# Ram Pratap @ Tillu v. State of U.P. 734 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 7 ILRA 733
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Case number:** Capital Case No. 7 of 2020
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pratap-tillu-v-state-of-u-p-734-indian-law-reports-allahabad-series-48835
- **Pages:** 20

## Headnote

Criminal Law- Indian Evidence Act, 1860-
Section
8-
Motive-
Circumstantial
evidence - No doubt, in a case based on
circumstantial evidence, motive has a role,
particularly in assessing the probative
value of the incriminating circumstances
and it may serve as a vital link to the chain
of circumstances but motive by itself is
not sufficient to hold the accused guilty.

Settled
law
that
in
a
case
based
on
circumstantial evidence, motive may be one of
the links of the circumstances, but the charge
against the accused cannot be brought home
solely on the ground of motive.

Criminal Law- Indian Evidence Act, 1860-
Section
8-
Subsequent
Conduct-
Abscondence after commission of offence-
The prosecution has been successful in
proving that the appellant-Ram Pratap @
Tillu was not available at his last known
residence and could only be arrested after
about more than five and a half months
despite issuance of coercive steps in
between. This circumstance is reflective of
the conduct of the appellant of making
himself scarce soon after the incident,
which is relevant under Section 8 of
Indian
Evidence
Act-
No
doubt,
abscondence of an accused is a relevant
fact and is admissible under Section 8 of
the Indian Evidence Act but abscondance
by itself is not a circumstance on the basis
of which an accused may be convicted
though,
in
conjunction
with
other
surrounding circumstances, it may serve
as a vital link to the chain of incriminating
circumstances.

Abscondence of accused serves only as one of
the vital links of circumstances against an
accused but conviction cannot be based solely
upon the factum of Abscondence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 172- Lapses on
part of Investigating Officer- As per
Section 172 of Cr.P.C. it is the duty of the
investigating Officer to maintain a case
diary of the case and note down all the
steps of investigation in the case diary on
a daily basis. Ordinarily, the lapses on the
part of Investigating Officer do not affect
the outcome of a criminal trial based on
ocular account but in a case based on
circumstantial
evidence,
these
lapses
assume
importance
and
where
the
prosecution relies heavily upon recovery/
seizure of incriminating articles from the
house
of
the
accused
then
such
recovery/seizure has to be proved beyond
the pale of doubt therefore, here, such
lapses on the part of Investigating Officer
are fatal to the prosecution case.

In a case based on circumstantial evidence, the
lapses on the part of the investigating officer are
relevant , particularly with regard to search ,
seizure or recoveries; in distinction to cases
based on ocular or direct evidence.

extra judicial confession

Crim

## Text

_Characters 0–39,723 of 67,446. This is a partial read: ask again with offset=39723 for what follows._

7 All. Ram Pratap @ Tillu Vs. State of U.P.
733
to the case. He may take a legal ground or
plea in the pleadings but cannot make
denial with respect to the factual aspect of
the case. Both the courts below are
miserably
failed
to
consider
the
maintainability of the objection in the eyes
of law, as raised on behalf of the
petitioners. In the litigation, verification of
pleading is held mandatory under the
provisions as enunciated under Order VI
Rule 15 C.P.C.

12. So far as difference of valuation
of plots is concerned, which were subject
matter of exchange, it is evident from the
record that the Tehsil authorities have
submitted reports thrice in favour of
exchange mentioning the valuation of the
plots. All the Tehsil reports were submitted
in favour of exchange showing the equal
valuation of plots. There is nothing on
record to show that there is difference of
valuation more than 10% of the lower
valuation between the plots, which were
sought to be exchanged as required under
Section 101(2) of the Code, 2006. Though
the trial court has given a vague ground qua
difference of valuation of plots, without
pointing out their valuation, but has failed
to discuss the case precisely in light of the
reports submitted by Tehsil authorities.

13. The Board of Revenue also
committed the same error in deciding the
revision without considering the reports
submitted by Tehsil authorities with
respect to the valuation of plots under
exchange.
Moreover,
the
Board
of
Revenue has considered the new aspect
of the matter showing unwillingness of
Gaon Sabha in exchange of plots in
question. There is nothing on record to
show the reluctant attituted of Gaon
Sabha
in
exchanging
the
plots
in
question. Counsel for Gaon Sabha has
failed to place any document to prove
that the resolution dated 04.06.2017 was
ever
reversed
by
the
subsequent
resolution. Under the law, resolution
dated 04.06.2017 still considered to be in
existence.

14. In this conspectus as above, this
Court finds force in the present writ
petition. Learned counsel for Gaon Sabha
has failed to substantiate his submissions
in supporting the impugned orders.
Resultantly, the impugned order dated
12.10.2010 (Annexure-14) passed by
respondent no. 2 and the order dated
30.10.2018 passed by respondent no. 3
(Annexure-12) are hereby quashed and
the parties are relegated before the
respondent no.3 who is hereby directed to
revisit
the
matter,
considering
the
maintainability
of
objection
dated
27.06.2018 and the reports submitted by
Tehsil authorities from time to time
strictly in accordance with law, after
giving proper opportunity of hearing to
the parties.

15. Accordingly, the present writ
petition is partly allowed.
----------
(2022)07ILR A733
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Capital Case No. 7 of 2020
With
Reference No. 05 of 2020

Ram Pratap @ Tillu ...Appellant
Versus
State of U.P. ...Opposite Party
734 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
From Jail, Sri Agnivesh, Sri Arimardan
Yadav, Sri Jadu Nandan Yadav

Counsel for the Respondents:
A.G.A., Sri Ram Naresh Singh, Sri S.D.
Yadav

Criminal Law- Indian Evidence Act, 1860-
Section
8-
Motive-
Circumstantial
evidence - No doubt, in a case based on
circumstantial evidence, motive has a role,
particularly in assessing the probative
value of the incriminating circumstances
and it may serve as a vital link to the chain
of circumstances but motive by itself is
not sufficient to hold the accused guilty.

Settled
law
that
in
a
case
based
on
circumstantial evidence, motive may be one of
the links of the circumstances, but the charge
against the accused cannot be brought home
solely on the ground of motive.

Criminal Law- Indian Evidence Act, 1860-
Section
8-
Subsequent
Conduct-
Abscondence after commission of offence-
The prosecution has been successful in
proving that the appellant-Ram Pratap @
Tillu was not available at his last known
residence and could only be arrested after
about more than five and a half months
despite issuance of coercive steps in
between. This circumstance is reflective of
the conduct of the appellant of making
himself scarce soon after the incident,
which is relevant under Section 8 of
Indian
Evidence
Act-
No
doubt,
abscondence of an accused is a relevant
fact and is admissible under Section 8 of
the Indian Evidence Act but abscondance
by itself is not a circumstance on the basis
of which an accused may be convicted
though,
in
conjunction
with
other
surrounding circumstances, it may serve
as a vital link to the chain of incriminating
circumstances.

Abscondence of accused serves only as one of
the vital links of circumstances against an
accused but conviction cannot be based solely
upon the factum of Abscondence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 172- Lapses on
part of Investigating Officer- As per
Section 172 of Cr.P.C. it is the duty of the
investigating Officer to maintain a case
diary of the case and note down all the
steps of investigation in the case diary on
a daily basis. Ordinarily, the lapses on the
part of Investigating Officer do not affect
the outcome of a criminal trial based on
ocular account but in a case based on
circumstantial
evidence,
these
lapses
assume
importance
and
where
the
prosecution relies heavily upon recovery/
seizure of incriminating articles from the
house
of
the
accused
then
such
recovery/seizure has to be proved beyond
the pale of doubt therefore, here, such
lapses on the part of Investigating Officer
are fatal to the prosecution case.

In a case based on circumstantial evidence, the
lapses on the part of the investigating officer are
relevant , particularly with regard to search ,
seizure or recoveries; in distinction to cases
based on ocular or direct evidence.

extra judicial confession

Criminal Law - Indian Evidence Act, 1860-
Section 27- Though it cannot be laid as a
rule that wherever prosecution has failed
to prove the origin of blood found on the
article, the recovery is to be held not
incriminating but in any case the recovery
has to be proved beyond reasonable
doubts-Doubted the recovery of bloodstained
towel
and
the
lock-alleged
recovery is not on the basis of a disclosure
statement-When the recovery was made
in absentia (i.e. when appellant was not
even present in the house) of articles,
which are not proved to be bearing human
blood much less of the relevant group, in
our view, the recovery,firstly, is not duly
proved, and secondly, is not to be taken as
a clinching circumstance to hold the
appellant guilty.
7 All. Ram Pratap @ Tillu Vs. State of U.P.
735
In order to make the recovery admissible, the
same has to be proved beyond reasonable
doubt. Where the recovery is not based upon a
disclosure by the accused and is carried out in
his absence, the same could not be held to
establish the guilt of the accused.

Criminal Law - Indian Evidence Act, 1860-
Sections 3 & 8- Although prosecution
might have been successful in proving the
motive for the crime against the appellant
and also that the appellant made himself
scarce after the incident, but except these
two circumstances prosecution failed to
prove beyond reasonable doubt any other
incriminating circumstance on the basis of
which
we
may
hold
the
appellant
guilty.Merely on the basis of motive and
abscondence, though it may give rise to
strong suspicion, the accused cannot be
held guilty-In the case at hand, the chain
of circumstances pointing to the guilt of
appellant could not be completed.

Settled law that suspicion howsoever strong
cannot take the place of proof and therefore,
the accused cannot be held guilty merely on the
basis of motive and subsequent conduct of
absconding. (Para 44, 45, 46, 48, 52, 55, 60,
62)

Criminal Appeal Allowed. (E-3)

Judgements/Case Law relied upon:-

1. Shatrughna Baban Meshram Vs St. of Maha.
(2021) 1 SCC 596

2. Ramesh Baburao Devaskar & ors. Vs St. of
Maha.,(2007) 13 SCC (501)

3. Sujit Biswas Vs St. of Assam, 2013 (12) SCC
406

4. Sahadevan Vs St. of T.N, 2012 (6) SCC
403

5. Shailendra Rajdev Pasvan Vs St. of Guj.,
(2020) 14 SCC 750.

6. Raghav Prapanna Tripathi Vs St. of U.P. AIR
1963 SC 74
7. Balwan Singh Vs St. of Chhattis. & anr.
(2019) 7 SCC 781

8. Madhav Vs St. of M.P, AIR 2021 SC 4031

9. The St. of Odisha Vs Banabihari Mohapatra &
anr, AIR 2021 SC 1375

(Delivered by Hon'ble Sameer Jain, J.)

1. The present appeal has been
preferred by the appellant, Ram Pratap @
Tillu, against the judgment and order dated
21.3.2020 and 21.5.2020 passed by 8th
Additional Sessions Judge, Etawah by
which the trial court convicted the
appellant under Section 302 IPC and
awarded death sentence to him with fine of
Rs.5 Lacs and in default two years R.I.

2. As death sentence was awarded, a
reference, i.e., Reference No.5 of 2020 was
made to the High Court under Section 366
Cr.P.C. for confirmation of death penalty.

INTRODUCTORY FACTS

3. In the present case, six persons of a
family, namely, Suresh Chandra, deceased
no.1 (in short D-1), Vimla Devi, deceased
no.2 (in short D-2), Avnish, deceased
no.3(in short D-3), Rashmi, deceased no.4
(in short D-4), Surabhi, deceased no.5 (in
short D-5) and Shweta, deceased no.6 (in
short D-6), were brutally murdered. Suresh
Chandra (D-1) and Vimla Devi (D-2) were
husband and wife whereas Avnish (D-3),
Rashmi (D-4), Surabhi (D-5) and Shweta
(D-6) were their son and daughters.

4. The FIR of the present case was
lodged by Hom Singh (PW-1) on 28.5.2012
at about 7.45 AM. As per FIR, Vimla Devi
(D-2), sister of informant (PW-1), was
married to Suresh Chandra Yadav (D-1).
The appellant, Ram Pratap @ Tillu is the
736 INDIAN LAW REPORTS ALLAHABAD SERIES
brother of Suresh Chandra Yadav (D-1).
Both the brothers resided separately and
their
properties
stood
divided.
The
appellant was a criminal minded person. He
had disposed of his entire property and was
pressurising his brother Suresh Chandra
Yadav (D-1) and Vimla Devi (D-2) for
additional property and money.

5. According to the FIR, the above
circumstances were conveyed by Suresh
Chandra Yadav (D-1) to the informant
(PW-1) and his brother Suresh (PW-2).
Consequently, both PW-1 and PW-2 went
to village Pilkhar to pacify the appellant but
the appellant continued to pressurise Suresh
Chandra Yadav (D-1) for money. On
15.6.2012 the marriage of Avnish (D-3),
nephew of the informant (PW-1), was to
take place. Due to all these reasons,
appellant used to be annoyed with D-1 and
kept an evil eye on the property of D-1. It is
alleged that with that motive, in the night of
27/28.5.2012, appellant with the help of his
associates committed the murder of Suresh
Chandra Yadav (D-1), Vimla Devi (D-2),
Avnish (D-3), Rashmi (D-4), Surabhi (D-5)
and Shweta (D-6) thereby eliminating the
entire family of Suresh Chandra Yadav (D1).

6. The FIR of the present case was
registered at Police Station Ikdil, District
Etawah as Case Crime No.261 of 2012,
under Section 302 IPC. After registration of
the case, on 28.5.2012 the Investigating
Officer recovered bloodstained and plain
soil from the spot. He also recovered
bloodstained pieces of clothes and gold
earring from the spot and prepared a
recovery memo (Ext.Ka-8) in respect
thereof. On the same day, Investigating
Officer recovered from the spot a piece of
bread (Roti), 'Laddoo', 'Kachauri', three
empty quarter bottle of wine, bowl
containing Dal and potato vegetables in
respect of which a recovery memo (Ext.Ka9) was prepared. Thereafter, from the house
of appellant, one bloodstained lock and one
piece of bloodstained towel was recovered
in respect whereof, a recovery memo
Ext.Ka-10 was prepared. Next day, on
29.5.2012, from the spot, bloodstained
piece of bedsheets, bloodstained pieces of
cots and bloodstained and plain pieces of
bricks were also recovered in respect
whereof, a recovery memo (Ext.Ka-48) was
prepared. During investigation inquest
reports were prepared and autopsy of the
bodies were conducted. Autopsy reports
Ext.42 to Ext.47 revealed as follows:-

Ante mortem injuries found on the
body of Smt. Vimla Devi (Ext.Ka-42):-

1. Incised wound 14 cm x 08cm x
through and through right side and back of
neck, neck only attached anteriorly by skin
and sub-cutaneous tissues with part of
muscles, underlying C3 and C4 vertebra,
spinal cord and major blood vessels on both
sides of neck are cut.

Cause of death is shock and
haemorrhage as a result of A/M injury
mentioned above.

Ante-mortem injuries found on the
body of Avneesh Yadav(Ext.Ka.43):
1. Incised wound 15 cm x 10 cm x bone
deep in front side, underlying Trachea,
major
blood
vessels
of
both
sides,
oesophagus, 3rd cervical vertebra with
spinal cord are cut.

2.Incised wound 8 cm x 3 cm x
bone deep on back of lower part of right
forearm wrist, underlying lower end of
radius and ulna bones cut.

3.Incised wound 18 cm x 5 cm x
through and through on left hand between
IIIrd and IVth fingers left wrist and lower
part of lower forearm, underlying left IVth
metacarpal and lower part of left ulna cut.
7 All. Ram Pratap @ Tillu Vs. State of U.P.
737

Cause of death is shock and
haemorrhage as a result of A/M injury
mentioned above.

Ante mortem injuries found on the
body of Km. Surabhi (Ext.44):

1.Incised wound 12 cm x 4 cm x
bone deep on left side of face and left ear
pinna, underlying mandible maxilla, temporal
are cut.

2. Incised wound 8 cm x 3 cm x
bone deep on front and left side of neck,
Trachea, oesophagus, major blood vessels of
both sides of neck., C4 and C5 vertebra cut
with spinal cord cut.

Cause of death is shock and
haemorrhage as a result of A/M injury
mentioned above.

Ante mortem injuries found on the
body of Suresh Chandra (Ext.Ka-45):

1. Incised wound 11cm x 5 cm x
cavity deep on front and lower part of neck
and adjacent part of left side of chest,
underlying collar bone, sternum, left Ist Rib
cut, Trachea, oesophagus, left major blood
vessel cut.

Cause of death is shock and
haemorrhage as a result of A/M injury
mentioned above.

Ante mortem injuries found on the
body of Km. Shewta (Ext.Ka-46):

1.Incised wound 12cm x 8 cm x
cavity deep on front and right side of neck
lower part and right side upper chest,
underlying cervical fractured; vertebra cut
and incised. Trachea, oesophagus, major
blood vessels of right side cut.

Cause of death is shock and
haemorrhage as a result of A/M injury
mentioned above.

Ante mortem injuries found on the
body of Km. Rashmi (Ext.Ka-47):

Incised wound 16 cm x 6cm x bone
deep on front and right side of neck
underlying trachea, oesophagus, major blood
vessels of both sides of neck C3 and C4 cut.

Incised wound 6cm x 3cm x
muscle deep on front of left shoulder.

Cause of death is shock and
haemorrhage as a result of A/M injury
mentioned."

7.

During
investigation,
on
19.11.2021 appellant was arrested and at
his instance an axe was recovered.
Investigating Officer prepared recovery
memo of the axe as Ext.Ka-2.

8. After investigation, charge sheet
was submitted against the appellant and coaccused
Varun
Raj.
The
case
was
committed to the court of Session and on
12.4.2013 charges under Section 302 read
with Section 34 IPC were framed against
the appellant and co-accused Varun Raj.
The appellant and accused Varun Raj
denied the charges and claimed trial.

9. During trial, prosecution examined
Hom Singh (PW-1), Suresh (PW-2),
Malkhan Singh (PW-3), Shiv Raj Singh
(PW-4), Ashok Chandra Dubey (PW-5),
Vinod Kumar Pandey (PW-6), Devendra
Kumar Dwivedi (PW-7), Sudhakar Singh
(PW-8), Sanjay Dubey (PW-9), Manish Jaat
(PW-10) and Padamakant Dubey (PW-11).
Nahne Ram has been examined as CW-1.
Out of 11 prosecution witnesses, PW-1,
PW-2, PW-3 and PW-4 are witnesses of
facts. Rest of the prosecution witnesses are
formal witnesses. CW-1, Nahne Ram, the
Tehsildar, is a Court witness.

10. After recording the statement of
prosecution witnesses, on 14.10.2019 and
26.10.2019 the trial court recorded the
statement
of
accused-appellant
under
Section 313 Cr.P.C. In the meantime, on
21.11.2019 public prosecutor filed certified
copy of FSL report dated 5.3.2013. On
25.11.2019 learned defence counsel made
738 INDIAN LAW REPORTS ALLAHABAD SERIES
endorsement
"No
objection"
on
the
application filed by the public prosecutor
and FSL report dated 5.3.2013 was taken
on record. Thereafter, on 29.11.2019, 3rd
statement of appellant under Section 313
Cr.P.C. was recorded and after that Nanhe
Ram, the Tehsildar, was examined as CW1.
Thereafter,
on
20.1.2020,
fourth
statement of appellant under Section 313
Cr.P.C.was recorded.

11. On 16.12.2019, certified copy of
the FSL report dated 29.8.2013 was filed
and after perusing the entire evidence on
record, trial court convicted the appellant
under Section 302 IPC and awarded him
death penalty. Co-accused Varun Raj was
acquitted.

12. As according to the trial court the
case fell in the category of the rarest of rare
cases, trial court awarded death penalty to
the appellant.

13. We have heard Sri Yadu Nandan
Yadav, learned counsel for the appellant, Sri
S.D.Yadav, Advocate holding brief of Sri
Ram Naresh Singh, learned counsel for the
informant and Sri Amit Sinha, learned AGA,
for the State and have perused the record.

SUBMISSIONS
MADE
ON
BEHALF OF APPELLANT

14. Learned counsel for the appellant
submitted that the trial court committed grave
error in convicting the appellant as it is a case
of no admissible evidence. He submitted that
there is no eye witness account of the
incident. The prosecution case is based on
circumstantial evidence but prosecution has
miserably failed to prove the incriminating
circumstances and the chain of circumstance
could not be proved.

15. Learned counsel for the appellant
submitted that the trial court heavily relied
upon motive for the crime and subsequent
abscondence of the appellant as incriminating
circumstances but they by themselves cannot
form basis of conviction. He submitted that
the motive shown that after eliminating his
brother and his family, the appellant would
inherit the property is misconceived because
upon conviction for murder of the deceased
no one can succeed to the estate of the
deceased. Sri Jadu Nandan Yadav, learned
counsel for the appellant, submitted that the
recovery
of
bloodstained
lock
and
bloodstained towel is rendered doubtful as
one of the independent witnesses of the
recovery, namely, Ashok Kumar, was not
examined by the prosecution. He contended
that as recovery of bloodstained towel is
doubtful, serological report is of no value.
Even if recovery of bloodstained towel is
accepted, it cannot be said that the blood
found on the piece of towel is of the deceased
persons inasmuch as there is no serological
report to indicate that the blood group of the
deceased matched with the blood found on
the towel. Moreover, there is no report on
record regarding the blood group of any of
the deceased persons. Therefore, mere
presence of blood on the recovered piece of
towel is of no consequence and cannot be
taken as an incriminating circumstance to
hold the appellant guilty.

16. Learned counsel for the appellant
also
submitted
that
the
incriminating
circumstances, that is of abscondence of the
appellant and recovery of bloodstained towel
and lock from the house of the appellant, were
not put to the appellant while recording his
statement under Section 313 Cr.P.C. which
caused prejudice to him therefore, those
circumstances were to be eschewed. Hence,
the appellant is entitled to be acquitted.
7 All. Ram Pratap @ Tillu Vs. State of U.P.
739

17. In the alternative, learned counsel
for the appellant submitted that the facts of
the case and the nature of evidence led do
not warrant a death penalty.

SUBMISSIONS
MADE
ON
BEHALF OF THE STATE AND THE

INFORMANT

18. Learned AGA as well as the
informant's counsel submitted that the
prosecution has successfully proved the
guilt of appellant beyond reasonable doubt
and the trial court rightly convicted the
appellant in the present case.

19. Learned AGA submitted that the
appellant is the real brother of Suresh
Chandra Yadav (D-1) and immediately
after the crime, he absconded and could
only be arrested after six months. His
conduct shows he was guilty. Moreover, he
eliminated the entire family of his brother
only to grab his property and after the
incident, property of his brother, Suresh
Chandra Yadav (D-1), came to the
appellant and appellant executed a Power
of Attorney in favour of his wife Smt.
Manju to enable transfer of the property in
favour of his daughter (Diksha). Thereafter,
Diksha disposed off the entire property for
Rs. Five crores. Thus, the motive for the
crime stands duly proved as against the
appellant.

20. Learned AGA also submitted that
the appellant offered no explanation in
respect of blood stained towel recovered
from his house. Even the recovery was not
challenged during cross-examination of the
witnesses. The serological report was also
not challenged. In fact, the defence counsel
endorsed 'no objection' on the application
through which the FSL report was filed. It
was submitted that in the present case as
many as six person including small
children were brutally murdered, therefore,
trial court rightly awarded death penalty to
the appellant.

21.

Having
noticed
the
rival
submissions and having perused the entire
record of the case, before evaluating the
prosecution
evidence
it
would
be
appropriate to notice in brief the deposition
of the prosecution witnesses.

Prosecution witnesses:-

22. Hom Singh PW-1 is the
informant, who lodged the FIR of the
present case. This witness stated that his
sister Vimla Devi (D-2) was married to
Suresh Chandra (D-1). Appellant was the
sole brother of Suresh Chandra (D-1).
Property of both the brothers had already
been divided between them. Appellant
disposed of his entire property and was
eyeing the property of his brother. PW-1
stated that appellant is a criminal minded
person and use to pressurize PW-1's sister
(D-2) and Suresh Chandra (D-1) for money
and property and also use to threaten them.
PW-1 further stated that his brother-in-law
(D-1) and his sister (D-2) conveyed all
these facts to him, as a result, PW-1 and
Suresh (PW-2) had gone to village-Pilkhar
to settle the matter but in spite of their
effort, the appellant continued to harass D1 and D-2. PW-1 stated that the marriage of
Avinash (D-3), his nephew, was fixed for
15.6.2015. Due to that, appellant was
annoyed. On 27.5.2012, at about 6:00 pm,
his brother-in-law, Suresh Chandra (D-1),
informed PW-1 on mobile phone that
appellant and co-accused Varun Raj, Kallu,
Rajveer, Satyaveer, Dutt Singh and Suresh
Chandra have threatened him that as, till
date, land has not been transferred in the
name of appellant, they will eliminate his
740 INDIAN LAW REPORTS ALLAHABAD SERIES
entire family in the night itself. As per PW1, he assured his brother-in-law (D-1) that
he will come in the morning. But, in the
morning, PW-1 received information that
his brother-in-law and his entire family has
been killed. PW-1 proved the written report
as Ext. Ka 1. PW-1 also stated that
associates of appellant have threatened him
that if he does not compromise the matter
then his entire family will also be
eliminated.

23. In his cross-examination, PW-1
stated that two-three times he participated
in a panchayat held to settle the property
dispute between the appellant and Suresh
Chandra (D-1). PW-1 also stated that the
mobile on which he received the phone call
from Suresh Chandra (D-1) has been lost
and, therefore, he could not provide its
number as he is illiterate. He denied the
suggestion that deceased No. 1 did not give
him a phone call.

24. Suresh has been examined as
PW-2. He is brother of Hom Singh (PW-1).
In his statement PW-2 stated that his sister
Vimla Devi (D-2) was married to Suresh
Chandra Yadav (D-1). PW-2 stated that the
brother of Suresh Chandra Yadav (D-1),
namely, Rampratap @ Tillu (appellant),
lived separately and the property had been
divided between brothers. PW-2 reiterated
that the appellant is a criminal type of a
person and as he had disposed of his entire
property, he was pressurizing his brother
(D-1) and D-1's wife (D-2) for money and
property. PW-2 stated that one day before
the incident, he alongwith his brother Hom
Singh (PW-1) went to settle the matter but
all their efforts were in vain. PW-2 stated
that 15.6.2012 was the date fixed for the
marriage of his nephew Avnish (D-3),
invitation cards had also been distributed
but, in the night of 27/28.5.2012, appellant
along with his associates, namely, Varun
and Dileep, killed his brother-in-law Suresh
Chandra(D-1); his sister Vimla Devi (D-2);
his nephew Avnish (D-3); his neices
Rashmi (D-4), Shweta (D-5) and Surbhi
(D-6). In his cross-examination, PW-2
admitted that the appellant had a separate
residence in the village where his brotherin-law Suresh Chandra (D-1) resided.

25. Malkhan Singh has been
examined as PW-3. This witness stated
that
on
28.5.2012,
after
receiving
information about the murder of Suresh
Chandra (D-1) and his family members, he
arrived at village-Pilkhar. In his presence,
from the spot, blood stained soil and other
materials were recovered. PW-3 stated that
Investigating Officer prepared recovery
memo i.e. Paper No. 8Ka/1, 8Ka/2, 8 Ka/3
and 8Ka/4 which were read over to him and
after hearing the contents of these recovery
memos, he had put his signatures. In his
cross-examination, this witness denied the
suggestion that recovery memo was not
prepared before him and that he put his
signature on plain papers. PW-3 also denied
the suggestion that the entire paper work
was done at the police station. Interestingly,
PW-3 did not specifically state that
recovery of blood stained towel and lock
was made from the house of appellant. He
only
stated
that
paper
No.8Ka/3
(Ext.Ka.10) was read over to him and was
signed by him.

26. Shivraj Singh was examined as
PW-4. According to this witness, he and
alongwith Rajesh @ Pappu (not examined)
had gone to Barthana for some work on
10.11.2012. At the outskirts of Barthana, he
met the appellant on a motor cycle. At that
time, there were two more persons with the
appellant who disclosed their name as Dilip
and Vikas @ Varun. They stated that Hom
7 All. Ram Pratap @ Tillu Vs. State of U.P.
741
Singh (PW-1), who comes from PW-4's
family, has lodged an FIR against the
appellant in respect of murder of his
brother and his brother's family, therefore,
he should ensure that the matter is settled.
In this way, PW-4 tried to prove that the
appellant had confessed his guilt. In his
cross-examination, PW-4 stated that he
went to Barthana to buy items for domestic
use. He, however, could not disclose either
the location of the shop or the name of the
shopkeeper. PW-4 also stated that the day
when he met the accused persons, the Sub
Inspector had recorded his statement at
about 10.00 AM. Interesting, PW-4 stated
that he went to the market at around 12 pm
and was there till 4-5 pm. In these
circumstances, it be noted the trial court
discarded the testimony of this witness.

27. Ashok Chandra Dubey is PW-5.
This witness stated that he prepared parcha
No. 4 of the case diary and perused the
investigation parchas prepared earlier by
the earlier Investigating Officer and started
investigation of the case on 28.10.2012. On
30.10.2012 he recorded another statement
of Hom Singh (PW-1) as also the
statements
of
witnesses
of
recovery,
namely, Ashok Kumar (not examined) and
Malkhan Singh (PW-3). On 19.11.2012, he
arrested appellant-Rampratap @ Tillu and,
at his pointing out, recovered country-made
pistol, empty cartridge and two motor
cycles. He also stated that at the pointing
out of the appellant, an axe, allegedly used
in the crime, was recovered on 19.11.2012
in respect whereof, he prepared recovery
memo (Ext.Ka-2). PW-5 also proved the
site plan including its index (Ext. Ka-3 )
and proved submission of charge sheet
(Ext. Ka-4) on 17.1.2013. In his crossexamination, PW-5 stated that after the
arrest of appellant he did not record his
statement at the spot. However, according
to PW-5, on 19.11.2012 axe was recovered
on the pointing out of the appellant from
roof of the shop of Rajveer (not examined).
PW-5 admitted that recovery of the axe was
made after about six months of the
incident.

28. Vinod Kumar Pandey has been
examined as PW-6. This witness is the
first Investigating Officer of the case. PW-6
stated that on 28.5.2012, he was posted as
Station House Officer at P.S. Ikdil, Etawah
and on that day, Hom Singh (PW-1) handed
over a written report against appellant and
his associates in respect of murder of six
persons of the family of his brother-in-law.
He recorded the statement of PW-1 and
inspected the spot and recovered bloodstained and plain soil from the spot
alongwith blood stained golden earring and
prepared recovery memo (Ext.Ka-8). He
also prepared the site plan (Ext. Ka-6) of
the spot. PW-6 also prepared the site plan
(Ext. Ka 7) of the house of appellant; and
recovery memo (Ext.Ka-9) of food items
including empty quarter bottles of wine
found in the house of the deceased. PW-6
stated that he recovered a blood stained
lock and blood stained towel from the
house of the appellant. He proved the
recovery memo of the same as Ext. Ka 10.
PW-6 also produced these items in Court as
material Ext. ka-2 to ka-16. In his crossexamination, PW-6 stated that Parcha No. 1
of the case diary is not in his hand writing.
He also stated that details of both the site
plans i.e. Ext. Ka-6 and Ka-7 were not in
his writing. PW-6 stated that the site plan
Ex. Ka-6 and Ex. Ka-7 were prepared on
the instructions of the informant and at his
pointing out.PW-6 admitted that the sample
seal of material exhibits is not available on
record as it was sent to the Forensic
Laboratory. PW-6 denied the suggestion
that he did not inspect the spot and that he
742 INDIAN LAW REPORTS ALLAHABAD SERIES
completed the investigation exercise sitting
at the police station.

29. Devendra Kumar Dwivedi has
been examined as PW-7. He is the 3rd
Investigating Officer of the case. He stated
that on 5.8.2012, he was posted at Police
Station-Ikdil and during investigation of the
case, he prepared Parcha No. 20 of the case
Diary. On 17.8.2012, he prepared parcha
No. 21. He disclosed about his attempts to
arrest the appellant-Rampratap @ Tillu. In
his cross-examination, PW-7 stated that
parcha Nos. 20 and 21 of the case diary
were not in his hand writing and that those
were in the hand writing of Head
Constable. Likewise, parcha Nos. 22 and
23 of the case diary was also not in his
hand writing.

30. S.I. Sudhakar Singh has been
examined as PW-8. He was a Sub
Inspector posted at Police Station Ikdil. On
28.5.2012, he prepared the inquest report of
Suresh Chandra (D-1) (Ext.Ka-11) and his
wife Smt. Vimla Devi (D-2) (Ext.Ka-16).
PW-8 proved the inquest reports of Suresh
Chandra (D-1) and Smt. Vimla Devi (D-2)
as Ext.Ka-11 and Ka-16. He also proved
preparation of other documents, like,
Challan Nash, Photo Nash etc. which were
marked as Ext. Ka-11 to Ka-20. PW-8
stated that inquest report of Avnish Chandra
(D-3) and Km. Surabhi (D-4) was prepared
by HCP Amar Singh, who has since retired.
He stated that inquest report of Km.
Rashmi (D-5) and Km. Shweta (D-6) was
prepared by SI Babu Lal Dohre, who has
since expired. PW-8 proved the inquest
report of Avnish Chandra (D-3), Km.
Surabhi (D-4), Km. Rashmi (D-5) and Km.
Shweta (D-6) which were marked as Ka21, Ka-26, Ka-32 and Ka-37, respectively
He also proved other documents, like,
Challan Nash, Photo Nash etc.

31. PW-9 Sanjay Dube, Nursing
Assistant,
CHC
Jashwant
Nagar,
Etawah. According to this witness, on
28.5.2012 he was posted as Nursing
Assistant at Police Hospital, Etawah and he
was present along with Dr. D.P.Singh at the
post mortem house. He stated that on that
day autopsy of all the six deceased persons
was conducted by Dr. D.P.Singh. PW-9
proved the post mortem reports of all the
six deceased persons as Ext.Ka.42 to Ka47. This witness identified/proved the
signature of Dr. D.P.Singh on the post
mortem reports.

32. In his cross-examination PW-9,
Sanjay Dubey, stated that he was not
assigned duty in the post mortem house. He
denied the suggestion that Dr. D.P.Singh
did not prepare the post mortem report in
his presence. He also stated that his job is
to note the name of the dead body. He
stated that in the post mortem house only
the Doctor who conducts the post mortem
and Sweeper are present. PW-9 admitted
that he was not in the post mortem house at
the time of autophy. He also admited that
the entries in autopsy reports Ext.Ka-42 to
Ka-47 were not made in his presence. He
stated that he cannot state about the
contents of the autopsy reports. PW-9,
however, denied the suggestion that he
wrongly verified the signature of Dr.
D.P.Singh who conducted the autopsy of
the bodies.

33. The prosecution examined
Manish Jaat as PW-10. He is the second
Investigating Officer of the case. He stated
that on 29.5.2012 he was assigned
investigation of the present case. On
29.8.2012 he prepared CD Parcha No. 2
and recorded the clarificatory statement of
the informant. On 30.5.2012 he prepared
CD ParchaNo. 3 and made copy of inquest
7 All. Ram Pratap @ Tillu Vs. State of U.P.
743
report and autopsy reports. On 29.5.2012
prepared the recovery memo (Ext. Ka-48)
of all bloodstained items recovered from
the spot. He deposed about attempts to
arrest the appellant. On 7.6.2012 he
prepared CD Parcha No.8 in respect of
obtaining the process under Section 82
Cr.P.C. against the appellant. In CD Parcha
no.15 of the case diary, dated 29.6.2012, he
entered his efforts to arrest the appellant,
He also conducted raids on the house of
appellant and his sister to arrest the
appellant,which was entered in CD Parcha
No. 17, dated 8.7.2012, and in Parcha no.
18, dated 11.7.2012. He also copied the list
of the items seized from the house of the
appellant under Section 83 Cr.P.C. He
stated that after making entry in CD parcha
no. 19, dated 3.8.2012, he was transferred.

34. In his cross-examination PW-10
stated that parcha nos. 2 to 18 of the case
diary are in one writing but they are not in
his
handwriting.
PW-10
stated
that
informant is a resident of village Bandhana;
he was not a witness of the incident; and
that he arrived at the place of the incident
on receipt of information from the
villagers. He also stated that the previous
Investigating Officer did not lift any item
from the spot even though it was there and
it was PW-10 who prepared the memo
Ext.Ka.48. He further stated that witnesses
of recovery memo (Ext.Ka-48) were not
from that village but from a place falling
under other Police Stations. PW-10 stated
that he did not prepare site plan of the spot.
He also stated that during investigation he
did not record statement of any witness of
fact or of any formal witness. He, however,
denied the suggestion that he did not
inspect the spot or had completed the
investigation sitting at home.

35. Head Constable, Padamkant
Dubey, has been examined as PW-11. He
proved the chik FIR (Ext.Ka-49) and
G.D.entry (Ext.Ka-50) in respect thereof.
PW-11 stated stated that Sushil Kumar,
who prepared chik FIR (Ext.Ka-49) and
G.D.entry (Ext.Ka-50) had died. He proved
the entries by recognizing his handwriting
and signature.

36. Nahne Ram, Tehsildar, has been
examined as CW-1. This witness stated
that Ram Sanehi (father of the appellant)
died on 10.11.1997 and after his death his
agricultural land was equally divided
between his two sons, namely, Suresh
Chandra (D-1) and Ram Pratap (appellant).
He stated that the appellant disposed of his
entire agricultural land between the year
2004 and 2011 through six sale deeds. CW1 stated that half of the ancestral land of
Suresh Chandra (D-1) was inherited by the
appellant vide entry dated 25.7.2015. On
7.2.2016, appellant executed a power of
attorney in favour of his wife, Manju. On
12.4.2016, Manju executed a sale deed of
the property in favour of her minor
daughter, Km. Diksha Yadav @ Aaradhya
and for 22 plots of different sizes, she
executed sale deeds in favour of several
persons. Later , in the year 2019, Km.
Diksha Yadav, daughter of the appellant,
after attainment of majority, executed six
sale deeds in favour of different persons of
the property which came to her on transfer
from her mother. According to CW-1, these
properties
were
located
on
National
Highways No.2
and were
extremely
valuable with a going rate of about Rs. Two
Crores per hectare. He stated that the
properties sold using power of attorney
would be of the value of about Rs. Five
Crores.
744 INDIAN LAW REPORTS ALLAHABAD SERIES

37. In his cross-examination, CW-1
stated
that,
during
investigation,
the
Investigating Officer did not record his
statement.
CW-1
admitted
that
the
appellant inherited the property of Suresh
Chandra (D-1) and being the owner had all
the rights to transfer the property.

38.

After
statements
of
the
prosecution witnesses were recorded, trial
court recorded the statement of appellant
under Section 313 Cr.P.C. on 14.10.2019,
26.10.2019 and 29.11.2019. After the
statement of CW-1 was recorded an
additional statement of the appellant was
recorded on 20.1.2020.

39. On 21.11.2019 the prosecution
filed a certified copy of the FSL report
through an application on which, on
25.11.2019, defence counsel endorsed "No
objection" as a consequence whereof, the
same was taken on record.

40. The trial court convicted and
sentenced the appellant as above.

Analysis:-

41. The present case is based on
circumstantial evidence. There is no eye
witness account of the murders/incident. As
to when conviction can be recorded in a
case based on circumstantial evidence, the
law is well settled. For the sake of brevity,
instead
of
noticing
multiple
legal
pronouncements in that regard, we deem it
appropriate to notice a recent decision of a
three-Judge Bench of the Apex Court in the
case of Shatrughna Baban Meshram Vs.
State of Maharashra (2021) 1 SCC 596,
where, in paragraph 42, legal principles to
be
followed
in
a
case
based
on
circumstantial are crystallised as follows :-

".....42. Before we deal with the
second submission on sentence, it must be
observed that as laid down by this Court in
Sharad Birdhichand Sarda v. State of
Maharashtra [(1984) 4 SCC 116], a case
based on circumstantial evidence has to
face strict scrutiny. Every circumstance
from which conclusion of guilt is to be
drawn must be fully established; the
circumstances should be conclusive in
nature and tendency; they must form a
chain of evidence so complete as not to
leave any reasonable ground for a
conclusion consistent with the innocence of
the
accused;
and
such
chain
of
circumstances must be consistent only with
the hypothesis of the guilt of the accused
and must exclude every possible hypothesis
except the one sought to be proved by the
prosecution. The
decision
in
Sharad
Birdhichand Sarda V. State of Maharashtra
[(1984) 4 SCC 116] had noted the
consistent view on the point including the
decision of this Court in Hanumant v. State
of M.P. [1952 SCR 1091] in which a bench
of three judges of this Court had ruled (AIR
pp 345-46, para 10):-

"10.