Document Fragment View

Matching Fragments

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 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 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.

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 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.

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 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: