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

1. Several appeals were heard together as they arose out of similar incidents and some common questions are also involved2. The prosecution version as unfolded in the case is that on 29.11.2000 around 7:10 P.M. one 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 shouting3. 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-114. PW-3 is virtually the star witness of the prosecution5. 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 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 scooter6. 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 Hospital7. About the presence of PW-4 at the place of occurrence, this Court has some serious doubts which shall be discussed later8. 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 evidence9. 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-210. 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 assault recovered from the Appellants had been used by the deceased11. 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 sentence12. 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 acquitted13. Aggrieved by the conviction and death sentence imposed by the Honble 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 Honble 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 of the appeals having been filed by the State Government

Reasoning: 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