Musheer Khan @ Badshah Khan & Anr vs State Of M.P

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.

4. PW-3 is virtually the star witness of the prosecution.

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-

7. About the presence of PW-4 at the place of occurrence, this Court has some serious doubts which shall be discussed later.

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.

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.

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.

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.

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.

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.

72. All the appeals filed by the State of Madhya Pradesh are dismissed.