SAYED DARAIN AHSAN @ DARAIN Vs STATE OF WEST BENGAL
Bench: A.K. PATNAIK,SWATANTER KUMAR
Case number: Crl.A. No.-001195-001195 / 2006
Diary number: 22156 / 2006
Advocates: ABHIJAT P. MEDH Vs
ABHIJIT SENGUPTA
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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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