# Amit Yadav v. State of U.P

- **Citation:** (2024) 1 ILRA 348
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-07
- **Case number:** J. Capital Cases No. 8 of 2020
- **Bench:** Ashwani Kumar Mishra, Syed Aftab Husjain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-yadav-v-state-of-u-p-50920
- **Pages:** 20

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 201 & 120-B - Code of
Criminal Procedure, 1973 - Sections 366 &
372 - Indian Evidence Act, 1872 - Section
27 - Appellant challenged conviction and death
penalty for murder of four persons, while
informant appealed acquittal of co-accused.
Court held: (1) Prosecution's case rested
primarily on testimony of child witness (PW-2),
but her presence at the crime scene was
doubtful due to contradictions with PW-3's
testimony and improvements in St.ments,
rendering her evidence unreliable (St. of
Madhya Pradesh Vs Ramesh, (2011) 4 SCC
786). (2) Alleged motive based on land dispute
was not established, as it flowed from deceased
to co-accused, not appellant, and lacked
concrete
evidence.
(3)
Recoveries
of
incriminating items (axe, blood-stained soil,
Aadhar card) were unproven due to absence of
independent witnesses and failure to establish
recovery under Section 27, as no confessional
St.ment was recorded (Boby Vs St. of Kerala,
2023 SCC OnLine SC 50). (4) Investigation was
flawed, with delays in FIR registration, absence
of General Diary evidence, and possibility of
deliberation before reporting, casting doubt on
prosecution's case. (5) Testimony of PW-2,
partly tutored, lacked reliability even when
segregated, and absence of motive further
weakened prosecution's case. Death penalty
reversed; appellant acquitted, giving benefit of
doubt.
Acquittal
of
co-accused
upheld;
informant's appeal rejected. (Paras 12-28)

Capital Appeal Allowed.

List of Cases cited:

## Text

_Characters 0–39,925 of 64,771. This is a partial read: ask again with offset=39925 for what follows._

348 INDIAN LAW REPORTS ALLAHABAD SERIES
Prasad Verma Vs. Central Administrative
Tribunal, Lucknow and others, 2013 (31)
LCD 351, in paragraph No. 4 held as
under:-

"By the order dated 10.1.2012, the
contempt petition filed by the petitioner,
was dismissed in his absence on the ground
that the petitioner respondent has not
moved any application to bring on record
the successor since the contemner was
transferred.
Tribunal
noted
that
an
application for recall of an order passed in
a contempt proceeding, is not maintainable.
So far as the finding of Tribunal that
recall/review
application
is
not
maintainable,
seems
to
be
correct.
Virtually, recalling of the order dated
10.1.2012, will amount to review of earlier
decision was was passed with the finding
on merit to the extent that successor officer
has
not
been
brought
on
record.
Review/recall or appeal are the statutory
remedies,
vide
AIR
1966
SC
641,
Harbhajan Singh v. Karam Singh and
others, 1988 (14) ALR 706, Vijai Bahadur
Vs. State of U.P., 1995 (26) ALR 627, Ram
Jiwan Singh and others Vs. The District
Inspector of Schools, Kanpur and others,
1979 (5) ALR 168, 1998 (33) ALR 456,
New India Assurance Co. Ltd. Vs. Smt.
Bimla Devi and others, 1997 (88) RD 562,
Smt. Shivraji and others Vs. Dy. Director of
Consolidation, Allahabad and others, AIR
1970 SC 1273, Patel Narshi Thakershi and
others Vs. Pradyumansinghji Arjunsinghji,
1987 (13) ALR 680, Dr. (Smt.) Kuntesh
Gupta
Vs.
Mgt.
of
Hindu
Kanya
Mahavidyalaya, Sitapur etc., AIR 1964 SC
436, Laxman Purushottam Pimputkar Vs.
The State of Bombay and others, and AIR
1965 SC 1457, Patel Chunibhai Dajibha
etc. Vs. Narayanrao Khanderao Jambekar
and another. Unless provided under the
Act, no application for review/recall may
be moved. The contempt of Courts Act,
1971 does not contain any provision for
review of a judgment. Hence the impugned
order dated 13.9.2012 does not seem to
suffer from any impropriety or illegality""

17. Apart from above, there is no
power under the Act of 1971 conferring any
power of review and thus no such power
can be exercised by this Court.

18. A Division Bench of this Court in
the case of State vs. Baldev Raj - 1991
SCC OnLine All 1070 has also held that
the Act of 1971 impliedly excludes the
power of recall or review.

19. Keeping in view the aforesaid
discussion, this Court is constrained to
observe that instant application for recall is
nothing but an attempt to re-argue of the
case on merits i.e. the recall application is
in fact an application for review which is
not permissible in the eye of law.

20. The recall application is thus,
rejected.
----------
(2024) 1 ILRA 348
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSJAIN RIZVI,
J.

Capital Cases No. 8 of 2020
with
Reference No. 7 of 2020
&
Criminal Appeal U/s 372 No. 21 of 2021

Amit Yadav ...Appellant
Versus
State of U.P. ...Respondent
1 All. Amit Yadav Vs. State of U.P.
349
Counsel for the Appellant:
Sri Ramesh Chandra Yadav, Sri Dileep Kumar
Yadav, Sri Raj Karan Yadav, Smt. Abhilasha
Singh (A.C.), Sri Gajendra Pratap (Sr. Advocate)

Counsel for the Respondent:
G.A., Sri Deepak Dubey, Sri Gyanendra Singh,
Sri Aniruddha Chaturvedi, Ms. Mayuri

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 201 & 120-B - Code of
Criminal Procedure, 1973 - Sections 366 &
372 - Indian Evidence Act, 1872 - Section
27 - Appellant challenged conviction and death
penalty for murder of four persons, while
informant appealed acquittal of co-accused.
Court held: (1) Prosecution's case rested
primarily on testimony of child witness (PW-2),
but her presence at the crime scene was
doubtful due to contradictions with PW-3's
testimony and improvements in St.ments,
rendering her evidence unreliable (St. of
Madhya Pradesh Vs Ramesh, (2011) 4 SCC
786). (2) Alleged motive based on land dispute
was not established, as it flowed from deceased
to co-accused, not appellant, and lacked
concrete
evidence.
(3)
Recoveries
of
incriminating items (axe, blood-stained soil,
Aadhar card) were unproven due to absence of
independent witnesses and failure to establish
recovery under Section 27, as no confessional
St.ment was recorded (Boby Vs St. of Kerala,
2023 SCC OnLine SC 50). (4) Investigation was
flawed, with delays in FIR registration, absence
of General Diary evidence, and possibility of
deliberation before reporting, casting doubt on
prosecution's case. (5) Testimony of PW-2,
partly tutored, lacked reliability even when
segregated, and absence of motive further
weakened prosecution's case. Death penalty
reversed; appellant acquitted, giving benefit of
doubt.
Acquittal
of
co-accused
upheld;
informant's appeal rejected. (Paras 12-28)

Capital Appeal Allowed.

List of Cases cited:

1. St. of Madhya Pradesh Vs Ramesh, (2011) 4
SCC 786 (Para 20)

2. Boby Vs St. of Kerala, 2023 SCC OnLine SC
50 (Para 23)
3. Pulukuri Kotayya Vs King-Emperor, AIR 1947 PC
67 (Para 23)

4. Chandran Vs St. of Tamil Nadu (Para 23)

5. St. of Karn. Vs David Rozario (Para 23)

6. St. of Mah. Vs Damu, (2000) 6 SCC 269 (Para
23)

7. Subramanya Vs St. of Karn. (Para 23)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
 &
Hon'ble Syed Aftab Husain Rizvi, J.)

1. Heard Sri Gajendra Pratap, learned
Senior counsel assisted by Smt. Abhilasha
Singh, learned amicus curiae for the
appellant, Sri Aniruddha Chaturvedi, learned
counsel for the informant and Sri Amit Sinha,
learned AGA assisted by Ms. Mayuri for the
State.

2. Capital Case No.8 of 2020 arises out
of judgment of conviction and sentence
passed
by Additional
Sessions
JudgeIV/Special Judge (E.C. Act), Banda in
Sessions Trial No.93 of 2018, arising out of
Case Crime No.086 of 2018, under Sections
302/34, 201, 120-B IPC, Police Station
Kotwali Nagar, District Banda, wherein death
penalty has been imposed on the accused
appellant. Records relating to the proceedings
of court below have been forwarded to this
Court under Section 366 Cr.P.C. for
confirmation of death sentence. It is
registered as Capital Reference No.7 of 2020.
The appeal filed by the informant under
Section 372 Cr.P.C. challenging the acquittal
of accused Smt. Deva and Sri Devi Deen @
Bhawani Deen Yadav being Criminal
Appeal u/s 372 Cr.P.C. No.21 of 2021 is
also connected with the Capital Appeal. All
three cases are heard together and are being
disposed of by this common judgment.
350 INDIAN LAW REPORTS ALLAHABAD SERIES

3. A brutal incident occurred during
the intervening night of 30 and 31 January,
2018 in which Mahadev, his wife Chunni
and two sons Pawan and Raj Kumar were
done to death. The incident was allegedly
seen by the daughter of the deceased,
namely Ranshi (PW-2). Ranshi came to the
house of Smt. Urmila (PW-3), who
happens to be her sister-in-law and
informed the incident as per which the
accused had brutally murdered all the four
deceased. PW-3 informed such facts to her
husband Munni Lal (not produced). Munni
Lal in turn informed the incident to
Raghunandan (PW-1), who happens to be
the elder brother of deceased Mahadev.
Consequently, a written report was got
scribed by Munni Lal on the basis of
information received from Raghunandan
(Ex.Ka.1). Based upon such written report,
a First Information Report came to be
registered at 11.00 AM on 31.01.2018 at
Police Station Kotwali Nagar, District
Banda. Information of the incident was
received at the Police Station at 10.15 AM
and the FIR was registered under Section
302 IPC as Case Crime No.86 of 2018,
Police Station Kotwali Nagar, District
Banda. The FIR is against named accused
Golu. It is the prosecution case that Golu
is the nickname of accused appellant Amit
Yadav.

4. Pursuant to the above report
lodged in the matter, inquest commenced
at 11.20 onwards and were concluded by
the afternoon. The bodies were sealed and
as per the suggestion of the inquest
witnesses, the dead-bodies were sent to
mortuary for conduct of postmortem.
Postmortem has also been conducted on
31.1.2018 at 5.30 in the evening. As per
the postmortem, all four deceased died on
account of ante-mortem injuries specified
hereinafter:-
Autopsy Report 1-Exhibit ka-2-A

Name
of
Deceased
Mahadev
(male)
Age:-
40 years
Physical Examination :Average built body
Height
164 cm

Rigor
Mortis
present
all
over body.

Anti Mortem Injuries:-
1) Incised wound size of 10cm x 2cm bone
deep present on anterio lateral surface of right
side of neck 4 cm below from right lobule.
2) Incised wound size 10cm x 0.4 cm bone deep
present on anterio lateral surface of right side of
neck 1 cm below from injury no 1 trachea
incised esophagus incise. All the muscle and
soft tissue incised.
Eyes:
Mouth:,
Nails:
Tongue
and
Nails:
Natural
Orifices:
NAD
Scalp: NAD Skull:
noted
Membr
anes:
Pale
Brain: Pale
Orbital
Nasals:
NAD
Neck:
Noted
Mouth,
Tongue
: NAD
Larynx and
vocal cords:
Noted
Trachea:
Noted
Hyoid
Bone: Noted
Chest:
NAD
Ribs
and
chest wall:
NAD
Pleural
Cavitie
s:
NAD

Lungs: Pale
Heart:
empty
Large
blood
vessels:
right
carotid
vessels
incised
Abdo
men:
NAD
Stomach:
200
gm
pasty
material
present.
Small
Intestine:
gases
present
Large
Intestine:
gases with
fecal
Liver:
Pale
Gall
bladder: half
full
Urinary
1 All. Amit Yadav Vs. State of U.P.
351
matter
bladder: 40
ml
urine
present
Spleen: pale Kidney:
pale
Pelvic
Cavity
Tissue:
NAD
Pelvic
Bones:
NAD
Time of Death: about half of a day
Cause of death: shock and haemorrhage as a
result of anti-mortem injuries

Autopsy Report 2-Exhibit ka-3-A

 Name
of
Deceased
Chunni
Devi
(female)
Age:-
 35 years
Physical
Examination
:Average built
body

Height
158 cm
Rigor Mortis present all over body.
Anti Mortem Injuries:-
1) Lacerated wound size 2.0 x 2.0 present on
left side of face 0.5 cm below from left eye
muscle deep.
2) Contusion size 4 x 4 cm on face just below
injury no 1.

3) Incised wound size of 8.00cm x 1.00cm
present on posterio lateral surface of right side
of neck 4.5 cm below from right ear lobe with
fractured 3rd and 4th cervical vertebra.
4) Abrasion size 3 x 1 cm present on upper part
of right arm 3 cm below from lateral end of
right clavicle.
5) Contusion size 2 x 1 cm present on anterio
medial surface of right arm 11 cm below from
lateral end of right clavicle.
Eyes: open
Mouth:- ,
Nails:-
Tongue
and
Nails:
NAD
Natural
Orifices:
NAD
Scalp: NAD
Skull:
NAD
Membr
anes:
Pale
Brain:
NAD
Orbital
Nasals: Noted
Neck:
NAD
Mouth,
Tongue
: NAD
Larynx
and vocal
cords:
NAD
Trachea:
Noted
Hyoid Bone:
Noted
Chest:
Noted
Ribs
and
chest wall:
NAD
Ribs:
NAD
Oesophag
us: NAD
Trachea
and
bronchial
Tree: NAD
Pleural:
NAD
Peritoneal
cavity:
NAD
Pleural
Cavitie
s:
NAD
Lungs:
Pale
Heart: incised
right
carotid
vessels
Large
blood
vessels:
NAD
Abdo
men:
Noted
Stomach:
200
gm
pasty
material
present.
Small
Intestine:
gases present
Large
Intestine:
gases with
fecal
matter
Liver:
Pale
Gall
bladder:
Urinary
bladder:
20
ml
urine
present
Spleen: pale
Kidney:
pale
Pelvic
Cavity
Tissue:
NAD
Pelvic
Bones:
NAD
Time of Death: about half of a day
Cause of death: shock and haemorrhage as a
result of anti-mortem injuries

Autopsy Report 3-Exhibit ka-4-A

Name
of
Deceased
Pawan
Kumar
(male)
Age:- 10 years
Physical
352 INDIAN LAW REPORTS ALLAHABAD SERIES
Examination
:Average built
body
Height
139 cm

Rigor Mortis
present
all
over body.

Anti Mortem Injuries:-
1) Incised wound size 6 x 1.5 cm bone deep
present on back of neck at cervico vertebral
junction (cervical joints) with fractured 1st
cervical vertebra.
2) Abraded contusion size 6 x 3 cm present on
posterio lateral surface of right side of neck 1.5
cm below from right ear lobule.
3) Abraded contusion size 3 cm x 1.5 cm
present on anterior surface of upper right arm 5
cm lateral from right axilla.
4) Lacerated wound size 2.5 cm x 1.5 cm
present on left side of upper lip with loss of left
molar tooth.
5) Lacerated wound size 2 x 1 cm bone deep
present on upper right scapular region 5 cm
below from mid of right clavicle.
Eyes:
semi
open
Mouth:
semi
open,
Nails:
Tongue
and
Nails:
NAD
Natural
Orifices:
NAD
Scalp: NAD
Skull:
NAD
Membr
anes:
Pale
Brain: NAD
Orbital
Nasals: NAD
Neck:
NAD
Mouth,
Tongue
: NAD
Larynx and
vocal cords:
NAD
Trachea:
NAD
Hyoid Bone:
NAD
Chest:
Noted
Ribs and
chest
wall:
NAD
Ribs:
NAD
Oesophagus
: NAD
Trachea
and
bronchial
Tree: NAD
Pleural:
NAD
Peritone
al cavity:
NAD
Pleural
Cavitie
s:
NAD
Lungs: Pale
Heart: empty
Large
blood
vessels:
NAD
Abdo
men:
Noted
Stomach:
200
gm
pasty
material
present.
Small
Intestine:
gases present
Large
Intestine
:
gases
with
fecal
matter
Liver:
Pale
Gall
bladder: half
full
Urinary
bladder: 30
ml
urine
present
Spleen: pale
Kidney:
pale
Pelvic
Cavity
Tissue:
NAD
Pelvic
Bones:
NAD
Time of Death: about half of a day
Cause of death: shock and haemorrhage as a
result of anti-mortem injuries

Autopsy Report 4-Exhibit ka-6-A

Name
of
Deceased
Raj
Kumar
Yadav
(male)
Age:-
 8 years
Physical Examination :Average built body
Height
140 cm
Rigor Mortis present all over body.
Anti Mortem Injuries:-
1) Incised wound size 8 x 3 cm bone deep
present on postiro-lateral surface of neck of left
side .5 cm below from left ear lobe obliquely
placed margins regular.
2) Incised wound size 8 x 5 cm present on
postiro-lateral surfce of neck 1 cm below from
injury no 1 with incised 3rd and 4th cervical
vertibri.
3) Abraded contusion size 5 cm x 3 cm present
on right side face just below right eyes. Mud
present around right side face.
4) Abraded contusion size 2 x 1 cm present on
top of right shoulder.
1 All. Amit Yadav Vs. State of U.P.
353
Eyes:
Mouth: ,
Nails:
Tongue
and
Nails:
NAD
Natural
Orifices:
NAD
Scalp: NAD
Skull:
NAD
Membr
anes:
Pale
Brain: NAD
Orbital
Nasals: NAD
Neck:
Noted
Mouth,
Tongue
: NAD
Larynx and
vocal cords:
NAD
Trachea:
NAD
Hyoid Bone:
NAD
Chest:
Noted
Ribs and
chest
wall:
NAD
Ribs:
NAD
Oesophagus
: NAD
Trachea
and
bronchial
Tree: NAD
Pleural:
NAD
Peritone
al cavity:
NAD
Pleural
Cavitie
s:
NAD
Lungs: Pale
Heart: empty
Large
blood
vessels:
incised
of
carotid
vessel
Abdo
men:
Noted
Stomach:
100
gm
pasty
material
present.
Small
Intestine:
gases present
Large
Intestine
:
gases
with
fecal
matter
Liver:
Pale
Gall
bladder: half
full
Urinary
bladder: 20
ml
urine
present
Spleen: pale
Kidney:
pale
Pelvic
Cavity
Tissue:
NAD
Pelvic
Bones:
NAD
Time of Death: about half of a day
Cause of death: shock and haemorrhage as a
result of anti-mortem injuries
5. Investigation proceeded further in the
matter and the accused Amit Yadav @ Golu
was arrested on 6.2.2018. Two other coaccused namely Smt. Deva and Sri Devi
Deen @ Bhawani Deen Yadav were also
arrested
on
7.2.2018
and
8.2.2018.
According to the prosecution, an Aadhar
card of accused Amit Yadav @ Golu was
recovered from the house of the deceased
vide Ex.Ka.6. Blood stained earth was also
recovered from the house of the accused on
31.1.2018 vide Ex.Ka.7. A blood stained
piece of mattress was also recovered from
the place of occurrence vide Ex.Ka.8.
Blood stain earth and plain earth were also
recovered from the place of occurrence on
31.1.2018 vide Ex.Ka.9. The prosecution
claims to have recovered an axe from the
house of accused, on his pointing out, vide
Ex.Ka.10. The blood stained cloth of the
accused was allegedly hidden in the house
of accused which were also recovered on
his pointing out vide Ex.Ka.11.

6. It is worth noticing at the outset
that all aforesaid recoveries were witnessed
by Munni Lal, Chote Lal and Om Prakash,
none of whom have been produced by the
prosecution. There is thus no independent
witness to any of the recoveries. There is
no confessional statement of the accused on
record pursuant to which such recovery
was made nor any such statement is
exhibited during the trial. Even the contents
of disclosure made by the accused are not
disclosed or proved.

7. Investigation ultimately concluded
with submission of charge-sheet against the
accused Amit Yadav @ Golu, Smt. Deva
and Sri Devi Deen @ Bhawani Deen
Yadav. Smt. Deva and Sri Devi Deen @
Bhawani Deen Yadav have been acquitted
by the trial court vide the judgment under
challenge. The acquittal is under challenge
354 INDIAN LAW REPORTS ALLAHABAD SERIES
in the appeal filed by the informant under
Section 372 Cr.P.C. Smt. Deva and Sri Devi
Deen @ Bhawani Deen Yadav happens to
the maternal aunt and uncle of the accused
Amit Yadav @ Golu.

8.

The
concerned
Magistrate
committed the case to the court of Sessions
on 17.5.2018. Charges were framed against
the accuseds on 19.12.2018 under Section
302 read with Section 34 IPC read with
Section 201 and 120B IPC. All the
accuseds denied the charges and demanded
trial.

9. The prosecution in order to prove
its
case
has
produced
following
documentary evidence:-

Sr. No.
Name of Document Proved by
Exh. Ka-1 Tahreer
PW-1
Exh. Ka-2 Inquest memo of
Mahadev
PW-1
Exh. Ka-3 Inquest memo of
Chunni Devi
PW-1
Exh. Ka-4 Inquest memo of
Pawan Kumar
PW-1
Exh. Ka-5 Inquest memo of
Raj Kumar
PW-1
Exh.
Ka2-A
Autopsy report of
Mahadev
PW-4
Exh.
Ka3-A
Autopsy report of
Chunni Devi
PW-4
Exh.
Ka4-A
Autopsy report of
Pawan Kumar
PW-4
Exh.
Ka5-A
Autopsy report of
Raj Kumar
PW-4
Exh. Ka-6 Recovery memo of
aadhar
card
of
Golu
PW-5
Exh. Ka-7 Recovery memo of
soil
from
Golu
PW-5
house
Exh. Ka-8 Recovery memo of
mattress
PW-5
Exh. Ka-9 Recovery memo of
soil
from
crime
spot
PW-5
Exh.
Ka10
Recovery memo of
murdered weapon
PW-5
Exh.
Ka11
Recovery memo of
cloth of accused
PW-5
Exh.
Ka12
Site plan of crime
spot
PW-5
Exh.
Ka13
Arrest
memo
of
Amit @ Golu
PW-5
Exh.
Ka14
Arrest
memo
of
Devi Deen
PW-6
Exh.
Ka15
Arrest
memo
of
Deva
PW-6
Exh.
Ka16
Charge-sheet
PW-6
Exh.
Ka17
FSL Report

10. In addition to the above
documentary evidence, the prosecution has
also led oral evidence of following
witnesses:-

"1. Raghunandan aged 55 years
(P.W.-1), elder brother of accused presented
as informant of the case and witness of
inquest.
His
chief
examination
was
recorded on 09.05.19 and the cross
examination took place on 01.08.19,
16.08.19, 21.08.19. P.W.-1 deposed before
the court that deceased was his real brother
and together with him, he had three
brothers. He is the eldest and the deceased
was the youngest. He lived in the village
along with his other two brothers for the
past thirty years. His house adjoins the
house of deceased Mahadev. His other
brother namely Sukh Nandan lived a few
1 All. Amit Yadav Vs. State of U.P.
355
houses apart. Mahadev was residing along
with his wife Chunni, three sons and a
daughter. On 31.01.2018 @5:30 AM his
nephew Munni Lal s/o Sukh Nandan came
and informed him that Golu has killed
Mahadev, his wife and two sons the
previous night. Ranshi, the daughter of
deceased Mahadev informed about it.
Ranshi told him that she had hidden herself
and could not see as to who else was
present along with Golu. On receiving such
information PW-1 reached the house of
deceased and saw the four dead bodies of
Mahadev, Chunni and their two sons Pawan
and Raj Kumar lying in the verandah and
the room. The third son Awadh Naresh was
lying wrapped in a blanket. He was scared.
He got the written report scribed by his
nephew Munni Lal and put his thumb
impressions on it. He proved the contents
of the written report which was marked as
Ex.Ka.1. He also proved his signatures on
the inquest memo prepared in his presence.
The dead bodies were sealed and sent for
autopsy. Later, after a few days Awadh
Naresh told him that Deva and Devi Deen
too were involved in the incident along
with Golu. Mahadev had bought some land
from the father of Devi Deen. Some more
land was purchased again from Devi Deen.
Mahadev paid the entire amount but the
registry of the land was not done. The price
of the land increased in between and Devi
Deen was refusing to execute the registry.
For this reason Golu killed Mahadev and
his three family members. His statement
was recorded by IO and he also got the
crime spot inspected. The witness was
cross-examined extensively by the defence
counsels.

2. Ranshi (PW-2) aged 8 years is
the daughter of deceased and was presented
as eye witness of the case. Chief
examination of this witness was done on
29.8.19 and the cross examination was held
on 29.08.19, 19.09.19, 25.09.19. P.W.-2
deposed before the court that it's been more
than a year now since her family members
were done to death. On that day she was
sleeping with her father and mother. She
was on the same cot with her mother. Her
three brothers were sleeping in the room
next to her room. Pawan Kumar and Raj
Kumar were on one cot while Awadh
Naresh was on plank. Around midnight she
woke up along with her mother on hearing
the screams of her father. She saw that
Golu was killing her father with an axe.
Her mother ran to save her father pleading
"don't kill". Golu pushed her back and
killed her mother too with the axe. The
witness got scared and hide herself behind
a chair. Buffaloes were tied in that room
and the chair was behind these buffaloes.
Bulb was lighted in the room. Accused
Golu then searched for her and went
upstairs and later came back. Both the
brothers Pawan Kumar and Raj Kumar
tried to run outside out of fear. Deva and
Devideen were standing outside and
scolded them to go back inside the house.
Golu killed both her brothers and left from
the front door. She witnessed the murder of
her brothers through a hole in a wall. She
kept hiding there whole night. At dawn she
went to Munni Lal's house which was
nearby and narrated them the entire
incident. She asked them to call the police.
Police came to the crime spot. The villagers
and police man enquired about the incident
from her. She told them of entire incident.
Her brother Awadh Naresh kept sleeping
there and woke up in the morning on being
woken up. The witness was cross examined
at length. In the cross examination she
stated that she did not wake up her brother
Awadh Naresh as she feared scolding from
him.

3. Urmila w/o Munni Lal, aged
about 27 years was presented as a witness
356 INDIAN LAW REPORTS ALLAHABAD SERIES
of fact. Her testimony is relied upon as res
gestae. Her examination-in-chief was held
on 30.09.19 and the cross examination took
place
on
30.09.19,
03.10.19.
P.W.-3
deposed before the court that the incident
took
place
on
31.01.2018.
It
was
wednesday night. Her father in law are
three brothers. All the three lived separately
next to each other and have their houses
built. Raghunandan and Mahadev live
adjacent to each other. Her house is a few
steps away. She was sleeping along with
her two daughters inside the house. Her
husband was sleeping outside under the
shed. On the day of incident Ranshi
knocked the door early morning around 4
or 5 AM and told the witness that Golu has
killed her parents and Deva and Devideen
were standing on the door of the house.
When her brothers tried to flee away they
were pushed inside the house by Devideen.
Golu killed them too. She hide herself
behind a chair kept in the cattle room. She
woke her husband and narrated the entire
incident. Her husband Munni Lal went to
house of Mahadev and screamed loudly.
She along with villagers and others also
reached on hearing screams. Police was
informed. Police too reached. The dead
bodies were sealed and were sent for postmortem. She was enquired about the
incident by I.O. Deceased Mahadev wanted
to have the registry of the land from
Devideen, which Devideen was avoiding
due to rise in price of land. This was the
reason behind enmity.

4. Dr Atul Verma (PW-4) Medical
officer performed autopsy of all the four
dead bodies. He is a formal witness and has
proved the postmortem reports. P.W.-4
deposed before the court that he conducted
autopsy of all the four dead bodies on
31.01.2018 at the mortuary. He proved all
the post mortem reports which were
marked as exhibits. The cause of all the
deaths were shock and haemorrhage due to
anti mortem injuries. Time of deaths was
around half a day. The witness was cross
examined.

5.
Inspector
Shahsi
Kumar
Pandey is the first Investigator of the case
and has been presented as formal witness.
P.W.-5 deposed before the court that he was
the first investigator of the crime. He
recorded statement of witnesses and
inspected the crime spot. He prepared site
plan and raided several places looking for
Golu. He arrested the accused Golu and
recorded his statement. He also recovered
the weapon on identification of accused
from his house and prepared recovery
memo of it. He recovered the clothes of
accused which he was wearing during the
crime and sent all recovered items for
forensic test to F.S.L Lucknow He proved
all the formal papers prepared by him
during the investigation of the case. The
same were marked as exhibits. The witness
was cross examined by the defence
counsels.

6. Inspector Ram Niwas Yadav is
the second investigator of the case and is
presented as PW-6. He has deposed before
the court that he conducted the part
investigation of the instant case. He
recorded statements of witnesses and
arrested the two accused. He also recorded
their statements and on finding sufficient
evidences against them submitted charge
sheet in court against all the three accused.
He proved all the formal papers prepared
by him during the investigation of the case.
The same were marked as exhibits The
witness was cross examined by the defence
counsels."

11. Trial court evaluated the evidence
placed on record by the prosecution. The
circumstances appearing on record against
the accused have been specifically noticed.
1 All. Amit Yadav Vs. State of U.P.
357
Broad aspects arising in the case can be
categorized as under:-

"1) Motive behind the crime

2) Identity of accused

3) Inquest done prior to F.I.R

4) Injuries nature

5) Source of light

6) Non adducing Munni Lal -the
tahreer scriber

7) Presence of Ranshi on the
crime spot.

8) Recovery of weapon and
clothes of accused Golu"

12. On the aspect of motive the
evidence has been examined by the court
below and a categorical finding has been
returned that the prosecution case for
attributing motive to the accused to commit
the offence is not reliable. It has been found
that the flow of motive goes from the
deceased to Devi Deen @ Bhawani Deen
Yadav, i.e. maternal uncle of the accused
and not from the accused or his maternal
uncle Devi Deen @ Bhawani Deen Yadav
to
the
deceased
Mahadev.
The
consideration on the aspect of motive is
enumerated in para 8 to 10 of the judgment
which is reproduced hereinafter:-

"8. Motive behind the crime has
been
explained
by
the
prosecution
witnesses The deceased had bought some
property from the accused Devi Deen long
back. The land was not registered.
Mahadev deceased asked him for registry
of the land on which he refused for the
reason that the land prices increased more
than ten times. This fact has come in
evidence of P.W.-1 and 3. Learned defence
stated that the motive is baseless Deceased
is living on the disputed land which is 8
biswas from a very long time. He got his
house constructed and no objection was
ever done by Devi Deen. No civil suit or
any kind of objection on papers ever done,
nor any legal notice to vacate the land
was issued by the accused. Devideen is a
government servent-Lekhpal and is of
well to do status. If he denies the
registration of land still he is in a
beneficial and dominating position. He is
at no loss, whereas Mahadev is a low
income class milk seller. Refusal of
registry
of
land,
will
be
more
disadvantageous for Mahadev and he will
be at a loss. Devideen never asked the
decease to vacate the land. The flow of
motive should go from Mahadev to
Devideen and not from Devideen to
Mahadev. Thus the logical reasoning
behind motive is without a concrete
substance. This motive also do not fit the
scenario of murder. If the accused plan to
kill Mahadev and family then why did he
left two kids alive.

9. In such circumstance the
motive
sounds
hypothetical.
Some
newspaper cuttings of 01.02.2018 are
also present in record collected by 1.0
during investigation. These newspapers
are not a part of evidence. However, it
mentions that deceased Mahadev was
having illicit relation with bhabhi of
accused Golu and that became the cause
of murder. Though not brought on record
by
witnesses
probably
to
avoid
defamation.

10. Motive always locks up in
the mind of the accused and some time it
is difficult to unlock. People do not act
wholly without motive. The failure to
discover the motive of an offence does not
signify its non-existence. The failure to
prove motive is not fatal as a matter of
law. Proof of motive is never an
indispensable for conviction. Wl.en facts
are clear it is immaterial that no motive has
been proved. Therefore, absence of proof of
358 INDIAN LAW REPORTS ALLAHABAD SERIES
morive does not break the link in
connecting the accused with the crime, nor
militates against the prosecution case."

13. Upon evaluation of the evidence
on record no illegality or perversity could
be shown in the view taken by the trial
Judge. The prosecution case essentially
relies upon the oral testimony of PW-1,
PW-2 and PW-3 as well as recoveries made
by the Investigating Officer including that
of an axe. This evidence has been relied
upon by the court below to hold the
accused appellant guilty.

14. PW-1 is the informant and
admittedly is not an eye-witness. He has
been produced by the prosecution mainly to
prove the written report. The manner in
which this written report has come into
existence is interesting and needs to be
noticed. PW-1 is the elder brother of the
deceased
Mahadev
and
his
family
members. He admits that their relationship
was not very cordial. In his examination-inchief, PW-1 has admitted that a partition
had taken place between the brothers about
fifteen years back in which no share was
given to PW-1 or to the other brother
Sukhnandan. The deceased retained the
entire property consisting of a house built
on three biswa land on the premise that he
is his exclusive owner. This had resulted in
strained relations. A suggestion has been
given that there were differences between
the brothers on account of property issue.
PW-1 states that the incident was reported
to him by Munni Lal, who happens to be
the son of other brother Sukhnandan. The
written report is thus based upon the
disclosure made to PW-1 by Munni Lal
and, therefore, the information divulged to
PW-1 is hearsay since Munni Lal has not
been produced. Interestingly it is Munni
Lal who is the scribe. It is not clear as to
why the written report was not made by
Munni Lal when the incident came to the
knowledge of Munni Lal first and he was
himself the scribe also. This is more so as
the relations between Mahadev and PW-1
were not cordial. Except for proving the
written report not much turns on the
testimony of PW-1.

15. PW-2 is the sheet anchor of
prosecution case. She is six years of age
and is the daughter of the deceased. Her
testimony has been questioned by the
defence on the premise that she was herself
was not present in the house and had in fact
slept in the house of Munni Lal. The
testimony of PW-2 has also been doubted
on the ground that she was tutored since
part of her testimony implicating Smt.
Deva and Sri Devi Deen @ Bhawani Deen
Yadav has been disbelieved by the trial
court on the ground that her statement is
tutored. It is, therefore, submitted that once
the presence of PW-2 itself is doubtful and
part of her testimony has otherwise been
disbelieved by the trial court on such
ground, it would not be safe to rely upon
her testimony. Before adverting to this
aspect of the matter, we deem it appropriate
to refer to the testimony of PW-3 who is the
only other witness of fact in the matter.

16. PW-3 Smt. Urmila happens to be
the wife of Munni Lal and she has two
daughters. She is the daughter-in-law of
Sukhnandan, who happens to be the real
brother of the deceased. PW-3 in her
examination-in-chief stated that on the date
of incident at about 4.00-5.00 AM. PW-2
knocked her door and when she opened the
door she (PW-2) informed her that the
accused has assaulted her parents and
brothers by the axe and Smt. Deva and Sri
Devi Deen @ Bhawani Deen Yadav were
standing at the door. In the cross-
1 All. Amit Yadav Vs. State of U.P.
359
examination, PW-3 has admitted that she is
a graduate and her two daughters Laxmi
and Kirti used to play with PW-2. She has
stated that on the preceding day PW-2 had
come to her house to play with her
daughters. She has also stated that PW-2
had her meal at her house and she slept in
her house. On a question raised by the court
PW-3 then came up with a version that
after PW-2 had gone to sleep in her house,
the mother of PW-2 (deceased Chunni)
came and took PW-2 and Laxmi to her
house. Later at about 11.00 PM deceased
Chunni came to the house of PW-3 to
return Laxmi. This part of the statement of
PW-3 is a clear improvement from what
was stated by her in her previous statement
under Section 161 Cr.P.C. Statement of
Smt. Urmila was otherwise recorded under
Section 161 Cr.P.C. 3-4 days after the
incident and till then no such version had
been disclosed by her. PW-3 has been
contradicted with her previous statement
under Section 161 Cr.P.C. where there was
no explanation about the fact that though
her door was knocked but her husband and
devar had not woken up. She has also
stated that PW-2 asked her to allow her to
sleep with her as she was frightened. This
fact, however, was not disclosed in the
statement under Section 161 Cr.P.C. PW-3
has also been contracted with her previous
statement under Section 161 Cr.P.C. as per
which Ranshi had come to her house and
had slept there and only woke up in the
morning. Her version that Ranshi came to
her house at 4.00-5.00 in the morning was
also an improvement. PW-3 in her
statement had also stated that the light in
the house of Mahadev was switched off
when she came out of her house after
arrival of PW-2.

17. It is in the above backdrop that the
statement of PW-2 requires a careful
examination. PW-2 had stated that she had
gone to sleep in the night alongwith her
parents. She was in the same room with her
parents while her two brothers were in the
other room. As per PW-2 she had gone to
sleep at about 10.00-11.00 in the night after
having her meals. PW-2 has not stated
anything about the visit to the house of
PW-3 or about her having her meal the
previous night at the house of PW-3. As per
PW-2 deceased Mahadev was assaulted by
the accused whereupon he screamed and
her mother woke up. Mother of PW-2
rushed towards her father to save her where
she was also assaulted. PW-2 states that she
hid herself behind a chair. She has also
stated that the bulb was lighted. This
apparently was to convey that there was
source of light in the room. One of the
argument advanced on behalf of the
defence is that in the event PW-2 had been
seen sleeping next to the deceased mother
by the accused and in her presence both her
parents were assaulted, the possibility of
PW-2 hiding in same room behind a chair
seems
highly
improbable.
From
the
testimony of PW-2 it is apparent that
accused had seen her and if that be so, it
would be difficult to believe that he would
spare PW-2 or allow her to hid behind a
chair, particularly when his intent was to
finish off the entire family. PW-2 then
comes up with a version that her two
brothers who were sleeping in the adjoining
room tried to escape but were stopped by
Smt. Deva and Sri Devi Deen @ Bhawani
Deen Yadav who were standing at the gate.
As per PW-2 the two brothers were sent
back by Smt. Deva and Sri Devi Deen @
Bhawani Deen Yadav whereafter the
accused slaughtered them. This part of the
testimony of PW-2 has already been
disbelieved by the trial court for the reasons
that such plea was clearly a case of
improvement. Although this part of the
360 INDIAN LAW REPORTS ALLAHABAD SERIES
finding is challenged in appeal under
Section 372 Cr.P.C. by PW-1 but we find
no error in the reasoning assigned by the
trial court to disbelieve the testimony of
PW-2
to
implicate
Smt.
Deva
and
Devadeen. No such statement was made
under Section 161 Cr.P.C. either by PW-2
or PW-3. The fact that an attempt was made
to implicate other family members of
accused Golu also indicates that PW-2 was
tutored. PW-2 then stated that she saw the
incident from the other room by peeping
into a hole. In order to examine the
correctness of such version, the trial Judge
has taken pains to visit the place of
occurrence. The trial Judge found that from
the hole in the wall it was not possible to
see the incident. Para 22 of the trial court
judgment is relevant in this regard and is
reproduced hereinafter:-

"22. The court cannot shut eyes
from the fact that the witness is a child and
more often children can be easily swayed
away and are prone to tutoring, therefore
the statement of the child witness should
always be scrutinized with great care and
caution. In such cases, not only the court
has to search for reliable corroborative
evidence either oral or documentary, as a
matter of prudence, but must also feel
satisfied that such a child is not playing in
the hands and dictation of any family
member or other person who may be in a
better position to have a command and
dominance over the child and who has
some sinister agenda of settling scores with
the other party named as accused in the
commission of any crime. This precaution
is necessary because child witness is
amenable to tutoring and often lives in the
world of make-believe. The witness Ranshi
has not stated in his statement U/ 161
Cr.P.C that Deva and Devideen were
present at the door and forced the kids to
go inside. Nor the fact is mentioned in the
tahreer. Ranshi statement was recorded
same day. After the arrest of Golu this fact
emerged in the case diary that Deva and
Devideen too were involved in the crime.
Ranshi statement was recorded only once.
During inspection of crime spot when I
looked from the key hole where Ranshi
witnessed the murder, I found that vision
from the hole is limited to next room
boundaries only. If someone stands outside
the door in the night the possibility to see
him is very less. Thus I find statement of
Ranshi is filled with material improvement
and it hits the base of the case. Deva and
Devi Deen were present at their home after
the crime. They were arrested after Golu
was arrested. Police raided several places
in search of Golu as can be seen from the
General Diary. Many police teams were
searching to Golu. Golu was arrested after
6-7 days of crime and then Deva and
Devideen too. Had they been seen by the
witness the fact would have been told to 1.0
Immediately rather than waiting for 7-8
fays. Thus this portion of Ranshi evidence
is unreliable and benefit of doubt is
extended on the presence of Deva and
Devideen. PW-1 has stated that he got to
know from Awadh Naresh that Deva and
Devideen too were present there. Awadh
Naresh-the survived son statement were
never recorded in the case diary. The
reason being that he did not witnessed
anything as stated by 1.0 in his cross
examination. The defence witness records
gives strength to the plea of learned
defence That Devideen was on duty and
was on supervision of fields. Also Ranshi
has confirmed in her chief statement that
Awadh Naresh kept sleeping tili he was
awake." (emphasis supplied by us)

18. The consideration of evidence by
the trial Judge, noticed above, is reasonable
1 All.