Full opinion text
MEMORANDUM DECISION AND ORDER RE EXTRADITION WANGER, District Judge. I. INTRODUCTION An evidentiary hearing was held on February 9, 13, 14, 15, 16, and March 1, 2001. Evidence was taken, legal authorities submitted, and oral argument heard and considered. II. PROCEDURAL HISTORY Plaintiff arrived in the United States at the Los Angeles International Airport on April 25, 1993, under a passport bearing the false name, Mahim Mehra. An INS officer immediately detained Plaintiff and charged him as an excludable alien under the Immigration & Nationality Act (“INA”). Barapind conceded he is excludable under the INA and applied for asylum and withholding of deportation under a false name, based on his alleged fear he would be returned to India and persecuted. On June 7, 1993, he applied for asylum/withholding in his true name. Barapind v. Reno, 72 F.Supp.2d at 1138. On January 13, 1994, Barapind was denied asylum by an Immigration Judge (IJ). On July 26, 1994, the Board of Immigration Appeals (BIA) dismissed Barapind’s appeal and barred him from claiming refugee status. Barapind sought review of the IJ decision in the United States District Court for the Central District of California in Los Angeles. On August 3, 1994, Bara-pind petitioned for a writ of habeas corpus in the United States District Court for the Central District of California. The District Court ordered a stay pending further hearings before the INS. On March 14, 1996, the District Court in Los Angeles remanded the asylum/withholding application for further proceedings before the BIA. Barapind appealed. On May 15, 1997, in Barapind v. Rogers, 114 F.3d 1193, 1997 WL 267881, *3 (9th Cir. May 15, 1997) (unpublished), the Court of Appeals for the Ninth Circuit rejected the IJ’s adverse credibility determinations and faulted the IJ for treating, as established facts, India’s criminal allegations made against Barapind in the extradition request. It affirmed the district court’s remand, but modified the remand order for further proceedings before the IJ in the asylum/withholding case, specifically overturning the IJ’s adverse credibility determinations and veracity findings as to criminal allegations made against Barapind by the Indian government in extradition documents. A modified remand order was entered by the District Court July 17, 1997, directing the BIA to readjudicate Bara-pind’s asylum application. On September 18, 1997, after Barapind was transferred to a detention facility in Bakersfield, California, India filed a complaint for extradition in the U.S. District Court for the Eastern District of California. Extradition is sought under the Treaty for the Mutual Extradition of Criminals between the United States of America and Great Britain (“1931 Treaty”), Dec. 22, 1931, U.S.-Gr. Brit., T.S. No. 849 (1932), made applicable to India from March 9, 1942, in accordance with article 14. See U.S. Dept, of State, Treaties in Force 132 (1999). Once the extradition proceedings were initiated, the INS filed a motion to stay the remanded asylum/withholding proceedings pending before the BIA. Barapind objected. On October 30, 1997, the BIA ordered Barapind’s exclusion and asylum proceeding held in abeyance pending the outcome of the extradition. On February 17, 1998, Barapind filed a second complaint and habeas corpus petition in the Central District of California, challenging the BIA stay of immigration proceedings and seeking declaratory relief to compel the BIA to adjudicate his asylum application first and to enjoin the defendants from extraditing or in any other way interfering with his right to a final adjudication of his asylum application. On February 27, 1998, Barapind’s second ha-beas petition was transferred to the Eastern District of California. On April 29, 1998, the Magistrate Judge, on Barapind’s motion, stayed the extradition case, pending outcome of the BIA proceeding. The stay was vacated by the District Court on October 14,1998. On June 4, 1999, on the INS’s motion, the District Court in Barapind v. Reno, 72 F.Supp.2d 1132 (E.D.Cal.1999) aff'd on other grounds, 225 F.3d 1100 (9th Cir. 2000), dismissed Barapind’s second habeas petition for lack of subject matter jurisdiction and failure to state a claim as a second, successive petition, 72 F.Supp.2d at 1142; and for failure to demonstrate legal justification to stay the extradition proceedings, id. at 1144-47. On August 28, 2000, the Court of Appeals affirmed dismissal without prejudice on a different ground, that extradition is a separate and independent procedure from exclusion or removal proceedings under the INA; citing Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009-11 (9th Cir.2000), and held the BIA was authorized to hold exclusion/asylum proceedings in abeyance pending completion of the extradition. Barapind v. Reno, 225 F.3d at 1114. III. FACTUAL BACKGROUND A. Historical Background This extradition arises out of events that occurred in the Indian State of Punjab in the mid-1980s to early 1990s, where Sikh insurgents sought to establish a new homeland, Khalistan. At the relevant time, the State of Punjab had a population of approximately 24 million persons, 14 million of whom were Sikhs. India has 20 million Sikhs who represent about 2% of India’s population. The existing tensions in the Punjab between Sikh nationalists and the Indian Government erupted in June 1984, when Indian armed forces under General Braur launched “Operation Bluestar” to interdict Sikh rebels who had taken refuge in the Golden Temple, the holiest of Sikh shrines. This military strike resulted in extensive damage to the temple complex, the killing of at least 500 persons, and numerous casualties among civilians who were caught in the crossfire. The incident came to be known as the “Golden Temple Massacre” and was a focal point for Sikh militancy. Thirty-seven other Sikh tern-pies were attacked resulting in the deaths of 3,000-4,000 Sikhs. Sikhs were “horrified” and alienated from the Indira Ghandi government. See Trial Testimony and Dep. of Dr. Cynthia Mahmood, 30:10-34:4. In October 1984, two Sikh bodyguards assassinated Indira Ghandi to avenge the massacre. A decade of strife followed. India adopted anti-Sikh programs and 3,000-4,000 Sikh casualties were suffered. Sikh militants, in their quest for a new homeland, engaged in bombings, assassinations and other terrorist activities against the Indian Government, its local collaborators, and innocent civilians. The Government of India responded with counterinsurgency efforts, by which Indian security forces in their endeavor to suppress Sikh militants, committed human rights abuses, engaged in extrajudicial “encounter” killings, detentions without trial, and torture. See Amnesty International, Human Rights Violations in Punjab: Use And Abuse of the Law (May, 1991). Estimates are that between 7,000-30,000 people were killed during the Sikh separatist movement in 1991-92, and that from 30,000 to 100,000 persons were killed in the 1984-1993 period. See Dep. of Dr. Cynthia Mahmood, 13:3-13:9. By the early 1990s, Indian security forces gained hegemony in the conflict and by 1994, the active armed Sikh separatist insurgency was largely contained. 1. Kulbir Singh Barapind In 1985, Barapind, a Sikh, while a college student in Jalandhar, Punjab, India, became an active member of the All India Sikh Student Federation (“Federation”); a group committed to establish a sovereign Sikh nation of Khalistan to be created from the Punjab state. He subsequently moved up the group’s hierarchy until he became president of the Federation for the District of Jalandhar, Punjab in 1988. Because of his Federation involvement, Bara-pind was arrested numerous times and tortured by the Indian police, then released. Cpt. ¶¶ 20-46. Despite police harassment and killing of Federation members, Barapind continued his protest activities. See id. ¶¶ 61-63. Police harassed Barapind’s family in an effort to obtain Barapind’s surrender. Cpt. ¶¶ 51-55; 64-65. Barapind escaped from India to the United States using false documents and a fictitious identity in April 1993. Barapind was immediately detained and arrested by the INS upon his arrival at Los Angeles International Airport before entering the United States. Cpt. ¶¶ 67-86. See Barapind v. Reno, 72 F.Supp.2d at 1141-42. 2. Affidavit of Satish Kumar Sharma Satish Sharma, Senior Superintendent of Police, Ferozepur, was, at all times relevant, the Police Chief for the District of Jalandhar, Punjab. He is the ranking police official and was personally responsible for investigation of all criminal cases in that district. See Affidavit of Satish Kumar, Govt. Ex. 1, p. 2, ¶ 1. Chief Sharma’s duties include supervising the investigations conducted by officers under his command; reading reports of investigating officers; and personally reviewing the investigation reports and statements regarding the cases against Barapind that are the subject of the extradition request. See Affidavit of Satish Kumar, Govt. Ex. 1, p. 2, ¶ 1. Extradition is sought in eleven cases, each covered by a First Information Report (“F.I.R.”). The cases involve multiple offenses and victims. Each criminal charge against Barapind is documented by an F.I.R., which identifies the substantive violation of the Indian Penal Code, the applicable provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA), and in certain cases, the Arms Act. No extradition is sought for violations of TAJDA or the India Arms Act. See Affidavit of Satish Sharma, Govt. Ex. 1, p. 2, ¶ 2. 3. Criminal Process in India For all charges against Barapind, the F.I.R.S were prepared by the Head Constable or other authorized officer in the police station with jurisdiction where the offense took place. F.I.R.s set forth facts regarding each offense, all information received by the police concerning the crime, and identify specific violations of the Indian Penal Code. See Affidavit of Satish Sharma, Govt. Ex. 1, p. 2, ¶ 3. After an F.I.R. is prepared, the offense is investigated by police officers. When sufficient evidence is collected to “connect the crime to the accused;” ie., there is evidence to form a reasonable belief that the accused committed the crimes charged, a document known as the “Challan” is prepared by the Station House Officer (SHO), a senior supervisory police officer. See Affidavit of Satish Sharma, Govt. Ex. l,p.2, 14. Although India asserts Challans were prepared for all offenses in which Bara-pind has been charged, no Challan could be found at court for F.I.R. 100. Barapind contends two more Challans could not be located. The Challans were presented to the prosecuting agency, the District Attorney of Jalandhar District. The District Attorney reviewed the Challans to ascertain the sufficiency of the included evidence to obtain a judicial verdict against the accused. District Attorney of Jaland-har S.K. Kapoor made a sufficiency finding for every Challan asserting charges against Barapind. See Aff. of Satish Sharma, Govt. Ex. 1, p. 2, ¶ 5. After the District Attorney certified the Challans, the cases were filed with Judicial Magistrates Courts in the Sub Districts of Jalandhar responsible for the police station where the case was investigated and initiated. The filing is accomplished by the Prosecution Agency (District Attorney) submitting complete case files to Judicial Magistrates in accordance with section 173 of the Indian Criminal Procedure Code, for trial to then be conducted. See Aff. of Satish Sharma, Govt. Ex. 1, p. 2, ¶ 6. Satish Sharma alleges that Barapind is a fugitive from justice, could not be tried, and the Judicial Magistrate declared Bara-pind a “proclaimed offender,” as set forth in Section 82 of the Indian Criminal Procedure Code for each of the charges in the F.I.R.s. Arrest warrants were issued for Barapind for all of the crimes. See Aff. of Satish Kumar, Govt. Ex. 1, p. 2, ¶ 7. B. Political Background Dr. Cynthia Mahmood, an expert on international violence and terrorism, focused on Cypress, Punjab, and Kashmir, India, has studied the general conditions in the Punjab during the 1980s and 1990s. She offered her opinion there was a civil war in the Punjab, “although reasonable persons may disagree.” Dr. Mahmood has previously been retained by the United States Department of State as a consultant in anthropology, specializing in terrorism and political violence. See Dep. of Dr. Cynthia Mahmood, 12:1-10, 13:20-25. A review of the events and the casualty figures during this time period shows that there was strife that engaged armed Sikh militants and Indian government forces and their agents in hostilities in the Punjab. Beginning in 1973, the Sikhs began to agitate for a greater degree of autonomy for the Punjab. See id. at 38:8-16. What started out as a non-violent movement increasingly became more militant. See id. at 29:1-17. The uprising started in June 1984, when, on one of the holiest dates of the Sikh calender, the Indian Army launched a large-scale military operation, code-named Operation Blue-Star, involving about 70,000 troops, using tanks, helicopters and CS gas, to attack the Golden Temple Complex, a religious shrine recognized by Sikhs, with the purpose of capturing armed Sikhs. See id. at 30:15-20. Although the government claimed 500 civilian deaths resulted from the Golden Temple attack, the BBC and Dr. Mahmood estimated 4,000 casualties on all sides. See id. at 31:4-9. On October 31, 1984, the Prime Minister of India, Indira Gandhi, was assassinated by her Sikh bodyguards, in retaliation for her ordering the desecration of the holiest Sikh temple. See id. at 38:23-39:2. A wave of mass violence against Sikhs in Northern India followed, organized by the ruling Indian Congress Party, which involved killing Sikh men, raping Sikh women and systematic looting and burning of Sikh homes and businesses. Id. at 39:23-40:5, 41:10^43:13. It is estimated that 3,000 to 4,000 Sikhs were killed in the City of Delhi alone. See id. at 40:7-9. The events of 1984 alienated a significant portion of the Sikh populace and by April 1985, several Sikh leaders met and wrote a declaration of independence to establish a separate Sikh state of Khalistan. See id. at 40:9-23. They also established a “defense force” of Khalistan named the Khalistan Commando Force (KCF) to fight the “revolution.” Id. at 40:7-9. The KCF ultimately splintered into about a half-dozen guerrilla groups. Id. at 40:7-9. In response to aimed strife in the Punjab, the Indian Government enacted the Terrorist and Disruptive Activities (Prevention) Act (TADA) on May 1985. See Navkiran Singh, The Terrorist Laws, Law Publishers, Def. Ex. 1. TADA granted police sweeping powers to arrest, detain, interrogate, and charge suspects accused of being terrorists or engaging in “disruptive activities.” Other laws enacted to combat Sikh militancy during this period include the Armed Forces (Punjab and Chandigarh) Special Powers Act of 1983 and the Punjab Disturbed Areas Act of 1983, which granted army, paramilitary, and police forces wide discretion in the use of lethal force, providing easy justification for, and facilitating extra-judicial killings by Indian authorities. See Department of State, Country Reports on Human Rights Practices for 1991, p. 1S90. India also created an anti-[terrorist force known as the Black Cats to infiltrate and eliminate the Sikh militants]. By 1986, Sikh militancy increased in intensity (id. at 58:13-14); 525 people were killed by the Sikh militants. See Department of State, Country Reports on Human Rights Practices for 1987, p. 111.9. The 1987 death toll surpassed the 1986 figures; 674 people were killed by August. Id. On May 11, 1987, the Indian government declared President’s Rule (a state of emergency) in the Punjab. See Department of State, Country Reports on Human Rights Practices for 1990, p. 1137. Under President’s Rule, the Indian federal government, “through Parliament, the President and the appointed governor, directly administer[s] the state, bypassing the elected state government.” Id. President’s Rule was extended every six months until 1992. In 1988, popular support for a separate Khalistan state continued to be strong. Many radical Khalistan supporters ran for office and won by wide margins. See Dep. of Dr. Cynthia Mahmood, 11:20-21. Since Operation Blue Star in 1984, New Delhi had sought a political solution to the problems of Sikh separatism. This included a peace accord (never implemented) by Indian Prime Minister Rajiv Gandhi and Sikh leader Harchand Singh Longowal in 1985. By 1988, after achieving little progress, “the Indian government jettisoned policies aimed at finding a political solution in favor of tough counterinsurgency operations.” Rajat Ganguly, Coping with Ethnic Insurgencies: View from New Delhi Asia Q. January — March 2000, ¶ 2, at http://www.vuw.ac. nz/asianstudies/publiea-tions/quarterly/OOjanuar y5.html (last visited Aug. 20, 2001). In May 1988, armed Sikhs again occupied the Golden Temple. Indian security forces responded with operation Black Thunder, and dispersed the militants after a two week siege, which resulted in 20 deaths. See Department of State, Country Reports on Human Rights Practices for 1988, p. 1329. The total number of deaths resulting from militant activity in 1988 increased, averaging about nine people killed daily, compared to three in 1987. See id. In 1989, press reports indicate that through September militant activity caused 1,255 deaths, including 595 militants killed and 89 security force deaths. See Department of State, County Reports on Human Rights Practices for 1989, 'p. 1382. Also around this time period, India’s arch-rival, Pakistan, began to actively support the Sikh separatists by providing arms and a safe haven in its territory. See Dep. of Dr. Cynthia Mahmood, 15:13-18. By 1990 the violence increased in intensity, with 4,987 reported deaths for that year. See Department of State, Country Reports on Human Rights Practices for 1990, p. 1127. Press reports show that the deaths included 467 security force members, 1,194 militants and 65 persons crossing into India from Pakistan to perpetrate, according to the Indian government, terrorist acts in the Punjab. Dr. Mahmood opined that in 1980-92, the level of violence in the Punjab was virtually a civil war. See id. In 1991, the year when five of Barapind’s eleven alleged offenses occurred, militancy was at its zenith, with 5,890 deaths for the year, according to press reports. See Department of State, Country RepoHs on Human Rights Practices for 1991, p. 1397. Human rights abuses by both sides were rampant. While the militants in some instances indiscriminately fired at civilians and consciously targeted the relatives of police officers, government security forces responded in kind by continuing to engage in “encounter killings” and torture. In 1991 India canceled elections due to the level of strife. In 1992 Sikh independence groups boycotted elections. In 1992, when the remaining six of Bara-pind’s alleged offenses occurred, Sikh militancy began to wane, although it did not cease. In February of that year, a pro-India state government led by Beant Singh (a Sikh) acceded to power after winning an election boycotted by other major parties (Sikhs), in which only 22% of the electorate turned out to vote. See Dep. of Dr. Cynthia Mahmood, 60:15-18. Now “the responsibility for counterinsurgency operations fell on the state police force, which was given special powers, weapons, and training.” Rajat Ganguly, Coping with Ethnic Insurgencies: View from New Delhi Asia Q. ¶ 2. With the approval of Beant Singh’s government, the Punjab police set out to crush the Khalistan movement. As in previous years, the security forces engaged in torture, extra-judicial killings, and detentions without trial. There is evidence of mass secret cremations by the Punjab police. See Dep. of Dr. Cynthia Mahmood, 61:9-11. Indian human rights groups estimated that 1,350 people were killed in faked “encounters” during the first nine months of 1992. See Department of State, Country Reports on Human Rights Practices for 1992, p. 1135. “Extrajudicial executions were also encouraged by the Punjab government’s practice of offering bounties for killed militants. The chief minister [Beant Singh] told the state assembly that over 41,000 such bounties were paid between 1991 and 1993; in some cases more than one person claimed credit for the same killing.” Department of State, Human Rights Report for 1993, at http://www.state.gov/www/global/hu-man_rights/drl_reports.html (last visited Aug. 20, 2001). The Sikh militants, in turn, not only targeted government security forces, but also innocent civilians, including the relatives of police. By the end of 1992, the organizational structure of the militant groups had begun to disintegrate. The leaders of the militant groups were being killed and agents of the Indian government, Black Cats, had infiltrated the militant cells in an effort to criminalize the movement. See Dep. of Dr. Cynthia Mah-mood, 19:7-11. The U.S. State Department described the situation in 1992: “Civilian deaths in Punjab were down half from the 1991 rate, due mainly to a heavy army presence which helped keep militant activities in check. Nevertheless, the Punjab conflict remained one of the most violent in the world, with 4,049 people killed during the year ending November 30, 1992.” Id. The 1991-1993 period experienced the most intense civil conflict in the Punjab. By 1993, the Khalistan movement was in noticeable decline. The claim of Indian human rights groups that Punjab police were engaged in a systematic campaign to liquidate militants and their supporters is borne out by data showing a high ratio of militant to security force casualties. Press reports indicate 589 alleged Sikh militants were killed in Punjab in 1993, compared to 23 civilians and 16 members of the security forces. Department of State, Human Rights Report for 1993, at http://www.state.gov/www/global/hu-man_rights/drl_reports.html. By 1994, Sikh militants had been largely crushed. During that year, 76 alleged Punjabi militants were reportedly killed in armed encounters, including only four in the last six months of the year. There were no deaths of police or other security force personnel. See Department of State, Human Rights Report for 1991, at http://www.state.gov/www/global/hu-man_rights/drLueports.html (last visited Aug. 20, 2001). In 1995, Beant Singh, who oversaw the successful suppression of the Sikh secessionists, was assassinated by a suicide car bombing believed to have been carried out by a Sikh terrorist group. See Dep. of Dr. Cynthia Mahmood, 60:21-61:1. The State Department estimated 7,039 deaths occurred in 1991-1992 from militant Sikh political turmoil. Dr. Mahmood estimates 20,000 to 40,000 deaths from that political turmoil in 1991-1992. Dr. Mahmood acknowledged that Sikh militants did not have a formal military organization, command structure, uniforms, or a revolutionary army. She agreed the Punjab had an historically high crime rate and cultural history of murder and revenge killings. Dr. Mahmood opined that Barapind is a folk hero in the nature of a “saint-soldier.” He is a religious-populist hero who has great popular support among Sikh separatists. IV. LEGAL STANDARDS In order to find that Barapind is extraditable under the 1931 Treaty, as well as under the relevant statutes and case law, the following must be shown: (1) The judicial officer is authorized to conduct extradition proceedings; (not disputed) (2) The court has jurisdiction over the fugitive; (not disputed) (3) The person named in the complaint is the individual before the court; (not disputed) (4) The applicable treaty is in full force and effect; (not disputed) (5) The crimes for which surrender is requested are covered by the treaties; (not disputed) (6) The conduct for which extradition is requested is considered criminal under the laws of both the requesting (India) and the requested (United States) nation; (not disputed) (7) Competent legal evidence that would justify committing the accused for trial under the law of the requested nation (United States), if the crimes had been committed within the territory of that nation; i.e., there is probable cause to believe the accused has committed the charged crimes; see Glucksman v. Henkel, 221 U.S. 508, 508, 31 S.Ct. 704, 55 L.Ed. 830 (1911); see also Zanazanian v. United States, 729 F.2d 624, 626-27 (9th Cir.1984); (disputed) and (8)Whether the crimes meet the requirements of the political offense exception. See Quinn, 783 F.2d at 786. (disputed) A. The Judicial Officer Has Authority And The Court Has Jurisdiction The extradition statute, 18 U.S.C. § 3184, directs the extradition judge to determine whether “the evidence [is] sufficient to sustain the charge under the provisions of the proper treaty.” Section 3184 confers jurisdiction on “any justice or judge of the United States.” This extradition case is heard by a United States District Judge. B. The Applicable Extradition Treaty is in Full Force and Effect The complaint invokes a 1931 Treaty between the United States and Great Britain made applicable to India in 1942. A new treaty was entered into between the United States and India in 1999. The new treaty, effective on July 21, 1999, terminated the 1931 Treaty except as to cases where extradition documents had already been submitted to the court. See Article 23(3). The parties stipulate the treaty with the United Kingdom of Great Britain and Northern Ireland of December 22, 1931 (TS 849; 47 Stat. 212) (the “1931 Treaty”) made applicable to India on March 9, 1942, in accordance with Article 14 of the 1931 Treaty, governs this proceeding. Treaties are to be liberally construed in favor of enforcement because they are “in the interest of justice and friendly international relationships.” United States v. Kin-Hong, 110 F.3d 103, 110 (1st Cir.1997) (quoting Factor v. Laubenheimer, 290 U.S. 276, 298, 54 S.Ct. 191, 78 L.Ed. 315 (1933)). C. Nature of The Crimes for which Surrender is Requested Is Covered by the Treaties Special rules apply in extradition cases that identify whether the crimes for which extradition is sought are extraditable offenses. 1. Dual Criminality. The doctrine of dual criminality requires that the offense for which extradition is sought be criminal under both Indian and United States law. See United States v. Khan, 993 F.2d 1368, 1372-73 (9th Cir.1993). India charges Barapind with murder, attempted murder, robbery (including armed robbery), and conspiracy. Indian law makes the conduct that establishes these charges criminal. See Indian Penal Code §§ 34,120B, 148,149, 302, 304, 307, 382, and 392. Title 18 of the United States Code similarly criminalizes the conduct charged. See 18 U.S.C. §§ 1111, 1113, 924(c) and 371 (2001). The parties do not dispute that the charged offenses meet the dual criminality requirement. 2. Doctrine of Specialty The doctrine of specialty prevents the requesting nation from prosecuting the extradited person for any offenses other than those crimes for which the requested country grants extradition. See Khan, 993 F.2d at 1372-73. D. Probable Cause Article 9 of the Treaty provides: “[t]he extradition shall take place only if the evidence be found sufficient ... to justify the committal of the prisoner for trial.” The country seeking extradition is not required to present all its evidence at an extradition hearing. See Quinn, 783 F.2d at 815. Nor is it the role of the district court to determine whether there is sufficient evidence to convict the accused. See id. Instead, “the probable cause standard applicable in extradition proceedings is identical to that used by courts in federal criminal preliminary hearings,” Sidali v. I.N.S., 107 F.3d 191, 199 (3d Cir.1997); see also Charlton v. Kelly, 229 U.S. 447, 461, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Mirchandani v. United States, 836 F.2d 1223, 1226 (9th Cir.1988); Sindona v. Grant, 619 F.2d 167, 175 (2d Cir.1980); Castro Bobadilla v. Reno, 826 F.Supp. 1428, 1433 (S.D.Fla.1993), aff'd, 28 F.3d 116 (11th Cir.1994); the extradition judge must have competent evidence to support the belief that the accused has committed the charged offenses, see Quinn, 783 F.2d at 815 (citing Zanazanian, 729 F.2d at 627). The Court of Appeal in this Circuit describes the review of probable cause, as: “by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused was guilty.” Quinn, 783 F.2d at 790, (quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925)) (emphasis added); see also Mainero v. Gregg, 164 F.3d 1199, 1205 (9th Cir.1999) (quoting Quinn, 783 F.2d at 790). 1. Admissible Evidence A relator’s ability to oppose an extradition request is limited. The Federal Rules of Evidence do not apply in an extradition proceeding. Rule 1101(d)(3), Fed.R.Evid., provides that “[t]he rules [of evidence] (other than with respect to privileges) do not apply ... [to proceedings for extradition or rendition.” See In re Requested Extradition of Smyth, 61 F.3d 711, 720-21 (9th Cir.) amended by 73 F.3d 887 (9th Cir.1995), cert. denied, 518 U.S. 1022, 116 S.Ct. 2558, 135 L.Ed.2d 1076 (1996). Although admission of evidence offered by the relator at an extradition proceeding is left to the discretion of the extradition judge, facts contradicting the requesting country’s proof of probable cause or establishing an affirmative defense are inadmissible. See Charlton v. Kelly, 229 U.S. 447, 456, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); see also Mainero, 164 F.3d at 1207, n. 7; and Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir.1978). The relator may present evidence that explains away or completely obliterates the government’s evidence. Hooker, 573 F.2d at 1369; see also Mainero, at 164 F.3d at 1207 n. 7, (“generally, evidence that explains away or completely obliterates probable cause is the only evidence admissible at an extradition hearing.”). The subtle difference between the two is “difficult to articulate.” In re Sindona, 450 F.Supp. 672, 685 (S.D.N.Y.1978), aff'd sub nom. Sindona v. Grant, 619 F.2d 167 (2d Cir.1980); see also, e.g., Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir.1991); Sandhu v. Burke, No. 97 Civ. 4608, 2000 WL 191707, *5 (S.D.N.Y. Feb. 10, 2000); Maguna-Celaya v. Haro, 19 F.Supp.2d 1337, 1343 (S.D.Fla.1998) (“This ‘somewhat murky principle’ has often been cited by courts without explanation as to what constitutes evidence that explains and what constitutes evidence that contradicts.”), rev’d on other grounds, 172 F.3d 883 (11th Cir.1999) (per curium). In practice, the standard is extremely difficult to apply. According to the Supreme Court in Collins v. Loisel, the line may properly be drawn between evidence rebutting probable cause and evidence to establish a defense. See 259 U.S. 309, 315, 42 S.Ct. 469, 66 L.Ed. 956 (1922); see also Republic of France v. Moghadam, 617 F.Supp. 777, 781 (N.D.Cal.1985). “[I]n admitting ‘explanatory evidence,’ the intention is to afford an accused person the opportunity to present reasonably clear-cut proof which would be of limited scope and have some reasonable chance of negating a showing of probable cause.” Sindona, 450 F.Supp. at 685; see also Sandhu, 2000 WL 191707, *5 (“Whatever the precise boundary between admissible ‘explanatory’ evidence and inadmissible ‘contradictory’ evidence, evidence that would completely negate probable cause, is admissible in an extradition hearing.”). Extensive recantation evidence is offered by Barapind. There is a split of authority whether recantation evidence is admissible in extradition. Mainero, 164 F.3d at 1207 n. 7; compare Eain v. Wilkes, 641 F.2d 504, 511-12 (7th Cir.1981) (recanting statements refused because they constituted contradictory evidence); but see In the Matter of Extradition of Contreras, 800 F.Supp. 1462, 1464, 1469 (S.D.Tex.1992) (confessions, the sole evidence of probable cause, were sufficiently recanted to negate existence of probable cause). In addition Barapind offered testimony from Rajinder Singh that called into question the reliability, completeness, accuracy, and integrity of the evidence submitted in some of the cases. He and other witnesses testified to coercive and unlawful methods, including false accusations, used by Indian government agents in the Punjab against Indian attorneys who represented Sikh militants and the militants. Rajinder testified to being in fear of reprisal for testifying in the extradition hearing. He conducted a recent (2000) investigation of lighting conditions in the crime scene described in F.I.R. 94. He interviewed and obtained affidavits from a large number of witnesses in the cases. E. POLITICAL OFFENSE EXCEPTION 1. Statutory Basis The right of a foreign sovereign to demand and obtain extradition of an accused criminal is created by treaty. See Quinn, 783 F.2d at 782. In the absence of a treaty there is no duty to extradite. See Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 78 L.Ed. 315 (1933). Article VI of the 1931 Treaty provides: A fugitive criminal shall not be surrendered if the crime or offense in respect of which his surrender is demanded is one of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for a crime or offense of apolitical character. TS 849; 47 Stat. 212, Art. VI (emphasis added). The determination whether a crime is extraditable “under the provisions of the treaty,” includes consideration of whether the crime is nonextraditable because it falls within the political offense exception. Quinn, 783 F.2d at 786 (citing In re Ezeta, 62 F. 972, 996-97 (N.D.Cal.1894)). 2. Burden of Proof The cases do not clearly identify the standard of proof by which the necessary elements of the political offense exception must be judged. See United States v. Pitawanakwat, 120 F.Supp.2d 921, 928 (D.Or.2000) (relator has initial burden of submitting evidence to establish elements of the exception). The burden then shifts to the government “to prove that the crime charged in the Complaint was not of a political character.” Id. (quoting Ramos v. Diaz, 179 F.Supp. 459, 463 (S.D.Fla.1959)). The parties both argue, when it is to their advantage, that the rules of evidence do not apply to an extradition proceeding; but no party provides controlling legal authority whether “any evidence” or a “preponderance,” or some greater showing is necessary to establish the political offense exception. Barapind contends he must prove the elements of the political offense exception by a preponderance of the evidence. See, e.g., Ahmad v. Wigen, 726 F.Supp. 389, 408 (E.D.N.Y.1989) (preponderance standard is the appropriate burden level and the norm in a civil case), aff'd 910 F.2d 1063 (2d Cir.1990). 3.The “American Incidence Test” (Incidental To) The 1931 Treaty does not define a political offense. This task is left to the courts. The Ninth Circuit analyzed the historical basis and then-existing (as of 1986) state of the political offense exception in Quinn. Quinn identifies the justifications for the political offense exception: First is the belief that individuals have a right to resort to political activism to foster political change.... Second, the exception reflects a concern that individuals — particularly unsuccessful rebels— should not be returned to countries where they may be subjected to unfair trials and punishments because of their political opinions. Third, the exception comports with the notion that governments — and certainly their nonpolitical branches — should not intervene in the internal political struggles of other nations. Quinn, 783 F.2d at 793 (citations omitted). Political offenses generally fall within two distinct categories: pure political offenses and relative political offenses. Pure political offenses, like treason, espionage, and sedition, are acts aimed directly at the government and do not contain any of the elements of ordinary crimes. See id. at 793. Relative political offenses, on the other hand, are otherwise common crimes committed in connection with a political act or common crimes committed for political motives or in a political context. See id. at 794 (citations omitted). The political offense exception applies when “the nexus between the crime and the political act is sufficiently close.” Id. at 794 (citations omitted). American courts use the “incidence” test to define a nonextraditable political offense. Id. at 795. In the seminal United States case, In re Ezeta, 62 F. 972, the extradition of a number of individuals for murder and robbery to Salvador was denied because the acts were committed during actual hostilities between contending forces in an unsuccessful effort to thwart a revolution. The Supreme Court has considered the political offense exception only once. In Ornelas v. Ruiz, the Court allowed the extradition of an individual for murder, arson, robbery, and kidnaping committed at or about the time revolutionary activity was in progress. 161 U.S. 502, 510, 16 S.Ct. 689, 40 L.Ed. 787 (1896). The Supreme Court listed four factors relevant to the political offense inquiry: (1) the character of the foray; (2) the mode of attack; (3) the persons killed or captured; and (4) the kind of property taken or destroyed. Id. at 511, 16 S.Ct. 689. There, although the crimes were committed while an uprising was in progress, the crimes were not of a political character, because after the crime, no armed force of the Mexican government was engaged and the bandits took the stolen property referred to as “booty” across the border to Texas. Following Ornelas, the incidence test has been applied with a “two-fold requirement: (1) the occurrence of an uprising or other violent political disturbance at the time of the charged offense; and (2) a charged offense that is ‘incidental to,’ ‘in the course of,’ or ‘in furtherance of the uprising.” Quinn, 783 F.2d at 797 (citations omitted). Quinn observes the incidence test has been criticized as both over-inclusive and under-inclusive, but when properly applied, the test remains “workable.” Id. at 801. This case strains the “workability” of the test. Quinn suggests the need to impose limitations on use of the political offense exception, when it is applied to new methods of political violence; ie., domestic revolutionary violence and international terrorism. Eain imposed additional restrictions on the incidence test. These Seventh Circuit restrictions redefined the “uprising” portion of the test “as a struggle between organized, non-dispersed military forces; made a policy determination regarding the legitimacy of certain political objectives; and excluded violent acts against innocent civilians from the protection afforded by the exception.” Quinn, at 802. Quinn suggests the test should be ideologically neutral; should not attempt to judge the political legitimacy of the objectives or means used, no matter how heinous. Id. at 803. Quinn excludes from the exception acts of international terrorism, which are committed abroad, not in the country run by a government that is the target of the uprising, because international terrorism seeks to promote social chaos and is not political. Extraditing an international terrorist does not interfere with internal struggles for self-determination. Id. at 806. Quinn interprets the incidence test to: (1) “protect[-]acts of domestic violence in connection with a struggle for political self-determination;” and (2) “not protect acts of international terrorism;” 783 F.2d at 806. Quinn allowed extradition because there was an insufficient level of violence outside of Northern Ireland in England where the shooting occurred, to constitute an “uprising,” id. at 814, which “refers to a people rising up, in their own land, against the government of that land,” id. at 813 (emphasis in original). Acts that took place in England were not part of a struggle by nationals of Northern Ireland to change the form of government in their own land. See id. at 814. The incidence test has two components: (1) the “uprising” requirement that there is an “uprising,” “rebellion,” or “revolution,” which is within the borders of the country or territory in which citizens or residents seek to change government or governmental structure; and (2) the crimes must be “incidental to” the uprising, meaning “in the course of,” “connected to,” “in furtherance of,” “causally or ideologically related to the uprising, within the geographic confines of the place where the uprising occurs, and contemporaneous with the uprising.” Quinn at 808-09. In evaluating the nexus between the crime and the uprising, the incidence test does not analyze: (1) the political effectiveness of the actions used to achieve the political ends; (2) the motives of the accused or the requesting nation; or (3) the organization or hierarchy of the uprising group or the relator’s position in the group. See id. at 809. Evidence that a crime was committed purely for personal reasons such as vengeance or vindictiveness serve to rebut any presumption a political reason exists. See id. at 810. An offense is not political simply because it is politically motivated. See Escobedo v. United States, 623 F.2d 1098 (5th Cir.1980); nor because committed by' a politician, see United States ex rel Ka-radzole v. Artukovic, 170 F.Supp. 383, 392 (N.D.Cal.1959) (the crime must be part of a bonafide struggle for political power and form a part of political disturbances). A common crime with political overtones “does not meet the test.” Koskotas v. Roche, 740 F.Supp. 904 (D.Mass.1990); United States v. Kin-Hong, 110 F.3d at 113-14 n. 16 (financial fraud traditionally outside the political offense exception). F. Uprising Component The uprising component requires proof of an “uprising,” “rebellion,” or “revolution” when the crime occurs. The “uprising” component “makes the political offense exception applicable only when a certain level of violence exists and when those engaged in that violence are seeking to accomplish a particular objective.” Quinn, 783 F.2d at 807. The exception does not cover “acts that involve less fundamental efforts to accomplish change or that do not attract sufficient adherents to create the requisite amount of turmoil.” Id. The “uprising” component is not only limited temporally, but also spatially, in that the “revolt can occur only within the country or territory in which those rising-up reside.” Id. The Ninth Circuit did not adopt a bright-line rule to establish the proper geographic boundaries for the “uprising” component. In Quinn, an uprising in one political subdivision (Northern Ireland) did not necessarily extend to the English nation as a whole, nor consequently to other subdivisions. In the Second Circuit, there must be a “violent political disturbance as to constitute in effect a state of civil war.” Ahmad v. Wigen, 726 F.Supp. 389, 408 (E.D.N.Y.1989), aff'd 910 F.2d 1063, 1066 (2d Cir.1990). Eain v. Wilkes, 641 F.2d 504, 519-20 (7th Cir.1981), speaks in terms of “on-going, organized battles between contending armies.” G. The “Incidental To” Component For a criminal act to be “incidental to” an uprising, it must be “causally or ideologically related to [an] uprising.” Ornelas, 161 U.S. at 511, 16 S.Ct. 689. “The ‘incidental to’ component is not satisfied by any connection, however feeble, between a common crime and a political disturbance.” Quinn, 783 F.2d at 809 (quoting Manuel R. Garcia-Mora, The Nature of Political Offenses: A Knotty Problem of Extradition Law, 48 YA. L. REV. 1226, 1246 (1962)). “[I]n determining whether a rational nexus exists between the alleged crimes and the political disturbance, the focus of inquiry is on the circumstances and the status of those harmed and not merely on whether the acts were committed during the disorder.” Matter of Extradition of Demjanjuk, 612 F.Supp. 544, 570 (D.C.Ohio 1985). “This doctrine was established to protect acts that are directed at the State itself, and not to protect every criminal act that in some sense contributes to the political goal of those committing it.” McMullen v. I.N.S., 788 F.2d 591, 597 (9th Cir.1986); see also Quinn, 783 F.2d at 798; Eain, 641 F.2d at 520-23. As a result, indiscriminate attacks on civilians do not fall under the political offense exception. See Ahmad v. Wigen, 910 F.2d at 1066 (holding that an attack on a commercial bus carrying civilians was not a political offense); Eain, 641 F.2d at 521 (holding that a bombing of a market area was not incidental to an uprising); but see Quinn, 783 F.2d at 809-10, (stating in dicta that Quinn’s participation in bombings would be incidental to an uprising). Acts “committed for purely personal reasons such as vengeance or vindictiveness” may also fall outside the political offense exception. In re Doherty, 599 F.Supp. 270, 277 n. 7 (S.D.N.Y.1984); accord Quinn, 783 F.2d at 810. The Ninth Circuit in Quinn applied “a rather liberal standard” of nexus to the “incidental to” prong. Quinn, 783 F.2d at 810. Under such a standard, there is “no justification for distinguishing ... between attacks on military and civilian targets” and such acts as “killing simply to avoid capture” or “killing to avoid disclosure of strategies,” which can “be incidental to or in furtherance of an uprising.” Id. at 810. “All the courts should do is determine whether the conduct is related to or connected with the insurgent activity.” Id. at 810. However, Quinn was certified for extradition because he failed to satisfy the “uprising” component, the court did not have to reach or apply the “incidental to” component. The portion of Quinn that addresses the “incidental to” prong is dicta and is only persuasive, non-binding authority. See United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1132-34 (E.D.Cal.2001) (pronouncements on an issue not necessary to prior 1990 decision were dicta, requiring de novo interpretation in the district court) (citing cases). Quinn provides no guidance as to how to evaluate the nature and quality of insurgent activity nor how to determine whether crimes claimed to be committed to achieve political goals are so related as to be “incidental to.” A subjective standard that looks solely to the relator’s intent that the crime committed is for a political goal is an unworkable standard. See Quinn, 783 F.2d at 810. In this Circuit, Mainero, 164 F.3d at 1207 n. 7, assumed obliterating evidence may be considered. As India notes, Charlton v. Kelly, 229 U.S. 447, 456, 33 S.Ct. 945, 57 L.Ed. 1274 (1913), excludes contradicting evidence without mention of evidence so contrary it “obliterates” probable cause. Because the distinction between contradictory, explanatory, and obliterating evidence is “difficult to understand,” much less apply, Barapind’s evidence was received and has been analyzed. Barapind is not entitled to a trial to determine probable cause. See Gill v. Imundi, 747 F.Supp. 1028, 1045 (S.D.N.Y.1990). This case exemplifies the difficulty of applying the prevailing “rules” governing what evidence may be considered in an extradition proceeding, where the relator seeks to turn the inquiry into a trial on the merits on each charge. V. CRIMES CHARGED India seeks to extradite Barapind for the following offenses: A. February 16, 1992, attempted murder of police officer (Case No. FIR 23) This charge is for attempted murder under India Penal Code Sections 301 and 304. Indian Penal Code § 301 defines culpable homicide as causing the death of a person other than the person whose death was intended. India Penal Code § 300 defines the crime of murder and requires an act which caused death (i) with the intention of causing death; or (ii) with the intention of causing such bodily injury as is known to be likely to cause death; or (Hi) with the intention of causing bodily injury to any person and such injury to be inflicted is sufficient in the ordinary course of nature to cause death; or (iv) with knowledge that the act is so imminently dangerous that it must, in all probability cause death or such bodily injury that is likely to cause death, and without any excuse for incurring such risk of death or bodily injury. Murder is “doing any act with the intention or such knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder.” I.P.C. § 304 prescribes the punishment for culpable homicide not amounting to murder. I.P.C. § 307 is attempt to murder, which prevents a person from doing an act with such intent or knowledge and under such circumstances that if the act caused death, the death would be murder. Gulzar Singh, Assistant Sub Inspector of Police (ASI), along with other police officers held a special police picket (roadblock) in the area of the Village Rurki on February 16, 1992. Barapind, Gurdeep Singh, a.k.a. Deepa, and two other unidentified individuals approached the police picket in a Maruti car. At about 30 yards from the police party, the car stopped, the occupants exited the car armed with AK-47 rifles, and engaged in a firefight with police. Barapind and Gurdeep Singh were identified by Gulzar Singh, who “knew them from earlier,” through the use of “strong torch lights.” Barapind and the three others started firing on the police party. The police returned fire in “self-defense.” After a fifteen-minute firefight, the suspects ran away. The Maruti car was left at the scene. A search revealed the perpetrators left behind one AK-56 loaded assault rifle, two magazines of AK-56 ammunition and four pamphlets urging a boycott of the elections. The perpetrators are described as “terrorists,” “doing propaganda” on workers in the village. See Aff. of Gulzar Singh, Annexure All. Annexure A/2 is the affidavit of Kashmir Singh, Inspector of Police, who examined the case file and believed there was sufficient evidence to put the case in court. Annexure A/3 is the certification of District Attorney S.K. Kapoor who checked the Challan. Annexure A/4 is the warrant of arrest for Barapind (date illegible). An-nexure A/5 is a photograph of Barapind. In Annexure A/6, Gulzar Singh identifies Barapind and verifies he signed the reverse side of the photograph. No copy of the signed photograph was submitted. Annexure A/7 is a copy of FIR 23 registered against Barapind. Annexure A/8 is the Challan form under Indian Criminal Procedure Code 173, which charges Bara-pind with attempted murder. Annexure A/9 lists twelve separate cases in which Barapind is a proclaimed offender. Anne-xure A/10 is Gulzar Singh’s statement to the Judicial Magistrate. In a supplement to the Annexure, dated May 25, 1998, Gul-zar Singh identifies Barapind by signing the reverse side of a picture of Barapind. See Statement of Gulzar Singh, Govt. Ex. 4 (original photograph). No physical evidence identifying Bara-pind as a perpetrator is submitted. B. June 29, 1991, murder and conspiracy to murder (Case No. FIR 52) These charges are murder and conspiracy to murder under India Penal Code §§ 302 and 120B. I.P.C. § 302 defines the punishment for murder. A conspiracy is defined by I.P.C. 120A as: “when two or more persons agree to do, or cause to be done, — (1) an illegal act, or (2) an act which is not illegal by illegal means.... ” Provided that no agreement except an agreement to commit an offense shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. I.P.C. § 120B prescribes the punishment for conspiracy. Rajinder Kaur and her husband Kulwin-der Singh were sleeping in one room of their house in Rurki Khurd, Jalandhar District on June 29, 1991. They had two small sons. Rajinder’s father-in-law, Sar-wan Singh, and mother-in-law were sleeping outside the room on the veranda. Around 11:00 p.m. the door of Rajinder’s room was opened while she was talking with her husband. Two men, whom the police report states she identified as Bara-pind and Ranjit Singh, a.k.a. Rana, were standing in the door of the room. Bara-pind pulled her husband, Kulwinder Singh, and took him out to the veranda. Ranjit Singh stated they were there to punish Rajinder and her family for killing the father of Ranjit Singh. Kulwinder Singh asked Ranjit not to kill him. Barapind, armed with an assault rifle and Ranjit Singh, armed with a pistol, both fired at Kulwinder Singh, killing him. See Ajf. of Rajinder Kaur, Annexure B/l. Barapind and Ranjit Singh then took Rajinder Kaur’s father-in-law, Sarwan Singh, with them, struck him in the head with the iron handle of a pump and they then shot Sar-wan Singh dead. They left the pump handle with the body. See Ajf. of Rajinder Kaur, Annexure B/l. Rajinder Kaur then went with her brother-in-law, Jaswinder Singh, to lodge a report with the police. On her way she was met at a bus stop at Goraya, by ASI Gulzar Singh who recorded and obtained her signature to her statement immediately following the killings. See Ajf. of Rajin-der Kaur, Annexure B/l. The “verified” statement submitted is not signed by Ra-jinder. Rajinder Kaur opines the motive for these killings was the 1973 killing by Sarwan Singh of Gurnek Singh, Ranjit Singh’s father, for which Sarwan Singh was convicted. Annexure B/2 is the affidavit of the investigator, ASI of Police, Gulzar Singh. Gulzar Singh testifies that he took the statement of Rajinder Kaur, that she signed it, and admitted before him that the statement was correct. Annexure B/3 is the affidavit of Sub Inspector (SI) Surin-der Pal, who examined the case file and believed there was sufficient evidence to put the case in court. Annexure B/4 is the certification of District Attorney S.K. Kap-oor, who checked the Challan. Annexure B/5 is the warrant of arrest for Barapind, dated October 15, 1991. B/6 is a photograph of Barapind. In Annexure B/7 Ra-jinder Kaur identifies Barapind and veri-fíes she signed the reverse side of the photograph. No original or copy of the signed photograph was submitted to the court with the original extradition request. Annexure B/8 is a copy of FIR 52 registered against Barapind. Annexure B/9 is the Challan form under Indian Criminal Procedure Code 173, which charges two counts of murder. Annexure B/10 lists twelve separate cases in which Barapind is a proclaimed offender. Annexure B/ll is Rajinder Kaur’s statement to the Judicial Magistrate. In a supplement to the Anne-xure, dated May 30, 1998, Rajinder Kaur identifies Barapind by signing the reverse side of a picture of Barapind. See Statement of Rajinder Kaur, Govt. Ex. k (original photograph). Barapind contests the validity of Rajin-der Kaur’s affidavit. He refers to the 1997 testimony at the trial of two other suspects in the same murder case, where she testified under oath she could not identify any of the shooters. Barapind presents an affidavit of Jaswinder Singh, son of the murdered, Sarwan Singh. Jaswinder Singh testifies that he was with Rajinder Kaur when she had her statement recorded by ASI Gulzar Singh. He asserts that Rajinder did not identify Barapind and Ranjit Singh as two of the assailants. Ja-swinder Singh states that the police on their own accord inserted the names of Barapind and Ranjit Singh. See Ajf. of Jaswinder Singh, Def. Ex. 6. Bikkar Singh and Chanan Kaur were the two other suspects tried in connection with the murders of Kulwinder Singh and Sarwan Singh. Both were acquitted when Jaswinder Singh and Rajinder Kaur each testified at trial that they were not able to identify any of the assailants. See Def. Ex. 7. No physical or fingerprint evidence identifies Barapind as a participant in these two killings. C. October 5, 1991, Murder and Attempted Murder (Case No. FIR 87) These charges are for murder and attempted murder, under India Penal Code Sections 302, 307, and 34. I.P.C. § 34 provides that when a criminal act is done by several persons in furtherance of the common intention of all, each is liable for the crime. Rattan Singh, an agriculturist, around 60 years old, was traveling from the village of Bara Pind to attend the Bhog ceremony (a religious ceremony) of Mohinder Singh on October 5, 1991, in a jeep belonging to Thekedar Ram Tirath who was driving, with Tarlochan Singh, the bodyguard (gunman) for Ram Tirath. Tarlochan was armed with a .315 caliber rifle. Jaspal Singh was a rear seat passenger along with Rattan Singh. See Ajf. of Rattan Singh, Annexure C/1. At around 10:30 a.m., near the bridge over a canal in the area of the village Bara Pind, Ranjit Singh and Barapind emerged from bushes on the left side of the road, armed with assault rifles, and started firing at the jeep. The jeep stopped and drove in reverse to avoid the attack. The jeep went out of control and fell into a pit on the south side of the road. Both Bara-pind and Ranjit Singh continued to fire on the jeep. See Ajf. of Rattan Singh, Anne-xure C/1. Ram Tirath, Tarlochan Singh, and Jas-pal Singh were killed from bullet injuries inflicted by the weapons of Barapind and Ranjit Singh. Rattan Singh survived by lying down on the back side of the jeep. The suspects ran away while still firing their assault rifles. The suspects stole .315 caliber rifles from Ram Tirath. While Rattan Singh was going to the police station to report the incident, he was met at the bus stand at Rurki Khurd by SI Ajit Singh who took and recorded Rattan Singh’s statement. There is no original or a copy of Rattan’s signed statement. Ajit does not state that Rattan signed or verified his statement. See Ajf. of Rattan Singh Annexure C/1. Annexure C/2 is the affidavit of SI of Police Ajit Singh. Annexure C/3 is the affidavit of SI Surinder Pal who examined the case file and opines there was sufficient evidence to put the case in court. Annexure C/4 is the certification of the District Attorney S.K. Kapoor, who checked the Challan. Annexure C/5 is the warrant of arrest for Barapind, which was issued on November 8, 1991. Annexure C/6 is a photograph of Barapind. In An-nexure C/7 Rattan Singh identifies Bara-pind and verifies he signed the reverse side of the photograph. The original signed photograph was not submitted to the court. Annexure C/8 is a copy of FIR 87 registered against Barapind. Annexure C/9 is the Challan form under Indian Criminal Procedure Code 173. Annexure C/10 lists twelve separate cases in which Barapind is a proclaimed offender. Anne-xure C/ll is Rattan Singh’s statement to the Judicial Magistrate. In a 1998 supplement to the Annexure, Rattan Singh identifies Barapind by affixing Rattan Singh’s thumb print on the reverse side of a picture of Barapind. See Statement of Rattan Singh Govt. Ex. I (original photograph). Barapind contests the competence of the statements made in Annexure C/1. Bara-pind presents a January 13, 2001, affidavit of Rattan Singh, who states that he was unable in 1991 to give the name of the assailants because he did not know or recognize them. Rattan Singh states that about two years ago he was taken against his will by police to the police station in Phillaur and was directed to give an affidavit that implicated Barapind and Ranjit Singh in the deaths of Ram Tirath and his gunmen. Rattan Singh now declares that when in 1998 he previously told police that he knew Barapind well and that Barapind was not one of the assailants, it was because the police threatened his life and his thumbprints were forcibly imposed on a number of sheets of blank paper. Rattan Singh states that these thumb prints were then used on ‘affidavits’ to falsely identify Barapind as one of the assailants without Rattan’s consent. See Ajf. of Rattan Singh, Def. Ex. 8. D. September 6, 1992, Murder and Robbery (C