Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1195 of 2006  

Sayed Darain Ahsan @ Darain                       …… Appellant

Versus

State of West Bengal & Anr.                             ……  Respondents

J U D G M E N T

A. K. PATNAIK, J.

This  is  an  appeal  by  way  of  special  leave  under  

Article  136  of  the  Constitution  of  India  against  the  

judgment dated 12.05.2006 of the High Court of Calcutta  

in C.R.A. No.244 of 2003 affirming the conviction of the  

appellant under Section 302 read with Section 34 of the  

Indian Penal Code (for short ‘IPC’) as well the sentence of  

life  imprisonment imposed on the appellant by the trial  

court and dismissing the appeal of the appellant.

2. The facts briefly are that an FIR was lodged with the  

Officer-in-charge of the Garden Reach Police Station,  

Calcutta, on 11.02.2001 at about 10.18 P.M. by Md.  

Rashid  Khan.   In  the  FIR,  Rashid  stated  that  on  

11.02.2001 at about 9.45 P.M. when he was sitting  

along with Md. Shamim Ansari at the junction of Iron  

Gate  Road  and  Risaldar  Gate  Road  and  gossiping,  

Md.  Jahangir  alias Mughal walked  along Iron Gate  

Road towards Garden Reach Road at about 9.50 P.M.  

Suddenly, they heard a sound of firing from the side  

of Iron Gate Road and both went there running and  

saw that eight to ten persons had encircled Mughal  

and were firing at him again and again.  Mughal fell  

down on the street and the assailants fled away from  

the  spot  in  different  directions  and  he  could  

recognize  the  appellant  as  one  of  the  assailants.  

Thereafter,  Rashid  and  Shamim  and  some  people  

who  had  gathered  from  neighbouring  areas  took  

Mughal to Hannan Nursing Home at B-79, Iron Gate  

Road, where Mughal was declared dead.  The Officer-

in-Charge  of  the  Police  Station  registered  a  case  

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under  Sections  120B/302,  IPC,  and 25(1B)(a)/27 of  

the Arms Act against the appellant and directed Sub-

Inspector B.C. Sarkar to take up the investigation of  

the case.  After investigation, chargesheet was filed  

against  the  appellant  and  Abuzar  Hossain  under  

Section 302/34, IPC, and the case was committed to  

the Sessions Court for trial.  

3.   At the trial, the prosecution examined as many as  

24 witnesses.   Rashid  was examined as  PW-3 and  

Shamim was examined as PW-4.  Both PW-3 and PW-

4 supported the prosecution case as narrated in the  

FIR.   Besides  these  two  eyewitnesses,  two  more  

eyewitnesses, who on 11.02.2001 at about 9.00 P.M.,  

were gossiping in front of a shop near the place of  

occurrence, Yusuf and Jahid, were examined as PW-5  

and PW-7 and they also supported the prosecution  

case as narrated in  the FIR.   The trial  court,  after  

considering the evidence of the four eyewitnesses as  

well  as the medical  and other evidence on record,  

held  that  both  the  accused persons,  the  appellant  

and Abuzar Hossain, were guilty of the offence under  

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Section 302/34, IPC.  The trial court also heard the  

parties on the question of sentence and sentenced  

each  of  the  two  accused  persons  to  suffer  life  

imprisonment and also each of the accused persons  

to pay a fine of Rs.5,000/- and in default to suffer R.I.  

for  one more  year.   Aggrieved,  the  appellant  filed  

C.R.A. No.244 of 2003 before the High Court but the  

High  Court  dismissed  the  appeal  and affirmed  the  

conviction and sentence imposed on the appellant by  

the trial court.

4.  Mr.  S.B.  Sanyal,  learned  senior  counsel  for  the  

appellant, submitted that the ocular evidence of PW-

3,  PW-4,  PW-5  and  PW-7  ought  not  to  have  been  

believed because it is inconsistent with the medical  

evidence  in  the  present  case.   He  submitted  that  

these witnesses have said before the Court that the  

appellant  and  his  associates  surrounded  the  

deceased and all of them fired at the deceased but  

the medical evidence reveals that there was only one  

bullet injury on deceased.  He further submitted that  

as per the Forensic Science Laboratory report dated  

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04.06.2001, the bullet fired was of a .303” rifle, but  

the eyewitnesses have said that the assailants had  

fired from revolvers.  He submitted that if a rifle has  

been actually  used to  kill  the  deceased,  the  firing  

must have taken place from a long distance and not  

from  a  short  distance  as  alleged  by  the  

eyewitnesses.  He further submitted that the truth is  

that  Raju,  who  was  the  younger  brother  of  the  

deceased,  was  interested  in  the  property  of  the  

deceased, who was a wealthy person, and it is Raju  

who  had  killed  the  deceased  and  had  set  up  the  

witnesses against the appellant.  He submitted that  

evidence on record establishes that Raju and PW-3  

reside  in  the  same  premises  and  PW-4  is  a  close  

friend of PW-3,  PW-5 knew Raju since his boyhood  

and PW-7 was a close friend of both PW-4 as well as  

Raju and PW-5 and PW-7 are friends.  He vehemently  

argued  that  all  the  eyewitnesses  were,  therefore,  

interested  witnesses  and  should  not  have  been  

believed.   He  further  argued  that  no  Test  

Identification  Parade  was  held  at  the  time  of  

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investigation  and  it  was  not  possible  for  the  

witnesses  to  identify  the  appellant  as  one  of  the  

persons who fired at the deceased.

5. Mr.  Sanyal cited the decision of this Court in  Mani  

Ram & Ors. v. State of U.P. [1994 Supp.(2) SCC 289]  

for  the  proposition  that  where  the  direct  evidence  

was not supported by the expert evidence, it would  

be difficult  to  convict  the  accused on the basis  of  

such evidence.  He also relied on State of Punjab v.  

Rajinder Singh [(2009) 15 SCC 612] in which it was  

held that the prosecution story was doubtful because  

there  was  clear  inconsistency  between  medical  

evidence and ocular  evidence.   He submitted  that  

the report dated 04.06.2001 of the Forensic Science  

Laboratory  was  not  put  to  the  appellant  in  his  

examination  under  Section  313  of  the  Criminal  

Procedure  Code  (for  short  ‘Cr.P.C.’).   He  cited  the  

decision of this Court in Sharad Birdhichand Sarda v.  

State of Maharashtra [(1984) 4 SCC 116] in which it  

has been held that  the circumstances,  which were  

not  put  to  the  accused  in  his  examination  under  

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Section 313 of the Criminal Procedure Code, 1973,  

have to be completely excluded from consideration.  

According to Mr. Sanyal, therefore, this is a fit case in  

which  the  appellant  should  be  acquitted  of  the  

charges  under  Section  302/34,  IPC,  and  the  

judgments  of  the  High  Court  and  the  trial  court  

should be set aside.  

6.   Mr.  Chanchal  Kumar  Ganguli,  learned  counsel  

appearing for the State, on the other hand, strongly  

relied on the evidence of eyewitnesses, namely, PW-

3, PW-4, PW-5, and PW-7 who had all supported the  

prosecution  case.   He  submitted  that  all  the  

eyewitnesses  have  named  the  appellant  as  the  

person  who  was  holding  a  gun  and  who  shot  the  

deceased.   He  referred  to  the  report  dated  

04.06.2001 of the Forensic Science Laboratory which  

clearly revealed that the two bullets (Ext.B & I) were  

fired  through  an  improvised  fire  arm,  one  hit  the  

deceased in the occipital region and the other grazed  

the  deceased  in  the  temporal  region.   He  also  

referred  to  the  seizure  list  Ext.-2  to  show that  an  

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empty cartridge and one bullet head were also found  

at the place of occurrence.  He submitted that the  

contention  of  Mr.  Sanyal  that  the  report  dated  

04.06.2001 of the Forensic Science Laboratory was  

not  put  to  the  appellant  in  his  examination  under  

Section 313, Cr.P.C., is not correct.  He referred to  

the question put by the trial court to the appellant in  

which it was brought to the notice of the appellant  

that the I.O. sent the seized articles to the Forensic  

Science  Laboratory  after  completion  of  the  

investigation  and  only  thereafter  the  chargesheet  

was filed against the appellant.  He cited the decision  

in  Gamini  Bala  Koteswara  Rao  &  Ors.  v.  State  of  

Andhra  Pradesh through Secretary [(2009)  10  SCC  

636] in which this Court has taken a view on facts  

that  the  medical  evidence  did  not  in  any  way  

contradict  the ocular evidence.   He submitted that  

there  is  no  inconsistency  between  the  ocular  

evidence and the medical evidence in this case and  

this Court should also accept the ocular evidence of  

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the four  eyewitnesses who had seen the appellant  

firing at the deceased.  

7. We may first deal with the arguments of Mr. Sanyal  

that the medical evidence in this case is such as to  

make the prosecution story as told by PW-3, PW-4,  

PW-5 and PW-7 improbable.  We extract hereinbelow  

the relevant portions of the evidence of PW-3, PW-4,  

PW-5 and PW-7:

“PW-3  –  I  heard  a  sound  of  firing  in  the  direction of B-35, Iron Gate Road.  On hearing  this we ran towards the B-35, Iron Gate Road  and found Daren with 8/10 others surrounded  Mogal  from  all  sides.   Daren  and  his  associates  were  armed  with  gun.   They  uttered in a single voice that Mogal should be  finished.   Saying  this  they  fired  at  Mogal,  Mogal fell on the ground with bullet injury.

PW-4 – After some time I  heard a sound of  firing  from the  direction  of  B-35,  Iron  Gate  Road.  I myself and Rashid ran a few distance  and  found  Daren  and  eight  or  ten  others.  Some of them Mughal from behind and no by  the  side  of  Mughal.   They  all  uttered  in  a  voice that Mughal should be finished.  Saying  this Daryen and his associates started firing  upon  Mughal.   As  a  result  of  such  firing  Mughal fell on the B-35, Iron Gate Road.

PW-5 – I found also Mughal Bhai coming from  the  side  of  Bangalee  Bazar  and  when  he  arrived near the mouth of the lane at B-35,  

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Iron Gate Road at that time Daryen, Abuzar  Hossain  and  other  associates  Daryen  detained  Mughal  Bhai.   There  were  about  8/10  persons  armed  with  revolvers.   The  Daryen  and  his  associates  surrounded  Mughal from his left side and back side.  One  of those 8/10 persons fired from the revolver  and then Daryen and Abuzar Hossain said to  his  associates  to  kill  Jahangir  @  Mughal.  Immediately  all  the  persons  fired  upon  Jahangir  @  Mughal.   I  could  identify  only  Daryen and Abuzar Hossain (identified on the  dock).   Mughal  instantly  fell  down  on  the  ground.

PW-7  –  At  about  9.50  p.m.  I  found  that  Mughal  Bahi  was  coming  from  the  side  of  Bangalee Bazar towards ourselves and when  he reached near B-35, Iron Gate Road at that  time Daryen and Abuzar Hossain and others  encircled Mughal  from his  behind and side.  Out of those persons somebody fired.  Then  Daryen,  Abuzar  and  others  abusd  filthily  Mughal and started firing at random and fired  about 6/7 times.  They also uttered, “Saleko  Khatam  Kar  do”.  (identified  the  accused  Daryen and Abuzar on the dock).”

It will be clear from the evidence of PW-3, PW-4, PW-5 and  

PW-7  that  the  consistent  version  of  all  the  four  

eyewitnesses is that the appellant and his associates fired  

at the deceased and as a result the deceased fell down.

8. The medical evidence of this case is of Dr. Amitava  

Das, PW-12, who carried out the post mortem on the dead  

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body of deceased.  He has stated that on the dead body of  

the deceased he found the following injuries:

“1. Injury abrasion 1”x ½” over left forehead.  1 ½ left to mid-line and ½”  above left eye- brow.

2. Abrasion -1”x ½” over left side of face just  above the monistic and 2” left to mid-line.

3.  Abrasion  –  2”x1”  over  interior  aspect  of  lower part of right chest-wall 9” below right  clavicle and 2 ½” right to interior mid-line.

4. Graze abrasion-4”x1” over posterior aspect  of lower part of right arm and right elbow.

5.  Graze  Abrasion  1½”  x  1”  over  posterior  aspect of left elbow.

6. One lacerated wound - ½” x ¼” into bone  over  right  side temporal  region,  1” right  of  outer of Canvas of right eye and 4” above the  right angle of mandible and 5.5” above right  heel  with  evidence  of  gutter  fracture  involving outer table of right temporal bone- might have been caused by a grazing bullet.

7. One wound of entrance of gun-shot injury  of size ½” to ½” more or less oval in shape  with  radish  margin  with  abrasion  0.2”  surrounding it with brushing underneath with  evidence of no protrusion of fat and evidence  of turning of body hair was placed over right  side of posterior aspect of neck just below the  hair border just right to posterior mid-line 1”  below  external  occipital  pursuance  5  ft.2”  above right heel.”

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He has also stated that in his opinion the death was due to  

the effects of gun shot injury which was ante-mortem and  

homicidal in nature.  This obviously refers to injury No.7.  

Regarding  injury  No.6,  he  has  stated  that  it  was  not  

possible  for  him to  say  that  the  injury  was  caused  by  

grazing by the bullet or not.  Thus the medical evidence is  

also clear that the death of the deceased was caused by a  

bullet injury.  The medical evidence clearly supports and  

does not contradict  the ocular  evidence of PW-3,  PW-4,  

PW-5 and PW-7 that the deceased was killed by the gun  

shots fired by the appellant and his associates.   

9. In a recent judgment in  Abdul Sayeed vs.  State of  

Madhya  Pradesh [(2010)  10  SCC  259]  this  Court  after  

considering its earlier decisions in  Ram Narain Singh vs.  

State of Punjab [(1975) 4 SCC 497],  State of Haryana vs.  

Bhagirath [(1999) 5 SCC 96], Solanki Chimanbhai Ukabhai  

vs.  State of  Gujarat [(1983)  2 SCC 174],  Mani  Ram vs.  

State of U.P. [(1994 Supp (2) SCC 289],  Khambam Raja  

Reddy vs. Public Prosecutor [(2006) 11 SCC 239], State of  

U.P. vs.  Dinesh [(2009) 11 SCC 566 and State of U.P. vs.  

Hari Chand [(2009) 13 SCC 542] has held:  

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“though the ocular  testimony of  witness  has  greater  evidentiary  value  vis-à-vis  medical  evidence  when  medical  evidence  makes  the  ocular testimony improbable, that becomes a  relevant factor in the process of evaluation of  evidence.   However,  where  the  medical  evidence goes so far that it completely rules  out all possibility of the ocular evidence being  true, the ocular evidence maybe disbelieved”.  

In  the facts  of the present case,  as we have seen,  the  

medical  evidence does not  go so  far  as  to  rule  out  all  

possibility of the ocular evidence being true.  Hence, the  

ocular evidence cannot be disbelieved.

10. We now turn to the submission of Mr. Sanyal that as  

per  the  Forensic  Science  Laboratory  Report  dated  

04.06.2001  the  bullet  was  of  .303”  rifle  whereas  the  

eyewitnesses have said that the assailants had fired from  

revolvers.  PW-12 who carried out the post-mortem on the  

dead body of the deceased has stated that 8 articles were  

preserved after the post mortem and these included skin  

from wound of  entry  and foreign body (bullet).   PW-24  

who took up further investigation of the case has deposed  

that on 16.02.2001 he received sealed packets collected  

from  CMOH,  Alipore  during  autopsy  like  blood,  foreign  

body (bullet) hair etc. and on 16.04.2001 he sent these  

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articles  to  Forensic  Science  Laboratory  and  thereafter  

received the reports from the Forensic Science Laboratory  

on  different  dates.  The report  dated 04.06.2001  of  the  

Forensic  Science  Laboratory  contains  the  result  of  

examination of some of these articles.  These articles are  

an envelope marked A containing one deformed fired case  

of a .303” rifle cartridge (Ext. A), an envelope marked B  

containing  one  fired-nose  bullet  of  .315”/  8mm  caliber  

(Ext.  B),  the  glass  Phial  marked  I  containing  one  fired  

metal  jacketed  bullet  of  improvised  make  having  dark  

brown bloody stains (Ext. I) and a glass phial J containing  

semi-solid  substance said  to  be  a  piece  of  human skin  

(Ext. J).  The results of the examination of these articles as  

given  in  the  report  dated  04.06.2001  of  the  Forensic  

Science Laboratory are as follows:

“The  physical  condition  of  ext.A  suggested  that  it  was  used  for  firing  through  an  improvised  firearm  capable  of  firing  .303”  rifle cartridges.

Although  exhibits  B  and  I  were  not  of  identical calibers but both were found to have  been fired through improvised firearm.  The  scratch mark-patterns on B and I were found  to  match  characteristically  while  compared  under  microscope.   Hence  it  was  revealed  

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that  both  the  exhibits  B  and  I  were  fired  through the same improvised firearm.

No opinion could be given on exhibit J  as it  was unfit for any examination.”

The  report  dated  04.06.2001  of  the  Forensic  Science  

Laboratory thus is  clear  that  the fire arms used by the  

appellant  and  his  associates  were  improvised  firearms  

capable of firing .303” rifle cartridges.  

11.  Dr. B.R. Sharma in his book on Firearms in Criminal  

Investigation  &  Trials  published  by  the  Universal  Law  

Publishing  Co.,  Fourth  Edition,  has  in  Chapter  11  on  

“Improvised  Firearms”  classified  country-made  firearms  

with reference to the ammunition used in them:  12 bore  

firearms and .303 firearms.  Dr. Sharma has also classified  

country-made firearms according to the manner in which  

they are fired:  shoulder  firearms or  the handguns.   Dr.  

Sharma has stated that country-made firearms are non-

standard firearms and they are not tested or proved for  

their fire-worthiness and are, therefore, usually imperfect  

contrivances.   He  has  also  stated  that  the  poor  

construction of the firearms affects the firing process in  

many respects and sometimes the incomplete combustion  

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inhibits a complete and proper development of pressure  

and the projectiles do not acquire standard velocities or  

striking energies.  

12. Considering the evidence on record and the opinions  

of experts we have discussed, we have no doubt that the  

deceased has not been shot by a rifle from a long distance  

but by improvised or country-made handguns capable of  

firing .303 rifle cartridges from a short distance.  PW-3 has  

described  these  as  guns,  whereas  PW-5  has  described  

these  as  revolvers  because  he  has  not  been  able  to  

distinguish a revolver from a country-made handgun.  PW-

4 and PW-7 are silent on whether the appellant and his  

associates have used guns or revolvers.  Some of these  

eyewitnesses have said that  all  the assailants  fired but  

they  could  not  have known how many projectiles  were  

actually ejected from these defective improvised firearms  

as a result of firing.  One bullet has been recovered from  

the occipital  region of  the deceased and another  bullet  

and an  empty  cartridge have been recovered from the  

place of occurrence.  Hence, in the present case, the fact  

that the other bullets were not recovered either from the  

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body  of  the  deceased  or  from the  place  of  occurrence  

does not  belie  the  prosecution  story  that  the  appellant  

and his associates fired and killed the deceased.   

13. We may now consider  the argument of Mr.  Sanyal  

that Raju who was the younger brother of the deceased  

had  actually  killed  the  deceased  and  had  set  up  the  

witnesses against the appellant and that PW-3, PW-4, PW-

5 and PW-7 were directly or indirectly connected with Raju  

and were all  interested witnesses.   We do not find any  

material on record to support the contention of Mr. Sanyal  

that  Raju  was behind the killing of  the deceased.   The  

witnesses PW-3 and PW-4 were chatting at the junction of  

Risaldar Gate Road and Iron Gate Road and PW5 and PW-7  

were  gossiping  in  front  of  the  shop  of  PW-6.   All  four  

eyewitnesses were  of  the locality  in  which  the  incident  

took place and happened to be at the place of occurrence  

at the time of the incident and their evidence would show  

that  they  have  stated  whatever  they  have  actually  

observed.   Although,  during  cross  examination  the  

defence  has  suggested  to  these  witnesses  that  their  

evidence implicating the appellant  is  false,  the defence  

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has not been able to create a reasonable doubt about the  

veracity of their evidence.   We cannot therefore accept  

the submission of Mr. Sanyal that the four eyewitnesses  

were directly or  indirectly connected with Raju and had  

implicated the appellant for the offence at the instance of  

Raju who was the man behind the killing of the deceased.

14. We also do not find any merit in the submission of  

Mr. Sanyal that as no Test Identification Parade was held  

at the time of investigation, the eyewitnesses could not  

have identified the appellant as one of the persons who  

fired  at  the  deceased.   The  appellant,  PW-3  and  PW-4  

were residents of Iron Gate Road, which was the part of  

the Garden Reach Police Station.  PW-5 and PW-7 were  

residents of Bichali  Ghat Road which is also part of the  

same Police Station Garden Reach.  Hence, the appellant  

and the four eyewitnesses belonged to the same locality  

and the four eyewitnesses knew the appellant before the  

incident  and  were  able  to  immediately  identify  the  

appellant  at  the  time  of  the  incident.  It  is  only  if  the  

appellant  was a stranger to  the eyewitnesses that  Test  

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Identification Parade would have been necessary at  the  

time of investigation.

15. Coming now to the submission of Mr. Sanyal that the  

Report  dated  04.06.2001  of  the  Forensic  Science  

Laboratory was not put to the appellant in his examination  

under Section 313 Cr.P.C., we find that PW-24 has stated  

in his evidence that he has received four Forensic Science  

Laboratory Reports on different dates and PW-4 has been  

cross examined on behalf of the appellant.  We also find  

from the examination of the appellant under Section 313  

Cr. P.C. that the court did put a question to him that PW-

24 who took up further investigation of the case sent the  

seized  articles  to  the  Forensic  Science  Laboratory  

including articles collected from ACMOH Alipore and after  

completion  of  investigation  submitted  charge-sheet  

against both the accused persons under Sections 302/34  

IPC and sought a reply from the appellant.  The evidence  

of PW-24 was recorded by the Court in the presence of the  

appellant and the report dated 04.06.2001 of the Forensic  

Science Laboratory was marked as Ext.14 on 24.02.2003  

and the Court had also put it to the appellant during his  

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examination on 04.03.2003 that the seized articles were  

sent to the Forensic Science Laboratory, yet the appellant  

has stated in his reply before the Court that he was not  

aware.  The appellant could have stated on 04.03.2001 if  

he had anything to say on the report dated 04.06.2001 of  

the  Forensic  Science  Laboratory.   Thus,  although  the  

content  of  the report  dated 04.06.2001 of  the Forensic  

Science Laboratory  was  not  put  to  the  appellant  in  his  

examination under Section 313, Cr.P.C., the appellant was  

not in any way prejudiced.  In  State of Punjab v.  Swaran  

Singh (AIR 2005 3114), this Court has held relying on the  

earlier decisions of this Court that where the accused was  

not  in  any  way  prejudiced  by  not  giving  him  an  

opportunity  to  answer  specifically  regarding  evidence  

which was recorded in his presence, such evidence cannot  

be excluded from consideration by the Court.   

16. We find that the High Court has held in the impugned  

judgment that all the eyewitnesses have given a vivid and  

true account of the incident and had seen the occurrence  

on close range and as they were residents of the locality  

they  had  no  problem  in  identifying  the  assailants  and  

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there  was  nothing  on  record  suggesting  that  they  

nurtured  ill  feeling  and  harboured  enmity  against  the  

appellant and that the evidence of the eyewitnesses was  

consistent  and  finds  due  corroboration  from  the  post  

mortem report.  In our considered opinion, the High Court  

has rightly  sustained the conviction of  the appellant  on  

the evidence of four eyewitnesses as corroborated by the  

medical evidence.

17. In the result, we find no merit in the appeal which is  

accordingly dismissed.  

.……………………….J.                                                                      (A. K. Patnaik)

………………………..J.                                                                    (Swatanter  Kumar) New Delhi, March 22, 2012.    

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