Full Judgment Text
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CASE NO.:
Appeal (crl.) 230 of 1997
PETITIONER:
RAVINDRA SHANTRAM SAWANT
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 08/05/2002
BENCH:
R.P. Sethi & Bisheshwar Prasad Singh
JUDGMENT:
BISHESHWAR PRASAD SINGH, J.
This 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.
Accused 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.
Accused 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
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substantive sentences have been directed to run concurrently.
Accused 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 against them.
Briefly 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.
He 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.
The 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.
Accused 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.
According 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.
Small 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.
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Ashwin 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.
The 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.
Accused 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
Court building.
Accused 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.
At 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
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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.
PW.4 Gangadhar 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.
However, 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.
PW.11, 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.
The 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
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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.
In the 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.
At the 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.
API Jadhav, 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.
The clothes of victim Ashwin Naik were seized under
panchnama Ex.24.
Since 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.
PW.19 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
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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.
PW.19 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.
Accused 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.
The 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, article 14.
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.
It is 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.
PW.19 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. On the 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.
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The 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.
The 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.
PW.11 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.
PW.14, 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 St.
Georges 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.
Apart 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.
Unfortunately 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.
PW.9 Safraj 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.
The 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.
Referring to the two confessional statements said to have been
made by accused Nos. 1 and 2, after examining the evidence on
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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.
The 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.
The 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.
The 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.
Moreover there was no reason for the witnesses to falsely implicate
accused No.1 with whom they had no enmity.
The 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.
The 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.
The 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.
The trial court held that there was no material to establish
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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.
The 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.
Before 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.
All of 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.
Accused 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.
PW.1, 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.
Eleven accused were brought in the second van out of whom five
were facing trial alongwith Ashwin Naik and the remaining six
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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 side.
Constable Bhingardive, PW.3 was on the left side of Ashwin Naik.
The 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
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about 3.20 p.m. and he must have taken about 1 hour or 1 hours
to record the statement.
The 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 caught him.
It was 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.
The 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.
Normally 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.
The 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.
It 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.
That 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
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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.
The 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.
Before 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.
Conscious 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
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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.
One 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.
He 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 speak.
Moreover, 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.
We 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
witnesses.
The defence 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.
Defence of accused No.1, therefore, cannot be accepted.
The 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
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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 officer.
In the facts and circumstances of the case we are satisfied
that the weapon of offence, namely the revolver was seized from
accused No.1.
The 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.
Much 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.
As we 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
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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.
It was 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.
Relevant 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.
It 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.
It was 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.
Counsel 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
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of the accused, and by what process one bullet was tucked in the
collar of the coat.
More 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 were flying.
Lastly 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.
It was 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.
It is 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 76).
In Jayawant Dattatray Suryarao vs. State of Maharashtra
: JT 2001 (9) SC 605 after an exhaustive consideration of the
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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.
Further, 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.
That 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."
. . .
"Hence, 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
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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 premises.
The 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.
They 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.
When a 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 case.
We, therefore, find no merit in this appeal. Accordingly the
appeal is dismissed.
J.
( R.P. SETHI )
..J.
(BISHESHWAR PRASAD SINGH)
May 8, 2002
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