Birendra Yadav @ Udai Yadav vs The State Of Jharkhand
2021 Latest Caselaw 4554 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                (Criminal Appellate Jurisdiction)
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Cr. Appeal (D.B.) No. 1016 of 2018

Birendra Yadav @ Udai Yadav ... ... Appellant Versus The State of Jharkhand ...... Respondent

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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Mr. A.K.Kashyap, Sr. Advocate For the State : Mr. Bhola Nath Ojha, A.P.P.

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nd Order No. 06/Dated: 2 December, 2021 IA No. 5009 of 2020 This matter has been assigned to DB-III by the Hon'ble the Chief Justice by an order dated 24th August 2021 passed on administrative side.

2. Birendra Yadav @ Udai Yadav was convicted and sentenced to RI for life and a fine of Rs. 5000/- under section 364(A)/34 of Indian Penal Code, with default stipulation to undergo further RI for one year. The learned District & Additional Sessions Judge-I, Latehar has further ordered that all three convicts shall pay Rs.35,000/- each by way of compensation to the victim.

3. This criminal appeal was admitted for hearing on 05 th October 2018.

4. IA No. 10795 of 2018 was filed by the appellant for suspension of sentence during pendency of the criminal appeal. The said application was rejected by order dated 03rd January 2019.

5. IA No. 5009 of 2020 was placed on Board for hearing before us on 06th October 2021 and the learned APP was directed to produce a report on criminal antecedent of the appellant, if any.

6. It is stated that the appellant was previously involved in ST Case No. 256 of 2015 which arose out of Panki PS Case No. 04 of 2011. The said case was also registered under section 364(A) of the Indian Penal Code. However, the appellant has been acquitted in the said case by a judgment dated 26th March 2018.

7. The present case was lodged on 23rd August 2014 on the basis of

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written report given by Sudhu Oraon who was the Secretary of the Integrated Primary Teacher Association, Balumath Unit.

8. Balumath PS Case No. 110 of 2014 was lodged under section 364(A) of the Indian Penal Code against unknown. In course of the investigation, complicity of four persons transpired and, accordingly, charge sheet was laid against them - Birendra Yadav was one of them. We further find that one of the accused, namely, Bhola Yadav @ Narendra Yadav who was charged together along with other three accused was found a juvenile and, accordingly, his case records were separated and sent to the Juvenile Justice Board, Latehar by an order dated 22nd May 2017.

9. In course of the trial, the prosecution examined eight witnesses to establish the charge of kidnapping for ransom against the accused - Manoj Kumar Thakur, the victim, examined himself as PW5.

10. Mr. A.K. Kashyap, the learned senior counsel for the appellant submits that the victim boy who was recovered three days after his abduction tendered evidence in the Court on complicity of the accused persons but in his examination-in-chief he has not stated that the appellant was one among the abductors. It is further submitted that the appellant was arrested on 29 th September 2014 but put on TIP on 03rd December 2014 and this inordinate delay in conducting TIP has not been explained by the prosecution.

11. Mr. Bhola Nath Ojha, the learned APP refers to the judgment in "Sidhartha Vashisth @ Manu Sharma v. State (Nct of Delhi)" (2010) 6 SCC 1 to submit that TIP is part of the investigation and failure of the Investigating Officer to conduct TIP immediately after the arrest of the accused may not assume materiality if there is sufficient and reliable evidence tendered by the prosecution witnesses in the Court on identification of the accused.

12. Be that as it may, we find that Anoj Kumar Yadav @ Rakesh Yadav, the co-accused, has been released on bail by a co-ordinate Bench of this Court by order dated 04th September 2020.

13. The order dated 04th September 2020 passed in IA No. 3380 of 2020 reads as under:

"05/Dated: 04th September, 2020 I.A. No.3349 of 2020

1. Learned senior counsel for the petitioner does not want to press I.A. No.3349 of 2020, accordingly the same is, hereby, dismissed as not pressed.

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       I.A. No.3380 of 2020

1. This interlocutory application has been filed under Section 389(1) of the Code of Criminal Procedure, on behalf of the appellant, for suspending the sentence and admitting him to bail, during the pendency of the present appeal.

2. Learned senior counsel for the appellant has submitted that earlier the prayer for bail of the petitioner/ appellant was rejected on the ground that the victim had identified the appellant as one of the abductors.

It is argued that P.W.-6, i.e., the Investigating Officer, in his cross-examination, has admitted that the appellant was arrested on 20.09.2014 and the Test Identification Parade was held on 03.12.2014. There is no plausible explanation for the delay in conducting the T.I.P. Moreover, the Investigating Officer has admitted that the brother of the informant has not named the abductor rather the name was disclosed by the members of the Teachers Association.

It is submitted that the petitioner is in jail custody from 20.09.2014 till date.

3. Learned A.P.P., has opposed and submitted that the prayer for bail of the petitioner was earlier rejected by a speaking order dated 19.11.2020 and no fresh ground is made out for renewal of the prayer for bail.

4. Heard. Perused the statement of P.W.-6, i.e., the Investigating Officer. Considering that the T.I.P was conducted after three months of the arrest and the petitioner has remained in custody for nearly six years, we are inclined to suspend the sentence and enlarge the appellant on bail, during the pendency of the appeal, on his furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of learned District & Additional Sessions Judge - I, Latehar, in connection with S.T. No.10 of 2015 (arising out of Balumath P.S. Case No.110 of 2014), subject to the condition that the appellant shall deposit Rs.10,000/- (Ten thousand), part of the fine amount, in the court below.

5. The appellant shall remain present before the Court when the appeal is taken up for hearing, failing which his bail shall be cancelled.

6. In the result, I.A. No.3380 of 2020 stands allowed."

14. The appellant has now remained in custody for more than seven years and we are informed that the criminal appeals in which the convicts have remained in custody for about ten years are on Board for hearing.

15. In view of the aforesaid facts and circumstances, the appellant, namely, Birendra Yadav @ Udai Yadav is directed to be released on bail during pendency of the appeal, on furnishing bail bond of Rs. 10,000/- (rupees ten thousand) with two sureties of the like amount each to the satisfaction of the learned District & Additional Sessions Judge-I, Latehar, in connection with ST No. 10 of 2015, with the conditions that: (i) one of the bailors shall be a close relation of the appellant; (ii) he shall make himself available in the Court whenever his presence is required; (iii) he shall provide his mobile number through which the Investigating Officer can establish

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contact with him whenever his presence is required in the Court, and; (iv) he shall not change his place of residence, the details of which he shall give in the undertaking to be filed by him in the afobresaid terms.

16. IA No. 5009 of 2020 is allowed.

                                                 (Shree Chandrashekhar, J.)


Nibha/Madhav                                       (Ratnaker Bhengra, J.)