TMI Blog2015 (11) TMI 1899X X X X Extracts X X X X X X X X Extracts X X X X ..... edical 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. There are no reason to take a different view. There are 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 - there are 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. Appeal dismissed. - Madan B. Lokur And S.A. Bobde, JJ. For the Appellant : Mr. S.S. Shamshery, AAG, Mr. Amit Sharma, Adv., Ms. S. Spandana Reddy, Adv., Ms. Ruchi Kohli, AOR. For Respondent : Ms. Namita Choudhary, AOR, Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s arrested on 28th July, 2007. 6. A charge-sheet was filed against all three persons and it was alleged that Daud Khan was guilty of offence punishable Under Section 302 of the Indian Penal Code and Section 3 read with Section 25 of the Arms Act while the others were guilty of an offence punishable Under Section 302 of the Indian Penal Code read with Section 34 thereof and Section 109 read with Section 302 thereof. 7. The case was tried by the Additional District Sessions (Fast Track) Camp Nimbahera, District Pratapgarh as Sessions Case No. 103 of 2005. In his judgment and order, the Trial Judge convicted Daud Khan of an offence punishable Under Section 302 of the Indian Penal Code and Section 3 read with Section 25 of the Arms Act. Javed Beg was convicted of an offence punishable Under Section 3 read with Section 25 of the Arms Act but was found not guilty of an offence Under Section 302 read with Section 34 of the Indian Penal Code. Nitin Sindhi was found not guilty of any offence. The accused persons were appropriately sentenced. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the skin which would have happened had the shot been fired from a close range. It was sought to be suggested that the eye witnesses were perhaps not present when the incident occurred and a story was made up to involve Daud Khan. 12. The defence contended that the incident did not occur at the place where it is said to have occurred. In support of this contention, it was argued that the body of Nand Singh was found 70 (seventy) feet away, across the road and near the tyre repair shop, a long distance from where he was allegedly sitting in Bathra Telecom. No blood was found where the shooting took place, but blood was found only near the tyre repair shop. This was most unlikely particularly when Nand Singh had been shot near a vital part of his body on the chest. Therefore, not only was the presence of witnesses suspicious but the place of occurrence was also doubtful. 13. The Trial Court did not place any reliance on the newspaper reports since there was nothing to show that a report had been filed with the concerned police station that unknown persons had committed the crime. The Trial Court also found that the time taken for lodging the FIR (about one and a half hours) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovery was at the instance of Daud Khan. 17. It was argued that the news report that appeared the next day was obtained from the Superintendent of Police and that was to the effect that some unknown persons were involved in the shooting. The High Court rejected this submission and held that news reports could not be treated as evidence. This submission was faintly adverted to before us as well, but is hardly decisive one way or the other. 18. It was urged that earth stained with the blood of Nand Singh was recovered about 70 (seventy) feet away from the place of incident. This was an indication that the shooting did not take place at Bathra Telecom but elsewhere. It was urged that the High Court was in error in disbelieving DW-1 Chhotu Khan who stated that someone from a truck near his tyre shop had shot Nand Singh. The High Court was of the opinion that the reason why the blood stains were found elsewhere was because Nand Singh had run away after being shot and had fallen down about 70 (seventy) feet away. It is for this reason also that the High Court disbelieved DW-1 Chhotu Khan whose version of the events was held to be an afterthought. 19. Finally, it was urged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the copy of the FIR was received by him on 21st June 2004 at about 11.00 am. According to learned Counsel for Daud Khan this was in violation of Section 157 of the Code of Criminal Procedure, 1973 (for short 'the Code of Criminal Procedure) which requires a copy of the FIR (called a special report or an express report) to be sent forthwith to the concerned Magistrate [1] 26. The interpretation of Section 157 of the Code of Criminal Procedure is no longer res integra. A detailed discussion on the subject is to be found in Brahm Swaroop v. State of U.P. (2011) 6 SCC 288 which considered a large number of cases on the subject. The purpose of the forthwith communication of a copy of the FIR to the Magistrate is to check the possibility of its manipulation. Therefore, a delay in transmitting the special report to the Magistrate is linked to the lodging of the FIR. If there is no delay in lodging an FIR, then any delay in communicating the special report to the Magistrate would really be of little consequence, since manipulation of the FIR would then get ruled out. Nevertheless, the prosecution should explain the delay in transmitting the special report to the Magistrate. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-2004 as FIR No. 116 of 2004 and it was altered on 20-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab (1972) 2 SCC 640 wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. 63. Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the Appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 'E' in (is) a serviceable firearm. However, it has the tendency to misfire the ammunition. 2. The examination of the barrel residue indicates that submitted one.32 country made revolver (W/1) had been fired. However, the definite time of its last fire could not be ascertained. 3. Based on the stereo and microscopic examination, it is the opinion that it has not been possible to link definitely one 7.65 mm cartridge case (C/1) from packet 'E' and one.32 copper jacket bullet (B/1) from packet 'D' with submitted one.32 revolver (W/1) from packet 'E' due to lack of sufficient evidence. 31. A perusal of the FSL report suggests that it is not conclusive one way or the other whether the bullet extracted from the body of Nand Singh had or had not been fired from the pistol recovered from Javed at the instance of Daud Khan. In view of this, learned Counsel placed reliance on Mohinder Singh v. The State 1950 SCR 821. The facts of that case were quite unique. The deceased-Dalip Singh was said to have suffered two injuries, one inflicted on his chest with a gun used by Appellant-Mohinder Singh and the other near his ear while he was lying sideways, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution had to prove was that these shots were fired by two persons and not by one man, and both the shots were fired in such manner and from such distance as is alleged by the eye witnesses. There is, in our opinion, a gap in the prosecution evidence on a most fundamental point and the error which has been committed by the courts below is to ignore the gap...... In view of this gap in the prosecution evidence, this Court gave the benefit of doubt to the Appellant-Mohinder Singh. Additionally, this Court did not believe the three eye witnesses since two of them were chance witnesses and not altogether independent persons while the third was a partisan witness and his testimony was otherwise improbable since he claimed to have witnessed the shooting after he had himself been shot at the back of the neck. 34. In so far as the present appeal is concerned, the facts of the case are quite different. Although the FSL report was inconclusive in the sense that it could not be stated whether the extracted bullet could be 'definitely' linked to the recovered weapon, but there was no doubt that the extracted bullet was capable of being fired from the recovered gun. In other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as it may, at this stage, reference may be made to Modi's Medical Jurisprudence and Toxicology [22nd edition page 354] wherein it is noted, with reference to blackening of the skin in a gunshot wound, as follows: If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattoed with unburnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a grayish or white deposit on 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 a pistol discharged within about two feet.... 38. Under the circumstances, in all likelihood if Nand Singh was in fact shot at from a close range of about two feet or less, there would have been some blackening of his skin. The Trial Court ack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions and discussion 42. It was contended by Daud Khan that the three chance witnesses, PW-7 Mahabir Singh, PW-23 Narender Singh and PW-24 Rishi Raj Shekhawat were all from out of town. As such, they could not have identified Daud Khan or Javed. It was further contended that no test identification parade (for short TIP) was conducted and reliance could not have been placed only on their dock identification. 43. No such argument was raised by Daud Khan either in the Trial Court or in the High Court and we see no reason to permit such an argument being raised at this stage. 44. That apart, it was recently held in Ashok Debbarma v. State of Tripura (2014) 4 SCC 747 that while the evidence of identification of an accused at a trial is admissible as a substantive piece of evidence, it would depend on the facts of a given case whether or not such a piece of evidence could be relied upon as the sole basis for conviction of an accused. It was held that if the witnesses are trustworthy and reliable, the mere fact that no TIP was conducted would not, by itself, be a reason for discarding the evidence of those witnesses. In arriving at this conclusion, this Court relied upon a seri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rverse. On the contrary, they have been accepted by the Trial Court and the High Court. We see no reason to take a different view. 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. [1] 157. Procedure for investigation. (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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