State Of Rajasthan vs Daud Khan

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.

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.

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 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.

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.

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 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.

Blood trail: submissions and discussion

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.

Conclusion

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