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2006 Supreme(Raj) 770
Rajasthan High Court, Jaipur Bench
Honble SHIV KUMAR SHARMA, J. Honble R.S. CHAUHAN, J.
Daya Singh Lahoriya @ Rajeev Sudan @ Vinay Kumar - Appellant
Versus
State of Rajasthan - Respondents
D.B. Criminal Appeal No. 11 of 2005
Decided On : March 20, 2006
G.S. Fauzdar, B.S. Sandhu, Timan Singh, for Appellants and accused Respondents Mohd. Rafiq, Aslam Khan, R.P. Kuldeep, Addl. Advocate General with for State
Headnote:Penal Code, Secs. 364-A, 365, 343/120-B, 346/120-B, 365/120-B – Abduction and criminal conspiracy – Secure the release of their fellow terrorist – No express agreement between the accused persons – Infirmity in identification parade – Held – For offence u/S. 120-B IPC the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication – Court may accept identification in Court even without insisting on test identification parade, object of which is merely to provide corroboration to the sworn testimony of the witness in Court – Convicted both u/S. 364-A/120-B and sentenced to imprisonment for 20 years without any benefit of remission. (Paras 16 to 20, 26 to 28)
(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.
(3). 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.
(4). 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.
(5). 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.
(6). 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.
(7). 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.
(8)
