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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.