TaxTMI 
TaxTMI 
2015 (11) TMI 1899
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.... 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 l....
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....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 (1972) 3 SCC 393 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. 11. It was also contended that the mere recovery of a pistol (from Javed) was not enough....
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....of the eye witnesses, it was held that Daud Khan shot Nand Singh at the place of occurrence and there 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 Indian Penal Code. 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....
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....ced 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 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. (2014) 2 SCC 1 (Constitution Bench). 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 ass....
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.... of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 Code of Criminal Procedure 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 Code of Criminal Procedure. 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. (2012) 6 SCC 107 wherein the said position has been explained as under in paras 62-63: (S....
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....be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case [Rattiram v. state of Madhya Pradesh, (2013) 12 SCC 316]. 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 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 ....
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....t 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....
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....nstance 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. 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 s....
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....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 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 expla....
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....between the gun and Nand Singh but these do not take away from the substance of the case of the prosecution nor 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 w....