Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2017 Supreme(SC) 985

SUPREME COURT OF INDIA
A.K. Sikri, R.K. Agrawal, JJ.
Birbal Choudhary @ Mukhiya Jee – Appellants
Versus
State of Bihar – Respondents
Criminal Appeal No. 701 of 2012 With Criminal Appeal No. 702 of 2012, Criminal Appeal Nos. 703-704 of 2012, Criminal Appeal Nos. 705-706 of 2012, Criminal Appeal No. 707 of 2012, Criminal Appeal No. 708 of 2012 and Criminal Appeal No. 1858 of 2013
Decided On : 06-10-2017

Advocates Appeared:
For the Parties : Ms. Sharmila Upadhyay, Ejaz Maqbool, Gaurav Agrawal, Ms. Niranjana Singh, Abhijat P. Medh, Vineet Kr. Singh, Saurabh Mishra, Himanshu, Bilal Khan, Baij Nath Patel, Ms. Sweta, Ms. Romila, Abhay Kumar, T. Mahipal, Ranbir Singh Yadav, Akhilesh Kumar Pandey, Gopal Singh, Ms. Vimla Sinha, Rituraj Biswas, Manish Kumar, Pranab Prakash, Shivam Singh, Aditya Raina, Shreyas Jain, Kumar Milind, Ms. Ambika Gutam, Abhinav Mukerji, Ms. Bihu Sharma, Ms. Purnima Krishna, Siddharth Garg, Advs.

IMPORTANT POINTS
When abduction and demand for ransom is established, accused would be liable for conviction u/s 364A IPC notwithstanding whether ransom was paid or not.
Imprisonment for life would mean full life and not sentence of 14 years. No infirmity in directing imprisonment for 20 years.
When second charge sheet is filed during trial on basis of first charge sheet, re-examination of witnesses would be proper.
Persons providing logistic support to accused persons, trying to flee from police and having common intention with the accused are liable for conviction with the aid of section 34 IPC.

Headnote:(a) Indian Penal Code, 1860 – Section 364A – PW 18, the driver, released the next day but others kept in captivity for 52 days – Letters from victims and phone call from appellants establishing demand for ransom – Whether the ransom was paid or not is irrelevant – Appellants rightly convicted u/s 364A. (Para 31, 33)
       (2004) 8 SCC 95 – Relied upon
       (b) Criminal trial – Sentence – Enhancement of – Trial court awarding punishment of life imprisonment – High Court making it 20 years – Imprisonment for life would mean full life and not sentence of 14 years – No infirmity. (Para 36)
       (2008) 13 SCC 767 – Relied upon
       (2016) 9 SCC 541 – Referred
       (c) Criminal trial – Re-examination of witnesses – Witnesses examined under first charge sheet which did not include concerned appellants – Second charge sheet filed including the concerned appellants – These appellants being absent during trial so far, did not have opportunity to cross examine the witnesses examined – Re-examining those witnesses gave opportunity to the concerned appellants to cross-examine those witnesses – Depositions of witnesses on both occasions remaining the same – No infirmity. (Para 37)
       (d) Criminal trial – Conviction – Testimony of PW 17 trustworthy – PW 17 also identifying A6 in TIP – His conviction u/s 364A IPC being challenged but his conviction u/s 395 IPC is not challenged – Conviction of A6 held proper. (Para 42, 43)
       AIR 2007 SC 2774; AIR 2008 SC 2343; (2015) 2 SCC 647; (1998) 3 SCC 625; 1995 Supp (1) SCC 80 – Relied upon
       (e) Indian Penal code, 1860 – Section 364/34 – Appellants providing logistic support to the main appellants – Tried to flee from police – Common intention to keep the victims under captivity for ransom – Section 34 rightly invoked – Conviction u/s 364/34 upheld. (Para 46, 48)
       AIR 1963 SC 174; (2003) 2 SCC 266 – Distinguished
       (f) Indian Penal Code, 1860 – Section 364 – Conviction – A9 – Role in kidnapping for ransom and demand for ransom established – Common intention established – A-9 rightly convicted under Section 364A. (Para 53)
       Indian Penal Code, 1860 – Section 364A and 368 – Appellant charged u/s 368 but not u/s 364A – Convicted u/s 364A – No failure of justice – No infirmity – Section 464, CrPC. (Para 59, 60, 61)
       Facts of the case:
       Appellants have been convicted u/s 364A, 34, 395 and 412 IPC and sentenced to undergo imprisonment for 20 years.
       Finding of the Court:
       There is no infirmity in the impugned judgment.
       Result: All appeals dismissed.

JUDGMENT

A.K. Sikri, J.

The eleven appellants herein, out of the fifteen persons who faced trial, are variously convicted under the provisions of the Indian Penal Code (IPC) for committing offences punishable under Sections 364A, 34, 395 and 412 of the IPC, hereby call into question the confirmation of their conviction by the High Court by the common impugned judgment and order dated March 30, 2010, which was rendered in a batch of appeals. Ensuing from their conviction on the above-mentioned charges, the appellants and others similarly situated have been sentenced to undergo imprisonment for 20 years.

2. The Sessions Court, finding them guilty of aforesaid offences, had sentenced two appellants, Krishna Bihari Singh @ Krishna Singh and Jawahar Koiry @ Jawahar Singh @ Neta Jee, to suffer death penalty. However, the sentence has been truncated by the High Court on appeal/reference, awarding them the punishment of imprisonment for 20 years. The High Court, having opined that the actions of all the appellants were driven by common intention, the conviction of life imprisonment of the other remaining appellants is also fixed at 20 years.

3. The case pertains to the abduction of Ajay Shanker Mishra (PW-17), Manoj Singh (PW-18) and Raju Mishra (PW-20) which the prosecution claims, was committed for extracting ransom. The written report of Arun Kumar Mishra (the informant, examined as PW-5 during trial) and subsequent FIR divulge that the victim PW-17 and the informant (PW-5) were doing the business together, wherein PW-17 was mainly responsible for collecting money dues from their business associates. On November 20, 2006, PW-17 along with informant's cousin PW-20 and the driver PW-18, left Buxar in a White Maruti Gypsy bearing No. BR 1P 2619, with the purpose of collecting the dues. Having collected a total of Rs. 4 lakhs from their business associates i.e. Sanjay Jaiswal (PW-1), Rajesh Kumar Jaiswal (PW-2), Sandeep Kumar Jaiswal (PW-3), Parwez Hassan Ansari (PW-4) and others, they were proceeding to head back. While they telephonically informed twice, last being at 4:30 PM, they did not return home and the next day was spent searching for the missing victims. The records further disclose that around 6 pm on the next day, the said white Gypsy escorted by a motorcycle and a silver Bolero was seen going towards Jamauli on the Rampur Jamauli Canal road. Additionally, it was also recorded that on the same day i.e November 21, 2006, at around 8:45 pm, the driver PW-18 contacted the informant PW-5 from Sonbarsa informing him that seven unknown persons had abducted the victims Ajay Shanker Mishra and Raju Mishra, at gunpoint, the previous evening at around 5 pm by overtaking the vehicle with two motorcycles and the driver PW-18 was left at Sonbarsa by the abductors. It was further mentioned in the FIR that the abductors had committed the said crime for the purpose of extracting ransom.

4. After the investigation, a chargesheet under Section 173 of the Code of Criminal Procedure (Cr.P.C.) was filed before the Chief Judicial Magistrate, Buxar, alleging the commission of offences, inter alia by the appellants herein under Sections 364A, 395, 412 and 120B of the IPC. The prosecution led 22 witnesses as part of its evidence to establish its case. As per the statement put forth by the informant PW-5, the day following the release of the Driver PW-18, they went to the place of occurrence and confinement with the police. A mobile sim card belonging to PW-5's servant Rinku was sent to the abductors for establishing contact and through which the demand for Rs. 50 lakhs was made. On demanding the proof whether the victims were alive, the accused persons informed him that they were sending the victim's watch and ring and further permitted the victim Ajay Shanker Mishra to speak on the mobile. It was also stated that the accused persons disclosed their

Click Here to Read the rest of this document

2017 Supreme(SC) 985

Cases Referred (10)