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Wednesday, November 4, 2015

If the facts of the case are looked at individually and randomly, they might create a doubt. However, if they are considered collectively, there is no room for doubt. The facts collectively are: (i) Nand Singh was shot with a gun. (ii) The bullet extracted from the body of Nand Singh could have been fired from that gun, or to put it negatively, it cannot be said that the extracted bullet could not have been fired from the recovered gun. Nobody questioned this. (iii) The gun-shot was fired from a close distance, but there was no blackening of Nand Singh’s skin possibly due to his apparel. Nobody questioned this. (iv) Nand Singh’s death was not immediate and he could have traversed a distance of about 70 (seventy) feet despite being shot. Nobody questioned this. (v) The medical experts testified that spillage of blood from the entry wound is not inevitable and so it is possible that Nand Singh’s blood was not found between the place of the incident and the place where he collapsed. The blood was, however, found where Nand Singh collapsed. (vi) There were five eye witnesses to the incident of shooting and they gave consistent statements and identified Daud Khan as the person who shot Nand Singh. None of these findings and conclusions are perverse. On the contrary, they have been accepted by the Trial Court and the High Court. We see no reason to take a different view. 48. On a consideration of the entire material before us, we have no hesitation in upholding the view taken by the High Court with regard to the offence committed by Daud Khan and his conviction for that offence. We see no substance in the appeal filed by the State and find no reason to reverse the conclusions arrived at by the High Court with regard to the offence committed by Daud Khan. 49. Both the appeals are dismissed.


                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APELLATE JURISDICTION
                       CRIMINAL APPEAL NO.126 OF 2010

State of Rajasthan                                ….Appellant
                                   versus
Daud Khan                                        ….Respondent
                                    WITH

                       CRIMINAL APPEAL NO. 351 OF 2010
Daud Khan                                        .….Appellant
                                   versus
State of Rajasthan                              ….Respondent



                               J U D G M E N T
Madan B. Lokur, J.
1.     These appeals are directed against the judgment and order dated  11th
November, 2008 passed by the High  Court  of  Judicature  for  Rajasthan  at
Jodhpur.  Criminal Appeal No.126 of 2010 has been  filed  by  the  State  of
Rajasthan  challenging  the  refusal  of  the  High  Court  to  uphold   the
conviction of Daud Khan for an offence punishable under Section 302  of  the
Indian Penal Code (for short the IPC).  Criminal Appeal No. 351 of  2010  is
filed by Daud Khan challenging his  conviction  for  an  offence  punishable
under the first part of Section 304 of the IPC.
2.     The broad facts leading to the decision of the High  Court  are  that
on 19th June, 2004 at about 9.30 p.m. Nand Singh had gone to Bathra  Telecom
& Restaurant  at  Nimbahera,  District  Pratapgarh  in  Rajasthan.   He  was
accompanied  by  his  friends  Nitin  Sindhi  (accused  No.3)  and  Narendra
Kumawat.  While they were seated  in  the  restaurant,  Javed  Beg  (accused
No.2) and Daud Khan (accused No.1) came there on a motor cycle.  It  appears
that Javed Beg and Daud Khan had some grudge against Nand  Singh  concerning
the result of a cricket match between India and Pakistan.
3.     According to the prosecution, Javed Beg brandished a knife  and  told
Nand Singh that today his end had come.   Thereupon  Daud  Khan  fired  upon
Nand Singh with a loaded pistol on the right side  of  his  chest  and  then
both of them escaped on their motor cycle.  They  were  chased  by  Narendra
Kumawat and Nitin Sindhi but they were not successful  in  apprehending  the
assailants.
4.     Thereafter, Narendra Kumawat and Nitin Sindhi took Nand  Singh  to  a
nearby hospital on their motorcycle but  Nand  Singh  was  declared  brought
dead. Thereupon,  Narendra  Kumawat  went  to  Nand  Singh’s  residence  and
informed his brother PW-1 Gajendra Singh about the incident. Gajendra  Singh
also visited the hospital and then lodged FIR No.374/04 on 19th  June,  2004
with the Nimbahera Police Station at about 10.30 p.m. Daud  Khan  and  Javed
Beg were named as the two accused persons.
5.     On 21st June, 2004 Daud Khan was  arrested.   Thereafter,  Javed  Beg
was arrested on 15th July, 2004.  The gun used by Daud Khan  to  shoot  Nand
Singh was recovered at his instance  from  Javed  Khan’s  possession.  Nitin
Sindhi was arrested on 28th July, 2007.
6.     A charge-sheet was  filed  against  all  three  persons  and  it  was
alleged that Daud Khan was guilty of offence punishable  under  Section  302
of the IPC and Section 3 read with Section 25 of  the  Arms  Act  while  the
others were guilty of an offence punishable under Section  302  of  the  IPC
read with Section 34 thereof and Section 109 read with Section 302 thereof.
7.     The case was tried  by  the  Additional  District  &  Sessions  (Fast
Track) Camp Nimbahera, District Pratapgarh as Sessions Case No.103 of  2005.
 In his judgment and order, the  Trial  Judge  convicted  Daud  Khan  of  an
offence punishable under Section 302 of the IPC  and  Section  3  read  with
Section 25  of  the  Arms  Act.  Javed  Beg  was  convicted  of  an  offence
punishable under Section 3 read with Section 25 of  the  Arms  Act  but  was
found not guilty of an offence under Section 302 read  with  Section  34  of
the IPC. Nitin Sindhi was found not guilty  of  any  offence.   The  accused
persons were appropriately sentenced.
8.     Feeling aggrieved by the decision of the Trial  Court,  appeals  were
filed in the High Court  by  Daud  Khan  and  Javed  Beg  challenging  their
conviction and by the State challenging the partial acquittal of  Javed  Beg
and complete acquittal of Nitin Sindhi. By  its  judgment  and  order  dated
11th November, 2008 the High Court came to the  conclusion  that  Daud  Khan
was not guilty of an offence punishable under Section 302  of  the  IPC  but
was guilty of an offence punishable under the first part of Section  304  of
the IPC.  His conviction under Section 3 read with Section 25  of  the  Arms
Act was maintained.  As far as the conviction of Javed Beg  under  the  Arms
Act is concerned, it was upheld by the High  Court,  but  the  sentence  was
reduced.  The High Court also  dismissed  the  appeal  filed  by  the  State
against the acquittal of Javed Beg of the offence punishable  under  Section
302 of the IPC and the complete acquittal of Nitin Sindhi.
9.     Feeling aggrieved, the present appeals have been filed, as  mentioned
above, by Daud Khan and the State.
Decision of the Trial Court
10. Before the Trial Court, quite a  few  contentions  were  urged.  It  was
contended that the First Information Report (FIR) is suspicious inasmuch  as
in the newspapers the  next  day,  it  was  reported  that  unknown  persons
(strangers) had committed the murder of Nand Singh  in  an  STD  booth.  The
police had arrived at the spot and taken the injured  (Nand  Singh)  to  the
hospital. It was argued that  a  report  in  this  regard  was  lodged,  but
thereafter removed from the record  and  suppressed.   That  apart,  it  was
argued that the FIR was lodged after a delay  of  one  and  half  hours  and
reliance was placed on Thulia Kali v. State of Tamil  Nadu.[1]  In  addition
to this, it was argued that there  was  considerable  unexplained  delay  in
informing the Magistrate of the lodging of the FIR. The  delay  was  to  the
extent of one day and 13 (thirteen) hours (a total of  about  36/37  hours).
There was enough time, therefore, to manipulate the facts so as  to  involve
the accused.
11. It was also contended that the mere recovery of a  pistol  (from  Javed)
was not enough to hold Daud Khan guilty. In any event, the  opinion  of  the
Forensic Science Laboratory (FSL) was not definite  that  the  bullet  taken
out from the body of  Nand  Singh  was  fired  from  the  recovered  pistol.
Additionally, it was argued that according to the witnesses,  the  shot  had
been fired from a  close  distance  but  the  post  mortem  report  did  not
indicate any blackening of the skin which would have happened had  the  shot
been fired from a close range. It was sought to be suggested  that  the  eye
witnesses were perhaps not present when the incident occurred  and  a  story
was made up to involve Daud Khan.
12. The defence contended that the incident  did  not  occur  at  the  place
where it is said to have occurred. In support of  this  contention,  it  was
argued that the body of Nand Singh was found 70 (seventy) feet away,  across
the road and near the tyre repair shop, a long distance from  where  he  was
allegedly sitting in Bathra Telecom. No blood was found where  the  shooting
took place, but blood was found only near the tyre  repair  shop.  This  was
most unlikely particularly when Nand Singh had been shot near a  vital  part
of his body on the chest. Therefore, not only was the presence of  witnesses
suspicious but the place of occurrence was also doubtful.
13. The Trial Court did not place any  reliance  on  the  newspaper  reports
since there was nothing to show that  a  report  had  been  filed  with  the
concerned police station that unknown persons had committed the  crime.  The
Trial Court also found that the time taken for lodging the  FIR  (about  one
and a half hours) was explained under the circumstances,  since  Nand  Singh
had been taken to the hospital and his brother Gajendra Singh (PW-1) had  to
be informed of the incident. The delay was found  to  be  not  unreasonable.
However, the Trial Court did not  deal  with  the  delay  in  informing  the
Magistrate of the lodging of the FIR.
14. The Trial Court accepted the recovery of the pistol, as well  as  unused
cartridges, from Javed at the instance of Daud Khan. The  Trial  Court  also
took the view that the FSL report clearly stated  that  a  bullet  had  been
fired from the pistol and it was not stated that the bullet taken  out  from
the body of Nand Singh could not have been fired from the recovered  pistol.
The Trial Court also held that Nand Singh’s skin was not blackened since  he
was wearing a vest and a shirt. Therefore, fully believing  the  version  of
the eye witnesses, it was held that Daud Khan shot Nand Singh at  the  place
of occurrence and there were several witnesses  present  at  that  time.  On
this basis, the Trial Court convicted Daud Khan  of  an  offence  punishable
under Section 302 of the IPC.
Decision of the High Court
15. Before the High Court, somewhat more elaborate  contentions  were  urged
on behalf of Daud Khan.   The  primary  contentions  urged  (and  they  were
repeated before us) were that the FSL report falsifies the  version  of  the
eye witnesses. It was urged that according to the witnesses,  the  gun  shot
was fired from a distance of about 4 (four) feet. Despite  this,  there  was
no blackening of Nand Singh’s skin. The High Court rejected this  contention
on the ground that the witnesses had stated that ‘the shot  was  fired  from
nearby’ and that ‘None of the eye witnesses has stated  that  it  was  fired
from a distance of less than 4 ft.’ There might be  some  variation  in  the
distance but that could not be fatal to the case of  the  prosecution.  That
apart, merely because there was no blackening of the skin does not  lead  to
the inevitable conclusion that the shot was fired from a distance.
16. It was submitted that the gun was recovered  from  Javed  and  not  from
Daud Khan. The High Court was of the view that while this may be so, it  did
not rule out the possibility of Daud Khan handing over the weapon to  Javed.
This submission was not pressed before us and we need not spend any  further
time on this except to note that the Trial Court  found  that  the  recovery
was at the instance of Daud Khan.
17. It was argued that the news  report  that  appeared  the  next  day  was
obtained from the Superintendent of Police and that was to the  effect  that
some unknown persons were involved in the shooting. The High Court  rejected
this submission  and  held  that  news  reports  could  not  be  treated  as
evidence. This submission was faintly adverted to before us as well, but  is
hardly decisive one way or the other.
18. It was urged that earth  stained  with  the  blood  of  Nand  Singh  was
recovered about 70 (seventy) feet away from the place of incident. This  was
an indication that the shooting did not take place  at  Bathra  Telecom  but
elsewhere. It was urged that the High Court was in error in disbelieving DW-
1 Chhotu Khan who stated that someone from a truck near his  tyre  shop  had
shot Nand Singh. The High Court was of the opinion that the reason  why  the
blood stains were found elsewhere was because Nand Singh had run away  after
being shot and had fallen down about 70 (seventy) feet away. It is for  this
reason also that the High Court disbelieved DW-1 Chhotu Khan  whose  version
of the events was held to be an afterthought.
19. Finally, it was urged  that  there  was  an  unexplained  delay  in  the
Magistrate receiving the FIR (after about 37 hours). The  High  Court  noted
this submission but unfortunately (like the Trial Court) did not  deal  with
it.
20. On an overall conspectus of the facts of the case,  the  view  canvassed
on behalf of Daud Khan was that the witnesses to the shooting could  not  be
believed. The High Court rejected this view.
21. The High Court, however, felt that a case  of  murder  punishable  under
Section 302 of the IPC was not made out since Daud Khan had fired  only  one
bullet and did not take undue advantage of the situation and therefore  only
a case of intention to cause bodily harm that was likely to cause death  was
made out, punishable under the  first  part  of  Section  304  of  the  IPC.
Accordingly, Daud Khan was convicted of that  offence  and  sentenced  to  7
(seven) years rigorous imprisonment with fine.
22. Feeling aggrieved, Daud Khan is before us in appeal.
Delay in lodging the FIR: submissions and discussion
23. It was submitted that the FIR lodged by PW-1 Gajendra  Singh  was  ante-
dated. Actually the FIR was lodged on 20th June 2004 but was  ante-dated  to
19th June 2004. It was submitted that this is apparent from the  overwriting
on the FIR. The insinuation was that it  was  first  decided  to  “fix”  the
accused and thereafter the  FIR  was  lodged  to  that  effect.  We  see  no
substance in this contention. We have seen the  FIR  in  original  and  find
nothing to suggest any semblance of any overwriting. We may also  note  that
no such submission was made before the Trial Court or the High Court.
24. It was also argued that there was a delay in lodging the FIR.  Reference
was made to Thulia Kali and Lalita Kumari v. Government of U.P.[2]  We  find
no substance in this contention as well. The  incident  is  stated  to  have
occurred at about 9.30 pm. The FIR was lodged at about 10.30  pm.  There  is
hardly any ‘delay’ in lodging of the FIR. It must be  added,  however,  that
this argument was premised on the assumption that  the  FIR  was  lodged  on
20th June 2004 and not on 19th June  2004,  a  contention  we  have  already
rejected.
Section 157 of the Cr.P.C.: submissions and discussion
25. It was then submitted that there was an unexplained delay in receipt  of
the FIR by the Magistrate – a delay of about 36/37 hours since the  copy  of
the FIR was received by him on 21st June 2004 at about 11.00  am.  According
to learned counsel for Daud Khan this was in violation  of  Section  157  of
the Code of Criminal Procedure, 1973 (for short ‘the CrPC) which requires  a
copy of the FIR (called a special report or an express report)  to  be  sent
forthwith to the concerned Magistrate.[3]
26. The interpretation of Section 157 of the CrPC is no longer res  integra.
A detailed discussion on the subject is to be  found  in  Brahm  Swaroop  v.
State of U.P.[4] which considered a large number of cases  on  the  subject.
The purpose of the “forthwith” communication of a copy of  the  FIR  to  the
Magistrate is to check the possibility of  its  manipulation.  Therefore,  a
delay in transmitting the special report to the Magistrate is linked to  the
lodging of the FIR. If there is no delay in lodging an FIR, then  any  delay
in communicating the special report to the Magistrate  would  really  be  of
little consequence, since manipulation of the FIR would then get ruled  out.
Nevertheless, the prosecution should explain the delay in  transmitting  the
special report to the Magistrate. However, if no  question  is  put  to  the
investigating officer concerning the delay,  the  prosecution  is  under  no
obligation to give an explanation. There is no universal rule that  whenever
there is some delay in sending the FIR to the  Magistrate,  the  prosecution
version becomes unreliable. In other words, the facts and  circumstances  of
a case are important for a decision in this regard.
27. The delay in  sending  the  special  report  was  also  the  subject  of
discussion in a recent  decision  being  Sheo  Shankar  Singh  v.  State  of
U.P.[5] wherein it was held that before such a contention  is  countenanced,
the accused must show prejudice having been caused by the  delayed  dispatch
of the FIR to the Magistrate. It was  held,  relying  upon  several  earlier
decisions as follows:
“30. One other submission made on behalf of the appellants was that  in  the
absence of any  proof  of  forwarding  the  FIR  copy  to  the  jurisdiction
Magistrate, violation of Section 157 CrPC has  crept  in  and  thereby,  the
very registration of the FIR becomes  doubtful.  The  said  submission  will
have to be rejected, inasmuch as the FIR placed before the  Court  discloses
that the same was reported at 4.00 p.m. on 13-6-1979 and  was  forwarded  on
the very next day  viz.  14-6-1979.  Further,  a  perusal  of  the  impugned
judgments of the High Court as well as of the trial court discloses that  no
case of any prejudice was shown nor even raised on behalf of the  appellants
based on alleged violation of Section 157 CrPC. Time and again,  this  Court
has held that  unless  serious  prejudice  was  demonstrated  to  have  been
suffered as against the accused, mere  delay  in  sending  the  FIR  to  the
Magistrate by itself will not have any deteriorating  (sic)  effect  on  the
case of the prosecution. Therefore, the said submission made  on  behalf  of
the appellants cannot be sustained.
31. In this context, we would like to refer to a  recent  decision  of  this
Court in Sandeep v. State of U.P.[6] wherein  the  said  position  has  been
explained as under in paras 62-63: (SCC p. 132)
“62. It was also feebly contended on  behalf  of  the  appellants  that  the
express report was not forwarded  to  the  Magistrate  as  stipulated  under
Section 157 CrPC instantaneously.  According  to  the  learned  counsel  FIR
which was initially registered on 17-11-2004 was given a  number  on  19-11-
2004 as FIR No. 116 of 2004  and  it  was  altered  on  20-11-2004  and  was
forwarded only  on  25-11-2004  to  the  Magistrate.  As  far  as  the  said
contention is concerned, we only wish to refer to the reported  decision  of
this Court in Pala Singh v.  State  of  Punjab[7]  wherein  this  Court  has
clearly held that (SCC p. 645, para 8) where the FIR was  actually  recorded
without delay and the investigation started on the basis  of  that  FIR  and
there is no other infirmity  brought  to  the  notice  of  the  court  then,
however improper or objectionable the delay in receipt of the report by  the
Magistrate concerned be, in the absence of any prejudice to the  accused  it
cannot by itself justify the conclusion that the investigation  was  tainted
and the prosecution insupportable.
63. Applying the above ratio in Pala  Singh  to  the  case  on  hand,  while
pointing out the delay in the forwarding of the FIR to  the  Magistrate,  no
prejudice was said to have been caused to the appellants by  virtue  of  the
said delay. As far as the commencement of the  investigation  is  concerned,
our earlier detailed discussion discloses that there was no dearth  in  that
aspect. In such circumstances we do not find any infirmity in  the  case  of
the prosecution on that score. In fact the above decision  was  subsequently
followed in Sarwan Singh v.  State  of  Punjab,[8]  Anil  Rai  v.  State  of
Bihar[9] and Aqeel Ahmad v. State of U.P.[10]”

28. It is no doubt true that one of the external checks against  ante-dating
or ante-timing an FIR is the time of its dispatch to the Magistrate  or  its
receipt by the Magistrate. The dispatch of a copy  of  the  FIR  “forthwith”
ensures that there is no manipulation or interpolation in  the  FIR.[11]  If
the prosecution is asked to  give  an  explanation  for  the  delay  in  the
dispatch of a copy of the FIR, it ought to  do  so.  [12]  However,  if  the
court  is  convinced  of  the   prosecution   version’s   truthfulness   and
trustworthiness of the witnesses, the absence of an explanation may  not  be
regarded as detrimental to the prosecution case.  It  would  depend  on  the
facts and circumstances of the case.[13]
29. In so far as the present case  is  concerned,  there  was  no  delay  in
lodging the FIR. Hence the question of  its  manipulation  does  not  arise.
Additionally, the officer in charge of the police  station,  PW-21  Surender
Singh was not asked any question about the  delay  in  sending  the  special
report to the Magistrate. An  explanation  was,  however,  sought  from  the
investigating officer PW-25 Rajinder Parik who tersely responded  by  saying
that it was not his duty to send the special report to  the  court  (or  the
Magistrate). In the absence  of  any  question  having  been  asked  of  the
officer who could have given an answer, namely, the  officer  in  charge  of
the  police  station,  no  adverse  inference  can  be  drawn  against   the
prosecution in this regard, nor can it be held that the delay in receipt  of
the  special  report  by  the  Magistrate  is  fatal  to  the  case  of  the
prosecution.  This  is  apart  from  the  consistent  evidence  of  the  eye
witnesses, which we shall advert to a little later.
Ballistics report: submissions and discussion
30. It was vehemently contended that the report of the  FSL  (Exhibit  P-37)
did not conclusively say that the bullet recovered from  the  body  of  Nand
Singh was fired from the pistol recovered from  Javed  at  the  instance  of
Daud Khan. The FSL report reads as follows:
“1. One  .32  country  made  revolver  (W/1)  from  packet  ‘E’  in  (is)  a
serviceable  firearm.  However,  it  has  the  tendency   to   misfire   the
ammunition.
2. The examination of the barrel residue indicates that  submitted  one  .32
country made revolver (W/1) had been fired. However, the  definite  time  of
its last fire could not be ascertained.
3. Based on the stereo and microscopic examination, it is the  opinion  that
it has not been possible to link  definitely  one  7.65  mm  cartridge  case
(C/1) from packet ‘E’ and one .32 copper jacket  bullet  (B/1)  from  packet
‘D’ with submitted one .32 revolver (W/1) from packet ‘E’  due  to  lack  of
sufficient evidence.”

31. A perusal of the FSL report suggests that it is not conclusive  one  way
or the other whether the bullet extracted from the body of  Nand  Singh  had
or had not been fired from the pistol recovered from Javed at  the  instance
of Daud Khan. In view of this, learned counsel placed reliance  on  Mohinder
Singh v. The State.[14] The facts  of  that  case  were  quite  unique.  The
deceased-Dalip Singh was said to have suffered two injuries,  one  inflicted
on his chest with a gun used by appellant-Mohinder Singh and the other  near
his ear while he was lying sideways, inflicted by Gurnam Singh with a  rifle
from a distance of about 4-5 feet. According to the  definite  case  of  the
prosecution, appellant-Mohinder Singh had fired from a  gun,  but  this  was
not accepted by  this  Court  which  felt  that  the  injury  attributed  to
appellant-Mohinder Singh was caused by a rifle. In other words, there was  a
mismatch between the weapon and the bullet.  In  this  context,  this  Court
observed as follows:
“In a case where death is due to injuries  or  wounds  caused  by  a  lethal
weapon, it has always been considered to be the duty of the  prosecution  to
prove by expert evidence that it was likely or at  least  possible  for  the
injuries to have been caused with the weapon with which and  in  the  manner
in which they are alleged to have been caused. It is elementary  that  where
the prosecution has a definite or positive case, it must prove the whole  of
that case. In the present case, it is doubtful whether  the  injuries  which
are attributed to the appellant [Mohinder Singh] were caused by a gun or  by
a rifle. Indeed, it seems more likely that they were caused by a rifle  than
by a gun, and yet the case for the prosecution is  that  the  appellant  was
armed with a gun, and, in his examination, it  was  definitely  put  to  him
that he was armed with the gun P-16. It is only by the evidence  of  a  duly
qualified expert  that  it  could  have  ascertained  whether  the  injuries
attributed to the appellant were caused by a gun or  by  a  rifle  and  such
evidence alone could  settle  the  controversy  as  to  whether  they  could
possibly have been caused by a fire-arm being used at such a close range  as
is suggested in the evidence.”

32. And, what was the opinion of the expert in that case? This  Court  noted
that the opinion of  the  Director,  C.I.D.  Laboratory,  Philaur  could  be
summed up in the following words:
“The gun had signs of having been fired but he [the expert]  could  not  say
when it was fired last. The cartridge cases P-10 and P-15  could  have  been
fired through the gun P-16, but he could not say whether they were  actually
fired from that particular gun or a similar gun or guns.  He  did  not  make
any experiment by firing any  cartridge  from  the  gun  P-16,  nor  did  he
compare the markings on the empty cartridges P-10 and P-15.”

33. On this basis, it was observed that according to  the  prosecution,  two
shots were fired at the deceased-Dalip Singh and “one of the crucial  points
which the prosecution had to prove was that these shots were  fired  by  two
persons and not by one man, and both the shots were  fired  in  such  manner
and from such distance as is alleged by the eye witnesses. There is, in  our
opinion, a gap in the prosecution evidence on a most fundamental  point  and
the error which has been committed by the courts  below  is  to  ignore  the
gap…..” In view of this gap in the prosecution  evidence,  this  Court  gave
the benefit of doubt to the  appellant-Mohinder  Singh.  Additionally,  this
Court did not believe the three eye witnesses since two of them were  chance
witnesses and “not altogether independent persons” while  the  third  was  a
partisan witness  and  his  testimony  was  otherwise  improbable  since  he
claimed to have witnessed the shooting after he had  himself  been  shot  at
the back of the neck.
34. In so far as the present appeal is concerned, the facts of the case  are
quite different. Although the FSL report was inconclusive in the sense  that
it could not be stated whether the extracted bullet  could  be  ‘definitely’
linked to the recovered weapon, but there was no doubt  that  the  extracted
bullet was capable of being fired from the recovered  gun.  In  other  words
(and this is important) there was no mismatch between  the  bullet  and  the
gun. Mohinder Singh, therefore, does not come  to  the  aid  of  Daud  Khan.
However, learned counsel sought to cash in on the absence of  definitiveness
by relying on Abdul Sayeed v. State of Madhya Pradesh[15] but that  decision
is also of no relevance. In that case, there  was  a  conflict  between  the
medical evidence and the ocular evidence, while in this  case  there  is  no
such conflict. There is no doubt  both  from  the  medical  and  the  ocular
evidence that Daud Khan had shot with a gun.  The  forensic  evidence  shows
that the bullet extracted from the body of Nand Singh was capable  of  being
fired from the recovered gun. Whether Nand Singh was  shot  by  use  of  the
recovered gun or  some  other  gun  was  not  questioned  and  none  of  the
witnesses was asked any substantive question about the  gun  recovered  from
Javed at the instance of Daud Khan or whether it was  the  same  gun  (or  a
different one) used by Daud Khan.
Blackening of the skin: submissions and discussion
35. It was contended that since Nand Singh was shot from a  close  distance,
there would have some blackening of his skin, but  the  post  mortem  report
did not show any such blackening. It was  contended,  on  this  basis,  that
Nand Singh was actually shot elsewhere (where he collapsed) and not  at  the
place suggested by the prosecution.

36. PW-11 Narendra Kumawat who had accompanied Nand Singh and was  with  him
when the incident occurred stated that Daud Khan had fired from  a  distance
of about two feet. Similarly, PW-19 Suraj Mal stated  that  the  bullet  was
fired from a distance of two feet, while PW-7 Mahabir Singh stated that  the
bullet was fired from a distance of one foot. PW-23  Narender  Singh  stated
that the bullet was fired from a distance of ‘four fingers  and  the  bullet
was not fired touching the pistol to the chest.’ Finally,  PW-24  Rishi  Raj
Shekhawat stated that “Fire was not made after touching the  chest  of  Nand
Singh, rather  it  was  fired  from  the  distance  of  one  or  two  feet.”
Therefore, each of the eye witnesses stated that the shot was fired by  Daud
Khan at Nand Singh from  very  close  quarters  and  in  any  event  from  a
distance of two feet or less. The High Court found,  incorrectly,  that  the
witnesses had testified that the shooting had occurred from  nearby  but  no
distance was mentioned by any witness.
37. Be that as it may, at this  stage,  reference  may  be  made  to  Modi’s
Medical  Jurisprudence  and  Toxicology[16]  wherein  it  is   noted,   with
reference to blackening of the skin in a gunshot wound, as follows:
“If a firearm is discharged very close to the body  or  in  actual  contact,
subcutaneous tissues over an area of two or three inches round the wound  of
entrance are lacerated and the surrounding  skin  is  usually  scorched  and
blackened  by  smoke  and  tattoed  with  unburnt  grains  of  gunpowder  or
smokeless propellant powder. The adjacent hairs are singed, and the  clothes
covering the part are burnt by the flame. If the powder is smokeless,  there
may be a greyish or white deposit on the skin around the wound. If the  area
is photographed by infrared light, a smoke  halo  round  the  wound  may  be
clearly noticed. Blackening is  found,  if  a  firearm  like  a  shotgun  is
discharged from a distance of not more than three feet and a revolver  or  a
pistol discharged within about two feet. …”

38. Under the circumstances, in all likelihood if Nand  Singh  was  in  fact
shot at from a close range of about two feet or less, there would have  been
some blackening of his skin. The Trial Court acknowledged this  but  was  of
the opinion that since Nand Singh was wearing a vest and a shirt (Exhibit P-
6) his skin was perhaps  prevented  from  being  blackened  by  the  gunshot
wound. That may be so, but there is no evidence, one way or the other,  that
the vest and shirt of  Nand  Singh  were  blackened  or  not,  nor  was  any
question asked of any witness in this regard. Therefore, we have  no  reason
to dispute the conclusion of the Trial Court.
Blood trail: submissions and discussion
39. Learned counsel for Daud Khan referred to an odd circumstance, which  is
that Nand Singh managed to cover on foot a distance of  about  70  (seventy)
feet after being shot in the chest. Throughout this distance, there  was  no
blood trail, nor was any blood spilt at the place of occurrence. In  Meharaj
Singh v. State of U.P.[17] the absence of blood at the place  of  occurrence
or any blood trail from the place of  occurrence  to  the  place  where  the
corpse  was  found  led  this  Court  (among  other  things)  to  doubt  the
prosecution story.
40. However, the evidence on record in this case does not  leave  any  doubt
in this regard. PW-14 Dr. Tej Singh Dangi (one of the members of  the  Board
that conducted the post mortem) stated that he could not  give  any  opinion
about blood being  spilt  under  such  circumstances  and  that  it  is  not
necessary that blood would fall outside if any part of the body is  injured.
On the other hand, PW-15 Dr. K. Asif  (another  member  of  the  Board  that
conducted the post mortem) was of the view that blood might have  fallen  at
the place of occurrence, “but the blood in small  quantity  comes  out  from
[the] wound which is caused by the entry of the  bullet  and  the  blood  in
large quantity comes out from  the  exit  injury  of  the  bullet.”  It  is,
therefore, not surprising that there was no spillage of Nand  Singh’s  blood
at the place of the incident.
41. It has come on record that Nand Singh was a young  and  healthy  person.
While it may seem odd that  he  could  have  run  a  distance  of  about  70
(seventy) feet with a bullet in his chest, it might not be  improbable.  The
best persons to have been asked to explain this would have been the  medical
experts, but no  question  was  put  to  them  in  this  regard.  Under  the
circumstances, it is difficult to rule out the  possibility  of  Nand  Singh
having traversed the distance before collapsing across the road.
Dock identification: submissions and discussion
42. It was contended by Daud Khan that  the  three  chance  witnesses,  PW-7
Mahabir Singh, PW-23 Narender Singh and PW-24 Rishi Raj Shekhawat  were  all
from out of town.  As such, they could not  have  identified  Daud  Khan  or
Javed. It was further contended that  no  test  identification  parade  (for
short TIP) was conducted and reliance could not have  been  placed  only  on
their dock identification.
43. No such argument was raised by Daud Khan either in the  Trial  Court  or
in the High Court and we see no reason to  permit  such  an  argument  being
raised at this stage.
44. That apart,  it  was  recently  held  in  Ashok  Debbarma  v.  State  of
Tripura[18] that while the evidence of identification of  an  accused  at  a
trial is admissible as a substantive piece of evidence, it would  depend  on
the facts of a given case whether or not such a piece of evidence  could  be
relied upon as the sole basis for conviction of  an  accused.  It  was  held
that if the witnesses are trustworthy and reliable, the mere  fact  that  no
TIP was conducted would not, by itself,  be  a  reason  for  discarding  the
evidence of those witnesses.  In arriving at  this  conclusion,  this  Court
relied upon  a  series  of  decisions.[19]   Earlier,  a  similar  view  was
expressed in Manu Sharma v. State (NCT of Delhi).[20]
45. In any event, there were two other witnesses to  the  shooting,  namely,
PW-11 Narender Kumawat and PW-19 Suraj Mal  who  were  local  residents  and
knew Nand Singh and Daud Khan and could easily identify them.
46. Five witnesses have testified to the events that took  place  at  Bathra
Telecom on the night of 19th June 2004. We see no reason to  disbelieve  any
of them, particularly since they have all given a  consistent  statement  of
the events. There are some  minor  discrepancies,  which  are  bound  to  be
there, such as the distance between the gun and Nand Singh but these do  not
take away from the substance of the case of  the  prosecution  nor  do  they
impinge on the credibility of the witnesses.
Conclusion
47. If the facts of the case are looked at individually and  randomly,  they
might create a doubt. However, if they are  considered  collectively,  there
is no room for doubt. The facts collectively are: (i) Nand  Singh  was  shot
with a gun. (ii) The bullet extracted from the  body  of  Nand  Singh  could
have been fired from that gun, or to put it negatively, it  cannot  be  said
that the extracted bullet could not have been fired from the recovered  gun.
Nobody questioned this. (iii) The gun-shot was fired from a close  distance,
but there was no blackening  of  Nand  Singh’s  skin  possibly  due  to  his
apparel. Nobody questioned this. (iv) Nand Singh’s death was  not  immediate
and he could have traversed a distance of about 70  (seventy)  feet  despite
being shot. Nobody questioned this. (v) The medical experts  testified  that
spillage of blood from the entry wound  is  not  inevitable  and  so  it  is
possible that Nand Singh’s blood was not found  between  the  place  of  the
incident and the place where he collapsed. The  blood  was,  however,  found
where Nand Singh collapsed. (vi)  There  were  five  eye  witnesses  to  the
incident of shooting and they  gave  consistent  statements  and  identified
Daud Khan as the person who shot Nand Singh.  None  of  these  findings  and
conclusions are perverse. On the contrary, they have been  accepted  by  the
Trial Court and the High Court. We see no reason to take a different view.
48. On a consideration  of  the  entire  material  before  us,  we  have  no
hesitation in upholding the view taken by the High Court with regard to  the
offence committed by Daud Khan and his conviction for that offence.  We  see
no substance in the appeal filed by the State and find no reason to  reverse
the conclusions arrived at by the High Court  with  regard  to  the  offence
committed by Daud Khan.
49. Both the appeals are dismissed.

                                                                 …………………………J
                                              (Madan B. Lokur)

                                          …………………………J
                                                     (S.A. Bobde)
New Delhi;
November 4, 2015

-----------------------
[1]  (1972) 3 SCC 393
[2]  (2014) 2 SCC 1 (Constitution Bench)
[3]  157. Procedure for investigation.—(1) If, from information received  or
otherwise, an officer in charge of a police station has  reason  to  suspect
the commission of an offence which he is  empowered  under  Section  156  to
investigate, he shall forthwith send a report of the same  to  a  Magistrate
empowered to take cognizance of such offence upon a police report and  shall
proceed in person, or shall depute  one  of  his  subordinate  officers  not
being below such rank as the State Government may,  by  general  or  special
order, prescribe in this behalf, to proceed, to  the  spot,  to  investigate
the facts and  circumstances  of  the  case,  and,  if  necessary,  to  take
measures for the discovery and arrest of the offender:
    Provided that—
    (a) when information as to the commission of any such offence  is  given
against any person by name and the case is not  of  a  serious  nature,  the
officer in charge of a police station need not proceed in person  or  depute
a subordinate officer to make an investigation on the spot,
    (b) if it appears to the officer in charge  of  a  police  station  that
there is no sufficient ground for entering on  an  investigation,  he  shall
not investigate the case:
     Provided further that in relation to an offence of rape, the  recording
of statement of the victim shall  be  conducted  at  the  residence  of  the
victim or in the place of her choice and as far as practicable  by  a  woman
police officer in the presence of her parents or guardian or near  relatives
or social worker of the locality.
    (2) In each of the cases  mentioned  in  clauses  (a)  and  (b)  of  the
proviso to sub-section (1), the officer in  charge  of  the  police  station
shall state in his report his reasons  for  not  fully  complying  with  the
requirements of that sub-section, and, in the case mentioned in  clause  (b)
of the said  proviso,  the  officer  shall  also  forthwith  notify  to  the
informant, if any, in  such  manner  as  may  be  prescribed  by  the  State
Government, the fact that he will not investigate the case or  cause  it  to
be investigated.
[4]  (2011) 6 SCC 288
[5]  (2013) 12 SCC 539
[6]  (2012) 6 SCC 107
[7]  (1972) 2 SCC 640
[8]  (1976) 4 SCC 369
[9]  (2001) 7 SCC 318
[10]    (2008) 16 SCC 372
[11]    Sudershan v. State of Maharashtra, (2014) 12 SCC 312
[12]    Meharaj Singh v. State of Uttar Pradesh, (1994) 5 SCC 188
[13]    Rattiram v. state of Madhya Pradesh, (2013) 12 SCC 316
[14]    1950 SCR 821
[15]    (2010) 10 SCC 259
[16]    22nd edition page 354
[17]    (1994) 5 SCC 188
[18]    (2014) 4 SCC 747
[19]    Kanta Prashad v. Delhi Administration, AIR 1958  SC  350,  Harbhajan
Singh v. State of Jammu & Kashmir, (1975)  4  SCC  480,  Jadunath  Singh  v.
State of Uttar Pradesh, (1970) 3 SCC 518, George v. State of Kerala,  (1998)
4 SCC 605 and Dana Yadav v. State of Bihar, (2002) 7 SCC 295
[20]    (2010) 6 SCC 1, paragraphs 255 to 258

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