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
