REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITION

CRIMINAL APPEAL NO.2093 OF 2008

Narinder Kumar …Appellant

Versus

State of Jammu & Kashmir …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. This  appeal  by  special  leave  arises  out  of  an  order  

passed by the High Court of Jammu and Kashmir in Criminal  

Appeal No.9 of 1996 and confirmation No.21/1996 whereby  

the  appellant’s  conviction  and  sentence  for  an  offence  

punishable under Section 302 RPC has been upheld and the  

appeal filed by the appellant dismissed.

2. Briefly stated, the case of the prosecution is  that  on  

13th April 1992, the deceased Shri Kola Ram along with his  

brothers, Shri Balwant Raj and Tirath Ram the appellant and  

a large number of other people belonging to Village Nagri  

Parole, Tehsil and District Kathua were returning home after  

celebrating Baisakhi Mela at Arawan a village at a distance  

of  a few kilometers from Nagri.  The mela goers from the  

village had it appears formed a small procession and were  

dancing  their  way  back  to  the  beats  of  a  drum.  The  

prosecution case is that when the participants reached near  

a rice mill,  owned by one Shri  Dharampal,  the deceased,  

Kola Ram who was also one of the revellers trampled the  

foot of the accused-appellant, Narinder Kumar.  This led to  

exchange of hot words and abuses between the deceased  

and the appellant.  Other members of the party intervened  

to cool the tempers but the appellant left the spot in anger  

only to return a short while later with a 12 bore gun in his  

hand. By that time the dancing party had reached a place  

near the shop of Vijay Kumar in Nagri Parole. The appellant  

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is alleged to have pushed aside the brother of Kola Ram with  

the barrel of his gun, fired at the deceased from close range  

and fled from the spot carrying the weapon with him. The  

deceased  fell  to  the  ground  after  receiving  the  gunshot  

injury and was quickly removed to Kathua hospital where he  

was declared dead.   

3. On receipt of information from the hospital  regarding  

the arrival of a medico legal case, Shri Darbari Lal Sharma,  

ASI swung into action and rushed to the hospital along with  

other police personnel only to be told that the deceased had  

already passed away. The assistant sub-inspector recorded  

the statement of Balwant Raj, PW which was taken as the  

FIR regarding commission of the offence that kick started  

investigation  into  the  whole  episode.  A  challan  was  

eventually  filed  before  the  Illaqa  Magistrate  against  the  

appellant who committed him to the Court of Sessions for  

being tried for offences punishable under Sections 302/323  

RPC and Section 3 read with Section 25 of Arms Act. Before  

the Sessions  Court  the accused pleaded not  guilty  to  the  

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charges and claimed a trial.  A trial accordingly followed at  

which the prosecution examined as many as 20 witnesses  

including PWs Balwant Raj, Khazan Chand, Babu Ram, Tirath  

Ram and  Jia  Lal  who  had,  according  to  the  prosecution,  

witnessed the incident. Among the others examined by the  

prosecution were Dr.  K.P. Singh who conducted the post-

mortem  of  the  deceased,  Dr.  J.L.  Fotedar,  the  forensic  

expert  and  the  police  officer  who  conducted  the  

investigation.  In  his  defence the appellant  examined DWs  

Ashok Kumar,  Ravindra Kumar and Ajay Sharma alia Bilu  

and Dr. Daljeet Singh as his witnesses.   

4. Appreciation of the evidence adduced before it led the  

trial court to hold that the prosecution had established the  

commission of an offence punishable under Section 302 RPC  

against  the  appellant  beyond  any  shadow  of  doubt.  The  

Court,  however,  found no evidence to support  the charge  

regarding the commission of the offence punishable under  

Section 3 read with Section 25 of the Arms Act and Section  

323 of the RPC. The appellant was accordingly acquitted on  

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those counts.  By a separate order appellant was sentenced  

to undergo imprisonment for life and a fine of  Rs.5,000/-  

subject to confirmation by the High Court.   

5. Aggrieved by his conviction and sentence the appellant  

preferred  criminal  appeal  no.9  of  1996  which  was  heard  

along with  confirmation reference No.21 of  1996 received  

from the Sessions Court.  By the judgment impugned in this  

appeal the High Court has dismissed the appeal filed by the  

appellant  and  confirmed  his  conviction  and  sentence  as  

already noticed earlier.   

6. Having heard Mr. Gupta, learned senior counsel for the  

appellant and counsel for the respondent – State at length  

we are of the view that there is no room for our interference  

with the judgment and order passed by the Courts below.  

The  trial  Court  as  well  as  the  High  Court  have  in  their  

respective  judgments  critically  evaluated  the  evidence  

adduced by the prosecution and the defence and correctly  

arrived at the conclusion that the prosecution had succeeded  

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in bringing home the charge of culpable homicide amounting  

to  murder  against  the  appellant  beyond  any  shadow  of  

doubt.  In the course of the hearing before us the entire  

evidence available  on record was once again read out  by  

learned counsel for the appellant in an attempt to show that  

the  appellant  had  been  falsely  implicated  and  that  there  

were serious flaws in the prosecution story that entitled the  

appellant to the benefit of doubt.  We regret our inability to  

accept that submission.  In our opinion, the prosecution case  

stands proved on the basis of the testimony of four out of  

five eye witnesses examined at the trial.  The fifth witness  

namely  Khazan  Chand  did  not  support  the  prosecution  

version and was declared hostile.   The deposition  of  Shri  

Balwant Raj, the first informant which was recorded before  

the trial Court gave a graphic account of the genesis of the  

incident leading to the death of the victim Kola Ram.  This  

witness happens to be the younger brother of the deceased.  

According to him, he along with his brothers Tirath Ram and  

Kola  Ram,  the  deceased  and  Jia  Lal  had  gone  to  village  

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Arwan  to  see  the  Baisakhi  Mela.  On  their  way  back  the  

participants were dancing Bhangra. When the bhangra party  

reached  a  place  near  the  flour  mill  of  Dharampal,  the  

deceased  trampled  the  foot  of  the  appellant  leading  to  

exchange of hot words and abuses between the two.  The  

appellant thereafter went away from the bhangra party to  

his  house  while  the  remaining  members  of  the  bhangra  

party  continued  dancing  their  way  back  to  their  houses.  

When  they  arrived  near  the  shop  of  Vijay  Kumar  the  

appellant  returned  to  the  spot  with  a  gun,  pushed  the  

witnesses aside and fired at the deceased.  The gun shot  

struck  the  deceased  in  the  belly  and  chest.  He  started  

bleeding,  and  collapsed  to  the  ground.  The  appellant  ran  

away  from  the  place  of  occurrence  with  the  gun.  The  

deceased was taken to the Nagri  Hospital  from where he  

was referred the hospital at Kathua.  On his way to Kathua  

the deceased breathed his last.  Police from Kathua came to  

the hospital and recorded his statement marked Ex. PW BR.

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7. In  cross-examination  of  this  witness,  a  number  of  

suggestions were put to him like whether the bhangra party  

members  had  consumed  alcohol,  which  suggestion  was  

denied by the witness. The witness further stated that within  

two to four minutes of the skirmish between the deceased  

and the appellant, the appellant had returned to the place  

opposite to Vijay Kumar’s shop where the dancing party had  

reached  in  the  meantime.  Despite  extensive  cross-

examination  on  various  other  aspects  nothing,  that  could  

possibly  shatter  his  testimony,  was  extracted  by  the  

defence. The witness denied the suggestion that he and his  

brothers were armed with Takwas (sharp edged weapons).  

The suggestion that  the deceased and Jia Lal  had beaten  

Anju and Billo on the spot was also denied.   So also the  

suggestion that some one from the crowd had fired a shot  

which hit  the deceased was denied by this  witness.   The  

witness stuck to his version that it was the appellant who  

had fired at the deceased leading to his death.   

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8. The statement made by PW 4 Tirath Ram, is also to the  

same  effect.   This  witness  has,  like  PW  Balwant  Raj,  

narrated  the  sequence  of  events  that  led  to  the  incident  

resulting in the death of the deceased.  According to this  

witness when the bhangra party reached near the shop of  

Vijay Kumar, the appellant came with a gun, pushed aside  

Balwant Raj the younger brother of the deceased with the  

barrel of the gun, aimed the gun at the deceased and fired  

at him as a consequence whereof the deceased collapsed to  

the  ground.   He  was  taken  to  the  Nagri  Hospital  who  

referred  him  to  Kathua  Hospital  where  he  was  declared  

dead. The cross-examination of this witness has also been  

extensive but nothing that could affect the credibility of this  

witness or the truthfulness of the version of the prosecution  

has been extracted by the defence.   

9. That brings us to the deposition of Babu Ram, the third  

eye witness examined by the prosecution in support of its  

case.   This  witness  is  not  related to the deceased or  his  

family in any way and, cannot, therefore, be described as  

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partisan in any manner.  This witness too has given a similar  

account as the one given by Balwant Raj about the genesis  

of the incident that led to the death of the deceased.  The  

cross-examination of this witness has like the other two eye  

witnesses been extensive but there is nothing worthy of any  

criticism for  the  defence  as  regards  his  credibility  or  the  

truthfulness of his version.  This witness has also denied the  

suggestion that the deceased was armed with any weapon  

or  he  had  caused  any  injury  to  Anju  or  Billo  nor  some  

unknown person had fired at the deceased from the crowd.  

The witness was firm that it was the accused who had fired  

at the deceased.  

10. To the same effect is the statement of Jia Lal, PW who  

has  testified  that  consequent  to  the  event,  the  deceased  

received  gun  shot  injury  at  the  hands  of  the  appellant.  

There  is  nothing  in  the  cross-examination  to  discredit  his  

version either.

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11. In the light of the consistent version given by all these  

eye  witnesses,  both  the  Courts  below  were  justified  in  

holding  that  the  prosecution  had  beyond  any  shadow  of  

doubt proved the guilt  of the accused appellant especially  

when there was no prior enemity between the appellant and  

the witnesses or their  respective families to even suggest  

the possibility of false implication.   

12. Two other aspects need to be noted at this stage.  The  

first is that the ocular evidence of the witnesses mentioned  

above  gets  fully  corroborated  by  the  medical  evidence  

adduced  in  the  case.  Dr.  K.P.  Singh,  Registrar  in  the  

Government  Medical  College,  Jammu,  who  conducted  the  

post mortem examination and reported the gun shot injury  

to be the cause of death.  The witness reported as under:

“A gun shot  wound in  the  epigastria  below  the Xygphi sternum on the right side 3 cm  from  midline.  Wound  in  the  round  from  measuring  circular  with  lacertated  and  averted margins with charring of skin in 1 cm  area around it and black suiting around the  skin.   No  wound  of  exit  seen.  On  opening  abdomen  peritorium  ruptured  irregularly  

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about 2 area below wound of  entry of gun  shot. Liver ruptured in the form of laceration  all  over Gall Bladder also was ruptured and  pellets were recovered.  Upper pole of right  kidney  was  ruptured  and  pellets  were  recovered  Funds  of  stomach  having  perorations  4  in  number  and  pellets  were  recovered.”

13. Deposition  of  Rajinder  Singh  Jamwal,  Scientific  

Assistant,  proved  that  the  12  bore  SBBL  gun  bearing  

No.5080  sent  to  the  Forensic  Science  Laboratory  for  

examination, was in normal working condition and had been  

fired through prior to its receipt in the lab and that cartridge  

case  marked  F/174/92  had  been  fired  from  the  gun  in  

question.  The witness further  deposed that  the suspected  

holes present on the clothes of the deceased were gunshot  

holes.  The  prosecution  led  evidence  that  the  weapon  in  

question  was  licensed  in  the  name  of  the  father  of  the  

appellant.  

14. The second aspect which is equally significant is that  

the defence has not disputed the place of occurrence or the  

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fact that the deceased died due to a gunshot injury.  On the  

contrary, the suggestions made in the cross-examination of  

the prosecution witnesses and the depositions of the defence  

witnesses acknowledged that the deceased did collapse on  

the spot because of a gunshot injury received by him.  All  

that was disputed was whether the appellant was the author  

of the injury.  What is important is that the essential facts  

constituting the substratum of the story of the prosecution  

namely  that  the  bhangra  party  had  visited  Aarwan  in  

connection with the Baishaki Mela, that they were returning  

from Aarwan to Nagri Parole, that when the party reached a  

place near Vijay Kumar’s shop a gunshot hit the deceased  

because  of  which  he  died  are  not  in  dispute.  What  the  

defence suggested was that the gunshot was fired by some  

one from the crowd and not the appellant which part of the  

version has been turned down by the trial Court as well as  

the High Court, and in our opinion, rightly so.  It is true that  

Babu Ram and Tirath Ram are brothers of the deceased but  

merely because they were related to the deceased, does not  

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make  them  unreliable  witnesses  particularly  when  in  the  

statement  recorded  by  the  police  at  Kathua  Hospital  

immediately  after  the  occurrence,  the  version  in  all  its  

essential details was given out by the witness attributing the  

gunshot injury to the appellant. In the absence of anything  

to suggest that Balawant Raj, Babu Ram, Tirath Ram and Jia  

Lal had any reason to screen the real offender and falsely  

implicate the appellant, the Courts below were justified in  

accepting their version and holding the charge against the  

appellant proved.   

15. Mr. Gupta made a valiant attempt to argue that there  

was  a  grave  suspicion  about  the  truthfulness  of  the  

prosecution case on account of the delay in the dispatch of a  

copy  of  the  FIR  to  the  Illaqa  Magistrate.  The  FIR  was  

registered on 13th April, 1992 whereas a copy of the same  

was received by the Magistrate only on 15th April, 1992 at 11  

a.m. This according to the learned counsel, cast a cloud over  

the veracity  of  the  prosecution case.  A similar  contention  

was urged by the defence before the Courts  below which  

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was repelled. There is no doubt some delay in the dispatch  

of a copy of the FIR, but the same is not per se fatal to the  

case of the prosecution. It is fairly well settled that delay in  

the  dispatch  of  a  copy  of  the  FIR  to  the  jurisdictional  

Magistrate does not by itself render the case doubtful. What  

is important is whether there is an explanation for the delay  

and if so, how plausible it is any such explanation.  Suffice it  

to  say  that  whether  or  not  delay  has  led  to  the  false  

implication of an innocent person would depend upon and  

has  to  be  determined  in  the  context  of  the  facts  and  

circumstances of each case.  No hard and fast rule can in  

that regard be prescribed.  The explanation offered by the  

prosecution in the present case has been accepted by the  

Courts below.  We see no reason to take a different view.  

16. It was also contended by Mr. Gupta that statements of  

some of  the  eye  witnesses  were  recorded  belatedly.  This  

aspect too has to be seen in the background of the facts and  

circumstances  of  the  case.  Whether  or  not  delay  has  

affected  the  credibility  of  the  prosecution  is  a  matter  on  

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which  no  strait-jacket  formula  can  be  evolved  nor  any  

thumb rule prescribed for universal application. The Courts  

below have, in our opinion, correctly appreciated this aspect  

and rejected the contention that the delay in the recording  

of the statements of some of the witnesses was fatal to the  

case.  That  is  specially  so  when  the  prosecution  version,  

based on the statement made by Balwant Raj was known on  

the date of the incident itself. PW Balwant Raj had in the  

said statement attributed the gunshot  injury sustained by  

deceased  to  the  appellant.  Delay  in  the  recording  of  the  

statements  of  the  other  eye  witness  two  of  whom  were  

brothers of the deceased was not, therefore, used to falsely  

implicate the appellant.   

17. A feeble attempt was made by Mr. Gupta to argue that  

even if the appellant is proved to have fired at the deceased  

there  was  a  possibility  that  any  such gunshot  injury  was  

caused  by  him  in  private  defence.  The  circumstances  

appearing in the case, argued Mr. Gupta, probablised that  

the injury inflicted on the deceased was in exercise of the  

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right  of  private  defence  of  the  appellant.  We  have  no  

hesitation in rejecting that submission also.  The argument  

has, in our opinion, been made in total despair.  We say this  

because  there  is  nothing  on  record  to  suggest  that  the  

deceased had at any stage either assaulted the appellant or  

otherwise  caused any injury  to him to  justify  infliction  of  

gunshot injury upon him in defence.  The depositions of the  

witnesses examined at the trial are consistent that after the  

initial exchange of hot words and abuses on account of the  

deceased trampling the foot of the appellant, the appellant  

had left the place and re-appeared sometimes later with a  

gun in his hand.  It also appears from the depositions of the  

witnesses  that  the  appellant  had without  any  provocation  

pushed the brother of the deceased with the barrel of the  

gun  and  shot  the  appellant.  It  is,  therefore,  difficult  to  

appreciate how such an act could be described as one in self  

defence.  The trial Court as also the High Court have come  

to the conclusion that the deceased was not armed nor was  

any attempt made by him on the life of the appellant.  The  

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plea of the private defence, therefore,  fails  and is hereby  

rejected.                   

18. In the totality of the above circumstances, we see no  

reason to  interfere  with  the judgment  of  the  High  Court.  

The appeal fails and is accordingly dismissed.

………………………….……….…J. (AFTAB ALAM)

……………………….………….…J. (T.S. THAKUR)

New Delhi: July 21, 2010

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