CR. APPEAL (D.B.) No.621 of 2006 With CR. APPEAL (DB) No.572 of 2006 With CR. APPEAL (DB) No.583 of 2006 With CR. APPEAL (DB) No.600 of 2006 With CR. APPEAL (DB) No.614 of 2006 With CR. APPEAL (DB) No.615 of 2006 With CR. APPEAL (DB) No.618 of 2006 With CR. APPEAL (DB) No.733 of 2006 With CR. APPEAL (DB) No.743 of 2006 **** Against the judgment and order of conviction, dated 25th May, 2006, passed by Shri A.K. Shriwastava, Session's Judge, Rohtas at Sasaram, in Session's Trial No. 245 of 2006 **** KANHAIYA LAL, S/O JAI NARAYAN PRASAD GUPTA, RESIDENT OF VILLAGE BIHARIGANJ, P.S. BIHARIGANJ, DISTRICT MADHEPURA .. Appellant (in CR. APPEAL (D.B.) No.621 of 2006) UPENDRA KUMAR SINHA, S/O LATE BAIKUNTH PRASAD SINHA @ BAIKUNTH SAHAI, RESIDENT OF VILLAGE BAR, P.S. MADANPUR, DISTRICT AURANGABAD .. Appellant (in CR. APPEAL (DB) No.572 of 2006) MADAN PRASAD THATHERA, S/O DINA THATHERA, RESIDENT OF VILLAGE MACHHARHATTA, P.S. JAGDISHPUR, DISTRICT BHOJPUR AT PRESENT MOHALLA SHAHPUR POKHRA, P.S. AURANGABAD, DISTRICT AURANGABAD .. Appellant (in CR. APPEAL (DB) No.583 of 2006) PRADIP KUMAR SHRIVASTAVA, S/O LATE SHIV SHANKAR LAL SHRIVASTAVA, RESIDENT OF MOHALLA PATEL CHOWK (NEAR CANAL), P.S. BHABHUA, DISTRICT KAIMUAR (BHABUA) .. Appellant (in CR. APPEAL (DB) No.600 of 2006) 2 RAMJEE PRAJAPATI, S/O RAJ NATH, RESIDENT OF VILLAGE TELAUTHU, DISTRICT ROHTAS .. Appellant (in CR. APPEAL (DB) No.614 of 2006) SANTOSH KUMAR @ SANTOSH GUPTA, S/O SHRI DASHRATH SAH, RESIDENT OF VILLAGE SHIVGANJ, P.S. MADANPUR, DISTRICT AURANGABAD .. Appellant (in CR. APPEAL (DB) No.615 of 2006) DESH DEEPAK KUMAR VIHANGAM @ DEEPAK KUMAR, S/O LATE RAJENDRA PRASAD SINGH, RESIDENT OF VILLAGE CHAPAUR, P.S. MASAURHI IN THE DISTRICT OF PATNA.. Appellant (in CR. APPEAL (DB) No.618 of 2006) BIMLESH KUMAR SINGH, S/O LATE GANESH SINGH, RESIDENT OF VILLAGE MAHASI, P.S. OBARA, DISTRICT AURANGABAD .. Appellant (in CR. APPEAL (DB) No.733 of 2006) ABHAY KUMAR @ PAPPU, S/O RAMJEE PRAJAPATI, RESIDENT OF VILLAGE TELAUTHU, P.S. TELAUTHU, DISTRICT ROHTAS .. Appellant (in CR. APPEAL (DB) No.743 of 2006) Versus THE STATE OF BIHAR .. Respondent (in all the Criminal Appeals) **** For the appellants .. M/S Rana Pratap Singh, Shakil Ahmad Khan and M.S. Madhup, Sr. Advs. With M/S Sumant Singh, Aruni Singh Avineesh Kr. Singh, Sajid Slaim Khan, Ashraf Ansari, Dwivedy Surendra, Vikramdeo Singh, Dharamdeo Kr. Singh, Ram Pravesh Kr., Sudhir Kr. Sinha, Ashok Kr. Sinha No. 10, Advs. 3 For the respondent .. Mr. Ashwani Kr. Sinha, A.P.P. **** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Shyam Kishore Sharma & Gopal Prasad, JJ. These nine appeals were heard together and being disposed off by this common judgment and order as all the appeals arise of the same judgment and order passed in Session's Trial No. 245 of 2006 in connection with Dehri Town P.S. Case No. 27 of 2006 for offence and under Section 364A and allied sections of the Penal Code. 2. The appellant, Kanhaiya Lal, of Criminal Appeal No. 621 of 2006 (D.B.), appellant, Pradip Kumar Shrivastava, of Criminal Appeal No.600 of 2006 (D.B.), appellant, Bimlesh Kumar Singh, of Criminal Appeal No.733 of 2006 (D.B.), appellant, Upendra Kumar Sinha of Criminal Appeal No. 572 of 2006 (D.B.), appellant, Madan Prasad Thathera, of Criminal Appeal No. 583 of 2006 (D.B.) and appellant, Santosh Kumar Singh @ Santosh Gupta, of Criminal Appeal No. 615 of 2006 (D.B.) have been convicted under Section 364A of the Penal Code and have been sentenced to undergo rigorous imprisonment for life and a fine of rupees one lacs each to be recovered from the self and ancestral property of the appellants and appellant, Abhay Kumar @ Pappu, of Criminal Appeal No. 743 of 2006 (D.B.) and appellant, Ramjee Prajapati, of Criminal Appeal No. 614 of 2006 (D.B.) have been convicted under Sections 364A 4 and 120B of the Penal Code in criminal conspiracy in respect of kidnapping and they have been sentenced to undergo rigorous imprisonment for life and a fine of rupees one lacs each to be recovered from personal and ancestral movable and immovable properties of the appellant. 3. The prosecution case, as transpired from the first information report and the evidence of the witnesses, is that on 07th February, 2006, the victim, Dr. Shashi Kumar Sinha, (P.W. 3) the husband of the informant, Kiran Sinha, proceeded at 11.00 a.m. from his residence at Station Road, Dehri, to his clinic at Tilauthu by car, but, he did not reach his clinic at Tilauthu. The informant got information from the staff of clinic that the doctor has not reached and the staff reached to the residence of the doctor and disclosed that the car of the doctor has not been found in the way as well. The informant, Kiran Sinha, (P.W. 2) even tried to contact with her husband, Dr. Shashi Kumar Sinha, but, could not contact as the mobile of the husband was off and the matter was, ultimately, reported to the police on which the first information report was lodged as a suspected case of kidnapping of Dr. Shashi Kumar Sinha with his driver. However, Dr. Amitabh Sinha, (P.W. 1) the son of the victim, Dr. Shashi Kumar Sinha, came from Delhi. A phone call was received by Dr. Amitabh Sinha (P.W. 1) from the kidnappers regarding the initial demand of rupees one crore, but, materialized at rupees twelve lacs to be paid at Ranchi and the son of the informant paid the amount of rupees twelve lacs on 12th February, 2006, to the kidnappers at Ranchi. However, the victim was not released even on payment of the ransom amount of rupees twelve lacs and the kidnappers 5 demanded more money. A further demand was made and even a letter received in the hand writing of the victim and rupees five lacs was, again, demanded to be paid on 10th of March, 2006. The son of the informant intimated the fact to the Superintendent of Police, Dehri, and, thereafter, a trap arranged. The son of the informant proceeded with rupees five land as per instruction of the kidnappers to follow the route from Hanuman Mandir to Ganchi Maidan, Patna, through Frazer Road till Gaighat. Two persons were arrested near the Patna Medical College & Hospital by police, who had arranged the trap on suspicion. The two persons arrested disclosed their name as Desh Deepak Kumar Vihangam and Kanhaiya Lal. Desh Deepak Kumar Vihangam confessed and disclosed about the whereabouts of the victim and at their instance the victim was recovered from the place of recovery along with four accused who were arrested were Bimlesh Kumar Singh, Madan Prasad Thathera, Pradip Kumar Shrivastava and Upendra Kumar Sinha. Two persons Ramjee Prajapati and Abhay Kumar @ Pappu, the sons of the Compounder of the doctor, were found during the period of kidnapping having talked with kidnappers and one of mobiles used said to be belonging to Santosh Kumar @ Santosh Gupta. 4. However, on the fardbeyan of the informant, Kiran Sinha, the first information report was lodged and investigation proceeded and after investigation the charge sheet was submitted cognizance taken. After taking cognizance the charge was framed against seven accused persons for offence under Section 364A of the Penal Code. Against Abhay Kumar @ Pappu and Ramjee Prajapati for offence under Sections 364A and 6 120B of the Penal Code, the charge was framed against Desh Deepak Kumar Vihangam for offence under Section 379 of the Penal Code for dishonestly taking the mobile set. 5. After submission of the charge sheet the trial proceeded eight witnesses were examined to prove the prosecution case, who are P.W. 1, Amitabh Sinha, P.W. 2, Kiran Sinha, P.W. 3, Dr. Shashi Kumar Sinha, P.W. 4 Kishra Kumar Singh, P.W. 5, Md. Salauddin, P.W. 6, Sudarshan Prasad, P.W. 7, Vinod Kumar Mishra, and P.W. 8, Yogesh Chandra. The documentary evidence adduced in the case is Exhibit 1, signature of Amit Kumar Sinha on statement under Section 164 of the Criminal Procedure Code, Exhibit 2, signature of Kiran Sinha on fardbeyan, Exhibits 3, 3/1 and 3/2 signatures of Dr. Shashi Kumar Sinha on three letters, Exhibit 3/2, signature of Dr. Shashi Kumar Sinha on Zimanama of sim card, Exhibit 4 series, signature on the denomination of rupees five hundred notes, Exhibits 5 series, signature on the denomination of rupees one thousand notes, Exhibit 6 mobile, Exhibit 7 statement of Dr. Shashi Kumar Sinha under Section 164 of the Criminal Procedure Code, Exhibit 8 statement of Amitabh under Section 164 of the Criminal Procedure Code, Exhibit 9 formal first information report, Exhibit 10 seizure list, Exhibit 11 production-cum-seizure list, Exhibit 12 seizure list, Exhibit 13 seizure list, Exhibit 14 Pearless Diary, Exhibit 15 production-cum-seizure list and Exhibit 16 seizure list. 6. Defence has also adduced documentary and oral evidence. The oral evidence adduced on behalf of the prosecution is D.W. 7 1, Mukesh Kumar. The documentary evidence adduced is Exhibit „A‟, carbon copy of the seizure list, Exhibit „B‟ pass book, Exhibit „C‟ the certified photo stat copy of the Station Diary Entry, dated 09.03.2006 to 10.03.2006, bearing no. 342 to 427, Exhibit „D‟ Station Diary Entry, dated 09.03.2006 to 10.03.2006 bearing no. 307 to 335. 7. On considering the oral and documentary evidence the order of conviction and sentence recorded by learned Court below as mentioned above at the out set. 8. The learned counsel for the appellants made their submissions on different sets and have asserted that the first information report is against unknown and the memo of arrest and the search and seizure prepared are not in accordance with law and there is no reliable and cogent evidence of the identification of the accused persons as no test identification parade has been conducted during investigation prior to the identification of the accused persons and even on their arrest the face of the accused persons were not concealed to conduct the test identification parade in accordance with law and the seizure list has not been prepared and proved which suffers from various irregularities and, further, the evidence of conspiracy has not been established to attract Section 10 of the Excise Act and it has to be established that there were amongst the accused. 9. With regard to appellant, Kanhaiya Lal, it has been submitted that P.Ws. 3 and 4 have not named and identified and there is no confession leading to recovery with regard to this appellant and there is no 8 evidence about the involvement except the investigating officer caught him on suspicion with the appellant, Desh Deepak Kumar Vihangam. 10. With regard to appellant, Santosh Kumar @ Santosh Gupta, it has been stated that he has not been identified in the dock and there is no reliable evidence against him. 11. With regard to appellants, Madan Prasad Thathera, Upendra Kumar Sinha, Pradip Kumar Shrivastava and Bimlesh Kumar Singh, it has been asserted that no test identification parade has been conducted and their identification in the dock is not valid and legal without the test identification parade and they have been exposed and they were shown to the witnesses in the Police Station and their mere presence at the placse of occurrence without any nexus have not been established and the role assigned to them can not be held them guilty for the offence. 12. With regard to appellants, Ramjee Prajapati and Abhay Kumar @ Pappu, it has been asserted that having regard to the fact that they were close to the victim and, hence, their talk on the mobile of victim which was in possession of the accused can not be treated as their implication in the crime and, further, the conspiracy has not been established in accordance with law and, further no paper or documentary evidence has been proved to establish with the two telephones were actually belong to the appellant, Ramjee Prajapati and Abhay Kumar @ Pappu to prove conspirary. 13. With regard to appellant, Desh Deepak Kumar Vihangam, it is stated that neither his test identification parade was 9 conducted nor alleged search and seizure on confessional statement were in accordance with law. It has further been contended that these appellants were taken in custody on 10th March, 2006, and was produced before the Magistrate on 14th March, 2006, and was kept under the custody of the police beyond twenty four hours without producing them before any Magistrate, itself, shows the attitude of the prosecution of his false implication to manufacture the evidence and no test identification parade has been conducted and the face of the appellant has been shown for facilitating his identity indicates the false implication and, hence, contended that the prosecution has not been able to prove the charge. 14. The learned counsel for the State, however, contends that this case, in which the accused persons arrested along with victim, in such a situation the victim being with the accused persons well identifying the accused during his captivity and, hence, in this case test identification parade is not required when the appellants were in custody. Under the facts and circumstances it does not demand conducting of test identification parade during investigation and, further, this is a case of confession leading to discovery and even at the confession of the accused the victim was recovered and even ransom money recovered to the extent of rupees six lacs and it can not be said that this recovery is false when rupees six lacs was recovered and submitted which was given to the kidnappers as ransom amount and some of the notes which was recovered had the initial of P.W. 1, which is said to have paid to the kidnappers and, further, there is explanation for producing the victim beyond twenty four hours and 10 contended that the prosecution has been able to prove the charges beyond reasonable doubts. 15. Hence, on the respective submissions of the parties the question for consideration whether the prosecution has been able to prove the charges beyond reasonable doubts. 16. Now I proceed to consider the evidence in the light of the submission made by the parties. 17. The prosecution, as alleged in the fardbeyan by the informant Kiran Sinha, the wife of the victim, Dr. Shashi Kumar Sinha, that on 07.02.2006 her husband, as usual, left his house at 11.00 a.m. from his residence at Dehri for Tilauthu, but, he did not reach Tilauthu till 01.00 p.m. in his clinic and then a staff informed the informant and one of the staff rushed from Tilauthu to Dehri and disclosed that the car was not found even in the way from Tilauthu to Dehri then the informant contacted her relatives and expressed suspicion about the kidnapping. On the fardbeyan the first information report lodged. The fardbeyan has been proved is Exhibit 2. 18. P.W. 2 is the informant. She has come to support the prosecution case and has stated that at 01.00 p.m. she received telephone of Compounder, Pappu, son of Ramjee Prajapati, informing about none reaching of Dr. Shashi Kumar Sinha and Pappu reached at about 02.00 p.m. and disclosed that it appears that the doctor has been kidnapped. She has further stated that the medicine shop of Pappu Prajapati is inside the clinic and has identified Pappu and Ramjee Prajapati. Hence, this witness supported the prosecution case about the lodging of first information report 11 after information about the kidnapping of Dr. Shashi Kumar Sinha on the date of occurrence, itself, i.e., 07.02.2006. 19 P.W. 1 is Dr. Amitabh Sinha, son of the victim. He has stated in his evidence that he got information that his father proceeded from his house to clinic, but, did not reach the clinic at Tilauthu and on this information he reached Dehri and met with the Superintendent of Police and Superintendent of Police disclosed that it is a case of kidnapping as the car has been recovered. He has, further, stated in his evidence that on 13th February, 2006, he received a telephonic call. The phone, received, was from the mobile of his father, Dr. Shashi Kumar Sinha, and by the said call it was communicated that the victim, the father of this witness, is with them and they demanded rupees one crore for his release as ransom. This witness retracted to said demand that he is unable to arrange such huge amount then it was said to arrange whatever he can do. Subsequently the talk made on phone continuously and the amount of ransom was reduced from rupees one crore to rupees fifty lacs, then to rupees twenty five lacs and then to rupees twenty lacs and, ultimately, a telephonic call received on 23rd February, 2006 in which it was stated to come to Ranchi along with rupees twelve lacs and to stay in a hotel at Station Road, Ranchi, and was asked to come to Ratu Raod on a rickshaw where a person having ten rupees in his hand and an A.T.M. card having the name of mother, Kiranbala Sinha, shall meet him and then to pay the ransom amount to him. The rupees twelve lacs was paid as ransom as per instruction of kidnappers. However, he received a telephone call after two days of the said payment of ransom from one of 12 kidnappers, who said that his associates are not ready to release the victims and asked to further arrange rupees five lacs and, thereafter, this followed with the letters of his father having been received by post. Out of the three letters, one addressed to his mother, other to his sister and third in the name of Ragni Sinha, who happens to be the aunt of the victim. The said letters were written in the writing of the father of this witness in which request was made for arranging the money and after 3-4 days, again, a telephone call was received in which it was queried that how much money was arranged and again on 09th March, 2006, a telephone call was, again, received in which a direction was issued to come to Patna with rupees five lacs. A direction was issued to take a rickshaw at Hanuman Mandir and come to Gandhi Maidan via Frazer Road and proceed from Gandhi Maidan to Gaighat through Engineering College. P.W. 1 has further stated in his evidence that he gave the information to the Superintendent of Police and came to Patna in the night of 09th March, 2006, by Plamau Express train and he received a telephone message at 06.00 a.m. from kidnappers to proceed on a rickshaw with the amount of rupees five lacs at about 07.30 a.m. on the said route. Thereafter, he proceeded on the route and after 3-4 hours he received a telephonic call of Inspector, K.K. Singh, who disclosed that two persons have been arrested, one is Desh Deepak Kumar Vihangam and other is Kanhaiya Lal and he went to Kotwali Police Station and identified one of the accused, Desh Deepak Kumar Vihangam, was the same person who had received the ransom of rupees twelve lacs at Ranchi. However, in cross examination he stated that he received telephone of Inspector, K.K. 13 Singh, at about 12.00-01.00 p.m. and reached at Kotwali Police Station at 03.00-04.00 p.m. where the accused were restrained there. 20. P.W. 4 is Krishna Kumar Singh. He has stated in his evidence that a case was registered under Section 364A of the Penal Code as Dehri P.S. Case No. 27 of 2006 in which Dr. Shashi Kumar Sinha, along with his driver, Md. Salauddin, were kidnapped and he was asked to cooperate in the investigation by the Superintendent of Police and on the said direction of the Superintendent of Police he was aiding the investigation officer of Dehri P.S. Case No. 27 of 2006. He learnt from Dr. Amitabh Sinha that the kidnappers have taken rupees twelve lacs from him under threat and out of fear he was compelled to pay the ransom amount and disclosed that he received a call on 23.02.2006 from a mobile no. 9835660483 and, again, on 09.03.2006 the Superintendent of Police called him in his office where Yogesh Chandra and Dr. Amitabh Sinha were also present and Dr. Amitabh Sinha showed him three letters which were written on 02.03.2006 in the writing of his father and the letters contained the agony and distress of the victim, Dr. Shashi Kumar Sinha. Dr. Amitabh Sinha, further, disclosed that again a demand has been made for release of his father to the tune of rupees five lacs and so special task force was prepared on the direction of the Superintendent of Police for raid and it was decided that on 10.03.2006 he should reach Patna. He has further stated that at 06.39 a.m. Dr. Amitabh Sinha informed that the kidnappers have contacted him to get a rickshaw at Mahaveer Mandir and to proceed to Gandhi Maidan, thereafter, he (this witness P.W. 4) along with Yogesh 14 Chandra, Abhay Narayan Singh and Ajay Kumar Singh, Inspectors of Koches, Rohtas, decided that he (P.W. 4) will follow Dr. Amitabh Sinha and Tarique Ahmad will keep a vigilant and in the last Yogesh Chandra will be in car. When Dr. Amitabh Sinha reach on Ashok Raj Path a black Yamaha motorcycle with two persons got behind the rickshaw of Dr. Amitabh Sinha and were constantly going behind the rickshaw. The other vehicles, on the road, were either going forward or leaving behind, as per their speed, but, this motorcycle maintained to follow the said rickshaw and this created a doubt to the raiding party and so it is stated that they decided to take them in custody and this witness left his rickshaw, apprehended the two persons on motorcycle and took them in Tata Sumo in which Yogesh Chandra was following them and these two persons, who were on the motorcycle, disclosed their name as Kanhaiya Lal and the person on the rear seat with helmet disclosed his name as Desh Deepkt Kumar Vihangam. The said motorcycle was also seized as they had not produced any paper and seizure list was prepared before two independent witnesses and the said motorcycle was kept in safe custody at Pirbahore Police Station and they, again, proceed behind Dr. Amitabh Sinha, for keeping vigilance towards Gaighat as the accused persons disclosed that it has been instructed that if the money was not taken near Engineering College then he (P.W. 4) will change their strategy and will go up to Gaighat. However, up to Gaighat none came to take the money and then he got satisfied that there is no other person and only these two persons would have been involved and then he returned back to Kotwali Police Station and Dr. Amitabh Sinha also reached 15 there. Dr. Amitabh Sinha at Kotwali Police Station identified Desh Deepak Kumar Vihangam as a person to whom ransom of rupees twelve lacs at Ranchi was paid in pretext of releasing the victim, Dr. Shashi Kumar Sinha. He has, further, stated in his evidence that on said identification of Desh Deepak Kumar Vihangam by Dr. Amitabh Sinha gave his confessional statement in Kotwali Police Station and disclosed that he along with Surendra Kumar planned for kidnapping. The matter was informed to the Superintendent of Police and the Superintendent of Police and the Deputy Superintendent of Police, Chandra Prasad, were at Patna. He has, further, stated in his evidence that the accused, Desh Deepak Kumar Vihangam, disclosed to conduct the raid regarding recovery of victims as soon as possible otherwise if he (accused, Desh Deepak Kumar Vihangam) will not reach there then his men will kill victim, Dr. Shashi Kumar Sinha, and his driver, Md. Slauddin, who are in captivity. He disclosed that doctor, the victim, has been kept in Captivity at Rafiganj Road in Aurangabad and, hence, since the area was a naxal infested area proper arrangement was made as well as for search and safety, security and raid he along with Deputy Superintendent of Police, Chandrama Prasad,