REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 701 OF 2012

BIRBAL CHOUDHARY @ MUKHIYA JEE .....APPELLANT(S)

VERSUS

STATE OF BIHAR .....RESPONDENT(S)

W I T H

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

A N D

CRIMINAL APPEAL NO. 1858 OF 2013

J U D G M E N T

A.K. SIKRI, J.

The eleven appellants herein, out of the fifteen persons who

faced trial,  are  variously  convicted under  the provisions of  the

Criminal Appeal No. 701 of 2012 with Ors. Page 1 of 48

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

Criminal Appeal No. 701 of 2012 with Ors. Page 2 of 48

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

Criminal Appeal No. 701 of 2012 with Ors. Page 3 of 48

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 names as Jawahar Koiry and Suresh Koiry. PWs-

17  and  20  were  released  from the  captivity  after  52  days  on

January 11, 2007 even though the driver, PW-18 was released on

Criminal Appeal No. 701 of 2012 with Ors. Page 4 of 48

the day following the abduction. It is further revealed that upon

the release of the victims, the police took them to the place where

they had been kept during the abduction for identification and the

Police  subsequently  drew  up  a  location  map  based  on  their

information.

5) The trial court vide its order convicted all the accused (appellants)

persons under Sections 364A/34, 395 and 412 IPC. However, the

appellants  were acquitted of  the charge framed under  Section

120B  IPC.  The  Court  convicted  the  appellants  based  on  the

testimonies of the 22 witnesses led by the prosecution, the Test

Identification Parade (TIP)  charts  wherein the victims identified

the appellants,  the  recovery  of  Rs.1,50,000/-  from the  Almirah

kept  in  the  house  of  accused  Krishna  Singh  which  was  not

challenged by the said accused having also failed to establish

how it  came to  be  in  his  possession.  On the  other  hand,  the

prosecution  clearly  proved  that  the  victims  had  realized  due

amounts from their business associates which was taken away by

the accused persons at the time of their kidnapping out of which

two bundles of notes were handed over to one “Babusaheb” who

had a rifle with him and was driving the silver Bolero. The victim

identified “Babusaheb”, as Krishna Singh, the accused- appellant.

Criminal Appeal No. 701 of 2012 with Ors. Page 5 of 48

Additionally, the demand for ransom was proved by the evidence

of the informant (PW-5) along with the victim’s (PW-17) letter, the

seizure list as well as the TIP Chart.  

6) Although,  four  accused  persons,  namely,  Lal  Mohar  Singh,

Prabhawati  Devi,  Rajbahadur  Singh  @  Chunnu  Singh  and

Krishna Singh were charged for the offence under Section 412 of

the IPC due to the recovery of Rs. 1,50,000/- from the Almirah of

the  house  of  Krishna  Singh,  the  trial  court  held  that  the

prosecution had failed to prove and establish the fact that these

four accused persons had knowledge or reason to believe that

the recovered money from the Almirah was the looted money.  In

such a circumstance, the court further held that the offence under

Section 412 IPC is proved against the appellant Krishna Singh

only.  The  prosecution,  however,  established  that  12  accused

persons  including  appellants  Krishna Singh,  Birbal  Choudhary,

Shyam Bihari Paswan, Angad Koiry, Jawahar Koiry, Ramashraya

Koiry  and  other  accused  persons,  namely,  Rambriksha  Koiry,

Hridayanand  Koiry,  Mangala  Singh,  Ramdarash  Koiry,  Saroj

Singh and Harbanse Ram, kidnapped and kept the victims in their

custody  as  well  as  tortured  the  victims  to  pay  a  ransom  in

furtherance of their common intention. This led the court to hold

Criminal Appeal No. 701 of 2012 with Ors. Page 6 of 48

that the offence under Section 364/34 of the IPC is well proved

and established against the 12 persons.  

7) Appellant  Jawahar  Koiry  was  charged  for  the  offence  under

Section 412 of the IPC as well. The trial court took into account

the allegation made against him on the reasoning that the golden

ring of the victim Ajay Shanker Mishra which was taken by the

accused person in the course of the kidnapping was recovered

from his possession. In such circumstances, the allegation was

held proved and established by the evidence of the witnesses,

the seizure list as well as the TIP Chart. The court further held

that out of 11 accused persons including the appellants, originally

charged under Section 397 IPC for committing the dacoity of cash

of  about  Rs.4  lakhs  with  one  White  Maruti  Gypsy  bearing

registration no BR 1P 2619 from the possession of the victims

stood established against  the accused appellants  having been

well proven by the prosecution. The court absolved other accused

persons including the appellant Ramashraya Koiry of the charge

under Section 395 of the IPC holding that the prosecution had

failed  to  establish  and  proved  its  case  against  the  remaining

accused.   However,  it  went  on  to  hold  that  in  the  given

circumstances,  the  offence  under  Section  395  IPC  was  well

Criminal Appeal No. 701 of 2012 with Ors. Page 7 of 48

proved  and  established  against  the  remaining  appellants.  The

court  further  absolved  the  accused  persons  including  the

appellants of the charge for the offence under Section 120B of

the IPC with the findings that even though it came in the evidence

of PW-19, the Investigating Officer in the case, that the accused

persons  had  planned  to  kidnap  the  victims,  this  fact  was  not

proved  and  established  by  the  evidence  led  by  any  of  the

prosecution  witnesses.  The  prosecution  having  failed  to  prove

any prior agreement of the accused person to kidnap the victim,

the court held that the offence under Section 120B stood devoid

of any proof.  

8) The trial  court keeping in mind the criminal antecedents of the

appellants  Krishna  Singh  and  Jawahar  Koiry,  considered  it

justified to sentence them to death holding that the punishment of

life  imprisonment  would  be  inadequate  for  the  offence  under

Section 364A/34 IPC committed by them. However, noting that

the remaining accused did not have any criminal history, the court

sentenced them to undergo imprisonment for life for the offence

punishable  under  Section  364A/34  IPC.  The  appellants  were

further sentenced to undergo Rigorous Imprisonment (RI) for 10

years  for  the  offence  under  Section  395  IPC  and  since  the

Criminal Appeal No. 701 of 2012 with Ors. Page 8 of 48

accused  appellants  Krishna  Singh  and  Jawahar  Koiry  were

already sentenced for the offence under Section 395 of the IPC,

the court found it fit not to pass any separate sentence against

them for the offence under Section 412 of the IPC.  

9) Before the High Court, the common submission on behalf of the

prosecution was that the sentence of death was to commensurate

with the offence and in the interest of the society warranting no

interference.  It was also submitted that even if the court were not

to uphold the death sentence of the appellant, surely the same

was not a fit case for the sentence of life imprisonment commonly

understood for a term of 14 years.  

10) The  High  Court  in  its  impugned  judgment  opined  that  the

abduction of the victims by certain unknown persons stood fully

established. The first description of the alleged abductors figured

in  the  deposition  of  PW-17.  Photographically  reliving  the

abduction, he recounted that the person sitting pillion on one of

the motorcycles was referred to as ‘Neta Jee’ by his accomplices.

The pillion rider on the second motorcycle had a mole on his left

cheek.  Both  these  persons  pull  out  PW-17  and  PW-18

respectively from the Gypsy. The latter snatched the money bag.

Another person who got down from the Bolero, pulled out PW-20

Criminal Appeal No. 701 of 2012 with Ors. Page 9 of 48

and pushed him into  the  Bolero,  had  a  rifle  in  his  hand.   He

further  described  that  one  of  them  was  of  stout  built  with  a

receding  hair  line  with  strands  of  white  hair  and  was wearing

Kurta Pajama. The person possessed with the rifle was of  fair

complexion and average height referred to as ‘Babu Saheb’ by

his  accomplices.  PW-17  further  stated  that  the  accomplice

referred to as ‘Verma Jee’ took out  two packets of  the money

wrapped in newspaper bundles from the bag and handed it over

to the person driving the Bolero addressed as ‘Babu Saheb’ and

told him to return, which he did, along with the Gypsy driven by

another.  The abductor identified as ‘Neta Jee’ while travelling in

the Bolero when the mobile phone of PW-17 rang, as PW-5 had

called, the said abductor stated that he was the father of all and

disconnected the number.  

11) The High Court has also held that the abductees having remained

closeted with the abductors for approximately five hours in the

vehicle the victims had ample opportunity to identify the features

and faces of the accused persons.  This, the court added, was a

perfectly  natural  conduct  and  lent  great  credibility  to  their

evidence and identification. The trauma and agony of the victims

surely led to the identification and features of the abductors being

Criminal Appeal No. 701 of 2012 with Ors. Page 10 of 48

etched in the minds of the victims in the form of an imprint when

they stated they could clearly identify them. The court further held

that driver (PW-18), who was released on the day following the

abduction near Sonbarsa Petrol  pump as an affirming witness,

fully corroborated PW-17 in material particulars for the mode, the

manner and stay in confinement at Village Simri on the first night.

On his release, he stated to have gone along with the Police and

showed them the place of abduction and the place where he was

kept  in  confinement  and  was  finally  released.  This  found

corroboration  in  the  evidence  of  PW-8,  the  first  Investigating

Officer.  PW-17  had  given  a  graphic  description  of  the  places

where  he  and  PW-20  were  kept  during  their  confinement  for

approximately  52  days  including  identifying  landmarks

corroborated and confirmed by PW-19 during police investigation.

12) The High Court further discussed the demand for ransom made

on the basis of  Exhibit  8  which is  the letter  written by PW-17

during confinement and signed by PW-20 asking PW-5 to pay the

ransom  amount  and  secure  their  release.  The  demand  for

ransom also  stood established  from the conversation between

PW-5 when the accused appellants Jawahar Koiry and Suresh

Koiry  identified  themselves  calling  from  the  phone  number

Criminal Appeal No. 701 of 2012 with Ors. Page 11 of 48

9430029994  which  was  sent  to  establish  contact  with  the

abductors. The demand for ransom of Rs. 50 lakhs was made

and they further stated that they were sending the ring of PW-17

and a letter (Exhibit 8) from them as proof of their confinement to

claim ransom. The mobile forensic evidence, which was brought

on record during the investigation, also showed that a call was

made which proves that a demand for ransom was in fact made.

The court  further pointed out that  the act of abduction as was

carried  out  in  the  present  case  was  a  result  of  meticulous

planning  of  the  logistics  with  separate  roles  assigned  to  the

individual  players.  Once  the  demand  for  ransom  stood

established, whether it was actually paid for or not, was irrelevant.

13) The High court in its decision regarding the sentence awarded to

each  of  the  accused  appellants,  discussed  the  insertion  of

Section  364A which  was a  result  of  the  changing  scenario  of

crime  in  the  country.  The  court  pointed  out  the  smooth  and

flawless nature of the crime, which leads to the conclusion that

the  accused  persons  were  not  novices.  With  the  sole  lust  of

gaining quick access to money, the accused persons who were

otherwise not paupers or beggars committed a crime that was an

organised criminal antisocial activity, where such people could not

Criminal Appeal No. 701 of 2012 with Ors. Page 12 of 48

be held amenable to reaffirmation as they constitute a danger to

society.  To  be  able  to  cope  with  the  changing  times,  the  law

needs to evolve and with this intention, the court discussed the

provision of life imprisonment for this crime.  The section provides

for the said punishment for threat to cause hurt and apprehension

of hurt from real hurt.  Holding that the said section should be

read in isolation without being confined to Section 319, justice

would prevail if RI of 20 years was awarded to all the accused

appellants.  Regarding  the  two accused  appellants  i.e.  Krishna

Singh and Jawahar Koiry, who were awarded the death sentence,

the  court  reasoned  that  the  only  justification  provided  for  the

enhanced sentence  for  these  two appellants  was due to  their

criminal antecedents, for no evidence transpired with regard to

any act  on part  of  the two appellants  of  having threatened to

cause death or hurt to the victims or conduct of a nature giving

rise  to  reasonable  apprehension  in  the  mind  of  the  victims of

death or hurt much less having caused death or hurt.  Holding

that there was no justification to distinguish their case from that of

the other appellants for award of a different sentence, and holding

that  classification  could  not  be  done  based  solely  on  criminal

antecedents, the High Court sentenced them along with the other

appellants to 20 years of RI.  

Criminal Appeal No. 701 of 2012 with Ors. Page 13 of 48

14) For the sake of clarity, we may sum up the position regarding the

outcome of trial by the Court of Sessions as well as that of the

High Court:

Two chargesheets were filed pertaining to the episode in

question, which have been narrated in brief above, whereby three

persons (PW-17, PW-18 and PW-20) were kidnapped.  Both the

cases  were  amalgamated  in  which  trial  took  place  against  15

persons.   The  trial  court  acquitted  three  persons,  namely,

Prabhawati  Devi  (A-2),  Lal  Mohar Singh (A-3) and Rajbahadur

Singh @ Chunnu Singh (A-4) of all the charges.  Remaining 12

persons were acquitted of  charge of  conspiracy levelled under

Section 120-B of IPC.  However, for various other charges, they

were convicted and given different sentences which were to run

concurrently.  Krishna Singh (A-1) and Jawahar Koiry (A-5) were

given death sentence for commission of offences under Sections

364A/34 and Section 395 IPC.  In appeal,  the High Court has

maintained the conviction of these accused persons as recorded

by the trial  court.   However, death sentence of A-1 and A-5 is

commuted and is substituted by RI of 20 years.  In the cases of

other convicts also, life sentence is modified to 20 years RI.  This

position is reflected hereunder in a tabular form:

Criminal Appeal No. 701 of 2012 with Ors. Page 14 of 48

Accused Name Charged Conviction by  Trial Court

Conviction &  Sentence by  Trial Court

Conviction by  High Court

1 Krishna  Bihari Singh  @ Krishna Singh

364A/34, 120B, 395, 412/34

364A/34, 395, 412

Death  &  10 years RI

Not confirmed. Raised  to 20 years RI

2 Prabhawati Devi

412/34 Acquitted X X

3 Lal  Mohar Singh

412/34 Acquitted X X

4 Rajbahadur Singh  @ Chunnu Singh

412/34 Acquitted X X

5 Jawahar  Koiry @  Jawahar Singh @ Neta Jee

364A/34, 120B, 395, 412

364A/34, 395, 412

Death  &  10 years RI

Not confirmed. Raised  to 20 years RI

6 Shyam  Bihari Paswan

364A/34, 120B, 395

364A/34, 395

Life  &  10 years RI

20 years  

7 Rambriksha Koiry

364A/34, 120B, 395

364A/34 Life 20 years  

8 Harbanse Ram

368, 412 364A/34 Life 20 years  

9 Angad Koiry 364A/34, 120B, 395

364A/34, 395

Life  &  10 years RI  

20 years  

10 Hirdayanand Koiry

364A/34, 120B, 395

364A/34 Life 20 years  

11 Mangala Singh

364A/34, 120B, 395

364A/34 Life 20 years  

12 Saroj Singh 364A/34, 120B, 395

364A/34 Life 20 years  

13 Birbal Choudhary  @ Mukhiya Jee

364A/34, 120B, 395

364A/34, 395

Life  &  10 years  

20 years  

14 Ramashraya Koiry

364A/34, 120B, 395

364A/34 Life 20 years  

15 Ramdarash Koiry

364A/34, 120B, 395

364A/34 Life 20 years  

Criminal Appeal No. 701 of 2012 with Ors. Page 15 of 48

15) Out of the aforesaid 12 persons whose conviction is maintained

by  the  High  Court,  11  persons  have  approached  this  Court.

Ramdarash Koiry  (A-15)  has not  challenged the verdict  of  the

High  Court.   Particulars  of  the  criminal  appeals  of  these  11

convicted persons are the following:

1 Criminal Appeal No. 701/2012 Birbal Choudhary 2 Criminal Appeal No. 702/2012 Shyam Bihari Paswan 3 Criminal Appeal No. 703-704/2012 Jawahar Koiry 4 Criminal Appeal No. 705/2012 Ramashraya Koiry 5 Criminal Appeal No. 706/2012 (i)   Rambriksha Koiry

(ii)  Hirdayanand Koiry

(iii) Mangala Singh

(iv) Saroj Singh 6 Criminal Appeal No. 707/2012 Krishna Bihari Singh 7 Criminal Appeal No. 708/2012 Angad Koiry 8 Criminal Appeal No. 1858/2013 Harbanse Ram

16) Mr. Basant, learned senior counsel argued Criminal Appeal No.

701  of  2012,  Mr.  Upadhyay,  learned  senior  counsel  argued

Criminal Appeal Nos. 702 of 2012, 705 of 2012, 706 of 2012 and

708 of 2012 whereas Ms. Niranjana Singh and Mr. T. Mahipal,

advocates argued Criminal Appeal Nos. 707 of 2012 and 1858 of

2013.   Mr.  Gopal  Singh,  advocate  appearing  for  the  State

responded to  the  arguments  advanced by  the  counsel  for  the

various appellants.   Mr.  R.  Dash,  learned senior  counsel,  who

appeared on behalf of the informant, supported the case of the

prosecution.

Criminal Appeal No. 701 of 2012 with Ors. Page 16 of 48

17) As pointed out above, though charge of conspiracy under Section

120-B IPC was also framed against these appellants, the Court of

Sessions acquitted them of this charge.  Thus, conspiracy has not

been  established.   However,  common  intention  behind  the

aforesaid criminal acts in held proved.  In this background, we

proceed to examine the plea of defence put up by each of the

appellant, to find out as to whether their conviction is appropriate

or not.

18) Mr.  Basant  arguing  for  the  appellant  Birbal  Choudhary  (A-13)

made his submission on three fronts, namely:

(i) There is no legal evidence to implicate A-13.

(ii) Allegations  and  charge  under  Section  364A of  IPC  was

utterly baseless.

(iii) Enhancement  of  sentence  to  20  years  RI  was  legally

impermissible.

19) On  the  first  aspect,  Mr.  Basant  submitted  that  the  allegations

pertained to abduction of three persons who had deposed in the

Court as PWs-17, 18 and 20 but none of them had identified A-13

in the Court.  Not only this, PW-17 and PW-20 did not identify him

even earlier and did not participate in the TIP.  As far as PW-18 is

Criminal Appeal No. 701 of 2012 with Ors. Page 17 of 48

concerned, though he was taken to TIP on December 11, 2006,

he  identified  some  other  person  as  ‘Mukhiya  Jee’.   His

submission was that Birbal Choudhary was implicated only on the

basis of statement of these kidnapped persons that when they

were  detained  in  captivity,  after  kidnapping,  one  person  was

addressed as ‘Mukhiya’ and A-13 is known as ‘Mukhiya’.  Apart

from that, there was not even iota of evidence against his client

and even PW-18 identified somebody else as ‘Mukhiya’ in TIP

held on December 11, 2006 and this piece of evidence could not

be  used  against  Birbal  Choudhary.   Referring  to  another  TIP

which  was  conducted  on  December  14,  2006,  Mr.  Basant

submitted  that  though  in  the  said  TIP,  he  identified  Birbal

Choudhary, but in the Court he did not identify him.  Further, no

recoveries were made from A-13.  On the aforesaid basis,  his

submission was that there was no legal evidence to implicate this

appellant.   

20) Another submission of Mr. Basant in this context was that before

the two chargesheets were consolidated, in the first chargesheet,

13 persons were committed to trial on April 16, 2007 and other

two persons from the second chargesheet were committed to trial

on September 15, 2007.  However, before September 15, 2007,

Criminal Appeal No. 701 of 2012 with Ors. Page 18 of 48

six witnesses, namely, PW-1 to PW-6 had already been examined

in  the  trial  pertaining  to  first  chargesheet.   After  the  two

chargesheets were consolidated, PW-1 to PW-6 were examined

again.  However, deposition of these witnesses when examined

again was used against the appellant Birbal Choudhary as well by

the trial court in its judgment which has prejudiced the case of

Birbal Choudhary.   

21) Mr. Basant also found fault with the reasoning of the High Court

wherein A-13 is covered by the TIP, by inference.   

22) Adverting  to  the  argument  predicated  on  Section  364A IPC,

submission  of  Mr.  Basant  was  that  ingredients  of  this  Section

could not be established during the trial inasmuch as there was

no demand for ransom as neither PW-5 nor PW-17 deposed to

this effect.  For this purpose, he read out the accusations made in

the FIR which, according to him, did not contain any reference to

either ‘Mukhiya Jee’ or ‘ransom’.  Only a belief was expressed to

that effect which could not take the place of evidence, submitted

the learned senior counsel.  He also read out relevant portions of

depositions  of  PW-18,  PW-9  (Metropolitan  Magistrate  who

conducted TIP) and PW-20 who did not support the prosecution

case.   He  further  submitted  that  though  it  is  alleged  by  the

Criminal Appeal No. 701 of 2012 with Ors. Page 19 of 48

prosecution that the kidnapped persons were kept in the house of

A-13, there was no reliable evidence to this effect inasmuch as no

Mahazir of the house was prepared and no evidence was led to

the  effect  that  where  the  kidnapped  persons  were  kept,  that

house belongs to A-13.  In this behalf, he also laboured to submit

that  the  witnesses,  particularly,  PW-8,  PW-18 and PW-19 had

given varying versions.   He,  thus,  argued that  no demand for

ransom was proved.

23) Insofar as purported enhancement of sentence is concerned, the

learned senior counsel referred to the provisions of Section 386

as  well  as  Section  401  of  Cr.P.C.  and  submitted  that,  before

enhancing the sentence, a notice is required to be given which

was not done in this case and, therefore, the order of modifying

the sentence thereby giving RI of 20 years was not in accordance

with law.  For this submission, he rested his case on the judgment

of this Court in  Vikas Yadav v.  State of Uttar Pradesh & Ors.1

wherein it is held as under:

“39. To  elaborate,  though  the  power  exercised  under Article  71  and  Article  161  of  the  Constitution  is amenable to judicial review in a limited sense, yet the Court  cannot  exercise  such  power.  As  far  as  the statutory  power  under  Section  433-A  CrPC  is concerned, it can be curtailed when the Court is of the considered  opinion  that  the fact  situation deserves  a sentence of incarceration which be for a fixed term so

1 (2016) 9 SCC 541

Criminal Appeal No. 701 of 2012 with Ors. Page 20 of 48

that  power  of  remission  is  not  exercised.  There  are many an authority to support that there is imposition of fixed term sentence to curtail  the power of  remission and  scuttle  the  application  for  consideration  of remission by the convict.  It  is because in a particular fact situation, it becomes a penological necessity which is permissible within the concept of maximum and the minimum. There is no dispute over the maximum, that is,  death  sentence.  However,  as  far  as  minimum  is concerned the submission of  the learned counsel  for the appellants is that courts can say “imprisonment for life”  and  nothing  else.  It  cannot  be  kept  in  such  a straitjacket formula. The court, as in the case at hand, when  dealing  with  an  appeal  for  enhancement  of sentence  from  imprisonment  of  life  to  death,  can definitely  say  that  the  convict  shall  suffer  actual incarceration  for  a  specific  period.  It  is  within  the domain  of  judiciary  and  such  an  interpretation  is permissible. Be it noted, the Court cannot grant a lesser punishment  than  the  minimum  but  can  impose  a punishment  which  is  lesser  than  the  maximum.  It  is within  the  domain  of  sentencing  and  constitutionally permissible.”

 24) Mr. Gopal Singh, learned counsel appearing for the State argued,

per  contra,  that  there was sufficient  evidence to  implicate  and

convict A-13 which was duly taken note of by the trial court as

well as by the High Court.  He referred to those portions of the

judgments of the Courts below wherein involvement of A-13 as

well  as  the  evidence  which  was  produced  to  substantiate  the

allegations against him has been discussed.  He also submitted

that  there  was  sufficient  evidence  to  prove  the  accusation  of

demanding ransom by the accused persons including A-13 on the

basis of which charge under Section 364A IPC was duly proved.

Criminal Appeal No. 701 of 2012 with Ors. Page 21 of 48

Insofar as argument of the appellant that no notice under Section

401  Cr.P.C.  was  served  before  modifying  the  sentence,  his

submission  was  that  it  was  not  a  case  of  enhancement  of

sentence.   On the contrary,  the High Court  had converted the

sentence of life imprisonment to that of 20 years RI and this has

to  be  taken  as  reduction  in  the  sentence  inasmuch  as  ‘life

imprisonment’ has to be treated as imprisonment for whole life, as

per the decisions of this Court.

25) As already noted during narration of facts and events, the three

persons were abducted on November 20,  2006.  Whereas the

Driver (PW-18) was released on November 21, 2006, other two

abductees were kept in confinement for a period of 52 days and

were released only on January 11, 2007.  Informant in this case

was Arun Kumar Mishra (PW-5) who had lodged written report on

November 21, 2006 at 10 pm on the basis of which formal FIR

was registered which was sent to the Magistrate on November

22, 2006.  PW-5 and his cousin Raju Mishra (PW-20) were the

partners in the business of cement, iron and were also having

dealership of Hindustan Lever.  PW-17 was their employee who

was  responsible  for  collection  of  money,  dues  from  business

associates in Ramgarh area and used to travel frequently for this

Criminal Appeal No. 701 of 2012 with Ors. Page 22 of 48

purpose. On the fateful day, PW-17 along with informant’s cousin

Raju Mishra (PW-20) had left  Buxar at 10 am on white Gypsy

which was driven by PW-18.  On that  day,  they had collected

about Rs.4 lakhs from various persons and proceeded for Buxar

at  about  3:30  pm  which  fact  was  informed  to  the  informant

telephonically.   They  had  reached  Rampur  at  4:30  pm  about

which  they had  told  informant  telephonically  but  there  was no

contact thereafter.  The manner in which PW-5/informant came to

know about their abduction as stated by him in his complaint is

already mentioned above.   In  his  written report  lodged on the

same  day  at  10  pm,  the  informant  had  stated  that  he  was

convinced  that  abduction  was  for  ransom.   As  many  as  22

witnesses  were  examined  by  the  prosecution.   The  accused

persons, in all,  examined 9 witnesses.  As per the prosecution

story, the victims, after their kidnapping, were kept in the house of

Jawahar Koiry @ Neta Jee (A-5) at Village Simri and thereafter

they were shifted to Village Bhanpur and then to Ganj Bharsara

where  they  were  kept  in  the  house  of  Birbal   Choudhary  @

Mukhiya Jee (A-13).   From there,  they were moved to Village

Dilhua,  Bhabhni  and  Baradih.   This  movement  from village  to

village where they have kept from time to time is sought to be

established from the mobile versions of accused as reported by

Criminal Appeal No. 701 of 2012 with Ors. Page 23 of 48

Bharat Sanchar Nigam Limited (BSNL) that all these villages fell

within the location of one mobile tower identified by Kochas A.   

26) In this hue, we examine the role of Birbal Choudhary.  Evidence

against him is that the victims found that A-13 was referred to by

others as Mukhiya Jee.  Other evidence which is produced is his

identification by PW-17 and that the abductees were kept, for few

days, in his house.  The question is whether there was clinching

evidence on the aforesaid aspects.

27) PW-17, though did not participate in TIP, came to the Court for his

deposition. On that day, he made a categorical statement in the

Court  that  though other  accused persons  were  present  in  the

Court he did not find Birbal Choudhary in the Court.  This shows

that PW-17 could identify Birbal Choudhary and when he found

that he was not present in the Court on that day, he specifically

stated  to  this  effect.   PW-17  again  appeared  in  the  Court  on

November 28, 2007.  On that day, Birbal Choudhary was present

in the Court.  PW-17 duly identified him and mentioned that he

was  kept  in  the  house  of  A-13  who  was  Mukhiya  of  Ganj

Bharsara.   Taking  note  of  this,  the  High  Court  has  made

categorical  remarks  that  A-13  neither  disputed  the  said

identification nor put  any question in cross-examination on this

Criminal Appeal No. 701 of 2012 with Ors. Page 24 of 48

aspect.  Learned senior counsel for the appellant has sought to

take some mileage by raising the plea that though PW-18 had

identified A-13 in TIP conducted on December 14, 2006 but in the

Court, he did not identify him.  However, what is ignored in the

process that he had turned hostile during the trial and this fact is

discussed by the High Court in the following manner:

“35.   P.W.  18,  likewise  deposing  one  year  later  was consistent with P.W. 17 on the narration of abduction and  mobile  conversation  at  9  P.M.  He  confirmed showing the Police the place of abduction and the place of  confinement  before release.  The witness identified the rifle used during abduction and identified the Bolero by its velvet coloured seat as also one of the accused Birbal  Chaudhary in T.I.P.  but went hostile during the identification of  the appellant in trial  concerned of his own  safety  as  very  apparent  from  his  statement  at paragraph 13 of his crossexamination.”

28) In the aforesaid circumstance, much credence cannot be given to

the  conduct  of  PW-18  refusing  to  identify  A-13  in  the  Court.

During TIP, he had identified and this TIP was conducted in the

presence  of  Metropolitan  Magistrate  (PW-9)  who  categorically

deposed to the aforesaid effect.  That apart, sufficient evidence is

produced in the form of statement of PW-17 (who is held to be

trust-worthy by both the courts below) that he was kept in the

house  of  A-13.   Specific  discussion  qua  this  appellant  in  the

judgment of the High Court runs as under:

“58.  The  appellant  Birbal  Chaudhary  has  been convicted under Section 364 A/ 34 and 395 of  I.P.C.

Criminal Appeal No. 701 of 2012 with Ors. Page 25 of 48

and sentenced to R.I. For life and ten years under the latter. He has been identified in the T.I.P. by P.W. 18. It has to be remembered that the witness was a driver earning his livelihood in the employment of P.W. 5, 17 & 20.  His  interest  in  identification  of  the  accused  was obviously limited and he was clearly worried of his own safety when he may not remain in the employment of aforesaid witnesses. The appellant was identified as the Mukhiya of village Ganjbharsara, where the victims had been kept on the night of 22.11.2006 before they were moved to village Dilhua. P.W. 17 on 22.11.2007 stated in Court while recognizing other accused present in the dock that Mukhiya Ji was not present in Court. This is nothing but a positive identification of the accused by affirmance  of  the  witness  that  he  recognizes  the physical features of the accused. He clearly states that they  were  kept  in  the  house  of  Mukhiya  of  village Ganjbharsara.  From  the  deposition  of  P.W.  18,  it  is apparent that despite having recognized the appellant during T.I.P. he prefers to play safe in Court by again stating that he never recognized any body and that he does not do so today also. The house of the appellant was one of the places of confinement shown by P.W. 18 to P.W. 8,  the first investigating officer,  as one of  the places of confinement where the victims were moved in the evening on the second day before he was released at night. The witness had stated during T.I.P. that the appellant was the person who had pulled him from the Gypsy  and  pushed  him  into  the  Bolero.  This  clearly tallies  with  the  evidence of  P.W.  17,  who stated that P.W. 18 was pulled out from the Gypsy and pushed into the  Bolero.  Clearly  worried  for  his  own  safety,  the witness did not identify the appellant on 11.12.2006 in T.I.P.  P.W.17  has  stated  in  his  deposition  of  the nocturnal knocks on his door after the trail started. But only after P.W.18 appears to have been assured of his own  safety  that  he  mustered  courage  again,  filed  a fresh  application  and  identified  the  appellant  barely three days later on 14.12.2006. It is not the case of the appellant that the witness had the opportunity to see him between 11.12.2006 to 14.12.2006. The appellant preferred Cr. Revision no.2 of 2007 against the same before  the  Sessions  Judge,  Buxar  and  which  was dismissed on 16.1.2008. The appellant did not question the  dismissal  bringing  the  matter  to  a  finality.  The emphasis of the appellant on the dispute in his identity when P.W.  18 describes him of  wheatish complexion

Criminal Appeal No. 701 of 2012 with Ors. Page 26 of 48

and  P.W.  17  describes  him  as  fair  cannot  be  given much credence. There is not much difference between fair and wheatish Indian skin as distinct from European skin. P.Ws. 8, 17, 18 & 19 had consistently stated that the  victims  having  been  kept  in  the  house  of  the appellant,  not  disputed by the appellant  in  his  cross- examination, when in his petitions under section 317 of the  Criminal  Procedure  Code  on  several  dates describes himself as 'Mukhiya'. His involvement in the abduction  and  confinement,  therefore,  stands established.”  

29) After  going  through  the  records  and  depositions  of  material

witnesses,  specifically  keeping  in  mind  the  arguments  of  Mr.

Basant, we do not find any reason to deviate from the aforesaid

conclusion  arrived  at  by  the  High  Court.   We  agree  that

involvement  of  Birbal  Choudhary  in  the  abduction  and

confinement of the victims stands fully established.

30) As far as demand for ransom is concerned, it has to be kept in

mind  that  on  the  very  first  day,  when informant  submitted  his

written report on the basis of which FIR was registered, he had

categorically mentioned that he was convinced that the abduction

was for ransom.  Another aspect which is highlighted by the High

Court is that out of three persons abducted, the Driver (PW-18)

was released on the very next day whereas others were kept in

the captivity for  52 days.   This different  treatment accorded to

these victims is captured and highlighted by the High Court in the

Criminal Appeal No. 701 of 2012 with Ors. Page 27 of 48

following manner:

“30.  P.W. 17, 18 & 20 were the victims of abduction. P.W. 17 and 20, businessmen and relatives of the informant, were released from  captivity after 52 days on 11.1.2007., while P.W. 18, the driver was released on the next day of abduction at night. The distinction is too apparent. P.W. 18 was not worth the abduction for ransom.”

31) It  has also come on record that Exhibit-8 dated November 27,

2007 is the letter written by PW-17 during confinement signed by

PW-20 also asking PW-5 to pay the ransom amount and secure

their  release. The demand for ransom stands established from

the  conversation  between  PW-5,  when  the  accused  Jawahar

Koiry  and  Suresh  Koiry  identified  themselves  calling  from  the

mobile phone number 9430029994, sent to establish contact with

the abductors and made the demand for a ransom of Rs. 50 lakhs

and further stated that they were sending the ring of PW-17 and a

letter from them (Exhibit-8) in proof of their confinement to claim

ransom.  Exhibit-8 stated that PW-5 should at the earliest arrange

to have them released.  The mobile forensic evidence brought on

record  during  investigation  by  necessary  reports  from  the

telephone authorities in the manner provided for in Section 63(b)

of  the  Indian  Evidence  Act,  1872  of  the  conversation  on

November 28, 2006 of a call  made from the aforesaid number

shows that a call was made from it on mobile no. 9934848065 of

Criminal Appeal No. 701 of 2012 with Ors. Page 28 of 48

PW-21,  clearly  proves  that  a  demand  for  ransom was  in  fact

made.  Even otherwise, it is not the defence of the appellants that

there existed any enmity between the victims and the appellants

for false implication. Once the abduction has been established,

surely  the abductors did not  do so in  such planned organized

manner  with  smooth flawlessness discussed,  to  play  hide and

seek games or only to scare the victims out of a business dispute

or for any other reason to force them to desist from a particular

course of action.  An act of abduction in the present manner is the

result of meticulous planning of the logistics with separate roles

assigned  to  the  individual  players.  The  demand  for  ransom,

therefore, clearly stands established. That it was actually paid or

not is irrelevant.

32) Section 364A reads as under:

"Whoever  kidnaps or  abducts  any person or  keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt  or  death to  such person in order  to  compel  the Government or (any foreign State or international inter- governmental organization or any other person) to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."   

33) In Malleshi v. State of Karnataka2, this Court has laid down the

2 (2004) 8 SCC 95

Criminal Appeal No. 701 of 2012 with Ors. Page 29 of 48

ingredients  which  need  to  be  satisfied  for  establishing

commission of crime under Section 364A.  It is held that:

“To  attract  the  provisions  of  Section  364-A  what  is required to be proved is:  

(1) that the accused kidnapped or abducted the person;  

(2) kept him under detention after such kidnapping and abduction; and  

(3) that the kidnapping or abduction was for ransom.”  

34) Insofar as ingredient of kidnapping for ransom is concerned, the

Court provided the following guidelines:

“Ultimately the question to be decided is "what was the intention? Was it demand of ransom?" There can be no definite manner in which demand is to be made. Who pays the ransom is not the determinative fact.”

35) Insofar as kidnapping is concerned, there is no serious dispute

about the same.  We find that the demand for ransom has been

duly proved by the prosecution.

36) Even the last argument of Mr. Basant lacks merit.  It is to be kept

in mind that the Sessions Court had sentenced the appellant for

life for conviction under Sections 364A/34 IPC.  It has been held

by this Court in  Swamy Shraddananda (2) @ Murali Manohar

Mishra v.  State of Karnataka3 that imprisonment for life would

mean full life and not sentence of 14 years which may be grossly

3 (2008) 13 SCC 767

Criminal Appeal No. 701 of 2012 with Ors. Page 30 of 48

disproportionate or inadequate and cannot be called as sentence

of life.  After specifically taking note of this judgment, the High

Court felt it appropriate to award the punishment of imprisonment

for 20 years.  It was done not only in the case of the appellant or

others who were awarded life imprisonment by the trial court but

even two other convicts who were given death sentence, their

sentence is also reduced to 20 years RI.  It is, therefore, clear

that  the  High  Court  while  modifying  the  sentence  qua  the

appellant Birbal, in fact, reduced the same from life imprisonment

to 20 years RI.  Therefore, the question of giving any notice under

Section 401 Cr.P.C. did not arise.  The judgment of this Court in

Vikas Yadav’s case is of no help to the appellant.  In that case,

the main issue was of remission of life sentence and observations

in para 39 were made in that context.  Otherwise, facts of that

case  would  reveal  that  life  imprisonment  by  the  trial  court

converted to minimum non-remittable fixed term of 25 years by

the High Court  was held to be appropriate in the facts of  that

case.  We may mention that the Constitution Bench judgment of

this Court in Muthuramalingam & Ors. v. State represented by

Inspector  of  Police4 has  approved  the  view  taken  in  Swami

Shraddananda’s case that life imprisonment would be treated as

4 (2016) 8 SCC 313

Criminal Appeal No. 701 of 2012 with Ors. Page 31 of 48

imprisonment for full life.  The issue which fell for consideration

was altogether different.    

37) Insofar as the argument of Mr. Basant, learned senior counsel for

the appellant predicated on re-examination of PW-1 to PW-6 after

consolidation of chargesheet is concerned, we find that this step

was rather taken in the interest of the appellant.  Appellant was

not named in the first chargesheet and at the time when PW-1 to

PW-6  were  examined  in  the  first  chargesheet,  obviously,  the

appellant  was  not  present.  It  is  for  this  reason  that  these

witnesses were examined again and the appellant was given full

opportunity  to  cross-examine  them.   We  do  not  find  that  any

prejudice is caused to the appellant by referring to the deposition

of these witnesses when examined in the first instance inasmuch

as  their  deposition  on  both  the  occasions  have  remained  the

same.  Therefore, we do not find any merit in this argument also.

38) As a consequence, we dismiss the Criminal Appeal No. 701 of

2012.

CRIMINAL APPEAL NO. 702 OF 2012

39) This appeal is filed by Shyam Bihari Paswan (A-6) who has also

been convicted under Section 364A read with Section 34 IPC as

Criminal Appeal No. 701 of 2012 with Ors. Page 32 of 48

well as Section 395 IPC.  Mr. Upadhyay arguing for A-6 submitted

that he has been convicted relying upon the testimony of PW-17

whereas the Driver (PW-18) had deposed to the contrary.   He

also submitted that  insofar as PW-20 is concerned, he did not

name A-6.  He also questioned as to why only PW-17 called for

TIP, excluding PW-18 and PW-20.  He also submitted that PW-17

cannot be relied upon.  Much mileage were sought to be drawn

by the learned counsel on the basis of letter dated December 29,

2006 which was written by A-6 addressed to the Chief Judicial

Magistrate wherein he had alleged unlawful torture committed on

him while under judicial custody.   

40) There is no reason to disbelieve the testimony of PW-17 and we

do not agree with the contention of the learned counsel as far as

this aspect is concerned.  Having said so, it may be pointed out

that PW-17 has specifically identified A-6 in the TIP.  The High

Court has considered this TIP to be without blemish and role of

A-6 has been considered in the following manner:

“56.  The Appellant has been convicted under Section 364 A / 34 and 395 I.P.C and sentenced to R.I. for life and ten years under the latter. P.W. 17 in his evidence has stated that when their vehicle was intercepted one of the abductors who got off the motorcycle and pushed P.W. 18 from the Gypsy into the Bolero had a mole on his  cheek.  In  like  manner,  as  the  appellants  Krishna Bihari Singh and Jawahar Koery, P.W. 17 identified this appellant  in  the  test  identification  parade  held  on

Criminal Appeal No. 701 of 2012 with Ors. Page 33 of 48

5.2.2007.  The  appellant  surrendered  on  18.12.2006 and was in Police custody on remand from 19.12.2006 to  26.12.2006.  P.W.  17  and  20  were  released  on 11.1.2007.  The arguments that  the witness therefore, had opportunity to see the accused, whose photograph was  taken  and  he  was  moved  around  for  which  he wrote to the Human Rights Commission etc.  is of no relevance as on facts, this Court is satisfied that there has  been  no  delay  in  the  T.I.P.  So  as  to  vitiate  the same. The argument of alleged illegality in the T.I.P. is of no avail and only an ingenuity in this appeal as no such questions were put in cross-examination to P.W. 9, the Magistrate,  who conducted the T.I.P.  The witness named  the  appellant  as  one  of  the  four  accused present in the dock on 27.11.2007, when he stated that he  did  not  identify  other  persons  present,  making  a clear distinction.”

41) It would be interesting to mention at this stage, that insofar as

conviction under Section 395 IPC is concerned, no counsel had

even questioned the same as no argument is advanced in that

behalf.  Section 395 IPC pertains to punishment for dacoity.  This

provision was invoked as the abductors who were more than five

in  numbers  had  robbed  the  abductees  of  the  money  in  their

possession.  This itself  is sufficient to confirm the abduction of

PWs-17, 18 and 20.  It is also important to note that PW-19, who

was Investigating Officer (IO) in this case, has narrated in detail

the manner in which he conducted the investigation which shows

that it  is  during the course of  investigation,  names of  accused

persons kept surfacing and investigation proceeded accordingly.

Insofar as deposition of PW-18 is concerned, we have already

Criminal Appeal No. 701 of 2012 with Ors. Page 34 of 48

dealt with the same while considering Criminal Appeal No. 701 of

2012 who had turned hostile fearing his own safety.  At the cost of

repetition, we may point out that though PW-18 had deposed to

the contrary to what statement  under  Section 161 Cr.P.C.  was

recorded.  Further, within three days of his deposition in the court,

he mustered courage when he was assured of his safety and has

filed a fresh application and identified the accused persons.  This

aspect  is  highlighted by the High Court  while  dealing with the

case of Birbal Choudhary and the said portion has already been

extracted above.  In Suman Sood @ Kawaljeet Kaur v. State of

Rajasthan5, importance of identification parade, as a substantive

piece of evidence, was accorded in the following manner:

“59.  In A.I.R. 2007 Supreme Court 2774 (Suman Sood @  Kawaljeet  Kaur  versus  State  of  Rajasthan)  the conviction was under Section 364 A of the Penal Code. It was held in paragraph 41 as follows : “41. Regarding identification  of  accused,  both  the  courts  have considered the evidence of prosecution witnesses and recorded  a  finding  that  identity  of  the  accused  was established beyond doubt.  We are also satisfied that evidence of PW 9, victim Rajendra Mirdha was natural and inspired confidence. His evidence established that he was kidnapped in the morning of February 17, 1995 and he remained with the kidnappers up to the date of encounter  on  February  25,  1995,  i.e.  for  eight-nine days. Obviously, therefore, his evidence was of extreme importance. It was believed by both the courts and we see nothing wrong in the approach of the courts below. It is true and admitted by the prosecution witnesses that the  photographs  of  the  accused  were  shown  on television as also were published in newspapers. That, however,  does  not  in  any  way  adversely  affect  the

5 AIR 2007 SC 2774

Criminal Appeal No. 701 of 2012 with Ors. Page 35 of 48

prosecution,  if  otherwise  the  evidence of  prosecution witnesses is  reliable  and the  Court  is  satisfied as to identity  of  the  accused.  Even  that  ground,  therefore, cannot take the case of the appellants further. It is thus proved beyond doubt that the accused had committed offences punishable under Section 343 read with 120B, IPC as also under Section 346 read with 120B, IPC.”

42) This legal position was reiterated in Mahabir v. State of Delhi6 in

the following words:

“12. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well  settled by a catena of decisions of this Court.  The  facts,  which  establish  the  identity  of  the accused persons, are relevant under Section 9 of the Evidence  Act.  As  a  general  rule,  the  substantive evidence of a witness is the statement made in Court. The  evidence  of  mere  identification  of  the  accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification,  therefore,  is  to  test  and strengthen the trustworthiness  of  that  evidence.  It  is  accordingly considered a safe rule of prudence to generally look for corroboration  of  the  sworn  testimony  of  witnesses  in Court  as  to  the  identity  of  the  accused  who  are strangers to them, in the form of earlier  identification proceedings. This rule of prudence, however, is subject to  exceptions,  when,  for  example,  the  Court  is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification  parades  belong  to  the  stage  of investigation,  and  there  is  no  provision  in  the  Code which  obliges  the  investigating  agency  to  hold  or confers  a  right  upon  the  accused  to  claim,  a  test identification parade. They do not constitute substantive evidence and these parades are essentially governed by  Section  162  of  the  Code.  Failure  to  hold  a  test identification parade would not make inadmissible the evidence  of  identification  in  Court.  The  weight  to  be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept

6 AIR 2008 SC 2343

Criminal Appeal No. 701 of 2012 with Ors. Page 36 of 48

the evidence of identification even without insisting on corroboration.  (See  Kanta  Prashad  v.  Delhi Administration  (AIR  1958  SC  350),  Vaikuntam Chandrappa  and  others  v.  State  of  Andhra  Pradesh (AIR 1960 SC 1340), Budhsen and another V. State of U.P.  (AIR  1970  SC  1321)  and  Rameshwar  Singh  v. State of Jammu and Kashmir (AIR 1972 SC 102).”

43) We may point out that Mr. Dash, learned senior counsel for the

informant had argued to the effect that TIP was not necessary in

this case by referring to the judgments in Motilal Yadav v. State

of Bihar7,  Ronny alias Ronald James Alwaris & Ors. v.  State

of Maharashtra8  and Suresh Chandra Bahri & Ors. v. State of

Bihar9.  However, it is not necessary to deal with this aspect once

we find that TIP conducted in the present case has been correctly

relied upon.

44) Thus, this appeal also stands dismissed.

CRIMINAL APPEAL NOS. 705-706 OF 2012

45) Criminal Appeal No. 705 of 2012 is filed by  Ramashraya Koiry

(A-14)  and  Criminal  Appeal  No.  706  of  2012  is  filed  by  four

convicted persons, namely, Rambriksha Koiry (A-7), Hirdayanand

Koiry (A-10), Mangala Singh (A-11) and Saroj Singh (A-12).  It

was submitted that insofar as these persons are concerned, they

were not named by either PW-17 or PW-18 or PW-20 and in their 7 (2015) 2 SCC 647 8 (1998) 3 SCC 625 9 1995 Supp (1) SCC 80

Criminal Appeal No. 701 of 2012 with Ors. Page 37 of 48

cases, no TIP was conducted and they were not identified in the

Court as well by the witnesses.  The only allegation against them

was that they had fed the victim at the time of arrest.  

46) However, what is to be kept in mind is that these persons are

convicted with the aid of Section 34 IPC as well.  With regard to

these appellants, the High Court has affirmed their sentence in

the following manner:

“67.  The  appellants  Ram Briksh  Koery,  Hirday  Koery Mangla Singh and Saroj Singh have been acquitted of the charge under 395 I.P.C. but convicted under section 364 A /  34 I.P.C. And sentenced to R.I.  For life.  The appellants have been arrested on 10.12.2006 from the house of appellant Jawahar Koery. P.W. 19, who carried out the raid stated that the appellants attempted to flee on seeing  the  Police.  They  are  stated  to  have been providing logistic support to the accused. That they may not have been put on T.I.P. Or identified in the dock is not relevant as they were taken into custody contiguous with the continued confinement of the victims from the house  of  an  accused  positively  involved  proved  by cogent and convincing evidence, when their conviction is  with  the  aid  of  section  34  I.P.C.  of  aiding  the aforesaid  accused,  and  mere  presence  shall  suffice without  need  for  proof  of  any  positive  overt  act  in furtherance. Clearly they were persons looking after the appellants  and  the  victims  by  preparing  food  and otherwise looking after their well being. In a operation of  the  present  nature  it  needs  no  discussion  that several players are involved with their respective roles assigned to them as it is not possible for an individual to commit the acts in question singlehandedly with the smoothness of execution presently noticed.  

68. The appellants Ramashraya Koery and Ram Darash Koery  of  village  Dilhua  have  been  convicted  under section 364 A / 34 I.P.C. and sentenced to R.I. for life. They have neither been put on T.I.P. nor identified by P.W. 17, 18 or 20. The evidence against  them in the

Criminal Appeal No. 701 of 2012 with Ors. Page 38 of 48

confession of accused Shyam Bihari Paswan is that the victims were kept in their house at village Dilhua. This part of the confession by itself shall not be sufficient for the  conviction  of  the  appellants.  But  when  it  is corroborated by the evidence of  P.W.17 identifying to P.W.19 the house of the appellants as the place where they were kept  in  confinement  at  village Dilhua after being  moved  from  Ganjbharsara  on  the  night  of 22.11.2006.  the  weak  evidence  against  them  gets fortified fully to justify their conviction.”

 47) It was sought to argue that aid of Section 34 was wrongly taken in

the instant  case and in  support,  learned counsel  refers  to  the

case of Mohan Singh & Anr. v. State of Punjab10,  wherein it was

held:

“13. That  inevitably  takes  us  to  the  question  as  to whether the appellants can be convicted under Section 302/34. Like Section 149,  Section 34 also deals with cases of  constructive criminal  liability.  It  provides that where  a  criminal  act  is  done  by  several  persons  in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 is  the existence of  common intention.  If  the common intention in question animates the accused persons and if the said common intention leads to the commission of the  criminal  offence  charged,  each  of  the  persons sharing the common intention is constructively liable for the  criminal  act  done  by  one  of  them.  Just  as  the combination  of  persons  sharing  the  same  common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two sections are similar and  in  some  cases  they  may  overlap.  But, nevertheless, the common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common  intention  denotes  action-in-concert  and necessarily postulates the existence of a prearranged

10 AIR 1963 SC 174

Criminal Appeal No. 701 of 2012 with Ors. Page 39 of 48

plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different;  may vary in their  character,  but they are all actuated by the same common intention. It is now well- settled that the common intention required by Section 34  is  different  from  the  same  intention  or  similar intention. As has been observed by the Privy Council in Mahbub Shah v. King-Emperor [72 IA 148]  common intention  within  the  meaning  of  Section  34  implies  a pre-arranged plan,  and to  convict  the accused of  an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged  plan  and  that  the  inference  of  common intention  should  never  be  reached  unless  it  is  a necessary inference deducible from the circumstances of the case.”   

48) He also took support of Chittarmal & Anr. v. State of Rajasthan11

and relied upon para 14 thereof, which is as under:

“14. It  is  well  settled  by  a  catena  of  decisions  that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for  acts  of  others.  Both  the  sections  deal  with combinations  of  persons  who become punishable  as sharers  in  an  offence.  Thus  they  have  a  certain resemblance and may to some extent  overlap. But  a clear distinction is made out between common intention and common object in that common intention denotes action  in  concert  and  necessarily  postulates  the existence  of  a  prearranged  plan  implying  a  prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert.  Though  there  is  a  substantial  difference between  the  two  sections,  they  also  to  some extent overlap and it  is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if  several  persons numbering five or more, do an act and intend to do it,  both Section 34 and Section 149 may apply. If the common object does not necessarily involve  a  common  intention,  then  the  substitution  of

11 (2003) 2 SCC 266

Criminal Appeal No. 701 of 2012 with Ors. Page 40 of 48

Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But  if  it  does  involve  a  common  intention  then  the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them  all.  (See Barendra  Kumar  Ghosh v. King Emperor [AIR 1925 PC 1 : 26 Cri  LJ 431] , Mannam Venkatadari v. State of A.P. [(1971) 3 SCC 254 : 1971 SCC  (Cri)  479  :  AIR  1971  SC  1467]  , Nethala Pothuraju v. State of A.P. [(1992) 1 SCC 49 : 1992 SCC (Cri) 20 : AIR 1991 SC 2214] and Ram Tahal v. State of U.P. [(1972) 1 SCC 136 : 1972 SCC (Cri) 80 : AIR 1972 SC 254] )”

49) There  cannot  be  any  quarrel  about  the  law  laid  down  in  the

aforesaid judgments where subtle distinction is  drawn between

Section  34  and  Section  149,  IPC  which  deal  with  ‘common

intention’ and ‘common object’ respectively.  At the same time, it

is also clarified that it would depend on the facts of each case as

to  whether  Section  34  or  Section  149  of  IPC  or  both  the

provisions are attracted.  It is also held that non-applicability of

Section  149  IPC is  no  bar  in  convicting  the  accused persons

under  Section  302  IPC  read  with  Section  34  of  IPC,  if  the

evidence  discloses  commission  of  offence  in  furtherance  of

common intention of them all.  From the facts of the present case,

we are satisfied that the courts below have rightly concluded that

there  was  a  common  intention  in  committing  the  offence  of

Criminal Appeal No. 701 of 2012 with Ors. Page 41 of 48

kidnapping for ransom, by all the convicted persons.

50) Qua  A-14,  it  was  additionally  submitted  that  PW-17  did  not

identify any particular house.  However, it  has come on record

that accused Shyam Bihari Paswan in his confessional statement

had stated that victims were kept in their house at Village Dilhua

which is given credence by the High Court for the reason that it is

corroborated by evidence of PW-17 who had identified the house

of A-14.  Therefore, the argument that no particular house was

identified is not correct.   

51) As a consequence, these appeals are also dismissed.

CRIMINAL APPEAL NO. 708 OF 2012

52) This appeal is filed by Angad Koiry (A-9).  Allegation against him

is that he was part of the team which had kidnapped the victims.

He was identified in TIP as well as in Court.  These aspects were

fairly  admitted  by  the  learned  counsel.   However,  his  only

contention was that  there was no reason to convict him under

Section 364A IPC and his  conviction should  have been under

Section  364  IPC.   In  this  behalf,  submission  was  that  after

kidnapping,  no  role  is  assigned  to  him  and,  therefore,  the

allegations of ransom cannot be attributed to A-9.  

Criminal Appeal No. 701 of 2012 with Ors. Page 42 of 48

53) Once we find that  role of  A-9 in  kidnapping the three persons

stands  established  beyond  any  doubt  and  it  also  stands

established  that  kidnapping  was  for  the  ransom  which  was

actually demanded and there was a common intention behind the

aforesaid acts, A-9 is rightly convicted under Section 364A IPC.

Resultantly,  Criminal  Appeal  No.  708  of  2012  is  dismissed as

well.

CRIMINAL APPEAL NO. 707 OF 2012

54) This appeal is filed by A-1 Krishna Bihari Singh @ Krishna Singh.

As far as A-1 is concerned, he is also one of those who was a

part of team which abducted PWs-17, 18 and 20.  Our purpose

would be served by reproducing the discussion  qua  him in the

impugned  judgment  of  the  High  Court,  as  during  arguments,

learned counsel appearing for this appellant could not make any

single argument worthy of any consideration:

“52. The Appellant stands convicted under Section 364 A / 34,395 and 412 I.P.C. and sentenced to death. P.W. 17 states,  after  the abductors  intercepted the Gypsy, the person driving the Bolero stepped out  carrying a rifle  and  who  was  addressed  by  his  accomplices  as “Babu Saheb.” The accused referred to as “Verma ji” by his  accomplices  took  out  two  packets  of  money wrapped  in  a  27  news  paper  and  handed  it  to  the person  driving  the  Bolero  who  then  drove  away  at about  9  P.M.  On  the  7th  day  of  the  abduction,  the person driving the Bolero possessed with  a  rifle  had come on a motorcycle along with accused who had a

Criminal Appeal No. 701 of 2012 with Ors. Page 43 of 48

mole on his face ( accused Shyam Bihari Paswan ) that his house had been raided, family members arrested, and the Bolero vehicle, money and his rifle seized. The victims were abducted at 4 P.M. and remained with him in the Bolero till  9 P.M. They therefore had adequate opportunity to see the accused and it can safely be said that their picture got etched or imprinted in the minds of the  victim in  the  confines  of  the  car  during  this  five hours. The witness further stated that the accused did not have their faces covered during the incident. P.W. 17  identified  this  appellant  in  the  dock  by  his identification  of  “Babu  Saheb”,  referred  during abduction  by  his  accomplices.  The  accused  then disclosed his name as Krishna Bihari Singh.This was a perfectly natural and reliable identification being made by P.W. 17 when he was vividly reliving the abduction drama in his mind by a photographic regeneration. That the appellant was not put on T.I.P. but was identified in the dock for the first time 10 months after release from abduction is of no relevance in the facts of the present case. Likewise, the absence of his identification by P.W. 18 or 20 is also not material to the prosecution case as it is not the number of witnesses but the issue of the credibility  of  the  sole  witness,  in  which  lies  the  test. T.I.P., is more appropriate where the victim may have had only a glimpse of the unknown accused and there may be no particular  reasons to  remember him.  The T.I.P. of such an accused has been considered proper only as an aid that the investigation was proceeding in the  28  right  direction.  Such  identification  is  not substantive evidence in itself but is only corroborative. In the facts of the case as discussed above, this Court finds  no  infirmity  in  the  first  identification  of  the appellant in the dock. The Bolero vehicle used in the abduction  was  recovered  from  the  house  of  the appellant.  Whether  it  was  recovered  from  the boundaries of  his  premises or  parked on the road in front of his house with houses on both sides of the road is hardly relevant and does not make out a defence of lack of his ownership of the same. Both P.W. 17 & 18 in their evidence have clearly identified the silver coloured Bolero by its red colour velvet seat cover in the Court and  test  identification  parade  respectively.  The  two packets of cash wrapped in the news paper given to the appellant  by  his  accomplices  while  parting  ways containing  a  total  of  one  lac  fifty  thousand  with  the words 'Ansari Nuao' written on it, was the money given

Criminal Appeal No. 701 of 2012 with Ors. Page 44 of 48

by P.W. 4 to P.W. 17 kept in the black bag by P.W. 18. It has  been  stated  by  P.W.  17,  that  the  money  was wrapped in news paper before handing it over to P.W. 18 who then kept it in the black bag. The appellant in his  statements  under  section  313  Cr.P.C.  first  stated that it was money withdrawn on the credit card in the name of his wife, and later stated that it was his income from  his  Chimni  business.  His  bank  pass  book produced in defence did not show withdrawals of the nature claimed during the period in question to justify his claim for source of the money. The vacillating stand of the appellant himself leaves this Court satisfied that he was not  telling the truth.  Both P.W. 17 & 18 also recognized the rifle carried by the appellant based on the features of the rifle narrated by them in the T.I.P. and in the Court respectively. This seizure was affected from the house 29 of the appellant and turned out to be a licensed weapon in his name. Last but not the least, the Bolero turned out to be a stolen vehicle from Uttar Pradesh bearing a fake registration number originally allotted  to  a  two  wheeler.  Events  that  speak  for themselves  about  the  dispensation  of  the  appellant. This  Court,  therefore,  holds  in  light  of  the  aforesaid discussion  that  the  identification  and involvements  of the appellant in the abduction and confinement clearly stands proved. The recovery of the aforesaid items by the  Police  on  information  furnished  to  it  during investigation,  identified  in  the  T.I.P.  was  evidence admissible under Section 27 of the Evidence Act.”

 55) As a consequence, this appeal stands dismissed.

CRIMINAL APPEAL NO. 1858 OF 2013

56) Harbanse  Ram  (A-8)  is  the  appellant  in  this  appeal.   He  is

convicted under Section 364A/34 IPC and was acquitted of the

charge under Section 412 IPC.  His lawyer argued that his name

was not mentioned in the first chargesheet.  Further, as far as A-8

is concerned, charges were framed only under Section 368 and

Criminal Appeal No. 701 of 2012 with Ors. Page 45 of 48

412 IPC and,  therefore,  his  conviction  under  Section  364A/34

was legally not tenable.

57) As far as argument of the counsel that the name of A-8 was not

mentioned in the chargesheet, as already pointed out above, the

IO  (PW-19)  has  explained  in  detail  that  during  the  course  of

investigation,  names  of  these  accused  persons  kept  surfacing

and investigation has been proceeded accordingly.  It is, for this

reason,  that  second  chargesheet  was  filed  implicating  other

persons  including  A-8.   Interestingly,  no  such  argument  was

advanced in the High Court.

58) Insofar as absence of charge under Section 364A is concerned,

that may not make the things better for this appellant in view of

the fact that he was specifically charged under Section 368 IPC

which is to the following effect:

“Whoever,  knowing  that  any  person  has  been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner  as  if  he  had  kidnapped  or  abducted  such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.”

 59) This provision makes it clear that even a person who wrongfully

conceals or confines a kidnapped person knowing that  he has

been kidnapped suffers the same consequences at par with the

Criminal Appeal No. 701 of 2012 with Ors. Page 46 of 48

person who had kidnapped or abducted the person with the same

intention or knowledge or for the same purpose.  In the statement

of accusations under Section 313 Cr.P.C., it was categorically put

to  him  that  allegation  against  him  was  of  having  kept  the

kidnapped persons in confinement knowing that they had been

kidnapped.  Thus, specific case set up by the prosecution against

A-8 was that  he had kept  the victims in  confinement  with  the

knowledge that they were kidnapped.  Thus, ingredient of Section

368 IPC has been established against him.  Once that has been

proved, consequences of Section 364A IPC, for which other co-

accused  persons  were  found  convicted,  shall  stand  attracted.

Section 368 IPC puts the offence prescribed therein at par with

Section 364A by raising a statutory presumption based on a legal

fiction of the former being a deemed offence under the latter, if

evidence be there.  In Suman  Sood’s case, this legal principle is

laid down in the following manner:

“60. Kidnapping for ransom is an offence of unlawfully seizing a person and then confining the person usually in  a  secret  place,  while  attempting to  extort  ransom. This grave crime is sometimes made a capital offence. In addition to the abductor a person who acts as a go between to collect the ransom is generally considered guilty of the crime.”

 60) That apart, learned counsel for the respondent rightly contended

that Section 464 of the Cr.P.C. provides that no sentence by a

Criminal Appeal No. 701 of 2012 with Ors. Page 47 of 48

Court of competent jurisdiction would be deemed invalid on the

ground  that  no  charge  was  framed  or  any  irregularity  in  the

charge or misjoinder of the charges, unless the Court comes to

the conclusion that a failure of justice had occasioned thereby.  In

the present case, no such prejudice has been caused to A-8 who

knew the ingredients of charge that were levelled against him.

61) Thus, finding no merit in this appeal, Criminal Appeal No. 1858 of

2013 is also dismissed.   

CRIMINAL APPEAL NOS. 703-704 OF 2012

62) Nobody argued these appeals.  In any case, we have examined

the matter in the context of these appeals as well and do not find

any error in the judgment of the Courts below convicting these

appellants.  Therefore, we dismiss these appeals as well.

63) In  fine,  all  the  appeals  are  dismissed  thereby  confirming  the

conviction and sentence passed by the High Court.

.............................................J. (A.K. SIKRI)

.............................................J. (R. K. AGRAWAL)

NEW DELHI; OCTOBER 6, 2017

Criminal Appeal No. 701 of 2012 with Ors. Page 48 of 48