http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 18

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:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 18

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 18

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18

(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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18

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.