Holding

The conviction under Section 302 IPC was unsustainable as the prosecution failed to prove guilt beyond reasonable doubt, and the appellant is entitled to the benefit of doubt.

Summary

The appellant was part of a group that abducted Bhagvandas Sindhi and attempted to extort money; when the victim resisted, the appellant allegedly fired a revolver at him, causing a fatal head wound. The weapon and a bullet were later recovered, and a ballistic expert testified that the bullet was fired from the seized revolver. The trial court convicted the appellant under IPC s.302 (murder) and related sections, and the High Court affirmed the conviction. On appeal, the Supreme Court found the investigation perfunctory, the charge‑frame defective, and the documentary evidence (including the seizure memo) improperly admitted. It held that the ballistic evidence alone could not sustain a conviction, no direct evidence linked the appellant to the murder, and the presumption under s.114 Evidence Act was inapplicable. Consequently, the prosecution failed to prove guilt beyond reasonable doubt, and the appellant was acquitted.

Issues considered

The adequacy of ballistic evidence to prove the appellant's participation in the murder.
Whether the presumption of guilt under Section 114 of the Evidence Act can be applied in a murder case.
Whether the trial court properly framed charges, including under the Arms Act.
The admissibility and authenticity of the seizure memo and related documents.
Whether the investigation was conducted in a manner sufficient to support a conviction.

Legislation cited

Arms Act, 1959s. 25, s. 27
Code of Criminal Procedure, 1973s. 169, s. 294
Indian Evidence Act, 1872s. 114
Indian Penal Code, 1860s. 1208, s. 201, s. 202, s. 302, s. 332, s. 34, s. 365, s. 387

Subjects

murderballistic evidencepresumption of guiltbenefit of doubtArms Actcharge framinginvestigation deficienciesSection 114 Evidence Actcircumstantial evidence

Judgment

[2009] 4 S.C.R 956

\
;
A ABDULWAHAB ABDULMAJID BALOCH
v.
STATE OF GUJARAT
Criminal Appeal No. 1507 of 2007

MARCH 23, 2009
B
[S.S. SINHA, 8. SUDERSHAN REDDY AND DR.
MUKUNDAKAM SHARMA, JJ.] •
J.
Penal Code, 1860 - s.302 - Murder - Deceased was
fired at, on the head - Conviction of accused-appellant by trial
c court uls.302 /PC - Conviction upheld by High Court - Held:
On facts, the prosecution case was weak - Investigation was
carried out in a perfunctory manner - Proper charges were
not framed - Documents were a/so not properly brought on I-
record - Prosecution did not examine one of the Ballistic ~
D Experts - There was no direct evidence - In any event, mere
recovery of weapon and opinion of ballistic expert that the bullet
found in body of deceased was fired from one of the weapons
seized could not be the sole premise on which appellant could
be convicted under s. 302 - Trial court erred in drawing
E presumption of commission of offence punishable under s. 302
by applying the provisions of s.114 of the Evidence Act -
Prosecution did not prove its case beyond all reasonable doubt ~ -
-Appellant entitled to ben·Jfit of doubt-Acquitted- Evidence
Act, 1872 - s.114.
F Criminal Law - Non-framing of proper charge - Death
due to fire-arm injury - Recovery of weapon - Held: On facts,
it was a matter of serious concern that despite recovery of
weapon, the accused was not charged for commission of
offence punishable under ss. 25 and 27 of the Arms Act - Trial ....
G Court which framed charges should have been more careful
-Arms Act, 1959 - ss. 25 and 27.
According to the prosecution, the appellant and the
other accused abducted a person and attempted to extort
H 956
ABDULWAHAB ABDULMAJID BALOGH V. 957
STATE OF GUJARAT
>
money from him and when he offered resistance, the A
+ appellant fired at him from his revolver which hit on the
victim's head and consequently he died. During post
mortem examination a bullet was taken out from the body
of the deceased. The weapon of offence i.e. the revolver
was purportedly recovered at the instance of the appellant. B
The trial court held that the prosecution failed to
prove that there was a criminal conspiracy between the
••} appellant and the other accused or that they shared a
common intention to do away with the deceased, and
~
convicted the appellant under s.302 IPC simpliciter holding c
him liable for his own acts. The conviction was upheld by
the High Court. The convict filed the appeal.
Allowing the appeal, the Court
HELD: 1. In the instant case, the investigation had D
been carried on in a perfunctory manner. Proper charges
were also not framed. The documents were also not been
properly brought on record. Only Xerox of the seizure
memo was sought to be brought on record invoking s.294
CrPC which had no application. The prosecution for the
E
reasons best known to it examined only one of the two
Ballistic Experts. 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 F
Officer in the Xerox copy was admittedly missing. 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 G
a certified copy. The accused, in a situation of this nature,
is entitled to take the benefit of the weakness of the
prosecution case. [Paras 18, 22, 23] [969-F-H; 973-A-B;
970-A; 97 4-A-B]
2. In any event, only because the recoverv of a H
958 SUPREME COURT REPORTS [2009] 4 S.C.R.

A weapon was made and the ballistic expert opined that the
bullet found in the body of the deceased was fired from
one of the weapons seized, that by itself cannot be the
sole premise on which a judgment of conviction under
s.302 IPC could be recorded. There was no direct evidence.
B Accused was charged not only under s.302 read with s.34
IPC but also under s.302 read with s.1208 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 trial judge itself
C opined that the recovery having been made after nine
months, the weapon might have changed many hands.
In absence of any other evidence connecting the accused
with commission of crime of murder of the deceased, it is
not possible to hold that the appellant on the basis of such
o slander evidence could have been found guilty of
commission of offence punishable under s.302 IPC. [Para
24] [974-C-F]
3. It is a matter of serious concern that despite
recovery of weapon appellant had not been charged for
E commission of offences punishable under ss.25 and 27
of the Arms Act, 1959. The trial judge who framed charges
should have been more careful. Contrary to the principle
that the prosecution must prove its case beyond all
reasonable doubt, the trial judge was incorrect in drawing
F a presumption of commission of offence punishable u/s.
302 IPC by applying the provisions of s.114 of the Indian
Evidence Act. Having regard to the facts and
circumstances of the case, the appellant is entitled to
benefit of doubt. [Paras 24, 25] [974-F-H; 975-A]
G CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1507 of 2007
From the Judgement and Order dated 24.08.2007 of the
Hon'ble High Court of Gujarat atAhmedabad in Criminal Appeal
H No. 1095 of 1999.
ABDULWAHAB ABDULMAJID BALOGH V. 959
STATE OF GUJARAT
, Sushi I Kumar, Aditya Kumar. Sanjay Jain, for the Appellants. A
~

Sidharth Luthra, Hemantika Wahi, Madhukar Verma,
Marnia, for the Respondent.
The Judgement of the Court was delivered by
B
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 c
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, 1208, 201 and 202
D
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 E
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 F
lodged by the said Police Officer, which was registered as l.C.R.
No. 161/93.
3. During investigation, the dead body was found to be of
J,..~
one Bhagvandas Dwarkadas Sindhi. It was reported that the G
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 H
960 SUPREME COURT REPORTS [2009] 4 S.C.R

A (Accused No.25) and Rasulkhan@ Rasulparti to abduct and to '+
extort money from him.

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
8
relation thereto and in connection therewith. Allegedly, for
keeping a watch over the deceased, lqbalhussain (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
C accused Sherzada (since deceased) a Maruti Van. Upon
stopping the deceased, Accused No. 2 - lqbalhussain 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
D 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.
E 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
F witness.
6. Indisputably, appellant was arrested on 31.5.1994 at
Mumbai by the Investigating Officer in connection with another
case being Case No. 60of1994. Appellant is said to have been
G 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
H to discovery of some weapons.
ABDULWAHAB ABDULMAJID BALOGH V. 961
STATE OF GUJARAT [S.B. SINHA, J.]

4' It is also not in dispute that pursuant thereto a few firearms A
and cartridges were recovered.
In connection with the aforementioned Case No. 60 of
1994, the following exhibits were sent tor opinion of the Ballistic
Expert. B

Sr. Exhibit From where How seized Remarks
No. the Muddamal and from
has been whom
seized
..
c
1. Exhibit-A
D.C.B. M.P. P.S.I. Shri As the same Exhibit-282,
No.62/94, One U.T. has been Mark - 91/20
One revolver Brahmbhatt, produced by S.C.No.13/98
made in U.S.A. has seized the accused Exh. 275 D
Smith and the same in Abdulvahab A.Date
Vessal made, . presence of Abdulmajid 08.07.1999
38 bore and Panchas Shaikh from
on the hand his house at
grip 630894 67, Nandan
has been Soc., Shahpur E
written Ahmedabad.
........... .. ... .. .... ....
23. Exhibit-W P.S.I. Shrl Accused
Mentioned in U.T. Mahmadrafik
D.C.B. M.P. Brahmbhatt Abdulrahim F
No.64/2000 Shaikh (sic)
one revolver [he was arrayed
foreign made as Accused
over which No.9] has
SYSTEND produced the
G
ABADIE same from his
BREVET has house at A-15,
been written Saytam Society,
Shahpur on
03.06.1994
H
962 SUPREME COURT REPORTS [2009] 4 S.C.R.

A One of the questions which was referred to the Ballistic "t
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?"
B
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:
c "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 ~-
D 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,
E
test fired from Exh-A of case No. FSL/EE/94/BL/277, were
found similar.
j, -

The weapon characteristic marks (rifling marks) on Exhs.-
2A & 3A and those on the test fired bullets, test fired from
F Exhs.-C of case No.FSUEE/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."
'fA
G Appellant was acquitted in the said case. Recovery of
weapons in the said case was not accepted by the Court.
8. Indisputably, there appears to have been some confusion
with regard to the identity of the weapon vis-a-vis the number
H inscribed therein. By a letter dated 22.2.1996, a clarification
ABDULWAHAB ABDULMAJID BALOGH V. 963
STATE OF GUJARAT [S.B. SINHA, J.]
,. was sought for from the Director of Forensic Science Laboratory, A
f
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
B
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 c
Abdulvahab Abdulmajid Shaikh in the case of Gaekwad
Haveli Police Station !.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 D
-1
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 Have Ii
Police Station !.C.R. No. 161/93 registered u/s 302, E
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." F
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 Paree-A/Exhibit-A (0.38" S & W
Revolver) was 768029.
' I..~ G
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. FSUEE/94/B1/277 were examined in the laboratory H
964 SUPREME COURT REPORTS [2009] 4 S.C.R.

A and here with an additional case report regarding the
1'
numbers and make of firearms is submitted as per your
requirement.

Parcel-A (Ex.A): is a 0.38" Smith & Wesson revolver.
B 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 ~
•
c number 768029 were found on it.

In the forwarding note of the Gaikwad Have Ii
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.
D 4--
Parcel-B(Ex.B): is a 0.38" Smith & Wesson revolver.
'l,,;,,;,,,;
Punched write up "Smith & Wesson Spring '
Field Mass, U.S., Patented Feb.6.06,
Sept.14-09, Dec.29.14, 'The trade mark of
company Smith & Wesson, U.S.A. Reg. U.S.
E
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
F 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:
G "10. Further, the accused, accused No.1 and 4 and 1-..
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
H 302 read with Section 34 of I PC, and
ABDULWAHAB ABDULMAJID BALOCH V 965
STATE OF GUJARAT [S.B. SINHA, J]

alternatively under Section 302 read with A
Section 1208 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:
B
"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 c
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. D

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 E
Company, .38 bore, below its handgrip 630894 read,
_ 1- 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, F
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; G
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 H
966 SUPREME COURT REPORTS [2009] 4 S.C.R.

A five lands and five grooves with right hand
..
1
twist. It has been fired from standard
weapon. Such bullet is used in .38"
cartridge and fired from .38" Revolver.
According to him, the bullet bound in the body of the
B
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 j.
•
and sentence was recorded by the learned Sessions Judge,
c 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;
D 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
E
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.
F
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
G 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
H may also be drawn in respect of charges of aggravated offences
ABDULWAHAB ABDULMAJID BALOGH V. 967
STATE OF GUJARAT [S.B. SINHA, J.]

such as murder, robbery, etc. So far as recent unexplained A
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:
B
"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 c
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 to any other person than D
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
E
satisfactory account/explanation as how he came to be in
possession of said revolver (weapons). There
"- i circumstances sufficient to bring home the guilt of accused
'
No.1 beyond reasonable doubt. Witnesses may lie, but
circumstances cannot.
F
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 G
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 l.P. Code.
74. Having due regard to the evidence adduced and
circumstances available on record, the prosecution has H
968 SUPREME COURT REPORTS [2009] 4 S.C.R.

A failed to prove that accused and others entered into a •
t
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,
B 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
c inflicted injury which proved fatal. It has been established
by prosecution that crime of murder is committed by
accused no.1 individually, in that case he can be convicted
u/s. 302, (simplicitor) of T.P.C.

D 75. The evidence of prosecution does suggest that along
with the offence punishable u/s 302 of l.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
E
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
F the Indian Penal Code.

16. Mr. Sushi! Kumar, learned Senior Counsel appearing
on behalf of the appellant would contend:
i) that the learned Special Judge as also the High Court
G 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,
H namely, Case No.60/1994.
-f
ABDULJNAHAB ABDULMAJID BALOGH V 969
STATE OF GUJARAT [S.B. SINHA, J.]
;
ii) It is apparent from the materials brought on record A
that the prosecution having found that Shri Prajapati
had not submitted a favourable report, procured a
report from Shri M.J. Rathod upon changing one
weapon by another.
B
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. c
iv) Xerox copy of the seizure memo which did not contain
the signature of the Investigating Officer, .which was
,_J_ sought to be brought on record, was inadmissible in
evidence particularly in view of the fact that the seizure D
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. E
;-t 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
F
bullet recovered from the body of the 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 G
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, H
970 SUPREME COURT REPORTS [2009] 4 S. C.R.

A 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.
B
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
C bullet recovered from the body of the deceased was fired from
one of the aforementioned weapons.
Part II of the report which appears to have been enclosed
with the original report dated 19.10.1993 was prepared by Shri
D M.J. Rathod.
A confusion, however, appears to have arisen from letter
dated 18.4.1996 wherein in respect of Parcel-NExhibit-A, the
number inscribed on the Exhibit was stated to be 768029.
E It was in view of the discrepancy in the aforementioned
number and the weapon, a contention was raised by Mr. Sushi!
Kumar that one weapon was substituted by another. ; ._,.
20. However, in the aforementioned situation, evidence of
Shri Rathod assumes some importance.
F 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.
G 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.
H
ABDULWAHAB ABDULMAJID BALOGH V. 971
STATE OF GUJARAT [S.B. SINHA, J.]

Mark C revolver also was test fired, from this it was A
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
8
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.
c
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 · o
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 . E
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 F
Police Station l.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 G
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)" H
972 SUPREME COURT REPORTS [2009] 4 S.C.R.

A No question was put to him as regards the discrepancy of ,..
the number in the revolver. t

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.
B
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 ..--·

c
wherein nos. 630894 was shown below the butt was the same
revolver which was found from the suitcase during Panchanama. -- ...I

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
D 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:
E
"At this stage the Special P.P. Mr. K.B. Anandjiwalal has
given the application Exh. 219 and requests that in the
~ ·-f.
matter of the Gaekwad Haveli Police Station Crime Reg.
No. 60/94 the discovery panchanama was prepared and
F 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
G 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
H to recall the pancha witness is allowed and it is ordered
ABDULWAHAB ABDULMAJID BALOCH V. 973
STATE OF GUJARAT [S.B. SINHA, J]

to adjourn the examination-in-chief of the witness Mr. A
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 B
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- C
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 o
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 to 184 is given Exh. 263. [On E
request made by Advocate Mr. Jhala]
_ j 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:
F
"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 G
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." H
974 SUPREME COURT REPORTS [2009) 4 S.C.R.

A 23. The prosecution should have got the original record
marked which is stated to be containing the signature of the
r
Investigating Officer. Original Panchanama also upon being
marked as an exhibit could have been replaced by a certified
copy.
B
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.
1
c 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 be the sole premise on which
a judgment of conviction under Section 302 could be recorded.
D 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 1208 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.
E
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
F 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
G weapon appellant had not been charged for commission of ">f"'
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
H
judge also, in our opinion, was incorrect in drawing a
ABDULWAHAB ABDULMAJID BALOCH V. 975
STATE OF GUJARAT [S.S. SINHA, J.)

presumption of commission of offence punishable under Section A
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.
8
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. C

B.B.B. Appeal allowed.