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2010 Supreme(Pat) 518
PATNA HIGH COURT
Navin Sinha and Dharnidhar Jha JJ.
State Of Bihar
Versus
Krishna Bihari Singh @ Krishna Singh And Jawahar Koiry @ Jawahar Singh @ Netaji
Death Reference No. 10 of 2008
Criminal Appeal No. 648 of 2008
Decided On : MARCH 30, 2010
Headnote:Indian Penal Code, 1860-Sections 361A, 34, 395 and 412-Kidnapping for ransom and plunder of money-Accused applicants kept the victim in confinement for 52 days-Offence committed with help of stolen vehicle-Accused appellants and articles identified in Identification parade Demand for ransom established-The abductors disclosed their names while demanding ransom amount-An act of abduction was the result of meticulous planning of the logistics with separate roles assigned to the individual players-Death sentence and life sentence modified to 20 years R.I. -Appeals dismissed. (Paras 24 to 28, 51, 53, 62 to 78)
AIR 1979 SI 761, AIR 1979 SC 1468, AIR 1979 SC 483, AIR 1954 SC 15, AIR 1961 SC 1184-Relied upon.
Indian Penal Code, 1860-Section 364A-Kidnapping for ransom- To attract the provisions of section 364A-What is required to be proved is (1) that the accused kidnapped or abducted the person (2) kept him under detention and (3) Kidnapping or abductions was for ransom-What is relevant is the demand for ransom and not the actual payment for ransom. (Paras 46)
(2004)8 SCC 95-Relied upon.
Words and Phrases-Ransom/Demand-The demand has to be communicated-It is an imperative request or a claim made. (Para 45)
Criminal Trial-Sentence- The factual scenario of the planned logistics of the abductions after premeditations and design with smoothness of execution of a well planned operators are all factors relevant for imposition of appropriate sentence. (Para 28)
(2009)6 SCC 498,2009(1) PLJR 70-Referred to.
Indian Evidence Act, 1872-Section 27-identification and involvements of the appellant in the abduction and confinement clearly stands proved-The recovery of vehicle, money and weapons by police on information furnished to it during investigation identified in the test Identification parade was evidence admissible under section 27 of Evidence Act.
(2008)2 SCC 264 (Cri.)-Referred to.
Indian Evidence Act, 1872-Section 3 and 114 (e) Bihar Police Manual 1978-Rule 236 (a)-Test Identification Parade The effect of first identification in dock after passage of some time, when the accused were unknown has no invariable rule but depends on the particular facts of each case-What might must be attached to the evidence of identification in court not proceeded by a T.I.P. is a matter for the court to examine on facts-There is presumption of regularity of official acts under section 114(e) of Evidence Act unless the foundational facts be on record to rebut the same. (Paras 54, 55 & 57)
AIR 1992 SC 2100, (2000)1 SCC 358 (2000)2 SCC 254, AIR 2002 SC 3325, (2005)11 SCC 600, (2003)5 SCC 746, AIR 2007 SC 2774, AIR 2008 SC 2343 (1996)8 SCC 630-Relied upon.
AIR 1979 SC 1127, (1991) SCC 434-Distinguished.
Indian Evidence Act, 1872-Section 63(b)-Call printouts of the mobile phones is admissible under section 63(b) of Evidence Act. (Para 69)
Code of Criminal Procedure, 1973-Section 354 (3) and Indian Penal Code, 1860-Sections 364A and 395-Kidnapping for ransom and dacoity-Death sentence-Weather justified-When death sentence is to be imposed is a vexed question-No fixed yardstick formula or guidelines have been evolved for the same-Death sentence of the two appellants founded on the reasoning of their antecedents only-No threat to cause death or hurt to the victims-No justification to distinguish their case from that of the other appellants for award of a different sentence-A light punishment will only embolden others-Death sentence commuted to 20 years R.I. (Paras 71 to 74)
AIR 2003 SC 4427 (2009)5 SCC 740, AIR 1987 SC 1346; (2008)13 SCC 767-Relied.
Navin Sinha, J.
1. The Appellants have been variously convicted under Sections 364A, 34, 395 and 412 of the Indian Penal Code (hereinafter referred to as I.P.C.) as discussed in detail while considering their individual cases hereinafter. The Appellants in Criminal Appeal Nos. 716 and 761 of 2008 have been sentenced to death giving rise to the Death Reference. The Appellants in the remaining appeals have been sentenced to undergo imprisonment for life and rigorous imprisonment for 10 years. All the Appellants have been acquitted of the charge under Section 120B I.P.C.
2. The written report of Arun Kumar Mishra, P.W. 5, was lodged with the Officer Incharge, Rajpur Police Station on 21st November, 2006 at 10 P.M. marked as Exh. 1, and formal F.I.R. registered at the same time. It was sent to the Magistrate on 22nd November, 2006. The informant stated that he was engaged in the business of cement, iron and dealership of Hindustan Lever along with his cousin Ajay Shankar Mishra, P.W. 17. The business was spread between Buxar and Ramgarh. P.W. 17 was responsible for collection of money dues from business associates in the Ramgarh area and travelled frequently for the purpose. On 20th November, 2006, P.W. 17, and the informants cousin Raju Mishra, P.W. 20, with the driver Manoj Singh, P.W. 18, left Buxar at about 10 A.M. on his white Gypsy bearing No. BR ID 2619, for Ramgarh and other places to collect money dues. P.W. 17 collected such dues from business associates at Nuao, Rajesh Jaiswal, P.W. 2, Sandeep Kumar Jaiswal, P.W. 3, Parwej Ansari, P.W. 4, and Santosh. At Ramgarh they collected dues from Sanjay Jaiswal, P.W. 1 and others. With the total collection of about Rs. 4 lacs, they proceeded for Buxar at about 3.30 P.M. and telephonically informed him that they did not propose to stop anywhere. A repeat conversation at 4.30 confirmed that they had reached Rampur. There was no contact thereafter and neither did they reach home. The next whole day was spent searching for them. Birendra Singh, P.W. 6, a businessman of Tiara informed him that the previous evening at about 6 P.M. the Maruti Gypsy was seen on the canal road from Rampur to Jamauli proceeding towards Jamauli driven by another. It was preceded by a black Hero Honda motorcycle, followed by a silver coloured Bolero with dark glasses and a Bajaj Di SC over Motorcycle behind it. P.W. 18 called from Sonbarsa next day at about 8.45 P.M. that P.W. 17 and P.W. 20 had been abducted by seven unknown persons on the point of arms at about 5 P.M. near Rampur village on the Hadhadva bridge after they were intercepted by motorcycles and he had been released near Sonbarsa. The informant was convinced that the abduction was for ransom.
3. Learned Senior Counsel, Sri Kanhaiya Prasad Singh on behalf of the Appellant Birbal Choudhary in Criminal Appeal No. 648 of 2008 submitted that P.W. 18 did not identify him in the first Test Identification Parade (hereinafter referred to as T.I.P.) on 11th December, 2006. Only in a repeat T.I.P. held on 14th December, 2006 he was identified when again in the dock the witness did not identify. Even P.W. 17, who identified accused Shyam Bihari Paswan, Angad Koeri, Krishna Bihari Singh and Jawahar Koeri did not identify him. P.W. 20, another victim denied having named the Appellant during investigation. The identification of the Appellant was, therefore, not confirmed and he was entitled to acquittal.
4. Sri Yogendra Kumar, Advocate in Cr. Appeal No. 851 of 2008 for Appellant Angad Koeri submitted that there is a single identification during T.I.P. by P.W. 17. He acknowledged that the defence of a SC are injury over the left eye and non-compliance with requirement for T.I.P. thereunder were issues which had not been raised before the Trial Court at any stage or in the cross-examination of P.W.9, the Judicial Magistrate, who held it. The next submission was that there is no specific role attributed to him except for sitting on a motorcycle at the ti
