Harendra & Ors. vs The State Of Madhya Pradesh

Per Justice G.S. Ahluwalia

By this common judgment, Cr.A. Nos. 892/2016, 902/2016, 925/2015 and 981/2016 shall be decided.

Criminal Appeal No. 892/2016 has been filed by appellants Harendra, Manoj Singh, Ramkesh, and Pawan, Criminal Appeal No. 902/2016 has been filed by appellants Pramod Yadav, Gandharv Singh, and Shishupal, Criminal Appeal No. 925/2016 has been filed by appellant Kamlesh Yadav, whereas Criminal Appeal No. 981/2016 has been filed by appellant Ramveer Singh.

A statement was made that appellant Gandharv Singh in Criminal Appeal No. 902/2016 has expired. The State Counsel, after verification from Central Jail informed that appellant Gandharv Singh in Criminal Appeal No. 902/16 has expired. Accordingly, the appeal filed by Gandharv Singh in Criminal Appeal No. 902/16 is dismissed as abated. Counsel for the appellants were directed to carry out necessary amendment in the cause title, and accordingly, with permission of the Court, necessary amendment was also carried out.

It is not out of place to mention here that Criminal Appeal No. 2053/2019 has been filed by complainant against the acquittal of Golu alias Rajendra Yadav, Ballu alias Balveer, Bharat, and Munna Singh. The said appeal shall be decided by a separate judgment. It is also not out of place to mention here that Appellant Ramveer was also acquitted of the charges under Sections 147, 148, 302 read with Section 149 (on two counts) of the IPC r/w Section 11/13 of the MPDVPK Act, Section 395 read with Section 149 IPC and Section 11/13 of the MPDVPK Act, and under Section 307 read with Section 149 IPC (3 counts) and Section 11/13 of the MPDVPK Act but has been convicted under Section 404 of IPC, but his acquittal has not been challenged either by State or by complainant.

All the criminal appeals have been filed against the judgment and sentence dated 26/08/2016 passed by the Additional Sessions Judge & Special Judge (Dacoity), Lahar, District Bhind in Special Sessions Trial (Dacoity) No. 73/2015, by which the appellants have been convicted and sentenced as under:-

months. with the direction that the custodial sentences except default imprisonments, shall run concurrently.

Facts necessary for disposal of present appeals, in short are that on 14/05/2015, deceased Vinod, along with his bodyguard Vikram Singh Yadav, his companion Surendra Singh (deceased), Dilip Singh Gurjar (brother of Surendra), and his father Sobaran Singh, was going towards Sevdha from his Village Girvasa in his Bolero Jeep, which was being driven by Brajendra Yadav (PW4). As soon as the Bolero Jeep reached near the Anohi culvert, a red-colored Mahindra tractor, which was being driven by accused Gandharv Singh, dashed into the Bolero Jeep from front. As a result, driver Brajendra stopped the Bolero Jeep. As soon as the Bolero Jeep of deceased Vinod was stopped, accused persons Kamlesh, Pramod, Shishupal, Pawan, Ramkesh, Munna, Bharat, Harendra, and Manoj, in furtherance of their common object and in conspiracy with other co-accused persons namely Golu alias Rajendra, Ramveer Singh, and Ballu alias Balveer, started firing indiscriminately on deceased Vinod and Surendra. Gunshot injuries were caused on different parts of the bodies of Surendra and Vinod. As a result, they died on the spot. When persons who were sitting in the Bolero jeep of Vinod tried to run away, then gunshots were also fired with an intention to kill them, but they survived unhurt. The nephew of Sobran Singh, namely Dhruv Yadav alias Banti, and brother-in-law Sardar Singh also came on the spot. The accused persons took one .315 licensed gun belonging to Surendra and a gold chain from the neck of the deceased Vinod, and ran away by showing the guns. The accused persons, while fleeing away, left the tractor and trolley on the spot. The aforesaid incident took place at about 8:00 PM, whereas the father of the deceased Vinod, namely Sobran Singh (PW1), lodged the Dehati Nalishi on the same day at 9:00 AM i.e. within one hour. The merg intimation (Ex.P/2) was registered. The FIR (Ex.P/16) was registered in Crime No. 27/2015. The dead bodies of deceased Vinod and Surendra were sent for postmortem. Ramveer, Ballu, and Golu, who were discussing about the mines of Vinod, were also found to be involved in the offence and accordingly, they too were arrested. The .315 bore gun of deceased Vinod was recovered from possession of accused Ramkesh, whereas firearms used in the offence were seized from the possession of Manoj Yadav and Pramod Yadav. The firearms were sent for ballistic report. Firearms were also seized from the possession of other co-accused persons. Sanction for prosecution under the Arms Act was obtained in respect of accused Manoj and Pramod.

The police, after completing their investigation, filed the chargesheet for offences under Sections 147, 148, 149, 307, 302, 396, and 120-B of the IPC and under Section 11/13 of the MPDVPK Act and 25,27 of the Arms Act, 39/192, 146/196 of the Motor Vehicles Act on 21/09/2015 against Gandharv Singh, Manoj, Harendra, Bharat, Munna, Ramkesh, Pawan, Shishupal and Kamlesh, whereas investigation was kept pending against accused Pramod, Ballu, and Golu S/o Pappu Yadav and Ramveer. Thereafter, supplementary chargesheet was filed against Pramod for offence under sections 147, 148, 149, 307, 302, 396, and 120-B of the IPC and under Section 11/13 of the MPDVPK Act and 25,27 of the Arms Act, 39/192 and 146/196 of the Motor Vehicles Act. Investigation was still kept pending under section 173(8) of the Cr.P.C. against Ballu, Golu and Ramveer. Thereafter, a supplementary chargesheet was filed against Ballu, Ramveer and Golu for offence under sections 147, 148, 149, 302, 307, 396, 120B of IPC, 11,13 of the MPDVPK Act and 25,27 of the Arms Act.

The trial Court, by order dated 23rd of November 2015, framed charges under Sections 147, 148, 302 read with Section 149 (on two counts) of the IPC r/w Section 11/13 of the MPDVPK Act, Section 395 read with Section 149 IPC and Section 11/13 of the MPDVPK Act, and under Section 307 read with Section 149 IPC (3 counts) and Section 11/13 of the MPDVPK Act against Gandharv Singh, Harendra, Bharat, Ramkesh, Pawan, Shishupal, Kamlesh, and Munna Singh. By order dated 23/11/2015 charge under sections under Sections 147, 148, 302 read with Section 149 (on two counts) of the IPC r/w Section 11/13 of the MPDVPK Act, Section 395 read with Section 149 IPC and Section 11/13 of the MPDVPK Act, and under Section 307 read with Section 149 IPC (3 counts) and Section 11/13 of the MPDVPK Act were framed against Manoj Singh and by order dated 25/5/2016 charges under sections 25(1B)(a) and 27 of the Arms Act were enhanced. By order dated 25/11/2015, charges were framed under Sections 147, 148, 302 read with Section 149 (on two counts) of the IPC r/w Section 11/13 of the MPDVPK Act, Section 395 read with Section 149 IPC and Section 11/13 of the MPDVPK Act, and under Section 307 read with Section 149 IPC (3 counts) and Section 11/13 of the MPDVPK Act against Ballu alias Balveer and Ramveer Singh. By order dated 25/11/2015, charges under sections under Sections 147, 148, 302 read with Section 149 (on two counts) of the IPC r/w Section 11/13 of the MPDVPK Act, Section 395 read with Section 149 IPC and Section 11/13 of the MPDVPK Act, and under Section 307 read with Section 149 IPC (3 counts) and Section 11/13 of the MPDVPK Act were framed against Pramod Yadav and charge under sections 25(1)(1B)(a) and 27 of the Arms Act was enhanced by order dated 25/5/16. By order dated 9/2/2016, charges were framed under sections under Sections 147, 148, 302 read with Section 149 (on two counts) of the IPC r/w Section 11/13 of the MPDVPK Act, Section 395 read with Section 149 IPC and Section 11/13 of the MPDVPK Act, and under Section 307 read with Section 149 IPC (3 counts) and Section 11/13 of the MPDVPK Act against Golu.

Appellants as well as acquitted co-accused persons abjured their guilt and pleaded not guilty.

The prosecution, in order to prove its case, examined Sobaran Singh (PW1), Sardar Singh (PW2), Dhruv Yadav alias Banti (PW3), Brajendra Yadav (PW4), Bikram Singh Yadav (PW5), Dilip Singh Gurjar (PW6), Munni (PW7), Veer Singh (PW8), Manoj Mujalde (PW9), Mahendra Singh Rathore (PW10), Munna Lal Dubey (PW11), A.S. Tomar (PW12), Birendra Singh (PW13), Dr. Surendra Kushwah (PW14), Vivek Dhurve (PW15), Arvind Rawat (PW16), ShriKrishna Tiwari (PW17), Vinod Kumar Chhavai (PW18) and Mahendra Singh Bhadoriya (PW19). The appellants examined Sandeep Singh (DW1), Mahesh Kumar (DW2), Sitaram (DW3), Bhure (DW4), Asharam (DW5), Janak Singh (DW6), and Dhyaanendra Singh (DW7).

By the impugned judgment and sentence passed by the trial court, Golu alias Rajendra Yadav, Ballu alias Balveer, Bharat, and Munna Singh have been acquitted of all charges, whereas the other appellants have been convicted and sentenced for the offences mentioned above.

Challenging the judgment and sentence passed by the trial Court, it is submitted by counsel for appellants that the trial Court, by assigning reasons in paragraph 125 of its judgment, has disbelieved prosecution witnesses Sardar Singh (PW2) and Dhruv Yadav alias Banti (PW3), and by assigning reasons in paragraph 126 of its judgment has disbelieved Dilip Singh Gurjar (PW6). It is further submitted that so far as the other eyewitnesses, namely Brajendra Yadav (PW4) and Vikram Singh Yadav (PW5) are concerned, they have not supported the prosecution case with regard to the identity of the assailants. Both the witnesses have not stated about the presence of Sobaran Singh (PW1). It is further submitted that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt.

Per contra, the appeals are vehemently opposed by counsel for the State.

Heard, learned counsel for the parties.

On 19/8/2026, the following order was passed:-

As already pointed out, the trial Court by assigning reasons in paragraphs 125 and 126 of its judgment has disbelieved Sardar Singh (PW2), Dhruv Yadav alias Banti (PW3), and Dilip Singh Gujjar (PW6). Accordingly, this Court, by order dated 19/8/2026 requested counsel for the appellants to address on the issue as to why the reasoning assigned by the trial Court for disbelieving prosecution witnesses Sardar Singh (PW2), Dhruv Yadav alias Banti (PW3), and Dilip Singh Gurjar (PW6) may not be set aside, and why the aforementioned three witnesses may not also be relied upon. Counsel for the appellants were also directed to address as to whether this Court, while affirming the conviction and sentence passed by the trial Court, can set aside the reasoning recorded by the trial Court for disbelieving the evidence of Sardar Singh (PW2), Dhruv Yadav alias Banti (PW3), and Dilip Singh Gurjar (PW6) ?

It was fairly conceded by counsel for appellants that this Court can always look into the reasoning assigned by the trial Court for disbelieving a witness, and if it is found that the reasons assigned by the trial Court are not proper and are perverse, then the said findings can be set aside while hearing an appeal filed by the accused persons. It is further submitted that in the present case, the complainant has also preferred an appeal against the acquittal of four persons; therefore, it was submitted by Shri S.K. Tiwari that the Court is well within its jurisdiction to reconsider the findings recorded by the trial Court for disbelieving Sardar Singh (PW2), Dhruv Yadav alias Banti (PW3), and Dilip Singh Gurjar (PW6).

The first question for consideration is as whether the deceased Vinod and Surendra died a homicidal death or not?

Dr. Suresh Kushwah (PW14) had conducted the postmortem of Vinod and Surendra. Dr. Suresh Kushwaha (PW14) found following injuries on the dead body of Vinod. The postmortem report of Vinod is Ex.P/38

Dr. Suresh Kushwaha (PW14) also found following injuries on the dead body of Surinder Singh. The postmortem report of Surendra is Ex.P/39.

This witness was cross-examined. He stated that all the injuries received by the deceased Vinod were ante mortem and were caused from a distance of more than four feet, as no blackening, tattooing, or charring marks were found. He further stated that the direction of injury No.2 sustained by Surendra Singh was downward, whereas the direction of injury No.1 sustained by Surendra Singh was upward. No other questions were asked from this witness. Thus, it is clear that the deceased Vinod and Surendra died a homicidal death.

Now, the next question for consideration is who is the author of the injuries sustained by deceased Vinod and Surendra.

Before appreciating the evidence, this Court would like to consider the principles for appreciation of evidence of witness. The Supreme Court in the case of State of M.P. v. Balveer Singh, reported in (2025) 8 SCC 545 has held as under :

The prosecution has examined Sobaran Singh (PW1), Sardar Singh (PW2), Dhruv Yadav alias Banti (PW3), Brajendra Yadav (PW4), Vikram Singh Yadav (PW5), and Dilip Singh Gurjar (PW6) as eyewitnesses. As already pointed out, the trial Court has disbelieved Sardar Singh (PW2), Dhruv Yadav alias Banti (PW3), and Dilip Singh Gurjar (PW6). However, this Court would separately consider the reasons assigned by the trial court for disbelieving these three eyewitnesses.

Sobaran Singh (PW1) is the father of deceased Vinod, who also lodged the Dehati Nalishi and is an eyewitness. Similarly, Brajendra Yadav (PW4) and Vikram Singh Yadav (PW5) are also eyewitnesses. So far as eyewitnesses Brajendra Yadav (PW4) and Vikram Singh Yadav (PW5) are concerned, although they have supported the prosecution case, but they have turned hostile on the question of the identity of the assailants. Therefore, their evidence will be considered for the purpose of corroboration of evidence of other eyewitnesses with regard to the manner in which the offence was committed.

Sobaran Singh (PW1) has stated that accused Gandharv Singh, Harendra, Bharat, Manoj Singh, Ramkesh, Pawan, Shishupal, Kamlesh, Munna Singh, Pramod Yadav, Ballu alias Balvir, Ramveer Singh and absconding accused Golu are known to him. All these accused persons are known to him from their faces also. He further stated that he is under some suspicion because the accused persons had tied handkerchief around their face. The incident took place on 14.05.2015 at about 07:00-8.00 a.m. The incident took place near Arnoi Culvert, Sevada-Lahar Road and at the time of occurrence he was present. He was coming from the mines on Bolero jeep. Brajendra was driving the Jeep whereas deceased Vinod was sitting in front. This witness, Surendra and Dilip were sitting on the middle seat whereas Vikram was sitting on the back seat. They were going to Sevada. The incident took place at a distance of 4 to 5 kms away from the mines. As soon as the Bolero jeep reached the place of occurrence, they saw that one tractor of red colour with trolley was coming from the side of Sevada. Tractor was being driven by accused Gandharv. Gandharv deliberately dashed the Mahindra tractor with Bolero Jeep. As a result the deceased Vinod asked the driver to stop the Jeep and to find out as to who had dashed the Jeep. When Vinod de-boarded the Jeep, then it was found that some persons were sitting on the trolley under a Tripal. As soon as Vinod de-boarded the Jeep, Kamlesh, Pramod, Shishupal, Ramkesh, Pawan, Bharat, Munna, Harendra as well as two or one more person came out of the trolley which was covered by Tripal. Kamlesh was having Mouser, Harendra was having 12-bore gun, Ramkesh was having country made pistol, Shishupal was having Mouser, Manoj was having country made pistol, Bharat was having lathi, Munna was having lathi, Pawan was having fire arm. All of a sudden they started firing at Vinod. Vinod suffered first gunshot injury on his right hand, another gunshot injury was caused on the chest and chin, Surendra suffered a gunshot injury on his abdominal region, head and no other person sustained any other gunshot injury. Kamlesh, Ramkesh, Pramod, Gandharv, Pawan etc. had shouted that Vinod should not be spared and he should be killed. The witnesses tried to take shelter behind the Jeep. As soon as the firing started, then Banti and Sardar who were at a distance of 100 feet also came on the spot. They also witnessed the incident. After causing injuries, the accused persons took away the gold chain of Vinod. They also took away the money which was kept in the pocket of Vinod. Ramkesh, Pramod, Shishupal ensured as to whether Vinod has expired or not, Surendra was having a gun which was taken away by the accused persons. This witness after witnessing the incident got upset. Thereafter the accused persons escaped from the spot and went towards Duda. For sometimes the witnesses remained in hiding. Vinod and Surendra had expired on account of gunshot injuries. Surendra was the gunman of the deceased Vinod. After 20 minutes the SHO Rathore also reached on the spot. He clearly stated that he did not inform the police, but he does not know as to who had given information to the police. When the police enquired about the incident, then an information was given, and accordingly, Dehati Nalishi (Ex.P/1) was recorded. The Merg Dehati Nalishi (Ex.P/2) was also recorded. Both the documents contain his signatures. They stayed back at the place of occurrence for about 1 hour. The dead bodies were sent for postmortem. On the very same day, spot map (Ex.P/3) was prepared. When the witness was directed to identify the accused persons who were standing in the dock, then this witness specifically stated that he can identify all the accused persons and he has no doubt and he also offered that in case if the Public Prosecutor wants, then he can identify the accused persons by their names. All the accused persons were present on the spot. It was the accused persons who had committed the offence.

This witness was cross examined. In cross examination, he stated that he had two sons, namely Kamlesh and Vinod. Kamlesh has already expired about 5 years back. He admitted that earlier Vinod was in Army. However, as he got implicated in an offence under Section 302 of IPC, therefore he was ousted from the service. Vinod had run a sand mine for about 5 years after taking it on lease. The documents pertaining to lease were with Vinod. Vinod was having two tractors and two dumpers apart from one JCB machine. He was having one Bolero and one Safari Jeep also. He further admitted that Vinod was having one house in Sevada and another in Gwalior. In all, he admitted that the total value of the property of Vinod must be around 3 crores. Since Vinod had enmity, therefore, Surendra was employed as his bodyguard. Dhruv is his nephew. Sardar Singh is distantly related as his brother-in-law (Sala). He denied that criminal cases were pending against Vinod. He admitted that one trial pertaining to the offence of murder was registered against Vinod. The details of the offences were put to this witness, but it was denied by this witness. This witness further stated that his village is Rampura, however, he resides in Sevada. He also claimed that he occasionally visits Rampura. He denied that in his Dehati Nalishi he had informed the police that one Ravi was killed and Vinod was an accused in that case and on account of that enmity, Vinod has been killed by the accused persons but could not explain as to why the said fact is mentioned in his Dehati Nalishi (Ex.P/1). He further denied the mentioning of enmity in his Marg Dehati Nalishi intimation (Ex.P/2), but could not explain as to why the said fact is mentioned. He denied that the Dehati nalishi was lodged by him on the information given by the witnesses. He claimed that since he himself had witnessed the incident, therefore the Dehati Nalishi was lodged. He further stated that he had witnessed the incident while staying back at the place of occurrence. He had informed the Inspector about the place from where he had witnessed the incident. There was a gap of approximately 10 to 5 steps between the deceased and the accused persons. He admitted that after deboarding the jeep Vinod had walked for 10 to 5 steps, only then the gunshots were fired. This witness was not in a position to tell that which accused fired how many gunshots. He further claimed that after the gunshots were fired, he did not run away and he and other witnesses took shelter under the jeep. The first gunshot had hit Vinod. Vinod was in front of Surendra. Since this witness was afraid, therefore he did not run away. Vinod and Surendra had run towards the northern side. After the accused persons left the place of incident, he noticed the dead body of deceased Vinod and found that he had suffered three gunshots injury. Surendra had also suffered gunshots injury. In para 12 of his cross examination, he denied the suggestion that after the accused persons had challenged the witnesses then this witness also ran away from the spot. He further stated that when the gunshots were fired towards the witnesses, he was not in the vehicle but they had already deboarded the vehicle. Vinod and Surendra had fallen down at a gap of 10 to 5 steps. On account of collision with tractor, the windshield of the Bolero jeep had broken down but none of the witnesses sitting in the jeep suffered injury. Dhruv and Sardar had also reached to the place of occurrence immediately after hearing the noise of gunshot firing. After the gunshot injuries were caused to the deceased, accused Ramkesh, Pramod, Shishupal, Gandharv, Harendra, Bharat and Munna had gone to ensure as to whether Vinod and Surendra have expired or not. The SHO had reached the place of occurrence within 15-20 minutes. He admitted that he does not know as to who had informed the police about the incident. He further stated that 14 rounds of fired cartridges of Mouzer, one live round of Mouzer and 10 fired empty cartridges of 12 bore were seized by the SHO from the spot. He admitted that Golu, Ballu and Ramveer were not present on the spot, but after 1 month of the incident, they came to the house and threatened that this witness will also be killed like his son Vinod. He further admitted that Vinod was tried for an offence of committing murder of Ravi, but claimed that as all the prosecution witnesses had turned hostile, therefore Vinod was acquitted. He further admitted in paragraph 22 of his cross-examination, that different cases were registered against Vinod. He further admitted that his elder son Kamlesh was also killed by the people who were residents of Dhammukhar. He further admitted that the residents of Dhammukhar were rebellions and they had an enmity with the family of this witness. However, he claimed that all those persons have expired. He further admitted that the enmity started on account of contesting of election by his daughter-in-law (Bahu) Rekha for the post of Member, Janpad Panchayat . He further admitted that Ravi is also the resident of Girvasa. He further admitted that accused Pramod, Gandharv, Ramkesh, father of accused Manoj and younger brother of accused Ballu were the witnesses but all of them turned hostile and they claimed that his son Vinod is innocent person and accordingly Vinod was acquitted. After the murder of his son Vinod and Surendra, his condition had deteriorated. He further stated that police had reached to the spot at about 08:30 p.m. and at that time his condition was not good. He denied that Dehati Nalishi (Ex.P/1) and Dehati Marg Intimation (Ex.P/2) respectively were recorded by police on account of his acquaintance with police persons. Thereafter this witness was further examined on 18.02.2016 in respect of Golu alias Rajendra Yadav. Since Golu alias Rajendra Yadav has been acquitted, therefore the evidence of this witness shall be considered while considering Criminal Appeal No. 2053/2019, which has been filed against the acquittal.

Thus, it is clear from the evidence of this witness that he had claimed himself to be an eyewitness. He was mainly cross-examined on the issue that Vinod had an enmity with various persons. Therefore, it was submitted by counsel for appellant that Vinod might have been killed by other persons and the appellants have been falsely implicated. It was further submitted that the presence of this witness on the spot is suspicious because this witness did not interfere in the matter specifically when gunshot injuries were being caused to his son. It is also the case of the appellants that Brijendra Yadav (PW4) and Vikram Singh Yadav (PW5), who were the eyewitnesses have not stated about the presence of this witness on the spot. However, it is fairly conceded by the counsel for the appellants that Brijendra Yadav (PW4) and Vikram Singh Yadav (PW5) have turned hostile on the question of identity. It was further submitted that this witness had claimed that he had fallen down on the dead body of his son Vinod and his clothes also got cloaked with the blood. However, by referring to the evidence of Investigating Officer, it was submitted by counsel for appellant that since no blood stains were found by the I.O. on the clothes of this witness and even the clothes of this witness were not seized, therefore it is clear that the presence of this witness on the spot was unrealistic.

So far as the fact as to whether the clothes of this witness had got stained with the blood of Vinod and as to whether this witness had fallen down on the dead body of Vinod is concerned, in the considered opinion of this Court there are always some embellishments and improvements in the evidence of the witnesses. There is a tendency of improving the evidence to make their evidence more trustworthy. However, such a circumstance cannot be a good ground to discard the evidence of the eyewitness, who had lodged the Dehati Nalishi within 1 hour of the incident. Minor improvements in the evidence cannot be a ground to disbelieve the evidence. The Courts must not pick up one or two sentences while appreciating the evidence. The Supreme Court in the case of Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra, reported in (2010) 13 SCC 657 has held as under :

It is also not out of place to mention here that FIR (Ex.P/16) was recorded at 09:30 a.m. i.e. within 1 and a half hours of the incident. According to Sobaran Singh (P.W.1), the police had reached the spot at 08:30 a.m. and the Dehati Nalishi was lodged at 09:00 a.m. Therefore, it is clear that all proceedings took place within short period of time thereby giving no opportunity to any witness to deliberate upon the incident. Thus it is clear that this witness was present on the spot and he had witnessed the incident. Although the counsel for the appellant has also referred to the evidence of Sardar Singh (PW2) to claim that after the incident Sughar Singh and Sobaran Singh (P.W.1) had come from village Rampura on their motorcycle and reached to the hospital as soon as the dead bodies reached to the hospital, but this Court is of considered opinion that said aspect is not sufficient to disbelieve the prosecution witness Sobran Singh (PW1). The prompt recording of FIR/Dehati Nalishi is an indicative of the fact that the witness had actually seen the incident. Furthermore there is another aspect in the matter which cannot be lost sight of. A suggestion was given to this witness in his cross-examination that this witness ran away from the spot after the gunshots were fired. This suggestion given to this witness can be treated as an admission on the part of the accused persons with regard to the presence of this witness on the spot. The Supreme Court in the case of Balu Sudam Khalde v. State of Maharashtra reported in (2023) 13 SCC 365 has held as under:-

(Underline Supplied)

So far as the reference to the evidence of Sardar Singh (PW2) to show that Sobaran Singh (P.W.1) had reached the hospital after the incident from his Village Rampura is concerned, it is suffice to mention here that a similar suggestion was also given to Sobaran Singh (P.W.1) in paragraph 37 of his cross-examination which was specifically denied by this witness. He denied that he reached to the spot after the incident and he also went to the hospital after the dead bodies had already reached to the hospital. As already pointed out, on the contrary, In paragraph 12 of his cross examination, this witness was given the suggestion that after this witness was noticed and challenged by the appellants, this witnesses had run away from the place of incident. Although this suggestion of running away from place of incident was denied, but in view of law laid down by Supreme Court in the case of Balu Sudan Khalde (Supra) it is held that the appellants themselves had admitted that this witness was on the spot at the time of incident. Further more, the evidence of this witness that indiscriminate firing was done by the accused persons/appellants is further corroborated by seizure of multiple fired cartridges from the spot.

From the reading of entire evidence of Sobaran Singh (P.W.1) it is held that he is a reliable witness and has been rightly relied upon by the Trial Court.

Brijendra Yadav (PW4) has claimed that accused Gandharv Singh, Harendra, Bharat, Manoj Singh, Ramkesh, Pawan, Shishupal, Kamlesh, Munna Singh, Pramod Yadav, Ballu alias Balveer, Ramveer Singh, Golu alias Rajendra are not known to him, whereas deceased Surendra and Vinod were known to this witness. He has also stated that at about 7:45-8:00 AM he was accompanying Vinod in his vehicle. He was driving the vehicle. The jeep was dashed by a red coloured tractor. The driver of the tractor had covered his face, therefore, he could not identify him. Thereafter, Vinod instructed him to stop the vehicle. As soon as Vinod and Surendra de-boarded the jeep, then the persons who were sitting on the trolley started firing. About 30-35 gunshots were fired. Some gunshots injuries were sustained by Vinod and Surendra. As this witness was afraid, therefore, he fell in the pit and thereafter he ran away by hiding his presence. Since this witness had turned hostile on the question of identity, therefore, he was declared hostile by the Public Prosecutor. He admitted that the persons who had fired the gunshots had covered their faces and they were hiding in a trolley which was covered by Tripal and accordingly he could not identify them. However, he stated that Gandharv Singh, Harendra Singh, Bharat, Manoj, Ramkesh, Pawan, Shishupal Singh, Kamlesh, Munna Singh, Pramod Yadav, Ballu alias Balveer, Ramveer, Golu alias Rajendra might have fired the gunshots, but he cannot say so. He denied that he has connived with the accused persons. This witness also denied the facts which were recorded in his police statement. Thus, it is clear that although this witness has supported the manner of incident but has turned hostile on the question of identity.

This witness was cross-examined and he stated that at the time of incident, he, Vinod, Surendra and Vikram were in the jeep. As soon as the tractor dashed the jeep, the gunshots were fired. The firing continued for 2-3 minutes. He claimed that at the place of incident, except he and Vikram, no other witness was there. He further admitted that while fleeing away, Vikram had called the Police and the Police had also reached on the spot within five minutes. He further admitted that the police had taken away the dead bodies of the deceased. He further claimed that after the incident, Sobaran had come directly to the hospital from Rampura.

Bikram Singh Yadav (PW5) has also turned hostile on the question of identity, but has supported the prosecution case regarding manner in which the incident took place. Thus the evidence of Brijendra (PW4) and Bikram Singh Yadav (PW5) can be considered only to verify the manner in which the incident took place and to corroborate the evidence of Sobaran (PW1) with regard to the manner in which the incident took place.

Now the only question for consideration is as to whether Sardar Singh (PW2) Dhruv Singh Yadav alias Bunti (PW3) and Dilip Singh Gurjar (PW6) are trustworthy eyewitnesses or not?

Sardar Singh (PW2) has stated that the incident had occurred at about 8 AM. The incident took place at a distance of 200-250 feet away from his Tubewell. At the time of incident, he was at his Tubewell along with Dhruv alias Banti (PW3) who is his nephew. The vehicle of Vinod had come to his Tubewell and Vinod had asked Banti to accompany him, then Banti told him to go and he would come after collecting vegetables. Sobaran Singh, Surendra Singh, Brajendra, Vikram and Vinod were in the vehicle. The vehicle was of white colour but this witness could not tell about the name of the company of the jeep. When the vehicle moved forward to a distance of 200-250 feet from the tubewell, it was dashed by the tractor. After the tractor dashed the Jeep, he reached on the spot along with Banti. As soon as they reached on the spot, gunshots were fired. This witness also stated that gunshots were fired by Kamlesh, Ramkesh, Shishupal, Harendra Singh, Pramod, Manoj, Pawan and the tractor was being driven by Gandharv. He further stated that after hearing the gunshots, he and Banti fell in the pit. About 15-20 gunshots were fired towards Vinod and Surendra. Gunshots were fired towards the witnesses also but they survived. The accused persons ran towards Duda. Thereafter, Banti informed the police and police also reached on the spot. Vinod and Surendra were lying dead on the spot. The report was lodged by Sobaran Singh.

This witness was cross-examined. Certain minor omissions and contradictions were got proved. In his cross-examination, he stated that at the time of occurrence he was at his tubewell. He does not know as to whether the jeep was deliberately dashed or it was an accident. However, the gunshots were fired after two minutes of the incident of dashing the jeep. After hearing the noise of gunshots, he rushed towards the place of incidence. He denied that he was also an accused of murder of Ravi. However, he claimed that he was falsely implicated. Vinod was an accused in the said case. He denied that his statement was recorded on the next day of incident. He on his own stated that his statement was recorded on the date of incident. He admitted that Sobaran, Vinod, Sughar Singh are his relatives. Sughar Singh is his real Bahnoi and a resident of Rampura. At the time of postmortem, he had also reached to Lahar hospital. He claimed that report was lodged in Lahar hospital. He further stated that Sobaran Singh, Sughar Singh also came from Rampura on their Motorcycle. Police had also obtained signatures of Sobaran Singh in hospital at 2-3 places. He further admitted that in the case of murder of Ravi, accused Kamlesh had supported the family of Ravi. He further admitted that it was his understanding that name of this witness and deceased Vinod were implicated by Kamlesh in the case of murder of Ravi. It was also the understanding of Sobaran Singh and Sughar Singh. He further admitted that appellant Pramod and Ramveer are cousin brothers of Ravi. Appellant Gandharv is uncle of Ravi whereas Bharat and Munna are also cousin brothers of Ravi. He admitted that in the trial of murder of Ravi, Manoj, his father, appellant Gandharv Singh and family members of Manoj did not disclose their names and, accordingly this witness and Vinod were acquitted. He further admitted that he along with others had lifted the dead bodies of deceased from the spot and, accordingly his clothes also got stained with blood of deceased, but police did not seize clothes of witnesses. He further stated that after getting released on bail, he had sold certain land to Kaptan. He denied that he had sold certain land to Komal Yadav also. He further denied that he had sold his house to Komal Yadav. He further admitted that Komal Yadav was cultivating the land which was originally belonged to him. He further admitted that at the time of incident, Komal Yadav had temporary connection. He denied that he was not present on the spot. He denied that Gandharv Singh was not driving the tractor.

Dhruv Yadav alias Banti (PW3) has also narrated the incident in the same manner. He has also stated that he was picking vegetables at the time of incident. At that time, his brother had come on his Bolero Jeep and inquired from him as to whether he would accompany him or not. He replied that he would follow them after picking up the vegetables. The vehicle had moved for 30-40 feet where it was dashed by the tractor. After hearing the noise, he went towards the place of occurrence to find out as to who had dashed the vehicle. Then at that time, the accused persons started firing indiscriminately. He further stated that after the Bolero Jeep was dashed, Vinod, and Surendra had de-boarded the Jeep and had scolded the accused, Gandharv Singh, about the manner of driving the tractor. 20-25 gunshots were fired. His brother Vinod and deceased Surendra had sustained multiple gunshot injuries. He had seen Kamlesh Yadav, Shishupal Gurjar, Pawan, Manoj, Harendra, Pramod, Ramkesh were firing. Munna and Bharat were having Lathi. He had witnessed the incident from a distance of 25 feet. At the time of occurrence, the Jeep was being driven by Brijendra (PW4), whereas his brother Vinod (the deceased) was sitting by the side of the driver. Surendra, Sobaran Singh, and Dilip were sitting on the middle seat of the Jeep, whereas Vikram was sitting on the back seat. This witness immediately informed the constable Kriparam, who was posted at police station Aswar, and thereafter, he and Sardar Singh (PW2) reached to the place of occurrence. They had noticed the dead body of Vinod and Surendra. They did not do anything till the arrival of the police. The police had inquired from the witnesses. Sobaran Singh had lodged a report. The police had stayed back at the place of occurrence for about one and a half hours. The dead bodies of Vinod and Surendra were shifted to police station. The mining lease was in the name of Vinod. He further stated that along with him, his maternal uncle and his Tau (Sobaran Singh) were also on the spot, and therefore, he did not run away at the time of incident. Police had recovered fired cartridges of Mouser and 12 bore gun. He admitted that lot of criminal cases were registered against his brother Vinod. However, he expressed his ignorance about the nature of the offences. He further stated that when Vinod and Surendra were sitting in their Bolero Jeep, at that time, no gunshot was fired at the Jeep.

Similarly, this witness was further examined on 18/2/2016 in respect of accused Golu alias Rajendra. Since Golu alias Rajendra Yadav has been acquitted, therefore, the evidence of this witness shall be considered while considering Cr.A. No.2053/2019.

Dilip Singh Gurjar (PW6) is another eyewitness. He has also narrated the incident in the same manner. He is the brother of the deceased Surendra. He has stated that he was in the Bolero Jeep along with deceased and other witnesses. He has also narrated the incident in detail as has been done by the other witnesses. In cross-examination, he stated that “Hare Ram Hare Krishna” and ―Kunwar Rahul Gurjar Bhai Anshul” were written on the trolley. Certain minor omissions and contradictions were also got proved from the records. He further stated in paragraph 10 of his cross-examination that on 13/5/2015, he along with Vinod, Sobaran, Surendra, Brijendra, Vikram and all the accused persons had a dinner in Girvasa school. The dinner continued up to 9-10 of the night. He claimed that no gunshot was fired from the complainant side.

The Trial Court, by assigning reasons in paragraphs 125 and 126 of the judgment, has disbelieved Sardar Singh (PW2), Dhruv Yadav alias Bunti (PW3) and, Dilip Singh Gurjar (PW6).

For disbelieving Sardar Singh (PW2) and Dhruv Yadav alias Bunty (PW3), the trial Court has held that these witnesses have stated that before reaching to the place of occurrence, the Bolero Jeep had passed by the side of the tube well, and Vinod had requested Banti to accompany him. However, it was held that this fact is not mentioned in their police statements (Ex.D/2 and Ex.D/3). Sardar Singh (PW2) and Dhruv Yadav alias Bunti (PW3) in their police statement had stated that the people used to commit theft of earth and sand from the mines of Sardar Singh and, for watching the same, they had gone to the mines, but that fact indicates that the presence of these witnesses is that of a chance witness. It was also held that Sardar Singh (PW2) has stated that after the police reached on the spot, then he saw the dead bodies of Surendra and Vinod, whereas according to the witnesses, both the witnesses were present at the spot, but they did not sign any document of investigation. The statements of these witnesses were not recorded on 14/5/2015, and accordingly, it was held that both the witnesses had reached to place of incident as a chance witness. They did not participate in any police proceedings or investigation. Their police statements were not recorded on the very same day. Both the witnesses were closely related to the others, but even then they did not inform the police. They waited for police to arrive to the place of incident, and the police had also reached to the place of occurrence about one hour after the incident. Accordingly, it was held that Sardar Singh (PW2) and Dhruv alias Bunti Yadav (PW3) are not reliable witnesses.

According to these witnesses, they were already working at the nearby place. It is not the case of the defence that the fields where the witnesses were allegedly working did not belong to them.

Now the next question for consideration is as to whether the findings given by the Trial Court that these witnesses were the chance witnesses is correct or not and even if these witnesses are treated as chance witnesses, then, what would be the reliability and credibility of the evidence of chance witnesses?

As already pointed out, the names of Sardar Singh (PW2) and Dhruv alias Banti Yadav (PW3) are mentioned in the Dehati Nalishi (Ex.P/1) as eyewitnesses and it has been specifically alleged that when the offence was being committed, these witnesses had reached on the spot. If the presence of a chance witness has been satisfactorily explained, then his evidence cannot be rejected by saying that he was a chance witness.

The Supreme Court in the case of State of U.P. v. Jodha Singh, reported in (1989)3 SCC 465 has held as under:-

The Supreme Court in the case of Dargahi v. State of U.P. reported in (1974) 3 SCC 302 has held as under:-

The Supreme Court in the case of Namdeo v. State of Maharashtra reported in (2007) 14 SCC 150 has held as under:-

The Supreme Court in the case of Khujji v. State of M.P. reported in (1991) 3 SCC 627 has held as under:-

The Supreme Court in the case of Rana Partap v. State of Haryana reported in (1983) 3 SCC 327 has held as under:-

The Supreme Court in the case of Ramveer v. State of U.P. reported in (2009) 15 SCC 254 has held as under:-

The Supreme Court in the case of Jarnail Singh v. State of Punjab reported in (2009) 9 SCC 719 has held as under:-

The Supreme Court in the case of Baby v. Inspector of Police reported in (2016) 13 SCC 333 has held as under:-

Thus, it is clear that if the presence of a witness has been satisfactorily explained and the incident has taken place on a street where lot of persons move in their natural course of life, under these circumstances, such witnesses cannot be said to be chance witnesses.

Therefore, it is clear that although evidence of a chance witness is to be appreciated minutely, but their evidence cannot be discarded merely on the ground that they are the chance witnesses.

As already pointed out, the defence has not challenged the ownership of the field where Sardar Singh (PW2) and Dhruv (PW3) were working. They immediately rushed to the place of occurrence. Their presence is also mentioned in the Dehati Nalishi (Ex.P/1) which was lodged within one hour of the incident Although it is the case of Dhruv Yadav alias Bunti (PW3) that he had also informed the constable Kriparam but even assuming that if these witnesses did not inform the police on mobile, then that by itself would not be sufficient to discard their presence because everything happened in such a quick succession where two persons had lost their lives and indiscriminate firing had taken place. Further, the police had also reached on the spot immediately after the incident. Thus, this Court is of considered opinion that the reasons for disbelieving these two witnesses, given by the trial Court cannot be approved. Accordingly, the reasons assigned by the trial court to discard Sardar Singh (PW2) and Dhruv Yadav alias Bunti (PW3) are hereby set aside and it is held that Sardar Singh (PW2) and Dhruv Yadav alias Bunti (PW3) are reliable witnesses.

At this stage, it is submitted by the counsel for the appellants that Sardar Singh (PW2) has admitted that Sughar Singh and Sobaran Singh (PW1) had also reached to the hospital from Rampura on their motorcycle, therefore, it is clear that Sobaran Singh (PW1) was not an eye witness.

Considered the submissions made by Counsel for Appellants.

It is suffice to mention here that a stray statement either this way or another, by a witness cannot be treated as fatal to the other circumstances and other aspects of evidence led by the prosecution. The Supreme Court in the case of Mustak Vs. State of Gujarat reported in (2020) 7 SCC 237 has held as under:-

So far as the evidence of Dilip Singh Gurjar (PW6) is concerned, the same has been disbelieved by the trial Court by assigning reasons in paragraph 126 of its judgment. The trial Court has held that on 13.05.2010, the witnesses, along with the deceased, had a joint dinner and therefore his contention that in the morning they were coming from a different direction cannot be accepted. This witness like Sardar Singh (PW2) and Dhruv Singh (PW3) also did not participate in any of the police investigation. It was further held that this witness has tried to give clean chit to some of the accused persons.

Merely because on a previous night, the witnesses as well as the accused and the deceased persons had a dinner which continued upto 9-10 pm, it cannot be said that in the morning they cannot face each other by coming from a different direction. So far as the reasons for disbelieving Dilip Singh (PW6) that he has not stated against some of the accused person is concerned, it is suffice to mention here that the principle of falsus in uno and falsus in omnibus has no application in the country and the Court must try to separate the grain from the chaff. Furthermore, minor omissions or contradictions are indicative of truthfulness of the witnesses and therefore, minor omissions and contradictions cannot be given undue importance. Under these circumstances, the reasoning reasons assigned by the trial Court for disbelieving Dilip Singh Gurjar (PW6) as an eye witness is also hereby set aside and it is held that Dilip Singh Gurjar (PW6) is also a reliable witness.

So far as the observation made by the trial Court that Sardar Singh (PW2), Dhruv Yadav alias Bunti (PW3) and Dilip Singh Gurjar (PW6) did not participate in any of the investigation is concerned, it is suffice to mention here that the same cannot be a criterion to disbelieve the presence of the witnesses. Even otherwise, Sardar Singh (PW2) and Dilip Singh Gurjar (PW6) were the recipients of Safina form (Ex.P/4). Safina form was prepared on 14.05.2015 itself and the witnesses were called upon to carry out the inquest inspection. Inquest inspection (Ex.P/7) was prepared on 14/5/2015 itself which was signed by Sardar Singh (PW2) and Dilip Singh (PW6). (Sardar Singh had put his thumb impression.) Dilip Singh (PW6) had received the dead body of the deceased Vinod on 14/5/2015 vide Ex.P/8. Thus the observation made by the trial Court that the witnesses which were disbelieved by it had not participated in the police investigation is incorrect and is contrary to the record. Furthermore, it is the prerogative of the investigating officer that which person should participate in which part of investigation. Furthermore, no clarification was sought from the investigating officer as to why he did not allow Dhruv Yadav @ Banti to participate in atleast few investigation proceedings. Accordingly, it is held that Sardar Singh (PW2), Dhruv Yadav alias Bunty (PW3) and Dilip Singh Gurjar (PW6) are all reliable witnesses.

Under these circumstances, it is held that the prosecution has successfully proved beyond reasonable doubt that the appellants (Except Ramveer) had killed Vinod and Surendra by indiscriminately firing after forcibly stopping the vehicle of deceased Vinod by dashing it with the help of the tractor which was being driven by Gandharv Singh.

So far as the conviction of Ramveer Yadav for offence under Section 404 of IPC is concerned, it is suffice to mention here that the Counsel for the appellant Ramveer did not challenge the seizure of one mouzer gun belonging to the deceased Surendra from his possession. The appellant Ramveer has also not given any explanation as to how he came in possession of gun of deceased Surendra. Therefore, it is held that the Trial Court has rightly convicted the appellant Ramveer for offence under Section 404 of IPC.

It is next contended by Counsel for Appellants that the FSL report donot implicate the appellants (Except Ramveer) in the offence, therefore, the evidence of eye witnesses is not reliable.

Considered the submissions made by Counsel for appellants.

Before considering the effect of scientific evidence, this Court would like to summarize the dates of arrest, memorandums and seizure of weapons from the accused persons. Exhibit Remark P/10 Memorandum of Pramod dated 07/01/2016. P/11 Seizure of country-made pistol of .315 bore and one .315 bore live cartridge from Pramod Singh Yadav on 07.01.2016. P/12 Memorandum of Harendra dated 08/06/2015. P/13 Seizure of one country made pistol of .315 bore and one live cartridge of mouser from Pavan Yadav on 20.08.2015. P/14 Arrest memo of Pavan Yadav dated 20/08/2015. P/15 Seizure memo of blood-stained earth near the dead body of Vinod Yadav. Plain earth near the dead body of Vinod Yadav. Blood-stained earth near the dead body of Surendra Gurjar. Plain earth near the dead body of Surendra Gurjar. Thirteen empty cartridges of .315-bore. One live cartridge of .315 bore. Three 12-bore fired empty cartridges, out of which 2 were red in colour and 1 was yellow in colour. Three live cartridges of red colour of 12 bore. One red-coloured Mahindra tractor whose front wheel had separated, on which S Gurjar S was written on the bumper; One trolley of blue-colour on which ―Hare Ram, Hare Kirshna‖ and ―Ku. Rahul Gurjar Bhai Anshul‖ was written. One white-coloured Bolero Jeep bearing registration No. MP07-CD-2751, multiple holes on the windshield caused on account of gunshots. The glass middle window of the driver side of jeep was broken. A dent was on the body of the driver's side of the jeep with hole; One belt carrying 19 live cartridges of .315-bore was found on the floor of the middle seat of the jeep; One bullet of .315-bore fired cartridge was found on the floor of the driver's seat of the jeep; and one gun licence in the name of Surendra Singh Gurjar was also found in the jeep. P/16 FIR P/17 Seizure of clothes of deceased Surendra and Vinod P/18 Arrest memo of Gandharv Singh Yadav, dated 31/05/2015. P/19 Arrest memo of Bharat Singh Yadav, dated 31/05/2015. P/20 Arrest memo of Manoj Yadav, dated 31/05/2015. P/21 Memorandum of Gandharv Singh, dated 31/05/2015. P/22 Memorandum of Manoj, dated 31/05/2015. P/23 Memorandum of Bharat Singh, dated 31/05/2015. P/24 Seizure of one lathi from Bharat Singh P/25 Seizure of one country-made mouser and one live cartridge from Manoj Yadav P/26 Arrest memo of Harendra Yadav, dated 07/06/2015. P/27 Memorandum of Harendra Yadav dated 07/06/2015. P/28 Seizure of one 12-bore single-barrel gun which was a licensed gun and 5 rounds of 12-bore live cartridges from Harendra Yadav P/29 Arrest memo of Munna Singh, dated 14/06/2015. P/30 Memorandum of Munna Singh dated 14/06/2015. P/31 Seizure of one lathi from Munna Singh on 14-6-2015 P/32 Arrest memo of Ramkesh Yadav dated 18/08/2015. P/33 Memorandum of Ramkesh, dated 18/08/2015. P/34 Memorandum of Ramkesh, dated 19/08/2015. P/35 Memorandum of Pavan Yadav dated 20/08/2015. P/36 Arrest memo of Shishupal Singh Gurjar, dated 11/09/2015. P/37 Memorandum of Shishupal Singh Gurjar dated 12/09/2015. P/38 Seizure of one mouser gun, two live cartridges of mouser and one photocopy of licence from Shishupal Singh on 13-9-2015 P/38 Requisition and post mortem report of Vinod Singh. P/39 Requisition and post mortem report of Surendra Singh. Memorandum of Shishupal Singh Gurjar, dated 12/09/2015. P/40 Memorandum of Shishupal Singh Gurjar, dated 13/09/2015. P/41 Memorandum of Shishupal Singh Gurjar, dated 14/09/2015. P/42 Memorandum of Shishupal Singh Gurjar, dated 15/09/2015. P/43 Arrest memo of Kamlesh Yadav, dated 17/09/2015. P/44 Memorandum of Kamlesh Yadav, dated 17/09/2015. P/45 Arrest memo of Pramod Singh Yadav, dated 06/01/2016. P/46 Arrest memo of Ramveer Yadav, dated 19/01/2016. P/47 Memorandum of Ramveer Yadav, dated 19/01/2016. P/48 Seizure of one licensed Mouser gun belonging to deceased Surendra from Ramveer Yadav on 19-1-2016 P/49 Arrest memo of Ballu Yadav, dated 13/01/2016. P/50 Arrest memo of Golu Yadav, dated 04/02/2016. P/51 Memorandum of Rajendra alias Golu, dated 05/02/2016. P/52 Letter of S.P. Bhind to Director State FSL, Sagar, dated 11/01/2016, for ballistic report of one .315-bore country-made pistol and one .315 bore live cartridge seized from Pramod Singh. P/53 Letter to Director State FSL, Sagar, for examination of the seized earth, fired cartridges etc. seized from the spot, as well as recovered from Manoj and the clothes of the deceased. P/54 Permission to prosecute under the Arms Act in respect of Manoj. P/55 Permission to prosecute under the Arms Act in respect of Pramod. SP/1 to Photographs of Bolero vehicle. SP/3 SP/4 Report of FSL Sagar in respect of the requisition relating to P/52. SP/5 Report of FSL, Sagar in respect of P/53. SP/6 Report of Scientific Officer, Regional Forensic Science Laboratory.

As per FSL report, Ex. SP4, firing impressions found on EC1 to EC13 (Fired empty cartridges which seized from spot) were not fired from .315 bore country made pistol seized from Pramod on 7-1-2016. Similarly, as per FSL report, Ex. SP5, the EC1 to EC13 were not fired from .315 bore Mouzer seized from Manoj on 31-5-2015, but they were fired from four different .315 bore fire arms.

Thus, at the most, it can be said that the prosecution has failed to recover the weapon of offence. It is not out of place to mention here that the incident took place on 14-5-2015, whereas appellant Pramod was arrested on 7-1-2016 i.e., after 6 months of the incident, whereas appellant Manoj was arrested on 31-5-2015 i.e., after 17 days of incident. The appellants had ample opportunity to destroy the weapons of offence. The seizure of weapon is made on the production of the weapons by the accused persons. If an accused with an intention to mislead the prosecution, deliberately produces a weapon other than the weapon used by him, then he cannot be allowed to take advantage of his own misadventures act.

The Supreme Court in the case of Goverdhan v. State of Chhattisgarh reported in (2025) 3 SCC 378 has held as under :

Thus, non recovery of weapon of offence is not fatal to the prosecution case and would not make the evidence of eye witnesses unreliable.

Therefore, the conviction of the appellants Pramod, Kamlesh, Harendra, Ramkesh, Shishupal, Manoj and Pawan for offence under Sections 302 read with 149, 148 of IPC and under Section 11/13 of MPDVPK Act is here by affirmed. Similarly, the conviction of Pawan and Manoj for offence under Section 25(1-B)(a) of Arms Act also is hereby affirmed. The conviction of Ramveer Yadav for offence under Section 404 of IPC is hereby affirmed.

So far as the question of sentence is concerned, since the minimum sentence for the offence under Section 302 of the IPC is life imprisonment, therefore, the sentence awarded by the trial Court does not call for any interference. Similarly, the manner in which, the offence was committed, the sentence awarded by the trial Court to appellant Ramveer under Section 404 of IPC does not call for any interference.

Ex consequenti, the judgment and sentence dated 26/08/2016 passed by the Additional Sessions Judge & Special Judge (Dacoity), Lahar, District Bhind in Special Sessions Trial (Dacoity) No. 73/2015 is hereby affirmed.

Appellant Ramveer Singh is on bail. His bail bonds stand cancelled and he is directed to immediately surrender before the trial Court for serving out the remaining jail sentence. The appellant Pramod by order dated 28-7-2026 was granted temporary bail upto 5-8-2026. It is not known as to whether he has surrendered or not. Accordingly, it is directed that if appellant Pramod has not surrendered, then he would immediately surrender for undergoing the remaining jail sentence. All other appellants are in jail. They shall undergo the remaining jail sentence. They be intimated with the result of his appeal through Jail Superintendent concerned also.

Let a copy of the judgment be sent to the trial Court along with record of the trial Court.

Criminal Appeal No. 892/2016 filed by appellants Harendra, Manoj Singh, Ramkesh, and Pawan, Criminal Appeal No. 902/2016 filed by appellants Pramod Yadav and Shishupal, Criminal Appeal No. 925/2016 filed by appellant Kamlesh Yadav and Criminal Appeal No. 981/2016 filed by appellant Ramveer Singh are hereby dismissed.