Case: Abdulwahab Abdulmajid Baloch Vs. State Of Gujarat

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.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.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.No.ExhibitFrom where the Muddamal has been seizedHow seized and from whomRemarks1.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 PanchasAs 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 8.7.1999....................23.Exhibit - W Mentioned in D.C.B. M.P. No. 64/2000 one revolver foreign made over which SYSTEND ABADIE BREVET has beenP.S.I. Shri U.T. BrahmbhattAccused Mahmadrafik Abdulrahim Shaikh (sic) [he was arrayed as Accused written No. 9] has produced the same from his house at A-15, Saytam Society, Shahpur onof the questions which was referred to the Ballistic Expert for his opinion was asthe 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 orreport 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& 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.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-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.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 wasfollowing 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, 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.On or about 23.7.1997, the learned Additional Sessions Judge, Ahmedabad framed the following charges against theFurther, 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.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 followingthe 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. 262List1. The Xerox copy of the - 03.06.1994 panchnamas of the Seizure of the weapons datedsaid 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 asOne 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.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 asIs 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.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.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. 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 furthermoreNow 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 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 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 againstas 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.

Reasoning:
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 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.