Shantram Sawant Vs. State of Maharashtra
 Insc 266 (8 May
Sethi & Bisheshwar Prasad Singh Bisheshwar Prasad Singh, J.
appeal has been preferred by Ravindra Shantaram Sawant (hereinafter referred to
as accused No. 1) against the judgment and order of the Designated Court at Brihan, Mumbai in TADA Special
Case No. 31 of 1994.
No.1 was tried for various offences under the Indian Penal Code ; Terrorist and
Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the
"TADA") and under the Arms Act.
No.1 was put up for trial alongwith two others, namely Nagesh Vishnu Mohite
(for short accused No.2) and Arun Gulab Gavli (for short accused No.3). The
fourth accused, namely Sada Pawale could not be put up for trial, as he
remained absconding. Accused No.1 has been sentenced to life imprisonment under
Section 3(2)(ii) of TADA and has also been directed to pay a fine of
Rs.5,000/-, in default of payment of fine, to undergo six months' rigorous
imprisonment. He has also been sentenced to life imprisonment and to pay a fine
of Rs.500/- and in default to undergo one month's rigorous imprisonment each
under Sections 5 and 6 of TADA. He has also been found guilty of the offence
under Section 25(1-B)(a) of the Arms Act and sentenced to three years' rigorous
imprisonment and a fine of Rs.500/-, in default of payment of fine, to undergo
rigorous imprisonment for one month. Similarly, he has been found guilty of the
offence under Section 27 of the Arms Act and sentenced to suffer rigorous
imprisonment for seven years and a fine of Rs.500/-, in default to undergo one
month's rigorous imprisonment. He has also been found guilty of the offence
under Section 307 IPC for attempting to commit the murder of the victim Ashwin Naik,
ASI Gangadhar Bhau Waghchaure, PW.4 and two other constables, namely Dayanadeo Bhagyawan
Nikam, PW.6 and Sanjay Shankar Bhingardive, PW.3 and has been sentenced to
suffer imprisonment for life and to pay a fine of Rs.500/-, in default of
payment of fine, to undergo rigorous imprisonment for one month. He has been
also found guilty of the offence under Section 333 IPC and sentenced to ten
years rigorous imprisonment and to pay a fine of Rs.500/-, in default to
undergo rigorous imprisonment for one month. All the substantive sentences have
been directed to run concurrently.
No.1 has, however, been acquitted of the charges under Section 120-B IPC and
3(5) of TADA. The remaining two accused had been acquitted of all the charges levelled
stated, the case of the prosecution is that with a view to eliminate Ashwin Naik,
all the three accused herein together with Sada Pawale (absconder) entered into
a conspiracy with a view to commit a terrorist act within the meaning of
Section 3(1) of TADA and in pursuance thereof accused No.1 attempted to commit
the murder of Ashwin Naik within the precincts of the Sessions Court, Brihan,
Mumbai. The said Ashwin Naik, who was facing trial before the Sessions Court
had been produced before the Sessions Court on the date of occurrence under
police escort. Accused No.1 fired at Ashwin Naik and injured him. In the
process he also fired at the police officials escorting Ashwin Naik and injured
them as well.
was, however, over-powered by the police and apprehended on the spot. His
revolver was seized and thereafter the case was registered against them. As
earlier noticed, accused Nos. 2 and 3 have been acquitted of the charges levelled
against them primarily on the ground that the prosecution failed to prove that
the various acts were committed pursuant to a conspiracy of which all the three
accused were members.
case of the prosecution is that accused No.3 is the leader of a gang of
criminals which indulges in criminal activities such as murder, extortion etc.
It is the case of the prosecution that Ashwin Naik, the injured is also a
leader of a similar gang.
No.2 is a member of the gang of accused No.3. Accused No.1 had come in contact
with accused No.3 with a view to join his gang, and this was the first
assignment given to him by the leader of the gang. On account of gang rivalry
as well as personal enmity between Ashwin Naik and accused No.3, accused No.3
decided to eliminate him and with that in view, conspired with the remaining
three accused to get him murdered on the date of occurrence.
to the prosecution, the conspiracy was hatched while accused No.3 was in the Yerwada
Central Prison as an under-trial prisoner. Sada Pawale (absconder) was also
detained in the same prison. It is the prosecution's case that in December,
1993, accused No.1 alongwith PW.18 Anil Gavkar went to the Yerwada Central
Prison and after making a fictitious entry met accused No.3 and expressed his
desire to join his gang. He was asked to wait and was assured that in due time,
he will get a message. A few days later, he got a message from accused No.3 to
meet Sada Pawale (absconder) who had since been released from jail. He met him,
and thereafter they continued to meet over the next two months.
payments were made to accused No.1 by Sada Pawale to meet his daily expenses. Sada
Pawale (absconder) took into confidence accused No.2 and assigned to him the
duty to keep a watch on Ashwin Naik and the proceedings pending against him in
Court. He was directed to keep a watch on the dates on which Ashwin Naik was
required to be produced in Court. He was told that Ashwin Naik was to be
murdered and this was being done with a view to facilitate his murder.
Accordingly accused No.2 kept a watch on the proceedings pending in the Courts
and kept himself informed of the dates on which Ashwin Naik was required to be
produced before the Court in cases in which he was involved. It is also the
case of the prosecution that accused No.2 alongwith Sada Pawale visited the Court
on one occasion and saw the elaborate police arrangements made for protecting Ashwin
Naik. It was, therefore, decided that the person deputed for the job should put
on the attire of an Advocate so as to facilitate his movement in the Court
premises. Accordingly accused No.2 is alleged to have purchased a black coat
from PW.5 and a pair of bands which he handed over to Sada Pawale.
Naik and five others were the accused in TADA Special Case No. 76 of 1992 which
was pending in the Court of the Additional Sessions Judge (Designated Court under TADA). It was fixed for
hearing on 18th April,
1994 in Court No.33 of
the Sessions Court which is on the 5th floor of the new building. Ashwin Naik
was to be brought from Adharwadi Jail from Kalyan and for that purpose a police
van had been provided. An escort party led by PW.1 Laxman Bhau Thorawat, ASI
and consisting of Bhagwat Saundane, PW.2, a commando armed with Carbine, Sanjay
Bhingardive, PW.3 and Bhagywan Nikam, PW.6 was deputed to escort Ashwin Naik
from the jail at Kalyan to the Sessions Court.
remaining five co-accused were similarly brought in a separate van escorted by
another policy party headed by PW.4 Gangadhar Waghchaure. Ashwin Naik as also
the other five accused were brought before the TADA Court in the morning session but were told by the Sheristedar of
the Court that the case will be taken up in the afternoon session. PW.4 Gangadhar
Waghchaure took the five accused persons under his charge to the ground floor
of the building where a provisional lock-up has been provided in the barracks
to the South of the new court building. However, Ashwin Naik was made to sit in
the passage in front of the court hall. All this was being watched by accused
No.2. When he found that Ashwin Naik had been brought to the Court at about 12.30 p.m. he went to Dagdi Chawl and met Sada Pawale whom he
found talking to accused No.1 near a temple. He informed them about the arrival
of Ashwin Naik in the court premises. Sada Pawale asked him to get a taxi.
No.2 then told accused No.1 that Ashwin Naik was to be finished on the same
day. He loaded three rounds in a .38 caliber revolver and took accused No.1 to
an uninhabited room in the Chawl and asked him to fire the shots. This he did
with a view to satisfy himself that accused No.1 was in a position to execute
the job entrusted to him. It is the case of the prosecution that in the said
room, accused No.1 used to do target practice so as to equip himself with
sufficient accuracy to execute the job. Thereafter he loaded six live
cartridges in the revolver which he handed over to accused No.1 and instructed
him to murder Ashwin Naik in the TADA Court itself, and if that was not
possible, within the precincts of the Sessions Court. He also instructed him to
run away immediately after the completion of the job, but in case that was not
possible, to raise his hands and surrender so as to avoid retaliation by the
police. He also gave him the black coat, white shirt etc. so that he could
dress himself up as an Advocate. In the meantime accused No.2 brought a taxi. Sada
Pawale instructed accused No.2 to point out Ashwin Naik to accused No.1 so that
he could do the job. Accused Nos. 1 and 2 thereafter came to the old Sessions
No.2 alongwith accused No.1 entered the Sessions Court building. Accused No.1
was shown by accused No.2 the connecting bridge leading to the new Court
building. He also described to accused No.1, the clothes being worn by Ashwin Naik
and assured him that he will be watching the happenings from the old Court
building. Accused No.1 entered the TADA Court and saw that Ashwin Naik was sitting on a bench in the passage. He sat
in the Court room for a while, but when he noticed that a number of policemen
were guarding Ashwin Naik, he decided not to take a chance in the TADA Court as that may not be wise. He
therefore, returned to the old Court building and met accused No.2 and told him
that he will do the job when Ashwin Naik comes down.
about 3.00 p.m. Ashwin Naik as well as other five
co- accused were produced before the TADA Court but the case was adjourned to 22nd April, 1994. The police parties thereafter
proceeded to the ground floor with a view to take the accused to the waiting
police vans for being taken to jail. The case of the prosecution is that PW.4
was ahead of the police party escorting Ashwin Naik. While Ashwin Naik was
proceeding towards the police van, accused No.2 again identified Ashwin Naik
for the benefit of accused No.1 and thereafter hide himself behind a pillar.
Waghchaure was a few steps ahead of Ashwin Naik. Ashwin Naik was handcuffed and
the rope was held by PW.3 Sanjay Bhingardive who was to the left of Ashwin Naik
while PW.6 Dayanade Bhagyawan Nikam was to his right. PW.1 Laxman Bhau Thorawat
was just behind Ashwin Naik and to his right was PW.2 Bhagwat Saundane armed
with a carbine. While they were so proceeding, accused No. 1 aimed at Ashwin Naik
when he came within his range and fired at him. The shot hit Ashwin Naik on the
back of his head and he fell down on the ground. PW.1 Thorawat as well as other
members of the escorting party noticed that accused No.1 had fired at him.
Accused No.1 fired two more shots which injured police constables, PW.3 Sanjay Bhingardive
and PW.6 Dayanade Bhagyawan Nikam. On account of the injuries suffered on their
legs, they fell down. PW.4 Gangadhar Waghchaure rushed towards accused No.1. In
the meantime PW.2, Bhgwat Saundane, who was armed with a carbine, fired 25
rounds from his carbine. While PWs.1, 2 and 4 rushed towards accused No.1, one
of the shots fired by accused No.1, injured PW.4, Waghchaure on his left thumb
and index finger.
PW.4 pounced upon accused No.1 and over-powered him with the help of PW.2. One
of the shots fired by PW.2 caused injury to accused No.1 on the right side of
his neck. PW.1 who had also rushed to the aid of other police officials
snatched from the hands of accused No.1 the revolver. While all this was
happening, the case of prosecution is, that accused No.2 fled away from the Court
premises and reported the matter to Sada Pawale who advised him to leave Mumbai
immediately and to go to his native place in the District of Satara.
Police Inspector Ratansingh Rathod and Police Inspector Bhgwat had also come to
attend the TADA Court in connection with some other case.
When they heard shots being fired, they rushed to the scene of occurrence and
saw the scuffle between accused No.1 and PW.2 Accused No.1 was wearing the
attire of an Advocate. They took into custody the accused No.1 and also asked
PW.2 to sit in the jeep. They came to the Cuff Parade Police Station but there
they were told that the Sessions Court fell within the jurisdiction of Colaba
Police Station. They, therefore, went to the Colaba Police Station and handed
over accused No.1 and his revolver to Police Inspector Issaq Bhagwan.
further case of the prosecution is that on 18th April, 1994, since the police inspector of Colaba
Police Station was on leave, PW 19 Police Inspector A.R. Gaikwad was holding
charge in his absence. At about 3.15 p.m. he received a wireless message from the control room reporting the
incident which had taken place in the precincts of the Sessions Court. He along
with API Jadhav and API Pathan, PW.14 and other officers and staff left for the
scene of occurrence and reached the Sessions Court, which was hardly two
minutes drive from the police station. By the time they reached the court
premises, the injured namely, Ashwin Naik, PW.3, PW.6 and PW.4 had been removed
to the St. Georges Hospital for medical aid. At the St. Georges Hospital they were examined by Dr. Bakshi,
the casualty medical officer. Since the injury of Ashwin Naik was found to be
serious in nature, he was shifted to J.J.
Hospital for further treatment. PW.19
Inspector Gaikwad after directing PW.14 API Pathan to guard the scene of occurrence,
also rushed to the St. Georges Hospital. In the meantime PW.20 ACP Vasant Gosavi
of Colaba Division, on receiving the message from the control room, rushed to
the scene of offence. The Deputy Commissioner of Police, Incharge of Colaba
Zone, and the Additional Commissioner of Police had also reached the scene of
occurrence and made necessary enquiries. All of them went to St. Georges Hospital where, PW.1 ASI Thorawat and PW.19
Police Inspector Gaikwad were also present. After some discussion, DCP Mr. Verma
directed PW.19, Inspector Gaikwad to record the F.I.R. under TADA, since he was
the competent authority to grant such approval under TADA. Accordingly, PW.19
Inspector Gaikwad recorded the statement of PW.1 Thorawat, Ext.10, on the basis
of which First Information Report was drawn up. He rang up the Colaba Police
Station and secured the running crime number. After deputing API Jadhav at the St. Georges Hospital he came to the place of occurrence
and then proceeded to the Colaba Police Station.
meantime at the Colaba Police Station, PW.12 Samson Barse on the instructions
of Duty Police Inspector Issaq Bhagwan drew up the panchnama relating to the
seizure of the revolver and the clothes of accused No.1. He also noticed 5
empties and one live cartridge in the chamber of the revolver and that the
clothes of the accused were blood stained. He also noticed two holes in the
coat of the accused near the right shoulder and two holes on the rear side of
the coat on the right side below the shoulder. One cupro jacketed bullet
(article 7) was tucked in a hole by the side of the collar of the coat. There
were also two holes in the shirt. He also noticed that accused No.1 had an
injury on the chin and an injury on the index finger of the right hand, apart
from the injury on the neck near the shoulder joint. There were also some
abrasions near the right knee. It appears that panch witness PW.7 Raju Vaze, in
whose presence the seizure was made, was declared hostile and did not support
the case of the prosecution. The other panch witness was already dead.
Colaba Police Station, PW.19 recorded the statement of PW.1 Thorawat, PW.11 Ratansingh
Rathod and PW.2 Bhagwat Saundane. He again came to the St. Gorges Hospital and
recorded the statements of PW.3 Bhingardive, PW.4 Waghchaure and PW.6 Bhagyawan
Nikam and the driver of the escort vehicle.
after preparing the panchnama relating to seizure of clothes of the injured
went to the Sessions Court and prepared the panchnama relating to the scene of
offence witnessed by PW.10. Here again PW.10, Vijay Kaleshwar Rauth, panch
witness, was declared hostile while the other panch witness could not be found.
clothes of victim Ashwin Naik were seized under panchnama Ex.24.
the accused No.1 had also suffered injury, PW.12 brought him to the St. Georges
Hospital for medical treatment where he was examined by Dr. Bakshi, PW.11 at
5.45 p.m. At the hospital, PWs. 4, 3 and 5 again confirmed that he was the same
person who had fired at Ashwin Naik and the police party. PW.19 therefore
recorded their supplementary statements. Accused No.1, who was admitted in the hospital
was discharged on the next day i.e. 19th April, 1994.
made several attempts to record the statement of Ashwin Naik but the hospital
authorities certified that he was not in a position to make the statement.
Certificates to this effect were issued between 19th April, 1994 to 13th May,
1994. In fact the statement of Ashwin Naik was recorded long after his
discharge from the hospital with the permission of the Court on 25th January,
1996, even after the charge sheet was filed. Having regard to antecedents of Ashwin
Naik, it is not surprising that he was not traceable and therefore not available
for examination as a witness in the trial.
the Investigating Officer took charge of all the seized articles. He also
requested the Thane Police Head Quarters to send the carbine which was used in
the occurrence by PW.2 and on his request the same was sent to him which was
seized under panchnama Ext.16. The weapon was kept in safe custody. The muddemal
properties were sent to the Forensic Science Laboratory through Hawaldar Uma
Kant, PW.17. This was done on 28th April, 1994.
No.2 was arrested on 18th
May, 1994 at the
Mumbai Central Railway Station. In the test identification parade on 31st May, 1994, he was identified by PWs. 1, 2, 3,
4 and 6.
reports submitted by the Chemical Analyser were produced at the trial as Exts. 27,
28, 29 and 30. The clothes were found stained with human blood. The .38 caliber
revolver was found to be in working order. Similarly the carbine was also found
to be in working order and the residue of fire ammunition nitrite was detected
in the barrel washings which showed that the weapons had been used. The
bullets, on examination, were also found to have been fired from .38 caliber
revolver and that they had been fired from revolver, article 1. The empties
which were seized from the scene of occurrence had been fired from the carbine,
On 23rd July, 1994, ACP Gosavi took over the
investigation of the case. Efforts were made to arrest accused No.3 and he was
ultimately arrested on 9th
August, 1994 when he
was released from jail.
the case of prosecution that in the course of interrogation on 14th August, 1994 accused No.1 had expressed his
desire to make a truthful statement. He was again interrogated on 16th August, 1994 and he again expressed his desire
to make a clean breast of the matter. PW.20 ACP Gosavi got in touch with DCP,
PW.16 Mr. Yadav and met him in his office and requested him to record the
statement of accused No.1. PW.19, Inspector Gaikwad was directed to produce
accused No.1 before the Deputy Commissioner of Police, PW.16. Accordingly at
about 6.00 p.m.
Inspector Gaikwad produced accused No.1 before DCP Yadav, PW.16. Several
questions were put to the accused No.1 by the DCP to ascertain whether he
wanted to make a voluntary statement. He was told that he was not bound to
confess and was further warned that if he makes a confessional statement, that
may be used against him. Despite all this, accused No.1 insisted on making the
confessional statement. DCP, PW.16 Mr. Yadav then directed him to be detained
in Azad Maidan Police Station and to be produced before him on 18th August, 1994 at 4.00 p.m. This, according to the prosecution, was done with a view to
give him enough time to reconsider his decision as also to ensure that he was
not in any manner influenced or pressurised by the officers of the Colaba
Police Station. Thereafter on 18th August, 1994,
the accused No.1 was produced before the D.C.P. He made a confessional
statement which was recorded by PW.16 marked, Ex.46. Similarly the voluntary
statement of accused No.2 was recorded on 30th August, 1994. The charge sheet in the case was
filed on 14th October, 1994 but without sanction, since the prescribed 180 days
were about to lapse.
very next date i.e.15th October, 1994 the sanction was obtained and filed in
Court even before the Court took cognizance on the basis of the charge sheet
submitted by the investigating officer.
appellant alongwith two others (since acquitted) was put up for trial before
the Designated Court at Mumbai in TADA Special Case No.31 of 1994 variously
charged as earlier noticed.
prosecution examined as many as 21 witnesses in support of its case. PW.1, 2,
3, 4, 6, 11, 12, 14, 16, 19 and 20 are witnesses who belong to the police
force. Of them PW.1 ASI Thorawat, PW.2, Bhagwat Saundane, PW.3, Sanjay Bhingardive
and PW.4 ASI Waghchaure and PW.6 Bhagyawan Nikam are eye witnesses who
witnessed accused No.1 firing at Ashwin Naik.
Inspector Ratansingh Rathod appeared on the scene of occurrence when PW.2 was
struggling with accused No.1 trying to over-power him. Moreover PWs. 3, 4 and 6
are injured witnesses who suffered gun shot injuries in the course of the
incident. PW.19 and 20 are the investigating officers. PW.11 is a Police
Inspector who apprehended accused No.1 at the place of occurrence and took him
to Colaba Police Station. PW.12 was the police officer at Colaba Police Station
who recorded the panchnama regarding seizure of the revolver and the clothes
worn by accused No.1.
API Pathan is a police officer who was asked to guard the scene of occurrence
and in whose presence the scene of occurrence panchnama was drawn by API Jadhav.
PW.21 Dr. Bakshi examined the injured witnesses as well as accused No.1 at the
Hospital. PW. 15 is the Magistrate who conducted the Test Identification
Parade. PW.16 Sharda Prashad Yadav is the Deputy Commissioner of Police who
recorded the confessions of accused Nos. 1 and 2.
from the police witnesses, some of them eye witnesses, and some of them injured
in the course of the incident, the prosecution also examined as panch witnesses
several persons who were the members of the public and who were associated with
the investigation to witness the recording of panchnamas.
almost all of them had to be declared hostile as they did not support the case
of the prosecution. Such witnesses are PW.7 Raju Vaze who signed the panchnama
relating to seizure of revolver of accused No.1 and his clothes at the Colaba
Police Station. PW.10 Vijay Rauth was the panch witness to the preparation of the
panchnama relating to the scene of occurrence.
Ali was the panch witness who had accompanied the police party to a place in Byculla
from where certain items were recovered. All the panch witnesses were declared
hostile. PW.5 is the person from whom the black coat had been purchased but he
also did not support the case of the prosecution. PW.8 Anil Mahendrakar the
proprietor of Anil Tailors from where the shirt had been purchased, which was
worn by accused No.1 at the time of occurrence, was not declared hostile,
though he also did not fully support the prosecution case. PW.13 Dattaram Kadam
who is said to have introduced accused No.1 to PW.18 Anil Gavkar, also turned
hostile and denied having introduced accused No.1 to anyone. PW.18 Anil Gavkar
also denied having introduced accused No.1 to accused No.3 in Yerwada Central
Prison. In fact he even denied that he knew accused No. 1 or accused No.3. Both
these witnesses were declared hostile.
trial court on a careful scrutiny of the evidence on record, in a rather
detailed judgment, held that the evidence produced by the prosecution
consisting of the evidence of PWs. 13 and 18 to the effect that PW.13 had
introduced accused No.1 to accused No.3, who was his childhood friend, did not
prove the fact that accused No.1 was introduced to Accused No.3 in the Yerwada
Jail. PW.13 and PW.18 did not support the prosecution case and, therefore,
their evidence was of no assistance to the prosecution.
to the two confessional statements said to have been made by accused Nos. 1 and
2, after examining the evidence on record, it came to the conclusion that those
confessions could not be relied upon as they did not appear to be voluntary. He
further found that there was no evidence whatsoever to connect accused No.3
with the offence and, therefore, even if the confessional statements were found
to be voluntary and reliable, they could be of no avail to the prosecution as
the confessional statement of co- accused could be used only to lend assurance
to the conclusion reached on the basis of other evidence on record which was
completely lacking. On these findings, it was held that there was no evidence
to connect accused No.3 with the crime and therefore, the prosecution had
failed to prove that the accused had entered into a conspiracy with accused
No.2 and 3 to commit the offence.
trial court, however, accepting the prosecution evidence held that so far as
accused No.1 is concerned, he had attempted to commit the murder of Ashwin Naik
as well as the policemen who were escorting him, by firing at them with his
revolver. In this connection the trial court has placed considerable reliance
on the evidence of PW.4 Waghchaure who was fully corroborated by PWs. 1, 2, 3
and 6. As earlier noticed, PWs. 3, 4 and 6 are injured witnesses and there
presence cannot be doubted. It further found that the FIR was fully consistent
with the case of the prosecution.
recoveries made and the Chemical Analyser's Reports supported and corroborated
the prosecution case. The report of the Ballistic Expert also established that
some of the bullets were fired from the revolver seized from accused No.1. On
consideration of the material on record the trial court held that so far as
accused No.1 is concerned the prosecution had succeeded in proving his guilt.
trial court rejected the defence of accused No.1 that while he was going to the
Employment Exchange, he was hit by a stray bullet on his head and, therefore,
he became unconscious and regained consciousness only when he was admitted in
the St. Georges Hospital. The evidence on record clearly
established that he was conscious all along and that he had not become
unconscious at any stage. The defence raised by accused No.1 that someone fired
a few shots from a revolver and ran away after throwing away the revolver which
was planted on him, was not convincing.
there was no reason for the witnesses to falsely implicate accused No.1 with
whom they had no enmity.
trial court further held that the manner, place and circumstances in which the
offence was committed, clearly established that an offence under TADA had been
committed. He, therefore, found accused No.1 guilty of the offences under
Sections 3(2)(ii), 5 and 6 of TADA; under Sections 25(1-B)(a) and 27 of the
Arms Act as also under Sections 307 and 333 of the Indian Penal Code.
Court, however, did not accept the prosecution case in so far as it related to
accused Nos. 2 and 3 abetting the commission of the terrorists act, or the
attempt to commit murder by accused No.1.
trial court was also not impressed with the evidence relating to the
identification of accused No.2 in the Test Identification Parade by the five
members of the escorting team. It, therefore, discarded the evidence of
identification in the Test Identification Parade. The Court was of the view
that having regard to the facts and circumstances of the case, the witnesses
might not have had sufficient opportunity to notice the features of accused
No.2 who is said to have run away when the police party retaliated. It,
therefore, gave to accused No.2 the benefit of doubt.
trial court held that there was no material to establish that accused Nos. 1
and 2 were members of a terrorists gang because even though cases had been
instituted against accused No.3, he had not been convicted even in a single
case. On such findings the trial court acquitted the accused Nos. 2 and 3 of
all the charges levelled against them but convicted and sentenced accused No.1
as earlier noticed.
State has not preferred an appeal against acquittal of respondent Nos. 2 and 3
and, therefore, it is not necessary for us to deal with the evidence which
relates to their complicity in the commission of the offence. We shall,
therefore, not refer to the evidence led by the prosecution to establish the
existence of the conspiracy or to establish the abetment of the offences by
accused Nos. 2 and 3. We shall confine ourselves to the evidence on record
which implicates accused No.1 alone.
adverting to the evidence of the prosecution, it may be useful to notice the defence
of accused No.1 as is apparent from his statement recorded under Section 313
Cr. P.C. In answer to question No. 155, accused No.1 stated thus :- "On
18.4.94 at about 3 pm, I was going towards the Employment Exchange. My
certificates were with me. I entered the precincts of the court, from the
Southern side gate of the New Court building.
a sudden I noticed the shots being fired through the fire arm. Before, I could
guess as to what was going on, one bullet hit me on my neck and so I fell down
because I felt giddiness. I became unconscious. When I regained the
consciousness, I came to know that I was in the St. George's Hospital. I enquired with the policemen
there about my file containing the certificates. The policemen did not tell me
anything then. Police have wantonly involved me in a false case, and I have
been in the jail from last three years." The defence had made suggestions
to the prosecution witnesses from which it appears that it was the case of the defence
that the so called eye witnesses had not seen the person who had fired the
shots at Ashwin Naik, and that the person who had fired the shots dropped the
weapon and ran away.
Nos. 2 and 3 have also denied their complicity and while accused No.3 stated
that he was not in any manner connected with the crime, accused No.2 denied
that he had ever visited the Court premises or made a confessional statement.
In fact his signatures were obtained on blank papers by use of force which were
later utilized to record the so called confessional statement.
ASI Thorawat is the first informant. He has deposed to the effect that on 18th
April, 1994 at 7.30 a.m. he had gone to the Police Head Quarters, Thane. The
duty distribution officer allotted to him the duty to take the prisoner Ashwin Naik
from Kalyan Jail to the TADA Court at Mumbai. He was incharge of the escort
party which included PW.2, PW.3 and PW.6. The escort team was provided with a
police van, driven by driver Bhingale. He, went to Kalyan Jail where prisoner Ashwin
Naik was handed over to him alongwith the production warrant at about 10.20
a.m. The accused was handcuffed and was made to sit in the police van. Another
police van carried five other co-accused and some other prisoners to the Sessions
Court escorted by another police team. Both the vehicles reached the Sessions
Court at Mumbai at about 12.30 p.m.
accused were brought in the second van out of whom five were facing trial alongwith
Ashwin Naik and the remaining six were required in connection with some other
case. ASI Waghchaure, PW.4 was incharge of the escorting party of the five
accused who had to face trial with Ashwin Naik. He then described the location
of the TADA Court in Session Court premises. He claimed to have produced the
accused Ashwin Naik before the TADA Court. So did ASI Waghchaure. They were
told by Sheristedar of the Court that the case would come up at about 2.45 p.m.
in the afternoon session. The concerned TADA Court was located on the 5th floor
of the new building. The escort team escorting the five co-accused went down
the stairs but he stayed with prisoner Ashwin Naik and the escort party in the
improvised room near the Court. Thereafter he again produced Ashwin Naik before
the Court at about 2.45 p.m. The other five co-accused were also brought to the
Court hall. Since the case was adjourned to 22nd April, 1994, after collecting
the warrants from the Court Sheristedar, they proceeded to the police van which
was parked in the premises of the Sessions Court. The escort team headed by ASI
Waghchaure, PW.4, escorting the five co-accused went down by the stair case. He
and other members of the escort team escorting Ashwin Naik followed them. After
coming to the ground floor they all proceeded to the police van which was
parked in the Court compound on the Southern side of the building. When he came
out of the Court building and was proceedings towards the police van, he looked
behind and noticed a young boy wearing the attire of an advocate with revolver
in his hands. He fired two/four rounds from his revolver. One of the bullets
hit the lower part of the head of Ashwin Naik from the back. At that time
Constable Nikam, PW.6 was walking alongwith the prisoner and was on his right
Bhingardive, PW.3 was on the left side of Ashwin Naik.
escort team of ASI Waghchaure, PW.4 was in front of Ashwin Naik. The witness
was walking behind Ashwin Naik. The distance between him and Ashwin Naik was
about 10 feet. When the shots were fired accused No.1 was at a distance of
about 20 feet from him. Two of the bullets fired by him hit the two constables,
PW.3 and PW.6. All the three injured persons fell down. PW.2, Saundane, a
trained commando armed with a carbine started firing in the direction from
which the bullets were fired. One of the bullets fired from the carbine also
hit accused No.1. PW.2 pounced upon accused No.1 and over powered him. The
witness (PW.1) snatched the revolver from the grip of accused No.1 who was
holding the revolver with both his hands. At about that time Police Inspector Bhagwat
and Police Inspector Rathod, PW.11 also reached the place of occurrence. Police
Inspector Rathod, PW.11 took accused No.1 in his custody after enquiring about
his name etc. and thereafter took him to the Colaba Police Station. When
accused No.1 was apprehended there were number of persons who had gathered but
one person ran away from that crowd, whom he could identify, if shown. He,
thereafter took the three injured persons, namely prisoner Ashwin Naik, PW.3
and PW.6 to the St. Georges Hospital. This witness has further stated
that after relieving accused No.1 of the revolver, he handed over the same to
Police Inspector Rathod, PW.11. ASI Waghchaure, PW.4 also accompanied the
injured witnesses to the St. Georges Hospital. At the hospital his statement
was recorded by Police Inspector Gaikwad, PW.19. He proved the said statement
which was marked as Ext.10. By the time his statement was recorded accused No.1
was also brought to the St. Georges Hospital. On seeing him he told Police
Inspector Gaikwad, P.W.19 that he was the same person who had fired at Ashwin Naik.
PW.19 recorded his further statement. The witness has deposed about the
identification parade in which he identified accused No.2. The witness also
identified the revolver and the carbine which were seized in the course of
investigation. In the course of his cross-examination this witness stated that
he remained at the St. Georges Hospital till about 11.30 p.m. Inspector Gaikwad,
PW.19 had met him in the hospital at about 3.20 p.m. and he must have taken
about 1 hour or 1 hours to record the statement.
witness stood the test of cross-examination and answered all questions in a
forthright manner. Small discrepancies were sought to be highlighted such as
that he had not stated before PW.19, the Investigating Officer that the
Commando had encircled the body of accused No.1 with both his hands when he
also sought to be highlighted that the witness had not stated before the
investigating officer that after being injured, the two constables fell down.
He denied the suggestion that he had not seen the person who had fired at Ashwin
Naik. He further clarified that only two persons had used fire arms, namely
accused No.1 and the Commando, PW.2. PW.2 was the only member of the escorting
party who was armed. There is hardly anything in the cross- examination of this
witness which may impeach his credibility.
next important witness is PW.4 ASI Waghchaure. He has deposed on the same lines
as PW.1. He has corroborated PW.1 by saying that he was walking ahead of Ashwin
Naik and that when he had walked a distance of about 15 paces after coming out
from the Court building the escort party escorting Ashwin Naik, which was
following him and Ashwin Naik was hardly 2-3 feet behind him. All of a sudden,
he heard a gun shot being fired and, therefore, he looked back. He saw Ashwin Naik
falling on the ground and he also noticed a person in a lawyer's attire firing
the shots from his revolver. Constable Nikam, PW.6 and Constable Bhingardive,
PW.3 also sustained bullet injuries who were on the right and left side of Ashwin
Naik. PW.2 Saundane opened fire and one of the bullets hit the person who was
firing from his revolver. He also rushed to catch hold of that person but in
the meantime that person fired at him and he received two injuries on his left
hand. However, he pounced upon that person and he was also helped by PW.2.
PW.1, ASI Thorawat also came there and snatched the revolver from the hands of
accused No.1. At about that time two Inspectors came there to their aid and
they took the accused in their jeep towards Colaba Police Station. He placed
injured Ashwin Naik alongwith injured constables and ASI Thorawat in the van
and proceeded to St. Georges Hospital. This witness further clarified
that on that date service revolver was not issued to him because there was
shortage of service revolvers.
an ASI is issued a service revolver when he goes on escorting assignment. ASI Thorawat
was also not issued a service revolver on that date. Though cross-examined at
length, there is hardly anything in his cross-examination which may cast a
reflection on the truthfulness of this witness.
testimony of the other injured witnesses, namely PW.3 Bhingardive and PW.6 Nikam
are wholly consistent with the testimony of PW.1 and PW.4. PW.2 has also fully
supported the prosecution case and his evidence fully corroborates the evidence
of other eye witnesses.
will thus appear that the evidence led by the prosecution about the occurrence
that took place on that date is consistent and trust worthy. It leaves no
manner of doubt that accused No.1 fired at Ashwin Naik and in the process
injured two police constables as well as ASI Waghchaure, PW.4. In retaliation
PW.2 fired from his carbine causing injury to accused No.1. The witnesses are
clear and categoric that they had seen the accused firing at them.
the occurrence took place in the manner alleged is not even disputed by accused
No.1. According to accused No.1, as is evident from his statement recorded
under section 313 Cr. P.C., the occurrence did take place on the date and place
as specified by the prosecution. His defence is that he was proceeding to the
Employment Exchange and unfortunately he was struck by a stray bullet. The
person who had actually fired at Ashwin Naik threw away his revolver and ran
away. That revolver was planted on him and the prosecution made out a false
case implicating him in the crime. He was an innocent passer by and was caught
in the cross- fire. Having regard to the defence of accused No.1, there can be
no reason to doubt that such an incident took place at the time and place
alleged by the prosecution. The only question that deserves consideration is
whether it was accused No.1 who fired at Ashwin Naik or whether some one else
fired at Ashwin Naik and fled after throwing away the revolver.
direct testimony of the eye witnesses is unambiguous and each one of them has
clearly stated that it was accused No.1 who was seen firing from his revolver.
There appears to be no reason why the witnesses would falsely implicate Accused
No.1. It is not as if accused No.1 is a seasoned criminal sought after by the
police, and taking advantage of the situation the police caught him and falsely
implicated him. In fact, it appears from the record, that this was the first
assignment of accused No.1. We are, therefore, satisfied that the witnesses
have truthfully stated that they had seen accused No.1 firing at Ashwin Naik
and it was he who fired at members of the police party escorting Ashwin Naik.
Moreover one fails to understand why accused No.1 was there in the attire of an
advocate. Admittedly he is not an advocate, and there appears to be no other
reason for him to put on the dress of an advocate but for the fact that his
movement in the Court was facilitated by his wearing the attire of an advocate.
Witnesses have stated that he was wearing the dress of an advocate. Even PW.11,
Police Inspector Rathod, who reached the scene of occurrence on hearing the report
of gun shots, stated that he saw PW. 2 struggling with a person who was dressed
as an advocate.
us Mr. Sushil Kumar, Senior Advocate, appearing on behalf of the appellant
advanced five submissions. Firstly, it was submitted that the appellant was not
arrested in the manner alleged nor was he involved in the shoot out. He was
himself a victim who was hit by a stray bullet. Secondly, there is no reliable
evidence regarding recovery of the weapon of offence from the appellant as also
regarding seizure of the clothes worn by him. This submission was apparently
advanced because the seizure witness on the point was declared hostile.
Thirdly, it was submitted that weapon allegedly seized was not connected with
the offence. Fourthly, it was submitted that in any event no offence under TADA
had been made out. Lastly, he made his submission on the nature of offence and
the proper sentence to be passed.
of the consistent testimony of PWs. 1, 2, 3, 4 and 6, learned counsel submitted
that all these witnesses are police personnel. Not a single witness had been
examined by the prosecution from amongst the members of the public, even though
many persons must have witnessed the occurrence. Reliance was placed on the
judgment of this Court in Pradeep Narayan Madgaonkar and others vs. State of Maharashtra
: (1995) 4 SCC 255 and it was submitted that in the absence of independent
witnesses, meaning thereby non police witnesses, the case of the prosecution
should not be accepted in the absence of independent corroboration of their
testimony. We have carefully perused the judgment of this Court and we find
that the aforesaid judgment does not assist the defence. It was held that the
evidence of official (police) witnesses cannot be discarded merely on the ground
that they belong to the police force and are either interested in the
investigating or the prosecuting agency. But prudence dictates that their
evidence needs to be subjected to strict scrutiny and as far as possible
corroboration of their evidence in material particulars should be sought. Their
desire to see the success of the case based on their investigation requires
greater care to appreciate their testimony.
cannot loose sight of the fact that in the instant case three of the police
witnesses, namely, PW.3, PW.4 and PW.6 are also injured witnesses. The police
party in the instant case was the victim of assault launched by accused No.1.
They cannot, therefore, be described as official witnesses interested in the
success of the investigation or prosecution. They are eye witnesses who were
injured in the course of the incident. In fact the testimony of such witnesses,
does not require independent corroboration, if otherwise their evidence is
found to be truthful and reliable. This is not a case where police witnesses
have been introduced to bolster the case of the prosecution with a view to its
success. The injured police witnesses as well as other police witnesses are eye
witnesses being members of the escorting party escorting Ashwin Naik to the police
van. In our view, therefore, independent corroboration of their testimony was
not necessary in the facts and circumstances of this case. More over one cannot
loose sight of the realities of the situation. In a case of this nature, where
two gangs are fighting for supremacy, it was hardly possible for the
prosecution to secure independent witnesses being members of the public who had
witnessed the incident. In fact the evidence is to the effect that though many
persons must have seen the occurrence, they were not willing to speak as they
were totally terrorized. PW.19, Investigating officer, stated that he could see
a number of persons watching from the gallery of the two buildings.
enquired of those persons as well as some advocates on the first floor of the
new Sessions Court building, if they knew anything about the occurrence, but
none of them came forward to tell him anything about the incident. The manner
in which they talked to him, gave him the impression that they were afraid to
as was noticed earlier, all the independent witnesses who were associated with
the investigation as panch witnesses, turned hostile and did not support the
prosecution case. Whatever may be legal effect of their turning hostile, it is
clear that they were afraid to depose against the accused.
are, therefore, satisfied that the evidence of the police witnesses, who are
also the eye witnesses, some of them injured, is worthy of credence and can be
acted upon. The failure to examine independent witnesses in the facts and
circumstances of this case would not reflect on the veracity of the prosecution
of accused No.1 that he was hit by a stray bullet must be rejected outright.
There appears to be a ring of truth in the case of the prosecution that accused
No.1 put on the attire of an advocate so that his movement in the Sessions
Court was facilitated. The eye witnesses are clear and categoric that they had
seen him firing from his revolver at Ashwin Naik and later at them.
of accused No.1, therefore, cannot be accepted.
second submission of learned counsel for the appellant is also devoid of merit.
The consistent case of the prosecution is that PW.1 and PW.2 pounced upon
accused No.1 and pressed him to the ground. PW.4 also came to their aid and in
the meantime two other police inspectors including PW.11 reached the spot.
PW.1, ASI Thorawat has categorically stated that after PW.2, Commando Saundane
caught hold of accused No.1 and pressed him to the ground, he snatched the revolver
from accused No.1 who was holding the revolver in both his hands. The revolver
was handed over to Police Inspector Rathod, PW.11 who had already come there
and apprehended the accused and who took him in his vehicle to Colaba Police
Station. On this aspect of the matter the evidence of the prosecution is
consistent. At the Colaba Police Station Duty Inspector Issaq Bagwan and PW.12
ASI Barse were present. The matter was reported to Inspector Issaq Bagwan who
directed ASI Barse to draw up the panchnama relating to the seizure of the
revolver and the clothes of accused No.1. PW.12 noticed the injuries on the
neck of accused No.1. The panch witness associated with the preparation of the panchnama,
namely PW.7 Raju Vaze was declared hostile. The other panch witness who was
associated could not be examined as he was dead. There is evidence to support
the prosecution case that all the seized articles were kept in the safe and the
store under the custody of PW.19. Those articles were sent to the Forensic Science
Laboratory and the person who took them to the Forensic Science Laboratory was Hawaldar
Uma Kant, PW.17. The report of the Chemical Analyst as well as the report of
the Ballistic Expert fully establish the fact that the aforesaid revolver was
used and the empties were fired from the said revolver. The said reports fully
corroborate the case of the prosecution. It is true that the seizure panchnama
could not be proved on account of the fact that the panch witness turned
hostile, but there is over whelming credible evidence on record to establish
that accused No.1 was firing from his revolver and after he was over-powered,
PW.1 relieved him of his revolver and handed over the same to PW.12, Police
Inspector Rathod, who in turn handed over the revolver to PW.12 ASI Barse.
Later all the seized articles were taken charge of by PW.19, the investigating
facts and circumstances of the case we are satisfied that the weapon of
offence, namely the revolver was seized from accused No.1.
third submission is inter-connected with the second submission. We have already
referred to the report of the Ballistic Expert and the report of the Chemical
Analyst. Read with the ocular testimony of the witnesses, the evidence on
record leaves no room for doubt that the said weapon was used in the commission
of the offence.
was sought to be made of the fact that the medical evidence on record falsifies
the prosecution case that only five shots were fired whereas there were as many
as 8 gun shot injuries on Ashwin Naik and the injured policemen, as deposed by
Dr. Bakshi, PW.21. It was also argued before us that if PW.2 had fired 25 shots
from his carbine, and the accused has also fired five shots from his revolver,
many more injures should have been caused. It was, therefore, submitted that
the prosecution has not come forward with the truthful version of the
occurrence. It was submitted that the prosecution had not explained how one
bullet was found tucked in the collar of the coat. Moreover one bullet was recovered
after a surgery was performed on PW.3 at the hospital. That bullet was not sent
for examination by the Ballistic Expert.
have observed earlier, the fact that the occurrence took place cannot be
disputed. In an incident of this nature it would be impossible for the
prosecution witnesses to account for each and every bullet fired in the course
of the incident. The prosecution is not expected to account for all the empties
and the bullets fired in the course of occurrence, because apart from bullets which
are found embedded in the wounds of the injured witnesses, the other bullets
may be lost or destroyed after hitting some hard surface. It is, therefore, not
possible for the prosecution to collect and account for all the bullets and
empties with mathematical precision. It is also not possible for the
prosecution in an incident of this nature to explain each and every injury
suffered by the witnesses. We are not permitted to conjecture as to how
injuries may have been caused in an incident of this nature where firing has
taken place from both directions. According to the doctor, there are as many as
8 gun shot injuries. So far as injuries on PW.4 is concerned, Dr. Bakshi, PW.21
has not ruled out the possibility of the same shot causing both the injuries.
It may be possible that one bullet may have caused more than one injury. It is
difficult for us to speculate because it may be that some of the shots fired by
accused No.1 may have injured more than one witness, because apart from PW.3 no
bullet was found stuck in any of the injuries suffered by other witnesses.
then submitted that there is no evidence to prove where the revolver was kept
after its seizure. Evidence on record discloses that PW.12 ASI Barse had
prepared the seizure panchnama relating to the revolver. PW.19 has stated that
he took charge of all the articles which were seized by API Jadhav and API Barse,
PW.12. He saw to it that all the articles were properly labelled and sealed. He
kept all those articles in his custody in the safe. The clothes and other
articles were kept in the store.
entries were made by the officers concerned in the muddamal register and the
register maintained by the Store Hawaldar. The evidence of PW.17, Uma Kant, the
Store Hawaldar is to the effect that on 26th April, 1994 a forwarding letter was prepared in
the prescribed proforma and the muddamal property in this case which was in the
custody of PW.19, Investigating officer, was handed over to him. He ascertained
that the seals of all the articles were intact. He also found that the clothes
and the other articles, which were stored in the store room, were also duly
sealed and labelled. He was directed to carry those articles to the Chemical Analyser
on the same date but since he was deployed on bandobast duty on 26th and 27th April, 1994, he carried the muddamal properties
to the Chemical Analyst on 28th April, 1994.
thus appears from the evidence on record that after PW.19 took charge of the muddamal
properties he got the articles kept in the safe and the clothes etc. were kept
in the store. They were all duly packed, labelled and sealed and were handed
over to the Store Hawaldar for being taken to the Chemical Analyst on 26th April, 1994. We are, therefore, satisfied that
the revolver after its seizure was properly kept in safe custody under the
charge of PW.19 and was thereafter sent to the Chemical Analyser (Forensic
Science Laboratory) where they were received on 28th April, 1994.
submitted that one bullet was recovered from the wound of PW.3 when he was
operated upon. It appears that the operation took place on the following day.
There is nothing on record to suggest that the doctor either informed the
Investigating Officer about the recovery of the bullet or handed over the same
to him. In fact no question was put to the doctor on this aspect of the matter
when he was in the witness box. Learned counsel for the State is, therefore,
right in submitting that no fault can be found with the investigating agency
when the evidence discloses that after removal of the bullet from the wound of
PW.3, neither the Investigating Officer was informed about it nor was the
bullet removed from the wound sent to him for further action.
for the appellant further submitted that in the coat, which is said to have
been seized from accused No.1 four holes were found and in addition one bullet
was found tucked in the collar of the coat. This bullet was found to have been
fired from a .38 caliber revolver. He submitted that it has not been explained
by the prosecution as to how this bullet got tucked in the coat of the accused.
In our view it was neither necessary nor was it possible for the prosecution to
explain how the holes were caused in the coat of the accused, and by what
process one bullet was tucked in the collar of the coat.
over these are hardly matters which will cast a reflection on the case of the
prosecution. As we have observed when firing took place from both directions,
it was not possible for the witnesses to notice in which direction the bullets
it was submitted that in view of the findings recorded by the trial court,
namely that there was no conspiracy to commit the offence, that it was not
established that accused Nos.2 and 3 belonged to a terrorist gang and that the
accused did not share a common intention to commit the offence, the sub stratum
of the prosecution case vanished and nothing remained on the basis on which the
appellant could be convicted. The submission has no force. It is no doubt true
that the prosecution has not been able to establish its case as against accused
Nos. 2 and 3. The confessional statements which implicated accused Nos. 2 and 3
have not been accepted by the trial court as being voluntary. But even so there
is nothing to discredit the evidence adduced by the prosecution in regard to
the occurrence that took place within the precincts of the Sessions Court. The
occurrence was witnessed by several witnesses. Though all of them belong to the
police force, three witnesses are injured witnesses whose presence cannot be
doubted and whose testimony has been found to be truthful. In these
circumstances even if the prosecution has failed to establish its case as
against accused Nos. 2 and 3, it has certainly proved its case as against
accused No.1. The evidence which implicates accused No.1 has been found to be
reliable and trust worthy and, therefore, even if accused Nos. 2 and 3 have
been acquitted of all the charges levelled against them, on the basis of the
evidence on record, the conviction of accused No.1 can be sustained.
lastly submitted that even on the basis of the facts proved at the trial, no
offence under TADA was made out. This was a simple case in which at best
accused No.1 attempted to commit the murder of Ashwin Naik, which was an
ordinary criminal activity which could be dealt with under the ordinary penal
law. This was, therefore, not a case of an offence which answered the
description of a terrorist act under Section 3 of TADA.
no doubt true that even though the crime committed by a "terrorist"
and an ordinary criminal would be overlapping to an extent, it is not the
intention of the legislature that every criminal should be tried under TADA,
when the fall out of his activity does not extend beyond the normal frontiers of
the ordinary criminal activity. The provision of the Act need not be resorted
to if the nature of the activities of the accused can be checked and controlled
under the ordinary law of the land. It is only in those cases where the law
enforcing machinery finds the ordinary law to be inadequate or not sufficiently
effective for tackling the menace of terrorism and disruptive activities that
resort should be had to the drastic provisions of the Act. Some difficulties,
however, arise when the intended activity of the offender results in striking
terror or creating fear and panic amongst the people in general or a section
thereof. It is in this situation that the Courts have to be cautious to draw a
line between the crime punishable under the ordinary criminal law and the ones
which are punishable under Section 3(1) of TADA. (See Hintendra Vishnu Thakur
vs. State of Maharashtra and Others (1994) 4 SCC 602); Niranjan Singh Karam
Singh Punjabi, Advocate vs. Jitendra Bhimraj Bijjaya and Others : (1998) 4 SCC
Dattatray Suryarao vs. State of Maharashtra : JT 2001 (9) SC 605 after an exhaustive consideration of
the authorities on the subject, this Court observed :- "In our view, it is
not possible to define 'terrorism' by precise words. Whether the act was
committed with intent to strike terror in the people or a section of the people
would depend upon facts of each case.
for finding out intention of the accused, there would hardly be a few cases
where there could be evidence. Mainly it is to be inferred from the
circumstances of each case. In appropriate cases, from the nature of violent
act, inference can be culled out. There can also be no doubt that fall out of
violent act vary from person to person and society to society but is well understood
by a prudent person and by those who are affected.
was a case in which the accused armed themselves with sophisticated weapons and
attacked their victim in the J.J. Hospital, despite the fact that police
guards had been posted to give protection. In the process they shot dead one
member of the rival gang and two policemen on duty. Considering the facts of
that case, this Court observed :- "As confessed by A-2 Suryarao, president
of Bhiwandi municipal corporation, he sought assistance from A-7 and others and
thereafter it is his say that he was required to comply with the illegal demand
of A-7 of rendering assistance to A-6 and A-7 after commission of the offence.
Further, the intention of the accused could be gathered from their act of
shooting the police guards who were on duty and causing injury to others
whosoever came in their way. In such a situation, it could be inferred that the
dastardly act was to administer a terror or a shockwave in the people at large
and convey that the fate of all those who did not obey their dictates or oppose
them would be the same as that of Shailesh Haldankar. It further conveys that
police guard on duty cannot save the victim, but they also may meet the same
fate. Not only this, the crime was perpetuated in a protected place i.e. J.J. Hospital by
master-minding the operation of achieving the target. Necessary information was
collected and after equipping themselves with sophisticated weapons they went
to the hospital where patients and staff on duty went helter-skelter, witnesses
turned hostile, PW42 PSI Thakur who was police officer on duty could not do
anything to protect anyone and after giving detailed FIR failed to support the
same before the court." . . .
there is no substance in the contention of the learned counsel for the accused
that there was no intention on the part of the accused to strike terror and
that the crime would not be covered by the terrorist activity as provided under
section 3(1) of TADA. We would again reiterate that whether the crime committed
creates terror or not, depends upon the facts and circumstances of each case
and cannot be defined by precise words." Keeping these principles in mind,
let us advert to the facts of this case. An attempt was made on the life of a
gang leader in broad day light within the precincts of the Sessions Court
victim was an alleged leader of a criminal gang. The accused did not have any
personal animosity with him, and even though the prosecution case regarding
conspiracy failed, obviously the accused was set up by someone to accomplish
the job. The plan was sought to be executed within the view of large number of
persons present in the Court premises. The victim was being escorted under the
protection of a police party and at least one member of the escorting party was
armed with a carbine. In the incident, the victim was injured, and so were
three members of the police party.
were lucky that the injuries did not prove fatal. None from amongst the members
of the public was willing to give evidence in the case.
dastardly act is sought to be executed in such a bold and daring manner, what
is the message which the accused intends to convey to the ordinary people of
this country ? The message is that obedience to Law is irrelevant. People must
obey the dictates of the law breakers. Neither the Courts nor the police force
can give them any protection for it is the right of the criminals to command
habitual obedience from the citizens of this country. The State has lost is
supremacy, in any event, its subjects must disregard the code of conduct
established by law and must obey the dictates of those for whom law is
meaningless. If they fail to do so they shall be dealt with in the same manner
as the victim in the instant case, notwithstanding the fact that he was under
police protection, and the incident was being witnesses by a large number of
persons within the Court premises. Such activities have the effect of
undermining the very authority of the State and have a terrorizing effect on those
who witness such an incident, and those who come to know of it. The terror,
fear and panic which they suffer is unfathomable and tend to completely
demoralize the ordinary man in the street. The blatant manner in which the plan
was executed in the instant case leaves no manner of doubt that the intention
of the perpetrator was not merely to kill the victim, but also to send a terrorising
message to the people in general, so that there was no defiance of their
command in future. An attempt was also made on the lives of three policemen
which reinforces the conclusion that the intention was to strike terror and the
killing was attempted to achieve that objective. We have therefore no doubt,
that the facts proved do establish the commission of offences under TADA. No
interference with the sentence passed will be justified in the facts of this
therefore, find no merit in this appeal. Accordingly the appeal is dismissed.
SETHI ) ..J.