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 & 3Aand

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

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