# ANOKHILAL v. STATE OF MADHYA PRADESH

- **Citation:** [2019] 18 S.C.R. 1196
- **Court:** Supreme Court of India
- **Decided:** 2019-12-18
- **Case number:** Criminal Appeal Nos.62-63 of 2014
- **Bench:** Uday Umesh Lalit, Indu Malhotra, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anokhilal-v-state-of-madhya-pradesh-33692
- **Pages:** 40

## Headnote

Legal Services: Grant of free legal aid - Real and meaningful
assistance - Entitlement to - On facts, in the case of rape and murder
of a minor girl, appointment of counsel through legal services to
represent the accused-appellant - The day the counsel appointed,
on the same day charges framed against the appellant for offence
punishable u/ss. 363, 366, 377, 376(2)(f) and 302 IPC r/w s. 6 of
POCSO Act - Thereafter, conviction of appellant and imposition of
death sentence and other sentences by courts below - On appeal,
held: The day Amicus Curiae was named, on the same date, the counsel
was called upon to defend the accused at the stage of framing of
charges - Amicus Curiae did not have sufficient time to go through
even the basic documents, nor the advantage of any discussion or
interaction with the accused, and time to reflect over the matter -
Even before the Amicus Curiae could come to grips of the matter,
the charges were framed and trial itself was concluded within a
fortnight - Approach adopted by the trial court, may have expedited
the conduct of trial, but did not further the cause of justice - It left
glaring gaps - Thus, in the process, the assistance that the appellant
was entitled to in the form of legal aid, could not be real and
meaningful - Counsel ought to have been afforded sufficient
opportunity to study the matter and the infraction in that behalf
resulted in miscarriage of justice - Judgment of conviction and
orders of sentence passed by courts below against the appellant set
aside directing de novo consideration wherein the counsel would
take up the remaining issue - Penal Code, 1860 - ss. 363, 366,
377, 376(2)(f) and 302 - Protection of Children from Sexual
Offences Act, 2012 - s. 6.
Advocates/Lawyer: Appointment as Amicus Curiae -
Guidelines for, in cases where there is a possibility of life sentence
[2019] 18 S.C.R. 1196
1196
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or death sentence - Held: Advocates having put in minimum of 10
years practice at the Bar alone be considered to be appointed as
Amicus Curiae or through legal services to represent an accused -
In all matters dealt with by the High Court concerning confirmation
of death sentence, Senior Advocates of the Court must first be
considered to be appointed as Amicus Curiae - Counsel appointed
as Amicus Curiae, to be provided some reasonable time to prepare
the matter - Minimum seven days' time may normally be considered
to be appropriate and adequate.
Criminal Trial - Expeditious disposal - Necessity of - Held:
Expeditious disposal is required in criminal matters and that would
naturally be part of guarantee of fair trial - However, the attempt
to expedite the process should not be at the expense of the basic
elements of fairness and the opportunity to the accused - The cause
of justice must never be allowed to suffer or be sacrificed which is
paramount - Thus, the process may be expedited, but fast tracking
of process must never ever result in burying the cause of justice -
Administration of criminal justice.
Constitution of India: Art. 39A - Equal justice and free legal
aid - Held: Article 39-A provides for free legal aid to ensure that
opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities - Right to Free Legal
Services is an essential ingredient of 'reasonable, fair and just'
procedure for a person accused of an offence - Trial must be
conducted in such a manner as will punish the innocent and punish
the guilty - Counsel must be given sufficient and adequate time to
prepare for the defence - Legal Services Authorities Act, 1987.
Disposing of the appeals with direction to list the matter
on 18.02.2020 for consideration of other related issues, the Court
HELD: 1.1 Article 39-A inserted by the 42nd amendment to
the Constitution, effected in the year 1977, provides for free legal
aid to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities. The
s

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SUPREME COURT REPORTS
[2019] 18 S.C.R.
ANOKHILAL
v.
STATE OF MADHYA PRADESH
(Criminal Appeal Nos.62-63 of 2014)
DECEMBER 18, 2019
[UDAY UMESH LALIT, INDU MALHOTRA AND
KRISHNA MURARI, JJ.]
Legal Services: Grant of free legal aid - Real and meaningful
assistance - Entitlement to - On facts, in the case of rape and murder
of a minor girl, appointment of counsel through legal services to
represent the accused-appellant - The day the counsel appointed,
on the same day charges framed against the appellant for offence
punishable u/ss. 363, 366, 377, 376(2)(f) and 302 IPC r/w s. 6 of
POCSO Act - Thereafter, conviction of appellant and imposition of
death sentence and other sentences by courts below - On appeal,
held: The day Amicus Curiae was named, on the same date, the counsel
was called upon to defend the accused at the stage of framing of
charges - Amicus Curiae did not have sufficient time to go through
even the basic documents, nor the advantage of any discussion or
interaction with the accused, and time to reflect over the matter -
Even before the Amicus Curiae could come to grips of the matter,
the charges were framed and trial itself was concluded within a
fortnight - Approach adopted by the trial court, may have expedited
the conduct of trial, but did not further the cause of justice - It left
glaring gaps - Thus, in the process, the assistance that the appellant
was entitled to in the form of legal aid, could not be real and
meaningful - Counsel ought to have been afforded sufficient
opportunity to study the matter and the infraction in that behalf
resulted in miscarriage of justice - Judgment of conviction and
orders of sentence passed by courts below against the appellant set
aside directing de novo consideration wherein the counsel would
take up the remaining issue - Penal Code, 1860 - ss. 363, 366,
377, 376(2)(f) and 302 - Protection of Children from Sexual
Offences Act, 2012 - s. 6.
Advocates/Lawyer: Appointment as Amicus Curiae -
Guidelines for, in cases where there is a possibility of life sentence
[2019] 18 S.C.R. 1196
1196
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or death sentence - Held: Advocates having put in minimum of 10
years practice at the Bar alone be considered to be appointed as
Amicus Curiae or through legal services to represent an accused -
In all matters dealt with by the High Court concerning confirmation
of death sentence, Senior Advocates of the Court must first be
considered to be appointed as Amicus Curiae - Counsel appointed
as Amicus Curiae, to be provided some reasonable time to prepare
the matter - Minimum seven days' time may normally be considered
to be appropriate and adequate.
Criminal Trial - Expeditious disposal - Necessity of - Held:
Expeditious disposal is required in criminal matters and that would
naturally be part of guarantee of fair trial - However, the attempt
to expedite the process should not be at the expense of the basic
elements of fairness and the opportunity to the accused - The cause
of justice must never be allowed to suffer or be sacrificed which is
paramount - Thus, the process may be expedited, but fast tracking
of process must never ever result in burying the cause of justice -
Administration of criminal justice.
Constitution of India: Art. 39A - Equal justice and free legal
aid - Held: Article 39-A provides for free legal aid to ensure that
opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities - Right to Free Legal
Services is an essential ingredient of 'reasonable, fair and just'
procedure for a person accused of an offence - Trial must be
conducted in such a manner as will punish the innocent and punish
the guilty - Counsel must be given sufficient and adequate time to
prepare for the defence - Legal Services Authorities Act, 1987.
Disposing of the appeals with direction to list the matter
on 18.02.2020 for consideration of other related issues, the Court
HELD: 1.1 Article 39-A inserted by the 42nd amendment to
the Constitution, effected in the year 1977, provides for free legal
aid to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities. The
statutory regime put in place including the enactment of the Legal
Services Authorities Act, 1987 is designed to achieve the mandate
of Article 39-A. It has been well accepted that Right to Free Legal
Services is an essential ingredient of 'reasonable, fair and just'
ANOKHILAL v. STATE OF MADHYA PRADESH
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SUPREME COURT REPORTS
[2019] 18 S.C.R.
procedure for a person accused of an offence and it must be held
implicit in the right guaranteed by Article 21. The decision of
this Court in Best Bakery case emphasizes that the object of
criminal trial is to search for the truth and the trial is not a bout
over technicalities and must be conducted in such manner as will
protect the innocent and punish the guilty. Even before insertion
of Article 39-A in the Constitution, the decision of this Court in
Bashira'case stated with clarity that mere formal compliance of
the rule under which sufficient time had to be given to the counsel
to prepare for the defense would not carry out the object
underlying the rule. It was further stated that the opportunity
must be real where the counsel is given sufficient and adequate
time to prepare. In Bashira as well as in Ambadas making
substantial progress in the matter on the very day after a counsel
was engaged as Amicus Curiae, was not accepted by this Court
as compliance of 'sufficient opportunity' to the counsel. [Para
13][1231-B-H; 1232-A]
1.2 In the instant case, the Amicus Curiae, was appointed
on 19.02.2013, and on the same date, the counsel was called upon
to defend the accused at the stage of framing of charges. One can
say with certainty that the Amicus Curiae did not have sufficient
time to go through even the basic documents, nor the advantage
of any discussion or interaction with the accused, and time to
reflect over the matter. Thus, even before the Amicus Curiae
could come to grips of the matter, the charges were framed. [Para
14][1232-A-B]
1.3 The trial court on its own, ought to have adjourned the
matter for some time so that the Amicus Curiae could have had
the advantage of sufficient time to prepare the matter. The
approach adopted by the trial court, may have expedited the
conduct of trial, but did not further the cause of justice. Not only
were the charges framed the same day, but the trial itself was
concluded within a fortnight thereafter. In the process, the
assistance that the appellant was entitled to in the form of legal
aid, could not be real and meaningful. [Para 15][1232-D-E]
1.4 There are other issues which also arise in the matter
namely that the examination of 13 witnesses within seven days,
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the examination of the accused under the provisions of the Section
313 of the Code even before the complete evidence was led by
the prosecution, and not waiting for the FSL and DNA reports in
the present case. DNA report definitely formed the foundation of
discussion by the High Court. However, the record shows that
the DNA report was received almost at the fag end of the matter,
and after such receipt, though technically an opportunity was given
to the accused, the issue on the point was concluded the very
same day. The concluding paragraphs of the judgment of the trial
court show that the entire trial was completed in less than one
month with the assistance of the prosecution as well as the
defense, but, such expeditious disposal definitely left glaring gaps.
[Para 16][1232-F-H; 1233-A]
1.5 Expeditious disposal is undoubtedly required in criminal
matters and that would naturally be part of guarantee of fair trial.
However, the attempts to expedite the process should not be at
the expense of the basic elements of fairness and the opportunity
to the accused, on which postulates, the entire criminal
administration of justice is founded. In the pursuit for expeditious
disposal, the cause of justice must never be allowed to suffer or
be sacrificed. What is paramount is the cause of justice and
keeping the basic ingredients which secure that as a core idea
and ideal, the process may be expedited, but fast tracking of
process must never ever result in burying the cause of justice.
[Para 18][1233-C-D]
1.6 In the circumstances, going by the principles laid down
in Bashira, the submission made by the Amicus Curiae is accepted
and held that the counsel appointed through Legal Services to
represent the appellant in the instant case ought to have been
afforded sufficient opportunity to study the matter and the
infraction in that behalf resulted in miscarriage of justice. In light
of the conclusion, there is no necessity to consider other
submissions advanced by the Amicus Curiae. It is said by way of
caution that in matters where death sentence could be one of the
alternative punishments, the courts must be completely vigilant
and see that full opportunity at every stage is afforded to the
accused. [Para 19][1233-E-G]
ANOKHILAL v. STATE OF MADHYA PRADESH
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1.7 There is no hesitation in setting aside the judgments of
conviction and orders of sentence passed by the trial court and
the High Court against the appellant and directing de novo
consideration. It shall be open to the counsel representing the
appellant in the trial court to make any submissions touching
upon the issues whether the charges framed by the trial court
are required to be amended or not; whether any of the prosecution
witnesses need to be recalled for further cross-examination; and
whether any expert evidence is required to be led in response to
the FSL report and DNA report. The matter shall, thereafter, be
considered on the basis of available material on record in
accordance with law. [Para 20][1233-H; 1234-A-B]
1.8 Certain norms are laid down that in all cases where
there is a possibility of life sentence or death sentence, Advocates
who have put in minimum of 10 years practice at the Bar alone be
considered to be appointed as Amicus Curiae or through legal
services to represent an accused; that in all matters dealt with
by the High Court concerning confirmation of death sentence,
Senior Advocates of the Court must first be considered to be
appointed as Amicus Curiae ; that whenever any counsel is
appointed as Amicus Curiae, some reasonable time may be
provided to enable the counsel to prepare the matter. There
cannot be any hard and fast rule in that behalf. However, a
minimum of seven days' time may normally be considered to be
appropriate and adequate; that any counsel, who is appointed as
Amicus Curiae on behalf of the accused must normally be granted
to have meetings and discussion with the concerned accused.
Such interactions may prove to be helpful as was noticed in Imtiyaz
Ramzan Khan. [Para 22][1234-D-G]
Bashira v. State of U.P., [1969] 1 SCR 32 : AIR 1968
SC 1313 - relied on.
Mohd. Hussain Alias Julfikar Ali v. State (Government
of NCT of Delhi), (2012) 9 SCC 408 : [2012] 10 SCR
480; Re: Alla Nageswara Rao, Petitioner AIR 1957 AP
505; Mathai Thommen v. State AIR 1959 Kerala 241;
Hussainara Khatoon and Others (IV) v. Home Secretary,
State of Bihar, Patna (1980) 1 SCC 98 : [2012] 6 SCR
1182; Rajoo Alias Ramakant v. State of Madhya
Pradesh (2012) 8 SCC 553; Khatri and Others (II) v.
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State of Bihar (1981) 1 SCC 627 : [1981] 2 SCR 408;
Suk Das v. Union Territory of Arunachal Pradesh,
(1986) 2 SCC 401 : [1986] 1 SCR 590; Machander v.
State of Hyderabad AIR 1955 SC 792 : [1955] 2 SCR
524; Gopi Chand v. Delhi Admn AIR 1959 SC 609 :
1959 Crl. L. J. 782; Tyron Nazareth v. State of Goa
(1994) 3 Suppl. SCC 321; S. Guin v. Grindlays Bank
Ltd. (1986) 1 SCC 654 : [1985] 3 Suppl. SCR 818;
Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC
225 : [1991] 3 Suppl. SCR 325 ; Hussainara Khatoon
(1) v. State of Bihar (1980) 1 SCC 81 : [1979] 3 SCR
169; Hussainara Khatoon (3) v. State of Bihar (1980)
1 SCC 93; Raghubir Singh v. State of Bihar (1986) 4
SCC 481; Kartar Singh v. State of Punjab (1994) 3
SCC 569; Zahira Habibulla H. Sheikh v. State of
Gujarat (2004) 4 SCC 158; Ankush Maruti Shinde and
Others v. State of Maharashtra, (2009) 6 SCC 667;
Ambadas Laxman Shinde and Others v. State of
Maharashtra (2018) 14 SCALE 730 : (2018) 18 SCC
788; Ankush Maruti Shinde and Others v. State of
Maharashtra (2019) SCC Online SC 317; Imtiyaz
Ramzan Khan v. State of Maharashtra (2018) 9 SCC
160; Imtiyaz Ramzan Khan v. State of Maharashtra
(2018) 9 SCC 163; V. K. Sasikala v. State Represented
by Superintendent of Police (2012) 9 SCC 771 -
referred to.
Case Law Reference
(2012) 9 SCC 408
referred to
Para 6
AIR 1957 AP 505
referred to
Para 7
AIR 1959 Kerala 241
referred to
Para 7
(1980) 1 SCC 98
referred to
Para 8 and 10
(2012) 8 SCC 553
referred to
Para 9
(1981) 1 SCC 627
referred to
Para 9
(1986) 2 SCC 401
referred to
Para 9
[1955] 2 SCR 524
referred to
Para 10
AIR 1959 SC 609
referred to
Para 10
ANOKHILAL v. STATE OF MADHYA PRADESH
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(1994) 3 Suppl. SCC 321
referred to
Para 10
(1986) 1 SCC 654
referred to
Para 10
(1992) 1 SCC 225
referred to
Para 10
(1980) 1 SCC 81
referred to
Para 10
(1980) 1 SCC 93
referred to
Para 10
(1986) 4 SCC 481
referred to
Para 10
(1994) 3 SCC 569
referred to
Para 10
(2004) 4 SCC 158
referred to
Para 10
(2009) 6 SCC 667
referred to
Para 11
(2018) 14 SCALE 730
referred to
Para 11
(2018) 9 SCC 160
referred to
Para 12
(2018) 9 SCC 163
referred to
Para 12
[1969] 1 SCR 32
relied on
Paras 13,19
(2012) 9 SCC 771
referred to
Para 17
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 62-63 of 2014.
From the Judgment and Order dated 27.06.2013 of the High
Court of Madhya Pradesh at Jabalpur in Criminal Reference No. 4 of
2013 and Criminal Appeal No.748 of 2013.
Varun Chopra, Dy. AG, Sidharth Luthra, Ms. Sonia Mathur,
Sr. Advs., Anoopam N. Prasad, Ms. Mehaak Jaggi, Ms. K. V. Bharathi
Upadhyaya, Gurtejpal Singh, Harsh Parashar, Sushil Kumar Dubey,
Ms. Divya A. Nair, Puneet Pathak, Anuj Aggarwal, Anmol Chandan,
Ms. Priyanka Das, Sumit Upadhyay, Arvind Kumar Sharma, Advs. for
the appearing parties.
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The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. These appeals by special leave challenge the final judgment
and order dated 27.06.2013 passed by the High Court1 in Criminal
Reference No.4 of 2013 and Criminal Appeal No.748 of 2013.
2. The relevant facts for the purposes of these appeals, in brief,
are as under:
(A) On 30.01.2013 a missing report was lodged by one Ramlal
that his daughter (hereinafter referred to as 'the victim') aged about
nine years was missing since 6 pm and that the appellant, his neighbour
had sent the victim to get a bidi from a kirana shop but the victim never
returned back. Pursuant to this reporting, FIR No.38 of 2013 was
registered on 30.01.2013 with Police Station Chaigaon Makhan, Khandwa
for offences under Sections 363, 366 of the Indian Penal Code.1860
('IPC', for short) against the appellant.
(B) The body of the victim was found in an open field on
01.02.2013.
(C) The appellant was arrested on 04.02.2013, and after completion
of investigation charge-sheet was filed on 13.02.2013 in the concerned
court and the case was committed to Sessions Court on 18.2.2013. The
case was posted for 19.02.2013 to consider whether charges be framed
or not.
(D) It appears that since no Advocate had entered appearance
on behalf of the appellant, on 18.02.2013 a learned Advocate was
appointed by the Legal Aid Services Authority to represent the appellant
on 19.02.2013. That learned Advocate, however, did not appear on
19.02.2013 when the case was taken up, and as such another learned
Advocate came to be appointed through Legal Aid Services to represent
the appellant. Such appointment was done on 19.02.2013 and on the
same day the charges were framed against the appellant for the offences
punishable under Sections 302, 363, 366, 376(2)(f) and 377 IPC and
under Sections 4, 5 and 6 of Protection of Children from Sexual Offences
Act, 2012.
(E) In the next seven days i.e. by 26.2.2013, all thirteen prosecution
witnesses were examined.
ANOKHILAL v. STATE OF MADHYA PRADESH
1 The High Court of Madhya Pradesh at Jabalpur
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(F) Thereafter, the case was dealt with on 27.2.2013, 28.2.2013,
1.3.2013, 2.3.2013 and 4.3.2013 and the orders passed by the Trial Court
were :-
"(i) 27.02.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan advocate present on his behalf.
The prosecution filed application together with letter of District
Prosecution Officer and with copy of warrant etc documents.
Copies are supplied. The defense has no objection in taking above
documents on record, hence considering the reasons of as
explained for delay the application is liable to be accepted and
above documents are taken on record.
The prosecution stated that it does not want to produce any other
oral evidence it has been requested that DNA report and FSL
report will be placed on record as and when they are received,
which is immediately to be received, not any other oral evidence
are to be adduced and besides placing on record above report,
rest of evidence was declared to be ended.
It would be just and proper to examine accused under Section
313 Cr.P.C. for evidence available. Hence, accused examined
under Section 313 Cr.P.C. On entering in defense, the accused
stated that he does not want to adduce any evidence in defense.
Not any written statement under Section 232 (2) Cr.P.C. has been
filed.
Put up on 28.02.2013 for placing on record DNA report etc and
final arguments.
Sd/- (illegible)
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act,
Khandwa
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(ii) 28.02.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan advocate present on his behalf.
An application was filed on behalf of prosecution with FSL reports.
Copies supplied. Heard arguments.
Since there is no effective objection regarding allowing above
application and taking on record above FSL report and even
otherwise these may be helpful in providing justice, hence reports
are taken on record.
Above reports may be acceptable under Section 293 Cr.P.C., on
this basis it was requested to mark exhibit on above reports.
Defense has not raised any objection in this regard, hence with
consent of both the parties above reports presented by Regional
Forensic Science Laboratory Jhumarghat Rau Indore (M.P.) are
marked as ext. C-1, C-2 and C-3.
The prosecution has not yet received DNA report, the same will
be placed on record as and when it is received, saying such like
earlier it was stated that any other evidence is not to be produced,
hence hearing final arguments in case started, which remained
incomplete.
Put up on 01.03.2013 for placing on record DNA report and rest
final arguments.
Sd/-
Sessions Judge
Khandwa
(iii) 01.03.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan advocate present on his behalf.
The prosecution has not received DNA report, same will be placed
on record on receipt.
Hearing of rest of final arguments started which remained
incomplete.
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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Put up on 02.03.2013 for placing on record DNA report and rest
of final arguments.
Sd/-
Sessions Judge
Khandwa
(iv) 02.03.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan advocate present on his behalf.
The accused is being tried under Section 9 of Protection of
Children from Sexual Offences Act, 2012 and according to
Provisions of Section 5 (f) of above Act, the situation of previous
conviction for the sexual offence under Section 377 IPC is also
clear and above fact has found mention in charge No.8 framed in
earlier with intention that despite being previously convicted for
sexual offence under Section 377 IPC but in above charge date
time and place etc is not mentioned regarding conviction
according to provisions of Section 211 (7) Cr.P.C. Hence, as is
provided under Section 211 (7) Cr.P.C. the Court before passing
order of conviction may add statement of fact, date and place of
conviction, hence in this regard both the parties were heard. In
earlier the copy of judgment of previous conviction was not filed
due to which date, place etc were not mentioned in charge and
during examination under Section 313 Cr.P.C. in question No.14
in this regard by giving reference of copy of judgment together
with date, time and place etc conviction was passed and appeal
was filed or not in this regard clear questions were asked, hence
it also does not reflect that any prejudice has been caused to
accused nevertheless to avoid technical fault, according to
provisions of Section 211 (7) Cr.P.C. charge was modified and
amended charge was read over and explained to accused and his
plea was recorded.
Giving opportunity of additional evidence/cross examination to
both parties regarding amended charge would be just and proper,
in this regard both the parties were intimated.
Prosecution today by placing on record certain additional
documents articles etc. led additional evidence and application
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under Section 311 Cr.P.C. has been filed. Besides this, he stated
not to adduce any other additional evidence in regard to amendment
in charge. On the other hand defense also in this regard stated
not to conduct cross examine any witness already examined and
also stated not to furnish any additional evidence or evidence in
defense.
The prosecution presented articles relating to case in sealed
condition and an application with documents was filed under Section
311 Cr.P.C. Copy supplied. Arguments heard.
It is proposed to file received DNA report and correspondent
of FSL/DNA and in above regard also request has been made to
re-examine Investigating Officer K.K. Mishra (PW-13) and Head
Constable Harikaran PW-12 and accordingly, permission has been
sought.
It has been stated that concerned document and report since were
received in delay and it was filed as earliest and by virtue of this
correspondence relating to above are being filed now. It is
mentioned that DNA report was received on 01.03.2013 itself
hence considering the reason so disclosed during arguments
defense has not raised any effective objection hence, application
stands allowed and concerned documents are taken on record
and witness K.K. Mishra PW-13 and Hari Karan PW-12 are
permitted to be re-examined.
It has been stated by the public prosecutor that above witnesses
are present today, hence, above both the witnesses were
additionally examined with consent of defense and they were
discharged after re-examination. Prosecution stated not to adduce
any other evidence as such closed its evidence.
The packet of article so filed is in sealed condition, which was
opened in presence of both the parties. After evidence let same
be deposited in malkhana by duly sealing with memo of property.
In regard to additional evidence so adduced accused was reexamined under Section 313 Cr.P.C. and again on entering in
defense, the accused stated not to adduce any evidence in defense
nor any written statement was filed under Section 232(2) Cr.P.C.
and as such defense closed its evidence. Put up again for final
arguments.
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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Sd/-
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act, Khandwa
Again
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan, Advocate present on his behalf.
Heard final arguments. Put up on 04.03.2013 for judgment.
Sd/-
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act, khandwa
(v) 4.3.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan, advocate present on his behalf.
The judgment pronounced and signed separately in open court,
according to which accused was convicted under Section 363,
366, 377, 376(2)(f) and Section 302 IPC read with Section 6 of
Protection of Children from Sexual Offences Act, 2012.
Arguments were heard on the question of sentence. It was
informed to both the parties that if they wish, they may adduce
evidence regarding order of sentence.
It was stated by the prosecution that due to framing charge under
Section 211(7) Cr.P.C. regarding previous conviction of accused,
it has already adduced evidence at evidence stage regarding
previous conviction of accused and his previous criminal conduct,
hence now he does not want to adduce evidence regarding
conviction.
On the other hand, learned counsel for the defense Shri D.S.
Chauhan he has stated that during whole trial not any member of
family of accused has appeared and in regard to his conduct in
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jail the prosecution itself has already adduced certificate etc. hence
he stated not to adduce any evidence regarding order of sentence,
nevertheless both the parties were informed that if they wish to
adduce any evidence in this regard, then they may do so. By
giving above information to both the parties, detailed arguments
were heard regarding order of sentence.
Put up again after some time for order of sentence.
Sd/-
Sessions Judge and special Judge
Under Protection of Children from Sexual Offences
Act, Khandwa
Again
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan, Advocate present on his behalf.
Both the parties again stated not to adduce any evidence regarding
order of sentence, hence order of sentence was pronounced
separately in open court according to which accused is convicted
and sentenced as follows regarding charges:
No. Offence Sentence of Fine
In default of
U/s rigorous
payment of
 imprisonment
fine, additional
sentence
of rigorous
 imprisonment
1. 302 IPC Death - -
 Sentence
2. 363 IPC Seven years 1000/- One month
3. 366 IPC Seven years 1000/- One month
4. 377 IPC Seven years 1000/- One month
5. 376(2) IPC Life 1000/- One month
 imprisonment
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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[2019] 18 S.C.R.
Due to being similar act, no separate sentence is being awarded
for the offence under Section 6 of Protection of Children from
Sexual Offences Act, 2012.
By preparing warrant of conviction in this regard let accused be
sent to jail.
The accused has been sentenced to death also and in above regard
according to Section 366 Cr.P.C. it has also been directed that
death penalty be not executed so long as it is not confirmed by
the Hon'ble High Court, hence in that regard according to provision
of Section 366(2) Cr.P.C. warrant of handing over accused
sentenced to death to taken in custody of jail, is attached
separately with warrant. Copy of judgment is given to accused
and according to provisions of section 363 (4) Cr.P.C. accused
is informed that he has right to appeal and period of appeal.
Let entire record of this case be sent for placing before the Hon'ble
High Court forthwith for confirmation of death penalty as per
provisions of Section 366 Cr.P.C.
Sd/-
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act, Khandwa
(G) In its judgment and order dated 4.3.2013, the Trial Court
accepted the case of the prosecution and stated:-
"65. From above analysis it is clear that present case having
similar facts like judicial citation of Rajendra Prahladrao Vasnic is
in the category of 'rarest of rare' case and excess to that in the
present case accused is previous convict in sexual offence of
similar nature. Hence, in view of above analysis imposing punishing
of only imprisonment for life cannot be adequate and death
sentence is necessary.
66. Accused Anokhilal son of Sitaram has been convicted in charge
of offence punishable under Section 363, 366, 376(2)(f), 377 and
302 IPC and Section 6 of Protection of Children from Sexual
Offences Act, 2012 hence, according to analysis so done:
(one) for the offence under Section 302 IPC accused Anokhilal
son of Sitaram is awarded 'death sentence'. By tying knot in
neck, he be hanged till his death. It is also directed that above
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death sentence be not executed unless it is confirmed by the
Hon'ble High Court.
(two) For the offence under Section 363 IPC the accused is
sentenced to seven years rigorous imprisonment with fine of
Rs.1000/-, in default of payment of fine, he is directed to undergo
another one month rigorous imprisonment.
(three) For the offence under Section 366 IPC, the accused is
sentenced to seven years rigorous imprisonment with fine of
Rs.1,000/-, in default of payment of fine, the accused is directed
to undergo another one month rigorous imprisonment.
(four) For the offence under Section 376 (2)(f) IPC the accused
is sentenced to imprisonment for life with fine of Rs.1000/-, in
default of payment of fine, he is directed to undergo another one
month rigorous imprisonment.
(five) For the offence under Section 377 IPC the accused is
sentenced to imprisonment for seven years with fine of
Rs.1,000/- in default of payment of fine, he is directed to undergo
another one month rigorous imprisonment.
(Six) Considering the provisions of Section 42 of Act, where for
similar act the accused has been convicted under the sections of
Act and IPC, then he should be sentenced for the offences having
larger punishment and in this regard principle of Section 71
IPC is also perusable and in Section 376(2)(f) IPC and in Section
6 of the Act, there is provision of punishment for imprisonment
for life and minimum sentence of 10 yrs rigorous imprisonment
and for similar act, order of sentence is being passed for the offence
under Section 376(2) (f) and Secton 377 IPC also, hence separate
order of sentence for the offence under Section 6 of Protection
of Children from Sexual Offences Act, 2012 is not being passed.
All the sentences of imprisonment shall run concurrently.
67. The accused is in detention since 04.02.2013 hence, let
certificate of the period undergone by him in detention during trial
be attached with warrant as per provisions section 428 Cr.P.C.
which may be used for setting off under Section 428 Cr.P.C. or
as per requirement for computing sentence as provided in Section
433 Cr.P.C.
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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68. On payment of fine, entire amount of fine means Rs.4000/-
unless otherwise directed, after expiry of period of appeal be paid
to Shantubai PW-3 mother of deceased as compensation.
69. According to provisions of Section 366 Cr.P.C. let entire
records and proceeding of the case be placed before the Hon'ble
High Court, Jabalpur for confirmation of death sentence and death
sentence be not executed till it is confirmed by the Hon'ble Madhya
Pradesh High Court and for keeping accused in custody in above
period let he be handed over with warrant in above regard for jail
custody.
70. I appreciate for assistance of all where in regard to incident
which happened in mid night of 30-31 January, after arrest of
accused on 04.02.2013, completing investigation immediately
charge-sheet was submitted on 18th February and to prosecution
which ensured quick trial by placing entire evidence from 19
February to 02 March, 2013 and specially for assistance of defence
because disposal of case is ensured within only 1 month of incident
only because of above assistance and completing trial only in 12
working days could be possible."
(H) Criminal Reference No.4/2013 was accordingly registered in
the High Court for confirmation of death sentence. The appellant also
preferred Criminal Appeal No.748 of 2013 challenging his conviction
and sentence. The High Court by its judgment and order presently under
appeal, affirmed the view taken by the Trial Court and upheld the death
sentence and other sentences imposed by the Trial Court. It was observed
by the High Court as under:-
"8. ....... The victim was, thus, last seen alive with the accused
by Kirti Bai whose evidence discloses that the victim and accused
were seen together at the point of time in proximity with the time
and date of the commission of crime. Also after the incident no
one saw the accused alone because he had absconded. We are,
therefore, of the view that the prosecution has successfully
established the last seen theory beyond any reasonable doubt
against the accused.
9. We also find that the report, Ex.58, of the DNA Finger Printing
Unit completely connects the accused with the commission of
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crime. The report clearly states that the hairs seized from the fist
of victim and the skin found in the cut-nails of victim belonged to
the accused. The report further states that the semen found on
the paijama of victim was of the accused. Not only this, according
to the report, blood found on the underwear of accused was of
the victim. The cremation of the body of victim was done on
1.2.2013 whereas the accused was arrested on 4.2.2013. There
was, therefore, no possibility of the blood of victim having been
put on the seized underwear of the accused.
... ... ...
11. The evidence on record clearly establishes that the accused
was close to the family of Ramlal and the victim trusted him.
She, therefore, on his asking immediately rushed to buy "bidi"
for him from a kirana shop. The accused then followed the victim
with a premeditated mind to commit the crime. The accused, taking
advantage of the trust of victim, after kidnapping and subjecting
her to brutal rape and carnal sex most gruesomely throttled her to
death. The numerous injuries on the body of victim testify this
fact. He even dumped the body of victim in the field. Earlier also,
the accused was convicted vide judgment dated 21.10.2010, Ex.49,
for committing carnal sex with a small boy. Thus, an innocent
hapless girl of nine years was subjected to a barbaric treatment
showing extreme depravity and arouses a sense of revulsion in
the mind of a common man. We feel that the crime committed
satisfies the test of "rarest of rare" cases. We, therefore, uphold
the death sentence and also other sentences imposed by the trial
court."
3. During the pendency of these appeals in this Court, it was
observed by this Court in its Order dated 12.12.2018 as under:-
"One of the issues that has arisen in the present case is compliance
with the statutory timeframe fixed by proviso to Section 309(1)of
the Cr.P.C.(as amended in 2018). That Section provides a time
limit of 60 days within which the trial is supposed to be completed.
In this context, we consider it appropriate to explore the possibility
of using video-conferencing for the purpose of recording evidence
since it is believed that such use will eliminate the time taken for
summoning the witnesses to Court.
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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[2019] 18 S.C.R.
However, an apprehension is expressed at the Bar that the videoconferencing facility is not always available throughout the trial
in various parts of the country and in the present state of the art,
it cannot be wholly relied on. Since, this appears to be
surmountable, we consider it appropriate to hear National
Informatics Centre (NIC) and Department of Justice in the matter.
Accordingly, issue notice ... ..."
4. When these appeals came up for final hearing, certain issues
were highlighted by Mr. Siddharth Luthra, learned Senior Advocate who
appeared for the appellant on behalf of the Supreme Court Legal Services
Authority. According to him, the way the trial was conducted, there was
no fairness at all and the interest of the appellant-accused was put to
prejudice on more than one count. The principal submission was recorded
in the order dated 10.12.2019 passed by this Court as under:-
"In the submission of the learned Senior Counsel, following aspects
are, therefore, very clear:
a) The learned Amicus Curiae came to be appointed the same
day when the charges were framed, which effectively means
that the learned Amicus Curiae did not have sufficient
opportunity to study the matter nor did he have any opportunity
to have any interaction with the accused to seek appropriate
instructions;
The other issues noted in the Order dated 12.12.2018 were
referred to but it was observed:-
"As presently advised, we will deal first with the issue pertaining
to the present trial and whether the approach adopted by the Trial
Court in the present matter could be accepted or whether there
was any infraction or error on the part of the Trial Court in adopting
the approach in the present matter. Other issues, namely
applicability of Section 309 and advisability of having videoconferencing in the matter will be dealt with at a later stage and
the consideration of these issues, for the time being, is deferred."
5. The consideration at present is thus confined to the issue as
stated above.
6. In support of his submissions, Mr. Sidharth Luthra, learned Senior
Advocate, relied upon certain decisions of this court and, particularly, in
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Bashira vs. State of U.P.2 and Mohd. Hussain Alias Julfikar Ali vs.
State (Government of NCT of Delhi)3. Mr. Varun Chopra, Deputy
Advocate General appearing for the State, however, submitted that the
evidence on record, without any doubt, pointed towards the guilt of the
accused and as such the order of conviction recorded by the Courts
below was correct and did not call for any interference.
7. In Bashira2, the Trial Court had fixed 28th February, 1967
as the date for starting the actual trial and, on that very day, before
beginning the trial, an Amicus Curiae was appointed to represent the
accused. On that very day, the Trial Court amended the charge to which
the accused pleaded not guilty and two principal prosecution witnesses
were examined. The other witnesses were examined on 1st March, 1967
and the accused was also examined under Section 342 of the Code of
Criminal Procedure, 1898 (equivalent to Section 313 of the Code of
Criminal Procedure, 1973 or "the Code", for short). The case was
thereafter fixed on 10th March, 1967 for arguments, on which date the
Amicus Curiae presented an application for recall of one of the
prosecution witnesses for further cross-examination. The application
was rejected. Arguments were then heard on the same day and the
judgment was delivered on 13th March, 1967 convicting the accused
for the offence under Section 302 IPC and sentencing him to death. In
the backdrop of these facts, the submissions of the Amicus Curiae
appearing in this Court were recorded as under:-
"2. In this case, the principal ground urged on behalf of the
appellant raises an important question of law.