Author: Samarth Sharma, 2nd Year student at Bennett University.
Citation: AIR 2003 SC 4427
Date of decision: 22nd August 2003
Bench: Doraiswamy Raju & Arijit Pasayat
Original copy: View
Background of case:
- Umar Sheikh, is the leader and the prime criminal conspirator who was responsible for kidnapping foreign nationals in the country in exchange for releasing 10 terrorists from jail.
- Nazir Khan, Naseer Mohmood Sodozey and Abdul Rahim were responsible to undergo conviction for suffering death sentence as they were responsible to play a role in the ongoing criminal conspiracy.
- The foreign nationals were kept as hostages in Ghaziabad. The hostages were given death threats, which were in regards to them escaping. These demands were sent to the American embassy and the British embassy along with various news agencies for gaining the release of these 10 terrorists.
- There were a number of hideouts which were rented or bought by Umar Sheikh in Ghaziabad, Delhi and Saharanpur.
- Furthermore, after police investigations and search outs it was seen foreign nationals which were held captive as hostages were now free. Their statements and confessions were recorded, and they were sent back to their respective nations.
- Along with rescuing British nationals, the police was also responsible to lay their hands on arms and ammunition of the terrorist group.
- Umar Sheikh was not a subject to be framed and was released from Tihar Jail, but the rest of the individuals who were involved in the act were subjected to punishment.
- Would the confessions made by the foreign nationals be responsible for entailing conviction of the accused appellants under Section 364A and Section 120B of IPC?
- Whether the accused appellants were liable to suffer a death sentence under Section 3(2) (1) of the TADA Act?
- Nazir Khan, Naseer Mohmood Sodozey and Abdul Rahim were responsible to undergo conviction for suffering death sentence for their involvement in the criminal conspiracy of kidnapping foreign nationals under Section 364A and Section 120B of Indian Penal Code.
- Mohmood, Narul Amin and Mohammed Sayed were responsible to undergo life imprisonment for their involvement in the respective act. The accused individuals were fined with Rs50, 000 each.
- Naseer Mohmood Sodozey and Nazir Khan were responsible to undergo conviction under Section 14 of the Foreigners Act, this was done as they were responsible to enter the nation without justified permission and documentation. Which would render the individuals liable to a fine of Rs25, 000 each and 5 years of rigorous imprisonment.
- Narul Amin and Mohmood were responsible for concealment of terrorists and harboring them, which led to them being accountable for rigorous imprisonment of ten years in accordance with Section 3(1) and Section 3(5) of the TADA Act.
- It is to be observed that, death is sentenced to three appellants and the other three accused are liable for rigorous imprisonment.
- There was lack of evidence on the account to render the accused appellants liable for the death of two police officers. Furthermore, the threats and letters which were sent, did not have an outcome for causing damage. The police officials who were responsible to raid the place where the terrorists were present, there were more individuals who were responsible to be present there and tried to escape while retaliating with firing shots at police officials, the accused appellants in the present scenario are not a part of the conspiracy which was hatched by the other individuals who escaped due to the lack of evidence mentioned.
- In accordance with Section 3(2) of the TADA Act, the activity of the terrorist should result in the death of an individual to make him liable for a death sentence. The punishment of a death sentence in this particular case is not a compulsion and the accused should be held liable for life imprisonment.
- The statements made by the foreign nationals under Section 14 of the Foreigners Act are valid in the eyes of law. The essence of criminal law is to provide the wrong doer the rightful punishment of his actions and misconduct. In the present case, the entire act was planned by a single individual who is Umar Sheikh, was responsible to escape the situation, if it came to the fact for awarding a sentence to Umar Sheikh then the death penalty would be appropriate but in the case of the accused appellants it is not appropriate. There is a distinction created in awarding sentences for the co-conspirators, where three are awarded the death penalty and the other three are given life imprisonment. The rightful thing to do will be the imposition of life imprisonment on all the six accused appellants. Furthermore, incarceration for a period of twenty years would be given to the six accused appellants and would not be given allowance for remission in this period of time. The death sentence is dismissed and the six appellants are sentenced to life imprisonment by the power of the court.
- The six appellants were responsible to undergo punishment, in which Nazir Khan, Naseer Mohmood Sodozey and Abdul Rahim were responsible to undergo conviction for suffering death sentence. The rest of the lot consisting of Mahmood, Narul Amin and Mohammed Sayed were responsible to undergo life imprisonment. These individuals were mainly liable for criminal conspiracy.
- The credibility of the confessional statements were also put into account, as these statements could’ve been a subject to be under undue influence or coercion by the police officials. Furthermore, these confessions do not lead to any establishing offence for which the accused were responsible to render conviction.
- Nazir Khan was liable for kidnapping but was not held responsible for threatening to kill a hostage. When it comes to Narul Amin, he will be held liable for kidnapping but not for conspiracy due to not being aware about the actual kidnapping taking place. Abdul Rahim would be rendered liable for conspiracy as well as kidnapping but Mohammad Sayed was only playing the role of a driver and did not commit any other offence. Mohmood was not involved in either of the two cases and Sodozey was only liable for conspiracy. Therefore, the confessions which were made will not be responsible for entailing a conviction.
- The head of the entire plan was Umar Sheikh, who was responsible for the criminal conspiracy but was led out free. Basically, the individuals were not in a position to be knowing the entirety of the plan and conspiracy but were merely responsible to follow orders which were given by Umar Sheikh and go into accordance of them.
- The appellants at present are not in a position to be held guilty and liable for a death penalty as they were not the individuals who were responsible for orchestrating this entire conspiracy but were merely pawns in the game. So, their punishment should be in accordance with their criminal misconduct. Furthermore, creating a division in awarding the sentences to the individuals or co-conspirators will also not be appropriate. As three individuals are a subject to life imprisonment while the other three accused appellants are liable for death penalty. There should not be a distinction created in awarding sentences between the co-conspirators as, for awarding the death penalty in accordance to Section 3(2) of the TADA Act, the act of the accused should result in death of an individual, but in this particular case their actions were not a result of the killings of the two police officials, and are not a to be sentenced to a death sentence.