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  

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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.

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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  

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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.

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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.

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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  

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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.  

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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  

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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  

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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  

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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.  

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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  

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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  

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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  

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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  

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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  

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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.  

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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.  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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}.

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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.”

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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.

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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.

40

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

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