Page 1 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 11

th

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

Crl.Appeal Nos.126 & 351/2010 Page 1 of 27

Page 2 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 19

th

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.

Crl.Appeal Nos.126 & 351/2010 Page 2 of 27

Page 3 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 19

th

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 21

st

June, 2004 Daud Khan was arrested. Thereafter,

Javed Beg was arrested on 15

th

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

28

th

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

Crl.Appeal Nos.126 & 351/2010 Page 3 of 27

Page 4 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 11

th

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

Crl.Appeal Nos.126 & 351/2010 Page 4 of 27

Page 5 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.

1

(1972) 3 SCC 393

Crl.Appeal Nos.126 & 351/2010 Page 5 of 27

Page 6 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

Crl.Appeal Nos.126 & 351/2010 Page 6 of 27

Page 7 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

Crl.Appeal Nos.126 & 351/2010 Page 7 of 27

Page 8 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

Crl.Appeal Nos.126 & 351/2010 Page 8 of 27

Page 9 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

Crl.Appeal Nos.126 & 351/2010 Page 9 of 27

Page 10 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 20

th

June

Crl.Appeal Nos.126 & 351/2010 Page 10 of 27

Page 11 2004 but was ante-dated to 19

th

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 20

th

June 2004 and not on 19

th

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

2

(2014) 2 SCC 1 (Constitution Bench)

Crl.Appeal Nos.126 & 351/2010 Page 11 of 27

Page 12 21

st

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

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

Crl.Appeal Nos.126 & 351/2010 Page 12 of 27

Page 13 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

5

(2013) 12 SCC 539

Crl.Appeal Nos.126 & 351/2010 Page 13 of 27

Page 14 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

6

(2012) 6 SCC 107

7

(1972) 2 SCC 640

Crl.Appeal Nos.126 & 351/2010 Page 14 of 27

Page 15 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

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

Crl.Appeal Nos.126 & 351/2010 Page 15 of 27

Page 16 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.

Crl.Appeal Nos.126 & 351/2010 Page 16 of 27

Page 17 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

14

1950 SCR 821

Crl.Appeal Nos.126 & 351/2010 Page 17 of 27

Page 18 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

Crl.Appeal Nos.126 & 351/2010 Page 18 of 27

Page 19 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

Crl.Appeal Nos.126 & 351/2010 Page 19 of 27

Page 20 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.

15

(2010) 10 SCC 259

Crl.Appeal Nos.126 & 351/2010 Page 20 of 27

Page 21 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

16

22

nd

edition page 354

Crl.Appeal Nos.126 & 351/2010 Page 21 of 27

Page 22 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

Crl.Appeal Nos.126 & 351/2010 Page 22 of 27

Page 23 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

17

(1994) 5 SCC 188

Crl.Appeal Nos.126 & 351/2010 Page 23 of 27

Page 24 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

18

(2014) 4 SCC 747

Crl.Appeal Nos.126 & 351/2010 Page 24 of 27

Page 25 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 19

th

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

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

Crl.Appeal Nos.126 & 351/2010 Page 25 of 27

Page 26 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

Crl.Appeal Nos.126 & 351/2010 Page 26 of 27

Page 27 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

Crl.Appeal Nos.126 & 351/2010 Page 27 of 27