State of Bihar vs Anmol Yadav - 2024 Supreme(Pat) 343

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Pat) 343

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and A. ABHISHEK REDDY, JJ.
Death Reference No.3 of 2022 with Cr. App. No. 483 and 540 of 2022
(22.3.2024)
State of Bihar (in 3)
Ali Sher @ Md. Ali Sher & Ors. (in 483)
Anmol Yadav (in 540) ... Petitioners
vs.
Anmol Yadav & Ors. (in 3)
State of Bihar (in 483, 540) ... Respondents

Advocates Appeared:
For the Petitioners: Mr. Dilip Kumar Sinha, APP(in 3); M/s Ansul, Arun, Sagrika, Kanika, Aditya Pandey(in 483, 540).
For the Respondents: Mr.(in 3); Dilip Kumar Sinha, APP (in 483); Manish Kumar No. 2 (in 540).

Headnote:
Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Sections 341, 342, 323, 394/34 and 302/34 – Arms Act, 1959 – Section 27 – Wrongful restraint, gang rape, robbery and murder – Common intention – Death sentence – In a case of this kind, where none of victims/witnesses were aware of accused persons/miscreants, police should have put arrestees on TIP before proceeding any further in the matter – Occurrence had taken place in night somewhere in between two villages on a river-bed where no electricity is expected – Miscreants may not have been identified at that place – Recovery shown from appellants is also not attended by any logical corroboration – Inconsistencies in prosecution case point towards lack of proper investigation – Clothes of victims were required to be collected and sent for forensic examination – Deceased definitely was shot at during occurrence but whether she was raped also becomes very doubtful especially in view of post-mortem examination report and evidence of Doctor – There is no reference of any treatment at anyone of hospitals – Empty cartridge found at P.O. was also not subjected to any forensic/ballistic examination – Appellants cannot be held guilty and be doled out death sentence – Death reference rejected and appellants acquitted – Appeals allowed. (Paras 47, 48, 55, 56, 65, 68, 77, 81, 85, 91, 92, 93 and 94)
Criminal Procedure Code, 1973 – Section 53(A) – Rape case – It is necessary for prosecution to go in for DNA test in such type of cases to facilitate prosecution to prove its case against accused – Section 53 (A) is not mandatory but even then observed that failure to comply with provisions under Section 53(A) would warrant adverse inference. (Paras 62 and 64)
Criminal Law – Test Identification Parade – Absence of test identification may not be fatal if accused is known or sufficiently described in complaint, leaving no doubt in mind of Court regarding his involvement – Identification parade may not also be necessary in a case where accused persons are arrested at spot – Evidence of identifying accused persons at trial for first time is from its very nature inherently, is of a very weak character – Evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances complainant or witnesses came to pick-out particular accused person and details of the part which he allegedly played in crime in question with reasonable particularity – In such cases, TIP is always considered a safe rule of prudence to generally look for corroboration of testimony of witnesses in Court as to identity of accused, who are strangers to them. (Paras 70 to 74)

Ashutosh Kumar, J. – The death reference No. 3 of 2022 and the two criminal appeals, viz., Criminal Appeal (DB) No. 483 of 2022 and Criminal Appeal (DB) No.540 of 2022 have been taken taken up together and are being disposed of by this common judgment.

2. Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor has assisted us in Death Reference No. 3 of 2022.

3. The four appellants, viz., Ali Sher @ Md. Ali Sher, Md. Jamal, Md. Ayyub @ Md. Ejub [Criminal Appeal (DB) No. 483 of 2022] and Anmol Yadav [Criminal Appeal (DB) No. 540 of 2022] have been represented by Mr. Ansul, assisted by Ms. Sagrika, learned Advocates. Mr. Ansul and Ms. Sagrika have also assisted us on behalf of the respondents in the Death Reference.

4. The Trial court vide its judgment dated 26.04.2022 in Sessions Trial No. 6 of 2022 has found the appellants guilty for the offences under Sections 341, 342, 323, 394/34 and 302/34 of the IPC and Section 27 of the Arms Act. The appellants/ Anmol Yadav, Ali Sher and Md. Ayyub have also been found guilty under Section 6 of the POCSO Act, 2012. The conviction of appellant/ Anmol is under Section 302 simpliciter for his having shot at the deceased, leading to her death.

5. Vide order dated 11.05.2022 the appellants have been sentenced as hereunder: –

(i) Appellant/Anmol Yadav has been sentenced to death, to pay a fine of Rs. 20,000/- and in default of payment of fine to further suffer SI for two months under Section 302 IPC.

(ii) Appellants/Anmol Yadav, Ali Sher, Md. Ayyub and Md. Jamal have been sentenced to death, to pay a fine of Rs. 20,000/- and in default of payment of fine to further suffer SI for two months under Section 302/34 IPC.

(iii) Appellants/Anmol Yadav, Ali Sher, Md. Ayyub were sentenced to death under Section 6 of the POCSO Act.

(iv) Appellants/Anmol Yadav, Ali Sher, Md. Ayyub and Md. Jamal have been sentenced to imprisonment for life till remainder of their natural life, to pay a fine of Rs. 50,000/- and in default of payment of fine to further suffer SI for six months under Section 376-D IPC.

(v) Appellants/Anmol Yadav, Ali Sher, Md. Ayyub and Md. Jamal have been sentenced to undergo RI for ten years, to pay a fine of Rs. 30,000/- and in default of payment of fine to further suffer SI for one year under Section 394/34 IPC.

(vi) Appellants/Anmol Yadav, Ali Sher, Md. Ayyub and Md. Jamal have been sentenced to undergo SI for one month, to pay a fine of Rs. 200/- and in default of payment of fine to further suffer SI for seven days under Section 341/34 IPC.

(vii) Appellants/Anmol Yadav, Ali Sher, Md. Ayyub and Md. Jamal have been sentenced to undergo SI for one year, to pay a fine of Rs. 500/- and in default of payment of fine to further suffer SI for one month under Section 342/34 IPC.

(viii) Appellants/Anmol Yadav, Ali Sher, Md. Ayyub and Md. Jamal have been sentenced to undergo SI for one year, to pay a fine of Rs. 500/- and in default of payment of fine to further suffer SI for one month under Section 323/34 IPC.

(ix) Appellants/Anmol Yadav, Ali Sher, Md. Ayyub and Md. Jamal have been sentenced to undergo RI for seven years, to pay a fine of Rs. 5,000/- and in default of payment of fine to further suffer SI for one year under Section 27 of the Arms Act.

6. Since death penalty has been imposed on all the four appellants, the matter has come in reference as well for confirmation of the death sentence.

7. A grisly crime was reported on 09.10.2019 by Chandradeo Mandal (PW-4) alleging that while he along with eight of his family members were on their way to village Tintolia for witnessing a fair in the evening of 08.10.2019 at about 8:00 P.M., they were held captive by three persons who were waiting at that place from before. Later, three more persons arrived. The accused persons were armed with dabia (a sharp cutting weapon) and guns. On the gun point, they were asked to wait till the time a person by the name of Master, who was the target of the accused persons, would come and only thereafter, they were told, the