# Tushar (In Jail) v. State of U.P

- **Citation:** (2020) 9 ILRA 806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-02
- **Case number:** Criminal Appeal No.1557 of 2015
- **Bench:** Suneet Kumar, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tushar-in-jail-v-state-of-u-p-46080
- **Pages:** 16

## Headnote

Appeal against Conviction U/S Section 302
& 307 of IPC

Criminal Law-Delay in Lodging F.I.R.- No
adverse inference\ for delay in lodging F.I.R.
(Para 19)

Prosecution version cannot be rejected solely on
the ground of delay in lodging F.I.R. (Para 22)

F.I.R. is not Encyclopaedia
Only essential and broad picture needs to be
stated in the F.I.R. (Para 35)

Section 313 of CrPC. - (Power to examine the
accused) - Once a plausible version has been
put in defence at the examination stage, then it
is for the prosecution to negate each defense
plea. (Para 40)
Importance of motive in direct witnesses-
Where the direct witness is worthy of credence
and can be believed then question of motive
does not carry much weight. (Para 61)

Appellant was rightly held guilty by the trial
court.

Appeal dismissed. (E-2)

List of Cases cited: -

## Text

_Characters 0–39,944 of 52,313. This is a partial read: ask again with offset=39944 for what follows._

806 INDIAN LAW REPORTS ALLAHABAD SERIES
taken into custody forthwith to serve out
the sentence imposed on him by the trial
court.

32. A copy of this order be certified
to the court concerned.
----------
(2020)09ILR A806
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAVI NATH TILHARI, J.

Criminal Appeal No.1557 of 2015

Tushar ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Vinod Singh, Sri Rajeev Trivedi, Sri
Rohit Verma, Sri Shailesh Pandey, Sri S.S.
Tripathi

Counsel for the Opposite Party:
A.G.A., Sri Rahul Kumar Pandey

Appeal against Conviction U/S Section 302
& 307 of IPC

Criminal Law-Delay in Lodging F.I.R.- No
adverse inference\ for delay in lodging F.I.R.
(Para 19)

Prosecution version cannot be rejected solely on
the ground of delay in lodging F.I.R. (Para 22)

F.I.R. is not Encyclopaedia
Only essential and broad picture needs to be
stated in the F.I.R. (Para 35)

Section 313 of CrPC. - (Power to examine the
accused) - Once a plausible version has been
put in defence at the examination stage, then it
is for the prosecution to negate each defense
plea. (Para 40)
Importance of motive in direct witnesses-
Where the direct witness is worthy of credence
and can be believed then question of motive
does not carry much weight. (Para 61)

Appellant was rightly held guilty by the trial
court.

Appeal dismissed. (E-2)

List of Cases cited: -

1. Ravinder Kumar & anr. Vs St. of Punj.

2. Sahebrao & anr. Vs St. of Mah.

3. Palani Vs St. of T.N.

4. Amar Singh Vs Balwinder Singh & 4ors. &
Tara Singh Vs St. of Punj.

5. V.K. Mishra & ors. Vs St. of Uttar. & 6 ors. Latesh
Vs St. of Maha.

6. M. Abbas Vs St. of Kerala

7. Parminder Kuar @ P.P. Kaur @ Soni Vs St. of
Punj

8. Sampath Kumar Vs Inspector of Police,
Krishnagiri

9. Sachin Kumar Singhraha Vs St. of Madhya
Pradesh

10. Smt. Shamim Vs State of (GNCT of Delhi)

11. Shivraj Bapuray Jadhav & ors. Vs St. of
Karnataka

(Delivered by Hon'ble Suneet Kumar, J.)

1. The instant appeal assails the
correctness of the judgment and order dated 16
February 2015, passed by the Additional
Sessions Judge, Court No. 3, Bulandshahr, in
State of U.P. vs. Tushar @ Golu, arising from:

i. Sessions Trial No. 3A of 2013
Crime No. 428 of 2012 under Sections 302
and
307
IPC;
9 All. Tushar Vs. State of U.P.
807

ii. Sessions Trial No. 339 of 2013
Crime No. 430 of 2012 under Section 25 of
Arms Act, P.S. Anoopshahar;

2. Both the cases were heard and
decided by a common judgment.

3. The Additional Sessions Judge has
convicted the appellant, namely, Tushar @
Golu with life imprisonment and a fine of Rs.
50,000/- under Section 302 IPC and on default
of payment of fine the appellant shall further
undergo simple imprisonment of 1 year.
Appellant is further convicted and sentenced
to undergo life imprisonment and a fine of Rs.
50,000/- under Section 307 IPC and on default
of payment of fine he shall further undergo
simple imprisonment of 1 year. The appellant
Tushar @ Golu is further convicted and
sentenced to undergo 3 years imprisonment
and fine of Rs. 10,000/- under Section 25 of
Arms Act and in default of payment of fine he
shall further undergo simple imprisonment of
3 months. All sentences made to run
concurrently.

4. Narrated concisely the prosecution
case against the appellant is that on the date
of occurrence i.e. 30.11.12, the accusedappellant Tushar @ Golu came to the house
of Kapil after sunset with an intention to
kill him. The appellant resorted to firing on
Kapil, people of the locality gathered,
appellant left the place. Kapil in the night
of 30.11.12 proceeded to Anoopshahr with
an intention to settle the dispute with the
appellant. It is alleged that while going to
Anoopshahar, the appellant at village
Birauli fired on him, consequently, Kapil
succumbed to the injury. Rahul Kumar,
driver, who was sitting adjacent to Kapil in
the vehicle received gun shot injury. Rahul
Kumar informed the mother of the
informant over the mobile phone of the
incident which had taken place at about
12:30 in the night of 30.11.12 and 1.12.12.

5. Shilpi Sharma (P.W.-1) informant
lodged a written complaint (exhibit Ka-1)
on 1.12.12 at about 11:30 AM with the
police
station
Anoopshahar,
District
Bulandshahar, alleging that she is resident
of Mohalla Lakshmi Nagar, residing with
her mother Vijay Laxmi and her elder
brother Kapil (deceased), his wife and
children. On the date of the incident she
was at Lucknow along with her mother,
wife and children of Kapil to attend
marriage ceremony. Her brother Tushar @
Golu (appellant) lives at Anoopshahar
along with his family. The appellant and
his wife Mayuri @ Neha regularly
misbehaved with them, consequently, they
were separated by giving their share of the
property. Despite this, the appellant and his
wife were demanding larger share in the
property, thus held grudge and enmity with
them. On 30.11.12 at about 9:30 PM Kapil
informed her on phone that Tushar @
Golu/appellant had come to their house in
the evening with an intention to kill Kapil,
appellant resorted to firing. He left the
place after people of the locality gathered.
It was further alleged that Kapil informed
her that he is proceeding to Anoopshahar to
meet his brother Tushar @ Golu/appellant
to settle the matter with him. On the way to
Anoopshahar, Tushar apprehended Kapil at
Birauli,
caused
firearm
injury,
consequently, Kapil succumbed to the
injury. Rahul Kumar, (PW-2) who was
sitting on the adjacent seat of the vehicle
also received gun shot injury, he was
referred to Delhi for treatment. Rahul
Kumar (PW-2) informed mother of the
informant of the incident on mobile phone.
The incident had taken place at about 12:30
in the night. He further informed that
808 INDIAN LAW REPORTS ALLAHABAD SERIES
villagers have informed the police of the
incident.

6. After the incident the dead body of
Kapil and injured Rahul Kumar (PW-2) were
taken to CHC Anoopshahar, he was reffered to
District Hospital Bulandshahar. The injury
report of Rahul Kumar (exhibit Ka-4) was
prepared by Dr. Rajeev Verma at about 3:40
AM on 1.12.12. The following injuries were
found on the body of Rahul Kumar (PW-2):-

"Injury of P.W.-2 Rahul Kumar:

"(1) Lacerated wound 1 c.m. x 1
c.m. depth not probed present on (Rt) chest
middle part, lateral aspect, 16 cm away
from mid line, margin are inverted, KUO
advised X Ray"

7. The autopsy of the deadbody of Kapil
was conducted on 1.12.12 at about 5:00 PM,
postmortem report (exhibit Ka-5) was prepared
by Dr. Pankaj Kumar (P.W.7). The following
antemortem injuries were noted:-

Injuries on the body of deceased:

"(1) Firearm wound of entry size
1 c.m. X 1 c.m. X chest cavity deep present
on left side chest on lateral aspect. Margins
invested, 6 c.m. below from left nipple at
4'o clock position. On exploration left lung,
left
pleura,
spleen
and
liver
found
lacerated. About 800 ml. of blood present
in abdominal cavity.

(2) Firearm wound of exit size 2.5
cm x 2 cm x abdominal cavity deep, 26 cm
below from right nipple at right side of the
abdomen, lateral aspect at 7 o' clock
position, margins everted.

On exploration injury number 1
and 2 are communicating to each other.

Death
due
to
shock
and
haemorrhage as a result of antemortem
injuries."

8. The investigation of Case Crime
No. 428/12 under Sections 302, 307 IPC
was carried out by two Investigating
Officers (hereinafter referred to as "I.O."),
I.O. Keshav Singh (P.W.-7), prepared the
inquest report (exhibit Ka-6). He visited
place of occurrence and prepared the site
plan (exhibit Ka13). He collected blood
stained earth, as well as, plain earth from
the place of occurrence. One empty
cartridge 315 bore was recovered from the
place of occurrence (exhibit Ka-14). The
I.O.
recorded
the
statement
of
the
witnesses. The appellant came to be
arrested on 2.12.12 from Karanpur village,
a Pistol-315 bore and two live cartridges
315 bore was recovered from possession of
the appellant (exhibit Ka-15). On the same
day Case Crime No. 430/12 under Section
25 of Arms Act was registered against the
appellant Tushar @ Golu, its investigation
was handed over to Sub Inspector Lalit
Harish Chandra Gangwar (P.W.-10). On
7.12.12 team of field unit Bulandshahar
collected necessary samples form the
vehicle (Gypsy) of the deceased bearing
registration number H.P.-27-0067 from the
place of occurrence and prepared recovery
memo (exhibit Ka-16).

9. The second I.O. of Case Crime No.
428/12, Hari Ram Singh Yadav (P.W.-11)
took over the investigation on 10.12.l2.
Appellant Tushar @ Golu was taken on
remand and on the pointing of the appellant
the Maruti Car (Swift Desire) bearing
registration
number
D.L.5CE
0739
employed
by
the
appellant
in
the
commission of the offence was recovered
from a sugar cane field at village Torai
(exhibit Ka-20), a site plan (exhibit Ka-21)
9 All. Tushar Vs. State of U.P.
809
was prepared. The statement of injured
Rahul Kumar (PW-2) was recorded on
20.12.12. Pistol of 315 bore, 2 live
cartridges 315 bore recovered from the
appellant on 2.12.12 and empty cartridge of
315 bore recovered from the place of
occurrence on 1.12.12 was sent to the
Forensic Science Laboratory Agra. On
20.2.13 the I.O. filed charge-sheet no.
20/13 (exhibit Ka-23) under Sections 302,
307 IPC in Case Crime No. 428/12.

10. P.W.-10 S.I. Lalit Harish Chandra
Gangwar, I.O. of Case Crime No. 430/12
under Section 25 of Arms Act recorded the
statement of witnesses including the
informant.
He
visited
the
place
of
occurrence and prepared the site plan
(exhibit Ka-17). Sanction of District
Magistrate (exhibit Ka-18) was obtained to
prosecute the appellant under the Arms
Act. After investigation on 19.1.13 chargesheet no. 6/13 under Section 25 of Arms
Act was filed against the appellant in Case
Crime No. 430/12. Both cases were
committed to the Court of Sessions by the
Chief Judicial Magistrate, Bulandshahar,
on 10.4.13 after taking cognizance. On
13.7.13 charges under Section 307, 302
IPC and Section 25 Arms Act was framed
against the appellant. The appellant denied
the
charges
and
claimed
trial.
The
prosecution was called upon to adduce
evidence in support thereof.

11. To bring home the guilt of the
appellant, prosecution has examined 13
witnesses.

12. Incriminating evidence and
circumstances were put to the appellant
under Section 313 Cr.P.C., appellant denied
all of them and claimed false implication.
The appellant stated that it is wrong, as
well as, false that near village Birauli he
chased and fired upon Kapil, and of
causing injury to Rahul Kumar (PW-2). He
further stated that Shilpi Sharma (P.W.-1)
wants to grab property. The deposition of
Rahul
Kumar
(P.W.-2)
and
Pranav
Bharadwaj @ Appu (P.W.-3) is false and
wrong. He further stated that the case was
wrongly investigated, false recovery has
been shown. On being confronted with the
report of Forensic Science Laboratory
Agra, the appellant stated that he has
nothing to say about it. He further stated
that he desired to present documentary
evidence and expert evidence.

13. After statement of the appellant
under Section 313 Cr.P.C., the defense
produced Constable Nahar Singh as (D.W.-
1) and Dr. R.K. Lal as (D.W.-2) and
documentary evidence (paper No. 50A to
59A; 70A to 74A).

14. The trial court held that the
appellant committed the alleged offence
and
prosecution
established
the
circumstances, proving the guilt beyond
reasonable doubt for charges punishable
under Section 307 and 302 IPC and under
Section 25 of Arms Act. Accordingly,
appellant-Tushar @ Golu was convicted
and sentenced as noted in para 3 above.

15. Shri Shailesh Pandey, learned
counsel for the appellant has made the
following submissions:

i. FIR was lodged belatedly after
due thought and consultation;

ii. Rahul Kumar (P.W.-2) , the
injured witness, nor, Pranav (P.W.-3) has
lodged the FIR;

iii. there is no motive to commit
the offence;
810 INDIAN LAW REPORTS ALLAHABAD SERIES

iv. Pranav Bharadwaj @ Appu
(P.W.-3) is not mentioned in the FIR as a
witness of the incident but has been
subsequently
introduced/planted,
his
presence at the place of occurrence, is
doubtful;

v. presence of the appellant on
the spot and causing firearm injury as
reflected from the postmortem report
makes the prosecution case doubtful;

vi. single gun shot fired from the
running car could not have made entry
from the left chest and exit wound from the
right abdomen of the deceased, who was
driving the vehicle;

vii. deceased Kapil could have
incurred the injury only if the deceased
turned around at about 180 degrees which
is not possible while driving the vehicle;

viii. murder of Kapil Sharma was
committed by Rahul Kumar (P.W.-2) and
Pranav (P.W.-3), the injury of Rahul
Kumar (P.W.-2) is self inflicted, there is
blackening and tattooing;

ix.
there
is
no
blackening/tattooing on the body of the
deceased though it is alleged that the firing
was made from a distance of 2-3 feet;

x. the prosecution has miserably
failed to prove its case beyond reasonable
doubt.

16. Per contra, Shri Krishna Pahal,
learned
Additional
Advocate
General
appearing for the State contended that the
prosecution has established the guilt of the
appellant in the commission of the crime in
this case. The FIR version has been fully
supported by medical and ocular evidence,
based on the said evidence, the trial court
rightly
convicted
the
appellant.
The
impugned
judgment
warrants
no
interference.

17. No one appeared for the
informant.

18. We have considered the rival
contentions and perused the impugned
judgment and order of the trial court and
material placed on record with the
assistance of the learned counsels.

19. So far as the question of delay in
lodging FIR, it is well settled, that if delay
in lodging FIR has been explained from the
evidence on record, no adverse inference
can be drawn against prosecution merely
on the ground that the FIR was lodged with
delay. There is no hard and fast rule that
any length of delay in lodging FIR would
automatically render the prosecution case
doubtful. Supreme Court in Ravinder
Kumar & Anr. Vs. State of Punjab1, has
observed;

"The attack on prosecution cases
on the ground of delay in lodging FIR has
almost bogged down as a stereotyped
redundancy in criminal cases. It is a
recurring feature in most of the criminal
cases that there would be some delay in
furnishing the first information to the
police. It has to be remembered that law
has not fixed any time for lodging the FIR.
Hence a delayed FIR is not illegal. Of
course a prompt and immediate lodging of
the FIR is the ideal.......

20. In Sahebrao & Anr. Vs. State of
Maharashtra2, Apex Court has held:

"The settled principle of law of
this Court is that delay in filing FIR by
9 All. Tushar Vs. State of U.P.
811
itself cannot be a ground to doubt the
prosecution case and discard it. The delay
in lodging the FIR would put the Court on
its guard to search if any plausible
explanation has been offered and if offered
whether it is satisfactory."..

21. Recently in Palani V State of
Tamilnadu3, it was observed by Supreme
Court that in some cases delay in
registration of FIR is inevitable. Even a
long delay can be condoned if witness has
no motive for falsely implicating the
accused.

22. From the above discussed
exposition of law, it is manifest that
prosecution version cannot be rejected
solely on the ground of delay in lodging
FIR. Court has to examine the explanation
furnished by prosecution for explaining
delay. There may be various circumstances
for delayed FIR.

(Refer:
Amar
Singh
vs.
Balwinder Singh & Other4 and Tara
Singh vs. State of Punjab5)

23. In the present case, on 30.11.12 at
about 9:30 PM the appellant came to the
residence of the deceased Kapil, fired upon him
with an intention to kill, thus, attempted to
murder Kapil. In the intervening night of
30.11.12 and 1.12.12 at about 00:30 hours near
village Birauli, the appellant fired on the vehicle
being driven by Kapil. The firearm injury
resulted in the death of Kapil. The bullet fired by
the appellant on the deceased Kapil passed
through his body and caused grievous firearm
injury to Rahul Kumar (PW-2) which was
sufficient to kill him in ordinary course. Thus, the
appellant had attempted to murder Rahul Kumar.

24.

The
aforesaid
facts
are
substantiated by the averments made in the
first information report lodged by Shilpi
Sharma (P.W.-1), and the eyewitness
account of injured Rahul Kumar (P.W.-2)
and Pranav Bharadwaj @ Appu (P.W.-3),
medical evidence and the report of Forensic
Science Laboratory Agra (Exhibit Ka-36).
Shilpi Sharma (P.W.-1) categorically stated
that she along with her mother, wife and
children of the deceased Kapil were in
Lucknow to attend a marriage ceremony.
On 30.11.12 at about 9:30 PM, she
received a call from Kapil informing her
that appellant Tushar @ Golu came to the
house and resorted to firing with an
intention to kill him. She further stated that
Kapil had informed her that he is going to
Anoopshahar to settle the matter with
Tushar @ Golu. In the night Rahul Kumar
(P.W.-2) driver of Kapil informed her
mother about the incident that while they
were on their way to Anoopshahar,
appellant and his friends surrounded them
near village Birauli and resorted to firing
causing death of Kapil. After receiving the
information at about 12:30 in the night,
P.W.-1 proceeded for Bulandshahr within
half an hour. From Bulandshahr she
directly went to Anoopshahar and filed a
written complaint with the thana. She was
not aware in which hospital Rahul Kumar
(P.W.-2) was admitted.

25. Rahul Kumar (P.W.-2) in his
examination-in-
chief
stated
that
he
informed about the incident to the mother
of the deceased Kapil. Pranav Bharadwaj
@ Appu (PW-3) was accompanying them
but fled from the place of occurrence after
the incident. PW-2 further stated that he
was seriously injured by the bullet that hit
Kapil, consequently, he came out of the car
and fled for his life to reach a nearby cane
crusher. After sometime people at the
crusher informed the police; police arrived
within 20-25 minutes. PW-2 further stated
812 INDIAN LAW REPORTS ALLAHABAD SERIES
that police had taken him to Government
Hospital, Anoopshahr, from there he was
referred to District Hospital Bulandshahr.
After receiving first aid at Government
Hospital Bulandshahr he was referred to
Delhi. The dead body of Kapil was also
brought along with him to the Bulandshahr
Government Hospital. He further stated
that he was subsequently admitted to Guru
Teg Bahadur (for short G.T.B.) Hospital
Delhi. After 2 to 3 days Shilpi Sharma
(P.W.-1) and Pranav Bharadwaj @ Appu
(P.W.-3) met him at the hospital in Delhi.

26. Pranav Bhardwaj @ Aappu (PW3) stated that deceased Kapil Sharma and
Rahul (PW-2) on receiving bullet injuries,
he jumped out of the rear window of the
vehicle and fled in the agriculture field to
save his life. After walking 8-10 kilometers
he took lift on a truck and came to
Bulandshahar at about 7.00 AM. Since he
did not have his mobile, he did not inform
of the incident to Shilpi Sharma (PW-1 ).

27. S.I. Keshav Singh Bhadoria (PW7), stated that Constable Ravindra Singh
informed about the incident to S.I. Ram
Kumar,
who
in
turn
informed
the
concerned
Police
Station,
thereafter,
information was given to him. The police
patrolling party arrived at the place of
occurrence headed by S.I. Ram Kumar and
his associates. He admitted that he had not
taken any further steps in the case before
registration of the F.I.R.

28.

From
the
evidences
and
depositions of witnesses, PW-1, PW-2,
PW-3 and PW-7, it transpires that F.I.R.
was not lodged by the injured witness (PW2) or PW-3. Shilpi Sharma (PW-1), at the
time of the incident was at Lucknow and on
receiving information, she immediately
proceeded for Bulandshahar. On reaching
Bulandshahar
she
went
straight
to
Anoopshahar Thana for lodging the F.I.R.
From these facts and the circumstances, it
cannot be said that there was wilful delay
in lodging of the F.I.R.

29. The injury report prepared at
Government Hospital, Bulandshahar (Ex.
Ka-4) records that the injured Rahul (PW2) was brought to Government Hospital,
Bulandshahar by Constable 272 Ravindra
Kumar referred from C.H.C. Anoopshahar
at about 3.40 A.M. on 01.12.12, i.e., about
three hours from the incident. It can
reasonably be inferred that incident would
have occurred at about 12.30 in the night.
After the incident, injured Rahul (PW-2)
was
taken
to
C.H.C.
Anoopshahar;
thereafter,
to
District
Hospital,
Bulandshahar. It is also clear from the
statement of Dr. Amit Gupta (PW-13) and
Ex.
Ka-26
of
District
Hospital,
Bulandshahar, that injured Rahul (PW-2)
was referred to Delhi for better treatment.
This fact is reflected from the medical
papers (Ex. Ka-25 to Ka-35) pertaining to
the treatment of injured Rahul (PW-2) at
G.T.B. Hospital, Delhi. Thus, from the
sequence of events, established by the
prosecution, it can be inferred that seriously
injured Rahul (PW-2) was not in a position
to lodge the F.I.R.

30. Pranav Bhardwaj @ Appu (PW-3)
clearly stated that on Kapil and Rahul
receiving bullet injuries, he fled out of fear
to save his life and did not return to the
spot. He did not have his mobile phone
with him. Shilpi Sharma (PW-1), after
being informed of the incident within half
an hour commenced travel to Anoopshahar
to lodge the report. Hence, it cannot be said
that
there
was
any
unexplained
or
intentional delay in lodging of the F.I.R.
Further, there is no evidence of prior
9 All. Tushar Vs. State of U.P.
813
consultation either with the eye-witnesses
or with any other person. It cannot be said
that the F.I.R. was lodged after due
consultation or there is any delay in lodging
the F.I.R.

31. Learned counsel for the appellant
next contended that there are several
omissions in the prosecution case which
create reasonable doubt about the presence
of Pranav Bhardwaj @ Aappu (PW-3). He
has not been named in the F.I.R., but
subsequently implanted. It is urged that
F.I.R. mentions that the incident took place
while
the
deceased
was
going
to
Anoopshahar but during evidence it has
come that incident had taken place when
deceased was returning from Anoopshahar.
Had Pranav Bhardwaj (PW-3) been present
on the spot, he would not have fled but
would have tried to help his brother-in-law,
who sustained bullet injuries in his
presence and lodged F.I.R.

32. Shilpi Sharma (PW-1) stated in
her examination-in-chief that her elder
brother Kapil Sharma has three brother-inlaws, namely, Pranav (PW-3), Shivam and
Omarhari. Pranav lives in Dibai; Omhari
lives in Baharin and Shivam at Aligarh.
Shilpi Sharma categorically stated that she
met Rahul (PW-2) after two to three days
of the incident at the Hospital in Delhi.
Rahul (PW-2) told her that Pranav (PW-3)
was present on the date of the incident at
Bulandshahar and had accompanied them
(Kapil and Rahul) to Anoopshahar to meet
the appellant. She admitted that at the time
of lodging of FIR, this fact was not known
to her as she had not talked to Pranav (PW3) until then.

33. Rahul Kumar (PW-2) in his
examination-in-chief
stated
that
on
30.11.12 at about 9.00 P.M., appellant
Tushar resorted to firing at the residence of
Kapil at Bulandshahar with the intention to
kill Kapil; Pranav (PW-3) brother-in-law of
Kapil Sharma, was present in the house, he
came out on hearing the sound of firing.
Kapil Sharma, thereafter, proceeded for
Anoopshahar to meet the appellant; Pranav
(PW-3) also accompanied them. Incident
had taken place at Birauli where appellant
fired and killed Kapil. Pranav fled from the
place of occurrence. Pranav (PW-3) had
come to Bulandshahar after seeing off his
brother at New Delhi Airport. He further
stated that in the vehicle, Pranav (PW-3)
was sitting on the rear seat. The vehicle
was being driven by deceased Kapil and he
(P.W.-2) was sitting in the front seat beside
Kapil. After fleeing from the place of
occurrence, Pranav (PW-3) met Rahul
(PW-2) after 2-3 days at G.T.B. Hospital,
Delhi.

34. Pranav Bhardwaj (PW-3) stated
that on 30.11.12, he was at the house of his
brother-in-law, i.e., deceased Kapil. On
28.11.12, his brother, an engineer in
Baharin, had to board return flight from
Delhi. He went to see off his brother,
thereafter, returned to Bulandshahar by
taxi. He stayed back, at Bulandshahar at the
request of Kapil as he was alone in the
house. He accompanied the deceased,
Kapil, to Anoopshahar on 30.11.12.

35. From the evidence, there is a
strong explanation about the presence of
Pranav Bhardwaj @ Appu (PW-3) at
Bulandshahar, as well as, the place of
occurrence. Merely not naming Pranav
Bhardwaj (PW-3) in the F.I.R. does not
mean that he was not present either at
Bulandshahar or at the place of crime.
F.I.R. was lodged by Shilpi Sharma (PW-1)
on the information received from Rahul
(PW-2) at Lucknow. Having due regard to
814 INDIAN LAW REPORTS ALLAHABAD SERIES
the evidence and circumstances, it is
normally not expected that seriously
injured Rahul (PW-2), has to furnish every
detail about the incident. Only the essential
or broad picture need to be stated in the
F.I.R. All minute details need not be
mentioned therein. F.I.R. is not a verbatim
summary
or
encyclopedia
of
the
prosecution case. It is not expected to
contain a minute by minute and step by
step version. (Refer: V.K. Mishra and
others vs. State of Uttarakhand and
others6;
Latesh
vs.
State
of
Maharashtra7)

36. On the basis of the discussions,
herein above, we are of the view that non
mentioning the name of Pranav Bhardwaj
(PW-3) in the F.I.R. is not fatal for the
prosecution case as there is ample evidence
that Rahul Kumar (P.W.-2) and Pranav
Bhardwaj (PW-3) were present at the place
of occurrence. It cannot be said that Pranav
Bhardwaj (PW-3) is an imposed witness,
rather, an eye-witness of the incident.

37. Learned counsel for the appellant
has laid much emphasis raising doubt of the
incident by contending that the manner in
which prosecution is trying to explain the
murder of Kapil Sharma is impossible and
not corroborated from the post-mortem
report of deceased Kapil Sharma. It is
urged that firing made from a moving car
on the driver of the parallel moving car, the
entry wound would normally be from the
right side of the body of the driver and not
from the left side as recorded in the postmortem report. In the present case, the fired
bullet made entry wound from the left side
of deceased Kapil Sharma and an exit
wound from right side of the body. This is
not possible as it has specifically come in
the evidence of Rahul Kumar (PW-2) that
vehicle of the deceased, as well as, vehicle
of the appellant were moving when firing
was resorted to by the appellant.

38. Learned counsel for appellant
further submitted that it has come in the
discharge summary (Ex. Ka-27), prepared
at
G.T.B.
Hospital
that
there
was
blackening around entry wound of Rahul
(PW-2). Dr. Amit Gupta (PW-13) in his
examination has confirmed that there is
blackening around the entry wound of PW2. It is urged that it is not possible that a
bullet after making an exit wound from the
body of deceased Kapil would make entry
wound in the body of Rahul Kumar (PW2), by that time, the bullet would have lost
the necessary velocity to cause blackening
around the entry wound of Rahul Kumar
(PW-2). In the absence of blackening
around the entry wound of deceased Kapil
Sharma the prosecution has failed to
explain the manner in which the alleged
crime
was
committed.
It
is
further
submitted that Rahul (PW-2), who was
sitting beside deceased Kapil Sharma, had
first fired upon Kapil Sharma and thereafter
caused self inflicted injury upon himself to
give colour to the incident.

39. Learned counsel for the appellant
has laid much emphasis on the evidence of
Dr. R.K. Lal (DW-2) to submit that having
regard to his long experience in medical
field and countless post-mortem conducted
by him, Dr. R.K. Lal was of the opinion
that such an injury, as narrated by the
prosecution, is not possible unless the
deceased was in a position to turn around at
180 degree at the moment of firing. Only in
such a situation the bullet could enter from
left side and make an exit wound from right
side. Distance between two cars was about
2-3 feet; it was natural that blackening
would have come around the entry wound
of the deceased, but no blackening is seen
9 All. Tushar Vs. State of U.P.
815
around the entry wound of deceased, rather,
blackening has been noted in the entry
wound of Rahul (PW-2). It is also
contended that height of Gypsy car being
driven by deceased Kapil is higher than that
of Maruti (Swift Desire) car, driven by the
appellant. In this position, the direction of
the wound would not be upward to
downward, rather, it would be downward to
upward. In the present case, the direction of
bullet is upward to downward which is not
possible in the given circumstances. It is
therefore urged that prosecution story is
false, doubtful and without any basis.

40. In M. Abbas vs. State of
Kerala8, Supreme Court observed that
unlike the prosecution which needs to
prove its case beyond reasonable doubt, the
accused merely needs to create reasonable
doubt or prove their alternate version by
mere preponderance of probabilities. Thus,
once a plausible version has been put forth
in defence at the Section 313 CrPC
examination stage, then it is for the
prosecution to negate such defense plea.
(Refer: Parminder Kuar @ P.P. Kaur @
Soni Vs. State of Punjab9)

41. To appreciate the submission
advanced by learned counsel for appellant,
raising reasonable doubt of the incident, it
is relevant to examine the evidence
available on record on this point.

42. Shilpi Sharma (PW-1) stated that
at about 12.30 in the night Rahul (PW-2),
informed on mobile phone that while Kapil
was going to Anoopshahar, at Birauli,
appellant stopped their car by overtaking it
and
then
fired
upon
Kapil.
Kapil
succumbed to the injury and Rahul also
received gunshot injures. Rahul (PW-2)
deposed that appellant was not found at
Shaubhagya Vatika; they were returning to
Bulandshahar;
on
reaching
Birauli
appellant came from behind in a Swift Car
and started firing upon their car. Kapil
backed his car but appellant started chasing
them; appellant overtook their car and fired
upon Kapil by bringing his car parallel to
their car. Rahul (PW-2) further stated that
he was sitting on the passenger seat next to
Kapil, who was on the driving seat; bullet
hit Kapil Sharma. On receiving bullet
injury, Kapil fell on his thigh. He further
stated that the same bullet hit him on the
right side and got entrapped in his body.
Appellant was driving the vehicle himself.
Rahul (PW-2) categorically stated in crossexamination that Kapil turned towards him
to escape the injury, hence, the bullet fired
from the right side entered from the left
side and made exit wound from right side
of body of the deceased. After making exit
from the body of the deceased the bullet
entered his body and got entrapped. He
stated that both the vehicles were in
running position.

43. Pranav Bhardwaj (PW-3) deposed
that
when
they
were
returning
to
Bulandshahar a Swift car after overtaking
them stopped their car. Kapil immediately
backed his car towards Anoopshahar. In
between appellant fired upon their car near
the speed-breaker as their car had slowed
down. He stated that the car of the
appellant came parallel to their car;
appellant stepped down from the car and
fired at Kapil. The car was being driven by
the appellant. Their car stopped on the
Kachchai patari, it is then appellant, Tushar
@ Golu, stepped down and resorted to
firing. He further stated that Kapil, in
momentary reaction, to save himself turned
towards left thereby causing injury in his
left side of the body. The bullet also hit
Rahul. Kapil's face was towards Rahul on
receiving injury and in the same position
816 INDIAN LAW REPORTS ALLAHABAD SERIES
Kapil fell down on Rahul. The distance
between the appellant and deceased was 23 feet. PW-3 further stated that he was
sitting on the rear seat of the car, he
immediately jumped from window of the
vehicle and fled to save his life.

44. On the basis of the evidences, it
has to be examined as to what was the
position of two cars at the time of firing.
Whether the two cars were moving or
stationary.

45. Shilpi Sharma (PW-1) and Pranav
Bhardwaj (PW-3) categorically stated that
the appellant after stopping his car fired
upon deceased Kapil Sharma. Pranav
Bhardwaj (PW-3) clearly stated that after
stopping the car appellant stepped out from
his car and then resorted to firing. The
deposition of Rahul (PW-2) that ^^tc mlds
ckn xksyw us Qk;fjax dh rks nksuksa
xkfM+;k¡ py jgha Fkha vkSj dfiy dks xksyh
yxus ds ckn xksyw pyrh gqbZ xkM+h dks
Hkxkdj ys x;k^^ has been heavily relied
upon by learned counsel for the appellant to
contend that both the vehicles were moving
and not stationary, therefore, the injury
would not have been caused as is reflected
from the post mortem report of Kapil.

46. The statement of Rahul (PW-2), in
the circumstances can be interpreted that
while the engines of both the vehicles were
in start/ignited position, but the vehicles
were stationary. This construction of the
depositions
of
Rahul
(PW-2)
is
in
consonance with the statement of Shilpi
Sharma (PW-1) and Pranav Bhardwaj (PW3). Shilpi Sharma, got information from
Rahul, hence, the deposition of Shilpi
Sharma makes it clear that after the
incident, she was informed by Rahul (PW2) that when firing was resorted to, the car
of the appellant and that of the deceased
were stationary, though their engines were
in start/running condition. Pranav Bhardwaj
(PW-3), was sitting on the rear seat of the
vehicle at the time of firing, he has not
stated that firing was resorted to by the
appellant from inside the car. The site-map
(Ex. Ka-13) does not show that the car of
the deceased was accidented but was found
stationary at the place marked ''A'. This
establishes the case of the prosecution that
firing was restored to by the appellant when
both the vehicles were stationary. Pranav
Bhardwaj
(PW-3)
has
categorically
deposed that their car stopped. The position
of the car of deceased Kapil at the place of
occurrence supports the version of Pranav
Bhardwaj (PW-3). It can be reasonably
concluded that both the cars were in
stationary position, though their engines
were running when the incident of firing
was resorted to upon Kapil.

47. Now it has to be seen whether in
this condition there is possibility that firing
resorted to from right side of the driver of
the vehicle can make entry wound from left
side of the body of the driver (Kapil).

48. The witnesses have stated that
deceased Kapil was driving the vehicle
(Gypsy); Rahul (PW-2) was sitting beside
him and Pranav (PW-3) was sitting on the
rear seat. Pranav stated that appellant after
overtaking the car of the deceased came out
of his car and then fired upon the deceased.
If the appellant came out of his car then
certainly he was in standing position,
whereas, the deceased was seated in his car.
In this position, when firing is resorted,
definitely its path would be from upward to
downward as the appellant is higher in
position while firing than the deceased. The
appellant fired at the deceased, who was
comparatively in a lower position seated
inside the car, in this position the direction
9 All. Tushar Vs. State of U.P.
817
of the bullet injury shown from upward to
downward, is the natural course in the
circumstances.

49. In this backdrop, it is to be
examined from the evidence and the
circumstances whether there was any
possibility that the bullet coming from right
direction will make an entry wound from
the left side of the body of the deceased
Kapil who was on the driving seat. The
evidence of Pranav Kumar (PW-3) is to the
effect that appellant came out of his car and
resorted to firing upon the deceased. Under
the circumstance, the natural and prompt
reaction of the deceased in spur of the
moment would be to avoid injury and
escape death. The deceased, accordingly,
reacted to escape the imminent danger to
his life. The deceased being trapped in the
vehicle on the driving seat, had very
limited option to escape. The deceased was
not in a position to bend forward as the
steering of the vehicle was an impediment.
He could not open the door to escape from
driver's side as the assailant was standing
there to shoot him; deceased could not
escape from the opposite door as Rahul
(PW-2) was sitting beside him. The only
course available to the deceased, to escape
the onslaught of firing was to turn around
and move towards the rear seat of the
vehicle. As soon as the accused-appellant
stepped out of his car, the deceased in
reaction turned towards the rear seat to
escape the injury and on doing so, it is
obvious that the deceased would turn
around 180 degree towards his left to
escape from the rear of the vehicle. As soon
as the deceased turned towards the rear
seat, firing was resorted upon him by the
appellant which caused entry wound from
left side of the body of deceased. In the
given circumstances faced by deceased
trapped between the assailant and Rahul
(PW-2), only natural course available to the
deceased was to escape from the rear of the
vehicle, which was possible by turning 180
degree to the left to escape from the rear side
of the vehcile. Accordingly, entry and exit
wounds correspond to the natural reaction of
the deceased in the existing circumstances. Dr.
Pankaj Kumar (PW-6) and Dr. R.K. Lal (DW2) have categorically deposed that had the
deceased turned 180 degree, then the injury, as
received by deceased, could have been
inflicted upon him. In the given circumstances,
it is clear that only option available to the
deceased was to turn 180 degree left to escape
imminent threat to his life. There is nothing
unnatural about the injures sustained by the
deceased caused by firing inflicted by the
appellant. There is no contradiction between
oral and medical evidence, Rahul Kumar
(PW-2) stated that he was sitting beside the
deceased on the passenger seat, hence, it was
also well expected that he would have seen the
deceased turning towards the rear seat. The
bullet after making entry and exit wound came
out of the body of the deceased and would
have naturally hit the right side of the body of
Rahul Kumar (PW-2). The deceased after
receiving bullet injures, fell on the thigh of
Rahul. Pranav Bhardwaj (PW-3) also stated
that after receiving bullet injury, deceased had
fallen in the lap of PW-2. Thus, the two
wounds of the deceased and the single wound
of Rahul Kumar (PW-2) are possible in the
circumstances. It is also clear that firing was
resorted to from a close distance, hence,
velocity of the bullet was such that it was
possible that the bullet after making exit from
the body of the deceased caused injury to
Rahul (PW-2) as well, who was seated next to
the deceased.

50. In the light of the discussion
hereinabove, we are of the opinion that in
the given circumstances, there is cogent
explanation regarding the injuries on the
818 INDIAN LAW REPORTS ALLAHABAD SERIES
body of deceased, Kapil Sharma, and the
injured,
Rahul
Kumar
(PW-2).
The
testimony of eye-witness is crystal clear
regarding the genesis and manner of the
crime.

51.