Case: Musheer Khan @ Badshah Khan and Anr Vs. State of Madhya Pradesh

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. 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 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 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. 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. 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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 hospital20. 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 Parade becomes doubtful and no reliance can be placed on that22. 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 persons26. 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 doubtful31. 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 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. Parade32. 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 prosecution35. 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 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 doubted36. 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 here43. 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 accused persons had any physical contact with the deceased or chased the deceased or dragged the deceased out of the car46. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence47. 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 circumstances48. 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 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 evidence58. 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 innocence59. 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 safeguards which are statutorily engrafted in connection with a search under Section 100(4) and Section 100(5) of the Code of Criminal Procedure65. 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 Code66. 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 deposed67. 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 Constitution of India. [See State of Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808 ]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 evidence connecting the knife with the crime alleged to have been committed by the accused