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3) We heard Ms. Ranjana Narayan, learned amicus curiae for the appellants and Mr. Pramod Swaroop, learned senior counsel for the respondent-State.

4) After taking us through the relevant materials relied on by the prosecution, Ms Ranjana Narayan, learned amicus curiae raised the following contentions:

a) No eye-witness to the alleged incident;

b) Accused persons are not named in the FIR. In other words, FIR was lodged against unknown persons;

c) delay in conducting the Test Identification Parade (TIP);

16) The next witness relied on by the prosecution is PW 4

- Smt. Kiran. Learned amicus curiae by pointing out the conduct of PW 4 in respect of her statement in the earlier case in State vs. Kailash Chandra & Ors. submitted that the reliance on her evidence before the Trial court and accepted by the High Court cannot be sustained. She further pointed out that inasmuch as in the case of State vs. Kailash Chandra & Ors. though she claimed to be a victim, she deposed before the Court that the present accused Mulla and Guddu have nothing to do with the earlier incident. In such circumstances, according to the amicus curiae she is not competent to narrate the present incident and implicate the very same accused. On going through her entire evidence, we are unable to accept the stand taken by amicus for the following reasons: About the first incident, namely, setting fire to her house, she informed the court that six years earlier when she was at her matrimonial home at Surjapur, three criminals came there and set the roof of her house on fire. At the time, when she was in her house and male members had gone to extinguish the fire, the criminals forcibly took her away with them. This incident took place at 1.00 a.m. in the midnight. They had taken her to the nearby forest. She further explained, that on the third day on which they had taken her away, after the sunset when it had become dark, eight miscreants armed with guns and torches reached near the tubewell of the village. She and other girl and a boy who were brought from somewhere were with them. There the criminals had caught eight persons and made them to sit at tubewell and they were asking them to bring Rs.10,000/- each then only they would be released. The accused persons had assaulted two to three persons by the butt of the gun and they were having torch lights. After keeping them for one hour, they released three persons and told them to bring Rs.10,000/- each and threatened that only then the remaining five persons would be released. After waiting for sometime since nobody came from the village the miscreants took away the said four men and one woman towards north. Nearly after crossing two or three agricultural fields they killed one person by slitting his throat by knife. Thereafter, about 1 km. in the southern side of the village near a pond they took the remaining four persons, that is, three men and one woman and killed them by cutting their throat and left the dead bodies near a pond. She informed that after leaving the dead bodies, they all went away. She, however, managed to escape from the custody of the said criminals after 10-12 days. Among the eight persons who committed the crime at the tube-well one was Asha Ram, Ram Sebak, Guddu, Mulla and Tulla whose names she came to know since she was with them for 10-12 days. She asserted that Mulla had killed three persons and Guddu had killed two persons. She pointed out that she can recognize the accused Guddu, Mulla and Tulla by face and by name and she also identified them when Mulla and Guddu were present in the Court.

20) Now, let us consider the arguments of the learned amicus curiae on the delay in conducting the test identification parade. The evidence of test identification is admissible under Section 9 of the Indian Evidence Act.

The Identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in Court. There is no provision in the Cr. P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court.

49) In the light of the above principles, let us examine the reasoning of the Trial Judge and its confirmation by the High Court in awarding death sentence. Before the Trial Court, High Court and even before us the learned amicus curiae appearing on behalf of the accused Mulla and Guddu argued that the offences alleged to have committed by these persons cannot come in the category for which they may be punished with death sentence. She also pointed out that neither they have any criminal history nor the prosecution could show that the accused Mulla and Guddu were involved in dacoity/gang or taken part in any criminal activities prior to the occurrence of the present case. Learned amicus curiae further pointed out that even the one incident pressed into service by the prosecution ended in acquittal. On the other hand, the learned senior counsel appearing for the State by pointing various instances how the five persons were killed mercilessly by these accused, pleaded that no sympathy or leniency should be afforded to these persons and prayed for confirmation of the death sentence as awarded by the Trial Court and confirmed by the High Court. We have already quoted the Constitution Bench decision in Bachhan Singh (supra) and three-Judge Bench decision in Machhi Singh (supra) to the effect that in the case of murder, "life imprisonment is a rule and imposition of death sentence is an exceptional one" and the same should come within the purview of "rarest of rare category". We have already noted that the accused Mulla is of the age 50 years and Guddu is of the age 30 years at the time of committing the offence in question. No material was placed or available about the family background of these two accused and whether these persons are married or not and about the family circumstance etc. Learned amicus curiae fairly stated that no family member ever approached during the entire proceedings enquiring these appellants. The perusal of the case records also shows that no one is depending on them and no family responsibility is on the shoulders of these accused persons.