IMPORTANT POINT
When there is no direct evidence; weapon was recovered after nine months; and charge of conspiracy was not proved appellant would be entitled to benefit of doubt.

Judgment :-

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.

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.

TABLE

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?"

The report was submitted on 5.10.1994.