ABDULWAHAB ABDULMAJID BALOCH versus STATE OF GUJARAT

Citation: [2009] 4 S.C.R. 956 · Decided: 23-03-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 4 S.C.R 956 
\ 
A 
ABDULWAHAB ABDULMAJID BALOCH 
; 
v. 
STATE OF GUJARAT 
Criminal Appeal No. 1507 of 2007 
B 
MARCH 23, 2009 
[S.S. SINHA, 8. SUDERSHAN REDDY AND DR. 
MUKUNDAKAM SHARMA, JJ.] 
• 
J. 
Penal Code, 1860 - s.302 - Murder - Deceased was 
c 
fired at, on the head - Conviction of accused-appellant by trial 
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

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