Holding

The appeal is dismissed; the convictions under Sections 302, 307 and 324 read with Section 149 IPC are upheld.

Summary

The Supreme Court examined a land‑dispute‑related shooting in which members of an unlawful assembly opened fire, killing Hori Lal and Smt Ram Shree and injuring others. The appellants challenged the conviction on grounds that the FIR was ante‑timed, the prosecution failed to prove a common object, the medical evidence was inconclusive, and there was no motive. The Court held that the delay in forwarding the FIR did not defeat the prosecution case, the medical and ballistics evidence established that firearms caused the injuries, and the conduct of the accused demonstrated a common object to use criminal force. Discrepancies in witness statements were deemed immaterial, and the motive was evident from the long‑standing land dispute. Consequently, the Court dismissed the appeal, upholding the convictions under Sections 302, 307 and 324 read with Section 149 of the IPC.

Issues considered

The FIR was alleged to be ante‑timed; does this invalidate the prosecution case?
Whether the prosecution proved the existence of a common object under Section 149 IPC.
Whether medical and forensic evidence sufficiently linked the accused to the shootings.
Whether discrepancies in eyewitness statements and the nature of the weapons affect liability.
Whether the conversion of an alleged offence under Section 396 IPC to Section 302 IPC is justified.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Penal Code, 1860s. 141, s. 142, s. 149, s. 302, s. 307, s. 324

Subjects

unlawful assemblycommon objectSection 149 IPCFIR ante‑timingmedical forensic evidencefirearmsmurderland disputebenefit of doubt

Judgment

A HORI LAL AND ANR.
v.
STATEOFU.P.

DECEMBER 5, 2006

B .[S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Penal Code, 1860; ss. 302, 307, 324 r/w s.149:

Assault and murder-Land disputes-Unlawful assembly-Accusfld
C persons shot firearms injuring members of prosecution party-Two injured
persons succumbed to injuries-FIR-Charge sheet-Trial Court convicted
accused persons for committing offences under Sections 302, 307, 324 rlw
Section 149 !PC and sentenced them accordingly-Affirmed by High Court
in respect of accused-appellants acquitting another giving him benefit of
doubt-On appeal, Held: Keeping into consideration the magnitude of
D occurrence delay in sending special report to Magistrate would not negate
the entire prosecution case-Medical evidence supports prosecution case-
.Evidence on records suggest indiscriminate firing towards victims, resulting
into death of two persons and injuring others-Motive to commit murder
evident under the facts and circumstances of the case-Discrepancies as
E noticed in statement of prosecution witnesses not very material-All the
accused persons came heavily armed opened fire towards members of opposite
party injuring them resulting into death of two persons-Hence, High Court
rightly convicting them for committing offences punishable u/ss. 302, 307,
324 rlw s. 149.

Unlawful Assembly-Ingredients of-Discussed
F
There was a land dispute between accused persons and victims, due to
which there was enmity between them. On the fateful day, accused appellants
and others formed an unlawful assembly, assaulted the members of other side
with fire arms, causing death of two persons and injuring others. First
G information report was lodged in the Police station, the case was investigated
and charge sheet submitted. Trial Court found appellants and others guilty
for commission of an offence under Section 302 read with Section 149 of the
Indian Penal Code and sentenced them to undergo rigorous imprisonment for
life for committing murder of the deceased under Section 307 read with
Section 149 of the Indian Penal Code and sentenced them to undergo rigorous
H 60
HORILALv. STATEOFU.P. 61
imprisonment for five years for making murderous assault on another under A
Section 324 read with Section 149 of the Indian Penal Code and sentenced to
undergo rigorous imprisonment for two years for causing hurt to yet another
person. On appeal, the High Court has given benefit of doubt to one of the
accused persons and acquitted him. Hence the present appeal.

Accused-appellants contended that First Information report having been B
forwarded to the Magistrate only on the next day, it should be held to be ante-
timed; that the Investigating Officer having opined that an offence under
Section 396 IPC having been committed, there was no reason to convert the
same to an offence under Section 302 IPC; that the post mortem report would
show that in one of the injuries there was blackening and thus, the shot must C
have been fired from a short distance and having regard to the fact that they
were said to be carrying pistols, they could not have caused the said injuries;
that they did not have any motive to commit the offence; that eye-witnesses
being P.W.1 and 2 having not mentioned the name of appellant No.1 in their
statements before the police under Section 161 of the Criminal Procedure D
Code, 1973, they should not have been relied upon; and that no case has been
made out for inferring that the appellants and other accused had common object
in the commission of the offence.

Dismissing the appeal, the Court
E
HELD: 1.1. Trial Court as also the High Court analysed the evidences
brought on records by the prosecution very minutely. The First Information
Report was promptly lodged. After such a ghastly crime was committed, it
was but natural for the Prosecution Witness to report the matter as early as
possible to the police. It was also necessary to get necessary medical assistance
for the injured persons, particularly having regard to the nature of injuries F
suffered by them. (66-G-H; 67-AJ

1.2. The lnvestigatir1g Officer was cross-examined on the question of
alleged ante-timing of the First Information Report. It may be that the special
report was sent to the Magistrate on the next day, but, then keeping in view G
the magnitude of the occurrence, the same by itself would not negate the entire
prosecution story. [67-BI

1.3. Medical evidence supports the prosecution case. Injuries found on
the persons of the deceased and also the injured persons categorically point
out that they had been caused by firearms. The Investigating Officer had also H
•
-.;
62 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A recovered a large number of cartridges from the place of occurrence. The
evidence brought on records also suggests that indiscriminate firing had been
done towards one of the victims, the deceased. The window, where she was
found dead, had been broken. Hence, there exist no reason to differ with the
findings of the Trial Court and the High Court. f67-E, F, GJ
B 2.1, Motive on the part of the ~ppellants and other accused persons to
commit the murder is evident. The offence was committed by the accused as
they could come to learn that one of the members of other party was available
in the village. f67-HJ

c to whether
2.2. Some discrepancies as existed in the statements of PWs.l and 2 as
the appellants had been holding pistols or guns, are not very
material. In the facts and circumstances of the case, the submission of the
appellants that the prosecution has failed to prove common object on the part
of the appellants cannot be accepted. [68-B)

D Baladin & Ors. v. State of Uttar Pradesh, AIR (1956) SC 181; Masal:i
& Ors. v. State of Uttar Pradesh, AIR (1965) SC 202; Nathu Singh Yadav v.
State of Madhya Pradesh, JT (2002) 9 SC 591 and Ugar Ahir & Ors. v. The
State of Bihar, AIR (1965) SC 277, held not applicable.

E 3.1. Common object would mean the purpose or design shared by all the
members of such assembly. It may be formed at any stage. Whether in a given
case the accused persons shared common object or not, must be ascertained
from the acts and conduct of the accused persons. The surrounding
circumstances are also relevant and may be taken into consideration in
arriving at a conclusion in this behalf. (70-B, CJ
F
3.2. The surrounding circumstances are in two parts. The first part
would be attracted when the offence is committed in furtherance of the common
object. The offence, even if is not committed in direct prosecution of the
common object of the assembly, section 149 IPC may still be attracted. However,
G if an offence is committed in furtherance of such common object, the same
would come within the purview of second part. (70-C, DJ

3.3. In the instant case, all the accused persons came heavily armed.
They were seen by one of the victims. He was not only chased, but a shot was
fired at him resulting in his sustenance of an injury on his right arm. He
H still ran and informed others. Before others could conceal themselves, the
J
~"'
:J HORILALv. STATEOFU.P. [S.B. SINHA,J.] 63

appellants reached the spot and started firing. One member of opposite party A
was done to death by a shot fired from a close range. The autopsy surgeon did
not say what would be the distance from which shot was fired. It would depend
upon the nature of the weapon used. The distance in case of a pistol may be 2
feet, whereas in case of a shot gun, it may be 3 feet. But, undoubtedly the
injury resulted from a shot fired from a short distance. (70-E, Fl
B
Boso Prasad & Ors. v. State of Bihar, (20061 12 SCALE 354, referred
to.

"Medical Jurisprudence and Toxicology", 23rd Edition, page 721 by
Modi; "The identification of Firearms and Forensic Ballistics" by Major Sir
Gerald Burrard and "Identification of Disputed Documents, Fingerprints and
c
Ballistics", 3rd Edition, page I 17 by Russell A. Gregory, referred to.

4. There cannot be any doubt whatsoever that where two views are
possible, benefit of doubt must be given to the accused as was submitted by
the appellants. There is no doubt that the High Court had come to a correct D
conclusion. 172-FI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 97 of
2000.

From the final Judgment and Order dated 11-3-1999 of the High Court E
of Judicature at Allahabad in Criminal Appeal No. 2824/1980.

Ashok Bhan, Ms. Varuna Bhandari Gugnani, D.S. Mahara and Dr. Nafis
A. Siddiqui for the Appellants.

Ashok K. Srivastava and Anuvrat Sharma for the Respondent. F
)
The Judgment of the Court was delivered by

' S.B. SINHA, J. Two appellants are before us questioning the judgment
and order dated 11.3.1999 passed in Criminal Appeal No.2824of1980, whereby
and whereunder their conviction and sentence under Section 302 read with G
Section 149 of the Indian Penal Code, 1860 (' IPC', for short) and other
provisions have been upheld.

The incident resulting in death of one Hazarilal and Smt. Ram Shree and
serious injuries to one Balbir Singh and simple injuries to Smt. Mohar Shree
H

~
64 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. ...
A took place at about 10 a.m. on 2nd November, 1979 in village Balarpur, P.S.
Bhagaon, District Mainpuri, U.P. The First Information Report was lodged by
one Harpal Singh, son of Hazarilal and husband of deceased Smt. Ram Shree.

Appellants are also residents of the same village. They, together with
Registar Singh, Bahadur, Babu Ram, Chhotelal, Sohran, Sohran, Jai Singh,
B Subedar and Kedar sons of Jai Singh were named in the First Information
Report. Three persons were not named therein being unknown. Bahadur
Singh is said to be an outsider.

Babu Ram, Chhotlal and Sohran are real brothers being sons of Cham an
C Lal. Registar Singh is son of Babu Ram. Phool Singh @ Bhajan Lal is son of
Punno. Jai Singh is son ofNagpal. Subedar and Kedar are sons of Jai Singh.
Babu Ram and Phool Singh died during trial. Jai Singh was acquitted by the
High Court, whereas Subedar and Kedar had been acquitted by the learned
Sessions Judge. Phool Singh, Registar Singh and Bahadur Singh were said
to be armed with guns. Jai Singh, since acquitted, was said to be armed with
D hand grenades. Appellants herein, Subedar and Kedar were said to be armed
with country made pistols.

Enmity between the parties is not in dispute. Long standing land dispute
between them also stands admitted. In the First Information Report it was
E alleged that a murderous assault was made on Ram Autar, brother of the first
informant, in 1976, wherein the accused persons were alleged to be the
assailants. However, it ended in submission of a final report as nobody was
prepared to support the case due to terror created by Registar Singh and
Bahadur Singh. Ram Autar thereafter shifted to Gopalganj in Bihar. Ram
Swarup, another brother of the informant shifted to Mainpuri Ram Swarup on
F the fateful day came to the village. On receipt of the said information, the
accused persons said to have formed an unlawful assembly and armed with
various lethal arms, came to the place of occurrence. They were seen by Balbir
Singh-P.W.3. He started running towards the village. An exhortation was
given by Registar Singh and he was chased. Shots were fired resulting in \

G sustena~ce of injuries by him on his right arm. Harpal Singh was, at that time,
sitting on a cot. His mother and aunt were sitting on the earth. They were
talking amongst themselves. Hazarilal, the deceased, uncle of Balbir Singh
was tethering his cattle. He informed them that Registar Singh and others
were coming to their house armed with firearms and also that he had received
firearms injuries. Balbir Singh concealed himself inside his house. Jai Singh
H had, allegedly, thrown a hand grenade at Hazarilal. He fell down, whereafter

......
. }
HORILALv. STATE OF U.P. [S.B. SINHA,J.] 65
Phool Singh and Bahadur Singh fired shots at him. Harpal Singh ran and A
entered in the house of his uncle Ram Swarup. He took the rifle of Ram
Swarup and fired towards the accused persons from the upper story of the
house of Ram Swarup. In the meantime, Smt. Ram Shree, wife ofHarpal Singh,
also started firing from the gun of the first informant. At this, the accused
persons made indiscriminate firing at her, due to which she received injuries B
and died. The accused persons reached the house of Phool Singh and
Anokhey, uncles of the first informant and fired several rounds of shots
causing of injuries to Smt. Mohar Shree, wife of Balbir Singh. Shiv Singh also
said to have received injuries, which was not believed by the learned Sessions
Judge. Hazarilal and Smt. Ram Shree died. The gun which was used by Smt.
Ram Shree was taken away by the accused persons. C
The First Information Report was lodged at about 11.45 p.m. The distance
between the village and police station is said to be 8 kms. Dr. R.K. Jain - P.W.6,
Surgeon of District Hospital, Mainpuri conducted autopsy on the dead bodies.
The injured were treated by Dr. S.C. Dubey-P. W.8. The prosecution in
support of his case examined the first informant Harpal Singh besides Balbir D
Singh P.W.3 and Smt. Roopwati-P.W.4. Virendra Singh-P.W.2 was examined,
however, he was later declared hostile. The Investigating Officer, Durga Prasad
Sharma examined himself as P.W.5.

Appellants herein and Jai Singh were convicted for commission of an
offence under Section 302 read with Section 149 of the Indian Penal Code and E
were sentenced to undergo rigorous imprisonment for life for committing
murder of Hazarilal and Smt. Ram Shree; under Section 307 read with Section
149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment
for five years for making murderous assault on Balbir Singh, under Section
324 read with Section 149 of the Indian Penal Code and sentenced to undergo p
rigorous imprisonment for two years for causing hurt to Smt. Mohar Shree.
All sentences, however, were directed to run concurrently. As noticed
hereinbefore, the High Court has given benefit of doubt to Jai Singh and
acquitted him.

Dr. Nafis A. Siddiqui, learned counsel appearing on behalf of the G
appellants raised the following contentions before us :

{i) The First Information Report was entertained without assigning
any crime number to it.

(ii) Having regard to the manner in which the occurrence had taken H
66 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A place and the fact that the first informant had to travel 8 kms, the
First Information Report c~uld not have been lodged within I
hour 45 minutes.
(iii) The said report having been forwarded to the learned Magistrate
only on the next day, i.e., 3rd November, it should be held to be
B ante-timed.
(iv) As in the letter addressed to the Medical Officer, the 'Hazhoori '
Chiththies' and the letter requesting the doctor to conduct post
mortem, the crime number was not mentioned, the same establishes
that the First Information Report was anti-timed.
c (v) The Investigating Officer having opined that an offence under
Section 396 IPC having been committed, there was no reason to
convert the same to an offence under Section 302 IPC. ·
(vi) The post mortem report would show that one of the injuries
(injury No.5) that there was blackening and thus, the shot must
D have been fired from a short distance and having regard to the
fact that the appellants were said to be carrying pistols, they
could not have caused the said injuries.
(vii) Appellants did not have any motive to commit the offence and
they have been roped in as there is a tendency in India to
E implicate the family members of the accused falsely.
(viii) Eye-witnesses being P. W. I and 2 having not mentioned the name
·1< of appellant No. I in their statements before the police under
Section 161 of the Criminal Procedure Code, 1973, they should
not have been relied upon.
F (ix) No case has been made out for inferring l:hat the appellants and
other accused had common object in commission of the offence.

Mr. Ashok K. Srivastava, learned counsel appearing on behalf of the
State, on the other hand, supported the impugned judgment.

G The learned Sessions Judge as also the High Court analysed the
evidences brought on records by the prosecution very minutely.

· The First Information Report was promptly lodged. After such a ghastly
crime was committed, it was but natural for P. W. l to report the matter as early
H as possible to the police. It was also necessary to get necessary medical
HORI LAL v. ST ATE OF U.P. [S.B. SINHA, J.] 67
assistance for the injured persons, particularly having regard to the nature of A
injuries suffered by them. P.W. l had travelled in a bullock cart to the out skirts
of the village. He thereafter took the tractor of one Braj Bhujbal Singh Thakur
to travel upto the police station. He returned to his village on a cycle.

The Investigating Officer was cross-examined on the question of alleged
ante-timing of the First Information Report. It may be that the special report B
was sent to the Magistrate on 3rd November, but, then keeping in view the
magnitude of the occurrence, we do not think that the same itself would
negate the entire prosecution story.

We also are unable to accept the submissions of the learned counsel
for the appellants that the number of crime case had not been mentioned in C
the documents. The inquest report mentioned the number of crime. The time
of recording the First Information Report had also been mentioned there.
Crime number was not necessary to be mentioned on the challan of the dead
bodies or letters to the doctors for the medical examination of the injured
persons and for obtaining post mortem report of the deceased. Those D
documents, undoubtedly, were prepared after preparation of panchnama and
the fact which was recorded in the panchnama, in our opinion, was not
necessary to be mentioned in the other documents and in any event, such
omission would not be of much significance. P.W.l was also a witness to the
said panchnama.
E
Medical evidence, in our opinion, supports the prosecution case. Injuries
found on the persons of the deceased and also the injured persons
categorically point out that they had been caused by firearms. The
Investigating Officer had also recovered a large number of cartridges from the
place of occurrence. The evidence brought on records also suggests that F
indiscriminate firing had been done towards Smt. Ram Shree. The window,
where she was found dead, had been broken. The gun used by Smt. Ram
Shree was also found missing.

We, therefore, do not find any reason to differ with the findings of the
learned Sessions Judge and the High Court. G
Motive on the part of the appellants and other accused persons to
commit the murder is evident. The offence was committed by the accused as
they could come to learn that Ram Autar was available in the village. Ram
Autar had shifted to Gopalganj in the State of Bihar and Ram Swarup shifted
to Mainpuri. H
68 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A All the three eye-witnesses, thus, fully supported the prosecution case.

The submissioit of Mr. Siddiqui that P. Ws. 1 and 2 did not name Hori
Lal in their statements under Section 161 of the Criminal Procedure Code, is
not correct. They had named him. The only omission on their part is that he
had not been named as using firearms. Some discrepancies are there as to
B whether the appellants. had been holding pistols or guns. In our opinion, the
same is not very material for our purpose. We, having regard to the facts and
circumstances of the case, are unable to accept the submission of the learned
counsel that the prosecution has failed to prove common object on the part
of the appellants.
c We may notice some decisions relied upon by the learned counsel. In
Baladin & Ors. v. State of Uttar Pradesh, AIR (I 956) SC 181, this Court held
that mere presence of a person does not make him a member of an unlawful
assembly. The said decision, however, has been explained by this Court in
Masalti & Ors. v. State of Uttar Pradesh, AIR (1965) SC 202, wherein it has
D clearly been held that the same had been rendered in the peculiar facts
obtaining therein, stating :

" .... .In other words, an assembly of five or more persons actuated by,
and entertaining one or more of the common objects specified by the
five clauses of S.141, is an unlawful assembly. The crucial question
E to determine in such a case is whether the assembly consisted of five
or more persons and whether the said persons entertained one or
more of the common objects as specified by S.141. While determining
this question, it becomes relevant to consider whether the assembly
consisted of some persons who were merely pa3Sh·'.e witnesses and
had joined the assembly as a matter of idle curiosity without intending
F to entertain the common object of the assembly. It is in that context
that the observations made by this Court in the case of Baladin, (SJ
AIR 1956 SC 181 assume significance; otherwise, in law, it would not
be correct to say that before a person is held to be a member of an
unlawful assembly, it must be shown that he had committed some
G illegal overt act or had been guilty of some illegal omission in pursuance
of the common object of the assembly. Jn fact, S.149 makes it clear that
if an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the
members of that assembly knew to be likely to be committed in
prosecution of that object, every person who, at the time of the
H
HORJLALv. STATEOFU.P. [S.B. SINHA,J.] 69
committing of that offence, is a member of the same assembly, is guilty A
of that offence; and that emphatically brings out the principle that the
punishment prescribed by S.149 is in a sense vicarious and does not
always proceed on the basis that the offence has been actually
committed by every member of the unlawful assembly. Therefore, we
are satisfied that the observations made in the case of Baladin, (S) B
AIR 1956 SC 181 must be read in the context of the special facts of
that case and cannot be treated as laying down an unqualified
proposition of law such as Mr. Sawhney suggests."

Reliance has also been placed in Nathu Singh Yadav v. State of Madhya
Pradesh, JT (2002) 9 SC 591, wherein again Ugar Ahir & Ors. v. The State C
of Bihar, AIR (1965) SC 277 was noticed.

No principle of law has been laid down therein. The decision was
rendered in the fact situation obtaining in those cases.

Sections 141 and 142 of the Indian Penal Code read as under :
D
"141. Unlawful assembly. An assembly of five or more persons is
designated an 'unlawful assembly', ifthe common object of the persons
composing that assembly is -

First-To overawe by criminal force, or show of criminal force, the
Central or any State Government or Parliament or the Legislature of E
any State, or any public servant in the exercise of the lawful power
of such public servant; or

Second-To resist the execution of any law, or of any legal process;
or
F
Third-To commif any mischief or criminal trespass, or other
offence; or

Fourth-By means of criminal force, or show of criminal force, to
any person, to take or obtain possession of any property, or to
deprive any person of the enjoyment of a right of way, or of the use G
of water or other incorporeal right of which he is in possession or
enjoyment, or to enforce any right or supposed right; or

Fifth-By means of criminal force, or show of criminal force, to
compel any person to do what he is not legally bound to do, or to
omit to do what he is legally entitled to do. H
70 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A Explanation-An assembly which was not unlawful when it
assembled, may subsequently become an unlawful assembly."

"142. Being member of unlawful assembly-Whoever, being aware
of facts which render any assembly an unlawful assembly, intentionally
joins that assembly, or continues in it, is said to be a member of an
B unlawful assembly."

Common object would mean the purpose or design shared by all the
members of such assembly. It may be formed at any stage.

Whether in a given case the accused persons shared common object
C or not, must be ascertained from the acts and conduct of the accused persons.
The surrounding circumstances are also relevant and may be taken into
consideration in arriving at a conclusion in this behalf.

It is in two parts. The first part would be attracted when the offence is
committed in furtherance of the common object. The offence, even if is not
D committed in direct prosecution of the common object of the assembly, Section
149 IPC may still be attracted.

However, if an offence is committed in furtherance of such common
object, the same would come within the purview of second part.

E In the instant case, all the accused persons came heavily armed. They
were seen by Balbir Singh. He was not only chased, a shot was fired at him
resulting in his sustenance of an injury on his right arm. He still ran and
informed others. Before others could conceal themselves, the appellants
reached the spot and started firing. Hazarilal was done to death by a shot fired
F from a close range. The autopsy surgeon did not say what would be the
distance from which shot was fired. It would depend upon the nature of the
weapon used. The distance in case of a pistol may be 2 feet, whereas in case
of a shot gun, it may be 3 feet. But, undoubtedly the injury resulted from a
shot fired from a short distance. In Modi's "Medical Jurisprudence and
Toxicology", 23rd Edition at page 721, it is stated:
G
"If a firearm is discharged very close to the body or in actual contact,
subcutaneous tissues over an area of two or three inches around the
wound of entrance are lacerated and the surrounding skin is usually
scorched and blackened by smoke and tattooed with unburnt grains
of gunpowder or smokeless propellant powder. The adjacent hairs are
H singed, and the clothes covering the part are burnt by the flame. If
....... '
HORI LALv. STATE OF UP. [S.B. SINHA,J.] 71
the powder is smokeless, there may be a greyish or white deposit on A
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 pistol discharged within
about two feet. In the absence of powder residue no distinction can B
be made between one distance shot and another, as far as distance
is concerned. Scorching in the case of the latter firearms is observed
within a few inches, while some evidence of scorching in the case of
shotguns may be found even at one to three ft. Moreover, these signs
may be absent when the weapon is pressed tightly against the skin
of the body, as the gases of the explosion and the flame smoke and C
particles of gunpowder will all follow the track of the bullet in the
body. Wetting of the skin or clothes by rain reduces the scorching
range. Blackening is not affected by wet surface although it can easily
be removed by a wet cloth. Blackening with a high power rifle can
occur up to about one ft. Usually if there are unburnt powder grains, D
the indication is that the shot was fired from a revolver or a pistol and
shorter the barrel of the weapon used the greater will be the tendency
to the presence of unburnt of slightly burnt powder grains."

In Major Sir Gerald Burrard's "The identification ofFireanns and Forensic
Ballistics" at page 59, it is stated : E
"Both scorching and blackening prove definitely that the shot
was fired from very close quarters, in which case an assertion by the
suspected person that the deceased fired the shot himself, cannot be
disproved if the weapon used was a pistol or revolver. But if it is F
possible to establish that the range of the shot must have been
greater than the length of the deceased's arm the matter assumes a
somewhat different complexion, and the evidence may be of great use
in bringing a murderer to book.

The extreme limit of the blackening range is well within any nonnal G
person's ann's length, and so the absence of blackening is no proof
that the shot was fired from sufficiently far away to have made it
impossible for the deceased to have been clutching either the weapon,
or the individual who is suspected of having held the weapon.

However, the presence or absence of unburnt or partially burnt H
powder grains may indicate a range which is either just within or just
72 SUPREME COURT REPORTS [2006) SUPP. IO S.C.R.

A without this critical distance; and on this account the investigation
into the question of unburnt power grains may become a matter of
primary importance."

[See also Baso Prasad & Ors. v. State of Bihar, reported in (2006) 12
SCALE354.]
B
However, no hard and fast rule can be laid down therefor.

In Russell A. Gregory's "Identification of Disputed Documents,
Fingerprints and Ballistics", 3rd Edition, at page I I 7, it is stated :

c "The distance from which a firearm was discharged can be judged
to a limited extent. If black powder has been used the distribution of
the tattoo marks made by the powder, round about the wound will
give some indication as to the distance of the weapon from the
wound. This will vary according to the caliber of the weapon and the
D make of the cartridge. If any empty cartridges have been found on the
scene of the crime, similar cartridges should be tested in the suspect
weapon and the distance judged by the dispersion of the pellets or
distribution of unburnt powder marks. Black powder however is now
rarely used in cartridges. Modern smokeless powder leaves little
markings of burnt powder beyond eight to ten inches. Within this
E distance small particles of unburnt powder may be found entangled
in the clothing or at the wound of entry. These may be of evidential
value if they correspond to the powder in the ammunition found in
the possession of the accused."

F There cannot be any doubt whatsoever that where two views are
possible, benefit of doubt must be given to the accused as was submitted by
the learned counsel. But, we have no doubt that the High Court had come
to a correct conclusion.

For the reasons aforementioned, in our considered view, there is no
G merit in this appeal. It is dismissed accordingly.

The appellants are on bail. Their bail bonds are cancelled. They are
directed to surrender forthwith before the Chief Judicial Magistrate, Mainpuri,
failing which appropriate steps be taken for their arrest.

H S.K.S. Appeal dismissed.