DEATH REFERANCE No.6 OF 2010
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Reference made under Section 366 of the Code of Criminal
Procedure for confirmation of death sentence awarded to the
convicts in judgment and order dated 17.4.2010 passed by Sri
Vijay Kumar Sinha, Sessions Judge, Jamui in Sessions Trial No.
328 of 2006 arising out of Sikandra (Chandradeep) P.S. case No.
42 of 2006;
THE STATE OF BIHAR ………….. Appellant.
Versus
SURENDRA YADAV @ SHAILENDRA PRASAD ………….. Respondent.
With
CR. APP (DB) No.482 of 2010
SURENDRA PRASAD @ SHAILENDRA PRASAD ………….. Appellant.
Versus
THE STATE OF BIHAR ………….. Respondent.
With
CR. APP (DB) No.551 of 2010
PREMAN YADAV …………… Appellant.
Versus
THE STATE OF BIHAR …………… Respondent.
With
CR. APP (DB) No.558 of 2010
BINOD YADAV …………… Appellant.
Versus
THE STATE OF BIHAR ………….. Respondent.
With
CR. APP (DB) No.581 of 2010
1. SAKINDAR YADAV @ SAKO YADAV
2. JAI RAM YADAV
3. SANJAY YADAV …………. Appellants.
Versus
THE STATE OF BIHAR …………. Respondent
For the Appellants:- Mr. Rana Pratap Singh, Mr.D.K.Sinha,Sr.Advocates
And Mr. Durgesh Nandan,Advocate
For the State:- Mr. Ashwini Kumar Sinha,APP
For the Informant:- Mr. Surendra Kishore Thakur &
Mr. Satya Prakash Parasar, Advocates
PRESENT
THE HON’BLE JUSTICE SMT. MRIDULA MISHRA
THE HON’BLE JUSTICE Shri DHARNIDHAR JHA
************
Mridula Mishra, J. Sessions Trial No. 328 of 2006 and Sessions
Trial No. 16 of 2009, arising out of Sikandara
(chandradeep) P.S. case No. 42 of 2006 were
conducted analogous by Sessions Judge, Jamui,
framining charge against all accused under Section
302/34 of the Indian Penal Code. The trial Court by
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judgment and order dated 17.4.2010 has convicted all
accused- appellants under Section 302/34 of the
Indian Penal Code. Appellants Surendra Yadav alias
Shailendra Prasad and Preman Yadav were awarded
sentence of death and directed to be hanged by their
neck till they are dead. But other appellants have been
sentenced R.I. for life and fine of Rs.50,000/- and in
default of payment of fine S.I. for six months. The
District and Sessions Judge, Jamui had made
reference for confirmation of death sentence under
Section 366 of the Code of Criminal Procedure, as
such Death Reference and criminal appeals were
heard analogous and being decided by a common
judgment.
2. Nepali Yadav is the informant of Sikandara
(Chandradeep) P.S. Case No. 42 of 2006, who was
examined as P.W. 4 in Sessions Trial No. 328 of 2006
and P.W. 2 in Sessions Trial No. 16 of 2009. He is
father of three children Kajal Kumari ( two years),
Vikas Kumar (six years) and Mukesh Kumar (three
and half years), who were killed by the accused
persons, in order to create terror in the village, so that
no other person than wife of Krishnandan Yadav
should contest election for the post of Mukhia, in the
Gram panchayat Election of 2006.
3. The prosecution story as revealed in the
fard beyan of Nepali Yadav, recorded in between the
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night of 19/20.3.2006 at 1.00 a.m. is that he along with
his wife Uma Devi (P.W. 14 in Sessions Trial No. 328
of 2006 and P.W. 10 in Sessions Trial No. 16 of 2009)
and three children namely, Kajal Kumari, Vikas Kumar
and Mukesh Kumar, were sleeping in his room. He
heard knocking sound at the door at about 11.00 p.m.
and inquired, who was there, knocking at the door.
The answer came that Dafadar Surendra Yadav, and
Officer-in-charge of Police Station were waiting
outside the door. Nepali Yadav opened the door and
saw his villagers, Preman Yadav, Uday Yadav, Nepal
Yadav, Sanjay Yadav and Jai Ram Yadav standing.
They were fully armed, and forcibly pushed
themselves into the room. Preman Yadav asked about
the children of informant and he replied that two of his
children were at their grand parents house and other
three children were sleeping in the room. The accused
persons lifted his three children from their bed and
came out of room. Informant and his wife objected
and tried to restrain them, but accused persons
enhanced threat and asked them not to raise their
voice, or otherwise they will be shot. Despite this
threat Informant, raised alarm and also followed the
accused persons, who were taking away his children.
Informant, coming out of room saw that Kallu Yadav,
Surnedra Yadav, Krishnandan Yadav, Sikandar Yadav,
Binod Yadav and Gohan Yadav, were keeping watch
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from outside of the room. They were also variously
armed with fire arms. They surrounded the informant
and enhanced threat. In the meantime, hearing the
alarm raised by the informant and his wife, Raghu
Yadav and Devi Yadav, two brothers of the informant,
who were sleeping in the adjacent rooms, came out.
They were also surrounded and overpowered by
accused persons. The accused persons escorted the
informant and his brothers upto Devisthan, where in
their presence Krishnandan Yadav cut and tear
(pierced) the abdomen of Kajal Kumari, the daughter
of the informant. At that time Preman Yadav and
Surendra Yadav had caught hold of Kajal Kumari and
Nepal Yadav slit her neck. The accused persons,
thereafter took away two sons of the informant,
namely, Vikas Kumar and Mukesh Kumar towards
west of the village. The informant was threatened by
the accused persons not to disclose about the
occurrence before anyone or otherwise other family
members will also be killed. Kajal Kumari was still
alive, as such informant and his brothers lifted her
and brought near the village road. At that very time
police jeep came, and informant narrated about the
incident to the police officials. The Police Officer,
immediately sent Kajal Kumari for her treatment to
Sadar Hospital, Jamui on the Police jeep. The Officer-
in-charge along with other police personnels, the
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informant, his brothers and villagers started
searching for his two sons. In course of search, dead
body of two sons of the informant, namely, Vikas
Kumar and Mukesh Kumar was found thrown near the
northern wall of the Upper Primary School, Islam
Nagar. The abdomen of Mukesh and Vikas were also
cut and torn and their necks slit. The motive for
committing such offence by the accused persons as
disclosed in the FIR was the ensuing 2006 Panchayat
Election, for the post of Mukhia in which Uma Devi,
wife of the informant intended to stand for the post of
Mukhiya and wife of accused Krishnandan Yadav was
also intending to contest. A threat had already been
enhanced by Preman Yadav and Krishnandan Yadav
to the informant that if his wife will contest the
election, entire family will be killed. The case of the
prosecution is that just to create terror in the minds of
the electorate and to restrain informant’s wife from
contesting election, his three innocent minor children
were killed in such brutal manner.
4. On the basis of fard beyan of informant
Nepali Yadav, FIR of Sikandara (Chandradeep) P.S.
Case No. 42 of 2006 was instituted at 10.30 a.m. on
20.3.2006 against 10 named accused persons for
offence under Sections 302, 307, 324/34 of the Indian
Penal Code. The case was investigated by the S.I. Jai
Prakash Singh (examined as P.W. 15 in Sessions Trial
6
No. 328 of 2006 and P.W. 13 in Sessions Trial No. 16
of 2009), who on completion of investigation,
submitted charge sheet against 10 accused persons.
Charge sheet was submitted against some of the
accused persons showing them as absconders. Out
of 10 charge sheeted accused persons, only three
were committed to the Court of Sessions for facing
trial in Sessions No. 328 of 2006. After three years,
during the pendency of the Sessions Trial No. 328 of
2006, three accused, namely, Binod Yadav, Jai Ram
Yadav and Sanjay Yadav were also apprehended and
committed to the Court of Sessions for facing trial,
being Sessions Trial No. 16 of 2009. Rest four
accused persons are still absconding and as such not
put on trial. Two of the main accused, who as per the
prosecution case, have cut the abdomen of three
children and slit their necks, namely, Nepal Yadav and
Krishnandan Yadav, are still absconding ,not put on
trial.
5. Accused persons, who faced trial
allegation against them was that they entered into the
room of the informant, lifted his three children from
their bed, while sleeping and brought them to a place
where they were later on, killed by Nepal Yadav and
Krishnandan Yadav. Further allegation against the
accused/appellants is that they surrounded,
overpowered the informant and his brothers, outside
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informant’s room, restrained them from putting any
obstruction to the accused persons, in taking away
informant’s three children. The accused/appellants
are also alleged to have brought the informant and his
brother in escort to Devisthan, where Kajal was killed
in their presence and two sons were taken away
towards north of village, and later on found dead and
their bodies lying near School’s compound wall.
Specific allegation against Surendra Yadav and
Preman Yadav is that they caught hold of Kajal
Kumari, while her abdomen was being cut and pierced
by Krishnandan Yadav and neck slit by Nepal Yadav.
6. The prosecution in order to prove the
charges against accused persons examined
altogether 15 witnesses in Sessions Trial No. 328 of
2006 and 13 witnesses in Sessions trial No. 16 of
2009. P.W.1 Bhagwan Prasad Yadav and P.W.2
Rajendra Yadav, two advocate clerks were examined
as formal witness in Sessions Trial No. 328 of 2006.
They were not examined in Sessions Trial No. 16 of
2009. All other witnesses, namely, Chand Yadav,
Nepali Yadav, Rameshwar Yadav, Rajeshwar Yadav
alias Rameshwar Yadav, Raghu Yadav, Nandu Yadav,
Devi Yadav,Dasrath Yadav, Brahmdeo Yadav, Arjun
Yadav, Krishna Yadav and Uma Devi were examined
in both the sessions trial. Dr. Vijay Kumar, CAS,
Jamui who conducted post mortem was examined as
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P.W.12 in both the sessions Trial. S.I. Jai Prakash
Singh, the Investigating Officer has been examined as
P.W.15 in Sessions Trial No. 328 of 2006 and P.W.13 in
Sessions Trial No. 16 of 2009.
7. The Investigating Officer Jai Prakash
Singh has deposed that on 19.3.2006, during his night
mobile duty, he reached near primary school of
village Islampur and saw assemblance of some
persons there. Nepali Yadav was standing with his
injured daughter Kajal Kumari. He disclosed about
some incident. His statement was recorded by him
and read over to him. Injured daughter of informant,
Kajal Kumari was sent for her treatment to Sadar
Hospital, Jamui. Nepali Yadav, informed the
Investigation Officer regarding kidnapping of his two
sons, as such he proceeded in search of two
kidnapped sons of informant. In course of search, he
reached near the Primary School, situated near
Bisahri Asthan and there he found dead bodies of
Vikash Kumar and Mukesh Kumar, whose abdomen
were torn and necks slit. Both the boys were killed
inflicting similar injuries. The inquest report of both
the deceased were prepared. Dead bodies of two sons
of the informant were sent to Sadar Hospital, Jamui
for post mortem. The 1st place of occurrence, as
disclosed in the fard beyan of informant is his house
made of mud having tiled roof. In the same campus,
9
there were three rooms. In one of the room, facing
east, the informant Nepal Yadav is said to be residing
with his family and in other two rooms Devi Yadav
(P.W.7) and Raghu Yadav ( P.W.6) brothers of the
informant used to reside. In all three rooms, wodden
doors were found fitted. The children are said to be
sleeping in the room of the informant, from where
they were lifted by the accused persons and brought
to a distance of 200 yards near Dargah field, where
daughter of informant Kajal Kumari is said to be killed
by slitting her neck and tearing her abdomen. The
Investigating Officer has deposed that he found Kajal
Kumari alive, when he reached there and sent her for
treatment to Sadar Hospital, Jamui. He also found out
the dead bodies of Vikash Kumar and Mukesh Kumar,
two sons of the informant, who were also killed in
similar manner by inflicting similar injuries as inflicted
and found on the body of Kajal Kumari. A blood
stained, small knife was also recovered from the
place, where dead bodies of two boys were found
lying. The blood-stained knife was seized and a
seizure list (Ext.3) was prepared. Blood-stained soil
was also seized and seizure list ( Ext.3/1) was
prepared. The place from where dead bodies of two
boys were recovered was an open field, at a distance
of 100 yards from the village road. Adjacent to the
place of occurrence, in the southern side was the
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house of accused Krishnandan Yadav, who was found
absconding. The Investigating Officer has deposed
that on completion of investigation, he submitted
charge sheet showing Krishnandan Yadav, Preman
Yadav, Nepal Yadav, Uday Yadav, Kallu Yadav, Binod
Yadav and Surendra Yadav as absconding. Surendra
Yadav and Satendra Yadav were arrested and taken in
the custody. So far Surendra Yadav is concerned; he
was arrested in the night of the occurrence itself from
his house, where he was found sleeping.
8. The prosecution has examined Rajeshwar
alias Rameshwar Yadav (P.W.5), Ram Chand Yadav (
P.W.8), cousin of the informant, Brahmdeo Yadav
(P.W.9), the uncle of the informant as hear say
witnesses. They have specifically stated in their
deposition that they have not seen the accused
persons either taking away the children or killing
them. They also have not seen the accused persons
fleeing away from the place of occurrence. Whatever
they have deposed that is on the basis of the
disclosure made before them by the Informant Nepali
Yadav. A suggestion has been put by the defence to
all hear say witnesses that since all of them were
accused in the murder case of Bhagia Devi and
Sumitra Devi along with the informant, as such they
have deposed falsely. P.W.11 Dasrath Yadav is also a
hear say witness and he has stated in para 6 of his
11
deposition that he had not made any statement before
the Police during investigation and for the first time,
he has come to depose as witness in Sessions Trial
No. 16 of 2009. P.W.12 Arjun Yadav and P.W.13
Krishna Yadav have been declared hostile and were
cross examined by the prosecution, since they made
statement that for the first time, they have come to
depose in Court and earlier they had never made any
statement before the Police, after the occurrence.
These two witnesses have also stated that Nepali
Yadav, the informant had not narrated anything about
the incident before them. Counsel for the appellants
has submitted that four material witnesses examined
as an eye-witness to the occurrence are admittedly
closely related to the deceased and the informant.
P.W.4 the informant is the father of three deceased
children. P.Ws. 6 and 7 Raghu Yadav and Devi Yadav
are own brothers of the informant and uncle of the
deceased children. P.W.14 Uma Devi is the wife of
informant, mother of three deceased children and
sister in law of P.W. 6 and 7. So far P.W. 14 Uma Devi
is concerned, she is not the eye witness of the killing
of her children by the accused persons. She has
witnessed the occurrence only relating to forcible
entry of accused persons, with arms into her room
and taking away of her three children by the accused
persons towards Bishahri Asthan. In Para 1 of her
12
deposition, she has stated that when her husband
came back then she was informed that her daughter
and two sons were killed by the accused persons near
Bishari Asthan, inflicting injury by knife. She has not
even witnessed accused Kallu Yadav, Gohan Yadav,
Krishnanand Yadav and Binod Yadav surrounding
the house and keeping watch from outside the room,
while other accused persons had entered into the
rooms for taking away her children. As per her
deposition Nepali Yadav, Preman Yadav, Jairam
Yadav, Sanjay Yadav and Uday Yadav had entered
into her room and taken away her three children,
despite her serious resistance. In this way she has
not witnessed the actual incident of killing of her
children. P.W. 6 and P.W.7 have not witnessed the
initial entry of the accused persons fully armed, into
the room of the informant after knocking at the door
of informant as well as taking away of three children
of informant by the accused persons despite serious
resistance.
9. P.W.6 and P.W.7 woke up and came out
of their rooms, hearing the alarm raised by Nepali
yadav P.W.4. They saw that Nepali Yadav has been
overpowered by Surendra Yadav, Gohan Yadav, Kalu
Yadav, Krishnanand Yadav and Binod Yadav. P.W.6
and P.W.7 have not witnesses Preman Yadav, Nepal
Yadav Sanjay Yadav, Jairam Yadav and Uday Yadav
13
forcibly taking away Kajal Kumari, Vikash Kumar and
Mukesh Kumar from the room. They saw Kajal Kumari
in the lap of Preman Yadav, when they reached
Bishahari sthan escorted by other accused persons
from their house. They saw Surendra Yadav pulling
away Kajal Kumari from the lap of Preman Yadav and
at that very time Krishnanand Yadav tearing her
abdomen with knife and Nepal Yadav slitting her
neck. P.W.6 and P.W.7 as per deposition have
witnessed all accused persons, taking away Mukesh
Kumar and Vikash Kumar towards western direction
of the village. Names of accused persons have not
been specified by P.W.6 and P.W.7, who took away
three sons of the Informant. P.W.6 and P.W.7 have
stated that they did not follow the accused persons;
rather they brought injured Kajal Kumari towards
village road as she was still alive and at that very time
police came. They were interrogated by the Officer In-
charge and they narrated the incident before him. As
per evidence of P.W.6 and P.W.7, some villagers had
also assembled. They along with the police and
villagers proceeded in search of two sons of the
informant, where dead bodies were found near the
school wall. In this way P.W.6 and P.W.7 have not
seen those persons inflicted injuries to Vikash and
Mukesh, two sons of the informant and killed them.
14
10. So far P.W.4 Nepali Yadav is concerned,
he is the sole witness who has witnessed the
occurrence right from beginning to end, but he has
also not witnessed the actual killing of his two sons,
namely, Mukesh and Vikash Kumar by the accused
persons. He as per his deposition has witnessed
taking away of his sons towards western side of the
village by all accused persons.
11. P.W.10 Dr. Vijay Kumar had conducted
post mortems on the dead body of all three deceased
children on 20.3.2006. His deposition discloses that
similar injuries were found on the persons of all three
deceased children. He found incised wound on the
person of all three deceased children. He found
incised wounds 5″ x 1″ muscle and trachea deep in
interior part of neck, with blood clots, traches incised
and left carotid lacerated. Incised would 10″x5″ x
abdominal cavity deep intestinal loops protruding
through wound on anterior wall and lower part of right
chest. On dissection he found abdomen and chest in
lower part of right lower ribs (6th and 7th) fractured
with laceration through wound, blood clots present.
Injuries were caused by sharp cutting weapon, such
as knife. The injuries found on the person of all three
deceased were found to be the cause of death. He
found similar injuries on the dead body of Vikash
Kumar, Mukesh Kumar and Kajal Kumari, with
15
different specification. The injuries which were found
on the person of all three children weresuggestive of
this fact that all three children must have been
inflicted injury by the same person, with same
weapon and the manner also must have been same as
injuries were identical.
11. None of the witnesses has seen, who
inflicted injury to Mukesh and Vikash but they have
witnessed injuries being inflicted on Kajal Kumari. It
was Krishnanand Yadav who had inflicted injury on
her abodomen and Nepal Yadav who slit her neck.
The witnesses have also stated that so far Preman
Yadav and Surendra Yadav is concerned, they had
caught hold of Kajal Kumari. There is no evidence to
show that Preman and Surendra Yadav have given
any blow through knife to Kajal Kumari. So far other
two deceased are concerned, there is no evidence
that the appellants Surendra Yadav and Preman
Yadav have caught hold of them or in any manner
caused injury to the deceased.
12. In the background of these evidence, Mr.
Farooque Ahmad Khan, who appeared on behalf of
appellant Surendra Yadav alias Shailendra Prasad has
submitted that there is no evidence on record to
show that appellant Surendra Yadav alias Shailendra
Prasad had ever enhanced any threat to the informant
and his family that in case his wife will contest
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election of Mukhia the family will have to face dire
consequences. Evidence of P.Ws. 4,5,6,7,8,9 and 14
disclosed that it was Krishnanand Yadav who had
threatened the informant that his wife should not
contest the election of Mukhiya, since wife of
Krishnanand Yadav was also one of the intending
candidate for this post. The evidence of P.Ws. 4,6 and
7 is also specific that it was Krishnanand Yadav who
gave knife blow in the abdomen of Kajal Kumari and
thereafter Nepal Yadav had slit her neck due to which
she died subsequently.
13. The evidence of P.Ws. 4 and 14 is very
specific on this point that accused Preman Yadav,
Nepal Yadav, Jairam Yadav, Sanjay Yadav and Uday
Yadav entered into their room and forcibly took away
their three children for the purposes of killing, despite
their resistance. Binod Yadav and Sako alias
Sakindar Yadav were awaiting outside the room and
as soon as informant and his brothers Raghu Yadav
and Devi Yadav came out, they were surrounded and
overpowered by them. P.W. 5 has not witnessesd any
part of the occurrence but when he went at Bishari
Asthan, hearing the alarm, Nepal Yadav the informant
disclosed before him that the accused-appellants had
forcibly brought his children and killed them. P.Ws. 6
and 7 are the brothers of informant. They have stated
that when they came out of the room Surendra Yadav,
17
Binod Yadav, Gohan Yadav, Kallu Yadav and
Krishnand Yadav overpowered them. They were fully
armed. P.Ws. 4,5 and 6 were escorted by them to
Bishari Asthan, where they saw Preman Yadav, Nepal
Yadav, Sanjay Yadav and Uday Yadav with the
children of the informant. Kajal Yadav was in the lap
of Preman and Surendra Yadav forcibly pulling her
from the lap of Preman Yadav. P.W.8 is a hear-say
witness and he has disclosed that informant P.W.4
has narrated the story before him and he came to
know about presence of all the accused-appellants.
The name of the accused persons have been
disclosed by P.W.4 also before P.W.9. Only name of
Preman Yadav, Jairam Yadav, Sanjay Yadav, was
disclosed by the P.W.4 before I.O. P.W.13, the
Investigating Officer, in para 8 of his evidence has
stated that when he reached at the place of
occurrence, near Bishari Asthan, he met the informant
P.W.4 and his brothers. He has also stated that P.W.4
in his fardbeyan or in his written statement had not
disclosed that he has narrated about the occurrence
before any other person, though persons, assembled
there were themselves knowing about the occurrence.
14. The evidence of witnesses sufficiently
indicate the presence and participation of Surendra
Yadav, Preman Yadav, Binod Yadav, Jairam Yadav
and Sanjay Yadav so far forcibly entering into the
18
room of the informant and taking away three children
from the house of the Informant to Bishari Asthan,
where one by one all three children were killed.
Though there is no specific evidence regarding
assault made by any of these accused persons to the
deceased children but there is evidence of their
presence and participation in this heinous crime, as
such there is sufficient evidence for their conviction
under Section 302/34 of the Indian Penal Code.
15. Mr. Farooque Ahmad Khan, as well as
counsels representing other appellants submitted that
considering the evidence it is surprising that why the
Judge of the trial Court has awarded the severest
punishment of death sentence to the appellants.
Awarding death sentence to appellant Surendra
Prasad seems to be perverse, specially considering
the evidence of I.O. (P.W.15) who has deposed that
he arrested him in the night of occurrence itself from
his house, while he was sleeping inside the house.
This is unimaginable that a person, who would have
participated in such a heinous crime of killing of three
innocent children, could be found sleeping peacefully
in his house. The normal human conduct in this
circumstances would be that after committing such
an offence, he will try to move far away from the place
of occurrence so that he may not be apprehended.
The appellant Surendra Yadav was the sole accused,
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who could be arrested immediately by the
Investigating Officer.
16. It has also been submitted that the trial
Court has completely ignored the evidence of defence
witnesses as well as the statement of the accused-
appellants recorded under Section 313 of the Code of
Criminal Procedure, which disclosed that the motive
behind the occurrence was some other incident and
not the motive as alleged by the prosecution relating
to Gram Panchayat Election. It has also been
submitted that even if motive as alleged by the
prosecution is considered to be correct, there was no
reason for all these appellants to participate in
commission of the offence.
17. On perusal of the statement of accused-
appellants recorded under Section 313 of the Code of
Criminal Procedure, it transpires that accused-
appellants Preman Yadav, Sakinder Yadav, Jairam
Yadav are own brothers of Krishnanand Yadav, whose
wife was intending candidate for the post of Mukhia.
This is the motive alleged by the defence for
commission of offence by the accused persons, as
such these three appellants had sufficient motive for
participating in the occurrence. Surendra Yadav in his
statement recorded under Section 313 of the Code of
Criminal Procedure has stated that he was the person
who got instituted a rape case against Nepali Yadav.
20
The evidence of P.W.4 in Para 11 shows that in that
case, finally he was acquitted. In the rape case of
Janta Devi, Krishnanand Yadav was the informant and
Surendra Yadav was instrumental in implicating the
informant. Surendra Yadav seems to be supportive of
Krishnandan Yadav and other appellants. The
prosecution has been able to prove involvement of
these appellants having common intention to commit
the offence like murder of three children, as such
there is sufficient reason for their conviction under
Section 302/34 of the Indian Penal Code.
18. Counsel for the appellants while making
submission on the point of sentence have submitted
that the death sentence have been awarded in
complete non-observance of Section 235 (2) and
Section 354(3) of the Code of Criminal Procedure.
Section 235(2) of the Code of Criminal Procedure
provides that if the accused is convicted, the Judge
shall, unless he proceeds in accordance with the
provisions of Section 360 ,will hear the accused on
the question of sentence, and then pass sentence on
him according to law. The hearing contemplated in
Section 235(2) Cr.P.C. is not confined to submissions
only but opportunity should also be given to the
accused to produce materials bearing on sentence.
Section 354 (3) Cr.P.C. states that if the conviction is
for an offence punishable with death or, in the
21
alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall
state the reasons for the sentence awarded, and, in
the case of sentence of death, the special reasons for
such sentence.
19. Counsel for the appellants has submitted
that in cases the Court imposes death sentence, a
duty has been caste upon the Court to give sufficient
opportunity to the accused for giving a real and
effective chance of rebuttal. The accused must be
separately heard on the sentence to be imposed on
him, so that he can demonstrate the mitigating
circumstances. In a case where the Court imposes
death sentence, both the provisions under Sections
235(2) and 354(3) Cr.P.C. assume significance. In
such cases the accused, (i) has a right of pre-
sentence hearing, on which he can (ii), bring on
record material or evidence which may not be (iii),
strictly relevant to or connected with the particular
crime but (iv) may have a bearing on the choice of
sentence. This is the reason that the accused has to
be given an opportunity of regular hearing like trial
and that should not be a mere empty formality of pre-
sentence hearing. The accused must be offered an
adequate opportunity for bringing materials on
record, specially in case where Section 354(3) comes
into play. It is only after undertaking that exercise
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and assigning “special reasons,” for imposing death
penalty, it can be recorded by the Court.
20. In the present case the trial Court has not
discharged its statutory obligation, caste upon it,
even though both sections 235(2) read with Section
354(3) Cr.P.C. is applicable in this case. Before
imposing death sentence, the trial Court should have
given proper opportunity of hearing to the accused
which was completely avoided. The judgment of
conviction was passed on 17.4.2010 and on the same
date the death sentence was awarded against the
appellants Surendra Yadav and Preman Yadav,
without giving any opportunity of hearing before
awarding sentence. The Trial Court has not assigned
specific reason while imposing death sentence, which
is contrary to the law laid down by the Apex Court in
the case of Bachan Singh Vs. State of Punjab reported
in (1980) 2 SCC 684.
21. Counsel for the appellants has placed
reliance on the decision of the Apex Court in the case
of Ramesh Bhai Chandu Bhai Rathod Vs. State of
Gujarat reported in (2009) 5 SCC 740, wherein it has
been held that the hearing on sentence has to be a
regular hearing like trial and not mere empty
formality or an exercise in an “idle ritual.” It has also
been held, in this judgment that regardless of
whether the accused asks for such a hearing, the
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same must be offered to the accused and an adequate
opportunity for bringing materials on record must be
given to him especially in case where Section 354(3)
Cr. P.C. comes into play.
22. The trial Court admittedly has awarded the
death sentence in complete violation of mandatory
provisions under Sections 235(2) and 354(3) of the
Code of Criminal Procedure, while imposing death
sentence against appellants Surendra Yadav and
Preman Yadav. The trial Court has not discussed
those mitigating circumstance, due to which the
Court was of this opinion that the life sentence will
not meet the requirement of punishment in the facts
and circumstances of the case. There is at all no
hearing on the point of sentence. In the given
circumstances, death sentence awarded, accused-
appellants cannot be affirmed. The death sentence is
completely illegal, as such cannot be confirmed.
23. The death sentence awarded to appellants
Surendra Yadav and Preman Yadav is not sustainable
considering the evidence on record. There is no
evidence that they have killed three children.
Evidence is there that they are liable for the act of
killing in furtherance of a common intention but the
act itself has not been committed by them. The fact of
the case reveals that it was brutal to kill three
innocent children, despite this fact; it cannot be
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brought in the category of rarest of rare case. For the
acts of these two appellants, the sentence of
imprisonment for life will suffice the punishment.
24. The death Reference No. 6 of 2010 is thus
dismissed and the sentence of death awarded to the
appellants Surendra Yadav and Preman Yadav is
modified and commuted into life sentence.
25. The appeals preferred by appellants,
namely, Binod Yadav ( Cr. Appeal No. 558 of 2010),
Sakindar Yadav alias Sako Yadav, Jai Ram Yadav and
Sanjay Yadav (Cr. Appeal No. 581 of 2010) are
dismissed. The conviction of these appellants under
Section 302/34 of the Indian Penal Code and sentence
awarded by the trial Court is affirmed.
(Mridula Mishra,J.)
Dharnidhar Jha,J:-
(Dharnidhar Jha,J)
Patna High Court
Dated the 15. 12.2010
A.Kumar/NAFR