LexMUSHEER KHAN @ BADSHAH KHAN & ANR. versus STATE OF M.P.
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[2010) 2 S.C.R. 119 MUSHEER KHAN @ BADSHAH KHAN & ANR. v. STATE OF M.P. (Criminal Appeal No. 1180 of 2005) JANUARY 28, 2010 [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.] A B Penal Code, 1860 - s. 30211208 - Arms Act, 1959 - ss. 25(1)(b)(a) and 27 - Murder of deceased by fire shots - A-4 and A-5 engaged on payment by A-1, A-2, A-3 and A-6 for C killing deceased - Conviction of A-4 and A-5 u/s. 30211208 and ss. 25(1)(b)(a) and 27 and sentenced to death - Conviction of A-1, A-2, A-6 u/s. 30211208 and sentenced to· life imprisonment - High Court upheld death sentence against A-4 and A-5 but acquitted A-1, A-2 and A-6 - On D appeal held: Circumstantial evidence against A-4 and A-5 did not constitute a complete chain which is consistent with their guilt - Identification by PW 4 in T.I. parade cannot be relied upon as his presence at the place of occurrence doubtful - Discrepancy between the versions of witnesses identifying E and persons conducting T.I. Parade - Delay in holding T.I. Parade of A-5 - PW 3 having a little chance of seeing A-4 and A-5 - No relevancy of evidence of finger print expert on the car - Also discovery of weapon not relevant - Thus, order of High Court as regard A-4 and A-5 set aside and that of A- F 1, A-2 and A-6 upheld - Evidence. According to the prosecution case, A-1, A2, A3 and A-6 engaged A-4 and A-5 on payment, for killing the deceased MB. A-4 and A-5 shot the deceased from a close range. Before the incident A-4 and A-5 were seen G in the company of A-1, A-2, A-3, A-6 and A-7. Thereafter, the PWs.3 and 4 saw the accused going away from the scene of occurrence on a scooter along with A-7 who is absconding. Trial court convicted A-4 and A-5 uls. 3021 119 H 120 SUPREME COURT REPORTS [2010] 2 S.C.R. A 1208 IPC read with ss. 25(1)(b)(a) and 27 of the Arms Act and awarded death penalty. A-1, A-2 and A-6 were convicted u/s. 302/1208 and sentenced to life imprisonment. A-3 was acquitted and A-7 being an absconder, trial against him did not commence. High s Court upheld the death sentence against A-4 and A-5 but set aside the conviction of the. A-1, A-2 and A-6. Hence the present appeals. Allowing the _appeals by A-4 and A-5 and dismissing C the appeals by the State, the Court HELD: 1. 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. Considering the facts D of the case and also going by the test of appreciation of circumstantial evidence, the benefit of doubt is to be extended to A-4 and A-5 and the judgment and order of conviction of A-4 and A-5 u/ss. 302/120-8 l.P.C read with ss. 25(1)(a)(b) and 27 of the Arms Act cannot be sustained E and consequently the death sentence awarded to them by the High Court is set aside. [Paras 58 and 71] [143-8- D; 146-8] 2.1. On an analysis of the evidence of PW-3 and PW- 4, the presence of PW-4 in the place of occurrence is very F doubtful. PW-4's evidence is that he was coming to meet the deceased. They were known to each other for the last 20 years and PW-4 had 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 G stayed. PW-4 also admitted that he knows PW-3. 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. [Paras 14 and 15] [132-8-D] H 2~2. On reading the evidence of PW-3 and PW-4 it MUSHEER KHAN @ BADSHAH KHAN & ANR. v. 121 STATE OF M.P. would appear that one is totally insulated from the other A as if they are strangers and reside in different islands. This is totally improbable. In the appreciation of evidence neither the High Court nor the trial court considered this glaring improbability in the prosecution case. Taking into account the factual background, it is very doubtful B whether PW-4 was at all present at the place of occurrence having regard to the evidence of PW-3. Regarding assessment of the evidence of identification of the accused persons by PW-3 and PW-4, the identification by PW-4 cannot be relied upon at all. [Paras c 19, 20 and 21] [133-D-H] 2.3. It is the prosecution case that A-4 and A-5 are hired criminals and are not persons of the locality. The prosecution has also not claimed that A-4 and A-5 were known to PW-3 from before. From the evidence of PW-3 D it is cl
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