Full Judgment Text
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CASE NO.:
Appeal (crl.) 867 of 2006
PETITIONER:
SUMAN SOOD @ KAMAL JEET KAUR
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT: 14/05/2007
BENCH:
C.K. THAKKER & P.K. BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
WITH
CRIMINAL APPEAL NO. 727 OF 2007 (@ S.L.P. (Criminal) No. 2965 of 2006)
DAYA SINGH LAHORIYA @ RAJEEV
SUDAN @ VINAY KUMAR ..Appellant
VERSUS
STATE OF RAJASTHAN ..Respondent
C.K. Thakker, J.
1. Leave granted in S.L.P. (Crl.) No. 2965 of 2006.
2. Present criminal appeals are filed by Daya
Singh Lahoriya @ Rajeev Sudan @ Vinay Kumar and
Suman Sood @ Kamal Jeet Kaur @ Kanwaljit Kaur,
husband and wife respectively against the judgment and
order passed by the High Court of Judicature for
Rajasthan (Jaipur Bench) dated March 20, 2006 in S.B.
Criminal Appeal Nos. 1247 of 2004 and D.B. Criminal
Appeal No. 11 of 2005 respectively.
3. By the said order, the High Court confirmed
the order of conviction and sentence passed against Daya
Singh for offences punishable under Sections 364A, 365,
343 read with 120B and 346 read with 120B Indian
Penal Code (IPC). The said conviction was recorded by
the Additional Sessions Judge (Fast Track) Category \026 1,
Jaipur on October 20, 2004 in Sessions Case No. 26 of
2003. So far as Suman Sood is concerned, she was
convicted by the trial Court for offences punishable
under Sections 365 read with 120B, 343 read with 120B
and 346 read with 120B IPC. She was, however,
acquitted for offences punishable under Section 364A
and in the alternative under Sections 364A read with
120B IPC. Her challenge against conviction and sentence
for offences punishable under Sections 365 read with
120B, 343 read with 120B and 346 read with 120B IPC
was negatived by the High Court. But her acquittal for
offences punishable under Sections 364A read with 120B
was set aside by the High Court in an appeal by the State
and she was convicted for the said offence and was
ordered to undergo imprisonment for life.
PROSECUTION CASE
4. To appreciate the controversy raised by the
parties, few relevant facts may be stated.
5. It was the case of the prosecution that one
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Rajendra Mirdha, son of Shri Ram Niwas Mirdha was
staying at 81-C, Azad Marg, C-Scheme, Jaipur. He used
to regularly wake up at about 6.30/6.45 in the morning
and to take walk for about an hour or an hour and a half.
According to the prosecution, on February 17, 1995, as
usual, he left his residence for a morning walk at about
7.00 a.m. He had hardly completed two or three rounds
and when again he reached at the road for further
rounds, he saw a white Maruti car and one man came
out of it. The said man asked Rajendra Mirdha about the
location of House No. 105 or 106. Before he could reply,
he was pushed into the car and was taken away. There
were three persons in the car having weapons. Rajendra
Mirdha did not know why he was kidnapped. After some
time, Mr. Mirdha was taken in one house. The
kidnappers then told Mr. Mirdha that they were the
members of the Khalistan Liberation Force (KLF). One of
their members, Devendra Pal Singh Bhullar was arrested
at the Indira Gandhi International Airport on the night of
January 18-19, 1995 on his return to India after the
German authorities declined to grant him asylum and
the kidnappers wanted him to be released. It was also
stated that the kidnappers had nothing against Rajendra
Mirdha personally. It was also the case of the
prosecution that at the relevant time, Shri Ram Niwas
Mirdha, father of Rajendra Mirdha was heading Joint
Parliamentary Committee, being a Chairman of the
Committee. According to the kidnappers, Shri Ram Niwas
Mirdha was thus an influential person and was in a
position to get the said act done by the Government.
According to the prosecution, PW 5 Udai Rani Mirdha,
wife of Rajendra Mirdha received a telephonic call at
about 8.40 a.m. from an unknown person who stated
that Rajendra Mirdha had been made hostage and until
and unless Devendra Pal Singh Bhullar was freed, they
would not release Rajendra Mirdha. He further stated
that neither Police should be informed nor the telephone
be tapped. The caller also stated that he would again
telephone Udai Rani Mirdha. Udai Rani informed the
above incident and a call from unknown person to
Harendra Mirdha, PW 29, younger brother of Rajendra
Mirdha. Harendra Mirdha went to Ashok Nagar Police
station and lodged First Information Report (FIR) about
abduction of his elder brother Rajendra Mirdha. A case
was registered as FIR No. 57 of 1995 (Ex.P-29) under
Section 365 IPC and investigation started. During the
investigation, according to the prosecution, it was
revealed that accused Daya Singh, Suman Sood and
other persons were involved in the abduction of Rajendra
Mirdha. Necessary steps were, therefore, taken to arrest
the accused. Daya Singh and Suman Sood were arrested
from Minneapolis Airport, Minnesota, USA on August 3,
1995 while they were illegally trying to cross over to
Canada. The United States District Judge, Northern
District of Texas, Fort Worth Division allowed the
extradition of accused Daya Singh to India inter alia for
offences punishable under Sections 343, 346, 353, 364A,
365, 420, 468, 471, 120A and 120B IPC as also for the
offences punishable under Sections 4 and 5 of the
Explosive Substances Act, 1908. Likewise, extradition of
accused Suman Sood was allowed for offences
punishable under Sections 343, 346, 353, 364A, 420,
468, 471, 120A and 120B IPC. It appears that after the
accused were brought to India, prosecution was launched
against them also for offences under the Terrorist and
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Disruptive Activities (Prevention) Act, 1987 ("TADA" for
short). Since the order of extradition did not mention trial
of offences under TADA, Daya Singh filed a Writ Petition
in this Court by invoking Article 32 of the Constitution
contending that the prosecution under TADA was
without authority, power and jurisdiction and no
prosecution could have been launched. This Court,
considering the relevant provisions of the Extradition Act,
1962, in the light of the order of extradition held the
contention well-founded and allowed the petition holding
that no prosecution under TADA could have been
instituted. The said decision was reported as Daya Singh
& Ors. v. Union of India, (2001) 4 SCC 516 : JT 2001 (5)
SCC 31. After the above decision, prosecution for
offences under TADA was dropped, the case was
transferred from the Designated Court, Ajmer under
TADA to the Court of Sessions Judge, Jaipur City which
was finally tried and decided by the Additional Sessions
Judge (Fast Track), Category No.1, Jaipur and was
registered as Sessions Case No. 26 of 2003.
DECISION OF THE TRIAL COURT
6. The prosecution examined 61 witnesses.
Several documents were also produced on record. The
parties were heard and finally on October 20, 2004, the
trial Court recorded an order of conviction as also of
sentence.
7. So far as Daya Singh is concerned, he was
convicted and sentenced as under\027
U/s. 364A IPC:
To suffer imprisonment for life and fine of
Rs.500/- in default to further suffer simple
imprisonment for six months.
U/s. 365 IPC:
To suffer imprisonment for seven years and
fine of Rs.500/- in default to further suffer simple
imprisonment for six months.
U/s. 343/120B IPC:
To suffer imprisonment for three years and
fine of Rs.500/- in default to further suffer six
months imprisonment.
U/s. 346/120B IPC:
To suffer imprisonment for two years.
The substantive sentences were ordered to run
concurrently.
8. Accused Suman Sood was convicted as
under\027
U/s. 365/120B IPC:
To suffer imprisonment for seven years and
fine of Rs.500/- in default to further suffer simple
imprisonment for six months.
U/s. 343/120B IPC:
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To suffer imprisonment for three years and
fine of Rs.500/- in default to further suffer six
months imprisonment.
U/s. 346/120B IPC:
To suffer imprisonment for two years.
DECISION OF HIGH COURT
9. Both husband and wife were aggrieved by the
order of conviction and sentence and approached the
High Court of Rajasthan. The State was also aggrieved
by the order of acquittal of Suman Sood for offence under
Section 364A, in the alternative under Section 364A read
with Section 120B, IPC and preferred an appeal. As
already noted earlier, appeals of both the accused were
dismissed by the High Court while the appeal of State of
Rajasthan against Suman Sood was allowed and she was
convicted for an offence punishable under Section 364A
read with Section 120B, IPC. The High Court also
ordered that looking to the gravity and dastardly nature
of acts and consequences, Daya Singh as well as Suman
Sood "shall not be released from the prison unless they
served out at least twenty years of imprisonment
including the period already undergone by them".
APPEALS IN SUPREME COURT
10. The above orders have been challenged by the
appellants-accused in this Court.
11. On August 21, 2006, leave was granted in
appeal filed by Suman Sood. Printing was dispensed
with and appeal was ordered to be heard on SLP Paper
Books. Parties were directed to file additional
documents. It appears that an application for bail was
submitted by Suman Sood stating therein that she had
undergone the sentence for which conviction had been
recorded by the trial Court against her and she had to
remain in jail because of the order of conviction recorded
by the High Court for an offence punishable under
Section 364A read with 120B, IPC. She, therefore,
prayed that she be released on bail. The Court, however,
instead of granting prayer of bail, directed the Registry to
place the matter for final hearing. Daya Singh had also
preferred an appeal against his conviction. On February
6, 2007, when the appeal of Suman Sood was called out
for hearing, it was stated that Daya Singh was convicted
by the trial Court as well as by the High Court and he
had also filed an appeal, but it was at the stage of S.L.P.
and notice was issued, but no leave was granted. It was
further stated that judgment of the High Court was
common in both the matters, but the matter of Daya
Singh was not placed on Board. The Court, therefore,
directed the Registry to place the papers before the
Hon’ble the Chief Justice of India for obtaining
appropriate orders so that both the matters could be
placed before one Bench. Now, all the matters have been
placed for hearing before us.
SUBMISSIONS BY APPELLANTS
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12. We have heard Mr. Sushil Kumar, Senior
Advocate for Suman Sood, Ms. Kamini Jaiswal, Advocate
for Daya Singh for the appellants-accused and Mr. Milind
Kumar, Advocate for the respondent-State.
13. Learned Senior Advocate Mr. Sushil Kumar for
Suman Sood and Ms. Kamini Jaiswal for Daya Singh
contended that Extradition Treaty had been entered into
between the United States of America and Great Britain
in 1931. In the said Treaty, there was no reference of
offence of kidnapping for ransom punishable under
Section 364A, IPC. Prosecution and trial for offences
under Section 364A and/or Section 364A read with
Section 120B, IPC was, therefore, illegal, without
jurisdiction and conviction is liable to be set aside. It
was also urged that no case had been made out against
the appellants for an offence punishable under Section
364A, IPC inasmuch as ingredients of Section 364A, IPC
had not been established by the prosecution. No witness
had stated that the accused had administered any threat
or asked to pay any ransom for the release of victim
Rajendra Mirdha. Fax messages received by Shri Ram
Niwas Mirdha made no reference of ransom. Again, there
was no evidence worth the name which would prove that
Daya Singh was a member of KLF or he had any link with
Bhullar. It was urged that identity of the accused was
not established beyond doubt and the prosecution
witnesses had admitted that photographs of accused
were shown on Television and printed in Newspapers.
Identification Parade, therefore, was mere farce and an
empty formality. It was also not proved that House No.
B-117, Model Town exclusively belonged to Daya Singh
wherein Rajendra Mirdha was detained. Ownership of
white Maruti car equally was not proved. There was no
evidence as to conspiracy and both the Courts were
wrong in convicting the appellants for the offences with
which he was charged.
14. On behalf of Suman Sood, certain additional
arguments were advanced. It was contended that
extradition was not granted for an offence punishable
under Section 365, IPC. She, therefore, could not have
been prosecuted and tried nor could have been convicted
for the said offence. Her conviction, hence, is liable to be
quashed and set aside. It was also urged that when she
was acquitted for an offence punishable under Section
364A, IPC and in the alternative for an offence
punishable under Section 364A/120B, IPC, the High
Court was clearly wrong in convicting her under Section
364A read with Section 120B, IPC. It was also urged that
the High Court had ignored an important consideration
that she was not an accused in Vaishali Nagar FIR No. 44
of 1995. In FIR No.84 of 1995 of Malviya Nagar, she was
prosecuted along with her husband Daya Singh for
offences punishable under Sections 420, 468, 471, IPC
and also under Section 4 of the Explosive Substances
Act, 1908, but the trial Court acquitted her observing
that there was no evidence on the basis of which she
could be convicted. Leave to Appeal against acquittal of
Suman Sood was also dismissed by the High Court and
the said decision has attained finality. In view of the
above facts, even if it is held that her conviction for other
offences is not illegal, the order of the High Court setting
aside acquittal for an offence punishable under Section
364A read with Section 120B, IPC deserves to be set
aside.
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SUBMISSIONS BY STATE
15. On behalf of the State, it was submitted that
order of conviction and sentence recorded by the High
Court needs no interference. Regarding extradition, it
was stated that Extradition Treaty was of 1931. Section
364A, IPC was inserted in the statute book in the year
1993. Obviously, therefore, no reference was found of
the said provision in the Treaty. But in the Extradition-
Order, dated June 11, 1997, passed by the American
Court, express reference was made to Section 364A, IPC
and hence, no objection can be raised against trial of
accused under the said provision.
16. Similarly, extradition of accused Daya Singh
was also allowed for offences punishable under Sections
4 and 5 of the Explosive Substances Act, 1908. The trial
of the accused, therefore, cannot be held to be unlawful
or without legal sanction.
17. On merits, it was submitted that there was
sufficient evidence of kidnapping and also of ransom,
which was demand of release of Bhullar. The evidence
established kidnapping, abduction and detention of
Rajendra Mirdha in House No. B-117, Model Town,
Ashok Nagar, Jaipur by Daya Singh. It was also proved
that white Maruti car in which victim was taken,
belonged to Daya Singh. It was, therefore, submitted
that the appeals deserve to be dismissed by confirming
the order of conviction and sentence passed by the High
Court.
18. We have given our anxious and most
thoughtful consideration to the rival submissions of both
the sides. We have also perused the judgments of both
the courts and have minutely gone through the evidence
on record.
EXTRADITION OF ACCUSED
19. As to extradition, it may be stated that on
December 22, 1931, a Treaty had been entered into
between the United States of America and Great Britain.
It provided reciprocal extradition of accused/convicts of
any of the crimes or offences enumerated in Article 3.
The said Article, inter alia included the following
crimes/offences;
\005 \005.
7. Kidnapping or false imprisonment
\005. \005.
9. abduction
\005. \005.
20. Forgery, etc.
Article 7 reads thus;
A person surrendered can in no case
be kept in custody or be brought to trial
in the territories of the High Contracting
Party to whom the surrender has been
made for any other crime or offence, or on
account of any other matters, than those
for which the extradition shall have taken
place, until he has been restored or has
had an opportunity of returning, to the
territories of the High Contracting Party
by whom he has been surrendered.
20. Article 14 of the Treaty expressly stated that
His Britannic Majesty acceded to the Treaty on behalf of
any of his Dominions named in the Treaty. It, inter alia
included India.
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21. The Extradition Treaty of 1931 continues to
hold the field. In Thirad v. Ferrandina, 355 Fred Supp
1155, the Government of India sought the extradition of
J, an Indian citizen and a resident alien in the USA. The
allegation against J was that while serving in Indian
Navy, he embezzled huge sum of money. Extradition of J
was, therefore, demanded. J challenged the action on the
ground that 1931 Treaty was between USA and Great
Britain when India was a Dominion of Great Britain. In
1950, India became Republican State and the Treaty
which was as British-India did not survive. The
contention, however, was negatived and extradition of J
was granted.
22. In Rosiline George v. Union of India, (1994) 2
SCC 80 : JT 1993 (6) SC 51, this Court referring to
leading decisions on the point held that it is well-settled
legal proposition in International Law that a change in
the form of Government of a contracting State would not
put an end to its treaties. India, even under British Rule,
had retained its personality as a State under
International Law. It was a member of the United
Nations in its own right. Grant of Independence in 1947
and status of Sovereign Republic in 1950 did not put an
end to the treaties entered into by the British
Government prior to August 15, 1947 or January 26,
1950 on behalf of India.
23. The Extradition Treaty between India and
United States of America entered in the year 1931,
therefore, holds the field, is subsisting and is operative.
24. Moreover, in the instant case, there is Final
Judgment of Certification of Extraditability dated June
11, 1997, which was in the nature of judgment, order or
decree, expressly granting extradition of Daya Singh and
Suman Sood for various offences alleged to have been
committed by them. Section 364A, IPC has been
mentioned explicitly in the said judgment. Both these
documents have been proved by PW 56 S.P. Khadagwat.
25. In fact, in the light of the order of extradition of
Daya Singh for the offences specified in the extradition
decree, a contention was raised by him in this Court that
he could not be prosecuted for offences punishable under
TADA, which contention had been upheld by this Court
in Daya Singh.
26. In the operative part, the Court stated;
"In view of the aforesaid position in law,
both on international law as well as the
relevant statute in this country, we dispose of
these cases with the conclusion that a
fugitive brought into this country under an
Extradition Decree can be tried only for the
offences mentioned in the extradition
decree and for no other offence and the
Criminal Courts of this country will have no
jurisdiction to try such fugitive for any other
offence".
(emphasis supplied)
27. It, therefore, cannot be successfully contended
that the appellants-accused could not have been
prosecuted and tried for an offence punishable under
Section 364A, IPC. The contention of the appellants,
therefore, has no substance and must be rejected.
28. On behalf of Suman Sood, one more argument
was advanced. It was contended that Extradition Order
in her case did not refer to Section 365, IPC but both the
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Courts convicted her for the said offence under Section
365/120B, IPC which was illegal, unlawful and without
authority of law. Her conviction and imposition of
sentence for an offence punishable under Section 365
read with Section 120B, IPC, therefore, is liable to be set
aside.
29. We find no substance in the said contention as
well. It is no doubt true that Section 365, IPC had not
been mentioned in the order of extradition. But as
already seen earlier, Section 364A, IPC had been
included in the decree. Now, it is well-settled that if the
accused is charged for a higher offence and on the
evidence led by the prosecution, the Court finds that the
accused has not committed that offence but is equally
satisfied that he has committed a lesser offence, then he
can be convicted for such lesser offence. Thus, if A is
charged with an offence of committing murder of B, and
the Court finds that B has not committed murder as
defined in Section 300, IPC but is convinced that B has
committed an offence of culpable homicide not
amounting to murder (as defined in Section 299, IPC),
there is no bar on the Court in convicting B for the said
offence and no grievance can be made by B against such
conviction.
30. The same principle applies to extradition
cases. Section 21 of the Extradition Act, 1962 as
originally enacted read thus;
"Section 21: Accused or convicted person
surrendered or returned by foreign State or
Commonwealth country not to be tried for
previous offence:- Whenever any person
accused or convicted of an offence, which if
committed in India, would be an extradition
offence, is surrendered or returned by a foreign
State or Commonwealth country, that person
shall not, until he has been restored or has
had an opportunity of returning to that State
or country, be tried in India for an offence
committed prior to the surrender or return,
other than the extradition offence proved by
the facts on which the surrender or return is
based."
31. The section, however, was amended in 1993 by
the Extradition (Amendment) Act, 1993 (Act 66 of 1993).
The amended section now reads as under;
"Section 21 - Accused or convicted person
surrendered or returned by foreign State
not to be tried for certain offences. -
Whenever any person accused or convicted of
an offence, which, if committed in India would
be an extradition offence, is surrendered or
returned by a foreign State, such person shall
not, until he has been restored or has had an
opportunity of returning to that State, be tried
in India for an offence other than-
(a) the extradition offence in relation to which
he was surrendered or returned; or
(b) any lesser offence disclosed by the facts
proved for the purposes of securing his
surrender or return other than an offence
in relation to which an order for his
surrender or return could not be lawfully
made; or
(c) the offence in respect of which the foreign
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State has given its consent."
(emphasis supplied)
32. It is, therefore, clear that the general principle
of administration of criminal justice applicable and all
throughout applied to Domestic or Municipal Law has
also been extended to International Law or Law of
Nations and to cases covered by Extradition-Treaties.
33. In Daya Singh, this Court dealing with
amended Section 21 of the Extradition Act, stated;
"The provision of the aforesaid section
places restrictions on the trial of the person
extradited and it operates as a bar to the trial
of the fugitive criminal for any other offence
until the condition of restoration or
opportunity to return is satisfied. Under the
amended Act of 1993, therefore, a fugitive
could be tried for any lesser offence,
disclosed by the facts proved or even for the
offence in respect of which the foreign State
has given its consent. It thus, enables to try
the fugitive for a lesser offence, without
restoring him to the State or for any other
offence, if the State concerned gives its
consent".
(emphasis supplied)
34. Now, it cannot be disputed that an offence
under Section 365, IPC is a lesser offence than the
offence punishable under Section 364A, IPC. Since
extradition of Suman Sood was allowed for a crime
punishable with higher offence (Section 364A, IPC), her
prosecution and trial for a lesser offence (Section 365,
IPC) cannot be held to be without authority of law. The
contention, therefore, has no force and is hereby rejected.
MERITS
35. Having disposed of preliminary objections
raised by the appellants, let us now come to the merits of
the matter.
DAYA SINGH LAHORIYA
36. So far as kidnapping of Rajendra Mirdha is
concerned, it has been clearly established and cogently
proved by prosecution evidence. In our opinion, the trial
Court was right in relying upon testimony of PW 1 Prem
Devi, maid servant of Rajendra Mirdha, PW 2 Rakesh
Kumar, son of PW 1, PW 3 Hemram, Chef at the House of
Rajendra Mirdha, PW 5 Udai Rani Mirdha, wife of
Rajendra Mirdha, PW 6 Kishore Singh, a neighbour of
victim Rajendra Mirdha, who in his evidence stated that
he saw a white Maruti car in that area on the previous
night of February 16, 1995 at about 8.00 p.m., and most
importantly, PW 9, victim Rajendra Mirdha himself. PW
29 Harendra Mirdha, real brother of Rajendra Mirdha
who was informed by Udai Rani Mirdha about
kidnapping of her husband Rajendra Mirdha and on the
basis of the said information, Harendra Mirdha lodged a
complaint. PW 50 Shri Ram Niwas Mirdha and PW 36
Hari Kishen also corroborated the incident of kidnapping
of Rajendra Mirdha. The trial Court, in our opinion,
considered the evidence of the witnesses in its proper
perspective and came to the conclusion that Rajendra
Mirdha was kidnapped. We see no infirmity in the
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prosecution evidence nor in the finding recorded by both
the courts. Kidnapping of Rajendra Mirdha is thus clearly
established.
37. It was contended by the learned counsel for
the appellants that it was not proved beyond reasonable
doubt that kidnapping of Rajendra Mirdha was for
ransom or any demand was made by accused Daya Singh
for release of Rajendra Mirdha. It may, however, be
stated that it was the case of the prosecution from the
very beginning that Rajendra Mirdha was kidnapped only
to get Bhullar, a member of Khalistan Liberation Force
(KLF) released and since Shri Ram Niwas Mirdha, father
of victim Rajendra Mirdha was holding an important
office of Chairman of Joint Parliamentary Committee, he
could exercise his influence to get said Bhullar released.
PW 5 Udai Rani Mirdha, in her evidence, clearly deposed
that after her husband was kidnapped at about 7.00 a.m.
on February 17, 1995, she received a phone call from
kidnappers which was picked up by her. The caller told
her that Rajendra Mirdha had been kidnapped by them.
The caller also told Udai Rani to write down name of
Bhullar who should be released by exercising influence
by her father-in-law Shri Ram Niwas Mirdha. PW 9
Rajendra Mirdha also deposed that the kidnappers told
him that they were the members of Khalistan Liberation
Force (KLF) and wanted one of the members (Bhullar) to
be released who had been arrested. PW 29 Harendra
Mirdha corroborated the version of Udai Rani. PW 50
Shri Ram Niwas Mirdha also stated that he used to
receive calls from kidnappers that Bhullar should be
released else he would have to face serious
consequences. The witness also deposed that the caller
stated that the witness could even talk to the Prime
Minister for release of Bhullar and the Prime Minister
would not decline such request. It is true that PW 52
Rakesh Kumar, owner of the Fax shop at Rohtak deposed
that one fax message was sent to Delhi while the other
was sent to Chandigarh. It is also true that he expressed
his inability to identify the accused as sender of fax
messages. But the witness had been declared ’hostile’ by
the prosecution and while answering a question by the
Public Prosecutor, the witness stated that he had
correctly identified the person in jail who had sent fax
messages but added that it was not Daya Singh. He
stated that it was not true to say that he was refusing to
identify the accused due to fear.
38. It is true that two fax messages (Ex. P-19 and
P-20) sent by Rajendra Mirdha and received by Shri Ram
Niwas Mirdha made no reference to any demand or
ransom. In our judgment, however, the message had
already been conveyed through a telephone call to Udai
Rani Mirdha, wife of victim Rajendra Mirdha as also to
Shri Ram Niwas Mirdha, father of Rajendra Mirdha.
Obviously, therefore, the demand was clearly
communicated for which Rajendra Mirdha was
kidnapped. It, therefore, cannot be said that since
nothing was mentioned in the fax message by victim
Rajendra Mirdha, his kidnapping, abduction and
detention was not for ransom.
39. From what is stated above, in our opinion,
neither the trial Court nor the High Court has committed
either an error of fact or an error of law in convicting
accused Daya Singh for the offences punishable under
Sections 365 as also 364A, IPC. So far Suman Sood is
concerned, we will deal with her involvement in the case
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at an appropriate stage.
40. The evidence as to purchase of House No. B-
117, Model Town, Ashok Nagar, Jaipur and exclusive
possession of the said house by the accused is
established and prosecution evidence has been accepted
by both the courts. Likewise, ownership of white Maruti
car bearing Registration No. RJ-14 IC 2005 and
possession thereof by the accused is equally proved.
Nothing was shown to us how both the courts were
wrong in relying upon the evidence and why such
evidence should be discarded. We are, therefore, unable
to accept the submission of the appellants that it was not
proved that the accused were in possession of House
No.B-117, Model Town or Maruti car in which victim
Rajendra Mirdha was kidnapped did not belong to them.
41. Regarding identification of accused, both the
courts have considered the evidence of prosecution
witnesses and recorded a finding that identity of the
accused was established beyond doubt. We are also
satisfied that evidence of PW 9, victim Rajendra Mirdha
was natural and inspired confidence. His evidence
established that he was kidnapped in the morning of
February 17, 1995 and he remained with the kidnappers
up to the date of encounter on February 25, 1995, i.e. for
eight-nine days. Obviously, therefore, his evidence was
of extreme importance. It was believed by both the
courts and we see nothing wrong in the approach of the
courts below. It is true and admitted by the prosecution
witnesses that the photographs of the accused were
shown on television as also were published in
newspapers. That, however, does not in any way
adversely affect the prosecution, if otherwise the evidence
of prosecution witnesses is reliable and the Court is
satisfied as to identity of the accused. Even that ground,
therefore, cannot take the case of the appellants further.
It is thus proved beyond doubt that the accused had
committed offences punishable under Section 343 read
with 120B, IPC as also under Section 346 read with
120B, IPC.
42. At the time of hearing of appeals, a list was
given by the learned counsel for the State that several
cases had been registered against Daya Singh. The
learned counsel for the accused, however, submitted that
the list was not accurate and in most of the cases, either
Daya Singh was not prosecuted or the prosecution had
resulted in acquittal except in few cases where there was
conviction or the proceedings were pending. In the final
written submissions, the State Counsel clarified the
status as regards all cases and it appears that the
learned counsel appearing for Daya Singh was right. In
some of the cases, there was no prosecution against the
accused. In some other cases, the accused was acquitted
except in few cases where either there was conviction or
the matters were sub-judice. We are, however, deciding
the present case in the light of evidence before the Court
and express no opinion on other cases.
43. From the above discussion and findings
recorded, in our considered opinion, neither the trial
Court nor the High Court has committed any error in
convicting appellant-accused Daya Singh for the offences
punishable under Sections 365, 364A, 343/120B and
346/120B, IPC.
SUMAN SOOD
44. So far as Suman Sood is concerned, it may be
stated that the trial Court did not convict her for any
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offence independently. She was convicted for offences
punishable under Sections 365/120B, 343/120B and
346/120B, IPC.
CRIMINAL CONSPIRACY
45. The learned counsel for Suman Sood
strenuously urged that there was no evidence against her
as to criminal conspiracy. She was neither in the car in
which Rajendra Mirdha was kidnapped nor one of the
members of the ’kidnapping-operation’ team. There is
also no evidence to show that she was aware of the plan
of other accused and was a part to such conspiracy. Even
if the entire prosecution story is believed, it can be said
that after Rajendra Mirdha was kidnapped and was taken
to House No. B-117, Model Town, Ashok Nagar, Jaipur,
she was found there. Now, it is the case of the
prosecution that she was the wife of accused Daya Singh
and, therefore, her presence in her own house with her
husband was most natural. The said fact, without
anything more, therefore, cannot connect her with the
crime said to have been committed either by her husband
or by someone else.
46. At the first blush, the argument appears to be
attractive, but on closer scrutiny, we find no substance
in it. Prosecution case is very clear on the point.
Accoridng to witnesses, Suman Sood was all through out
in House No.B-117, Model Town, where Rajendra Mirdha
was kept. In fact, it was she who was looking after victim
Rajendra Mirdha. She provided him food, medicine, etc.
It is, therefore, difficult to believe that she was not aware
of kidnapping of Rajendra Mirdha nor that she was
unaware of the fact that the victim was kept under
wrongful confinement in a manner which would indicate
that confinement of Rajendra Mirdha was at a secret
place.
47. True it is that there is no direct evidence to
show that Suman Sood was a party to the conspiracy in
kidnapping Rajendra Mirdha and in detaining him at
House No.B-117, Model Town. But it is well settled that
an inference as to conspiracy can be drawn from the
surrounding circumstances inasmuch as normally, no
direct evidence of conspiracy is available.
48. In Halsbury’s Laws of England, (4th Edn.; Vol.
11; para 58); it has been stated;
"Conspiracy consists in the agreement of
two or more persons to do an unlawful act, or
to do a lawful act by unlawful means. It is an
indication offence at common law, the
punishment for which is imprisonment or fine
or both in the discretion of the Court.
The essence of the offence of conspiracy
is the fact of combination by agreement. The
agreement may be express or implied, or in
part express and in part implied. The
conspiracy arises and the offence is committed
as soon as the agreement is made; and the
offence continues to be committed so long as
the combination persists, that is until the
conspiratorial agreement is terminated by
completion of its performance or by
abandonment or frustration or however, it may
be. The actus reus in a conspiracy is the
agreement to execute the illegal conduct, not
the execution of it. It is not enough that two or
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more persons pursued the same unlawful
object at the same time or in the same place; it
is necessary to show a meeting of minds, a
consensus to effect an unlawful purpose. It is
not, however, necessary that each conspirator
should have been in communication with every
other."
49. In Bhagwan Swarup v. State of Maharashtra,
(1964) 2 SCR 368 : AIR 1965 SC 682; this Court stated;
"The essence of conspiracy is, therefore,
that there should be an agreement between
persons to do one or other of the acts
described in the section. The said agreement
may be proved by direct evidence or may be
inferred from acts and conduct of the parties.
There is no difference between the mode of
proof of the offence of conspiracy and that
of any other offence; it can be established
by direct evidence or by circumstantial
evidence". (emphasis supplied)
50. In Baburao Bajirao Patil v. State of
Maharashtra, (1971) 3 SCC 432, this Court observed that
there is seldom, if ever, that direct evidence of conspiracy
is forthcoming. Conspiracy from its very nature is
conceived and hatched in complete secrecy, for otherwise
the whole purpose would be frustrated.
51. In Kehar Singh v. State (Delhi Administration),
(1988) 3 SCC 609 : AIR 1988 SC 1883, Shetty, J. said;
"Generally, a conspiracy is hatched in
secrecy and it may be difficult to adduce direct
evidence of the same. The prosecution will
often rely on evidence of acts of various parties
to infer that they were done in reference to
their common intention. The prosecution will
also more often rely upon circumstantial
evidence. The conspiracy can be undoubtedly
proved by such evidence direct or
circumstantial. But the Court must enquire
whether the two persons are independently
pursuing the same and or they have come
together to the pursuit of the unlawful object.
The former does not render them conspirators,
but the latter is. It is, however, essential that
the offence of conspiracy requires some kind of
physical manifestation of agreement. The
express agreement, however, need not be
proved. Nor actual meeting of two persons is
necessary. Nor it is necessary to prove the
actual words of communication. The evidence
as to transmission of thoughts sharing the
unlawful design may be sufficient".
52. In Nazir Khan v. State of Delhi, (2003) 8 SCC
461 : AIR 2003 SC 4427 : JT 2003 (Supp) 1 SC 200, this
Court observed;
"Privacy and secrecy are more
characteristics of a conspiracy, than of a loud
discussion in an elevated place open to public
view. Direct evidence in proof of a conspiracy is
seldom available, offence of conspiracy can be
proved by either direct or circumstantial
evidence. It is not always possible to give
affirmative evidence about the date of the
formation of the criminal conspiracy, about the
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persons who took part in the formation of the
conspiracy, about the object, which the
objectors set before themselves as the object of
conspiracy, and about the manner in which
the object of conspiracy is to be carried out, all
this is necessarily a matter of inference".
53. Keeping in view the principles laid down in the
above decisions, if we consider the case of Suman Sood,
it is clear that an inference drawn by both the Courts as
to criminal conspiracy by her cannot be held ill-founded.
From the prosecution evidence, it is amply proved that
Rajendra Mirdha had been kidnapped by Daya Singh and
his ’companions’. He was to be kept at a secret place.
Suman Sood was very much aware of the said fact. In
fact, she was all throughout keeping watch on the victim.
So much so that she used to give food, medicine, etc.
since victim Rajendra Mirdha was not keeping good
health. In the facts and circumstances of the case,
therefore, in our considered view, both the courts were
right in convicting Suman Sood for offences punishable
under Sections 365 read with 120B, 343 read with 120B
and 346 read with 120B, IPC. We find no infirmity in the
reasoning or conclusion of the courts below and see no
ground to interfere with the said finding.
KIDNAPPING FOR RANSOM
54. We are, however, of the view that the High
Court was not right in reversing acquittal of Suman Sood
for an offence punishable under Section 364A/120B, IPC.
Section 364A relates to kidnapping for ransom. Let us
consider the nature and ambit of an offence of
kidnapping for ransom.
55. Offences of kidnapping and abduction were
included in the Indian Penal Code in 1860 when the Code
was enacted. An offence of kidnapping for ransom,
however, did not find place then. It was only in 1993 that
by Act 42 of 1993, Section 364A was inserted. The
offence is serious in nature and punishment prescribed
for the crime is death sentence or imprisonment for life
and also of payment of fine.
56. Section 364A reads thus:
364A. Kidnapping for ransom, etc
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
159[any foreign State or international inter-
governmental organisation 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.
57. Before the above section is attracted and a
person is convicted, the prosecution must prove the
following ingredients;
(1) The accused must have kidnapped, abducted
or detained any person;
(2) He must have kept such person under custody
or detention; and
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(3) Kidnapping, abduction or detention must have
been for ransom.
[see also Malleshi v. State of Karnataka, (2004) 8 SCC 95]
58. The term ’ransom’ has not been defined in the
Code.
59. As a noun, ’ransom’ means "a sum of money
demanded or paid for the release of a captive". As a verb,
’ransom’ means "to obtain the release of (someone) by
paying a ransom", "detain (someone) and demand a
ransom for his release". "To hold someone to ransom"
means "to hold someone captive and demand payment
for his release". (Concise Oxford English Dictionary,
2002; p.1186).
60. Kidnapping for ransom is an offence of
unlawfully seizing a person and then confining the
person usually in a secrete place, while attempting to
extort ransom. This grave crime is sometimes made a
capital offence. In addition to the abductor a person who
acts as a go between to collect the ransom is generally
considered guilty of the crime.
61. According to Advanced Law Lexicon, (3rd Edn.,
p.3932); "Ransom is a sum of money paid for redeeming
a captive or prisoner of war, or a prize. It is also used to
signify a sum of money paid for the pardoning of some
great offence and or setting the offender who was
imprisoned".
62. Stated simply, ’ransom’ is a sum of money to
be demanded to be paid for releasing a captive, prisoner
or detenu.
63. In the present case, there is no evidence at all
\026 direct or indirect \026 to connect Suman Sood with
kidnapping of Rajendra Mirdha for ransom. Admittedly,
she was not a member of the party in the Maruti car in
which Rajendra Mirdha was kidnapped. It is not even an
allegation of the prosecution that Suman Sood had at
any occasion made demand for release of Bhullar or she
was present when such telephone calls were made to
family members of Rajendra Mirdha (Udai Rani Mirdha,
wife of Rajendra Mirdha or Shri Ram Niwas Mirdha,
father of Rajendra Mirdha). There is nothing to show that
Suman Sood was a member of Khalistan Liberation Force
(KLF). There is also no evidence to show that Suman
Sood was even knowing Bhullar or was interested in his
release. PW 9 Rajendra Mirdha admittedly remained in
House No. B-117, Model Town where Suman Sood was
present for about eight-nine days from February 17,
1995 to February 25, 1995. Rajendra Mirdha nowhere
stated in his deposition that during the entire period,
Suman Sood had told him that he was kidnapped and
kept there so that one of the members of Khalistan
Liberation Force (KLF) should be released. We have
upheld her conviction for offences punishable under
Sections 365/120B, 343/120B and 346/120B, IPC
keeping in view the fact that Rejendra Mirdha was
kidnapped by Daya Singh and was kept at a secret place
(House No. B-117) and Suman Sood was staying in the
house and was aware that Rajendra Mirdha was
kidnapped by her husband and was kept at secret place.
But there is no iota of evidence to connect Suman Sood
with ransom and the alleged demand of accused Daya
Singh for release of Bhullar.
ACQUITTAL BY TRIAL COURT
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64. According to the trial Court, the prosecution
had failed to prove charge against Suman Sood for an
offence punishable under Section 364A or 364A read
with 120B, IPC ’beyond reasonable doubt’ inasmuch as
no reliable evidence had been placed on record from
which it could be said to have been established that
Suman Sood was also a part of ’pressurize tactics’ or had
terrorized to victim or his family members to get
Devendra Pal Singh Bhullar released in lieu of Rajendra
Mirdha. The trial Court, therefore, held that she was
entitled to benefit of doubt.
65. In the facts and circumstances in their totality,
by recording such finding, the trial Court has neither
committed an error of fact nor an error of law.
66. As noted in earlier part of the judgment,
Suman Sood is the wife of accused Daya Singh. It was,
therefore, natural that she was staying with her husband
in House No.B-117, Model Town and merely on that
ground, it cannot be held that she was in ’continued
association’ and involved as a co-conspirator in criminal
conspiracy with Daya Singh in kidnapping of Rajendra
Mirdha and in keeping the victim in House No.B-117.
The Courts below, however, held her guilty for offences
punishable under Sections 365/120B, 343/120B and
346/120B, IPC and we have upheld the said conviction
as according to us, both the Courts were right in drawing
an inference that she must be presumed to be aware of
kidnapping of Rajendra Mirdha and in detaining him.
She was all throughout present in the said house and
was very well aware that the victim had been kidnapped
and was kept at a secret place. Because of these
circumstances, we have negatived the argument of the
learned counsel for Suman Sood and held that the ratio
laid down in State (NCT) of Delhiv v. Navjot Sandhu @
Afsan Guru, (2005) 11 SCC 600 : JT 2005 (7) SC 1 would
not apply wherein wife of the accused was acquitted by
this Court.
67. That, however, does not mean that Suman
Sood was also a part of conspiracy in kidnapping for
ransom. No witness has directly or even indirectly
deposed about ransom by Suman Sood. The learned
advocate appearing for the respondent-State also could
not point out anything from which it can be said that she
had committed an offence punishable under Section
364A read with Section 120B, IPC.
68. It was, therefore, submitted by the learned
counsel appearing for Suman Sood that the trial Court
was wholly justified in acquitting her for an offence for
kidnapping for ransom and no other view was possible.
But even if it is assumed for the sake of argument that
the other view was possible, it is settled law that in case
two views are possible and the trial Court has acquitted
the accused, the High Court would not interfere with
such order of acquittal.
69. In this connection, reliance was placed on a
recent decision of this Court in Chandrappa & Ors. v.
State of Karnataka, JT 2007 (3) SC 316 : (2007) 3 Scale
90. Considering the relevant provisions of the Code of
Criminal Procedure, 1898 and of 1973 and referring to
leading decisions of the Privy Council as well as of this
Court, one of us (C.K. Thakker, J.) stated;
"From the above decisions, in our
considered view, the following general
principles regarding powers of appellate Court
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while dealing with an appeal against an order
of acquittal emerge;
(1) An appellate Court has full power to
review, reappreciate and reconsider the
evidence upon which the order of
acquittal is founded;
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or
condition on exercise of such power and
an appellate Court on the evidence
before it may reach its own conclusion,
both on questions of fact and of law;
(3) Various expressions, such as,
’substantial and compelling reasons’,
’good and sufficient grounds’, ’very
strong circumstances’, ’distorted
conclusions’, ’glaring mistakes’, etc. are
not intended to curtail extensive powers
of an appellate Court in an appeal
against acquittal. Such phraseologies
are more in the nature of ’flourishes of
language’ to emphasize the reluctance
of an appellate Court to interfere with
acquittal than to curtail the power of
the Court to review the evidence and to
come to its own conclusion.
(4) An appellate Court, however, must bear
in mind that in case of acquittal, there
is double presumption in favour of the
accused. Firstly, the presumption of
innocence available to him under the
fundamental principle of criminal
jurisprudence that every person shall
be presumed to be innocent unless he
is proved guilty by a competent court of
law. Secondly, the accused having
secured his acquittal, the presumption
of his innocence is further reinforced,
reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are
possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded
by the trial court".
70. On the facts and in the circumstances in its
entirety and considering the evidence as a whole, it
cannot be said that by acquitting Suman Sood for
offences punishable under Section 364A read with 120B,
IPC, the trial Court had acted illegally or unlawfully. The
High Court, therefore, ought not to have set aside the
finding of acquittal of accused Suman Sood for an offence
under Section 364A read with 120B, IPC. To that extent,
therefore, the order of conviction and sentence recorded
by the High Court deserves to be set aside.
FINAL ORDER
71. For the aforesaid reasons, the appeal filed by
Daya Singh deserves to be dismissed and is, accordingly,
dismissed and the order of conviction and sentence
recorded against him by the trial Court and confirmed by
the High Court is upheld.
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72. So far as accused Suman Sood is concerned,
an order of conviction and sentence recorded by the trial
Court and upheld by the High Court for offences
punishable under Sections 365/120B, 343/120B and
346/120B, IPC is confirmed and upheld. Her conviction
and order of sentence for offence punishable under
Section 364A read with 120B, IPC passed by the High
Court, however, is set aside and her acquittal for the said
offence recorded by the trial Court is restored.
73. Appeals are accordingly disposed of.