple in the
position of 7.00 hrs.
4. Wound of exit of ﬁrearm 2 cm X 1 cm in deep of cavity of the
chest towards back side of left side chest, 16 cm beneath the
scapula corresponding the injury.
2.15 The post-mortem of deceased Sunil was conducted by Dr. Arvind
Kumar Aggarwal (PW-14) on 15th October 2013 at 3.00 PM. The injuries
sustained by deceased Sunil are thus:
1. Wound of entering of ﬁrearm 4 cm x 3 cm in the deep of the
cavity of the chest towards left side of the chest and 11 cm away
from nipple in the position of 11.00 hrs.
2. Second and third rib beneath the injury were fractured.
3. The small four metal pellet and a bending piece of plastic in
cylindrical shape was taken out from the cavity of the chest.
2.16 After completing the investigation, chargesheet came to be
submitted against the arrested accused persons along with absconding ones in
the court of jurisdictional Magistrate. Since the case was exclusively triable
MADAN v. STATE OF UTTAR PRADESH 777
[B. R. GAVAI, J.]

by the Sessions Court, the same came to be committed to the Sessions Judge,
Muzaﬀarnagar. Following which, charges were framed against appellants
Madan and Sudesh Pal and other accused persons, namely, Kunwar Pal and
Ishwar for oﬀences punishable under Sections 148 and 449, Section 302
read with Section 149, Section 307 read with Section 149, Section 323 read
with Section 149 of IPC by the trial court; whereas, an additional charge
for oﬀence punishable under Section 25 of the Arms Act, 1959 was framed
against accused Ishwar.
2.17 Subsequently, accused Kunwar Pal absconded and the trial
commenced against appellant Madan and co-accused Ishwar in Sessions
Trial No. 09 of 2005, against appellant Sudesh Pal in Sessions Trial No.
838 of 2005 and against accused Ishwar in Sessions Trial No. 10 of 2005
for the charge under Section 25 of the Arms Act, 1959 arising out of Case
Crime No. 204 of 2003. The accused persons denied the charges and
pleaded to be tried.
2.18 The prosecution examined as many as 25 witnesses to prove
the guilt of the accused persons. In the present case, three out of the six
deceased persons, namely, Ram Kishan, Satendra and Sunil were related with
Lokendra (PW-1) as his cousin, real brother, and nephew respectively. They
were also related with Jai Singh (PW-8) and Anil (PW-3). The statements of
the accused persons were recorded under Section 313 of Cr.P.C. wherein they
denied the allegations against them and stated that they were not involved
in the incident and were thus innocent. However, due to village election
rivalry, they were being falsely implicated in this case but did not examine
any witness in defence.
2.19 At the conclusion of trial, the trial court vide judgment dated 31st
July 2015 held the accused persons guilty of committing the murder of six
persons and accordingly convicted the appellants herein along with accused
Ishwar for oﬀences punishable under Sections 148 and 449, Section 302 read
with Section 149, Section 307 read with Section 149, Section 323 read with
Section 149 of IPC, while accused Ishwar was also additionally convicted
for the oﬀence punishable under Section 25 of the Arms Act, 1959. The trial
court, observing the oﬀences committed by the appellants herein to have
been falling in the ambit of the rarest of the rare case, imposed sentence of
capital punishment to the appellants herein for the oﬀence punishable under
778 SUPREME COURT REPORTS [2023] 16 S.C.R.

Section 302 read with Section 149 of IPC, while it sentenced accused Ishwar
to imprisonment for life for the same. The trial court sentenced each of the
three accused persons 3 years rigorous imprisonment under Section 148 of
IPC; life imprisonment under Section 449 and Section 307 read with Section
149 of IPC and one year rigorous imprisonment under Section 323 read with
Section 149 of IPC. The trial court further sentenced accused Ishwar to ﬁve
years rigorous imprisonment under Section 25 of the Arms Act.
2.20 Being aggrieved thereby, the accused persons preferred their
respective appeals before the High Court with regards to the conviction
and sentence awarded by the trial court. The High Court, by the impugned
judgment, while commuting the sentence of appellant Sudesh Pal from
capital punishment to imprisonment for life, dismissed the appeals ﬁled by
appellant Madan and accused Ishwar and conﬁrmed their conviction and
sentence awarded by the trial court. The High Court further conﬁrmed the
Death Reference insofar as appellant Madan is concerned; whereas insofar
as appellant Sudesh Pal is concerned, his appeal was partly allowed and
the sentence of capital punishment imposed on him was converted to life
imprisonment.
2.21 Being aggrieved thereby, the present appeals.
3. We have heard Shri Anand Grover, learned Senior Counsel
appearing for appellant Madan in Criminal Appeal Nos. 1381-82 of 2017,
Shri Manish Kumar Vikkey, learned counsel appearing for appellant Sudesh
Pal in Criminal Appeal No. 1790 of 2017 and Shri Brijender Chahar, learned
Senior Counsel appearing for respondent-State of Uttar Pradesh.
4. Shri Grover, learned Senior Counsel appearing for appellant Madan
ﬁrstly, addressed us on merits of the matter. He submitted that the order of
conviction as passed by the trial court and conﬁrmed by the High Court is
not at all sustainable. He submitted that initially 11 witnesses were cited
as eye witnesses. However, 7 of them have turned hostile. The prosecution
case is therefore left with only 4 alleged eye witnesses i.e. Lokendra (PW-
1), Irshad Khan (PW-7), Harpal Singh (PW-10) and Sudhir (PW-11).
5. Shri Grover submitted that, from the testimony of Lokendra (PW-
1) itself, it can be seen that his presence at the scene of crime is doubtful.
It is submitted that the evidence of this witness is contradictory to his
MADAN v. STATE OF UTTAR PRADESH 779
[B. R. GAVAI, J.]

original statement recorded under Section 161 Cr.P.C. There are substantial
improvements in his evidence. Though in his statement recorded under
Section 161 Cr.P.C., he stated that he was with a group of people, but in
cross-examination he admitted that he was not walking along with the group,
but was behind them by around 10 yards from the cross roads (towards the
north) when the group of people reached Rashid’s house. He submitted that
Lokendra (PW-1) admitted that he could not clearly see the place of incident
or the group of people from where he was standing. He further submitted
that the said witness has admitted that on hearing the sound of ﬁring, he ran
further northwards from the cross-roads from Rashid’s house and could not
see the site.
6. Shri Grover submitted that there are also substantial contradictions
in the testimony of Lokendra (PW-1) which casts doubt with regard to his
presence at Rizwan’s house. He submitted that, in the chief-examination, this
witness has stated that on witnessing the shooting at Rashid’s house, he ran
towards Rizwan and Rihan’s house and took cover there and witnessed the
incident at Rizwan’s house. However, in cross-examination, he contrarily
stated that on hearing the sounds of ﬁring, he ran further northwards from
the cross-roads and stayed there for 15-20 minutes. From the evidence of
Jai Singh (PW-8) and Sukhpal Singh (PW-2), father and uncle of Lokendra
(PW-1) respectively, it is clear that Lokendra (PW-1) was not present at
the place of incident. Even in the case registered by Lokendra (PW-1), he
does not show himself to be an eye witness. It is submitted that there are
contradictions in his testimony about the authorship of Tehrir.
7. Shri Grover submitted that if Lokendra (PW-1) had really
accompanied the group, then certainly he would also have received some
injuries. The learned Senior Counsel, relying on the judgments of this Court
in the cases of Jaikam Khan v. State of Uttar Pradesh1 and Khema @ Khem
Chandra v. State of Uttar Pradesh2, submitted that the testimony of this
witness, being totally contradictory, cannot be relied upon for convicting
the appellant Madan.

1 (2021) 13 SCC 716
2 2022 SCC OnLine SC 991
780 SUPREME COURT REPORTS [2023] 16 S.C.R.

8. Shri Grover further submitted that Irshad Khan (PW-7) is the father
of deceased Rizwan and Rihan, who were allegedly shot at their own house.
He submitted that there are material contradictions in the evidence of Irshad
Khan (PW-7) also. It is submitted that, in his statement recorded under
Section 161 Cr.P.C., Irshad Khan (PW-7) stated that he was present on the
roof of the adjoining house and not inside the room in his house and hence,
could not have witnessed the incident at his house. It is submitted that these
contradictions have been put to him in cross-examination. It is submitted
that non-examination of Mehmoona Begum, mother of deceased Rizwan
and Rihan, who was present at the place of incident, also casts doubt about
the presence of Irshad Khan (PW-7) at the place of incident. He submitted
that if Irshad Khan (PW-7) was really present at the place of incident, then
there was no reason as to why he did not receive any injury. The learned
Senior Counsel submitted that the presence of this witness is not supported
from his deposition given in Tehrir. It is submitted that the conduct of Irshad
Khan (PW-7) in not informing the police about the incident also casts doubt
about his presence.
9. Shri Grover submitted that the presence of Harpal Singh (PW-
10) at the place of incident is also doubtful. In his deposition, Harpal
Singh (PW-10) has stated that he was at the village main road, 4-5 steps
ahead of the victims at Rashid’s house. On hearing the sound of ﬁring, he
allegedly hid near Amanullah’s house at the time of incident. However,
in his statement recorded under Section 161 Cr.P.C., he has stated that at
the time of incident, he was near the private school rickshaw stand which
was about 600 metres away from the place of incident. The learned Senior
Counsel submitted that a perusal of the spot map would show that the
private school is not near the place of incident. The learned Senior Counsel
submitted that further the evidence of this witness is not corroborated by
the injured witness or other eye witnesses including Sudhir (PW-11). It is
further submitted that there are material contradictions with regard to time
of incident in the deposition of the said witness and as such, the testimony
of this witness is not credible.
10. Insofar as Lokendra (PW-1) is concerned, Shri Grover submitted
that the testimony of the said witness suﬀers from material omissions with
regard to involvement of appellant Madan in the incident. In his statement
MADAN v. STATE OF UTTAR PRADESH 781
[B. R. GAVAI, J.]

recorded under Section 161 Cr.P.C., Lokendra (PW-1) had stated that there
were 2-3 unknown people involved in the crime. Further in his testimony,
there were material omissions in this regard. In his testimony, Lokendra
(PW-1) vaguely mentioned that the appellant Madan and his family members
were involved in the crime. However, he has not given any details with
regard to the same.
11. Shri Grover further submitted that there is improvement in the
evidence of Sudhir (PW-11) with regard to the cause of his presence at the
place of incident. In his statement recorded under Section 161 Cr.P.C., Sudhir
(PW-11) did not give any reason for his presence at the place of incident. It
was for the ﬁrst time in court that he deposed about being in the locality in
search of labourers to work in his ﬁeld. He submitted that there are serious
lapses in the prosecution case inasmuch as though Sudhir (PW-11) is alleged
to have accompanied Lokendra (PW-1) to Police Station Babri to register the
Tehrir, he did not permit Sudhir (PW-11) to go inside the police station while
registering the Tehrir. He submitted that such a conduct is not consistent with
human nature. The learned Senior counsel therefore submitted that Sudhir
(PW-11) would fall in the category of a chance witness and the testimony
of such a witness cannot be relied upon without there being corroboration
from any independent testimony. The learned Senior Counsel relies on the
judgments of this Court in the cases of Acharaparambath Pradeepan and
Another v. State of Kerala3 and Harjinder Singh alias Bhola v. State of
Punjab4.
12. Shri Grover further submitted that there are material contradictions
regarding the place where deceased Masooq Ali was shot. According to
Lokendra (PW-1) and Harpal Singh (PW-10), Masooq Ali was shot and
killed in front of his own house. However, this version is not supported by
the testimony of Irshad Khan (PW-7).
13. Shri Grover submitted that all the aforesaid witnesses are related to
the deceased and they or their relatives held posts in the village panchayat.
He submitted that Lokendra (PW-1) is the brother of deceased Satendra, son
of injured Jai Singh (PW-8) and cousin of deceased Ram Kishan. Sudhir

3 (2006) 13 SCC 643
4 (2004) 11 SCC 253
782 SUPREME COURT REPORTS [2023] 16 S.C.R.

(PW-11) is an immediate cousin of Ram Kishan and related to Lokendra
(PW-1). Irshad Khan (PW-7) is the father of deceased Rizwan and Rihan.
It is submitted that these witnesses also supported Vimla Devi, the then
sarpanch and Ram Kishan’s mother. Lokendra (PW-1) and Sudhir (PW-11)
are related witnesses of deceased Ram Kishan and Satendra. It is submitted
that all these witnesses have falsely implicated appellant Madan so as to
ensure the conviction of appellant Madan and his family members.
14. Shri Grover submitted that the injured eye witnesses Sukhpal
Singh (PW-2), Mumtaz Khan (PW-5) and Jai Singh (PW-8) have not
supported the prosecution story alleging the involvement of the present
accused. It is submitted that though Mumtaz Khan (PW-5) has stated in
his statement recorded under Section 161 Cr.P.C. that the appellant Madan
along with other accused was involved in the shooting, in his examination-
in-chief, he has stated that when he came out on hearing the sound of
ﬁring, he saw 3-4 persons who had covered their faces with masks and
these persons were involved in shooting. Mumtaz Khan (PW-5) does not
speciﬁcally name the appellant Madan. He submitted that even there are
contradictions in the evidence of Sukhpal Singh (PW-2). It is submitted
that even Jai Singh (PW-8), father of Lokendra (PW-1) has not supported
the prosecution case and was declared hostile. It is therefore submitted that
in the absence of the independent witnesses supporting the prosecution
case, the conviction could not have been based on the basis of testimony of
interested witnesses. He further submitted that the deposition of Bahadur
Singh Chauhan (PW-17) would show that 2-3 unknown persons from
outside the village were also involved in the crime. However, the police
has failed to investigate the matter with regard to involvement of persons
from other villages. It is submitted that only on account of political rivalry,
appellant Madan has been implicated in the present crime. The learned
Senior counsel further submitted that the recoveries of the weapons alleged
to have been used in the crime are farcical and in any case not supported
by the Ballistic Report.
15. Shri Grover submitted that there are serious lacunae in the
investigation. It is submitted that as per the evidence of Lokendra (PW-1),
Irshad Khan (PW-7) and Harpal Singh (PW-10), the police were present
at the scene prior to the report being lodged at the police station i.e. before
MADAN v. STATE OF UTTAR PRADESH 783
[B. R. GAVAI, J.]

07.40 P.M. However, Raghunandan Singh Bhadauria (PW-24) stated that he
arrived at the location at around 08.30 P.M. i.e. after the report was lodged
at 07.40 P.M. It is submitted that there is no certainty as to when the Special
Report under Section 174 Cr.P.C. was sent to the Magistrate. He submitted
that the timing of investigation becomes particularly important in view
of the opinion of Dr. Arvind Kumar Aggarwal (PW-14) who conducted
the post-mortem stating that the death of the deceased could have been
between 8-9 P.M. i.e. after the investigation had started. He submitted that
the lapses in the investigation are further apparent from the fact that there
are inconsistencies with regard to the presence of bodies of the deceased
and the place of inquest. It is submitted that from the evidence of some
of the witnesses, it appears that the bodies were moved from the site of
shooting prior to the starting of inquest. However, the inquest report records
the presence of bodies at the site of shooting i.e., at the village main road,
Masooq Ali’s house and Deputy Pradhan’s house. It is submitted that all
these factors will cumulatively raise substantial doubt on the fairness of
investigation and reporting.
16. Shri Grover submitted that, though independent witnesses were
available, for the reasons best known to the prosecution, they have not
been examined. It is submitted that uptill now, Mehmoona Begum, wife of
Irshad Khan (PW-7), who was present inside the kitchen during the killing
of Rizwan, Rihan and Ram Kishan, was not presented as a witness. It is
submitted that if this witness could have been examined, the real genesis
of the incident would come forth. It is further submitted that since the
occurrence has taken place on the main street, many independent witnesses
must have witnessed the incident. They have also not been examined. Even
Rashid, in front of whose house, one of the shootings occurred, was not
produced as a witness. It is further submitted that Amanullah, in whose
house Harpal Singh (PW-10) allegedly hid during the shooting, was not
examined as a witness.
17. Shri Grover therefore submitted that the prosecution has failed
to prove the case beyond reasonable doubt and as such, the judgment and
order of conviction as recorded by the trial court and conﬁrmed by the High
Court is liable to be set aside.
784 SUPREME COURT REPORTS [2023] 16 S.C.R.

18. Shri Grover, in the alternative, submitted that even if this Court
does not interfere with the conviction, the capital punishment awarded to
appellant Madan is not sustainable. He submitted that the trial court and the
High Court have failed to draw a balance-sheet of mitigating and aggravating
circumstances. It is submitted that the prosecution has to discharge the
burden to place the material on record to establish that there is no possibility
of reforming a convict before capital sentence could be awarded. Shri
Grover submitted that in the present case, the State was directed to produce
three Reports i.e. Probation Oﬃcers Report, Prison Conduct Report and
Psychological Assessment Report. He submitted that, from the conduct of
appellant Madan in jail, it is evident that appellant Madan has shown positive
signs of reformation and poses no continuing threat to society. Appellant
Madan is currently 64 years old and he has been in prison for 18 years and 3
months. It is submitted that during the entire duration, he has had no history
of any kind of oﬀence in prison.
19. Shri Grover submitted that even from the Psychological
Evaluation Report conducted by Institute of Human Behaviour & Allied
Sciences (IHBAS), Dilshad Garden, Delhi, it could be seen that the said
Report shows that the socio-occupational functioning is unaﬀected. It
further shows that appellant Madan has voluntarily taken up tasks in
prison to keep himself occupied and also taken up responsibilities to help
younger prisoners to lead a better life in prison. It is submitted that, taking
into consideration all these factors, the capital punishment needs to be
commuted to life imprisonment.
20. Shri Grover submitted that even the alleged motive is far-fetched.
He submitted that the political rivalry which is attributed as motive is remote
inasmuch as the elections were held for the period prior to more than two and
half years of the incident. The learned Senior Counsel therefore requested
for allowing the appeals.
21. Shri Grover further submitted that the present case does not fall
in the category of rarest of rare cases to warrant capital punishment. He
submitted that the ﬁnding recorded by the trial court and the High Court
with regard to the present case being rarest of rare cases is without basis
and as such, even if the conviction is conﬁrmed, capital punishment would
not be sustainable.
MADAN v. STATE OF UTTAR PRADESH 785
[B. R. GAVAI, J.]

22. Shri Grover fairly submitted that though there are certain criminal
antecedents against the appellant, the same cannot be a ground to deny his
commutation. The learned Senior Counsel submitted that in the event this
Court does not interfere with the order of conviction, the capital punishment
deserves to be commuted to life imprisonment.
23. Shri Manish Kumar Vikkey, learned counsel appearing for appellant
Sudesh Pal has adopted the arguments as advanced by Shri Grover.
24. Shri Chahar, learned Senior Counsel appearing on behalf of the
State submitted that no interference would be warranted with the concurrent
orders of trial court and the High Court.
25. Shri Chahar submitted that the appellants have brutally killed six
innocent persons only on account of political rivalry. It is submitted that
the appellants who have committed such a heinous and gruesome crime,
are not entitled to any leniency. It is submitted that appellant Madan was
already a hardened criminal. He submitted that he was also awarded life
imprisonment in another case and under his leadership, the accused persons
killed six persons. It is submitted that the incident was such which caused
terror in the society and the High Court and the trial court have rightly held
the present case to be the rarest of rare cases so as to award death penalty to
the accused. He therefore submitted that no interference would be warranted
in the present case.
26. With the assistance of the learned counsel for both the parties, we
have examined the entire evidence and perused the material placed on record.
27. The incident has taken place in two parts as under:
(i) The ﬁrst place is near the house of Rashid son of Mustafa.
Appellant Madan along with Rajveer, Ram Bhajan, Ramveer,
Kanwar Pal and Ishwar armed with licensed guns, riﬂes and
country-made pistols came from behind and started firing
indiscriminately. As a result of which, Satendra and Sunil fell
down on the Khadanja and died on the spot. When Masooq Ali,
after hearing the sound of gunﬁre, came out of his house, the
accused persons also ﬁred shots at him. As a result of which, he
also fell down.
786 SUPREME COURT REPORTS [2023] 16 S.C.R.

(ii) The second place is the house of Up-Pradhan Rizwan. After
indiscriminate ﬁring by the accused persons, Ram Kishan and
Sukhpal Singh (PW-2) ran away to save their lives and Ram
Kishan entered the house of Rizwan. The accused persons
followed them and entered into the house of Rizwan and ﬁred
shots at Ram Kishan, Rizwan and Rihan. As a result of which,
Ram Kishan died on the spot. Masooq Ali, Rizwan and Rihan
were taken to the hospital by the villagers. However, on the way
to hospital, they succumbed to their injuries.
28. Though the prosecution has examined 11 witnesses, only 4 of
them supported the prosecution case. PW-1 is Lokendra. He has deposed
in his evidence that, on 14th October 2003 at around 05.30 in the evening,
he and his brother Satendra, Sukhpal Singh (PW-2), Ram Kishan, his father
Jai Singh (PW-8) and Sunil were going to the Deputy Pradhan Rizwan’s
house for discussing the problems of the village. He has stated that when
they reached near the house of Rashid son of Mustafa, the accused persons
including the present appellants carrying riﬂes, guns etc. in their hands,
came behind them. They shouted that they would kill these people today.
After saying this, all the people started ﬁring indiscriminately with their
weapons. Due to those injuries, Satendra and Sunil fell down on the spot.
He stated that Ram Kishan and Sukhpal Singh (PW-2) were also shot but
they ﬂed away to save their lives. He further stated that in the meantime,
Masooq Ali came out of his house near the spot. The accused persons also
shot him and he also fell down.
29. Lokendra (PW-1) further stated that Ram Kishan entered into
Rizwan’s house to save his life and the accused persons also entered
Rizwan’s house after him. When Rizwan and Rihan were trying to stop them
from entering their house, they also ﬁred shots at both of them. The said
witness cannot be said to be an eye witness as to what has happened inside
the house of Rizwan. However, insofar as the ﬁrst incident is concerned,
he is an eye witness to the same.
30. In his examination-in-chief, Lokendra (PW-1) has stated about
Vimla Devi, mother of deceased Ram Kishan contesting the election of
village Pradhan in the previous election. Lokendra (PW-1) was also a
member of the Gram Panchayat and he supported Vimla Devi. He stated
MADAN v. STATE OF UTTAR PRADESH 787
[B. R. GAVAI, J.]

that because of this, appellant Madan and others started keeping internal
enmity with them.
31. Lokendra (PW-1) also deposed that Mahipal, a witness to this
incident, was also murdered about two and half months ago in the vicinity
of the Jwalapur Police Station, Haridwar, in which, Rajveer, Ramvir,
Rambhajan, sons of Ishwar and Ishwar were made the accused persons.
He further stated that because Rambhajan, Rajveer, Ramveer, Ompal and
Devendra alias Neetu were absconding from their homes since the incident,
they could not be caught. In his cross-examination, it was put to him that in
his Tehrir, it was not mentioned that he was going with the other persons
to the place of Rizwan. However, the FIR is not an encyclopaedia of the
entire incident. There are certain omissions in his evidence but they are not
material.
32. Irshad Khan (PW-7) is the father of deceased Rizwan and Rihan.
Rizwan was Deputy Pradhan of the village at that time. Irshad Khan (PW-
7), in his deposition, has stated that, on the date of the incident, when he
along with his wife Mehmoona Begum and his sons Rizwan and Rihan were
present in his house, suddenly Ram Kishan entered his house in an injured
condition. He stated that Ram Kishan was followed by Ishwar, Madan,
Rajveer, Ramveer, Rambhajan, Kunwar Pal. He further stated that Madan’s
brother-in-law (sala) Ompal, Madan’s brother-in-law (Sadhu) Neetu, along
with Madan’s nephew had also entered in his house. He stated that these
people were carrying riﬂes, guns and pistols in their hands. He further stated
that the accused started shooting at Ram Kishan inside the house. His sons
Rizwan and Rihan tried to defend Ram Kishan. However, they also shot at
his sons Rizwan and Rihan, who were trying to protect Ram Kishan. He
stated that Ram Kishan fell down on the spot. He stated that he took Rizwan
and Rihan to Dr. Bora’s hospital in Shamli. However, after seeing them,
the doctor declared them dead. He also narrates somewhat about the ﬁrst
incident. But he cannot be said to be an eye witness with regard to the ﬁrst
incident. His evidence was sought to be attacked on the ground that after
such a gruesome incident had happened, he had not lodged any report with
the police. However, in his cross-examination itself, he has explained thus:
“Lokendra of my village told me that he would lodge the report at the
Police Station. There is no need for you to go, so I did not feel the need
788 SUPREME COURT REPORTS [2023] 16 S.C.R.

to go to the Police Station and for lodging Report. When I reached the
village, by that time the Police had not come to the village. When I
was going to Shamli, then Lokendra went to the Police Station Babri
to lodge the Report.”
33. Irshad Khan (PW-7) has speciﬁcally denied in his cross-examination
that at the time of incident, he had stayed upstairs on the terrace.
34. It is further to be noted that the testimony of Lokendra (PW-1)
and Irshad Khan (PW-7) is consistent inasmuch as even Lokendra (PW-1)
stated that he had gone to the house of Rizwan after Ram Kishan followed
by the accused persons went to the house of Rizwan. This is corroborated
by the testimony of Irshad Khan (PW-7) who stated thus:
“In our house, Lokendra came after the incident. I told Lokendra about
the incident. I told Lokendra that these people have killed my sons
in front of me.”
35. PW-10 is Harpal Singh. He stated that on the day of incident, he
was on his way from his house towards the crime scene to look for labourers.
He stated that Rashid’s son was going towards Mustafa’s house. He further
stated that Ram Kishan and Lokendra (PW-1), Sunil, Satendra, Sukhpal
Singh (PW-2), Jai Singh (PW-8) were coming 4-5 steps behind him. He
stated that all of a sudden, accused persons started ﬁring. He stated that
Rambhajan, Ramveer, Kawarpal, Madan, Rajveer, Ompal, Neetu, Sudesh
were among those who ﬁred. He fairly admitted that he cannot attribute
which weapon was used by which accused. He stated that Satendra, Sunil and
Sukhpal Singh (PW-2) were shot when the accused opened ﬁre. He further
stated that after going ahead, when Masooq Ali came out of his house, he
was also shot. He stated that thereafter Ram Kishan ran towards the house
of Deputy Pradhan Rizwan. However, he cannot be an eye witness to the
second incident. He stated that he had taken cover of a wall. He further stated
that Sunil, Satendra and Masooq Ali died due to ﬁrearm injuries. He stated
that Sukhpal Singh (PW-2) and Jai Singh (PW-8) have also received injuries.
He fairly stated that Ram Kishan, Rizwan and Rihan were also killed in the
incident but he did not see them being murdered with his own eyes. In the
cross-examination, he has stated that he loved his life and therefore, he ran
forward and took cover of a wall, hiding behind the wall of Amanullah’s
MADAN v. STATE OF UTTAR PRADESH 789
[B. R. GAVAI, J.]

house. He stated that the doors of Amanullah’s house were open and by
entering through the doors, he had taken cover of the wall. He stated that
he was behind the wall as long as the ﬁring went on. He stated that when
the miscreants left the street, he came out.
36. PW-11 is Sudhir. He stated that on the day of incident, he had
gone from his house towards the locality of the Pathans. He stated that
he saw Ram Kishan, Sukhpal Singh (PW-2), Satendra, Sunil, Jai Singh
(PW-8) going in the street in front of him, in front of Mustafa’s house. At
that time, the accused persons who were having riﬂes and pistols in their
hands, opened ﬁre at Ram Kishan, Sunil, Satendra and Sukhpal Singh
(PW-2). Satendra and Sunil fell on the spot as soon as a shot was ﬁred
and Sukhpal Singh (PW-2) also fell as soon as he was shot. Ram Kishan
was shot in the legs and he ran towards Rizwan’s house to escape. All
the accused persons ran after him. He stated that he also came to know
that Ram Kishan, Rizwan and Rihan had also been killed by the accused
persons. Though this witness is also cross-examined at length, nothing
damaging insofar as the main incident is concerned, could be elicited in
his testimony.
37. The testimony of these witnesses is sought to be attacked on the
ground that they are interested witnesses and there are inconsistencies in
their evidence.
38. We may gainfully refer to the observations of this Court in the case
of Piara Singh and Others v. State of Punjab5, which read thus:
“4. …….It is well settled that the evidence of interested or inimical
witnesses is to be scrutinised with care but cannot be rejected merely
on the ground of being a partisan evidence. If on a perusal of the
evidence the court is satisﬁed that the evidence is credit-worthy there
is no bar in the Court relying on the said evidence. The High Court was
fully alive to these principles and has in fact found that the evidence
of these three witnesses has a ring of truth. After having perused the
evidence ourselves also we fully agree with the view taken by the
High Court……..”

5 (1977) 4 SCC 452
790 SUPREME COURT REPORTS [2023] 16 S.C.R.

39. It can thus be seen that merely because some of the witnesses are
interested or inimical witnesses, their evidence cannot be totally discarded.
The only requirement is that their evidence has to be scrutinized with
greater care and circumspection. In the present case, both the High Court
and the trial court have meticulously scrutinized the evidence and found the
testimony of the eye witnesses trustworthy and reliable. We have ourselves
scrutinized their evidence as discussed hereinabove. We ﬁnd that merely
because there are certain inconsistencies in the evidence of the witnesses,
their evidence cannot be discarded.
40. It will also be gainful to refer to the observations of this Court
in the case of Waman and Others v. State of Maharashtra6, wherein this
Court has surveyed the earlier judgments on the issue and held that if the
evidence of interested witnesses is found to be consistent and true, the fact
of being a relative, cannot by itself discredit their evidence.
41. It is further to be noted that all these witnesses are rustic villagers.
In this respect, it will be relevant to refer to the observations of this Court in
the case of State of Uttar Pradesh v. Krishna Master and Others7, which
read thus:
“24. The basic principle of appreciation of evidence of a rustic witness
who is not educated and comes from a poor strata of society is that
the evidence of such a witness should be appreciated as a whole. The
rustic witness as compared to an educated witness is not expected to
remember every small detail of the incident and the manner in which
the incident had happened more particularly when his evidence is
recorded after a lapse of time. Further, a witness is bound to face shock
of the untimely death of his near relative(s). Therefore, the court must
keep in mind all these relevant factors while appreciating evidence
of a rustic witness.”
42. We are of the considered view that insofar as the ﬁrst incident is
concerned, the prosecution has duly proved its case beyond reasonable doubt
in view of the testimony of Lokendra (PW-1) being duly corroborated by

6 (2011) 7 SCC 295
7 (2010) 12 SCC 324
MADAN v. STATE OF UTTAR PRADESH 791
[B. R. GAVAI, J.]

the testimonies of Harpal Singh (PW-10) and Sudhir (PW-11). We are of the
considered view that the testimonies of these witnesses duly establish that
these witnesses have witnessed the ﬁring on Satendra, Sunil and Masooq Ali,
who died on the spot. These witnesses have also seen the accused persons
assaulting Ram Kishan and Sukhpal Singh (PW-2) who had received the
ﬁrearm injuries, who ran to the house of Rizwan to take shelter.
43. We are further of the considered view that though Irshad Khan
(PW-7) is a sole witness insofar as the ﬁring on deceased Ram Kishan,
Rizwan and Rihan is concerned, his testimony is cogent, reliable and
trustworthy and can be made basis for coming to a conclusion that it is the
present appellants along with other accused who have caused the death of
deceased Ram Kishan, Rizwan and Rihan. In any case, his testimony is duly
corroborated by the evidence of Lokendra (PW-1) who had immediately
come to the second spot after the occurrence of the incident when Irshad
Khan (PW-7) informed Lokendra (PW-1) about the incident occurring in
his house.
44. The next contention raised on behalf of the appellants is that the
motive attributed by the prosecution is a very weak motive. It is submitted
that the motive attributed is on account of political enmity due to elections
which were held two and half years prior to the date of incident. The motive
is speciﬁcally brought on record in the evidence of Lokendra (PW-1) and
Irshad Khan (PW-7). Harpal Singh (PW-10) also deposed about the enmity
between the families of Ishwar and Ram Kishan. In any case, the present
case is a case of direct evidence. It is a settled law that though motive
could be an important aspect in a case based on circumstantial evidence,
in the case of direct evidence, the motive would not be that relevant. In
this respect, we may gainfully refer to the judgment of this Court in the
case of State of Andhra Pradesh v. Bogam Chandraiah and Another8,
which reads thus:
“11. …..Another failing in the judgment is that the High Court has
held that the prosecution has failed to prove adequate motive for the
commission of the oﬀence without bearing in mind the well settled rule
that when there is direct evidence of an acceptable nature regarding the

8 (1986) 3 SCC 637
792 SUPREME COURT REPORTS [2023] 16 S.C.R.

commission of an oﬀence the question of motive cannot loom large
in the mind of the court. ……”
45. This Court, in the case of Darbara Singh v. State of Punjab9, has
observed thus:
“15. So far as the issue of motive is concerned, it is a settled legal
proposition that motive has great signiﬁcance in a case involving
circumstantial evidence, but where direct evidence is available, which
is worth relying upon, motive loses its signiﬁcance…….”
46. Again in the case of Subodh Nath and Another v. State of
Tripura10, this Court has observed thus:
“16. …….The learned counsel for the appellants is right that the
prosecution has not been able to establish the motive of Appellant 1 to
kill the deceased but as there is direct evidence of the accused having
committed the oﬀence, motive becomes irrelevant. Motive becomes
relevant as an additional circumstance in a case where the prosecution
seeks to prove the guilt by circumstantial evidence only.”
47. Another submission on behalf of the appellants is with regard to
faulty investigation. No doubt that there have been certain lacunae in the
police investigation. However, the evidence of eye witnesses is consistent,
reliable, trustworthy and cogent. Merely because there are certain lacunae
in the investigation, it cannot be a ground to disbelieve the testimony of
eye-witnesses. In this respect, we may refer to the observations of this Court
in the case of Karnel Singh v. State of M.P.11, which read thus:
“5. Notwithstanding our unhappiness regarding the nature of
investigation, we have to consider whether the evidence on record,
even on strict scrutiny, establishes the guilt. In cases of defective
investigation the court has to be circumspect in evaluating the evidence
but it would not be right in acquitting an accused person solely on
account of the defect; to do so would tantamount to playing into the

9 (2012) 10 SCC 476
10 (2013) 4 SCC 122
11 (1995) 5 SCC 518
MADAN v. STATE OF UTTAR PRADESH 793
[B. R. GAVAI, J.]

hands of the investigating oﬃcer if the investigation is designedly
defective. ………”
48. A similar view has been taken by this Court in the case of Shera
Singh v. State of Punjab12.
49. In totality of the circumstances, we are of the considered view that
the prosecution has proved beyond reasonable doubt the case for conviction
under Section 302 of IPC and the appeals in that regard are liable to be
rejected.
50. The next questions that we are called upon to consider are, as to
whether the present case falls in the category of rarest of rare cases, and as
to whether on the facts of the present case, the capital punishment imposed
on appellant-Madan deserves to be maintained or not?
51. The Constitution Bench in the case of Bachan Singh v. State of
Punjab13, observed thus:
“164. Attuned to the legislative policy delineated in Sections 354(3)
and 235(2), propositions (iv)(a) and (v)(b) in Jagmohan [(1973) 1 SCC
20 : 1973 SCC (Cri) 169 : (1973) 2 SCR 541] shall have to be recast
and may be stated as below:
“(a) The normal rule is that the oﬀence of murder shall be
punished with the sentence of life imprisonment. The court can
depart from that rule and impose the sentence of death only if
there are special reasons for doing so. Such reasons must be
recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed
for the oﬀence of murder under Section 302 of the Penal Code,
the court must have regard to every relevant circumstance
relating to the crime as well as the criminal. If the court ﬁnds,
but not otherwise, that the oﬀence is of an exceptionally
depraved and heinous character and constitutes, on account of
its design and the manner of its execution, a source of grave

12 (1996) 10 SCC 330
13 (1980) 2 SCC 684
794 SUPREME COURT REPORTS [2023] 16 S.C.R.

danger to the society at large, the court may impose the death
sentence.””
52. It can thus be seen that the Constitution Bench held that the normal
rule is that the oﬀence of murder shall be punished with the sentence of life
imprisonment. The court can depart from that rule and impose the sentence
of death only if there are special reasons for doing so. Such reasons are
required to be recorded in writing before imposing the death sentence. While
considering such a question, the court must have regard to every relevant
circumstance relating to the crime as well as the criminal. If the court ﬁnds,
but not otherwise, that the oﬀence is of an exceptionally depraved and
heinous character and constitutes, on account of its design and the manner
of its execution, a source of grave danger to the society at large, the court
may impose the death sentence.
53. It may further be relevant to refer to the following observations of
this Court in the case of Bachan Singh (supra):
“202. Drawing upon the penal statutes of the States in U.S.A. framed
after Furman v. Georgia [33 L Ed 2d 346 : 408 US 238 (1972)], in
general, and clauses 2 (a), (b), (c) and (d) of the Penal Code, 1860
(Amendment) Bill passed in 1978 by the Rajya Sabha, in particular,
Dr Chitale has suggested these “aggravating circumstances”:
“Aggravating circumstances: A court may, however, in the
following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning
and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of
the Union or of a member of any police force or of any public
servant and was committed—
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done
by such member or public servant in the lawful discharge
of his duty as such member or public servant whether at
MADAN v. STATE OF UTTAR PRADESH 795
[B. R. GAVAI, J.]

the time of murder he was such member or public servant,
as the case may be, or had ceased to be such member or
public servant; or
(d) if the murder is of a person who had acted in the lawful
discharge of his duty under Section 43 of the Code of
Criminal Procedure, 1973, or who had rendered assistance to
a Magistrate or a police oﬃcer demanding his aid or requiring
his assistance under Section 37 and Section 129 of the said
Code.””
54. In the case of Machhi Singh and Others v. State of Punjab14, this
Court laid down certain propositions which are required to be taken into
consideration. The Court observed thus:
“32. The reasons why the community as a whole does not endorse the
humanistic approach reﬂected in “death sentence-in-no-case” doctrine
are not far to seek. In the 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 for those who have no scruples in killing others if it suits their
ends. Every member of the community owes a debt 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

14 (1983) 3 SCC 470
796 SUPREME COURT REPORTS [2023] 16 S.C.R.

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:
I. Manner of commission of murder
33. When the murder is committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community. For instance,
(i) when the house of the victim is set aﬂame with the end in
view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or
cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body is
dismembered in a ﬁendish manner.
II. Motive for commission of murder
34. When 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.
III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste or minority
community etc., is committed not for personal reasons but in
circumstances which arouse social wrath. For instance when such a
crime is committed in order to terrorize such persons and frighten them
into ﬂeeing from 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.
MADAN v. STATE OF UTTAR PRADESH 797
[B. R. GAVAI, J.]

IV. Magnitude of crime
36. When the crime is enormous in proportion. For instance when
multiple murders say of all or almost all the members of a family or a
large number of persons of a particular caste, community, or locality,
are committed.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child who could not
have or has not provided even an excuse, much less a provocation,
for murder (b) a helpless woman or a 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.”
55. This Court, in the case of Machhi Singh (supra), after referring
to the Constitution Bench judgment in the case of Bachan Singh (supra),
observed thus:
“38. In this background the guidelines indicated in Bachan Singh case
[(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980
Cri LJ 636] 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 case
[(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980
Cri LJ 636] :
“(i) The extreme penalty of death need not be inﬂicted except in
gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the
‘oﬀender’ also require to be taken into consideration along with
the circumstances of the ‘crime’.
(iii) 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
798 SUPREME COURT REPORTS [2023] 16 S.C.R.

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.
(iv) A 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.
39. In order to apply these guidelines inter alia the following questions
may be asked and answered:
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a
death sentence?
(b) 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?
40. If upon taking an overall global view of all the circumstances in the
light of the aforesaid proposition and taking into account the answers to
the questions posed hereinabove, the circumstances of the case are such
that death sentence is warranted, the court would proceed to do so.”
56. This Court, in the case of Ramnaresh and Others v. State of
Chhattisgarh15, observed thus:
“76. The law enunciated by this Court in its recent judgments, as
already noticed, adds and elaborates the principles that were stated
in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] and
thereafter, in Machhi Singh [(1983) 3 SCC 470 : 1983 SCC (Cri) 681].
The aforesaid judgments, primarily dissect these principles into two
diﬀerent compartments—one being the “aggravating circumstances”
while the other being the “mitigating circumstances”. The court

15 (2012) 4 SCC 257
MADAN v. STATE OF UTTAR PRADESH 799
[B. R. GAVAI, J.]

would consider the cumulative eﬀect of both these aspects and
normally, it may not be very appropriate for the court to decide the
most signiﬁcant aspect of sentencing policy with reference to one
of the classes under any of the following heads while completely
ignoring other classes under other heads. To balance the two is the
primary duty of the court. It will be appropriate for the court to
come to a ﬁnal conclusion upon balancing the exercise that would
help to administer the criminal justice system better and provide an
eﬀective and meaningful reasoning by the court as contemplated
under Section 354(3) CrPC.
Aggravating circumstances
(1) The oﬀences relating to the commission of heinous crimes like
murder, rape, armed dacoity, kidnapping, etc. by the accused with a
prior record of conviction for capital felony or oﬀences committed by
the person having a substantial history of serious assaults and criminal
convictions.
(2) The oﬀence was committed while the oﬀender was engaged in the
commission of another serious oﬀence.
(3) The oﬀence was committed with the intention to create a fear
psychosis in the public at large and was committed in a public place
by a weapon or device which clearly could be hazardous to the life of
more than one person.
(4) The oﬀence of murder was committed for ransom or like oﬀences
to receive money or monetary beneﬁts.
(5) Hired killings.
(6) The oﬀence was committed outrageously for want only while
involving inhumane treatment and torture to the victim.
(7) The oﬀence was committed by a person while in lawful custody.
(8) The murder or the oﬀence was committed to prevent a person
lawfully carrying out his duty like arrest or custody in a place of lawful
conﬁnement of himself or another. For instance, murder is of a person
who had acted in lawful discharge of his duty under Section 43 CrPC.
800 SUPREME COURT REPORTS [2023] 16 S.C.R.

(9) When the crime is enormous in proportion like making an attempt
of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the
trust of relationship and social norms, like a child, helpless woman,
a daughter or a niece staying with a father/uncle and is inﬂicted with
the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total
depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not
only the judicial conscience but even the conscience of the society.
Mitigating circumstances
(1) The manner and circumstances in and under which the oﬀence was
committed, for example, extreme mental or emotional disturbance
or extreme provocation in contradistinction to all these situations in
normal course.
(2) The age of the accused is a relevant consideration but not a
determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the
crime again and the probability of the accused being reformed and
rehabilitated.
(4) The condition of the accused shows that he was mentally defective
and the defect impaired his capacity to appreciate the circumstances
of his criminal conduct.
(5) The circumstances which, in normal course of life, would render
such a behaviour possible and could have the eﬀect of giving rise to
mental imbalance in that given situation like persistent harassment or,
in fact, leading to such a peak of human behaviour that, in the facts and
circumstances of the case, the accused believed that he was morally
justiﬁed in committing the oﬀence.
(6) Where the court upon proper appreciation of evidence is of the
view that the crime was not committed in a preordained manner and
MADAN v. STATE OF UTTAR PRADESH 801
[B. R. GAVAI, J.]

that the death resulted in the course of commission of another crime
and that there was a possibility of it being construed as consequences
to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole
eyewitness though the prosecution has brought home the guilt of the
accused.
77. While determining the questions relatable to sentencing policy,
the court has to follow certain principles and those principles are the
loadstar besides the above considerations in imposition or otherwise
of the death sentence.
Principles
(1) The court has to apply the test to determine, if it was the “rarest of
rare” case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other punishment
i.e. life imprisonment would be completely inadequate and would not
meet the ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be
cautiously exercised having regard to the nature and circumstances of
the crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of
brutality and inhumanity, etc.) in which the crime was committed
and the circumstances leading to commission of such heinous crime.”
57. Applying the aforesaid principles, as laid down by this Court in the
aforesaid judgments, it can be seen that in the present case, the appellants
along with other accused came behind the innocent persons and exhorted
and started ﬁring indiscriminately, ﬁrstly, in front of the house of Rashid.
As a result of which two persons namely Satendra and Sunil fell down and
died on the spot. When Masooq Ali, after hearing the sound of ﬁring, came
out from his house, the accused persons shot ﬁre at him also. As a result, he
also fell down. Ram Kishan and Sukhpal Singh (PW-2) were also injured.
The injured Ram Kishan and Sukhpal Singh (PW-2) went towards the house
802 SUPREME COURT REPORTS [2023] 16 S.C.R.

of Rizwan to save their lives. However, the appellants and the other accused
followed them and went inside the house of Rizwan and ﬁred shot at Ram
Kishan. As a result, Ram Kishan died on the spot. The accused persons
also ﬁred shot at Rizwan and Rihan who tried to protect Ram Kishan. On
their way to hospital, injured Masooq Ali, Rizwan and Rihan also died. It
could thus be clear that, six deaths were caused on account of brutal ﬁring
by the appellants and other accused persons. The entire village and the
people residing in the surrounding areas must have been shocked by such
heinous and gruesome act. Not only that, one of the eye witnesses was also
murdered during the pendency of the trial. The terror of the appellants and
other accused persons was of such a high magnitude that even the witnesses
who had received grievous injuries did not support the prosecution case and
were required to be declared hostile. As such, we ﬁnd that four innocent
persons were shot from behind. Two of them succumbed on the spot and
two, who received serious injuries, tried to rush to the house of Rizwan to
protect themselves. One innocent person, after hearing the sound of ﬁring,
came out and he was also brutally shot. Ram Kishan, who sought shelter
in Rizwan’s house and Rizwan and Rihan who tried to protect Ram Kishan
were also brutally killed. We are therefore of the considered view that the
act of the appellants and the other accused would certainly be the one which
shocked the collective conscience of the society and fall in the category of
rarest of rare cases.
58. The next question that we will be called upon to answer is that,
whether in the facts and circumstances of the case, imposition of death
penalty on the appellants, would be warranted or not?
59. This Court, in the case of Swamy Shraddananda (2) alias Murali
Manohar Mishra v. State of Karnataka16, has observed thus:
“90. Earlier in this judgment it was noted that in the decision in
Shri Bhagwan [(2001) 6 SCC 296 : 2001 SCC (Cri) 1095] there
is a useful discussion on the legality of remission in the case of
life convicts. The judgment in Shri Bhagwan [(2001) 6 SCC 296 :
2001 SCC (Cri) 1095], in SCC para 22, refers to and quotes from

16 (2008) 13 SCC 767
MADAN v. STATE OF UTTAR PRADESH 803
[B. R. GAVAI, J.]

the earlier decision in State of M.P. v. Ratan Singh [(1976) 3 SCC
470 : 1976 SCC (Cri) 428] which in turn quotes a passage from the
Constitution Bench decision in Gopal Vinayak Godse [AIR 1961 SC
600 : (1961) 3 SCR 440]. It will be proﬁtable to reproduce here the
extract from Ratan Singh [(1976) 3 SCC 470 : 1976 SCC (Cri) 428]
: (SCC pp. 473-74, para 4)
“4. As regards the ﬁrst point, namely, that the prisoner could be
released automatically on the expiry of 20 years under the Punjab
Jail Manual or the Rules framed under the Prisons Act, the matter
is no longer res integra and stands concluded by a decision of
this Court in Gopal Vinayak Godse v. State of Maharashtra [AIR
1961 SC 600 : (1961) 3 SCR 440] , where the Court, following
a decision of the Privy Counsel in Pandit Kishori Lal v. King
Emperor [(1944-45) 72 IA 1 : AIR 1945 PC 64] observed as
follows: (AIR pp. 602-03, paras 4-5)
‘4. … Under that section a person transported for life or any
other terms before the enactment of the said section would
be treated as a person sentenced to rigorous imprisonment
for life or for the said term.
5. If so the next question is whether there is any provision
of law whereunder a sentence for life imprisonment,
without any formal remission by appropriate Government,
can be automatically treated as one for a deﬁnite period.
No such provision is found in the Penal Code, Code of
Criminal Procedure or the Prisons Act. … 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.’
The Court further observed thus: (AIR pp. 603-04, paras 7-8)
‘7. … But the Prisons Act does not confer on any authority
a power to commute or remit sentences; it provides only for
the regulation of prisons and for the treatment of prisoners
conﬁned therein. Section 59 of the Prisons Act confers a
804 SUPREME COURT REPORTS [2023] 16 S.C.R.

power on the State Government to make rules, inter alia,
for rewards for good conduct. Therefore, the rules made
under the Act should be construed within the scope of
the ambit of the Act. … Under the said rules the order of
an appropriate Government under Section 401, Criminal
Procedure Code, are a prerequisite for a release. No other
rule has been brought to our notice which confers an
indefeasible right on a prisoner sentenced to transportation
for life to an unconditional release on the expiry of a
particular term including remissions. The rules under the
Prisons Act do not substitute a lesser sentence for a sentence
of transportation for life.
8. … The question of remission is exclusively within the
province of the appropriate Government; and in this case
it is admitted that, though the appropriate Government
made certain remissions under Section 401 of the Code of
Criminal Procedure, it did not remit the entire sentence.
We, therefore, hold that the petitioner has not yet acquired
any right to release.’
It is, therefore, manifest from the decision of this Court that the
Rules framed under the Prisons Act or under the Jail Manual
do not aﬀect the total period which the prisoner has to suﬀer
but merely amount to administrative instructions regarding the
various remissions to be given to the prisoner from time to time
in accordance with the rules. This Court further pointed out that
the question of remission of the entire sentence or a part of it
lies within the exclusive domain of the appropriate Government
under Section 401 of the Code of Criminal Procedure and neither
Section 57 of the Penal Code nor any Rules or local Acts can
stultify the eﬀect of the sentence of life imprisonment given by
the court under the Penal Code. In other words, this Court has
clearly held that a sentence for life would ensure till the lifetime
of the accused as it is not possible to ﬁx a particular period the
prisoner’s death and remissions given under the Rules could
MADAN v. STATE OF UTTAR PRADESH 805
[B. R. GAVAI, J.]

not be regarded as a substitute for a sentence of transportation
for life.”
(emphasis supplied)
Further, in para 23, the judgment in Shri Bhagwan [(2001) 6 SCC
296 : 2001 SCC (Cri) 1095] observed as follows: (SCC pp. 306-07)
“23. In Maru Ram v. Union of India [(1981) 1 SCC 107 : 1981
SCC (Cri) 112] a Constitution Bench of this Court reiterated the
aforesaid position and observed that the inevitable conclusion
is that since in Section 433-A we deal only with life sentences,
remissions lead nowhere and cannot entitle a prisoner to release.
Further, in Laxman Naskar v. State of W.B. [(2000) 7 SCC
626 : 2000 SCC (Cri) 1431] , after referring to the decision of
Gopal Vinayak Godse v. State of Maharashtra [AIR 1961 SC
600 : (1961) 3 SCR 440], the Court reiterated that sentence for
‘imprisonment for life’ ordinarily means imprisonment for the
whole of the remaining period of the convicted person›s natural
life; that a convict undergoing such sentence may earn remissions
of his part of sentence under the Prison Rules but such remissions
in the absence of an order of an appropriate Government remitting
the entire balance of his sentence under this section does not
entitle the convict to be released automatically before the full
life term if served. It was observed that though under the relevant
Rules a sentence for imprisonment for life is equated with the
deﬁnite period of 20 years, there is no indefeasible right of such
prisoner to be unconditionally released on the expiry of such
particular term, including remissions and that is only for the
purpose of working out the remissions that the said sentence
is equated with deﬁnite period and not for any other purpose.”
(emphasis supplied)
91. The legal position as enunciated in Pandit Kishori Lal [(1944-45)
72 IA 1 : AIR 1945 PC 64], Gopal Vinayak Godse [AIR 1961 SC
600 : (1961) 3 SCR 440], Maru Ram [(1981) 1 SCC 107 : 1981 SCC
(Cri) 112], Ratan Singh [(1976) 3 SCC 470 : 1976 SCC (Cri) 428]
and Shri Bhagwan [(2001) 6 SCC 296 : 2001 SCC (Cri) 1095] and the
806 SUPREME COURT REPORTS [2023] 16 S.C.R.

unsound way in which remission is actually allowed in cases of life
imprisonment make out a very strong case to make a special category
for the very few cases where the death penalty might be substituted
by the punishment of imprisonment for life or imprisonment for a
term in excess of fourteen years and to put that category beyond the
application of remission.
92. The matter may be looked at from a slightly diﬀerent angle. The
issue of sentencing has two aspects. A sentence may be excessive and
unduly harsh or it may be highly disproportionately inadequate. When
an appellant comes to this Court carrying a death sentence awarded by
the trial court and conﬁrmed by the High Court, this Court may ﬁnd,
as in the present appeal, that the case just falls short of the rarest of
the rare category and may feel somewhat reluctant in endorsing the
death sentence. But at the same time, having regard to the nature of the
crime, the Court may strongly feel that a sentence of life imprisonment
subject to remission normally works out to a term of 14 years would be
grossly disproportionate and inadequate. What then should the Court
do? If the Court’s option is limited only to two punishments, one a
sentence of imprisonment, for all intents and purposes, of not more
than 14 years and the other death, the Court may feel tempted and ﬁnd
itself nudged into endorsing the death penalty. Such a course would
indeed be disastrous. A far more just, reasonable and proper course
would be to expand the options and to take over what, as a matter
of fact, lawfully belongs to the Court i.e. the vast hiatus between 14
years’ imprisonment and death. It needs to be emphasised that the
Court would take recourse to the expanded option primarily because
in the facts of the case, the sentence of 14 years’ imprisonment would
amount to no punishment at all.
93. Further, the formalisation of a special category of sentence, though
for an extremely few number of cases, shall have the great advantage
of having the death penalty on the statute book but to actually use it
as little as possible, really in the rarest of rare cases. This would only
be a reassertion of the Constitution Bench decision in Bachan Singh
[(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898] besides
being in accord with the modern trends in penology.
MADAN v. STATE OF UTTAR PRADESH 807
[B. R. GAVAI, J.]

94. In the light of the discussions made above we are clearly of the
view that there is a good and strong basis for the Court to substitute a
death sentence by life imprisonment or by a term in excess of fourteen
years and further to direct that the convict must not be released from
the prison for the rest of his life or for the actual term as speciﬁed in
the order, as the case may be.”
60. It can thus be seen that the Court found that there might be certain
cases wherein the Court may feel that the case just falls short of the rarest
of the rare category and may feel somewhat reluctant in endorsing the death
sentence. But at the same time, having regard to the nature of the crime,
the Court may strongly feel that a sentence of life imprisonment subject to
remission which normally works out to a term of 14 years would be grossly
disproportionate and inadequate. The Court held that the Court cannot be
limited only to two punishments, one a sentence of imprisonment, for all
intents and purposes, of not more than 14 years and the other death. It has
been held that a far more just, reasonable and proper course would be to
expand the options and to take over what, as a matter of fact, lawfully belongs
to the Court i.e. the vast hiatus between 14 years’ imprisonment and death. It
has been held that the Court would be entitled to substitute a death sentence
by life imprisonment or by a term in excess of fourteen years and further to
direct that the convict must not be released from the prison for the rest of
his life or for the actual term as speciﬁed in the order.
61. This Court, in the case of Shankar Kisanrao Khade v. State of
Maharashtra17, after referring to various cases, adopted the middle path and
commuted the death penalty into sentence for the rest of the life without
remission. Further, in some of the cases, it was directed that only after the
convict undertook sentence for a ﬁxed period as directed without remission,
his case for premature release could be considered.
62. This Court, in the case of Gandi Doddabasappa alias Gandhi
Basavaraj v. State of Karnataka18, wherein the accused had committed
murder of his daughter, who was in the advanced stage of pregnancy, though

17 (2013) 5 SCC 546
18 (2017) 5 SCC 415
808 SUPREME COURT REPORTS [2023] 16 S.C.R.

upheld the conviction of the accused under Section 302 IPC, nevertheless
commuted the sentence from capital punishment to imprisonment for life.
63. In the case of Prakash Dhawal Khairnar (Patil) v. State of
Maharashtra19, the appellant was a Senior Scientiﬁc Assistant. He wiped
out his brother’s entire family. This Court found that this was done by him
on account of frustration as his brother was not partitioning the alleged joint
property. Though this Court held that the crime was heinous and brutal,
but it could not be considered to be ‘rarest of rare’ case. This Court held
that, it is diﬃcult to hold that appellant is a menace to the society and that
there is no reason to believe that he cannot be reformed or rehabilitated.
The Court, considering the facts and circumstances of the case, set aside
the death sentence and directed that he shall suﬀer imprisonment for life
but shall not be released unless he served at least 20 years of imprisonment
including the period already undergone by him.
64. In the case of Mohinder Singh v. State of Punjab20, this Court
observed thus:
“25. It is well-settled law that awarding of life sentence is a rule and
death is an exception. The application of the “rarest of rare” cases
principle is dependent upon and diﬀers from case to case. However, the
principles laid down and reiterated in various decisions of this Court
show that in a deliberately planned crime, executed meticulously in
a diabolic manner, exhibiting inhuman conduct in a ghastly manner,
touching the conscience of everyone and thereby disturbing the moral
ﬁbre of the society, would call for imposition of the capital punishment
in order to ensure that it acts as a deterrent. While we are convinced
that the case of the prosecution based on the evidence adduced conﬁrms
the commission of oﬀence by the appellant, however, we are of the
considered opinion that still the case does not fall within the four
corners of the “rarest of rare” cases.”
65. In the said case, the accused had committed murder of his wife and
daughter. However, this Court observed that in the facts and circumstances,

19 (2002) 2 SCC 35
20 (2013) 3 SCC 294
MADAN v. STATE OF UTTAR PRADESH 809
[B. R. GAVAI, J.]

it could not be said that imposition of death penalty was the only alternative
and commuted the order of death sentence conﬁrmed by the High Court to
life imprisonment.
66. Recently, this Court, in the case of Sundar @ Sundarrajan v. State
by Inspector of Police21, held that ‘rarest of rare’ doctrine does not require
that in such a case only death sentence has to be imposed. This Court held
that, while considering as to whether the death sentence is to be inﬂicted
or not, the Court will have to consider not only the grave nature of crime
but also as to whether there was a possibility of reformation of a criminal.
67. It is a settled position of law that, while sentencing, the Court is
not required to apply only the ‘crime test’ but also the ‘criminal test’.
68. This Court, in the present case, vide order dated 16th March 2023,
had called for the Probation Oﬃcer’s Report, Prison Conduct Report and
Psychological Assessment Report.
69. As per the Prison Conduct Report submitted by the Superintendent,
District Jail, Baghpat, appellant Madan is currently 64 years old. He has
been in prison for 18 years 3 months. During this entire duration, he has
no history of any kind of prison oﬀence. The Report further shows that
he has not been involved in any form of quarrels or ﬁghts in prison. The
Report shows that he has cordial relations with other prisoners in his
barrack and follows the prison rules. The Report shows that he spends
his time engaging in constructive activities, such as playing games and
reading books. He observes the prison timings and assists the prison
administration as well.
70. The IHBAS has also submitted appellant Madan’s Psychological
Assessment Report. As per the said Report, appellant Madan is maintaining
his daily activities adequately and his socio-occupational functioning is
unaﬀected except occasional forgetfulness which could be age related.
As per the said Report, appellant Madan has voluntarily taken up tasks in
prison to keep himself occupied. He has also taken up responsibilities to
help younger prisoners to lead a better life in prison.

21 2023 SCC OnLine SC 310
810 SUPREME COURT REPORTS [2023] 16 S.C.R.

71. This Court, in the case of Rajendra Pralhadrao Wasnik v. State
of Maharashtra22, after referring to various earlier judgments, has held
that in awarding death penalty, it is mandatory that the probability that the
convict can be reformed and rehabilitated in the society, must be seriously
and earnestly considered. It has been held that it is one of the mandates of
the “special reasons” requirement of Section 354(3) Cr.P.C. This Court, in
the cases of Bachan Singh (supra), Santosh Kumar Satishbhushan Bariyar
v. State of Maharashtra23, Chhannu Lal Verma v. State of Chhattisgarh24,
Rajendra Pralhadrao Wasnik (supra) and Manoj and Others v. State
of Madhya Pradesh25, consistently held that it is the obligation of the
prosecution to prove to the Court through evidence that there is a probability
that the convict cannot be reformed or rehabilitated. Undisputedly, the
prosecution has not placed any material in that regard either before the trial
court or the Appellate Court. Per contra, the Reports by the Jail Authorities
and IHBAS would show that there is a possibility of the appellant being
reformed.
72. No doubt that there is a history of previous conviction insofar as
appellant Madan is concerned. However, this Court, in the case of Rajendra
Pralhadrao Wasnik (supra), has held that the history of the convict by itself
cannot be a ground for awarding him death penalty.
73. As discussed hereinabove, the appellant is of an advanced age. This
Court, in the case of Babasaheb Maruti Kamble v. State of Maharashtra26,
has held that advance age is one of the mitigating circumstances in favour
of the convict.
74. This Court, in the case of Irappa Siddappa Murgannavar v. State
of Karnataka27, has held that the period of incarceration while sitting in a
death row is also one of the mitigating circumstances. In the present case,
convict Madan has been incarcerated for a period of 18 years 3 months.

22 (2019) 12 SCC 460
23 (2009) 6 SCC 498
24 (2019) 12 SCC 438
25 (2023) 2 SCC 353
26 (2019) 13 SCC 640
27 (2022) 2 SCC 801
MADAN v. STATE OF UTTAR PRADESH 811
[B. R. GAVAI, J.]

75. This Court, in the case of Mohinder Singh (supra), has held that
the fact that the prisoner has displayed good behaviour in prison, certainly
goes on to show that he is not beyond reform.
76. Taking into consideration all these factors, we ﬁnd that the present
case is not a case wherein it can be held that imposition of death penalty
is the only alternative. Another reason that weighs with us is that from the
evidence of the witnesses, it is clear that the role attributed to all the accused
persons has been similar. The evidence of witnesses would show that the
role attributed is that all the accused persons including both the appellants
herein had ﬁred shots and indiscriminately indulged in the said ﬁring. The
trial court imposed capital sentence on appellants Madan and Sudesh Pal.
However, insofar as accused Ishwar is concerned, though the evidence
against him is on similar lines, he was sentenced to life imprisonment. The
High Court, on the basis of the same evidence, though conﬁrmed the death
penalty insofar as appellant Madan is concerned, partly allowed the appeal
of Sudesh Pal and sentenced him to undergo life imprisonment. A perusal
of the judgment of the High Court would reveal that the only distinction
drawn by the High Court between the cases of Sudesh Pal and Madan is
the additional factor that Madan was already awarded life imprisonment
in another case. As already observed hereinabove, this Court, in the case
of Rajendra Pralhadrao Wasnik (supra), has held that past conduct does
not necessarily have to be taken into consideration while imposing death
penalty. At the cost of repetition, the role attributed in the evidence of the eye
witnesses is identical to all the accused. In that view of the matter, we ﬁnd
that the High Court was not justiﬁed in imposing death penalty on appellant
Madan while converting the death penalty imposed upon Sudesh Pal to life
imprisonment. If the judgment of the High Court is maintained, it would
lead to an anomalous situation. Whereas appellant Sudesh Pal would be
entitled for consideration of his case for remission and pre-mature release on
completion of a particular number of years in accordance with the relevant
rules, appellant Madan will have to face death penalty.
77. We are of the considered view that the present case would fall
in the middle path as laid down in the case of Swamy Shraddananda (2)
alias Murali Manohar Mishra (supra), followed by this Court in various
judgments. We ﬁnd that the interest of justice would be met by converting
812 SUPREME COURT REPORTS [2023] 16 S.C.R.

death penalty into life imprisonment i.e. actual imprisonment for a period
of 20 years without remission.
78. In the result, the appeals are disposed with the following directions:
(i) Criminal Appeal No.1790 of 2017 ﬁled by appellant Sudesh Pal
is dismissed;
(ii) Criminal Appeal Nos. 1381-1382 of 2017 ﬁled by appellant
Madan are partly allowed. Conviction under Section 302 of IPC
is conﬁrmed insofar as appellant Madan is concerned. However,
death penalty imposed on him is converted into imprisonment for
a ﬁxed term of 20 years, including the period already undergone,
without remission;
(iii) In other words, the case of appellant Madan would not be
considered for pre-mature release unless he completes the actual
sentence of 20 years.
79. Pending application(s), if any, shall stand disposed of in the above
terms.

Headnotes prepared by: Appeals disposed of.
Ankit Gyan

Search Indian case law

Ask in plain English, not just keywords. 25,000 AI words free, no card.

Try "murder"Sign in to search