Birbal Choudhary @ Mukhiya Jee vs The State Of Bihar

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.

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.

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.

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.

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.

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.”

38) As a consequence, we dismiss the Criminal Appeal No. 701 of 2012.

44) Thus, this appeal also stands dismissed.

CRIMINAL APPEAL NOS. 705-706 OF 2012

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

CRIMINAL APPEAL NO. 708 OF 2012

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.

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.

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.

OCTOBER 6, 2017 Criminal Appeal No. 701 of 2012 with Ors. Page 48 of 48