2015 (11) TMI 1899 - SC - Indian Laws

Murder - Refusal of the High Court to uphold the conviction of Daud Khan for an offence punishable Under Section 302 of the Indian Penal Code - FSL report falsifies the version of the eye witnesses - HELD THAT - 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. 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.

Summary

Issues Involved:
1. Delay in lodging the FIR.
2. Delay in receipt of the FIR by the Magistrate.
3. Ballistics report and its conclusiveness.
4. Blackening of the skin due to the gunshot.
5. Blood trail from the place of the incident.
6. Identification of the accused without a test identification parade (TIP).

Detailed Analysis:

1. Delay in lodging the FIR:
The defense argued that the FIR was ante-dated and actually lodged on 20th June 2004 but was made to appear as if lodged on 19th June 2004, citing overwriting on the FIR. The court found no substance in this contention after examining the original FIR and noting that no such argument was raised in the lower courts. The FIR was lodged at 10.30 pm, about an hour after the incident, which was not considered a delay. Reference to Thulia Kali v. State of Tamil Nadu and Lalita Kumari v. Government of U.P. was found irrelevant as the FIR was lodged promptly.

2. Delay in receipt of the FIR by the Magistrate:
The defense highlighted a delay of about 36/37 hours in the FIR reaching the Magistrate, citing Section 157 of the Code of Criminal Procedure. The court noted that the purpose of prompt communication is to prevent manipulation of the FIR. Given that there was no delay in lodging the FIR and no question was put to the investigating officer about this delay, the court found no adverse inference against the prosecution, referencing Brahm Swaroop v. State of U.P. and Sheo Shankar Singh v. State of U.P.

3. Ballistics report and its conclusiveness:
The defense argued that the FSL report did not conclusively link the bullet recovered from the deceased to the pistol recovered from Javed at Daud Khan's instance. The report indicated that the bullet could not be definitively linked to the pistol due to insufficient evidence. The court noted that while the report was inconclusive, it did not rule out the possibility of the bullet being fired from the recovered pistol. The court distinguished this case from Mohinder Singh v. The State, where there was a mismatch between the weapon and the bullet. In the present case, there was no such mismatch, and the forensic evidence did not conflict with the medical and ocular evidence.

4. Blackening of the skin due to the gunshot:
The defense contended that the absence of blackening on the deceased's skin indicated that the shot was fired from a distance, contrary to witness statements. Witnesses testified that the shot was fired from a distance of about one to two feet. The court referenced Modi's Medical Jurisprudence and Toxicology, noting that blackening occurs if a firearm is discharged within about two feet. The trial court concluded that the absence of blackening was due to the deceased wearing a vest and shirt, and no evidence was presented to dispute this.

5. Blood trail from the place of the incident:
The defense pointed out the absence of a blood trail from the place of the shooting to where the deceased collapsed. The court noted medical testimony indicating that blood might not spill from an entry wound and that the deceased could have run 70 feet despite being shot. The court found no reason to doubt the prosecution's version based on this evidence.

6. Identification of the accused without a test identification parade (TIP):
The defense argued that the witnesses, being from out of town, could not have identified the accused without a TIP. The court noted that this argument was not raised in the lower courts and referenced Ashok Debbarma v. State of Tripura, which held that dock identification could be relied upon if the witnesses were trustworthy. Additionally, two local witnesses who knew the accused identified them, supporting the prosecution's case.

Conclusion:
The court upheld the High Court's decision, finding no reason to reverse the conclusions regarding Daud Khan's conviction. The appeals by Daud Khan and the State were dismissed, affirming the consistency and credibility of the prosecution's evidence, including witness testimonies and forensic reports.