BIRBAL CHOUDHARY@ MUKHIYA JEE versus STATE OF BIHAR

Citation: [2017] 13 S.C.R. 48 · Decided: 06-10-2017 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Dismissed
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Judgment (excerpt)

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[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. 
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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. 
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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 
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BIRBAL CHOUDHARY @ MUKHIYA JEE v. STATE OF BIHAR 
49 
no charge was framed or any irregularity in the charge or misjoinder 
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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 
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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 
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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 d
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