Desh Deepak Kumar Vihangam vs State of Bihar

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 673 OF 2011

DESH DEEPAK KUMAR VIHANGAM@ DEEPAK KUMAR APPELLANT(S)

VERSUS

THE STATE OF BIHAR RESPONDENT(S)

WITH

CRIMINAL APPEAL NO(S). 674-675 OF 2011

CRIMINAL APPEAL NO(S). 683 OF 2011

CRIMINAL APPEAL NO(S). 1714-1715 OF 2011

J U D G M E N T

Impugned judgment dated 20th May 2010 passed by the High

Court of Judicature at Patna dismissed the appeals preferred

by Desh Deepak Kumar Vihangam @ Deepak Kumar, Bimlesh Kumar

Singh, Madan Prasad Thathera, Kanhaiya Lal, Ramjee Prajapati

and Abhay Kumar @ Pappu, who have been convicted under Signature Not Verified Digitally signed by Sections 364A and 120B of the Indian Penal Code, 1860 (‘Penal JAGDISH KUMAR Date: 2022.03.16 16:27:11 IST Reason: Code’, in short). The aforesaid 6 convicts were sentenced

to undergo Imprisonment for Life. Desh Deepak Kumar Vihangam

Crl.A. No. 673 OF 2011 etc. Page 1 of 15 was ordered to pay a fine of Rs. 7,00,000 (Rupees Seven lakh

Only), while the rest of the convicts were ordered to pay a

fine of Rs. 1,00,000 (Rupees One Lakh Only) each.

2. The impugned judgment by the High Court however acquits

Santosh who was convicted by the trial court. The State has

not preferred any appeal challenging the acquittal of

Santosh. The impugned judgment has also convicted Pradeep

Kumar Shrivastava, who had preferred a petition for special

leave to appeal, which was dismissed on 22nd October 2010.

Another co-convict, Upendra Kumar Singh, whose conviction

was upheld by the High Court, has expired, and hence, his

appeal has abated.

3. The case relates to the kidnapping for ransom of Dr. Shashi

Kumar Sinha (PW-3), abducted along with his driver Salauddin

(PW-5) on 7TH February 2006 while travelling in a car from

his residence at Station Road, Dehri, to his clinic at

Tilouthu Village. Kiran Sinha (PW-2), the wife of Dr. Shashi

Kumar Sinha and Dr. Amitabh Sinha (PW-1), son of Dr. Shashi

Kumar Sinha, have deposed that calls for ransom were made.

Initially, an amount of Rs. 1,00,00,000/- (Rupees One Crore

Only) was demanded, but thereafter, the kidnappers had

agreed to release the captives on payment of Rs. 12,00,000/-

(Rupees Twelve Lakhs Only). Dr. Amitabh Sinha (PW-1) had

deposed that he had paid a ransom of Rs. 12,00,000/- (Rupees

Crl.A. No. 673 OF 2011 etc. Page 2 of 15 Twelve Lakhs Only) to Deepak Kumar at Ranchi on 24th February

2006. At that time, Dr. Amitabh Sinha (PW-1) did not know

the name and identity of Deepak Kumar. He came to know about

his identity when Deepak Kumar was arrested at Patna by the

I.O. Yogesh Chandra (PW-8) and Inspector Krishna Kumar Singh

@ K.K. Singh (PW-4). Dr. Amitabh Sinha (PW-1) had visited

Patna on 9th March 2006 as the kidnappers had demanded a

further sum of Rs.5,00,000/- (Rupees Five Lakh Only) as

ransom. Deepak Kumar and Kanhaiya Lal were arrested at Patna

on 10th March 2006. Inspector K.K. Singh (PW-4) and I.O.

Yogesh Chandra (PW-8) have deposed that Deepak Kumar had

then made a disclosure statement whereupon the police along

with Deepak Kumar and Kanhaiya Lal had proceeded to Village

Bar, District Aurangabad, Bihar. Dr. Shashi Kumar Sinha (PW-

3) and Salauddin (PW-5) were rescued in the intervening

night of 10th and 11th March from the house of Upendra Kumar

Sinha situated at Village Bar. Bimlesh Kumar Singh, Madan

Prasad Thathera, Pradip Kumar Shrivastav and Upendra Kumar

Sinha were present at the house and were involved in the

kidnapping of Dr. Shashi Kumar Sinha (PW-3) and Salauddin

(PW-5). They were arrested. Dr. Shashi Kumar Sinha (PW-3)

and Salauddin (PW-5), the victims, identified Deepak Kumar,

Bimlesh Kumar, Madan Prasad Thathera, Pradeep Kumar and

Upendra Kumar in the court. On the basis of the disclosure

statement made by Deepak Kumar, Rs. 6,00,000/- (Rupees Six

Lakhs Only) were recovered from his tenanted premises at

Crl.A. No. 673 OF 2011 etc. Page 3 of 15 Patna. Some of the currency notes recovered bore the

signatures of Dr. Amitabh Sinha (PW-1).

4. In view of the aforesaid facts, and the appreciation of

evidence, we hold that the conviction of Bimlesh Kumar, Madan

Prasad Thathera and Deepak Kumar is correct. We are in

agreement with the findings and conclusions of the trial

court and the High Court in this regard.

5. We will now be adverting to the case of Kanhaiya Lal. Dr.

Amitabh Sinha (PW-1) has deposed that on 9th March 2006 he

received a phone call from the kidnapper who asked him to

come to Patna with Rs. 5,00,000/- (Rupees Five Lakh Only).

He was told to reach Gaighat with the money after taking the

route from Hanuman Mandir road to Gandhi Maidan via Frazer

Road and to proceed towards Engineering Mod, and from the

said Mod to reach Gaighat. He thereupon had contacted the

police who made arrangements to track down the culprits and

apprehend them. He reached Patna on 9th March 2006 and spent

the night at Arya Samaj Hotel. On 10th March 2006 at 6.30

A.M. he received a call from the kidnappers and was asked

to reach Gaighat with the money on a rickshaw as per the

route specified. He hired a cycle rickshaw and followed the

route as per the instructions of the kidnappers. On the way

he crossed the gate of Patna Medical College and reached the

Engineering College at about 8.00 A.M. From there, he reached

Crl.A. No. 673 OF 2011 etc. Page 4 of 15 Gaighat at about 8.30-8.45 A.M.

6. After 3 to 4 hours Dr. Amitabh Sinha (PW-1) received a phone

call from Inspector K.K. Singh (PW-4) who asked the former

to reach Kotwali Police Station. On reaching the police

station, Dr. Amitabh Sinha (PW-1) identified Deepak Kumar,

as the person who had collected ransom money of Rs.

12,00,000/- (Rupees Twelve Lakh Only) from him at Ranchi on

24th February 2006. Dr. Amitabh Sinha (PW-1) did not

recognise Kanhaiya Lal, who was also present as he had been

detained by the police.

7. Inspector K.K. Singh who has deposed as PW-4, has referred

to his conversation with Dr. Amitabh Sinha (PW-1) in which

Dr. Amitabh Sinha (PW-1) stated that he had been asked to

pay ransom money of Rs. 5,00,000/- (Rupees Five Lakh Only)

at Patna in the morning of 10th March 2006. Accordingly, on

the directions of the Superintendent of Police, a special

task force was formed, and he was assigned the duty to lead

the raiding party. Inspector K.K. Singh (PW-4) knew the route

which Dr. Amitabh Sinha (PW-1) was required to follow. At

about 6.00-6.30 A.M., Inspector K.K. Singh (PW-4) was

informed by Dr. Amitabh Sinha (PW-1) that the culprits had

asked him to take a rickshaw and was required to travel

around Mahavir Mandir Station. This information was shared

by Inspector K.K. Singh (PW-4) with other police officers,

Crl.A. No. 673 OF 2011 etc. Page 5 of 15 including I.O. Yogesh Chandra (PW-8). The Police Team

decided to follow Dr. Amitabh Sinha (PW-1) in civil dress.

As planned, they followed the rickshaw in which Dr. Amitabh

Sinha (PW-1) was sitting. Dr. Amitabh Sinha (PW-1) crossed

Frazer Road via Gandhi Maidan and reached Ashok Rajpath. At

that time, the police team noticed that one black Yamaha

motorcycle was following the said rickshaw. The driver of

the motorcycle was not wearing a helmet, whereas the pillion

rider was wearing a helmet. They kept a watch on this

motorcycle and thereupon stopped the motorcycle near the

Patna Medical College. Kanhaiya Lal was driving the

motorcycle, and Deepak Kumar was the pillion rider.

Thereupon, both of them were taken to Peer Vihar Police

Station. However, the police team continued to follow Dr.

Amitabh Sinha (PW-1) as he moved forward towards Gaighat.

No one came to collect the money in the entire route. Upon

interrogation of Deepak Kumar, they came to know of the

location where Dr. Shashi Kumar Sinha (PW-3), after the

kidnapping, had been detained. The same night the police

team proceeded to Village Bar, District Aurangabad, Patna,

as noted above, had rescued Dr. Shashi Kumar Sinha (PW-3)

and Salaudin [PW-5].

8. I.O. Yogesh Chandra (PW-8) similarly deposed that he was a

member of the team which was following Dr. Amitabh Sinha

(PW-1), who was sitting on the cycle rickshaw and had

Crl.A. No. 673 OF 2011 etc. Page 6 of 15 thereupon detained Kanhaiya Lal and Deepak Kumar near Patna

Medical College.

9. From the aforesaid depositions of Inspector K.K. Singh (PW-

4) and I.O. Yogesh Chandra (PW-8), we accept that Kanhaiya

Lal along with Deepak Kumar, were detained when they were

travelling on the motorcycle at or around Patna Medical

College at about 8 A.M. on 10th March 2006.

10. Noticeably, Kanhaiya Lal, in his statement under Section 313

of the Code of Criminal Procedure, 1973 (‘Criminal Code’,

for short) was candid to accept that he had picked up Deepak

Kumar from the bus stand as he had been called there to take

him to the Patna Medical College. He had stated that he was

in the business of running coaching classes and had nothing

to do with the incident.

11. On the question of the involvement of Kanhaiya Lal in the

episode of kidnapping and whether his conviction is

justified under Section 120B of the Penal Code, we would

like to refer to the cross-examinations of Inspector K. K.

Singh [PW-4] and the I.O. Yogesh Chandra. (PW-8). K.K Singh

(PW-4) in the cross-examination had accepted that :-

“36. Kanhiya lal never gave any statement regarding this case. I cannot say that whether he was involved in this case or not. I do not investigate mobile phone of Kanhiya Lal. IO sir might took it only he can tell.”

Inspector K. K. Singh [PW-4] while agreeing that

Crl.A. No. 673 OF 2011 etc. Page 7 of 15 Kanhaiya Lal was brought to Village Bar, but thereafter

accepted that “Kanhaiya Lal never spoke regarding the whole

incident”. Inspector K. K. Singh [PW-4] also agreed that

Kanhaiya Lal had not given any statement “regarding either

len-den (money transaction) or abduction” during his

interrogation. Kanhaiya Lal had told them that he had been

asked by Deepak Kumar to take him to Patna Medical College

on his motorcycle. Kanhaiya Lal did not point out anything

regarding abduction of Dr. Shashi Kumar Sinha (PW-3) and had

no criminal history prior to the said date.

12. Relevant portions of the cross-examination of I.O. Yogesh

Chandra (PW-8) reads as under;

“42. Whether there is any hand of Kanhaiya Lal Gupta in this case or not I have not inquired from anyone. The mobile No. of Mr. Kanhaiya Lal is 9334315014. From Kanhaiya Lal’s mobile nothing more has been called then calling motor cycle for going and bringing the motor cycle is there and nothing else. It has been confirmed from the printout.

43. In making Kanhaiya Lal as accused there was a talk with SP Sahib. It was an Oral talk and in the diary I have not noted down. Written report which has been submitted in PS Madanpur has not been written the facts that Kanhaiya Lal Gupta was brought in the village of War. In my front K.K. Singh had not said in his statement that Kanhaiya Lal Gupta was also brought to the village-War. Desh Deepak has not pointed out that Kanhaiya Lal had knowledge about this incident. He only pointed out regarding asking for motor cycle and what was the motto, was not pointed out. In Para 142 of the case diary accused Desh Deepak has not pointed any thing about Kanhaiya Lal. Kanhaiya Lal had pointed out only the facts that he has been caught with Desh Deepak, that is why charge sheet has been submitted against him on the basis of suspicion. It is circumstantial evidence.”

13. Dr. Amitabh Sinha (PW-1), in his cross-examination, had

Crl.A. No. 673 OF 2011 etc. Page 8 of 15 testified that he did not see the police team apprehending

Deepak Kumar and Kanhaiya Lal when travelling on the

motorcycle near the Patna Medical College. Dr. Amitabh Sinha

(PW-1) did not recognize Kanhaiya Lal. As per the prosecution

case, Kanhaiya Lal is a resident of Patna. It is also not

the case of the prosecution that Kanhaiya Lal was involved

in the act of kidnapping, which had taken place on 7th

February 2006 at Tilouthu Village, District Dehri-On-Sone,

Bihar. Kanhaiya Lal was not in touch with any of the

kidnappers including Deepak Kumar, from 7th February 2006

until the morning of 10th March 2006.

14. At this stage it is imperative to discuss the settled

position of law with regard to the ingredients and the

standard of proof to be achieved by the prosecution for

conviction under section 120-B of the Penal Code. In Mohd.

Khalid v. State of West Bengal1 this Court had elucidated

the elements of criminal conspiracy which are reproduced as

under:

“The elements of a criminal conspiracy have been stated to be:

(a) an object to be accomplished,

(b) a plan or scheme embodying means to accomplish that object,

(c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and

d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy

1 (2002) 7 SCC 334

Crl.A. No. 673 OF 2011 etc. Page 9 of 15 is the unlawful combination and ordinarily the offence is complete when the combination is framed.”

Elaborating upon the standard of proof the prosecution has

to meet in establishing criminal conspiracy, this Court in State

of Kerala v. P. Sugathan & Another2 held as under;

“We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.) (1980) 2 SCC 665 held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances giving rise to a conclusive or irresistible inference of an agreement between the two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.”

This Court in Central Bureau of Investigation,

Hyderabad v. K. Narayana Rao3 held;

2 (2000) 8 SCC 203 3 (2012) 9 SCC 512

Crl.A. No. 673 OF 2011 etc. Page 10 of 15 “The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.”

15. When we reflect on the evidence on record in the light of

aforementioned dictum, it is apparent that Inspector K.K.

Singh (PW-4) and the I.O. Yogesh Chandra (PW-8) who had

detained Kanhaiya Lal with Deepak Kumar, have themselves

expressed doubt on involvement of Kanhaiya Lal in the crime

in question. While we do not doubt that Kanhaiya Lal was

taken into custody while he was driving the motorcycle with

Deepak Kumar on the pillion behind him, the version given

by Kanhaiya Lal, in his statement under Section 313 of the

Criminal Code, that he had picked up Deepak Kumar from the

bus stand as he had been called there to take him to Patna

Medical College gets corroboration from the police team

Crl.A. No. 673 OF 2011 etc. Page 11 of 15 itself. Therefore, we cannot draw conclusive and

irresistible inference of an agreement or that Kanhaiya Lal

had gone to the bus stand and had picked up Deepak Kumar in

pursuance of a plan or scheme to accomplish an objective or

even with the knowledge that Deepak Kumar was following the

rickshaw because he had to collect ransom. It is palpable

that Inspector K.K. Singh (PW-4) and the I.O. Yogesh Chandra

(PW-8) have somewhat corroborated Kanhaiya Lal’s version

that he was to drop Deepak Kumar at Patna Medical Collage.

Dr. Amitabh Sinha (PW-1) while on the rickshaw had gone past

Patna Medical Collage and was not over taken or stopped by

Kanhaiya Lal.

16. In the aforesaid background, the settled position of law, factual

matrix and the depositions made by I.O. Yogesh Chandra (PW-8)

and Inspector K.K. Singh (PW-4)], we are inclined to give the

benefit of doubt to Kanhaiya Lal.

17. As far as Ramjee Prajapati and his son Abhay Kumar are

concerned, it is an accepted position that Ramjee Prajapati

was a compounder who also had a medical store outside the

clinic of Dr. Shashi Kumar Sinha (PW-3) at Tilouthu. Their

involvement is pleaded on the following assertaions (i)

Ramjee Prajapeeti had contacted the family of Dr. Shashi

Kumar Sinha (PW-3) when Dr. Shashi Kumar Sinha (PW-3) had

not reached the clinic and had raised suspicion that he may

Crl.A. No. 673 OF 2011 etc. Page 12 of 15 have been kidnapped; (ii) Ramjee Prajapati and Abhay Kumar,

through their landline and mobile phones, had contacted and

spoke to telephone/mobile number 9431028412, which was the

telephone/mobile number of Dr. Shashi Kumar Sinha (PW-3);

and (iii) Dr. Shashi Kumar Sinha (PW-3), has deposed that

he heard the kidnappers take different names like Lalji

Mishra, Bindeshwary Choudhary, Taiyab Ansari, Kalicharan

etc., and also, Ramjee Prajapati and Abhay Kumar for money.

He had also stated that the accused had told him that Santosh

(who has been acquitted by the High Court) and Abhay Kumar

had committed the occurrence.

We do not think that the aforesaid assertions when

analyzed would meet and satisfy the standard of proof to

connect Ramjee Prajapati and Abhay Kumar with the kidnapping

of Dr. Shashi Kumar Sinha (PW-3). First two assertions are

neutral and can well be read as evidence that shows Ramjee

Prajapati and Abhay Kumar’s concern for Dr. Shashi Kumar

Sinha (PW-3). Once they had got in touch with the kidnappers

on the telephone, the kidnappers knew their names. The third

factum therefore is somewhat debatable. It is not the case

of the prosecution that Ramjee Prajapati and Abhay Kumar

were known or in touch with the kidnappers on or before 7th

February 2006. There is not even an iota of evidence that

any of the kidnappers were known beforehand to Ramjee

Prajapati and Abhay Kumar. The calls were made to the

mobile/telephone number of Dr. Shashi Kumar Sinha (PW-3)

Crl.A. No. 673 OF 2011 etc. Page 13 of 15 which Ramjee Prajapati obviously had. Telephone calls were

not made to the kidnappers on their personal telephone

numbers. Both of them were arrested on suspicion on 6 March,

2006. It is not the case of the police that Ramjee Prajapati

and Abhay Kumar gave any lead or information with regard to

the ‘other’ kidnappers. The family of Dr. Shashi Kumar Sinha

(PW-3) had received ransom calls even after the arrest of

Ramjee Prajapati and Abhay Kumar. It is only after Deepak

Kumar was arrested that the location where Dr. Shashi Kumar

Sinha (PW-3) after the abduction had been kept was

ascertained. Therefore, Ramjee Prajapati and Abhay Kumar are

also entitled to the benefit of doubt.

18. Accordingly, we dismiss the appeals and affirm the

convictions and sentences of Desh Deepak Kumar Vihangam @

Deepak Kumar, Bimlesh Kumar Singh and Madan Prasad Thathera.

The appeals preferred by Kanhaiya Lal, Ramjee Prajapati and

Abhay Kumar @ Pappu are allowed, and their convictions under

Section 364A and 120B of the Penal Code are set aside. Bail

bonds of Kanhaiya Lal, Ramjee Prajapati and Abhay Kumar stand

cancelled. Deepak Kumar, who is enlarged on bail, shall

surrender to the concerned authorities within 10 days from

today to serve the sentence of Imprisonment for life and pay

the fine of Rs. 7,00,000/- (Rupees Seven Lakh Only) with

stipulations for recovery. If he does not surrender, the

police would take immediate steps to detain and arrest him

as per law.

Crl.A. No. 673 OF 2011 etc. Page 14 of 15

19. All pending applications stand disposed of.

……………………………………………..J. [SANJIV KHANNA]

……………………………………………..J. [ BELA M. TRIVEDI]

NEW DELHI;

8TH MARCH, 2022.

Crl.A. No. 673 OF 2011 etc. Page 15 of 15