Allahabad High Court
MAHESH ALIAS MUNNA YADAVversusSTATE OF U.P.
- Decided
Holding
The conviction of Mahesh alias Munna Yadav under Sections 302 IPC and 27/30 Arms Act is affirmed.
Summary
The appellant Mahesh alias Munna Yadav was convicted for murder and offences under the Arms Act arising from a land‑dispute‑related shooting that killed Bhola Yadav and Vinod Yadav. The prosecution relied on the informant’s statement, medical post‑mortem reports, forensic ballistics linking the seized 7.65 mm pistol to the recovered cartridges, and the appellant’s possession of the weapon when he attempted to flee. The defence challenged the credibility of the FIR, alleged contradictions in wound sizes suggesting multiple weapons, and the hostile testimony of two eye‑witnesses. The High Court held that minor inconsistencies in witness statements do not defeat the prosecution, that variations in entry‑wound dimensions are explainable, and that the forensic and circumstantial evidence sufficiently proved the appellant’s guilt. Consequently, the court affirmed the trial court’s conviction and dismissed the appeal.
Issues considered
- The adequacy of the prosecution evidence to sustain a conviction for murder under Section 302 read with Section 34 IPC.
- Whether the forensic ballistics evidence establishes that the pistol recovered from the appellant was the weapon used in the killings.
- Whether hostile witness testimony can be relied upon to support the prosecution case.
- Whether the manner of FIR preparation affects its reliability.
- The significance of differing entry‑wound sizes on the deceased in determining the number of firearms used.
Legislation cited
- Arms Act — s. 27, 30
- Code of Criminal Procedure, 1973 — s. 313
- Indian Evidence Act, 1872 — s. 8
- Indian Penal Code — s. 302, 34
Subjects
- murder
- IPC 302
- common intention
- Arms Act
- forensic ballistics
- hostile witness
- FIR authenticity
- land dispute
- conviction
- appeal
Judgment
AFR
Reserved on 19.01.2026
Delivered on 18.03.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 3410 of 2016
Mahesh Alias Munna Yadav …..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Aditya Kumar Yadav, Anil Kumar
Mehrotra, Arvind Srivastava,
Birendra Singh, Indra Kumar,
Kamal Krishna, Neeja Srivastava,
Prashant Sharma, Rishabh Kumar,
Sikandar B. Kochar
Counsel for Respondent(s) : G.A.
Court No. - 48
HON'BLE CHANDRA DHARI SINGH, J.
HON'BLE DEVENDRA SINGH-I, J.
Per: Hon’ble Chandra Dhari Singh,J.
1. The instant Criminal Appeal has been preferred by the
accused-appellant- Mahesh @ Munna Yadav against a judgment
and order dated 27.06.2016 passed by learned Additional District
and Sessions Judge, Varanasi in Sessions Trial No. 391 of 2014
arising out of Case Crime No. 101 of 2014, under Section 302/34
I.P.C. and 27/30 Arms Act, Police Station Bhelupur, district
Varanasi, convicting and sentencing the appellant as under:-
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(a) Imprisonment for life and fine of Rs. 15,000/- for the offence
under Section 302 I.P.C. and in default of payment of fine, two
years additional imprisonment.
(b) Imprisonment for three years and fine of Rs. 1,000/- for the
offence under Section 27 Arms Act and in default of payment of
fine, three months' additional imprisonment.
(c) Imprisonment for six months for the offence under Section 30
Arms Act.
All the sentences were ordered to run concurrently.
2. By the same judgment and order, the learned Judge
acquitted co-accused Hari Shankar @ Yadavji and Sohan Yadav
from the charges levelled against them.
Brief Facts
3. In nutshell, the case of the prosecution is that a written
report was filed by Manoj Kumar Yadav, son of Bhola Yadav,
resident of B-38/62 Mahmurganj, Varanasi stating inter-alia that
on 16.03.2014, his father namely Bhola Yadav along with his
brother Mahesh Yadav @ Munna, Hari Shankar @ Yadav, Sohan
Yadav and Vinod Kumar came at the door of his house and
started abusing his father over a dispute of land. When his father
resisted them, Sohan Yadav and Hari Shankar @ Yadav have
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exhorted to assault him. On their exhortation, Munna Yadav has
resorted to indiscriminate firing from his pistol. When Vinod Yadav
came to intervene, his father Bhola Yadav and Vinod Yadav have
received firearm shot. After receiving firearm injuries, his father
and Vinod Yadav fell down, whereas, accused Munna Yadav, Hari
Shankar and Sohan ran away from the place of incident. It is also
stated that he, his mother and his sister witnessed the incident
from a window. After the arrival of police, they were immediately
taken to the hospital and during the treatment, they have died.
The said written report of the incident was sent to the Police
Station, which was marked as Ext.Ka.1.
4. On the basis of aforesaid written report, the First
Information Report was lodged at Case Crime No. 101 of 2014,
under Section 302 I.P.C., Police Station Bhelupur, District
Varanasi on 17.03.2014 at 00:45 AM, which was marked as
Ext.Ka.4.
5. After registration of the aforesaid case, the law set into
motion and investigation of the aforesaid case has started.
6. After culmination of investigation, the investigating officer
has submitted charge-sheet no. 70 of 2014 on 26.05.2014, which
was marked as Ext.Ka.12.
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7. As the case was exclusively triable by the Court of Sessions,
the learned Magistrate committed the case to the Court of
Sessions, where case was registered as Sessions Trial No. 391 of
2014. Learned Sessions Judge, Varanasi vide order dated
05.08.2014 framed charges against the accused appellant for the
offence under Section 302 read with Section 34 I.P.C. and
Sections 27/30 Arms Act, which were read over and explained to
the accused-appellant, who pleaded not guilty and claimed to be
tried.
8. To bring home the guilt of the accused-appellant beyond
the hilt, the prosecution has examined as many as nine
prosecution witnesses, out of whom Manoj Kumar Yadav
(PW-1/informant), Meera Yadav (PW-2), Chavi Yadav (PW-3) are
witnesses of fact, whereas, Dr. S.B.S. Kushwaha (PW-4), Dr.
Govind Prasad (PW-5), Santosh Kumar Yadav (PW-6), S.I.
Parshuram Singh (PW-7), Inspector Vinay Kumar Singh (PW-8)
and S.I. Shyam Sundar Yadav (PW-9) are formal witnesses.
9. Manoj Kumar Yadav (PW-1), who is the informant of this
case and son of the deceased-Bhola Yadav has deposed that on
16.03.2014 at about 10:30 P.M., his father Bhola Yadav along
with accused Mahendra Yadav @ Munna, Hari Shankar @ Yadav,
Mohan Yadav and Vinod Yadav came at the door of his house and
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started abusing each other over a land dispute. As soon as his
father (Bhola Yadav) resisted not to hurl abuse, Sohan Yadav and
Hari Shankar @ Yadav exhorted and Munna Yadav resorted to
indiscriminate firing from his pistol. In the said incident, his father
Bhola Yadav and Vinod Yadav have received firearm injuries, due
to which they fell down, whereas the accused persons ran away
from the place of incident. He has witnessed the said incident
from a window. There was dark outside and he couldn’t see. His
father-Bhola Yadav and Vinod Yadav were taken to the hospital,
where they succumbed to their injuries.
10. Smt. Meera Yadav (PW-2), who is wife of the deceased-
Bhola Yadav in her deposition has stated that she does not know
how her husband was murdered but her husband was died from a
gunshot wound. She also stated that she does not know that who
has shot her husband. Her husband was murdered about 10:30
P.M. She does not remember that at the time of incident, whether
there was electricity or not. She does not know Hari Shankar
Yadav. Accused-appellant Mahesh is her brother-in-law, whereas
accused-Sohan Yadav is in her relation (brother-in-law).
11. Smt. Chavi Yadav (PW-3) in her deposition has stated that
the incident in question took place on 16.03.2014, however, she
does not know how her father was murdered. She further stated
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that her father and Vinod Yadav were murdered from gunshot
injury.
12. Dr. B.S.B. Kushwaha (PW-4) in his deposition has stated
that on 17.03.2014, he was posted as Medical Officer at Lal
Bahadur Shashtri Hospital, Ramnagar, Varanasi. At about 04:30
PM, he had conducted the post-mortem on the cadaver of the
deceased-Bhola Yadav at Post-Mortem House, B.H.U. As per post-
mortem, following ante-mortem injuries were found:-
(i) Fire arm entry wound 1cm x 1cm x brain deep on outer
canthus of left eye, surrounding skin containing margins
irregular, inverted.
(ii) Lacerated wound 3cm x 2cm x bone deep on left side
of head (parietal region) 6 cm out to midline 15 cm above
left ear.
(iii) Lacerated wound 3cm x 1cm x bone deep on right side
of head (parietal region) 5 cm outer to midline, 8 cm
medial to right ear.
On external examination, rigor-mortis was present all over the
body.
As per the opinion of doctor, the cause of death of the deceased-
Bhola Yadav was “coma as a result of firearm injury on head and
brain”.
A bullet was also recovered from the brain of the deceased which
was sealed and handed over to the constables.
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13. Dr. Govind Prasad (PW-5) in his deposition has stated that
on 17.03.2014, he was posted as Medical Officer at Pandit Deen
Dayal Upadhyay, Rajkiya Chikitsalaya. At about 05:00 PM, he had
conducted the post-mortem on the cadaver of the deceased-
Vinod Yadav. As per post-mortem, following ante-mortem injuries
were found:-
(i) Fire arm entry wound 0.5cm x 0.5cm x cavity deep on
left side of chest 3cm outer to midline 132 cm above to left
head. Wound surrounded by blackening in 3cm diameter.
(ii) Fire arm exit wound 1.5cm in diameter over left side
axillary region margin is inverted.
(iii) Fire arm entry wound 0.5cm x 0.5cm x brain deep on
right side back of head. 11Cm behind right ear. Bullet
recovered from brain.
(iv) Fire arm entry wound 0.5cm x 0.5cm x cavity deep on
inner side right buttock margin is inverted.
(v) Fire arm exit wound in 1cm diameter inverted margin
over right side perineum area .87cm above right head 5cm
outer to midline on right perinal side.
(vi) Multiple abraded contusion in area 12cm x 4cm over
forehead and nose.
(vii) Abrasion 2cm x 1cm over front of left leg just below
the left knee joint.
On external examination, rigor-mortis was present all over the
body.
As per the opinion of doctor, the cause of death of the deceased-
Vinod Yadav was “coma and hemorrhage shock as a result of
firearm injury to head and left lung”.
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14. Santosh Kumar Yadav (PW-6) in his deposition has verified
his signature on the written report (Ext.Ka.1) and stated that he
had written the above application on the dictation of the
investigating officer of this case, not on the dictation of the
informant-Manoj Kumar Yadav. Informant has also not put his
signatures on his (PW-6) presence. The investigating officer had
only took his statement and asked for his name and address.
15. S.I. Parshuram Singh (PW-7) in his deposition has stated
that on 17.03.2014, he was posted at Police Station Bhelupur on
the post of Head Moharir. On the basis of aforesaid report of the
informant, he registered a Chik F.I.R. against the accused-
appellant and two others at 00:45 hours, which was marked as
Ext.Ka.4. The said Chik F.I.R. was entered into G.D. vide Report
No. 2, which was marked as Ext.Ka.5.
16. Inspector Vinay Kumar Singh (PW-8), who stated that on
16.03.2014, he received an information about indiscriminate firing
in the area of Police Station Bhedupur. The complaint about the
said incident was made by Manoj Yadav (hereinafter referred to
as ‘informant’), who gave a written complaint which was
registered as Case Crime No. 101 of 2014, under Section 302
I.P.C. Thereafter, he started the investigation of the case. On
17.03.2014, he reached at the place of incident, collected blood-
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stained earth and plain earth in two different boxes, which were
separately sealed, and was marked as Ext.Ka.6. The sealing
proceedings were carried out in the presence of public witnesses
Ankur Yadav and Rajesh Yadav. The blood-stained earth,
recovered from the spot where the dead body of the deceased-
Bhola Yadav was lying, was identified by the witness as the same
earth which had been collected and sealed at the place of
occurrence. The same has been marked as Material Exhibit-I.
Blood-stained earth, recovered from the spot where the dead
body of the deceased-Vinod Yadav was lying, was also identified
and was marked as Material Exhibit-III. On 18.03.2014, he
inspected the place of occurrence and prepared the site plan,
which was marked as Ext.Ka.7. On 18.03.2014, while conducting
a checking near Sonarpura bypass, he intercepted a suspicious
Scorpio car bearing registration no. UP 54 F 5012. On seeing the
police personnel, the accused persons attempted to flee but were
apprehended. Upon personal search, accused Harishankar Yadav
was found in possession of Rs. 1,050/-, accused Sohan Yadav
was found in possession of Rs. 600/- and accused Mahesh Kumar
Yadav @ Munna was found with one country-made pistol
(7.65mm) loaded with two live cartridges. The weapon and
cartridges were duly seized. On 20.03.2014, he had recorded the
statement of eye-witnesses, namely, Meera Yadav (PW-2) and
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Ms. Chavi Yadav (PW-3), who have supported the prosecution
case. On 24.03.2014, he had prepared the inquest report and also
recorded the statement of witnesses of inquest. On 01.04.2014,
he had recorded the statement of Dr. S.B.S. Kushwaha, who
stated that on 17.03.2014, he conducted the post-mortem
examination on the cadaver of the deceased-Bhola Nath Yadav.
He had also recorded the statement of Dr. Govind Prasad, Medical
Officer, S.I. Shyam Sundar Pandey and Constables Kedar and
Shubhash Rai. On 27.04.2014, the Majeed Byaan (additional
statement) of the informant was recorded and the same was
made as a part of case diary. On 26.05.2014, he sent the
recovered country-made pistol, cartridges and empty shells to the
Forensic Science Laboratory for examination.
17. S.I. Shyam Sundar Pandey, Crime Branch, Varanasi (PW-9)
in his deposition has stated that on 17.03.2014, he arrived at the
place of incident. He conducted the inquest proceedings on the
dead bodies of the deceased-Bhola Yadav as well as Vinod Yadav,
which were marked as Ext.Ka.7A and 8. He has also prepared
photo lash and challan lash. Both the dead bodies of the
deceased-Bhola Yadav and Vinod Yadav were sealed and sent for
post-mortem examination through Constables Kedar and
Shubhash Rai.
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18. After the closure of prosecution evidence, the statements of
the accused-appellant, namely, Mahesh Alias Munna Yadav has
been recorded under Section 313 Cr.P.C., who denied the charges
levelled against him, however he stated that the investigating
officer of this case has fabricated the evidence by making a fire
from his licensed pistol in his police station.
19. Learned Additional District and Sessions Judge, Varanasi
after hearing the learned counsel for the parties and assessing,
evaluating and scrutinizing the evidence on record, convicted and
sentenced the accused-appellant as indicated herein above.
20. Hence, the instant appeal.
Submissions on behalf of Accused-Appellant
21. Mr. V.P. Srivastava, learned Senior Advocate appearing on
behalf of the appellant has assailed the impugned judgment
dated 27.06.2016 passed by the trial court, whereby the appellant
has been convicted under Sections 302/34 of the I.P.C. and
Sections 27/30 of the Arms Act. It is contended that the
impugned judgment is contrary to the evidence on record and
liable to be set aside.
22. It is submitted that the prosecution case suffers from a
material contradiction between the ocular and medical evidence.
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CRLA No. - 3410 of 2016
While the prosecution alleges that the appellant solely opened fire
upon the two deceased persons, namely, Bhola Yadav and Vinod
Yadav, the medical evidence belies this assertion. The entry
wound on deceased-Bhola Yadav measured 1 cm × 1 cm,
whereas the entry wound on Vinod Yadav measured 0.5 cm × 0.5
cm. Such variation suggests the use of two different weapons,
thereby rendering the prosecution version doubtful.
23. Learned counsel further submits that the post-mortem
examination of Bhola Yadav disclosed lacerated wounds caused
by a hard and blunt object, however, neither the First Information
Report nor the prosecution case makes any reference to an
assault by a blunt object. This unexplained circumstance creates a
serious dent in the prosecution story.
24. It is next contended that the material eye-witnesses,
namely PW-2 Meera Devi, and PW-3 Chhavi Yadav, being wife
and daughter of the deceased-Bhola Yadav have not supported
the prosecution case and were declared hostile. Their testimonies
do not implicate the appellant in the commission of the offence.
Additionally, Santosh Kumar Yadav-PW-6, the scribe of the FIR,
has stated that the report was written under police pressure and
not at the dictation of the informant, thereby casting doubt upon
the authenticity of the FIR.
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CRLA No. - 3410 of 2016
25. Learned counsel also questions the forensic evidence,
contending that the trial court has misread the Forensic Science
Laboratory (FSL) report. It is urged that the bullets allegedly
recovered from the bodies of the deceased do not conclusively
match with the pistol recovered from the possession of the
appellant, and the prosecution has failed to establish a complete
and unbroken chain linking the appellant with the alleged weapon
of offence.
26. In support of his submission, learned counsel for the
appellant has relied upon following judgments:
(i) Vadivellu Thevar vs. State of Madras1
(ii) Mahendra Singh and Others vs. State of M.P.2
(iii) Rajesh Yadav and Another vs. State of U.P.3
27. Lastly, it is submitted that the appellant has no previous
criminal antecedents and belongs to a respectable family. The
entire case, according to the defence, is founded upon
conjectures and surmises rather than proof beyond reasonable
doubt. It is thus prayed that the appellant be acquitted of all
charges.
1 1957 (SC) 615
2 (2021) 7 SCC 157
3 (2022) 12 SCC 200
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Submissions on Behalf of the Respondent-State
28. Per-contra, Mr. S.N. Tiwari, learned Additional Government
Advocate appearing for the State has supported the impugned
judgment and order by contending that the conviction recorded
by the trial court is well-reasoned and based on cogent evidence.
29. It is also contended that the prompt lodging of the FIR
strengthens the prosecution case. The incident occurred on
16.03.2014 at about 10:30 PM, and the FIR was lodged at 00:45
AM on 16/17.03.2014. The promptness in lodging the report rules
out the possibility of deliberation or fabrication.
30. It is submitted that the testimony of a hostile witness does
not need to be discarded in its entirety. The trial court correctly
observed that the witnesses admitted to the incident and the
presence of the accused but only turned hostile regarding the
specific identity of the shooter to save him.
31. Learned A.G.A. further submits that the forensic evidence
provides strong corroboration. The FSL report establishes that the
empty cartridges i.e. EC-1 to EC-5 recovered from the place of
occurrence were fired from the licensed 7.65 mm pistol recovered
from the appellant at the time of his arrest, thus directly
connecting him with the crime.
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CRLA No. - 3410 of 2016
32. Learned A.G.A. further submits that the appellant was
apprehended while attempting to flee in a vehicle, and the
weapon of offence was recovered from his possession. Such
conduct, coupled with recovery, is a relevant fact under Section 8
of the Indian Evidence Act and constitutes a strong incriminating
circumstance.
33. Lastly, learned A.G.A. submits that a clear motive arising
out of a long-standing land dispute between the parties has been
established.
Analysis and Conclusion
34. Heard Mr. V.P. Srivastava, learned Senior Advocate assisted
by Mr. Hashim Siddiqui and Ms. Neeja Srivastava, learned counsel
for the appellant and Mr. S.N. Tiwari, learned Additional
Government Advocate for the State of U.P.
35. We have considered the rival submissions advanced by the
learned Senior Counsel appearing for the appellant and the
learned A.G.A. for the State. We have also carefully perused the
entire record of the case including the evidence of the prosecution
witnesses, documentary evidence and medical reports.
36. The primary contention raised on behalf of the appellant is
that the prosecution case suffers from contradictions between
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CRLA No. - 3410 of 2016
ocular and medical evidence and the eye-witnesses have not
supported the prosecution case.
37. Before examining submissions raised by learned counsel for
the respective parties, it would be appropriate to first analyze the
testimony of the prosecution witnesses, particularly the witnesses
of fact.
38. Manoj Kumar Yadav (PW-1), who is the son of the deceased
Bhola Yadav and the informant of the case, has supported the
prosecution case in his examination-in-chief by stating that the
accused persons came to the door of his house in connection with
a land dispute and that upon exhortation by co-accused persons,
the appellant Mahesh @ Munna Yadav fired from his pistol
causing firearm injuries to Bhola Yadav and Vinod Yadav. In his
cross-examination, however, the witness stated that he was
sleeping inside the house and came out after hearing noise and
by that time the accused persons had fled from the spot. He also
stated that he came to know about the names of the accused
persons from the people present there.
39. The aforesaid statement, though creating some
inconsistency, does not demolish the prosecution case in its
entirety. It is well settled that minor discrepancies or variations
may occur in the testimony of prosecution witnesses due to the
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CRLA No. - 3410 of 2016
lapse of time and the natural limitations of human memory. With
the passage of time, recollection of events may not remain
perfectly precise, and witnesses may depose in accordance with
their mental disposition and perception of the incident. Such
minor inconsistencies are natural and inevitable, and unless they
go to the root of the prosecution case, they do not materially
affect the credibility of the witnesses or the substratum of the
prosecution story. Rather, they are indicative of the fact that the
witnesses are deposing in a natural and un-tutored manner. It is
also well settled that minor discrepancies or improvements in the
testimony of witnesses do not necessarily render their entire
evidence unreliable. In Vadivelu Thevar (Supra), the Hon’ble
Supreme Court held that witnesses fall into three categories—
wholly reliable, wholly unreliable and neither wholly reliable nor
wholly unreliable—and in the third category, the Court may rely
upon such testimony if it finds corroboration from other evidence
on record.
40. In the present case, even if PW-1 is treated as a witness
falling in the third category, his testimony finds corroboration
from the medical evidence and the scientific evidence on record.
41. PW-2 Meera Yadav and PW-3 Chavi Yadav, who are the wife
and daughter of the deceased Bhola Yadav respectively, did not
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CRLA No. - 3410 of 2016
support the prosecution case and were declared hostile. Even PW-
2 and PW-3, in their deposition, have admitted certain material
facts, namely that the incident occurred around 10:30 PM and
that the deceased persons died due to firearm injuries. These
facts corroborate the prosecution case regarding the occurrence
of the incident and the cause of death.
42. It is well settled that the testimony of a hostile witness is
not to be discarded in toto and the Court can rely upon such
portion of the testimony which supports the prosecution case and
is otherwise reliable. In Koli Lakhmanbhai Chanabhai v. State of
Gujarat4, the Hon’ble Supreme Court held that the evidence of a
hostile witness cannot be rejected completely and the Court may
rely upon the part of the testimony which is found to be credible.
43. A three Judge Bench of Supreme Court in the case of Khujji
alias Surendra Tiwari vs. State of Madhya Pradesh 5, relying upon
catena of judgments of Supreme Court, held that evidence of a
prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross-examined
him. It was further held that the evidence of such witnesses
cannot be treated as effaced or washed off the record altogether
but the same can be accepted to the extent their version is found
to be dependable on a careful scrutiny thereof.
4 (1999) 8 SCC 624
5 (1991) 3 SCC 627
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44. In State of U.P. vs. Ramesh Prasad Mishra 6, Supreme Court
held that evidence of a hostile witness would not be totally
rejected if spoken in favour of the prosecution or the accused, but
required to be subjected to close scrutiny and that portion of the
evidence which is consistent with the case of the prosecution or
defence can be relied upon.
45. Supreme Court in the case of Bhajju Vs. State of Madhya
Pradesh7, discussed the worth of the evidence of a hostile witness
in the following words:
“It is settled law that the evidence of hostile witnesses can
also be relied upon by the prosecution to the extent to which
it supports the prosecution version of the incident. The
evidence of such witnesses cannot be treated as washed off
the records, it remains admissible in trial and there is no
legal bar to base the conviction of the accused upon such
testimony, if corroborated by other reliable evidence…”
46. In Selvamani Vs. State represented by Inspector of Police 8,
after considering a catena of its earlier judgements on the point,
Hon’ble Supreme Court held as under:
“Thus, the law can be summarised to the effect that the
evidence of a hostile witness cannot be discarded as a
whole, and relevant parts thereof which are admissible in
law, can be used by the prosecution or the defence.”
6 (1996) 10 SCC 635
7 (2012) 4 SCC 327
8 2024 SCC OnLine SC 837
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47. The judgment in Ramesh Prasad Mishra (Supra) was
reiterated by the Hon’ble Supreme Court in Dadu alias Ankush
and another vs. State of Madhya Pradesh and Another 9.
48. The Hon’ble Supreme Court in Ramesh Prasad Mishra
(Supra) reiterated that conviction can be sustained even if some
witnesses turn hostile, provided the remaining evidence is
credible and trustworthy.
49. The medical evidence adduced through PW-4 Dr. S.B.S.
Kushwaha and PW-5 Dr. Govind Prasad clearly establishes that
both deceased persons sustained firearm injuries which resulted
in their death.
50. The cause of death of Bhola Yadav was stated to be “coma
as a result of firearm injury on head and brain,” whereas the
cause of death of Vinod Yadav was “coma and hemorrhage shock
as a result of firearm injury to head and left lung.”
51. The contention advanced by the learned counsel for the
appellant that the presence of two entry wounds of different sizes
on the body of the deceased necessarily indicates the use of two
different firearms is wholly misconceived and devoid of merit. It is
a well-settled principle of forensic science as well as according to
Modi’s Textbook of Medical Jurisprudence and Toxicoloy, the size
9 2025 LiveLaw (SC) 1178
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CRLA No. - 3410 of 2016
and appearance of an entry wound may vary depending upon
several factors, such as the distance from which the shot was
fired, the angle of entry, the velocity of the projectile, the
movement of the body at the time of impact, and the nature and
elasticity of the skin at the point of entry. Variations in these
circumstances may naturally result in entry wounds of different
dimensions even when the shots are fired from the same firearm.
Therefore, the mere existence of entry wounds of different sizes
cannot, by itself, lead to the inference that two different firearms
were used in the commission of the offence, particularly in the
absence of any cogent medical or ballistic evidence supporting
such a proposition. Consequently, the plea raised by the learned
counsel in this regard does not inspire confidence and is liable to
be rejected.
52. The prosecution has also relied upon the Forensic Science
Laboratory report which indicates that the empty cartridges
recovered from the place of occurrence were fired from the 7.65
mm pistol recovered from the possession of the appellant at the
time of his arrest.
53. The recovery of the weapon of assault from the possession
of the appellant and its linkage with the cartridges recovered from
the place of occurrence constitutes a strong incriminating
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circumstance against the appellant. The conduct of the appellant
in attempting to flee from the police and the recovery of the
firearm from his possession is also a relevant factor under Section
8 of the Evidence Act.
54. The incident occurred on 16.03.2014 at about 10:30 PM and
the FIR was lodged at 00:45 AM on 17.03.2014. The prompt
lodging of the FIR rules out the possibility of fabrication or false
implication.
55. The prosecution has also established motive for the crime in
the form of a long-standing land dispute between the parties.
Though motive alone cannot sustain a conviction, it certainly
lends support to the prosecution case when other evidence points
towards the guilt of the accused.
56. So far as the contention of learned counsel for the appellant
that the F.I.R. was written on the dictation of the Investigating
Officer is concerned, even if the scribe wrote the report on the
direction of the police officer, the same by itself does not render
the FIR unreliable when the occurrence itself is established by the
evidence available on record.
57. Upon a careful evaluation of the entire evidence on record,
this Court finds that:
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(i) the weapon of offence was recovered from the possession of
the appellant;
(ii) the forensic evidence links the recovered weapon with the
cartridges found at the place of occurrence;
(iii) the FIR was lodged promptly; and
(iv) the prosecution has established motive arising out of a land
dispute.
58. The trial court has meticulously examined the evidence and
rightly recorded the conviction of the appellant. We do not find
any illegality, perversity or material irregularity in the impugned
judgment warranting interference by this Court in exercise of
appellate jurisdiction.
59. The instant criminal appeal lacks merit, and is accordingly
dismissed.
60. The judgment and order of conviction and sentence dated
27.06.2016 passed by the learned Additional District and Sessions
Judge, Varanasi in Sessions Trial No. 391 of 2014 arising out of
Case Crime No. 101 of 2014, Police Station Bhelupur, District
Varanasi, convicting the appellant under Sections 302 IPC and
Sections 27/30 Arms Act, is hereby affirmed.
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61. The appellant is in custody. He shall continue to undergo
the sentence awarded by the trial court.
62. Let a copy of this judgment be transmitted to the trial court
concerned for compliance.
(Devendra Singh-I,J.) (Chandra Dhari Singh,J.)
March 18, 2026
Saurabh
Digitally signed by :-
SAURABH KUMAR
High Court of Judicature at Allahabad
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