Birbal Choudhary @ Mukhiya Jee v. State of Bihar

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:

(ii) Hirdayanand Koiry

(iii) Mangala Singh

(iv) Saroj Singh

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.

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 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, 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 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:

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. 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 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 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 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:

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. 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 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 crossexamination, 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 following manner:

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 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 intergovernmental 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 Karnataka[2], this Court has laid down the 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 Karnataka[3] that 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 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 Police[4] has approved the view taken in Swami Shraddananda’s case that life imprisonment would be treated as 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 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:

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 Rajasthan[5], importance of identification parade, as a substantive piece of evidence, was accorded in the following manner:

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

9 1995 Supp (1) SCC 80 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:

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:

48) He also took support of Chittarmal & Anr. v. State of Rajasthan11 and relied upon para 14 thereof, which is as under:

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 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.

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:

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 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 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 coaccused 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) That apart, learned counsel for the respondent rightly contended that Section 464 of the Cr.P.C. provides that no sentence by a 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