REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1180 OF 2005
Musheer Khan @ Badshah Khan & Anr. ..Appellant(s)
- Versus -
State of Madhya Pradesh ..Respondent(s)
WITH
Criminal Appeal Nos.1181/2005, 1204/2005
&
1205/2005
J U D G M E N T
GANGULY, J.
1. Several appeals were heard together as they
arose out of similar incidents and some common
questions are also involved.
2. The prosecution version as unfolded in the case
is that on 29.11.2000 around 7:10 P.M. one
1
Pappu @ Prakash Tripathi (PW-3) was in his
apartment. Then on hearing the firing of three
shots, he came out of his apartment and saw a
light blue coloured scooter, which was parked
in front of the apartment, was being started by
a man and after him two other persons also
boarded that scooter. PW-3 also saw a Matiz
car which was parked by the side of the road
and he saw the body of Mallu Bhaiya, the
deceased, half inside the car and the other
half was lying outside the same. PW-3 further
saw that after starting the scooter, those
persons drove it towards the road and took a
turn to the right and drove towards the side of
Dainik Bhaskar Press. PW-3 further deposed
that at the time those persons left in the
scooter they were “turning their heads back”.
Then PW-3 came outside his apartment and
started shouting.
2
3. The further evidence of PW-3 is that he
immediately ran towards the deceased and found
there was no movement in the body. On hearing
the shots and the shouts of PW-3, the nearby
cable operator Brajendra Keshwani (PW-17),
Umesh Singh (PW-2) and one Gopal Jain (not
examined by the prosecution) came to the place
of incident. Then PW-3 with the help of those
persons put the deceased on the back seat of
that Matiz car. PW-3 drove that car with PW-2
in the front seat to Marble Hospital and PW-3
got the report written in the hospital which is
marked Exhibit P-11.
4. PW-3 is virtually the star witness of the
prosecution.
5. Prosecution also relied on the evidence of
Shishir Tiwari (PW-4) who was also on a scooter
and was going to the house of the deceased to
meet him. As he reached near the Bungalow of
3
Major General in front of Park Apartment, he
also claimed to have heard three shots. Then
he stopped his scooter and saw another scooter
at a distance of 60-70 feet and that scooter
“was started and three persons boarded it” and
“that scooter took a turn to reach the road and
drove past me.” According to him that scooter
was driven 2-3 feet away from him towards
Bhashkar Press side. He claimed to have seen
those persons who were on that scooter.
6. PW-4 claimed to have seen PW-3 with the help of
PW-2, PW-17 and Gopal Jain lifting the deceased
in the Matiz car and driving it away with Umesh
Singh (PW-2). He saw three ladies standing
near the spot and on being asked by him the
wife of the deceased, Jareena Chowrariya (PW-
10), who was in tears, told PW-4 that the
assailants had murdered the deceased. PW-4
then on his scooter went to the Marble
Hospital.
4
7. About the presence of PW-4 at the place of
occurrence, this Court has some serious doubts
which shall be discussed later.
8. This is admittedly a case based on
circumstantial evidence and the evidence of PW-
3 and PW-4 form the main plank on which rests
the prosecution case of circumstantial
evidence.
9. In this case charge sheet was filed against
seven persons, namely, A-1 Shambhu, A-2 Sapna @
Shhjahan, wife of Sambhu, A-3 Govinda @ Gudda,
A-4 Musheer Khan @ Badshah Khan, A-5 Basant
Shiva Bhai Jadav, A-6 Sattanarayan @ Sattu Sen,
A-7 Mehffooz @ Chotey, remained an absconder
and never faced trial. A-7 is the brother of
A-2.
5
10. As per the prosecution, A-1, A2, A3 & A-6 had
paid money to A-4 and A-5 for killing the
deceased and pursuant thereto A-4 and A-5 had
shot the deceased from a close range. A-4 & A-
5 were arrested by the Jabalpur police at
Ahmedabad. According to the prosecution A-4 &
A-5 were seen before the occurrence in the
company of A-1, A-2, A-3, A-6 & A-7 and after
the occurrence, they were seen by other
witnesses, namely, PWs.3 & 4 as going away from
the scene of occurrence on a light blue
coloured scooter along with the absconding
accused Mehfooz (A-7). According to
prosecution A-4 and A-5 were identified by
witnesses in the T.I. Parade, their finger
prints were found on the car and on the
recovered scooter. They had suffered a
disclosure statement and which had resulted in
discovery of the weapon of assault and the
Ballistic Expert had given the report,
according to which it was proved that weapon of
6
assault recovered from the Appellants had been
used by the deceased.
11. In this case the Trial Court in its judgment
dated 13.10.2003 acquitted A-3 and convicted A-
4 and A-5 under Sections 302/120B of the Indian
Penal Code read with Sections 25(1)(b)(a) and
27 of the Arms Act and they were awarded death
penalty. A-7 being an absconder, trial against
him did not commence. The Trial Court
convicted A-1, A-2 & A-6 under Sections
302/120B and gave them life sentence.
12. The High Court in its judgment dated 8.11.2004
partly confirmed the judgment of the Trial
Court in confirming the death sentence against
A-4 & A-5, but reversed the conviction of the
other three accused, i.e. Shambhu (A-1), Sapna
(A-2) and Sattanarain @ Sattu Sen (A-6) and the
charge of conspiracy failed and they were
acquitted.
7
13. Aggrieved by the conviction and death sentence
imposed by the Hon’ble High Court, Musheer (A-
4) and Basant (A-5), filed two special leave
petitions being Crl.A. Nos.1180 & 1181/2005
before this Court. The State Government also
filed special leave petitions against the
judgment of the Hon’ble High Court acquitting
Gobind (A-3), being Crl. Appeal No. 1206/2005,
as well as Shambhu (A-1), Sapna (A-2) and
Satyanarain @ Sattu Sen (A-6) being Crl. Appeal
No. 1204/2005. The State Government also filed
an appeal against the dismissal of petition for
enhancement of sentence of these accused being
Crl. Appeal No. 1205/2005. The brother of the
deceased had also filed a special leave
petition along with an application seeking
permission for filing the same being Crl.
Appeal No. 4081/2005. That was dismissed by
this Court by an order dated 18.04.2005 in view
8
of the appeals having been filed by the State
Government.
14. On an analysis of the evidence of PW-3 and
PW-4 the presence of PW-4 in the place of
occurrence is very doubtful. PW-4’s evidence is
that he was coming to meet the deceased Asim
Chansoriaji. They were known to each other for
the last 20 years and PW-4 had a very good
friendly relations with the deceased. PW-3 is a
close relation of the deceased and lives in the
same apartment where the deceased stayed. PW-4
also admitted that he knows PW-3.
15. From the evidence of PW-3 and PW-4, it is clear
that they were present at the place of
occurrence at the same time.
16. PW-3 saw the accused persons from a distance of
“20 steps” while PW-4 saw the accused persons
from a distance “60-70” feet. The accused
persons were allegedly identified by PWs 3 and
9
4. However in his evidence PW-3 never stated
that he saw PW-4 in the place of occurrence.
PW-3 also stated that after coming to the place
of occurrence he was shouting that the deceased
had been shot at. Hearing his shouts “at first
cable operator Kesharwani came out there at the
incident site. After him Umesh, who lives in my
apartment came out. After Umesh then came
Gappu of Jain family, who also reside in our
same apartment and then came out my wife and
after her when we were lifting Mallu Bhaiya to
put him in the car then his wife Zarina also
arrived there”.
17. In view of the evidence discussed above it is
absolutely natural for PW-4 to immediately talk
with PW-3 to find out about the incident. But
there is no evidence of that. PW-3 never
whispered anything about the presence of PW-4
at the place of occurrence. On the other hand,
evidence of PW-3 is that he with the help of
10
PW-2, PW-17 and Gopal Jain (not examined) put
the body of the deceased, half of which was
hanging outside the Matiz Car, in the back of
that car and some of those persons sat in the
car and PW-3 drove the car to the hospital.
18. PW-4, an athlete, and in his Tracksuit was
obviously having a sound physique. It is wholly
improbable that PW-4, who was known to PW-3 and
was at the place of occurrence and saw PW-3
shouting for help for putting the body of the
deceased in the car will not come forward to
help PW-3 especially when he was very friendly
with the deceased, having a long standing
relationship of 20 years. This is very very un-
natural. It also very un-natural for PW-4 to
remain at the place of occurrence as a passive
spectator and watch the incident of PW-3 taking
the deceased in that Matiz car to the hospital
with help of others who had come to the place
of occurrence much after he was there.
11
Evidence of PW-4 is that after PW-3 left for
the hospital he talked with the ladies who came
to the place of occurrence after the incident
and thereafter went to the hospital. In the
hospital also PW-4 did not talk with PW-3.
19. If one reads the evidence of PW-3 and PW-4 it
would appear that one is totally insulated from
the other as if they are strangers and reside
in different islands. This is totally
improbable. Unfortunately in the appreciation
of evidence neither the High Court nor the
trial Court has considered this glaring
improbability in the prosecution case.
20. Taking into account the aforesaid factual
background it is very doubtful whether PW-4 was
at all present at the place of occurrence
having regard to the evidence of PW-3.
Therefore, identification by PW-4 of the
scooter and the accused A-4 and A-5 in the T.I
12
Parade becomes doubtful and no reliance can be
placed on that.
21. Coming to the question of assessing the
evidence of identification of the accused
persons by PW-3 and PW-4, this Court is of the
opinion that identification by PW-4 cannot be
relied upon at all inasmuch as this Court has
grave doubts about the presence of PW-4 at the
place of occurrence.
22. So far as identification by PW-3 is concerned,
the Court must take into consideration the
extremely limited opportunities which PW-3 had
of seeing the accused persons.
23. It is the prosecution case that A-4 and A-5 are
hired criminals and are not persons of the
locality. Prosecution has not also claimed that
A-4 and A-5 were known to PW-3 from before.
From the evidence of PW-3 it is clear that PW-3
13
only had a fleeting chance of seeing A-4, A-5
and A-7 when they were obviously in a hurry to
board the scooter and escape from the scene.
Assuming that there was street light, as is the
claim of the prosecution, it is obvious the
accused persons were fleeing from the place of
occurrence on the scooter. Therefore,
excepting a fleeting glance PW-3 had very
little chance of seeing A-4, A-5 and A-7.
24. The evidence of PW-3, that A-4, who was driving
the scooter, was repeatedly looking back is
highly improbable for the following reasons:
i) A-4, being a hired man, was new to the
place. Obviously he was not acquainted
with the topography of the area.
Therefore, he would be very busy in
finding his way out of the place of
occurrence and would concentrate on that;
ii) A-4 was driving the scooter, it is
difficult for the driver of the scooter in
a new area to repeatedly look back. Being
hired criminals, as is the prosecution
case the accused persons will not do
anything to facilitate their
investigation;
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iii) It is not the prosecution case that
the accused persons were given a chase and
therefore there was no reason for them to
look back. The only evidence of PW-3 is
that he was shouting that Mallu Bhaiya had
been killed by the assailants. A-4 was
mere a spectator, assuming but not
accepting that A-4 was present at the
place of occurrence.
25. The Court must remember that PW-3 is a highly
interested witness, being a very close relative
of the deceased. That by itself, of course, is
not a ground to discard his evidence. But it is
a golden rule that in such a situation, the
evidence of PW-3 has to be weighed very
carefully and cautiously before accepting the
same.
26. Applying these principles, in the facts of the
case, the evidence of PW-3 that while driving
the scooter A-4 was repeatedly looking back
becomes highly doubtful.
27. It may be pointed out that identification test
is not substantive evidence. Such tests are
meant for the purpose of helping the
15
investigating agency with an assurance that
their progress with the investigation into the
offence is proceeding on right lines. (See
Matru Alias Girish Chandra vs. The State of
Uttar Pradesh – 1971(2) SCC 75 at para 17)
28. It is also held by this Court that
identification test parade is not substantive
evidence but it can only be used in
corroboration of the statements in Court. (See
Santokh Singh vs. Izhar Hussain and Anr. –
(1973) 2 SCC 406 at para 11)
29. Recently in the case of Amitsingh Bhikam Singh
Thakur vs. State of Maharashtra – (2007) 2 SCC
310 this court held on a consideration of
various cases on the subject that the
identification proceedings are in the nature of
tests and there is no procedure either in Cr.
P.C., 1973 or in the Indian Evidence Act for
holding such tests. The main object of holding
16
such tests during investigation is to check the
memory of witnesses based upon first impression
and to enable the prosecution to decide whether
these witnesses could be cited as eye witnesses
of the crime.
30. It has also been held that the evidence of the
identification of accused for the first time is
inherently weak in character and the court has
held that the evidence in test identification
parade does not constitute substantive evidence
and these parades are governed by Section 162
of Code of Criminal Procedure and the weight to
be attached to such identification is a matter
for the courts.
31. In the instant case A-4 was apprehended on
05.12.2000 and was arrested on 06.12.2000 and
the identification parade was held on
10.12.2000. It is admitted that A-4 was kept
in open police custody for all these days from
17
6th December to 10th December, 2000 prior to his
identification. About the identification by
him PW-3 deposed that he recognized all the
three persons in Court even though the fact
remains that out of the three accused persons
A-7 absconded and never faced trial. This is a
clear discrepancy in the evidence of PW-3 about
identification. It is an admitted position that
A-4 is bald but in his evidence PW-3 admitted
that during investigation the heads of the none
of the persons were covered. Though in his
evidence PW-3 has said that the persons were
covered with a blanket upto the neck but PW-12,
who held the identification parade, in his
cross examination admitted that there is no
reference of blanket in Ext. P-14 and Ext. P-16
which are the reports of T.I. parade of A-4 and
A-5 respectively. This is a vital
contradiction between the versions of witnesses
identifying and the person conducting the T.I.
Parade.
18
32. In so far as the identification of A-5 is
concerned that has taken place at a very
delayed stage, namely, his identification took
place on 24.01.2001 and the incident is of
29.11.2000, even though A-5 was arrested on
22.12.2000. There is no explanation why his
identification parade was held on 24.01.2001
which is after a gap of over a month from the
date of arrest and after about 3 months from
the date of the incident. No reliance ought to
have been placed by the courts below or High
Court on such delayed T.I. parade for which
there is no explanation by the prosecution.
33. At the Bar some decisions were cited about
how the Court should consider the evidence in
the test identification parade.
34. Mr. Lalit, learned senior counsel for the State
relied on the decision in Pramod Mandal vs.
19
State of Bihar – (2004) 13 SCC 150 in order to
contend that mere delay in holding the test
identification parade will not prevent the
Court from accepting the evidence when defence
failed to impute any motive to the prosecution
by way of cross examination for delay in
holding the T.I. parade. In Pramod Mandal
(supra) it was held that delay of one month in
holding the T.I. parade was not fatal.
35. The aforesaid decision of this Court has to be
appreciated in the factual context of that
case. From the facts in Pramod Mandal (supra)
it appears that dacoity had taken place in the
house for about 25 minutes in which PW-4
sustained several injuries from the accused in
trying to resist the dacoity. Therefore, PW-4
had sufficient opportunity to notice the
appearance and physical features of the accused
and there was sufficient light. The Court found
that the traumatic experience of PW-4 for a
20
considerable period must have left the faces of
the assailants firmly imprinted in his memory
which could not be erased within a period of
only 30 days. Under those circumstances, this
Court held that the evidence in T.I. parade
cannot be doubted.
36. But in the instant case the facts are totally
different. Here PW-3 had nothing more than a
fleeting chance of seeing A-4, A-5 and who
hurriedly boarded the scooter while escaping
from the place of occurrence. There is no
evidence that PW-3 had any physical contact or
confrontation with A-4 and A-5. Therefore, the
ratio in Pramod Mandal (supra) cannot apply
here.
37. However, the decision of this Court in Soni vs.
State of Uttar Pradesh – (1982) 3 SCC 368(1) is
more relevant to the facts of the case in hand.
In Soni (supra), the facts have not been
21
discussed in the judgment which was rather
brief but one thing is made clear that T.I.
Parade was held after a lapse of 42 days from
the date of the arrest of the appellant. This
Court held that such delay in holding the T.I.
parade by itself throws a doubt on the
genuineness of such identification and we
respectfully agree with the view that it is
difficult to remember the facial expression of
the accused persons after such a long gap in
the facts of this case. Therefore, the alleged
identification of A-5 after a gap of two months
throws a doubt on the genuineness of such
identification especially when PW-3 had very
little chance to see either A-4 and A-5.
38. Learned counsel for the State relied very much
on the evidence of finger print expert (PW-23).
It is well known that the evidence of finger
print expert falls under the category of expert
22
evidence under Section 45 of the Indian
Evidence Act, 1872.
39. It will be noticed that under the Indian
Evidence Act, the word `admissibility’ has very
rarely been used. The emphasis is on relevant
facts. In a way relevancy and admissibility
have been virtually equated under the Indian
Evidence Act. But one thing is clear that
evidence of finger print expert is not
substantive evidence. Such evidence can only be
used to corroborate some items of substantive
evidence which are otherwise on record.
40. In the instant case, PW-23 (finger print
expert) claimed to have matched the transparent
marked `C’ with finger print marked `ka’. This
according to him is the index finger of right
hand of A-4 (Musheer alias Badshah). PW-23 when
compared the transparent `F’ with finger print
marked `kha’ it was found identical with the
23
finger print mark of A-5’s right hand ring
finger.
41. According to PW-23, he lifted these finger
prints while going to the police station on
1.12.2000 from the Bajaj Super Scooter which
was associated with the case and also from the
Matiz Car both of which were parked in the
police station.
42. According to the finger print expert (PW-23)
`C’ was found on the right side of the rear
mudguard of the scooter and `F’ was found on
the side glass of the Matiz car.
43. Before this Court can appreciate the relevance
of those prints, the Court has to look to the
substantive evidence on record. It is nowhere
alleged by the prosecution that there was any
altercation between the deceased and the
accused persons at the scene of occurrence.
There is no whisper of any evidence that
24
accused persons had any physical contact with
the deceased or chased the deceased or dragged
the deceased out of the car.
44. The evidence is only of hearing shots of fire
arm and the further evidence is that the
deceased was fired from a point blank range and
he immediately fell down and in such a way as
his body was half inside the car and half
outside the same. Therefore, there is no
prosecution evidence to the effect that A-4 and
A-5 had any occasion to touch the car and that
too with the ring finger. It is obvious that
the accused, being hired criminals, according
to the prosecution, must be busy in escaping
from the scene of occurrence after the deceased
had been shot from the point blank range and
immediately the deceased fell down. There is
no evidence of the deceased running away from
his assailants or offering any resistance.
Having regard to this state of evidence the
25
evidence of finger print on the car ceases to
have any relevance.
45. PW-23 (Finger print expert) has not given any
evidence of finger print on the alleged weapon
of offence which was discovered pursuant to the
statement of accused persons under Section 27
of the Evidence Act. Therefore, in the facts of
this case and in view of the prosecution
evidence the evidence of finger print expert
does help the prosecution. Even if we accept
the evidence of finger print expert on the
scooter that by itself does not prove anything.
If certain persons are riding on the scooter,
it may have the finger prints of the person who
is riding the scooter. That by itself does not
connect the persons with the crime.
46. In a case of circumstantial evidence, one must
look for complete chain of circumstances and
26
not on snapped and scattered links which do not
make a complete sequence.
47. This Court finds that this case is entirely
based on circumstantial evidence. While
appreciating circumstantial evidence, the Court
must adopt a cautious approach as
circumstantial evidence is “inferential
evidence” and proof in such a case is derivable
by inference from circumstances.
48. Chief Justice Fletcher Moulton once observed
that “proof does not mean rigid mathematical”
formula since “that is impossible”. However,
proof must mean such evidence as would induce a
reasonable man to come to a definite
conclusion. Circumstantial evidence, on the
other hand, has been compared by Lord Coleridge
“like a gossamer thread, light and as
unsubstantial as the air itself and may vanish
with the merest of touches”. The learned Judge
27
also observed that such evidence may be strong
in parts but it may also leave great gaps and
rents through which the accused may escape.
Therefore, certain rules have been judicially
evolved for appreciation of circumstantial
evidence.
49. To my mind, the first rule is that the facts
alleged as the basis of any legal inference
from circumstantial evidence must be clearly
proved beyond any reasonable doubt. If
conviction rests solely on circumstantial
evidence, it must create a network from which
there is no escape for the accused. The facts
evolving out of such circumstantial evidence
must be such as not to admit of any inference
except that of guilt of the accused. {See
Raghav Prapanna Tripathi and others vs. State
of U.P. – AIR 1963 SC 74}.
28
50. The second principle is that all the links in
the chain of evidence must be proved beyond
reasonable doubt and they must exclude the
evidence of guilt of any other person than the
accused.
{See: State of UP vs. Ravindra Prakash Mittal,
1992 Crl.L.J 3693(SC) – (Para 20)}
51. While appreciating circumstantial evidence, we
must remember the principle laid down in Ashraf
Ali vs. Emperor – (43 Indian Cases 241 at para
14) that when in a criminal case there is
conflict between presumption of innocence and
any other presumption, the former must prevail.
52. The next principle is that in order to justify
the inference of guilt, the inculpatory facts
must be incompatible with the innocence of the
accused and is incapable of explanation upon
any other reasonable hypothesis except his
guilt.
29
53. When a murder charge is to be proved solely on
circumstantial evidence, as in this case,
presumption of innocence of the accused must
have a dominant role. In Nibaran Chandra Roy
vs. King Emperor – (11 CWN 1085) it was held
the fact that an accused person was found with
a gun in his hand immediately after a gun was
fired and a man was killed on the spot from
which the gun was fired may be strong
circumstantial evidence against the accused,
but it is an error of law to hold that the
burden of proving innocence lies upon the
accused under such circumstances. It seems,
therefore, to follow that whatever force a
presumption arising under Section 106 of the
Indian Evidence Act may have in civil or in
less serous criminal cases, in a trial for
murder it is extremely weak in comparison with
the dominant presumption of innocence.
30
54. Same principles have been followed by the
Constitution Bench of this Court in Govinda
Reddy vs. State of Mysore – (AIR 1960 SC 29)
where the learned Judges quoted the principles
laid down in Hanumant Govind Nargundkar and
anr. vs. State of Madhya Pradesh – (AIR 1952 SC
343). The ratio in Govind (supra) quoted in
paragraph 5, page 30 of the reports in Govinda
Reddy (supra) are:
“in cases where the evidence of a
circumstantial nature, the circumstances
which lead to the conclusion of guilt
should be in the first instance fully
established, and all the facts so
established should be consistent only with
the guilt of the accused. Again the
circumstances should be of a conclusive
nature and tendency and they should be
such as to exclude every hypothesis but
the one proposed to be proved. In other
words there must be a chain of evidence so
complete as not to leave any reasonable
doubt for a conclusion consistent with the
innocence of the accused and it must be
shown that within all human probability
the act must have been committed by the
accused.”
31
55. The same principle has also been followed by
this Court in Mohan Lal Pangasa vs. State of
U.P. – AIR 1974 SC 1144.
56. As noted above, along with the appeal of A4 and
A5 against their judgment and order of
conviction, in this case, several State appeals
have been filed. A3-Govinda was acquitted by
the trial court and also by the High Court. The
State appeal against the same has already been
dismissed by this court by an order dated
24.11.06. The State also filed an appeal
against the order of acquittal by the High
Court in respect of A1, A2 and A6. This Court
finds that in acquitting A1, A2, and A6, the
High Court has taken a plausible view. This
Court in exercise of its jurisdiction under
Article 136 is not inclined to take a different
view.
[See State of Haryana vs. Krishan reported in
(2008) 15 SCC 208, paras 10 and 11, pages 211-
212 of the report and State of Andhra Pradesh
vs. S. Swarnatatha and others, reported in
32
(2009) 8 SCC 383, paras 25 and 26, pages 388-
389 of the report.]
57. As a result of acquittal of A-1, A-2, A-3 and
A-6, the conspiracy theory of the prosecution
in this case fails. A substantial part of the
prosecution case has not been accepted on valid
grounds either by the High Court or by this
Court. Thus, a very vital part of the
prosecution case is finally knocked off. As the
prosecution fails to prove its case of
conspiracy, the motive angle behind the alleged
crime committed by A-4 and A-5 disappears. The
prosecution case is that A-4 and A-5 are hired
criminals and were engaged on payment by A-1,
A-2, A-3 and A-6 for killing the deceased. The
acquittal of A-1, A-2, A-3 and A-6 which is
upheld by this Court casts a serious doubt on
the entire prosecution and its case against A-4
and A-5 suffers a serious set back.
33
58. Considering the aforesaid facts and also going
by the test of appreciation of circumstantial
evidence as discussed above, this Court has to
extend the benefit of doubt to A-4 and A-5 and
cannot sustain the judgment and order of
conviction of A-4 and A-5 under Sections
302/120-B of I.P.C read with Sections
25(1)(a)(b) and Section 27 of the Arms Act and
consequently the death sentence awarded to them
by the High Court is set aside. This Court is
of the view that the so called circumstantial
evidence against A-4 and A-5 does not
constitute a complete chain which is consistent
with the guilt of A-4 and A-5 and incompatible
with their innocence.
59. Before parting, it may be noticed that in this
case, it has been argued by the learned defence
Counsel that in the matter of discovery of the
weapon pursuant to the facts deposed by A-4 and
A-5, the prosecution has not followed the
34
safeguards which are statutorily engrafted in
connection with a search under Section 100(4)
and Section 100(5) of the Code of Criminal
Procedure.
60. The learned Counsel argued that discovery
pursuant to facts deposed under Section 27 of
the Evidence Act can only become relevant if it
is made following the safeguards under Section
100(4) and section 100(5) of the Code.
61. In State, Govt. of NCT of Delhi vs. Sunil and
another, [(2001) 1 SCC 652], almost a similar
contention has been negatived by this Court in
Para 19 of the report. The learned judges
held:
“..recovery of an object pursuant to the
information supplied by an accused in
custody is different from the searching
endeavour envisaged in Chapter VII of the
Code.”
62. In doing so, the learned judges relied on a
decision of this Court in Transport The
Transport Commissioner, A.P., Hyderabad and
another vs. S. Sardar Ali, Bus Owner, Hyderabad
35
and 41 others – [1983 4 SCC 245]. It may be
true that the decision in Sardar Ali was
rendered in the context of Motor Vehicles Act,
but the propositions in Para 20, at page 662 of
the report are, if I may say so, based on sound
logic.
63. In Para 20, page 662 of the report it was held
when discovery is made pursuant to any facts
deposed by the accused, the discovery memo
prepared by the investigating officer is
necessarily attested by independent witnesses.
But if in a given case, no witness is present
or nobody agrees to attest the memo, it is
difficult to lay down as a proposition that the
discovery must be treated tainted or that the
discovery evidence is unreliable. In such a
situation, the Court has to consider the report
of the investigating officer who made discovery
on its own merits.
36
64. In para 21, this Court further elaborated this
principle by saying when a police officer gives
evidence in Court about discovery made by him
on the strength of facts deposed by accused it
is for the Court to believe the version, if it
is otherwise shown to be reliable and it is for
the accused to cross examine the investigating
officer or rely on other materials to show that
evidence of police officer is unreliable or
unsafe.
65. Therefore, reliability of the materials
discovered pursuant to the facts deposed by the
accused in police custody depends on the facts
of each case. If the discovery is otherwise
reliable, its evidentiary value is not diluted
just by reason of non-compliance with the
provision of Section 100(4) or Section 100(5)
of the Code.
37
66. The reason is that Section 100 falls under
Chapter VII of the Code which deals with
processes initiated to compel the production of
things on a search. Therefore the entire gamut
of proceedings under Chapter VII of the Code is
based on compulsion whereas the very basis of
facts deposed by an accused in custody is
voluntary and pursuant thereto discovery takes
place. Thus, they operate in totally different
situations. Therefore, the safeguards in search
proceedings based on compulsion cannot be read
into discovery on the basis of facts
voluntarily deposed.
67. Section 27 starts with the word `provided’.
Therefore, it is a proviso by way of an
exception to Sections 25 and 26 of the Evidence
Act. If the facts deposed under Section 27 are
not voluntary, then it will not be admissible,
and will be hit by Article 20(3) of the
38
Constitution of India. [See State of Bombay vs.
Kathi Kalu Oghad, [AIR 1961 SC 1808].
68. The Privy Counsel in Pulukori Kottaya vs. King
Emperor, [1947 PC 67] held that Section 27 of
the Evidence Act is not artistically worded but
it provides an exception to the prohibition
imposed under the preceding sections. However,
the extent of discovery admissible pursuant to
the facts deposed by accused depends only to
the nature of the facts discovered to which the
information precisely relates.
69. The limited nature of the admissibility of the
facts discovered pursuant to the statement of
the accused under Section 27 can be illustrated
by the following example: Suppose a person
accused of murder deposes to the police officer
the fact as a result of which the weapon with
which the crime is committed is discovered, but
as a result of such discovery no inference can
be drawn against the accused, if there is no
39
evidence connecting the knife with the crime
alleged to have been committed by the accused.
70. So the objection of the defence counsel to the
discovery made by the prosecution in this case
cannot be sustained. But the discovery by
itself does not help the prosecution to sustain
the conviction and sentence imposed on A-4 and
A-5 by the High Court.
71. For the reasons discussed above, the Appeal
filed by A-4 Musheer Khan @ Badshah Khan and A-
5 Basant Shiva Bhai Jadav are allowed. The
judgment and order of conviction of the High
Court dated 8.11.2004 passed in the Criminal
Appeal No. 1761 of 2003 against them under
Sections 302/120-B of I.P.C and under Sections
25(1)(a)(b) and Section 27 of the Arms Act is
set aside. They are set at liberty forthwith,
if not required to be detained in any other
case.
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72. All the appeals filed by the State of Madhya
Pradesh are dismissed.
…………………..J.
(G.S SINGHVI)
…………………..J.
(ASOK KUMAR GANGULY)
New Delhi
January 28, 2010
41