DESH DEEPAK KUMAR VIHANGAM@ DEEPAK KUMAR versus THE STATE OF BIHAR on 8 March 2022

1. Impugned judgment dated 20[th] May 2010 passed by the HighCourt of Judicature at Patna dismissed the appeals preferred by DeshDeepak Kumar Vihangam @ Deepak Kumar, Bimlesh Kumar Singh,Madan Prasad Thathera, Kanhaiya Lal, Ramjee Prajapati and AbhayKumar @ Pappu, who have been convicted under Sections 364A and120B of the Indian Penal Code, 1860 (‘Penal Code’, in short). Theaforesaid 6 convicts were sentenced to undergo Imprisonment for Life.Desh Deepak Kumar Vihangam was ordered to pay a fine of Rs. 7,00,000(Rupees Seven lakh Only), while the rest of the convicts were orderedto pay a fine of Rs. 1,00,000 (Rupees One Lakh Only) each.

A

B

C

DE

F

G

H

A

B

C

DE

F

G

H

A2. The impugned judgment by the High Court however acquitsSantosh who was convicted by the trial court. The State has not preferredany appeal challenging the acquittal of Santosh. The impugned judgmenthas also convicted Pradeep Kumar Shrivastava, who had preferred apetition for special leave to appeal, which was dismissed on 22[nd] October2010. Another co-convict, Upendra Kumar Singh, whose conviction wasBupheld by the High Court, has expired, and hence, his appeal has abated.

A

3. The case relates to the kidnapping for ransom of Dr. ShashiKumar Sinha (PW-3), abducted along with his driver Salauddin (PW-5)on 7[TH] February 2006 while travelling in a car from his residence atStation Road, Dehri, to his clinic at Tilouthu Village. Kiran Sinha (PW-C2), the wife of Dr. Shashi Kumar Sinha and Dr. Amitabh Sinha (PW-1),son of Dr. Shashi Kumar Sinha, have deposed that calls for ransomwere made. Initially, an amount of Rs. 1,00,00,000/- (Rupees One CroreOnly) was demanded, but thereafter, the kidnappers had agreed to releasethe captives on payment of Rs. 12,00,000/- (Rupees Twelve Lakhs Only).DDr. Amitabh Sinha (PW-1) had deposed that he had paid a ransom ofRs. 12,00,000/- (Rupees Twelve Lakhs Only) to Deepak Kumar at Ranchion 24[th] February 2006. At that time, Dr. Amitabh Sinha (PW-1) did notknow the name and identity of Deepak Kumar. He came to know abouthis identity when Deepak Kumar was arrested at Patna by the I.O.Yogesh Chandra (PW-8) and Inspector Krishna Kumar Singh @ K.K.ESingh (PW-4). Dr. Amitabh Sinha (PW-1) had visited Patna on 9[th] March2006 as the kidnappers had demanded a further sum of Rs.5,00,000/-(Rupees Five Lakh Only) as ransom. Deepak Kumar and Kanhaiya Lalwere arrested at Patna on 10[th] March 2006. Inspector K.K. Singh (PW-4) and I.O. Yogesh Chandra (PW-8) have deposed that Deepak KumarFhad then made a disclosure statement whereupon the police along withDeepak Kumar and Kanhaiya Lal had proceeded to Village Bar, DistrictAurangabad, Bihar. Dr. Shashi Kumar Sinha (PW-3) and Salauddin (PW-5) were rescued in the intervening night of 10[th] and 11[th] March from thehouse of Upendra Kumar Sinha situated at Village Bar. Bimlesh Kumar Singh, Madan Prasad Thathera, Pradip Kumar Shrivastav and UpendraGKumar Sinha were present at the house and were involved in thekidnapping 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, MadanPrasad Thathera, Pradeep Kumar and Upendra Kumar in the court. OnHthe basis of the disclosure statement made by Deepak Kumar, Rs.

6,00,000/- (Rupees Six Lakhs Only) were recovered from his tenantedpremises at Patna. Some of the currency notes recovered bore thesignatures 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 Thatheraand Deepak Kumar is correct. We are in agreement with the findingsand 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 9[th] March 2006 he receiveda phone call from the kidnapper who asked him to come to Patna withRs. 5,00,000/- (Rupees Five Lakh Only). He was told to reach Gaighatwith the money after taking the route from Hanuman Mandir road toGandhi Maidan via Frazer Road and to proceed towards EngineeringMod, and from the said Mod to reach Gaighat. He thereupon hadcontacted the police who made arrangements to track down the culpritsand apprehend them. He reached Patna on 9[th] March 2006 and spentthe night at Arya Samaj Hotel. On 10[th] March 2006 at 6.30 A.M. hereceived a call from the kidnappers and was asked to reach Gaighatwith the money on a rickshaw as per the route specified. He hired acycle rickshaw and followed the route as per the instructions of thekidnappers. On the way he crossed the gate of Patna Medical Collegeand reached the Engineering College at about 8.00 A.M. From there, hereached Gaighat at about 8.30-8.45 A.M.

6. After 3 to 4 hours Dr. Amitabh Sinha (PW-1) received a phonecall from Inspector K.K. Singh (PW-4) who asked the former to reachKotwali Police Station. On reaching the police station, Dr. Amitabh Sinha(PW-1) identified Deepak Kumar, as the person who had collected ransommoney of Rs. 12,00,000/- (Rupees Twelve Lakh Only) from him at Ranchion 24[th] February 2006. Dr. Amitabh Sinha (PW-1) did not recogniseKanhaiya Lal, who was also present as he had been detained by thepolice.

7. Inspector K.K. Singh who has deposed as PW-4, has referredto his conversation with Dr. Amitabh Sinha (PW-1) in which Dr. AmitabhSinha (PW-1) stated that he had been asked to pay ransom money ofRs. 5,00,000/- (Rupees Five Lakh Only) at Patna in the morning of 10[th]March 2006. Accordingly, on the directions of the Superintendent ofPolice, a special task force was formed, and he was assigned the duty tolead the raiding party. Inspector K.K. Singh (PW-4) knew the route ABC

D

E

F

GH

Awhich 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. AmitabhSinha (PW-1) that the culprits had asked him to take a rickshaw andwas required to travel around Mahavir Mandir Station. This informationwas shared by Inspector K.K. Singh (PW-4) with other police officers,including I.O. Yogesh Chandra (PW-8). The Police Team decided toBfollow Dr. Amitabh Sinha (PW-1) in civil dress. As planned, they followedthe rickshaw in which Dr. Amitabh Sinha (PW-1) was sitting. Dr. AmitabhSinha (PW-1) crossed Frazer Road via Gandhi Maidan and reachedAshok Rajpath. At that time, the police team noticed that one blackYamaha motorcycle was following the said rickshaw. The driver of theCmotorcycle was not wearing a helmet, whereas the pillion rider waswearing a helmet. They kept a watch on this motorcycle and thereuponstopped the motorcycle near the Patna Medical College. Kanhaiya Lalwas 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-D1) as he moved forward towards Gaighat. No one came to collect themoney in the entire route. Upon interrogation of Deepak Kumar, theycame to know of the location where Dr. Shashi Kumar Sinha (PW-3),after the kidnapping, had been detained. The same night the police teamproceeded to Village Bar, District Aurangabad, Patna, as noted above,Ehad rescued Dr. Shashi Kumar Sinha (PW-3) and Salaudin [PW-5].

8. I.O. Yogesh Chandra (PW-8) similarly deposed that he was amember of the team which was following Dr. Amitabh Sinha (PW-1),who was sitting on the cycle rickshaw and had thereupon detainedKanhaiya Lal and Deepak Kumar near Patna Medical College.F

9. From the aforesaid depositions of Inspector K.K. Singh (PW-4) and I.O. Yogesh Chandra (PW-8), we accept that Kanhaiya Lal alongwith Deepak Kumar, were detained when they were travelling on themotorcycle at or around Patna Medical College at about 8 A.M. on 10[th]March 2006.

G

10. Noticeably, Kanhaiya Lal, in his statement under Section 313of the Code of Criminal Procedure, 1973 (‘Criminal Code’, for short)was candid to accept that he had picked up Deepak Kumar from thebus stand as he had been called there to take him to the Patna MedicalCollege. He had stated that he was in the business of running coachingHclasses and had nothing to do with the incident.

11. On the question of the involvement of Kanhaiya Lal in theepisode of kidnapping and whether his conviction is justified under Section120B of the Penal Code, we would like to refer to the cross-examinationsof 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. Icannot say that whether he was involved in this case or not. I donot investigate mobile phone of Kanhiya Lal. IO sir might took itonly he can tell.”

Inspector K. K. Singh [PW-4] while agreeing that Kanhaiya Lalwas brought to Village Bar, but thereafter accepted that “Kanhaiya Lalnever spoke regarding the whole incident”. Inspector K. K. Singh [PW-4] also agreed that Kanhaiya Lal had not given any statement “regardingeither len-den (money transaction) or abduction” during his interrogation.Kanhaiya Lal had told them that he had been asked by Deepak Kumarto take him to Patna Medical College on his motorcycle. Kanhaiya Laldid 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. YogeshChandra (PW-8) reads as under; “42. Whether there is any hand of Kanhaiya Lal Gupta in thiscase or not I have not inquired from anyone. The mobile No. ofMr. Kanhaiya Lal is [REDACTED]. From Kanhaiya Lal’s mobilenothing more has been called then calling motor cycle for goingand bringing the motor cycle is there and nothing else. It has beenconfirmed from the printout.

43. In making Kanhaiya Lal as accused there was a talk with SPSahib. It was an Oral talk and in the diary I have not noted down.Written report which has been submitted in PS Madanpur has notbeen written the facts that Kanhaiya Lal Gupta was brought inthe village of War. In my front K.K. Singh had not said in hisstatement that Kanhaiya Lal Gupta was also brought to the village-War. Desh Deepak has not pointed out that Kanhaiya Lal hadknowledge about this incident. He only pointed out regarding askingfor motor cycle and what was the motto, was not pointed out. InPara 142 of the case diary accused Desh Deepak has not pointedany thing about Kanhaiya Lal. Kanhaiya Lal had pointed out only A

B

C

D

E

F

G

H

[2022] 16 S.C.R.

Athe facts that he has been caught with Desh Deepak, that is whycharge sheet has been submitted against him on the basis ofsuspicion. It is circumstantial evidence.”

13. Dr. Amitabh Sinha (PW-1), in his cross-examination, hadtestified that he did not see the police team apprehending Deepak KumarBand Kanhaiya Lal when travelling on the motorcycle near the PatnaMedical College. Dr. Amitabh Sinha (PW-1) did not recognize KanhaiyaLal. As per the prosecution case, Kanhaiya Lal is a resident of Patna. Itis also not the case of the prosecution that Kanhaiya Lal was involved inthe act of kidnapping, which had taken place on 7[th] February 2006 atTilouthu Village, District Dehri-On-Sone, Bihar. Kanhaiya Lal was notCin touch with any of the kidnappers including Deepak Kumar, from 7[th]February 2006 until the morning of 10[th] March 2006.

14. At this stage it is imperative to discuss the settled position oflaw with regard to the ingredients and the standard of proof to be achievedby the prosecution for conviction under section 120-B of the Penal Code.DIn Mohd. Khalid v. State of West Bengal[1] this Court had elucidated theelements 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,

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

(c) an agreement or understanding between two or more of theaccused persons whereby, they become definitely committed tocooperate for the accomplishment of the object by the meansembodied in the agreement, or by any effectual means, and d) inFthe jurisdiction where the statute required an overt act. Theessence of a criminal conspiracy is the unlawful combination andordinarily the offence is complete when the combination isframed.”

Elaborating upon the standard of proof the prosecution has toGmeet in establishing criminal conspiracy, this Court in State of Kerala v.P. Sugathan & Another[2] held as under; “We are aware of the fact that direct independent evidence ofcriminal conspiracy is generally not available and its existence is 1 (2002) 7 SCC 334H2 (2000) 8 SCC 203

DESH DEEPAK KUMAR VIHANGAM@ DEEPAK KUMAR v.THE STATE OF BIHAR

a matter of inference. The inferences are normally deduced fromacts of parties in pursuance of purpose in common between theconspirators. This Court in V.C. Shukla v. State (Delhi Admn.)(1980) 2 SCC 665 held that to prove criminal conspiracy theremust be evidence direct or circumstantial to show that there wasan agreement between two or more persons to commit an offence.There must be a meeting of minds resulting in ultimate decisiontaken by the conspirators regarding the commission of an offenceand where the factum of conspiracy is sought to be inferred fromcircumstances, the prosecution has to show that the circumstancesgiving rise to a conclusive or irresistible inference of an agreementbetween the two or more persons to commit an offence. As in allother criminal offences, the prosecution has to discharge its onusof proving the case against the accused beyond reasonable doubt.The circumstances in a case, when taken together on their facevalue, should indicate the meeting of the minds between theconspirators for the intended object of committing an illegal act oran act which is not illegal, by illegal means. A few bits here and afew bits there on which the prosecution relies cannot be held tobe adequate for connecting the accused with the commission ofthe crime of criminal conspiracy. It has to be shown that all meansadopted and illegal acts done were in furtherance of the object ofconspiracy hatched. The circumstances relied for the purposesof drawing an inference should be prior in time than the actualcommission of the offence in furtherance of the allegedconspiracy.”

This Court in Central Bureau of Investigation, Hyderabad v. K.Narayana Rao[3] held;

“The ingredients of the offence of criminal conspiracy are thatthere should be an agreement between the persons who are allegedto conspire and the said agreement should be for doing of anillegal act or for doing, by illegal means, an act which by itselfmay not be illegal. In other words, the essence of criminalconspiracy is an agreement to do an illegal act and such anagreement can be proved either by direct evidence or bycircumstantial evidence or by both and in a matter of commonexperience that direct evidence to prove conspiracy is rarely ABC

DE

F

G

Aavailable. Accordingly, the circumstances proved before and afterthe occurrence have to be considered to decide about thecomplicity of the accused. Even if some acts are proved to havebeen committed, it must be clear that they were so committed inpursuance of an agreement made between the accused personswho were parties to the alleged conspiracy. Inferences from suchBproved circumstances regarding the guilt may be drawn only whensuch circumstances are incapable of any other reasonableexplanation. In other words, an offence of conspiracy cannot bedeemed to have been established on mere suspicion and surmisesor inference which are not supported by cogent and acceptableCevidence.”

15. When we reflect on the evidence on record in the light ofaforementioned dictum, it is apparent that Inspector K.K. Singh (PW-4)and the I.O. Yogesh Chandra (PW-8) who had detained Kanhaiya Lalwith Deepak Kumar, have themselves expressed doubt on involvementDof Kanhaiya Lal in the crime in question. While we do not doubt thatKanhaiya Lal was taken into custody while he was driving the motorcyclewith Deepak Kumar on the pillion behind him, the version given byKanhaiya 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 beencalled there to take him to Patna Medical College gets corroborationEfrom the police team itself. Therefore, we cannot draw conclusive andirresistible inference of an agreement or that Kanhaiya Lal had gone tothe bus stand and had picked up Deepak Kumar in pursuance of a planor scheme to accomplish an objective or even with the knowledge thatDeepak Kumar was following the rickshaw because he had to collectFransom. It is palpable that Inspector K.K. Singh (PW-4) and the I.O.Yogesh Chandra (PW-8) have somewhat corroborated Kanhaiya Lal’sversion that he was to drop Deepak Kumar at Patna Medical Collage.Dr. Amitabh Sinha (PW-1) while on the rickshaw had gone past PatnaMedical Collage and was not over taken or stopped by Kanhaiya Lal.

G16. In the aforesaid background, the settled position of law, factualmatrix and the depositions made by I.O. Yogesh Chandra (PW-8) andInspector K.K. Singh (PW-4)], we are inclined to give the benefit ofdoubt to Kanhaiya Lal.

17. As far as Ramjee Prajapati and his son Abhay Kumar areHconcerned, it is an accepted position that Ramjee Prajapati was a compounder who also had a medical store outside the clinic of Dr. ShashiKumar Sinha (PW-3) at Tilouthu. Their involvement is pleaded on thefollowing assertaions (i) Ramjee Prajapeeti had contacted the family ofDr. Shashi Kumar Sinha (PW-3) when Dr. Shashi Kumar Sinha (PW-3)had not reached the clinic and had raised suspicion that he may havebeen kidnapped; (ii) Ramjee Prajapati and Abhay Kumar, through theirlandline and mobile phones, had contacted and spoke to telephone/mobilenumber [REDACTED], 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 LaljiMishra, Bindeshwary Choudhary, Taiyab Ansari, Kalicharan etc., andalso, Ramjee Prajapati and Abhay Kumar for money. He had also statedthat the accused had told him that Santosh (who has been acquitted bythe High Court) and Abhay Kumar had committed the occurrence.

We do not think that the aforesaid assertions when analyzed wouldmeet and satisfy the standard of proof to connect Ramjee Prajapati andAbhay Kumar with the kidnapping of Dr. Shashi Kumar Sinha (PW-3).First two assertions are neutral and can well be read as evidence thatshows Ramjee Prajapati and Abhay Kumar’s concern for Dr. ShashiKumar Sinha (PW-3). Once they had got in touch with the kidnapperson the telephone, the kidnappers knew their names. The third factumtherefore is somewhat debatable. It is not the case of the prosecutionthat Ramjee Prajapati and Abhay Kumar were known or in touch withthe kidnappers on or before 7[th] February 2006. There is not even an iotaof evidence that any of the kidnappers were known beforehand to RamjeePrajapati and Abhay Kumar. The calls were made to the mobile/telephonenumber of Dr. Shashi Kumar Sinha (PW-3) which Ramjee Prajapatiobviously had. Telephone calls were not made to the kidnappers on theirpersonal telephone numbers. Both of them were arrested on suspicionon 6 March, 2006. It is not the case of the police that Ramjee Prajapatiand Abhay Kumar gave any lead or information with regard to the ‘other’kidnappers. The family of Dr. Shashi Kumar Sinha (PW-3) had receivedransom 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 wasascertained. Therefore, Ramjee Prajapati and Abhay Kumar are alsoentitled to the benefit of doubt.

AB

C

D

E

F

G

H

A18. Accordingly, we dismiss the appeals and affirm the convictionsand sentences of Desh Deepak Kumar Vihangam @ Deepak Kumar,Bimlesh Kumar Singh and Madan Prasad Thathera. The appealspreferred by Kanhaiya Lal, Ramjee Prajapati and Abhay Kumar @ Pappuare allowed, and their convictions under Section 364A and 120B of thePenal Code are set aside. Bail bonds of Kanhaiya Lal, Ramjee PrajapatiBand Abhay Kumar stand cancelled. Deepak Kumar, who is enlarged onbail, shall surrender to the concerned authorities within 10 days fromtoday to serve the sentence of Imprisonment for life and pay the fine ofRs. 7,00,000/- (Rupees Seven Lakh Only) with stipulations for recovery.If he does not surrender, the police would take immediate steps to detainCand arrest him as per law.

19. All pending applications stand disposed of.

D

Nidhi Jain

(Assisted by : Shivani Pundir, LCRA)

Appeals dismissed.

E

F

G

H