Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 E 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 F Act of 1993, therefore, a fugitive could be tried for cny 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 H A offence (Section 364A, !PC), her prosecution and trial for a lesser offence (Section 365, !PC) cannot be hdd 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 C clearly established and cogently proved by prosecution evidence. In our opinion, the trial Court was right in relying upon testimony of PW I Prem Devi, maid servant of Rajendra Mirdha, PW 2 Rakesh Kumar, son of PW I, PW 3 Hemram, Chef at the House of Rajendra Mirdha, PW 5 Udai Rani Mirdha, wife ofRajendra Mirdha, PW 6 Kishore Singh, a neighbour of victim Rajendra Mirdha, who in his evidence stated that he saw a white Maruti car D 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 E Niwas Mirdha and PW 36 Hari Kishen also corroborated the incident of kid11apping 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 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 G prosecution from the very beginning that Rajendra Mirdha was kidnapped only to get Bhullar, a member of Khalistan Liberation Force (KLF) released and s'nce Shri Ram Niwas Mirdha, father of victim Rajendra Mirdha was holdll\g an important office of Chairman of Joint Parliamentary Committee, he could·. exercise his influence to get said Bhullar released. PW 5 Udai Rani Mirdhft, in her evidence, clearly deposed that after her husband was kidnapped · H at aboµt 7.00 a.m. on February 17, 1995, she received a phone call from ,.,. SUMAN SOOD @ KAMALJEET KAUR r. ST A TE OF RAJASTHAN [ C. K. THAKKER, J.] 5 J 5 kidnappers which was picked up by her.
The caller told her that Rajendra A 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 B 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 c 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 D 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 E 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, F 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, !PC. So far Suman Sood is concerned, we will deal with her G involvement in the case 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 H 5Hi (2007] 6 S.C.R. A the courts. Likewise, ownership of white Maruti car bearing Registration No. RJ-14 IC 2005 and possession there,of by the accused is equafiy 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, um1ble to accept the submission of the appellants that it was not proved that the .accused were in possession of House No.8-117, Model Town or Maruti B car in which victim Rajendra Mirdha was kidnapped did not belong to them.
41. Regarding identification of ac:cused, 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 C 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 D 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 E appellants further. It is thus proved beyond doubt that the accused had committed offences punishable under Section 343 read with 1208, !PC as also under Section 346 read with 1208, !PC.
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 p 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. G In some of the cases, there was no pros,ecution against the accused. In some other 1cases, the accused was acquitted except in few cases where either there was cpnviction or the matters were sub-judice. We are, however, deciding the preseyt case in the light of evidence before the Court and express no opinion on otller cases. SUMAN SOOD@KAMALJEET KAUR"· STATE OF RAJASTHAN [C.K. THAKKER, J.] 5 J 7
43. From the above discussion and findings recorded, in our considered A opinion, neither the tria[ Court nor the High Court has committed any error in convicting appellant-accused Daya Singh for the offences punishable under Sections 365, 364A, 343/1208 and 346/1208, 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 offence independently. She was convicted B for offences punishable under Sections 365/1208, 343/1208 and 346/1208, IPC. -· -{ CRIMINAL CONSPIRACY
45. The learned counsel for Suman Sood strenuously urged that there c 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 D 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. According 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 F 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 plaGe.
47. True it is that there is no direct evidence to show that Suman Sood G 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. [2007) 6 S.C.R.
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. c 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 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 :10t, 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 E (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 (Deihi Administration), [1988] 3 SCC 609 SUMAN SOOD@KAMALJEET KAUR r. STATE OF RAJAS THAN [C.K. THAKK.ER, J.l 5 J 9 .._ : 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 B 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 fonner does not render them conspirators, but the latter is. It is, however, essential that the offence of conspiracy c 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 I 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 E 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 F about the manner in which th~ object of conspiracy is to be carried r 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. G 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 H A considered view, both the courts were right in convicting Suman Sood for offences punishable under Sections 365 read with 1208, 343 read with 1208 and 346 read with 1208, !PC. 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, JPC. Section 364A relates to kidnapping for ransom. Let us consider C 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 D 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 lby his conduct gives rise to a reasonable apprehension that such pe:rson 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 G 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 SUMAN SOOD@KAMALJEET KAUR 1·. STATE OF RAJASTHAN [C.K. THAKKER, J.] 52 J (3) Kicln,~pping, abduction or detention must have been for ransom. A [see also Mdlleshi 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 B 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 -i:'. captive and demand payment for his release". (Concise Oxford English Dictionary, 2002; p.1186). c
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 ran•;om 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 E paid for releasing a captive, prisoner or detenu.
63. In the present case, there is no evidence at all direct or indirect 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 F 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 G 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 H A 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/l 20B, !PC 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 B 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. c ACQU/1TAL BY TRIAL COURT
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, !PC '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 D terrorized to victim or his family members to get Devendra Pal Sjngh 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 E 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- F 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 346/1208, IPC and we have upheld the said conviction as according to us, both the Courts were right in drawing an inference that she G must be presumed to be aware of kidnapping of Rajendra Mirdha and in detainir\g 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 SUMANSOOD@KAMALJEETKAUR v. STATE OF RAJASTHAN (C.K. THAKKER,J.] 523 (2005) 7 SC I would not apply wherein wife of the accused was acquitted by A 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 1208, !PC.
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 c 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 while dealing with an appeal against an order of acquittal emerge; (I) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is F 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 H c '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, tht: presumption of his innocence is further reinforced, reaffinned 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 D the evidence as a whole, it cannot be said that by acquitting Suman Sood for offences punishable under Section 364A read with 1208, !PC, the trial Court had acted illegally or unlawfolly. The High Court, therefore, ought not to have set aside the finding of acquittal of accused Suman Sood for an offence under r Section 364A read with 1208, IPC. To that extent, therefore, the order of conviction and sentence recorded by the High Court deserves to be set aside. FJNALORDER
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 confinned by the F High Court is upheld.
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 365/1208, 343/1208 and 346/1208, IPC is confinned and upheld. Her conviction and order of sentence for offence G punishable under Section 364A read with 1208, 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. B.S. Appeals disposed of.