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TMI Blog2007 (5) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... ences 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 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 Rajendra Mirdha, son of Shri Ram Niw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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; 7. Kidnapping or false imprisonment. 9. abduction. 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. 21. The Extradition Treaty of 1931 continues to hold the field. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar 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 Chand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 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 mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 (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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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