Madan
Singh Vs. State of Bihar [2004] Insc 215 (2 April 2004)
Doraiswamy
Raju & Arijit Pasayat
[With Crl.
Appeal No. 1297 of 2003] ARIJIT PASAYAT, J.
In
this appeal under Section 19 of Terrorist and Disruptive Activities
(Prevention) Act, 1987 (in short the 'TADA Act') the appellants question their
conviction for offences punishable under Section 302 read with Sections 149,
307 read with Sections 149, 352, 379 of Indian Penal Code, 1860 (in short 'the
IPC'), Section 27 of the Arms Act, 1959 (in short 'the Arms Act') and Section 3
(2)(i) of the TADA Act as done by the Sessions Judge, Jahanabad-cum- Special
Judge, TADA.
Twenty
persons faced trial for alleged commission of various offences punishable under
IPC, TADA Act and Arms Act. Two of them (i.e. A-8 and A-9) died during trial.
Two other accused persons were held to be juveniles within the meaning of
Juvenile Justice Care Protection of Children Act, 2000 (in short 'the Juvenile
Act'). It was held that they were entitled to the benefit under the said Act.
Each of the convicted accused-appellants was given life imprisonment for the
offences punishable under Section 302 read with Section 149 IPC and Section 3
(2)(i) of the TADA Act in addition to 7 years and one year custodial sentence
imposed for the offence relatable to Section 307 read with Sections 149 and 353
IPC respectively. No separate sentence was imposed for the offence relatable to
Section 379 IPC and 27 of the Arms Act.
Prosecution
version as unfolded during trial is as follows:
According
to the first information report (Ext.4) lodged on 27.11.1988 Sri Rasid Imam
(hereinafter referred to as 'deceased') the officer-in-charge of Arwal Police
Station on receiving information about assemblage of extremists at village Bhadasi
in the house of acquitted accused Vakil Ram, with police revolver and other
ammunitions looted from the police giving rise to Arwal P.S. Case No. 174/88
and their plan to attack their adversaries to kill them, formed a raiding party
with the other police officials including Sub Inspector Mohan Singh, the
informant (PW-12), Sub Inspector Gajadhar Chaubey (PW-22), Assistant Sub
Inspector S.N. Pandey (PW-11), Constable Ram Binay Singh (PW-9), Constable Amul
Kumar Singh (PW-10), Constable Md. Najim (PW-8), Constable Babu Mahto (PW-5) and
others. He also requisitioned additional force from Kishan Bhavan, Baidrabad.
After entering the information in the station diary he proceeded to village Bhadasi.
On the way he met another police official Irshad Ahmed who was going to see the
DSP. He was asked by the deceased to inform the DSP in regard thereto. On
reaching Jahanabad, more additional force consisting of Hridyanand Puri
(PW-17), Babu Lal Manjhi (PW- 18) and others reported to him. At about 11.30 a.m. on reaching village Bhadasi, the police party
proceeded towards the house of acquitted accused Vakil Ram along with Sant Prakash
(PW-3) and Jitendra Prasad (PW-4) by observing the required procedures. On
reaching the house of Vakil Ram, the deceased posted some police personnel with
Sub Inspector Gajadhar Choudhary at the gate of the house, and sent another
section of force with S.N. Pandey towards eastern northern direction. The
deceased along with others on entering the house saw 20-25 persons there. On
seeing the police party accused Mukaiya Shah Chand of Bhadasi (A-1) directed
others to bring rifles and carbines and to kill the police party, whereupon the
accused persons started firing by going inside a room. As a result of the
firing, constable Amul Kumar Singh (PW-10) was hit on his left side of the
body. In spite of the injury, said Amul Kumar Singh (PW-10) fired one round,
but fell on the ground. One of the extremists snatched his rifle who was shot
at by firing made by Babu Mahto (PW-5). Again while one of the extremists
attempted to flee away with the rifle, the deceased snatched it after chasing
him. But in between the extremist had made firings as a result of which the
deceased died at the spot.
In the
meantime, the extremists started firing upon the police party, who by taking
position behind a door fired at the extremists. As a result of firing by the
extremists Hridyanand Puri received injury in his hand. Taking stock of the
situation, the informant apprehending threat on the life of police party as
well as snatching of the ammunition, ordered for firing. On the firing made by Hridyanand
Puri, one of the extremists was killed followed by three rounds of firing by Babu
Lal Manjhi (PW-18) and five rounds of firing by Md. Nazim (PW-8). As a result
of the firing, one more extremist was killed. Even after firing by the police
the accused persons continued firing on the police party which compelled the
police party for further firing, which caused injury in the leg of one
extremist, who started fleeing away. While the accused persons started fleeing,
some of them Lakshman Sao (A-5), Lakhi Choudhary, Shyama Choudhary (A-7), Madan
Singh (A-10), Ajit Kumar (A-6), Ram Janam Ram (A-3), Nanhe Rajwar (A-4), Manhgu
Choudhary (A-15), Mahendra Choudhary, Shorai Choudhary (A-12), Baleshwsar Choudhary
(A- 14), Arvind Chaudhary (A-13) were apprehended by the police party. They
also apprehended Shanti Devi (A-8) along with two children Lila and Chandan
from a room situated south of the courtyard of the house. In the meantime DSP Arwal
arrived along with Sub Inspector Irshad Imam and additional reinforcement. It
came to light that the extremists were fleeing away by making firing and he
along with other police personnel chased the extremists for seizing their arms,
but they managed to flee away.
On
search of the house of Vakil Ram in presence of witnesses, arms, ammunitions,
several documents, files, letters regarding banned organisations, rifles,
cartridges and carbine were seized. A copy of the seizure list was handed over
to Ram Janam Ram son of Vakil Ram. The informant claimed to have identified Tribhuwan
Sharma (A-18), Dr. Jagdish (A-16), Arun Kumar Bharti (A-17), Churaman Bhagat
(A-2) besides Shah Chand Mukaiya (A-1) while they were fleeing.
After
investigation charge sheet was placed and cognizance was taken for offences
relatable to Sections 302, 307, 353, 379, 411, 324, 326, 414, 124A read with
Section 34 IPC and Sections 25, 27 and 35 of the Arms Act and Sections 3 and 4
of the TADA Act. Charges were framed for offences punishable under Sections 302
and 307 read with Section 149 IPC and Sections 353, 379, 124A IPC and Sections
3 and 4 of the Explosive Substances Act, 1908 (in short 'the Explosive Act')
and Section 3(5) of the TADA Act. Acquitted-accused Vakil Ram was separately
charged for offence punishable under Sections 3 (4) of the TADA and 25(1B) and
27 of the Arms Act.
In
order to substantiate its accusations, 25 witnesses were examined by the
prosecution. The accused persons pleaded innocence and examined 5 witnesses. On
consideration of the materials on record the Trial Court recorded conviction
and imposed sentences as aforesaid.
In
support of the appeal, Mr. Shanti Bhushan, learned senior counsel for the
appellants in Criminal Appeal No.1297 of 2003 submitted that the judgment of
the Trial Court cannot be maintained on several grounds. Firstly, there is no
evidence to show that the accused persons were terrorists or extremists or that
the activities or actions alleged are encompassed by Section 3 (1) of the TADA
Act to be described as terrorist acts. Further, the prosecution evidence is to
the effect that on getting secret information the police officials went to the
spot of occurrence and then some one amongst them is supposed to have cried out
that police officials have come and got weapons. Thereafter, the firing is
supposed to have started from both sides. 3 persons have been killed who were
claimed to be terrorists by the prosecution. It may be that they are
responsible for the killing of the deceased and for the injuries on the police
constables. The witnesses have admitted that they did not know the accused
persons earlier and after firing started when some persons were fleeing away
they were caught. There is no reason to hold that they were guilty of any
offence when admittedly large number of villagers had assembled on hearing the
gun fire. It has also come on record that when the persons were apprehended no
arms were recovered, from any of the persons who were apprehended while
allegedly fleeing, though one witness has stated that some arms were recovered
from the persons running away. Even if there was any assembly it cannot be said
that the same was unlawful to bring in application of Section 149 IPC. There is
no evidence to show as to who had fired the gun or had asked to start firing.
The definite case of the accused persons, right from the beginning, was that
there was dispute regarding cutting of singadas. Investigating Officer accepted
that he had not made any investigation to find out as to whether persons had
assembled for cutting singada.
Documents
were produced to show that some of the accused persons had raised singada
crops. The accused persons have taken a definite stand that they were
apprehending danger from the higher caste people and, therefore, some of them
may have been armed to protect themselves in case of attack by the higher caste
people. The Trial Court has acquitted Vakil Ram in whose house the alleged
occurrence took place.
It has
not been shown that the assembly had any common object to commit any crime or
any member of the assembly had knowledge that crime was likely to be committed.
Those who were supposedly present may not have information about presence of
arms which were seized. Therefore, Section 149 IPC has no application. The
place of occurrence has not been established by cogent evidence. The defence
stand that occurrence took place near Singara pond is more probable in view of
the evidence adduced. In this background it was submitted that conviction as
done is uncalled for. Learned counsel for appellants in Crl.A. No.1285/2003
advanced similar arguments.
In
response, Mr. H.L. Agrawal, learned senior counsel for the respondent-State
submitted that the assembly was in an isolated place. The materials seized
clearly show that there was planned preparation and intention to cause
terrorist activities. Sophisticated arms were used and seized. Common object
can develop at the spot. It is the existence of the common object at the time
of actual occurrence which is to be seen. The factual scenario clearly goes to
show the existence of common object. If the assembly was for protection from an
attack by higher caste people as claimed, the arrival of the police would have
been welcomed because that would have provided protection. When the call was
given to start firing, after collecting arms several persons started firing.
All the arms were inside the house and it is not the stand of the accused
persons that anybody went outside to collect them. Therefore, the accused
persons were well prepared to commit violent acts.
If
really there was any apprehension of attack by the higher caste people, the
normal conduct would have been to inform the police personnel on their arrival
about their so called fears and sought their assistance or protection and not
to start firing at them. The acts referred to in Section 3 (1) of TADA Act are
comprehensive in nature and, therefore, the acts committed are clearly covered
by said provision. The plea that place of occurrence was different and was near
the singada pond is clearly disproved by the fact that dead bodies of the 3
terrorists were recovered from the house itself.
Major
plea which was emphasized relates to the question whether Section 149, IPC has
any application for fastening the constructive liability on the basis of unlawful
acts committed pursuant to the common object by any member or the acts which
the members of the unlawful assembly knew to be likely to be committed which is
the sine qua non for its operation. The emphasis is on the common object and
not on common intention. Mere presence in an unlawful assembly cannot render a
person liable unless there was a common object and he shared the same or was
actuated by that common object and that object is one of those set out in
Section 141. Where common object of an unlawful assembly is not proved, the
accused persons cannot be convicted with the help of Section 149. The crucial
question to determine is whether the assembly consisted of five or more persons
and whether the said persons entertained one or more of the common objects, as
specified in Section 141. It cannot be laid down as a general proposition of
law that unless the commission of an overt act is proved against a person, who
is alleged to be a member of unlawful assembly, it cannot be said that he is a
member of an assembly. The only thing required is that he should have
understood that the assembly was unlawful and was likely to commit any of the
acts which fall within the purview of Section 141. The word 'object' means the
purpose or design and, in order to make it 'common', it must be shared by all.
In other words, the object should be common to the persons, who compose the
assembly, that is to say, they should all be aware of it and concur in it. A
common object may be formed by express agreement after mutual consultation, but
that is by no means always necessary. It may be formed at any stage by all or a
few members of the assembly and the other members may just join and adopt it.
Once formed, it need not continue to be the same. It may be modified or altered
or abandoned at any stage. The expression 'in prosecution of common object' as
appearing in Section 149 have to be strictly construed as equivalent to 'in
order to attain the common object'. It must be immediately connected with the
common object by virtue of the nature of the object. There must be community of
object and the object may exist only up to a particular stage, and not
thereafter. Members of an unlawful assembly may have community of object up to
certain point beyond which they may differ in their objects and the knowledge,
possessed by each member of what is likely to be committed in prosecution of
their common object may vary not only according to the information at his
command, but also according to the extent to which he shares the community of
object, and as a consequence of this the effect of Section 149, IPC may also
vary on different members of the same assembly.
'Common
object' is different from a 'common intention' as it does not require a prior
concert and a common meeting of minds before the attack. It is enough if each
has the same object in view and their number is five or more and that they act
as an assembly to achieve that object. The 'common object' of an assembly is to
be ascertained from the acts and language and utterances of the members
composing it the nature of arms carried , and from a consideration of all the
surrounding circumstances. It may be gathered also from the course of conduct
adopted by and behaviour of the members of the assembly at or before the actual
conflict. What the common object of the unlawful assembly is at a particular
stage of the incident is essentially a question of fact to be determined,
keeping in view the nature of the assembly, the arms carried by the members,
and the behaviour of the members at or near the scene of the incident. It is
not necessary under law that in all cases of unlawful assembly, with an
unlawful common object, the same must be translated into action or be
successful. Under the Explanation to Section 141, an assembly which was not
unlawful when it was assembled, may subsequently become unlawful. It is not
necessary that the intention or the purpose, which is necessary to render an
assembly an unlawful one comes into existence at the outset. The time of
forming an unlawful intent is not material. An assembly which, at its
commencement or even for some time thereafter, is lawful, may subsequently
become unlawful. In other words it can develop during the course of incident at
the spot eo instante.
Section
149, IPC consists of two parts. The first part of the section means that the
offence to be committed in prosecution of the common object must be one which
is committed with a view to accomplish the common object. In order that the
offence may fall within the first part, the offence must be connected
immediately with the common object of the unlawful assembly of which the
accused was member. Even if the offence committed is not in direct prosecution
of the common object of the assembly, it may yet fall under Section 141, if it
can be held that the offence was such as the members knew was likely to be
committed and this is what is required in the second part of the section. The
purpose for which the members of the assembly set out or desired to achieve is
the object. If the object desired by all the members is the same, the knowledge
that is the object which is being pursued is shared by all the members and they
are in general agreement as to how it is to be achieved and that is now the
common object of the assembly. An object is entertained in the human mind, and
it being merely a mental attitude, no direct evidence can be available and,
like intention, has generally to be gathered from the act which the person
commits and the result therefrom. Though no hard and fast rule can be laid down
as to the circumstances from which the common object can be called out, it may
reasonably be collected from the nature of the assembly, arms it carries and behaviour
at or before or after the scene of incident.
The
word 'knew' used in the second branch of the section implies something more
than a possibility and it cannot be made to bear the sense of 'might have been
known'. Positive knowledge is necessary. When an offence is committed in
prosecution of the common object, it would generally be an offence which the
members of the unlawful assembly knew was likely to be committed in prosecution
of the common object.
That,
however, does not make the converse proposition true;
there
may be cases which would come within the second part but not within the first
part. The distinction between the two parts of Section 149 cannot be ignored or
obliterated.
In
every case it would be an issue to be determined, whether the offence committed
falls within the first part or it was an offence such as the members of the
assembly knew to be likely to be committed in prosecution of the common object
and falls within the second part. However, there may be cases which would fall
within first part being offences committed in prosecution of the common object,
while at the same time, though not always falling within the second part, as
offences which the members of the unlawful assembly knew to be likely to be
committed by a person engaged in the prosecution of the common object and
acting with the purpose of executing it. (See Chikkarange Gowda and others v.
State of Mysore : AIR 1956 SC 731.) As noted by this Court in Sukhbir Singh v.
State of Haryana (2002 (3) SCC 327) common object in terms of Section 149 can
develop at the spot. Existence of the object has to be considered at the time
of actual occurrence and not necessarily from anterior point of time.
When
the factual scenario is considered in the background of the legal position
enumerated above, the inevitable conclusion is that Section 149 has been
rightly applied. The fact that the unlawful assembly's common object was to
resist the enforcement of law, and to commit criminal offences and to overawe
the authorities/public servants by use and show of criminal force stood firmly
established on the evidence on record. Consequently, the criminal acts
committed in furtherance of the common object, which acts were not only part of
the common object of the unlawful assembly but also such which the members of
the assembly knew reasonably well are such as are likely to be committed
squarely attract Section 149 I.P.C. Certain salient factual aspects clearly
establish prosecution version. Firstly, defence plea regarding alleged
apprehended attack by higher caste people has been found to be of no substance.
If really the accused persons had gathered for reaping singada as claimed,
there was no reason for the call to be given to start shooting at the police
and then actual firing. A person who apprehends attack from some other person
would rather welcome the arrival of the police and bring to notice of the
officials about the apprehended danger and not to start firing at the police
officials knowing them to be police, with defiance adopting a violent posture .
This itself is sufficient to discard the defence version about nature and object
of assembly. Further, the materials seized show that the object of the assembly
was preparation for commission of crime. The presence of huge quantity of arms
and that too sophisticated arms unerringly shows the nature of the assembly was
unlawful. One of the printed materials i.e. literatures seized clearly
indicates their involvement in nature and type of activities which were
envisaged in and covered by section 3 (1) of the TADA Act.
The
plea that place of occurrence was different and was near pond where singadas
were grown is also without substance.
The
dead bodies of the 3 persons who fired at the police officials were found in
the house said to belong to the acquitted accused Vakil Ram and the dead body
of the deceased was also nearby. The evidence of the injured police officials
is also relevant, and there is no reason as to why they would falsely implicate
the accused persons. It is not correct as submitted by the learned counsel for
the appellants that none the persons who were arrested were carrying arms. In
fact, some of the prosecution witnesses have stated that they were also
carrying arms, and this evidence has not been successfully rebutted.
A
'terrorist' activity does not merely arise by causing disturbance of law and
order or of public order. The fallout of the intended activity is to be one
that it travels beyond the capacity of the ordinary law enforcement agencies to
tackle it under the ordinary penal law. It is in essence a deliberate and
systematic use of coercive intimidation.
It is
a common feature that hardened criminals today take advantage of the situation
and by wearing the cloak of terrorism, aim to achieve acceptability and
respectability in the society; because in different parts of the country
affected by militancy, a terrorist is projected as a hero by a group and often
unfortunately even by many misguided youth. As noted at the outset, it is not
possible to precisely define "terrorism". Finding a definition of
"terrorism" has haunted countries for decades. A first attempt to
arrive at an internationally acceptable definition was made under the League of
Nations, but the one which the convention drafted in 1937 never came into
existence. The UN member States still have no agreed-upon definition apparently
on account of what at times reveal to be state sponsored terrorism, both at
national and international levels. Terminology consensus would, however, be
necessary for a single comprehensive convention on terrorism, which some
countries favour in place of the present 12 piecemeal conventions and
protocols. The lack of agreement on a definition of terrorism has been a major
obstacle to meaningful international countermeasures. Cynics have often
commended at national and international levels that one State's "terrorist"
is another State's "freedom fighter" and that too with the blessings
of those in power.
Crime
became an highly politicised affair and greed compounded by corruption and
violence enabled unscrupulousness and hypocrisy reigns supreme, supported by
duplicity and deceitful behaviour in public life to amass and usurp public
power to perpetuate personal aggrandizement, pretending to be for the common
good. If terrorism is defined strictly in terms of attacks on non- military
targets, a number of attacks on military installations and soldiers' residences
could not be included in the statistics. In order to cut through the Gordian
definitional knot, terrorism expert A. Schmid suggested in 1992 in a report for
the then UN Crime Branch that it might be a good idea to take the existing
consensus on what constitutes a "war crime" as a point of departure.
If the core of war crimes - deliberate attacks on civilians, hostage-taking and
the killing of prisoners - is extended to peacetime, we could simply define
acts of terrorism veritably as "peacetime equivalents of war crimes".
League
of Nations Convention (1937) "All criminal acts directed against a State
along with intended or calculated to create a state of terror in the minds of
particular persons or a group of persons or the general public." (GA Res.
51/210 - Measures to eliminate international terrorism) "1. Strongly
condemns all acts, methods and practices of terrorism as criminal and
unjustifiable, wherever and by whomsoever committed;
2.
Reiterates that criminal acts intended or calculated to provoke a state of
terror in the general public, a group of persons or particular persons for
political purposes are in any circumstances unjustifiable, whatever the
considerations of a political, philosophical, ideological, racial, ethnic,
religious or other nature that may be invoked to justify them."
3.
Short legal definition proposed by A.P. Schmid to United Nations Crime Branch
(1992) Act of terrorism = peacetime equivalent of war crime
4.
Academic consensus definition "Terrorism is an anxiety-inspiring of
repeated violent action, employed by (semi-) clandestine individual, group or
State actors, for idiosyncratic, criminal or political reasons, whereby - in
contrast to assassination - the direct targets of violence are not the main
targets. The immediate human victims of violence are generally chosen randomly
(targets of opportunity) or selectively (representative or symbolic targets)
from a target population, and serve as message generators. Threat-and
violence-based communication processes between terrorist (organization), (imperilled)
victims, and main targets are used to manipulate the main target [audience(s)],
turning it into a target of terror, a target of demands, or a target of
attention, depending on whether intimidation, coercion, or propaganda is
primarily sought." (Schmid, 1988) Definitions :
Terrorism
by nature is difficult to define. Acts of terrorism conjure up emotional
responses in the victims (those hurt by the violence and those affected by the
fear) as well as in the practitioners. Even the U.S. Government cannot agree on
one single definition. The old adage "one man's terrorist is another man's
freedom fighter" is still alive and well. Listed below are several
definitions of terrorism used by the Federal Bureau of Investigation :
"Terrorism
is the use of threatened use of force designed to bring about political
change." Brian Jenkins "Terrorism constitutes the illegitimate use of
force to achieve a political objective when innocent people are targeted."
Walter Laqueur "Terrorism is the premeditated, deliberate, systematic
murder, mayhem, and threatening of the innocent to create fear and intimidation
in order to gain a political or tactical advantage, usually to influence an
audience." James M. Poland "Terrorism is the unlawful use or threat
of violence against persons or property to further political or social
objectives. It is usually intended to intimidate or coerce a Government,
individuals or groups, or to modify their behavior or politics." Vice-President's
Task Force, 1986 "Terrorism is the unlawful use of force or violence
against persons or property to intimidate or coerce a Government, the civilian
population, or any segment thereof, in furtherance of political or social
objectives." FBI definition Terrorism is one of the manifestations of
increased lawlessness and cult of violence. Violence and crime constitute a
threat to an established order and are a revolt against a civilised and orderly
society. "Terrorism" though has not been separately defined under
TADA there is sufficient indication in Section 3 itself to identify what it is
by an all inclusive and comprehensive phraseology adopted in engrafting the
said provision, which serves the double purpose as a definition and punishing
provision nor is it possible to give a precise definition of
"terrorism" or lay down what constitutes "terrorism". It
may be possible to describe it as use of violence when its most important
result is not merely the physical and mental damage of the victim but the
prolonged psychological effect it produces or has the potential of producing on
the society as a whole.
There
may be death, injury, or destruction of property or even deprivation of
individual liberty in the process but the extent and reach of the intended
terrorist activity travels beyond the effect of an ordinary crime capable of
being punished under the ordinary penal law of the land and its main objective
is to overawe the Government or disturb the harmony of the society or "terrorise"
people and the society and not only those directly assaulted, with a view to
disturb the even tempo, peace and tranquility of the society and create a sense
of fear and insecurity.
In the
aforesaid background, the inevitable conclusion is that the appeals are sans
merit and deserve dismissal, which we direct.
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