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SUPREME COURT OF INDIA
Madan B. Lokur, S.A. Bobde, JJ.
State of Rajasthan – Appellant
Versus
Daud Khan – Respondent
CRIMINAL APPEAL NO.126 OF 2010
WITH
Daud Khan – Appellant
Versus
State of Rajasthan – Respondent
CRIMINAL APPEAL NO. 351 OF 2010
Decided On : 04-11-2015
(1972) 3 SCC 393; (2014) 2 SCC 1 – Referred
(b) Code of Criminal Procedure, 1973 – Section 157 – FIR lodged without delay – Delay in communication to Magistrate would not matter – Delay could be explained by prosecution if asked for – Prosecution not obliged to explain the delay suo motu. (Para 26)
(2011) 6 SCC 288; (2013) 12 SCC 539; (2014) 12 SCC 312; (1994) 5 SCC 188; (2013) 12 SCC 316 – Relied upon
(c) Criminal trial – Ballistic report – FSL report not definite one way or the other – However no mismatch found between the bullet and the gun – Bullet recovered from body of deceased capable of being fired from recovered gun – Medical and ocular evidence establishing that the appellant had shot with a gun – No question asked during trial about which gun – No infirmity in conviction. (Para 34)
1950 SCR 821; (2010) 10 SCC 259 – Distinguished
(d) Criminal trial – Allegation of gunshot fire from close range – No blackening of skin found – Trial opining that it might be because of vest and shirt worn by deceased – Cloths not examined, neither any questions put to prosecution in this regard – Trial court view possible one – No reason to dispute conclusion of trial court. (Para 38)
(e) Criminal trial – Appreciation of evidence – Deceased ran for 70 feet but no trace of any blood droppings on the trail – Medical doctors opining that it might not be improbable – Medical doctors not examined – Probability cannot be ruled out. (Para 40, 41)
(1994) 5 SCC 188 – Distinguished
(f) Criminal trial – Test identification – No TI parade conducted – Two witnesses from out of town identifying appellant in court – Issue not raised before trial court or High Court – Cannot be raised before Supreme Court – Besides court identification can be a reliable piece of evidence – Besides, two other local witnesses identifying the appellant – In all five witnesses testifying to the incident – No reason to disbelieve them. (Para 46)
(2014) 4 SCC 747; AIR 1958 SC 350; (1975) 4 SCC 480; (1970) 3 SCC 518; (1998) 4 SCC 605; (2002) 7 SCC 295; (2010) 6 SCC 1 – Relied upon
Facts of the case:
On 19th June, 2004 at about 9.30 p.m. while Nand Singh and his friends Nitin Sindhi (accused No.3) and Narendra Kumawat were sitting in a restaurant, Javed Beg (accused No.2) and Daud Khan (accused No.1) came there on a motor cycle.
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.
The Trial Judge convicted Daud Khan of an offence punishable under Section 302 of the IPC 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 IPC. Nitin Sindhi was found not guilty of any offence. The accused persons were appropriately sentenced.
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.
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.
Finding of the Court:
No interference is required.
Result: Appeals dismissed.
Based on the provided legal document, the following key points can be summarized:
The timing of FIR lodging is crucial; if the FIR is lodged without delay, delays in communication to the Magistrate are generally not material, and such delays can be explained by the prosecution if questioned (!) .
The issue of delay in communication or reporting in the FIR that is not raised before the trial court or High Court cannot be permitted to be raised before the Supreme Court (!) .
The ballistic evidence, including the FSL report, indicates that the bullet recovered from the victim could have been fired from the weapon recovered from the accused, and there is no conclusive evidence to disprove this link (!) (!) .
The absence of blackening of the skin, which might be expected in close-range gunfire, was explained by the clothing worn by the victim, and no evidence was provided to contradict the possibility that the shot was fired at close range (!) (!) .
The blood trail and the location of blood stains are explained by the victim's movement after being shot, and the medical evidence supports the possibility of the victim running a significant distance before collapsing (!) (!) .
Identification of the accused through dock identification is considered reliable, especially when witnesses are trustworthy and the identification is corroborated by other evidence, even in the absence of a test identification parade (!) (!) .
The overall collection of evidence, including eyewitness testimony, ballistic reports, and medical findings, collectively supports the conviction, with no substantial reason to doubt the credibility of the witnesses or the prosecution's case (!) .
The delays in FIR forwarding and communication, when not shown to cause prejudice, do not affect the integrity of the case or the evidence (!) (!) .
The court relies on the collective assessment of facts rather than isolated doubts, leading to the conclusion that the evidence sufficiently establishes the guilt of the accused (!) .
Both the conviction and the sentences imposed are upheld, and the appeals challenging these findings are dismissed (!) .
JUDGMENT
Madan B. Lokur, J.
1. These appeals are directed against the judgment and order dated 11th November, 2008 passed by the High Court of Judicature for Rajasthan at Jodhpur. Criminal Appeal No.126 of 2010 has been filed by the State of Rajasthan challenging the refusal of the High Court to uphold the conviction of Daud Khan for an offence punishable under Section 302 of the Indian Penal Code (for short the IPC). Criminal Appeal No. 351 of 2010 is filed by Daud Khan challenging his conviction for an offence punishable under the first part of Section 304 of the IPC.
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.
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 IPC 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 IPC 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 IPC 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 IPC. 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 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 aga
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