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 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

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 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.

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 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

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 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

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 20th June

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

Page 11

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

2 (2014) 2 SCC 1 (Constitution Bench)

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

Page 12

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

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 Punjab7 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 Bihar9 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 Pradesh15 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 Toxicology16 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 22nd 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 Tripura18 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 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

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