Allahabad High Court
Tushar @ Golu vs State Of U.P. on 2 September, 2020
Equivalent citations: AIRONLINE 2020 ALL 1890
Bench: Suneet Kumar, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 2 Case :- CRIMINAL APPEAL No. - 1557 of 2015 Appellant :- Tushar @ Golu Respondent :- State of U.P. Counsel for Appellant :- Vinod Singh,Rajeev Trivedi,Rohit Verma,Shailesh Pandey Counsel for Respondent :- Govt. Advocate,Rahul Kumar Pandey Hon'ble Suneet Kumar,J.
Hon'ble Ravi Nath Tilhari,J.
(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;
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 accused-appellant 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 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) 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 charge-sheet 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;
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 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 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 (PW-3) 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 (PW-7), 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 (PW-2) 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 (PW-2) 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 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-in-laws, 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 (PW-3) 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 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 post-mortem 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 PW-2. 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 (PW-2), 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 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 cross-examination 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 Kapil fell down on Rahul. The distance between the appellant and deceased was 2-3 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 (PW-3). Shilpi Sharma, got information from Rahul, hence, the deposition of Shilpi Sharma makes it clear that after the incident, she was informed by Rahul (PW-2) 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 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 (DW-2) 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 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. It is next submitted by the Learned counsel for the appellant that the bullet was fired from close proximity but there is no blackening around the wound inflicted upon the deceased Kapil, whereas, there is blackening around the injury of Rahul (PW-2).
52. From the inquest report (Exhibit Ka-6), postmortem report (Exhibit Ka-6) and from the deposition of Dr. Pankaj Kumar (P.W.-6) and Keshav Singh Bhadauria (P.W.-7), it is clear that at the time of receiving bullet injury, deceased Kapil was wearing a jacket over and above other clothes. The jacket usually being of a thicker material, the bullet that entered the body of the deceased after penetrating the jacket, the sign of blackening around the entry wound of the deceased may not be a possibility. There is nothing unnatural about it.
53. In the injury report (Exhibit Ka-4) of Rahul Kumar (P.W.-2) prepared at District Hospital Bulandshahar, it is nowhere mentioned that there was blackening around the entry wound of Rahul Kumar (P.W.-2), hence, it has to be given weightage over that of the injury noted in the discharge summary (Exhibit Ka-27) prepared at G.T.B. Hospital Delhi. The first prescription (Exhibit Ka-26) prepared on 1.12.12 at G.T.B. Hospital Delhi shows that Rahul Kumar (P.W.-2) was referred from District Hospital Bulandshahr. It further mentions that Rahul Kumar (P.W.-2) received gun shot injury at Anoopshahr. There is no mention of blackening around the entry wound. Thus, the injury report (Exhibit Ka-4) prepared on 1.12.12 at District Hospital Bulandshahr and injury report (Exhibit Ka-26) prepared at G.T.B. Hospital Delhi on 1.12.12., there is no mention about blackening around the entry wound of Rahul Kumar (P.W.-2). In the circumstances the blackening noted in discharge slip (Exhibit Ka-27) prepared on 11.12.12 at G.T.B. Hospital Delhi, should not be given much credence, accordingly, the evidence of Dr. Amit Gupta (P.W.-13) that there was blackening around the entry wound of Rahul Kumar (P.W.-2) based on the discharge slip (Exhibit Ka 27) cannot be accepted in the backdrop of other injury reports that preceeds the discharge slip.
54. In view of the discussions herein above, it is clear that there is no variation or contradiction between the oral and the medical evidence. Further, the oral evidence is also corroborated by the Ballistic Report (Exhibit Ka-36). It is clear that Pistol 315 bore and 2 live Cartridges of 315 bore which was recovered from the possession of the appellant and the empty cartridge recovered from the place of occurrence on 1.12.12, on examination it was found that empty cartridge (E.C.-1) recovered from the place of occurrence, was fired from the pistol recovered from possession of the appellant at the time of his arrest. Thus, the report of Forensic Science Laboratory, Agra, scientifically connects the appellant with the alleged crime and makes it clear that the appellant was the person, who fired upon deceased Kapil Sharma and also caused fatal firearm injury to Rahul Kumar (P.W.-2). The vehicle involved in the crime (Exhibit Ka-10) was recovered at the instance of the appellant and it was the same car which was used in the commission of the crime. Absence of blackening around the wound of deceased Kapil in the circumstances and in the backdrop of the evidence would not demolish the prosecution case.
55. Learned counsel next submitted that there are major contradictions in the statements of the witnesses. Some of the contradictions pointed out by the learned counsel for the appellant is as follows:
i. Rahul Kumar (P.W.-2) deposed that when the appellant was not found at Shaubhagya Vitika Anoopshahr they returned to Bulandshahr. Whereas, Pranav Bharadwaj (P.W.-3) deposed that when the appellant was not found at Shaubhagya Vatika Anoopshahr they went to the orchard but appellant was not found, thereafter proceeded to Bulandshahr;
ii. Rahul Kumar (P.W.-2) deposed that at Birauli they were being chased by the appellant, their car slowed down near the speed breaker and at this place the appellant came from behind, then deceased Kapil Sharma backed his car towards Anoopshahr. On the other hand, Pranav Bharadwaj (P.W.-3) deposed that on the car being backed by deceased Kapil Sharma, the car slowed down at the speed breaker, the appellant over took their car and fired upon Kapil Sharma resulting in his death;
iii. Rahul Kumar (P.W.-2) deposed that front glass of the car was broken at the place of occurrence where the deceased was killed, whereas, Pranav Bharadwaj (P.W.-3) deposed that front glass of the car had broken at the place where the car was backed;
iv. Pranav Bharadwaj (P.W.-3) deposed that a bullet also hit the stepney of the car of the deceased whereas Keshav Singh Bhadauria (P.W.-7) deposed that there was no bullet mark on the stepney;
v. Shilpi Sharma (P.W.-1) deposed that the incident occurred when the deceased Kapil Sharma was going to Anoopshahr, whereas, Rahul Kumar (P.W.-2) and Pranav Bharadwaj (P.W.-3) deposed that the incident occurred when the deceased Kapil Sharma was returning from Anoopshahr.
56. The contradictions pointed out by the learned counsel for the appellant are not material to justify the rejection of the testimony of eye-witnesses. Slight discrepancies in the statements of the eye-witnesses are not uncommon even in the case of a truthful witness. The discrepancies are natural which intake the truth of the commission of the crime rather than falsify their version. Minor discrepancies or some improvements would not demolish the testimony of the eye-witnesses if they are otherwise reliable. Time gap between the date of occurrence and the date on which witnesses give their deposition in the court, sociological background of the witnesses, are bound to lead to some discrepancies. In the present case it is amply evident that the witnesses have deposed cogently on the different aspects of the incident and the circumstances, their depositions stand corroborated by documentary and material evidence as noted earlier.
57. In Sampath Kumar vs. Inspector of Police, Krishnagiri10, Apex Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.
58. In Sachin Kumar Singhraha vs. State of Madhya Pradesh11, Supreme Court has observed that discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.
59. Lest we forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision in Smt. Shamim vs. State of (GNCT of Delhi)12.
60. We do not find any force in the contention of the learned counsel for the appellant that there are major contradiction in the prosecution case. Minor discrepancies are natural and reflect the truthfulness of the testimony. The broad narration given by the witnesses are not so self contradictory as to make it untrustworthy.
61. The learned counsel for the appellant finally submitted that the accused-appellant had no motive to commit the offence. On the contrary, Shilpi Sharma, Rahul Kumar and Pranav had motive to eliminate Kapil. Admittedly, the appellant was having grudge over the huge property left by his father. Kapil was the sole male member living with his mother and sister, Shilpi (PW-1). The documents pertaining to court cases and suit brought on record by the defense, instituted immediately after the murder of Kapil substantiates the prosecution case that property was a bone of contention between the members of the family. The motive sought to be attached to Rahul Kumar (P.W.-2) and Pranav (P.W.-3) by the defence of lending money by Kapil for business was categorically denied by the witnesses and not proved. It is settled principle of proposition that where direct evidence is worthy of credence and can be believed then the question of motive does not carry much weight.
62. In Shivraj Bapuray Jadhav and others vs. State of Karnataka13, the Supreme Court held that:
"In a case of direct evidence, the motive element does not play such an important role as to cast any doubt on the credibility of the prosecution witness even if there be any doubts raised in this regard."
63. The offence under Section 25 of the Arms Act was proved by the recovery memo (Exhibit Ka-15). Keshav Singh Bhadauria along with constables Dhanveer Singh, Ajeet Kumar and Sushil Kumar (PW-7) arrested the accused/appellant on search a Pistol of 315 bore and 2 live cartridges of 315 bore was recovered exhibit Ka-15. The signature of the appellant is present. Keshav Singh Bhadauria (P.W.-7) in his examination-in-chief clearly deposed that he recovered one Pistol and 2 live cartridges (315 bore) from the possession of the appellant when he was arrested. Lalit Harish Chandra Gangwar prepared the site map of the place of recovery (Exhibit Ka-17) The sanction of District Magistrate, Bulandshahr (Exhibit Ka-18) was obtained. He prepared the charge-sheet submitted under Section 25 of the Arms Act (Exhibit Ka-19) thus it is clear that the appellant having one Pistol of 315 bore and 2 live cartridges of 315 bore of which he was not authorized have without license.
64. We are thus of the opinion that the trial court rightly held the appellant guilty of murder of deceased Kapil Sharma under Sections 302, 307 IPC and under Section 25 of Arms Act for unauthorised possession of firearms and cartridges.
65. For the reasons stated herein above, we see no reason to interfere with the order and judgment dated 16 February 2015, passed by the Additional Sessions Judge, Court No. 3, Bulandshahr, in State of U.P. vs. Tushar @ Golu and the same deserves to be sustained. The appeal is liable to be dismissed and is, accordingly, dismissed.
66. The appellant is in jail since 1.12.2012, he shall remain in jail to serve out the sentence awarded by the trial court pursuant to the impugned judgment.
67. Registrar General is directed to ensure compliance by forwarding the copy of the judgment to the District Judge, Bulandshahr.
Order Date : - 02/09/2020
S.Prakash/P.Sri
(Ravi Nath Tilhari,J) (Suneet Kumar,J.)