SHARMA, J. - (1.) THE matrix of these three appeals is the judgment dated October 2, 2004 rendered by the learned Additional Sessions Judge (Fast Track) No. 1, Jaipur City (for short the `trial Court' ).
(2.) THE trial Court found that accused Daya Singh (appellant in Cr. Appeal No. 11/2005) was guilty of offences punishable under Sections 364a, 365, 343/120b and 346/120b of the Indian Penal Code and sentenced him as under:- U/s. 364 A 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. The accused Summan Sood @ Kamaljeet Kaur (appellant in Cr. Appeal No. 1247/2004) was convicted and sentenced as under:- U/s. 365/120b IPC: To suffer simple 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 simple imprisonment for three years and fine of Rs. 500/- in default to further suffer six months simple imprisonment. U/s. 346/120b IPC: To suffer simple imprisonment for two years. The substantive sentences were ordered to run concurrently. While accused Daya Singh and Suman Sood have questioned legality of the conviction and sentence imposed, the State of Rajasthan in Appeal No. 136/2006 has prayed to award maximum sentence to the accused persons and questioned the acquittal of accused Suman Sood under Section 364 IPC. It is the prosecution case that on February 17, 1995 Rajendra Mirdha (herein after referred as `victim') was abducted by the accused persons to secure release of their fellow terrorist Devendra Pal Singh Bhuller (who was apprehended at the Indira Gandhi International Airport by the Police authorities on the night of January 18 & 19, 1995 on his return to India after the German authorities declined to grant him asylum) by using influence of his (Rajendra Mirdha) father Sh. Ram Nwas Mirdha who then was heading Joint Parliamentary Committee. The police Station Ashok Nagar Jaipur on receiving telephonic message from Harendra Mirdha (brother of victim) registered a case and investigation commenced. The victim somehow got rescued from the illegal detention and the accused persons got arrested. On completion of investigation charge sheet was filed. In due course the case came up for trial before the trial court. Charges under Sections 365, 364a, 343, 343/120b and 346/120b IPC were framed against the accused persons, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 61 witnesses. In the explanation under Sec. 313 Cr. P. C. , the accused persons claimed innocence. No witness was however examined in defence. Learned trial Court on hearing final submissions convicted and sentenced the accused persons as indicated herein above.
(3.) LEARNED counsel for the accused made following submissions:- (i) The identity of the accused persons has not been established. The test Identification parade has no sanctity in the eye of law as the photographs of accused persons were shown to the witnesses prior to the identification parade. (ii) It could not be established that car used for abduction of victim, belonged to the accused persons. (iii) It could not be established the house in which the victim was kept, owned and possessed by the accused persons. (iv) It could not be established that fax message sent from Rohtak was sent by the accused persons. (v) It could not be proved that life of victim was in danger or victim was kidnapped for ransom or for murder. (vi) Judgment of the trial Court which is based on misreading of evidence, is required to be set aside. In order to appreciate the contentions raised by the learned counsel, the relevant evidence led by the prosecution is required to be considered. For the sake of convenience, we divide the evidence in following subheads:- (i) Evidence of abduction and demand; (ii) Evidence regarding exclusive possession of the accused persons over the House B-117, Model Town in which the victim was detained; (iii) Evidence of detention; (iv) Recovery of weapons and other articles; (v) Recovery of car used for the purpose of abduction; (vi) Motive of detention; (vii) Proof regarding extradition. EVIDENCE OF ABDUCTION AND DEMAND: Th establish the fact of abduction and demand the prosecution examined victim himself as PW. 9, who in his deposition gave details of his abduction by the accused persons. He has given the evidence on the demand of the accused persons for release of Devendra Pal Singh Bhuller, in exchange of victim's release by using influence of his father Sh. Ram Niwas Mirdha, who then was heading Joint Parliamentary Committee. The victim has admitted and proved two fax messages Ex. P. 19 and Ex. P. 20 having been written by him, which were ultimately faxed to Sh. Ram Niwas Mirdha by accused Daya Singh from Rohtak. The victim identified accused Daya Singh and Suman Sood in the Identification Parade as also in the court. Smt. Udai Mirdha (PW. 5), wife of victim, deposed that her husband used to walk in the morning. On the fateful day, after her husband had gone for a walk, she heard suppressed human voice. Around 8. 40 AM she received a phone call whereby a person informed her that her husband was in their custody and instructed her to write a message on a paper. The person on the other end wanted the release of one Bhuller, who was apprehended by the police at the Airport. Smt. Udai Mirdha was asked to speak to her father-in-law for release of Bhuller. She was warned not to inform the police about the episode. A written note made by her by pencil on a piece of paper at the time of phone call got exhibited as Ex. P. 2. Harendra Mirdha (PW. 29) proved the institution of FIR (Ex. P. 29) at his instance with the Police Station Ashok Nagar immediately after he received a message from his Bhabhi about the abduction of his elder brother. Sh. Ram Niwas Mirdha (PW. 50) has proved having received telephone call from the accused who threatened him that either he should ensure the release of Devendra Pal Singh Bhuller or would have to face serious consequences. The accused stated that if he wanted, he could get Bhuller released and he could even talk to Prime Minister about this. He received two fax messages in English written by his son Rajendra Mirdha wherein it was requested that there should be no encounter. Sh. Ram Niwas Mirdha proved the fax messages as Ex. P. 19 and Ex. P. 20. Kishore Singh (PW. 6) deposed that on the evening of February 16, 1995 he had seen a Maruti Car with tended glasses in front of the house of Rajendra Mirdha. Rakesh Kumar (PW. 52), owner of shop at Rohtak, stated that two fax messages were sent to Sh. Ram Niwas Mirdha from his shop by accused Daya Singh. He also identified accused Daya Singh. Ram Chandra Meena, Police Inspector, CID Intelligence Jaipur (PW. 40) had seized the fax-register containing the entries with regard to the aforesaid fix which he proved as Ex. P. 43. The fax itself was got exhibited as Ex. P. 41. Rajeev Swaroop, Dy. Secretary Home (PW. 30) proved the order of permission by the Government for phone tapping of Rajendra Mirdha and has proved the same as Ex. P. 31. Hari Kishan (PW. 36), a family friend of Mirdhas, stated having attended the phone call received at about 5. 30 PM on February 19, 1995 at the residence of Rajendra Mirdha. Karni Singh Shekhawant, Dy. S. P. (PW. 24) heard the telephonic conversation of the accused persons on the phone call received at the residence of Rajendra Mirdha around 5. 28 PM on February 19, 1995, which was attended by Hari Kishan. He proved having heard the accused persons complaining to the wife of Rajendra Mirdha that whatever was happening in the City was not proper and that she might loose Rajendra Mirdha forever. Audio cassette was seized as Article 4 with recovery memo. Transcription of conversation was also available with the recovery memo Ex. P. 26. Ram Kumar (P. W. 23), the Police Constable was also on duty to supervise the recording of telephonic conversation on the phone of Rajendra Mirdha, Rajesh Malik, Inspector of Police CID (CB) Jaipur has proved having obtained copy of the fax register, the details about the fax messages sent to Sh. Ram Niwas Mirdha by the accused Daya Singh. EVIDENCE REGARDInG EXCLUSIVE POSSESSION OF THE ACCUSED PERSONS OVER THE HOUSE B-117, MODEL TOWN In WHICH THE VICTIM WAS DETAInED: ;