# 13 S.C.R. 48 BIRBAL CHOUDHARY@ MUKHIYA JEE v. STATE OF BIHAR - **Citation:** [2017] 13 S.C.R. 48 - **Court:** Supreme Court of India - **Decided:** 2017-10-06 - **Case number:** Criminal Appeal No. 701 of2012 - **Bench:** A. K. Sikri, R. K. Agrawal - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-s-c-r-48-birbal-choudhary-mukhiya-jee-v-state-of-bihar-31925 - **Pages:** 37 ## Headnote Pena.I code. 1860: ss. 364Al34, 395 and 412 - Prosecution under - Of appellants-accused - Conviction by trial court based on the testimonies of witnesses, Tl Parade and recoveries from the accused - Two appellants-accused in view of their criminal antecedents sentenced to deqth and remaining appellants-accused sentenced to life imprisonment - High Court confirmed the conviction - However. death sentence as well as life sentence were reduced to 20 years RI - On appeal,hel/:/: Prosecution has duly proved its case against the appel/ants-accu$ed - Conviction and sentence justified. ss. 364A and 368 - Offence under - Nature of - Held: s. 368 puts the offence prescribed therein at par with s. 364A by raising a statutory presuff/ption based on a legal fiction of the former being a deemed offence under the latter. if evidence be there. Sentence/Sentencing: Life sentence - Life sentence means imprisonment of full life and not sentence for 14 years. F Code of Criminal Procedure, 1973: s. 401 - Notice under - Requirement of - Before enhancing the sentence - Held: Modification of life sentence to 20 years imprisonment dbes not require notice under s. 401 - Modification of life sentence to 20 years imprisonment is in fact reduction of G sentence and not enhancement as life sentence means sentence for full life. H s. 464 - E.ffect of omission to frame, irregularity in the charge or misjoinder of the charges - Held: No sentence by a court of competent jurisdiction would be deemed invalid on the ground that 48 BIRBAL CHOUDHARY @ MUKHIYA JEE v. STATE OF BIHAR 49 no charge was framed or any irregularity in the charge or misjoinder A of the charges, unless the court comes to the conclusion that a failure of justice had occasioned thereby. Dismissing the appeals, the Court HELD: 1.1 Involvement of A-13 in the abduction and confinement of the victims stands fully established. Evidence B 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. PW-17, though did not participate in TIP but in the Court, he made a categorical statement that though c other accused persons were present in the Court he did not find A-13 in the Court. This shows that PW-17 could identify him and when he found that he was not present in the Court on that day, he specifically stated to this effect. PW-17 again when appeared in the Court, duly identified A-13 and mentioned that he was kept in the house of A-13 who was Mukhiya of Ganj Bharsara. Taking D 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 aspect. PW-18 had identified A-13 in TIP, but in the Court, he did not identify him. Much credence cannot be given to the conduct of PW-18 refusing to identify E A-13 in the Court, in view of the fact that PW-18 had turned hostile. During TIP, he had identified A-13 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. (Paras 26-29] (67-F-H; 68-A-B, E; 70-A] 1.2 So far as demand for ransom is concerned, on the very first day, when informant submitted his written report on the basis of which FIR was registered, he had categorically mentioned that F he was convinced that the abduction was for ransom. Another G aspect 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. It has also come on record that Exhibit-8 (the letter written by PW-17 during confinement signed H 50 A B c D E F SUPREME COURT REPORTS [2017] 13 S.C.R. by PW-20) is also asking PW-5 to pay the ransom amount and se ## Text _Characters 0–39,958 of 87,878. This is a partial read: ask again with offset=39958 for what follows._ A B c D E [2017) 13 S.C.R. 48 BIRBAL CHOUDHARY@ MUKHIYA JEE v. STATE OF BIHAR (Criminal Appeal No. 701 of2012) OCTOBER 06, 2017 (A. K. SIKRI AND R. K. AGRAWAL, JJ.] Pena.I code. 1860: ss. 364Al34, 395 and 412 - Prosecution under - Of appellants-accused - Conviction by trial court based on the testimonies of witnesses, Tl Parade and recoveries from the accused - Two appellants-accused in view of their criminal antecedents sentenced to deqth and remaining appellants-accused sentenced to life imprisonment - High Court confirmed the conviction - However. death sentence as well as life sentence were reduced to 20 years RI - On appeal,hel/:/: Prosecution has duly proved its case against the appel/ants-accu$ed - Conviction and sentence justified. ss. 364A and 368 - Offence under - Nature of - Held: s. 368 puts the offence prescribed therein at par with s. 364A by raising a statutory presuff/ption based on a legal fiction of the former being a deemed offence under the latter. if evidence be there. Sentence/Sentencing: Life sentence - Life sentence means imprisonment of full life and not sentence for 14 years. F Code of Criminal Procedure, 1973: s. 401 - Notice under - Requirement of - Before enhancing the sentence - Held: Modification of life sentence to 20 years imprisonment dbes not require notice under s. 401 - Modification of life sentence to 20 years imprisonment is in fact reduction of G sentence and not enhancement as life sentence means sentence for full life. H s. 464 - E.ffect of omission to frame, irregularity in the charge or misjoinder of the charges - Held: No sentence by a court of competent jurisdiction would be deemed invalid on the ground that 48 BIRBAL CHOUDHARY @ MUKHIYA JEE v. STATE OF BIHAR 49 no charge was framed or any irregularity in the charge or misjoinder A of the charges, unless the court comes to the conclusion that a failure of justice had occasioned thereby. Dismissing the appeals, the Court HELD: 1.1 Involvement of A-13 in the abduction and confinement of the victims stands fully established. Evidence B 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. PW-17, though did not participate in TIP but in the Court, he made a categorical statement that though c other accused persons were present in the Court he did not find A-13 in the Court. This shows that PW-17 could identify him and when he found that he was not present in the Court on that day, he specifically stated to this effect. PW-17 again when appeared in the Court, duly identified A-13 and mentioned that he was kept in the house of A-13 who was Mukhiya of Ganj Bharsara. Taking D 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 aspect. PW-18 had identified A-13 in TIP, but in the Court, he did not identify him. Much credence cannot be given to the conduct of PW-18 refusing to identify E A-13 in the Court, in view of the fact that PW-18 had turned hostile. During TIP, he had identified A-13 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. (Paras 26-29] (67-F-H; 68-A-B, E; 70-A] 1.2 So far as demand for ransom is concerned, on the very first day, when informant submitted his written report on the basis of which FIR was registered, he had categorically mentioned that F he was convinced that the abduction was for ransom. Another G aspect 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. It has also come on record that Exhibit-8 (the letter written by PW-17 during confinement signed H 50 A B c D E F SUPREME COURT REPORTS [2017] 13 S.C.R. by PW-20) is also asking PW-5 to pay the ransom amount and secure their release. The demand for ransom stands established from the col)versation between PW-5, when two of the accused identified themselves calling from a mobile phone number, 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 confin~ment to claim ransom. Exhibit-8 stated that PW-5 should at the earliest arrange to have them released. The mobile forensic evill.encc brought on record during investigation by necessary r~ports from the telephone authorities in the manner provided for in Section 63(b) of the Evidence Act, 1872, clearly proves that a demand for ransom was in fact made. Even otherwise, i~ is not the defence of the. appellants that there existed any enmity between the victims and the appellants for false implication. 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. The demand for ransom has been duly proved by the prosecution. [Paras 30, 31 and 35] [70-B-C, E-H; 71-A-B; 72-A] Malle~hi v. State of Karnataka (2004) 8 SCC 95 : [2004] 4 Suppl. SCR 441 - relied on. l.3 R¢-examination of PW-1 to PW-6 after consolidation of chargesheet was taken in the interest of the appellant. Appellant was not named in the first chargcsheet and at the time when PW1 to PW-6 were examined in the first chargesheet, obviously, the appellant "1as not present. It is for this reason that these witnesses were examined again and the appellant was given full opportunity to cross-examine them. No prejudice is caused to the appellant by referring to the deposition of these witnesses when examined G in the first instance inasmuch as their deposition on both the occasions have remained the same. [Para 37] [72-G; 73-A] H 1.4 The trial court had sentenced the appellant for life for conviction under Sections 364A/34 IPC. Imprisonment for life would mean full life and not sentence of 14 years which may be grossly disproportionate or inadequate and cannot be called as BIRBAL CHOUDHARY@ MUKHIYA JEE v. STATE OF BIHAR 51 sentence of life. The High Court while modifying the sentence A qua the appellant A-13, 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. [Para 36) [72B-D) Swamy Shraddananda (2) @ Murali Manohar Mishra B v. State of Karnataka (2008) 13 SCC 767 : [2008) 11 SCR 93 - relied on. Vikas Yadav v. State of Uttar Pradesh & Ors. (2016) 9 SCC 541 : [2016) 8 SCR 872 - distinguished. Muthuramalingam & Ors. v. State represented by Inspector of Police (2016) 8 SCC 313 : [2016) 5 SCR 30 - followed. c 2. A-6 has also been convicted under Section 364A read with Section 34 IPC as well as Section 395 IPC. PW-17 has specifically identified A-6 in the TIP. The High Court has D considered this TIP to be without blemish. 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 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, he had turned hostile fearing his own safety. Though PW-18 had deposed to the contrary to what statement under Section 161 Cr.P.C. was recorded, within three days of his deposition in the court, he mustered courage when he was assured of his safety and filed a fresh application and identified the accused persons. [Paras 39, 40 and 41) [73-C, E; 74-D-F) Suman Sood @ Kawaljeet Kaur v. State of Rajasthan AIR 2007 SC 2774 : [2007) 6 SCR 499 ; Mahabir v. State of Delhi AIR 2008 SC 2343 : (2008) 6 SCR 361 - relied on. E F G H 52 SUPREME COURT REPORTS [2017) 13 S.C.R. A Motila/ ¥adav v. State of Bihar (2015) 2 SCC 647 ; Ronny alias Ronald James Alwaris & Ors. v. State of Maharashtra (1998) 3 SCC 625 : (1998] 2 SCR 162 ; Suresh Chandra Bahri & Ors. v. State of Bihar (1995) t Suppl. sec. 80 : [1994] t Suppl. SCR 483 - B referred to. 3. Plea was taken that A-14, A-10, A-ll and A-12 were not named by eith~r PW-17 or PW-18 or PW-20 and in their 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. These persons are C convicted with the aid of Section 34 IPC. It was sought to argue that aid of Section 34 was wrongly taken in the instant case. It would depend on the facts of each case as to whether Section 34 or Section 149 of IPC or both the provi,sions are attracted. Nonapplicability of Section 149 11,'C is no bar in convicting the accused D persons unden Section 302 IPC read with Section 34 of IPC, if the evidence discloses commission of offence in furtherance of common intention of them all. The courts below have rightly concluded tha~ there was a common intention in commi.tting the offence of kidnapping for ransom, by all the convicted persons. E Qua A-14, it was additionally submitted that PW-17 did not identify any particulan house. However, it has come on record th.at one of the accused in his confessional statement had stated that victims were kept in their house which is given credence by the High Court for the reason that it is corroborated by evidence of PW17 who had identified the house of A-14. Therefore, the argument F that no particular house was identified is not correct. [Paras 45, 46, 47, 49 anI. SCR 441 relied on Para 33 (20081 11 SCR 93 relied on Para 36 [20161 5 SCl.t 30 followed Para 36 [20071 6 SCl.t 499 relied on Para 41 120081 6 sen. 361 relied on Para 42 (2015) 2 sec 647 referred to Para 43 [19981 2 SCR 162 referred to Para43 (19941 1 Suppl. SCR 483 referred to Para 43 (1962) Suppl, SCR 848 referred to Para 47 [20031 1 SC~ 49 referred to Para 48 BIRBAL CHOUDHARY @ MUKHIYA JEE v. STATE OF BIHAR 55 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal A No. 701 of2012. From the Judgment and Order dated 30.03.2010 of the High Court of Judicature at Patna in Criminal Appeal (DB) No. 648 of 2008 WITH Criminal Appeal Nos. 702, 705-706, 708, 707 and 703-704 of2012 B AND Criminal Appeal No.1858 of2013. R. Basant, S. B. Upadhyay, Sr. Advs, Abbay Kumar, Himanshu, Vineet Kr. Singh, Bilal Khan, Santosh Mishra, Sujit Kumar Singh, Param c Kumar Mishra, Ms. Anisha Upadhyay, Nishant Kumar, Ms. Sharmila Upadhyay, Abhijat P. Medh, Nakul Dewan, C. George Thomas, Ms. Tanya Shree, Zain Maqbool, Ejaz Maqbool, Kumar Rajesh Singh, Ms. Punam Singh, Ms. Niranjana Singh, Gaurav Agrawal, Abhikalp Pratap Singh, T. Mahi pal, Advs.for the Appellants. D Ratnakar Dash, Sr. Adv., Akhilesh Kumar Pandey, Gopal Singh, Kumar Milind,.Abhinav Mukherji, Siddharth Garg, Ms. Bihu Sharma, Ms. Purnima Krishna, Advs. for the Respondent. The Judgment of the Court was delivered by A.K. SIKRI, J. l. The eleven appellants herein, out of the fifteen E persons who faced trial, are variously convicted under the provisions of the Indian Penal Code (!PC) for committing offences punishable under Sections 364A, 34, 395 and412 of the !PC, 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 aboveF 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 G 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. H 56 A B SUPREME COURT REPORTS [2017] 13 S.C.R. 3. The case pertains to the abduction of Ajay Shanker Mishra (PW-17), Martoj Singh (PW-18) and Raju Mishra (PW-20) which the prosecution claims, was committed for extracting ransom. The written report of Arnn 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 f<~r 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 IP 2619, with the purpose of collecting the dues. Having collected a total of Rs. 4 lakhs from their business associates i.e. Sanjay Jaiswal C (PW-!), Rajesh Kumar Jaiswal (PW-2), Sandeep Kumar Jaiswal (PW3), 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 D 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 &round 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, E 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. F 4. Aft'r the investigation, a chargesheet under Section 173 of the Code of Criminal Procedure (Cr.P.C.) was filed before the ChiefJudicial Magistrate, )3uxar, alleging the commission of offences, inter alia by the appellants herein under Sections 364A, 395, 412 and 120B of the !PC. The prosecution led 22 witnesses as part ofits 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 G occurrence mid 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 lhe proof whether the victims were alive, the accused persons informed him that they were sending the victim's watch and ring and H further permitted the victim Ajay Shanker Mishra to speak on the mobile. BIRBAL CHOUDHARY @ MUKHIYA JEE v. STATE OF BIHAR 57 [A. K. SIKRI, J.] It was also stated that the accused persons disclosed their names as A 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 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 B 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 and412 IPC. However, the appellants were acquitted of the charge framed under Section 120B C 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 D 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 ofnotes 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. Additionally, the demand for E 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. F 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 G 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, H SUPRIEME COURT REPORTS (2017] 13 S.C.R. A Mangala Singh, Ramdarash Koiry, Saroj Singh and Harbanse Ram, kidnapped and ll:ept 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 l\old that the offence under Section 364/34 of the !PC is well proved and established against the 12 persons. B c D E F 7. Appelhmt Jawahar Koiry was charged for the offence under Section 412 of the !PC 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 t~e 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 furti)er held that out of 11 accused persons including the appellants, originally charged under Section 397 !PC for committing the dacoity of cash of about Rs.4 lakhs with one White Maruti Gypsy bearing registration no BR 1 P 2619 from the possession of the victims stood established ag11inst 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 !PC 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 !PC was well proved and established against the remaining appellants. The court further absolved the aqcused persons including the appellants of the charge for the offence under Section l 20B of the !PC with the findings that even though it came in the evidence of PW-19, the Investigating Officer in the case, that ~he 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 agreeme11t of the accused person to kidnap the victim, the court held that the offence under Section I 20B stood devoid of any proof. 8. The t~ial court keeping in mind the criminal antecedents of the G appellants Krishna Singh and Jawahar Koiry, considered it justified to sentence them'to death holding that the punishment oflife imprisonment would be inadequate for the offence under Section 364A/34 !PC committed by them. However, noting that the remaining accused did not have any criminal history, the court sentenced them to undergo imprisonmentlfor life forthe offence punishable under Section 364A/34 H IPC. The appellants were further sentenced to undergo Rigorous BIRBAL CHOUDHARY @ MUKHIYA JEE v. STATE OF BIHAR 59 [A. K. SIKRI, J.] Imprisonment (RI) for 10 years for the offence under Section 395 IPC A and since the 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 B 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. c 10. The High Court in its impugned judgrnent 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 ofPW-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 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 D E F G and faces of the accused persons. This, the court added, was a perfectly natural conduct and lent great credibility to their evidence and H 60 SUPlllEME COURT lllEPORTS [2017] 13 S.C.R. A identification. The trauma and agony of the victims surely led to the identification $1ld features of the abductors being 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 B 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 C a graphic des~ription of the places where he and PW-20 were kept during their confinement for approximately 52 days including identifying landmarks cci>rroborated and confirmed by PW-19 during police investigation. 12. Tht High Court further discussed the demand for ransom D made on the basis of Exhibit 8 which is the letter written by PW-17 during confinement and signed by PW-20 askingPW-5 to pay the ransom amount and ~ecure 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 9430029994 which was sent to establish contact E with the abd~ctors. 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 F demand for ransom was in fact made. The court further pointed out that the act of abf gaining quick access to money, the accused persons who BIRBAL CHOUDHARY@ MUKHIYA JEE v. STATE OF BIHAR 61 [A. K. SIKRI, J.] were otherwise not paupers or beggars committed a crime that was an A organised criminal antisocial activity, where such people could not 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 oflife imprisonment for this crime. The section provides for the said punishment for threat to B 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 C two appellants was due to their criminal antecedents, for no evidence transpired with regard to any act on part of the two appellants ofhaving 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 D 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. 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 E Court: Two chargesheets were filed pertaining to the episode in question, which have been narrated in brief above, whereby three persons (PWF 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 ofIPC. However, for various other charges, they were convicted and given different sentences which were to run G 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-I and A-5 is commuted and is substituted by RI of 20 H 62 SUPREME COURT REPORTS [2017) 13 S.C.R. A years. In the cases of other convicts also, life sentence is modified to 20 years R1. Thi~ position is reflected hereunder in a tabular form: Accused Name Charged Conviction Conviction Conviction by Trial & by High; Court Sentence Court by Trial B . . .. Court l Krishna 364A/34, 364N34, Death & 10 Not Bihari l20B, 395,412 1 , years Rl confinned. ~h @ 395, Raised to 20 shna . 412/34 years R1 Sinoh 2 Pn1bhawati 412/34 Acquitted x x DF!Vi 3 Lal Mohar 412/34 AcquittOO ,x x : .~i.ngh ' - ....... .... ------·· -- ·- . . c 4 Rajbahadur 412/34 Acquitted :X x Si.gh @ Ctiunnu I Singh 5 Jawahar 364A/34, 364N34, : Death & 10 'Not ' ' Kniry @ l20B, 395, 412 I years RI confinned. Jawahar 395, 412 Raised to 20 i Singh @ I years RI D Neta Jee s:am ____ ,_ 364A/34, 364N34, Life & l 0 ] 20 years I 6 B' ari l20B, 395 395 yeara RI Paswan I 7 Rambriksh 364N34, 364N34 Life 20 years E a Koirv l20B, 395 8 Harbanse 368,412 364N34 Life 20 years Ram 364A.;34, .. -·- - : 9 Angad 364N34, Life & 10 20 years -~f!Zyanan_'._~~~il:,S.- 395 . yeara RI I ---- .. -- -· lO 364N34 : Life 20 years dKoirv l20B 395 F ll Man gala '364A/34, 364A/34 i Life ! 20 years ' Sinuh l20B, 395 I 12 Saroj Singh 364N34, 364A/34 ; Life : 20 years l20B, 395 13 Birbal 364N34, 364A/34, I Life & 10 20 years Choudhary l20B, 395 395 ; yeara @ I Mlikhiya G Jee -------·--------1··-· - ----- ------- · Rimiisllray 364A.i34, 14 364A/34 I Life 20 years a j(oiiy l20B, 395 ' --- -I -- --- ... 15 Ramdaiash 364N34, 364N34 I Life 20 years Koi'"'' 120B 395 ; H BIRBAL CHOUDHARY @ MUKHIYA JEE v. STATE OF BIHAR 63 [A. K. SIKRI, J.] 15. Out of the aforesaid 12 persons whose conviction is maintained A 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: 1·1 ... [ cril1liill11AjlpealNo.101/2012 ........ r 8irbi.1 C:liouCihary·········· I I I, 2 :, Criminal AppealNo. 702/2012 I Shyam Bihari Paswan r 3 I Criminal AppealNo-:-7o3:7o4/26 iz rJawaharkoiry - - - ~ 4 : Criminal Appeal No. 705/2012 : RamashrayaKoiry ! · 5 · · · ·\· e:r;ffi iillii.:Aiiii eai-N 0: 7o6izo i2 ------· ---j (i) · -R.~ffitiriliS ha K:oiry : ' I I 1 (ii) Hirdayanand Koiry : (iii) Mangala Singh ! (iv) Saroj Singh i 6 i Criminal Appeal No. 707/2012 I Krishna Bihari Singh II ' : 1·-rc:r1;n;ru,_rA.weafN'o.7os72M2-----r·/\fi!iil