LexSAYED DARAIN A.HSAN @ DARAIN versus STATE OF WEST BENGAL & ANR.
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A B [2012] 2 S.C.R. 546 SAYED DARAIN A.HSAN @ DARAIN v. STATE OF WEST BENGAL & ANR. (Criminal Appeal No. 1195 of 2006) MARCH 22, 2012 [A.K. PATNAIK AND SWATANTER KUMAR, JJ.] IND/AN PENAL CODE, 1860: c s.302134 - Victim stated to have been shot dead by 8-10 persons - Two accused prosecuted and convicted and sentenced to life - One of the accused filing the appeal - Held: High Court has rightly sustained the conviction of the appellant on the evidence of four eyewitnesses as 0 corroborated by the medical evidence. EVIDENCE: !Expert evidence - Oral testimony that 8-10 persons 'fired at the victim from their revolvers - From the dead body, one E 303 rifle bullet recovered - Held: FSL report is clear that the fire aims used by the appellant and his associates were improvised firearms capable of firing . 303 rifle cartridges - Considering the evidence on record and the opinions of experts, there is no doubt that the deceased has not been F 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. Te§t Identification parade - Failure to conduct TIP - Held: Appellant and the four eyewitnesses belonged to the same G locality and the 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 identification parade wo1.1/d have been necessary at the time of investigation. H 546 SAYED DARAIN AHSAN@ DARAIN v. STATE OF 547 WEST BENGAL & ANR. CODE OF CRIMINAL PROCEDURE, 1973: A s.313 - Examination of accused - Plea that FSL report was not put to accused in his examination uls 313 - Held: The evidence of 10 was recorded by the court in the presence of the appellant and the FSL report was marked as Ext. 14 and the court had also put it to the appellant during his 8 examination 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 - Thus, although the content of the said report was not put to the appellant in his examination uls 313, Cr.P.C., the appellant was not in any way C prejudiced - Penal Code, 1860 - s.302134. The appellant and another accused were charged with an offence punishable uls 302134 IPC. The prosecution case was that at about 9.45 P.M. on o 11.2.2001, the victim was encircled by 8-10 persons and shot dead. PWs 3,4, 5 and 7, who were the local residents, identified the two accused. The trial court convicted and sentenced them to imprisonment for life uls 302/34 IPC. The High Court dismissed the appeal filed E by the appellant. In the instant appeal, it was, inter alia, contended for the appellant that the ocular evidence of PWs 3, 4, 5 and 7 being inconsistent with the medical evidence, ought not to have been relied upon, as the witnesses deposed F before the court that the appellant and his associates all fired at the deceased from their revolvers, but the medical evidence revealed that the deceased had sustained only one bullet injury and the bullet recovered from the dead body was that of a .303 rifle. The case of the appellant was G that 'R', the younger brother of the deceased, got him killed for the property and set up his (R's) friends as witnesses against the appellant and, therefore, all the eye-witnesses being interested witnesses should not have been believed. H 548 SUPREME COURT REPORTS [2012] 2 S.C.R. A Dismissing the appeal, the Court HELD: 1.1 The consistent version of all the four eyewitnesses, namely PW-3, PW-4, PW-5 and PW-7 is that the appellant and his associates fired at the deceased. PW-12, the doctor who carried out the post mortem on 8 the dead body, 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 C 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 D by the gun shots fired by the appellant and his associates. In the facts of the insta
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