Musheer
Khan @ Badshah Khan & ANR. Vs. State of M.P. [2010] INSC 65 (28 January
2010)
Judgment
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
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.
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 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.
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.
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 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.
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 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 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.
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 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;
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 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 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 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.
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. 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 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 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 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 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 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 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 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 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}.
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.
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.
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."
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 (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.
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.
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.
.......................J.(G.S SINGHVI)
.......................J.
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