2010 Supreme(SC) 107

2010 (1) Supreme 574
SUPREME COURT OF INDIA
G.S Singhvi and Asok Kumar Ganguly, JJ.
Musheer Khan @ Badshah Khan & Anr. — Appellant(s)
versus
State of Madhya Pradesh — Respondent(s)
Criminal Appeal No.1180 of 2005
Decided on : 28-01-2010

IMPORTANT POINTS
1.Delay in holding the T.I. parade by itself throws a doubt on the genuineness of such identification
2. 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.
3. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused.

Headnote:Indian Penal Code,1860- Sections 302/120B read with Sections 25(1)(b)(a) and 27 of the Arms Act-Prosecution of accused persons seven in number for causing death of deceased by firing shots at him – Prosecution case that 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- It was alleged that A-4 & A-5 were seen before the occurrence in 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 scene of occurrence on a light blue coloured scooter along with absconding accused A-7- Trial Court while acquitting A-3 and convicted A- 4 and A-5, A-1, A-2 & A-6 - A-7 being an absconder, trial against him did not commence-High Court on appeals thereagainst partly confirmed the judgment of Trial Court in confirming death sentence against A-4 & A-5, but reversed the conviction of other three accused, A-1,A-2,and A-6 and charge of conspiracy failed and they were acquitted-Appeals thereagainst by appellants and State- On an analysis of the evidence of PW-3 and PW-4 the presence of PW-4 in the place of occurrence was very doubtful- 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 deceased had been shot at- In view of said evidence it was absolutely natural for PW-4 to immediately talk with PW-3 to find out about incident-But there was no evidence of that- PW-3 never whispered anything about the presence of PW-4 at the place of occurrence - It was 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 deceased in the car would 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 was very very un- natural- It was 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 deceased in that Matiz car to hospital with help of others who had come to the place of occurrence much after he was there- If one reads the evidence of PW-3 and PW-4 it would appear that one is totally insulated from other as if they were strangers and resided in different islands- This was totally improbable- Unfortunately in the appreciation of evidence neither the High Court nor trial Court had considered this glaring improbability in the prosecution case- Taking into account said factual background it was very doubtful whether PW-4 was at all present at the place of occurrence having regard to the evidence of PW-3- Hence, identification by PW-4 of scooter and the accused A-4 and A-5 in the T.I Parade held doubtful and no reliance could be placed on that- In acquitting A1, A2, and A6, High Court had taken a plausible view- As the prosecution failed to prove its case of conspiracy, the motive angle behind the alleged crime committed by A-4 and A-5 disappeared-A-4 and A-5 held entitled to benefit of doubt (Paras 14 to 21, 71, 72)

        Identification test Parade-Evidentiary value of-Identification test is not substantive evidence- Such tests are meant for the purpose of helping investigating agency with an assurance that their progress with the investigation into offence is proceeding on right lines-Identification test parade is not substantive evidence but it can only be used in corroboration of the statements in Court-The main object of holding such tests during investigation is to check 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-Evidence of identification of accused for the first time is inherently weak in character and said 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 (Paras 27 to 30)

        Identification test Parade- Instantly A-4 was apprehended on 05.12.2000 and was arrested on 06.12.2000 and identification parade was held on10.12.2000- Admittedly A-4 was kept in open police custody for all these days -About the identification by him PW-3 deposed that he recognized all three persons in Court even though the fact remained that out of three accused persons A-7 absconded and never faced trial- This was a clear discrepancy in the evidence of PW-3 about identification- It was an admitted position that A-4 was bald but in his evidence PW-3 admitted that during investigation heads of none of the persons were covered- Though in his evidence PW-3 had 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 was no reference of blanket in Ext. P-14 and Ext. P-16 which were the reports of T.I. parade of A-4 and A-5 respectively- This was a vital contradiction between the versions of witnesses identifying and the person conducting the T.I.Parade- In so far as the identification of A-5 was concerned that had taken place at a very delayed stage- No explanation why his identification parade was held after a gap of over a month from date of arrest and after about 3 months from 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 was no explanation by prosecution (Paras 31 to 37)

        Indian Evidence Act, 1872- Section 45 -Evidence of finger print expert - 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- Instantly it was nowhere alleged by prosecution that there there was any altercation between the was any altercation between the deceased and the accused persons at the scene of occurrence- There was no whisper of any evidence that accused persons had any physical contact with deceased or chased the deceased or dragged deceased out of the car- The evidence was only of hearing shots of fire arm and the further evidence was 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 was 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-Accused, being hired criminals, according to 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 was no evidence of deceased running away from his assailants or offering any resistance- Having regard to this state of evidence, evidence of finger print on the car ceased to have any relevance (Paras 38 to 45)

        Circumstantial evidence -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- 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-. 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. (Paras 46, 47, 49)

       Facts of the Case :

        Accused persons seven in number were prosecuted herein in the instant case for causing death of deceased by firing shots at him . Prosecution case that 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. It was alleged that A-4 & A-5 were seen before the occurrence in 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 scene of occurrence on a light blue coloured scooter along with absconding accused A-7. Trial Court while acquitting A-3 and convicted A- 4 and A-5, A-1, A-2 & A-6 . A-7 being an absconder, trial against him did not commence.High Court on appeals thereagainst partly confirmed the judgment of Trial Court in confirming death sentence against A-4 & A-5, but reversed the conviction of other three accused, A-1,A-2,and A-6 and charge of conspiracy failed and they were acquitted.

        2. Present appeals have been filed against said order of High Court.

       Findings of the Court :

        On an analysis of the evidence of PW-3 and PW-4 the presence of PW-4 in the place of occurrence was very doubtful. 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 deceased had been shot at. In view of said evidence it was absolutely natural for PW-4 to immediately talk with PW-3 to find out about incident.But there was no evidence of that. PW-3 never whispered anything about the presence of PW-4 at the place of occurrence . It was 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 deceased in the car would 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 was very very un- natural. It was 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 deceased in that Matiz car to hospital with help of others who had come to the place of occurrence much after he was there. If one reads the evidence of PW-3 and PW-4 it would appear that one is totally insulated from other as if they were strangers and resided in different islands. This was totally improbable. Unfortunately in the appreciation of evidence neither the High Court nor trial Court had considered this glaring improbability in the prosecution case.Taking into account said factual background it was very doubtful whether PW-4 was at all present at the place of occurrence having regard to the evidence of PW-3. Hence, identification by PW-4 of scooter and the accused A-4 and A-5 in the T.I Parade held doubtful and no reliance could be placed on that. In acquitting A1, A2, and A6, High Court had taken a plausible view. As the prosecution failed to prove its case of conspiracy, the motive angle behind the alleged crime committed by A-4 and A-5 disappeared.A-4 and A-5 were held entitled to benefit of doubt.

       Result : Ordered accordingly