Mohmed
Sakeem Vs. State of Gujarat [1994] INSC 389 (19 July 1994)
Anand,
A.S. (J) Anand, A.S. (J) Faizan Uddin (J)
CITATION:
1994 SCC (5) 369 1994 SCALE (3)438
ACT:
HEAD NOTE:
ORDER
1.
This is an appeal under Section 19 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter TADA).
2. The
prosecution story, as emerging from the record is that a complaint was lodged
by one Jugal Kishore Puran Lal Gupta-complainant, with Gomtipur Police Station
on 10-7-1992 alleging that when he was returning
after visiting his brother's Video Cassette Library located near Vivekananda
Mills on a bicycle, near Arbuda Mills, he found one unknown person coming
towards him. On reaching near the complainant, that person took out a knife and
gave him a blow on his abdomen. Two or three more persons came out from a
nearby Chawl and asked the assailant to drag the complainant into the Chawl.
While being dragged towards the Chawl, he was given one more blow on the left
side of his neck. The assailant also inflicted a knife blow on his back. The
complainant, however, managed to free himself and started running towards the
four cross-roads. He found one police jeep on patrol + From the Judgment and
Order dated 31-12-1993 of the Additional Designated Court, Ahmedabad in Terrorist Crl. Case
No. 6 of 1993 370 duty and the police took him to the hospital. A complaint was
thereafter lodged and investigation taken in hand. The co-accused of the
appellant was released on bail during the investigation but at the time of
framing of the charge- sheet, the co-accused did not turn up and even the
sureties could not be located. On the request of the Public Prosecutor, the
case of the appellant was separated and on 30-7-1993, the appellant was put up for trial
for offences under Section 324 IPC, Section 3(1) of TADA and Section 135(1) of
the Bombay Police Act. The trial court after recording the evidence led by the
prosecution and exhibiting the injury certificate received from the hospital,
Ex. P- 11 formulated the following three points for consideration :
"(1)
Does the prosecution prove that on 10-7- 1992 at about 9.30 p.m. near Arbuda
Mills situated within Gomtipur Police Station limits the present accused along
with the absconding accused Saleem Ibrahim Shaikh voluntarily caused hurt on
the complainant Jugal Kishore Puran Lal Gupta by means of any instrument for
stabbing or cutting, or any instrument, which if used as a weapon of offence,
is likely t o cause death and has, thus rendered himself liable for the offence
punishable under Section 324 of the Indian Penal Code? (2)Does the prosecution
prove that on the aforesaid date, time and place the present accused by
carrying with him any weapon in violation of any prohibitory order issued by
any competent 'authority has committed the offence punishable under Section
135(1) of the Bombay Police Act? (3)Does the prosecution prove that on the
aforesaid date, time and place the present accused with intent to strike terror
in the people or any section of the people or to alienate any section of the
people or to adversely affect the harmony amongst different sections of the
people did any act or thing by using lethal weapon like knife or razor in such
a manner as to cause, or as is likely to cause death of, or injuries to, any
person or persons and has committed a terrorist act as defined in Section 3(1)
of the TADA (Prevention) Act punishable under Section 3(2) of the said
Act?"
3. The
trial court found that the charge against the appellant for the offence under
Section 135(1) of the Bombay Police Act was not made out and consequently the
appellant was acquitted of the said charge.
4. The
injuries which were disclosed in the injury certificate (Ex. P- II), upon
admission by the defence, indicated that the complainant sustained an injury of
10 cms x 0.75 cm x 0.75 cm on his abdomen apart from an injury on his back of
the size 3 cms x 0.25 cm x 0.25 cm. The injuries received by the complainant
undoubtedly show that those had been caused to him by a sharp knife and the
Designated Court, in our opinion, was right in coming to the conclusion that an
offence under Section 324 IPC had been made out against the appellant. Learned
counsel for the appellant was unable to point out any infirmity in the finding
of the trial court. The appreciation of the evidence insofar as the offence
under Section 324 IPC is concerned, is 371 proper and we agree with the
conclusion arrived at by the Designated Court with regard to the offence of the
appellant punishable under Section 324 IPC.
5. The
Designated Court convicted the appellant for an offence under Section 3(1) of
TADA also and sentenced him to 8 years' rigorous imprisonment and a fine of Rs
1500 and in default thereof 3 months' rigorous imprisonment. In our opinion,
the Designated Court fell in error in finding that the
offence under Section 3(1) of TADA had been made out against the appellant. In
the established facts and circumstances of the case recourse to Section 3(1) of
TADA discloses a clear misuse of the provisions of that Act.
There
is not an iota of evidence that the injury was caused to the complainant with
the intention contemplated by Section 3(1) to achieve the objective envisaged
by the said section. The complainant, at the trial, as a definite improvement
over his statement in the FIR, while narrating the manner of assault added that
after he said to the assailants that he was a "Muslim", he was let
off. Apart from the fact that such an improved version does not inspire
confidence because there was no occasion for the complainant to say so, it
appears to us that the prosecution introduced this statement with a view to
show that the objective of the assailants was to create communal disharmony so
as to invoke the provisions of Section 3(1) of TADA. The complainant has not
stated anywhere in his statement, that at any point of time, any of the
assailants be laboured him only because they believed him to be a
"non-Muslim" or had attacked him for that reason. That apart, the
complainant on his own admission "managed to escape from the clutches of
the assailants and ran towards the four cross-roads". This would not have
been his conduct, if the assailants on coming to know that he is a
"Muslim" had let him off In the absence of any evidence from which
even an inference could be drawn that the assault was made with the requisite
intention as envisaged by Section 3(1) of TADA, this attempt on the part of the
complainant to give a communal colour to the occurrence was futile and the
Designated Court could not have convicted the appellant for an offence under
Section 3(1) of TADA. While dealing with the ambit and scope of Section 3(1) of
TADA in Hitendra Vishnu Thakur v. State of Maharashtra' , this Court opined:
(SCC pp. 623-24, para 15) "Thus the true ambit and scope of Section 3(1)
is that no conviction under Section 3(1) of TADA can be recorded unless the
evidence led by the prosecution establishes that the offence was committed with
the intention as envisaged by Section 3(1) by means of the weapons etc. as
enumerated in the section and was committed with the motive as postulated by
the said section. Even at the cost of repetition, we may say that where it is
only the consequence of the criminal act of an accused that terror, fear or
panic is caused, but the crime was not committed with the intention as
envisaged by Section 3(1) to achieve the objective as envisaged by the section,
an accused should not be convicted for an 1 (1994) 4 SCC 602 372 offence under
Section 3(1) of TADA. To bring home a charge under Section 3(1) of the Act, the
terror or panic etc. must be actually intended with a view to achieve the
result as envisaged by the said section and not be merely an incidental
fall-out or a consequence of the criminal activity Every crime, being a revolt
against the society, involves some violent activity which results in some
degree of panic or creates some fear of terror in the people or a section
thereof, but unless the panic, fear of terror was intended and was sought to
achieve either of the objectives as envisaged in Section 3(1), the offence
would not fall stricto sensu under TADA." In view of the law laid down as
above, we find that the conviction of the appellant for the offence under
Section 3(1) TADA is not at all sustainable The conviction and sentence of the
appellant for the offence under Section 3(1) TADA is consequently set aside.
6. As
a result of the above discussion, this appeal succeeds in part. The conviction
and sentence of the appellant for an offence under Section 3(1) TADA is set
aside but his conviction and sentence for the offence under Section 324 IPC is
upheld.
7.
With the aforesaid modification, this appeal is partly allowed.
Back
