Baloch Vs. State of Gujarat  INSC 581 (23 March 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1507 OF 2007
ABDULWAHAB ABDULMAJID BALOCH ... APPELLANT VERSUS
S.B. Sinha, J.
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 2 202 of the Indian Penal Code ("IPC" for short) and under
Sections 21(1) (a) and 27 of the Arms Act was confirmed.
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.
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.
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.
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.
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.
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. Exhibit From
where How seized Remarks No. the and from Muddamal whom has been seized 1.
Exhibit-A P.S.I. Shri As the same Exhibit-282, D.C.B. M.P. U.T. has been Mark -
91/20 No.62/94, One Brahmbhatt, produced by S.C.No.13/98 revolver made in has
seized the accused Exh. 275 U.S.A. Smith and the same in Abdulvahab A.Date
Vessal made, .38 presence of Abdulmajid 08.07.1999 bore and on the hand Panchas
Shaikh from grip 630894 has been his house at written 67, Nandan Soc., Shahpur
23. Exhibit - W
P.S.I. Shri Accused Mentioned in D.C.B. U.T. Mahmadrafik M.P. No.64/2000 one
Brahmbhatt Abdulrahim revolver foreign Shaikh (sic) made over which [he was
SYSTEND ABADIE arrayed as BREVET has been Accused written 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?"
6 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
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.
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.
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."
acquitted in the said case. Recovery of weapons in the said case was not
accepted by the Court.
there appears to have been some confusion with regard to the identity of the
weapon vis-`-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
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
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:
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, 9 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."
or about 23.7.1997, the learned Additional Sessions Judge, Ahmedabad framed the
following charges against the appellant:
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."
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 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."
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.
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 .
and fired from .38"
According to him, the
bullet bound in the body of the deceased was fired from the revolver bearing
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
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.
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.
12 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
"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 13 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
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.
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
14 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.
Sushil Kumar, learned Senior Counsel appearing on behalf of the appellant would
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 15 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.
Sidharth Luthra, learned Senior Counsel appearing on behalf of the State,
however, would contend that the Investigating Officer has proved the seizure
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 16 deceased could be fired from one of the weapons seized in
connection with the aforementioned case.
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.
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.
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
17 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
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.
in the aforementioned situation, evidence of Shri Rathod assumes some
In his evidence, he
"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
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.
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
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.
"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)"
19 No question was
put to him as regards the discrepancy of the number in the revolver.
court granted permission to bring on record the original FSL Report to be
brought on record and proved in Crime No. 60 of 1994.
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:
article No. 34 is a revolver it is the same on perusing the same it is made in
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
"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.
20 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
On recalling the
witness, the Panchanama was proved.
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
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
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 21 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
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."
prosecution should have got the original record marked which is stated to be
containing the signature of the Investigating Officer.
also upon being marked as an exhibit could have been replaced by a certified
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.
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 22 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
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.
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
[B. Sudershan Reddy]
[Dr. Mukundakam Sharma]