REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1507 OF 2007

ABDULWAHAB ABDULMAJID BALOCH         … APPELLANT

VERSUS

STATE OF GUJARAT                … RESPONDENT

J U D G M E N T

S.B. Sinha, J.

1. Appellant  is  before  us  aggrieved  by  and  dissatisfied  with  a

judgment and order dated 24.8.2007 passed by a Division Bench of the

High Court  of Gujarat  at  Ahmedabad in Criminal  Appeal  No. 1095 of

1999 whereby and whereunder  a  judgment  of  conviction  and sentence

passed by Additional City Sessions Judge, Ahmedabad in Sessions Case

No. 13 of 1997 and 14 of 1997 for commission of offences punishable

under Sections 302, 365, 387, 332 read with Section 34, 120B, 201 and

202 of the Indian Penal Code (“IPC” for short) and under Sections 21(1)

(a) and 27 of the Arms Act was confirmed.   

2. An identified  dead  body  of  a  male  was  found  to  be  lying  near

Sahakari  Cold  Storage,  just  opposite  Munda  Gate  and  Telephone

Exchange.  On or about 4.9.1993, H.P. Kohri, Police Sub-Inspector (PSI),

Gaekwad  Haveli  Police  Station  received  information  thereabout.   A

firearm injury on the forehead above the left eye was found on the person

of the deceased.  During post-mortem examination, a bullet was taken out

from the person of the deceased.  A First Information Report (“FIR” for

short)  was  lodged by the  said  Police  Officer,  which was registered  as

I.C.R. No. 161/93.  

3. During  investigation,  the  dead  body  was  found  to  be  of  one

Bhagvandas Dwarkadas Sindhi.  It was reported that the deceased, who

was  dealing  in  illicit  foreign  liquor,  had  some  dispute  with  one

Abdulwahab Sheikh (Accused No. 24) (since deceased),  who had also

been carrying on identical business. A conspiracy was said to have been

hatched by and between Accused No. 24, Abdulwahab (Accused No.1),

Abdulsattar (Accused No.25) and Rasulkhan @ Rasulparti to abduct and

to extort money from him.   

2

4. Indisputably,  Shakilahmed (Accused  No.4)  and  Aslam (Accused

No. 17) had also been dealing in liquor business near Madhuram Theatre

and the deceased used to visit them in relation thereto and in connection

therewith.   Allegedly,  for  keeping  a  watch  over  the  deceased,

Iqbalhussain (Accused No. 2) and Mohamadsalim (Accused No. 3) were

employed.  Abdulkadar (Accused No. 7) and Abdulsattar (Accused No. 8)

are  said  to  have  provided  the  appellant  (Accused  No.1)  and  accused

Sherzada (since deceased) a Maruti Van.  Upon stopping the deceased,

Accused  No.  2  -  Iqbalhussain  and   Accused  No.  3  -  Mohamadsalim

informed the appellant and the deceased Sherzada who were in the Maruti

Van.  Appellant and other accused thereafter abducted the deceased and

attempted to extort money from him. Resistance was offered thereto.  A

shot was fired at him by the appellant  from his revolver as a result  of

which he died. His dead body was thereafter thrown near the cold storage.

5. In connection with the aforementioned incident, Kamlesh Dayaram

@ Kamli (P.W. 4) was arrested on or about 6.9.1994.  The Investigating

Officer,  however,  while  filing  charge-sheet  in  connection  with  the

aforementioned case on 3.1.1995 filed an application in terms of Section

169 of the Code of Criminal Procedure, pursuant whereto he was made a

prosecution witness.   

3

6. Indisputably, appellant  was arrested on 31.5.1994 at  Mumbai  by

the Investigating Officer in connection with another case being Case No.

60 of 1994.  Appellant is said to have been in his custody a few days

before he was formally arrested.  He was arrested in connection with the

case in question on 13.7.1994.  

7. Indisputably, appellant while in custody in connection with the said

Case No. 60 of  1994 made a confession leading to discovery of some

weapons.   

It is also not in dispute that pursuant  thereto a few firearms and

cartridges were recovered.

In connection with the aforementioned Case No. 60 of 1994, the

following exhibits were sent for opinion of the Ballistic Expert.  

“ Sr. No.

Exhibit From where the Muddamal has been seized

How seized and from whom

Remarks  

4

1. Exhibit-A  D.C.B. M.P. No.62/94, One revolver made in U.S.A. Smith and Vessal made, .38 bore and on the hand grip 630894 has been written

P.S.I. Shri U.T. Brahmbhatt, has seized the same in presence of Panchas  

As  the  same has  been produced  by the  accused Abdulvahab Abdulmajid Shaikh  from his  house  at 67,  Nandan Soc., Shahpur Ahmedabad.

Exhibit-282, Mark – 91/20 S.C.No.13/98 Exh. 275 A.Date 08.07.1999

……….. ….. …… ….

23. Exhibit – W Mentioned in D.C.B. M.P. No.64/2000 one revolver foreign made over which SYSTEND ABADIE BREVET has been written

P.S.I. Shri U.T. Brahmbhatt

Accused Mahmadrafik Abdulrahim Shaikh  (sic) [he  was arrayed  as Accused No.9]  has produced  the same  from his  house  at A-15, Saytam Society, Shahpur  on 03.06.1994

”

One of the questions which was referred to the Ballistic Expert for

his opinion was as under:

“Do the weapons mentioned in Exhibit – A to F and  Exhibit  –  W  are  in  working  condition? They  are  country  made  or  foreign  made  and whether they are dangerous or not?”

5

The report was submitted on 5.10.1994.  It was in two parts.   It

appears that one of the revolver of .38 bore was marked as Exhibit-A.

The  relevant  portion  of  the  report  prepared  by one  Shri  M. J.  Rathod

reads as under:

“Exhs.1  &  1A  are  two  fired  .38”  copper jacketed  bullets  having  five  lands  and  five grooves  with  right  hand  twist.   Exhs-2A and Exh-3A are  two grooves  with  left  hand  twist. Exhs. 1, 1A, 2A & 3A and test fired six grooves with left hand twist Exhs.-1A, 2A & 3A and test fired bullets, test fired from Exhs-A, B & C of case No. FSL/EE/94/BL/277 this laboratory, were  examined  and  compared  under  a comparison microscope.

The weapon characteristic  marks (rifling marks)  of  Exhs-I  & 1A and  those  on  the  test fired  bullets  test  fired  bullets,  test  fired  from Exh-A  of  case  No.  FSL/EE/94/BL/277,  were found similar.  

The weapon characteristic  marks (rifling marks) on Exhs.-2A & 3A and those on the test fired  bullets,  test  fired  from  Exhs.-C  of  case No.FSL/EE/94/BL/277  were  found  similar, thereby showing that (1) Exhs-1 & 1A (bullets) have  been  fired  from  Exh-A  of  case  No. FSL/EE/94/BL/277,  (2)  Exhs  –  2A  &  3 (Bullets) have been fired from Exhs-G of Case No. FSL/EE/94/BL/277.”

Appellant was acquitted in the said case.  Recovery of weapons in

the said case was not accepted by the Court.   

6

8. Indisputably,  there  appears  to  have  been  some  confusion  with

regard  to  the  identity  of  the  weapon  vis-à-vis  the  number  inscribed

therein.  By a letter dated 22.2.1996, a clarification was sought for from

the Director of Forensic Science Laboratory, stating  

“I have received the investigation of the cases of the  said  offence  from  the  Deputy Superintendent of Police, A.T.S., Gujarat State, Ahmedabad  and  I  have  received  opinion  in respect  of  the  weapons  and fired  bullets  from your  side.   It  is,  therefore,  requested  to  give your opinion, that, do the legal actions may be taken against the person who has sold the said weapons.   

Crime  Branch  has  seized  Revolver  and Pistol  from Abdulvahab Abdulmajid Shaikh in the  case  of  Gaekwad  Haveli  Police  Station I.C.R. No. 60/94, on 03.06.1994 and the same were  sent  towards  you  for  the  examination, which  were  lying  in  your  office  of  Forensic Science Laboratory.  If the detailed examination be  over,  you are  requested  to  give  your  clear opinion regarding do you find any bullets while firing from the said weapons pertaining to the below mentioned offence.  

A. The  firing  was  caused  in  the  case  of Gaekwad Haveli Police Station I.C.R. No. 161/93 registered u/s  302,  120-B etc. of Indian Penal Code and the bullets found during the investigation was forwarded to you on 08.09.1993.  The opinion thereof has  been  sent  by  you  vide  your  No. FSL/EE/93/BL/349, dated 19.10.1993.”

7

9. On or  about  18.4.1996,  Shri  A.S.  Prajapati,  Ballistic  Expert,  in

reply to the said letter dated 22.2.1996 stated that the number seen on the

Parce-A/Exhibit-A (0.38” S & W Revolver) was 768029.   

A letter of Shri A.S. Prajapati, Scientific Officer, Forensic Science

Laboratory addressed to the Deputy Superintendent  of  Police  has been

filed, wherein it was stated:

“The following weapons (firearms) received in the case No. FSL/EE/94/B1/277 were examined in  the  laboratory  and  here  with  an  additional case report regarding the numbers and make of firearms is submitted as per your requirement.

Parcel-A (Ex.A): is  a 0.38” Smith & Wesson revolver.   Punched write  up “Smith  &  Wesson  Spring Field Mass, U.S.A., Patented Feb.6.06,  Sept.14-09, Dec.29.14,  ‘The  trade  mark of  company  Smith  & Wesson,  Reg.  U.S.  PAT OFF.,  38  S&W CTG,  made in  U.S.A.’  the  number 768029 were found on it.   

In the forwarding note of  the  Gaikwad  Haveli Police  Station  C.R.  No. 60/94,  the  number  on  the grip  of  Ex.A  has  been described as 630894 and this number was not present.

Parcel-B(Ex.B): is  a 0.38” Smith & Wesson revolver.   Punched write  up “Smith  &  Wesson  Spring Field  Mass,  U.S.,  Patented Feb.6.06,  Sept.14-09,

8

Dec.29.14,  ‘The  trade  mark of  company  Smith  & Wesson,  U.S.A.  Reg.  U.S. PAT  OFF.,  38  S&W  CTG, made in U.S.A.’ the number 781858 were found on Ex.B.

In the forwarding note, the  number  on  the  grip  of Ex.B is described as 832184, and  this  number  was  not present.”

10. On  or  about  23.7.1997,  the  learned  Additional  Sessions  Judge,

Ahmedabad framed the following charges against the appellant:

“10. Further, the accused, accused No.1 and 4 and No.17 and 24 have with the  intentions  of  achieving  their common  motive  to  murder Bhagwandas Sindhi, murdered him and by such act committed criminal offence  under  Section  302  read with  Section  34  of  IPC,  and alternatively  under  Section  302 read with Section 120B of IPC.”

11. During trial of the case in question, an application was filed by the

Special  Public  Prosecutor  on  or  about  8.9.1998,  which  was  in  the

following terms:

“I, the Special Public Prosecutor of this case, I am producing the list of documentary evidence Xerox copies under Section 294 of the Criminal Procedure Code.   Exh. 262

List 1. The Xerox copy of the 03.06.1994

9

panchnamas of the Seizure of  the weapons dated 03.06.1994”

The said application was marked as an exhibit.   

The firearms and cartridges recovered in connection with Case No.

60 of 1994 were also received.  The recovery of the firearms as stated in

the seizure memo are as under:

“1. One Revolver  –  Made in  U.S.A.,  Smith and Vessal Company, .38 bore, below its handgrip  630894  read,  which  is  in working  condition.   The  cost  of  which shall considered to be 1 lac 50 thousand.

2. One Revolver  –  Made in  U.S.A.,  Smith and Vessal company, .38 bore, below its handgrip  882184  read,  which  is  in working condition.  The cost of the same shall considered to be 1 lac 50 thousand.”

12. Indisputably, in the  case in question,  Shri  M.J. Rathod,  Ballistic

Expert  submitted  its  report  on  or  about  19.10.1993;  relevant  portion

whereof reads as under:

“Exh-1: Is a copper jacketed bullet.

Results of Examination:

Exh-1: Is  a  fired  .38”  copper  jacketed bullet  having  five  lands  and  five grooves  with  right  hand  twist.   It has  been  fired  from  standard weapon.   Such  bullet  is  used  in  .

10

38”  cartridge  and  fired  from .38” Revolver.  

According to him, the bullet bound in the body of the deceased was

fired from the revolver bearing No. 630894.

13. Inter  alia,  on  the  basis  of  recovery  of  the  said  weapon  and  the

report of the Ballistic Export, a judgment of conviction and sentence was

recorded by the learned Sessions Judge, which by reason of the impugned

judgment has been affirmed.

14. Before adverting  to  the merit  of  the  matter,  we may notice  that

there were 26 accused in the aforementioned case.  Accused No. 14 and

Accused 24 died during the trial.   The prosecution although examined a

large number of witnesses; PW-4, who, as noticed hereinbefore, arrayed

as one of the accused, was later on extended the benefit of Section 169 of

the Code of Criminal Procedure.   

15. Indisputably, no charges under Sections 25 and 27 of the Arms Act

were framed.  The learned Sessions Judge examined only Accused No.1,

Accused No.9 and Accused No. 23  under  Section 313 of  the Code of

Criminal Procedure.  All other accused, namely Accused Nos. 2 to 13 and

15 to 23 of Sessions Case No. 13 of 1997 and Accused Nos. 25 and 26 of

Sessions Case No. 14 of 1997 were acquitted.  

11

The learned Sessions Judge in his judgment inter alia took notice of

the  fact  that  whereas  the  deceased  was  murdered  on  3.9.1993  the

incriminating articles  in Case No.60 of 1994 were seized on 3.4.1994,

i.e., after an interval of nine months.  It was placed on record that except

disclosure statements no other evidence has been brought on record.  The

learned Special Judge, however, applied the provisions of Section 114(a)

of the Indian Evidence Act to hold that the illustrations given in Section

114 of the Evidence Act being not exhaustive; a presumption may also be

drawn  in  respect  of  charges  of  aggravated  offences  such  as  murder,

robbery, etc.  So far as recent unexplained possession of the offending

weapon in the hands of the accused is concerned such presumption may

be permitted  to  raise  upon considering  evidence  and  circumstances  of

each case.   

It was furthermore held:

“73. Now turning to the offence committed by accused  No.1,  there  is  no  direct  evidence  to prove  his  participation  in  murder  of Bhagwandas  Dwarkadas  Sindhi.   However, there  are  cogent,  credible  and  clinching circumstantial evidence against him to establish that he had committed said murder.  The bullet taken out by doctor from the dead body of the deceased was fired from the revolver recovered from the house at the instance of accused no.1. Revolver was kept and concealed in such place that knowledge of same could not be attributed

12

to  any  other  person  than  accused  No.1.   The important circumstance that as opined by expert to the effect that the said bullet  could only be fired  from  that  particular  revolver.   Another important  circumstance,  on  the  basis  of presumption, which connect the accused No.1 to the  murder  that  he  could  not  offer  any satisfactory  account/explanation  as  how  he came  to  be  in  possession  of  said  revolver (weapons).   There  circumstances  sufficient  to bring  home the  guilt  of  accused  No.1  beyond reasonable  doubt.   Witnesses  may  lie,  but circumstances cannot.  

In the light of above, it can be held that accused No.1 fired a shot from his revolver on the deceased.  The shot was hit on the vital part i.e. head.  Under the circumstances, it can safely be held that the accused no.1 intended to cause a fatal  injury  to  the  vital  part  of  the  deceased, which was later on found sufficient in ordinary course of nature to cause his death.  Thus, act of accused  No.1  is  clearly  covered  under  Clause (3) of Section 300 of I.P. Code.  

74. Having  due  regard  to  the  evidence adduced and circumstances available on record, the prosecution has failed to prove that accused and  others  entered  into  a  criminal  conspiracy prosecution  has  also  failed  to  establish  that accused  No.  1  had  shared  common  intention with other accused as there was prior concert in furtherance of which deceased Bhagwandas was done away.  Therefore, no such inference can be drawn.  In the circumstances,  accused No.1 is liable for his own act/acts.

There was constructive charge against all the accused  persons  u/s  302,  r.w. 34,  but,  the finding arrived  at  on  the  strength  of  evidence that it was only the accused no.1 who inflicted injury  which  proved  fatal.   It  has  been established by prosecution that crime of murder is  committed  by accused  no.1  individually,  in

13

that  case  he  can  be  convicted  u/s.  302, (simplicitor) of T.P.C.

75. The evidence of prosecution does suggest that along with the offence punishable u/s 302 of  I.P.  Code  the  accused  no.  1  has  also committed  offence  punishable  u/s  25  & 27 of the  Arms  Act.   However,  I  am  helpless  to convict  him on  the said  counts  as  there  is  no specific charge against him.  It is true that such charge  is  available  against  other  accused persons, but, there is no evidence against them.”

Thus, as no charge under Sections 25 and 27 of the Arms Act was

framed,  he was convicted  only under  Section  302 of  the  Indian  Penal

Code.  

16. Mr. Sushil Kumar, learned Senior Counsel appearing on behalf of

the appellant would contend:

i) that  the  learned  Special  Judge  as  also  the  High  Court

committed a serious error in passing the impugned judgment

insofar as they failed to take into consideration that not only

the recovery of weapons but also the commission of offence

has not  been proved in  the case in  which the  seizure  was

effected, namely, Case No.60/1994.

ii) It is apparent from the materials brought on record that the

prosecution  having  found  that  Shri  Prajapati  had  not

14

submitted a favourable report,  procured a report  from Shri

M.J. Rathod upon changing one weapon by another.   

iii) The High Court failed to perform its duty as a first appellate

court insofar as the evidence was neither re-appreciated nor

reevaluated despite the fact that the learned Sessions Judge

proceeded  on  the  basis  that  only  circumstantial  evidences

were available against the appellant.  

iv) Xerox copy of the seizure memo which did not contain the

signature of the Investigating Officer, which was sought to

be  brought  on  record,  was  inadmissible  in  evidence

particularly  in  view  of  the  fact  that  the  seizure  memo

witnesses did not support the prosecution case.  

17. Mr. Sidharth Luthra, learned Senior Counsel appearing on behalf

of the State, however, would contend that the Investigating Officer has

proved the seizure memo.

Our attention in this behalf has also been drawn to the fact that Shri

Prajapati  was  asked  to  submit  his  report  as  to  whether  the  weapons

recovered  were in  working condition  or  not  whereas  Shri  Rathod  was

asked to report as to whether the bullet recovered from the body of the

15

deceased could be fired from one of the weapons seized in connection

with the aforementioned case.   

18. We have  noticed  as  to  how, perfunctorily,  the  investigation  had

been carried on.  Even in a case of this nature proper charges had also not

been  framed.   The  documents  had  also  not  been  properly  brought  on

record.   

Indisputably,  only Xerox of  the  seizure memo was sought  to  be

brought  on  record  invoking  Section  294  of  the  Code  of  Criminal

Procedure,  which had no application.   It,  however,  appears  that  during

trial the original seizure memo as also the material  objects were called

for.  The prosecution for reasons best known to it did not examine Shri

Prajapati,  one  of  the  Ballistic  Experts.  Shri  Rathod,  however,  was

examined who proved his report.    

19. A dispatch note was sent on 6.7.1994 in respect of revolver Nos.

630894  and  882184.   Shri  Prajapati  in  his  report  in  response  to

questionnaire No.1 opined that the firearms were in working condition.

It, however, does not appear that he was asked to submit his report on the

question as to whether the bullet recovered from the body of the deceased

was fired from one of the aforementioned weapons.   

16

Part II of the report which appears to have been enclosed with the

original report dated 19.10.1993 was prepared by Shri M.J. Rathod.   

A  confusion,  however,  appears  to  have  arisen  from letter  dated

18.4.1996 wherein in respect of Parcel-A/Exhibit-A, the number inscribed

on the Exhibit was stated to be 768029.   

It was in view of the discrepancy in the aforementioned number

and the weapon, a contention was raised by Mr. Sushil Kumar that one

weapon was substituted by another.   

20. However, in the aforementioned situation, evidence of Shri Rathod

assumes some importance.  

In his evidence, he stated:

“7. On examining the Mark A revolver I had found  that  the  said  revolver  was  earlier used.  The said revolver right hand twist 5 lands  and  5  grooves  were  found.   The said revolver is in working condition, for checking this  there  was test  fired  in  the Laboratory.   

Mark B revolver was also test fired and it was  also  found  to  be  in  working condition.   It  also  had  5  land  and  5 grooves.  It was also right hand twist.

Mark C revolver also was test fired, from this  it  was  found  that  it  was  also  in working condition.  It was left hand twist, and  in  it  there  were  6  grooves  and  6 lands.

17

8. The mark I bullet comparison with Mark A and Mark B and with Mark C revolver test  fire  bullets  comparison  was  done. Such  comparison  we  had  done  using microscope.  In this manner after making comparison  I  have  arrived  on  the following  opinion.   Mark  I  bullet  was fired from the Mark A revolver.  

For  arriving  to  the  above  conclusions  I had made the land to  land match where the  hy-filing  marks  were  matching, number of lands and number of grooves whose  breadth,  and  rifling  were compared.  From the rifling marks I state that,  Mark  I  bullet  was  fired  from  the Mark A revolver and it was not fired from any other weapon.   

He furthermore stated:

“9. In this matter the list Mark 91/18 I have perused  and  state  that  it  is  the  original opinion which is shown in part-2.  Which is  proper.  It  is  the  Xerox  copy  of  the same.   In  the  Xerox  copy  also  I  have identified  my signature.   Now list  Mark 91/18 Part 2 is given Exh. 281.  The said report  is  given  on  5/10/94.   The  above three  revolvers  were  in  the  matter  of Gaekwad Haveli Police Station I.C.R. No. 60/94  muddamal,  and  the  dispatch  note by the  police  officer  was  also  received. In the matter of Crime Reg. No. 60/94, 3 weapons which were received by us with the dispatch note the original of the said dispatch  note  is  in  our  office.  In  this statement in the end as per the orders List Mark 91/20 is Exh. 282.  I am shown List Mark 91/19,  it  is the Xerox copy of the dispatch note.  Which is proper it is given Exh. 282.  (It is exhibited by the consent of the Advocate for accused)”

18

No question  was  put  to  him  as  regards  the  discrepancy  of  the

number in the revolver.  

Indisputably, the court  granted permission to bring on record the

original FSL Report to be brought on record and proved in Crime No. 60

of 1994.

21. The Investigating Officer when examined was shown the material

articles being Article No. 33. He stated that the said article made in USA

Smith & Wesson  Company .38  bore  wherein  nos.  630894  was shown

below the butt was the same revolver which was found from the suitcase

during Panchanama.   

The revolver in question being article No. 34 was also shown to the

said witness, in reply whereto he stated:

“The said article No. 34 is  a revolver it  is  the same on perusing the same it is made in U.S.A. Smith & Wesson Company .38 bore and below its butt reading from the nozzle size No. 882184 is read.  And on reading from the other side the number 781858 is read.”

The learned judge noted:

“At  this  stage  the  Special  P.P.  Mr.  K.B. Anandjiwalal  has  given  the  application  Exh. 219  and  requests  that  in  the  matter  of  the Gaekwad Haveli Police Station Crime Reg. No.

19

60/94 the discovery panchanama was prepared and the pancha in the same be recalled and the slips on the muddamal taken into custody in the matter  of  said 60/94 bears  his  signature.   The said  signature  should  be  shown  to  the  said witness  and  it  is  in  the  interest  of  justice  to prove  the  same.   In  these  circumstances  after such pancha witness was recalled and after the statement  was  completed  the  further examination  in  chief  of  the  witness  Police Office  Mr.  Brahmbhatt  is  required  to  be recorded.   The  defence  has  not  taken  any objections in this regard.  In these circumstances the application by the prosecution to recall the pancha witness is allowed and it  is  ordered to adjourn the examination-in-chief of the witness Mr. Rathod in the interest of justice.”

On recalling the witness, the Panchanama was proved.  

22. It furthermore appears that a confusion arose as despite the original

Panchanama having been proved which  contained the signature  of  the

Investigating Officer, the Xerox copy thereof was marked as an Exhibit.

The original was returned.  Signature of the Investigating Officer in the

Xerox copy is admittedly missing.  

The  Investigating  Officer  in  his  evidence  stated  in  cross-

examination:

“In this  matter  that  is  in  the  Gaekwad  Haveli Police  Station  I.Crime  Reg.  No.  161/93  the supplementary chargesheet  against  the accused the said Exh. 262 panchanama copy is shown. The said copy in this chargesheet is on page No. 178 to 184.  On perusal of the said copy I state that  in  which  there  is  the  signature  of  the panchas, but as the police officer my signature is not seen.  The said chargesheet Page Nos. 178

20

to 184 is given Exh. 263. [On request made by Advocate Mr. Jhala]

It  is  not  true  that  in  this  matter  the  original panchanama was written [Exh. 262] at that time I was not present.”

The learned Sessions Judge, however, opined:

“70. Lastly, Ex. 263 (page 178 to 184 in copy of  charge-sheet  produced  in  the  present  case) the Xerox copy of Discovery Panchanama Ex. 262, wherein  signature of Panch witnesses are visible, but the signature of P.I. Shri Bharmbhatt is  missing.   The  defence  has  argued  that  it strengths the allegations that said Ex. 262 is a table work and the investigation is tainted.  It is merely  a  Xerox  copy,  perhaps  some  mischief might have committed.  However, on that count only  the  available  reliable  evidence  cannot  be ignored.”

23. The prosecution should have got the original record marked which

is  stated  to  be  containing  the  signature  of  the  Investigating  Officer.

Original Panchanama also upon being marked as an exhibit could have

been replaced by a certified copy.   

The accused,  in  a situation of this  nature,  is  entitled  to take the

benefit  of  the  weakness  of  the  prosecution  case,  which  led  to  the

aforementioned finding of the learned trial judge which was not correct.  

24. Be  that  as  it  may,  we  feel  that  only  because  the  recovery  of  a

weapon was made and the Expert opined that the bullet found in the body

of the deceased was fired from one of the weapons seized, by itself cannot

21

be the sole premise on which a judgment of conviction under Section 302

could be recorded.  There was no direct evidence.  Accused, as noticed

hereinbefore, was charged not only under Section 302 read with Section

34 of the Indian Penal Code but also under Section 302 read with Section

120B  thereof.   The  murder  of  the  deceased  was  said  to  have  been

committed by all the accused persons upon hatching a conspiracy.  This

charge has not been proved.  The learned trial judge itself opined that the

recovery having been made after  nine months,  the weapon might  have

changed in many hands.  In absence of any other evidence connecting the

accused  with  commission  of  crime of  murder  of  the  deceased,  in  our

opinion, it is not possible to hold that the appellant on the basis of such

slander evidence could have been found guilty for commission of offence

punishable under Section 302 of the Indian Penal Code.   

It is a matter of serious concern that despite recovery of weapon

appellant  had  not  been  charged  for  commission  of  offence  punishable

under Sections 25 and 27 of the Arms Act.  We have noticed hereinbefore

the helplessness expressed by the learned trial judge in this behalf.  The

learned judge who had framed charges should have been more careful.

The  learned  judge  also,  in  our  opinion,  was  incorrect  in  drawing  a

presumption of commission of offence punishable under Section 302 of

the Indian Penal Code by applying the provisions of Section 114 of the

Indian Evidence Act keeping in view the principle that the prosecution

must prove its case beyond all reasonable doubt.   

22

25. Having regard to the facts and circumstances of this case, we have

no other  option  but  to  hold  that  the appellant  is  entitled  to  benefit  of

doubt.   The impugned judgment,  therefore,  is set aside.  The appeal is

allowed.  The appellant who is said to be in custody is set at liberty unless

wanted in connection with any other case.    

……………………………….J. [S.B. Sinha]

..…………………………..…J.     [B. Sudershan Reddy]

..…………………………..…J.     [Dr. Mukundakam Sharma]

New Delhi; March 23, 2009

23