CASE NO.: Appeal (crl.) 1114 of 2001 PETITIONER: MOHD. KHALID RESPONDENT: STATE OF WEST BENGAL DATE OF JUDGMENT: 03/09/2002 BENCH: B.N. KIRPAL CJI.& K.G. BALAKRISHNAN & ARIJIT PASAYAT JUDGMENT:
JUDGMENT
2002 Supp(2) SCR 31
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. No religion propagates terrorism or hatred. Love for all
is the basic foundation on which almost all religions are founded.
Unfortunately, some fanatics who have distorted views of religion spread
messages of terror and hatred. They do not understand and realize what
amount of damage they do to the society. Sometimes people belonging to
their community or religion also become victims. As a result of these
fanatic acts of some misguided people, innocent lives are lost, distrust in
the minds of communities replaces love and affection for others, The
devastating effect of such dastardly acts is the matrix on which the
present case to which these appeals relate rests. On 16th March, 1993, just
before the stroke of mid-night, people in and around B.B. Ganguly Street in
the Bow Bazar Area of Calcutta heard deafening sounds emanating from
thundering explosions which resulted in total demolition of a building and
partial demolition of two other adjacent buildings situated at 267,266 and
268 A, B.B. Ganguly Street. Large number of people were trapped in and
buried under the demolished buildings. It was indeed a very ghastly sight
and large number of people died because of the explosions impact and/or on
account of the falling debris. Human limbs were found scattered all around
the area. Those who survived tried to rescue the unfortunate victims.
Police officers arrived at the spot immediately. The first information
report was lodged at Bow Bazar Police Station for alleged commission of
offences punishable under Section 120B, 436, 302, 307 326 of the Indian
penal Code, I860 (in short ‘the IPC) and Sections 3 and 5 of the Explosive
Substances Act, 1908 (in short ‘The Explosive Act’).
Considering the seriousness and gravity of the incident, the Commissioner
of Police set up a special investigating team. On investigation 8 persons
including the six appellants were found linked with the commission of
offences. Arrests were made. While rescue operations were on there was
further explosion on 18.3.1993. The exploded bomb was handed over to the
police officer after its examination on the spot by a Military Officer.
Meanwhile, the pay loader picked up a gunny bag containing 22 live bombs.
Afterwards. They were defused after examination. Certain materials were
seized by the investigating team from the site of the occurrence and on
examination, it was found that nitro-glycerin explosives were involved in
the explosion. Large number of witnesses were examined.
Two of the accused persons, Pannalal Jaysoara (accused-appellant in
Criminal Appeal No. 299/2002) and Mohd. Gulzar (accused-appellant in
Criminal Appeal No. 494/2002) were arrested on 29.3.1993 and 13.5.1993
respectively. As they wanted to make their confessions, those were to be
recorded before the Judicial Magistrate, accordingly, their confessional
statements were recorded by the magistrates (PWs.81 and 82). Some of the
accused persons were also identified by witnesses in the Test
Identification Parade. On 11.6.1993. the Commissioner of Police on
examination of the case diary, statement of witnesses, reports of the
experts and confessional statements came to the conclusion that provisions
of Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short
‘The TADA Act’) were applicable. Accordingly, sanction, was accorded for
prosecution of the accused persons under the said statute. Charge sheet was
submitted on 14.6.1993.
Accused Persons filed a writ application before the Calcutta High Court
challenging the validity of the sanction and the order whereby the
Designated Court took cognizance of the offences under the TADA Act. The
High Court quashed the order of sanction and taking of cognizance. The
matter was challenged before this Court by the prosecution. The appeal was
allowed and the Designated Court was directed to proceed with the case in
accordance with law with utmost expedition. [See: State of West Bengal and
Anr. v. Mohd. Khalid and Ors, etc. [1995] 1 SCC 684. The Designated Court
framed charges under Section 120B, 436/34, 302/34, IPC, Section 3 and 5 of
the Explosive Act and under Section 3 (2) (1) and 3(3) of the TADA Act. As
the accused persons facing trial pleaded innocence, trial was conducted.
The case of the prosecution, in short, is that the accused persons
conspired and agreed to manufacture bombs illegally by using explosives to
strike terror in the people, particularly, in the mind of the people living
in Bow Bazar and its adjacent areas to adversely affect communal harmony
amongst members of Hindu and Muslim communities Pursuant to this criminal
conspiracy and in pursuance of the common intention, they caused complete/
partial destruction of properties by using the explosive substances. They
committed murders knowing fully well that illegal manufacture of bombs by
explosive substances in most likelihood would result in deaths or bodily
injuries, by causing explosion. In causing explosion by unlawful and
malicious user of explosive substances which was likely to endanger life or
to cause serious injury to properties, they committed offences in terms of
Sections 3 and 5 of the Explosive Act. The fact that they possessed
explosive substances gave rise to a reasonable suspicion that such
possession and control of the explosive substances were not for lawful
object. Provisions of the TADA Act were applied on the allegations that
pursuant to the conspiracy and in pursuance of the common intention they
prepared bombs with huge quantities of explosive substances and highly
explosive materials with intent to strike terror in the mind of the people
adversely affecting the communal harmony amongst the people belonging to
Hindu and Muslim religions. Their terrorist activities resulted in the
death of 69 persons, injuries to a large number of persons and destruction
and damage to properties. As a result of these acts commission of terrorist
acts was facilitated.
Out of the 165 witnesses examined, three witnesses were picked up as star
witnesses to prove the conspiracy and the connected acts. They are PW. 40
(Md. Sabir @ Natu), PW. 67 (Santosh Hazra) and PW 68 (Kristin Chow @
Kittu), By a detailed judgment ,the Designated Court found the accused
appellants guilty of offences punishable under Section 120 B IPC, Sections
3 and 5 of the Explosive Act and Section 3(2)(1) and 3(3) of the TADA Act
read with Section 34 IPC. However, they were found not guilty of the
offences in terms of Sections 302 and 436 read with Section 34 IPC. After
hearing on the question of sentence, the accused appellants were sentenced
to undergo rigorous imprisonment for life and to pay a fine of Rs. 3000
each for commission of offences under Section 3(2)(1) of the TADA Act read
with Section 34 IPC, to undergo rigorous imprisonment for five years and to
pay a fine of Rs. 500 each for commission of offence under Section 3 (3) of
the TADA Act. They were further sentenced to undergo rigorous imprisonment
for 10 years and to pay a fine of Rs. 1,000 each for commission of offence
under Section 3 of the Explosive Act and to suffer an imprisonment for one
year and to pay a fine of Rs. 300 each for commission of offence under
Section 5 of the Explosive Act. Each of them were also sentenced to
imprisonment for life and to pay a fine of Rs. 3000 each for commission of
offence under Section 120 B of IPC.
These appeals relate to the common judgment of the Designated Court. While
the accused appellants have questioned the legality of the conviction and
sentences imposed, the State has questioned the propriety of acquittal in
respect of the offences in terms of Sections 302/34 and 436/34 IPC. Learned
counsel for the accused appellants have submitted, inter alia, that the so-
called star witnesses are persons with doubtful antecedents. They were
rowdy elements who were under the thumb of police officers and the
possibility of their having deposed falsely at the behest of police
officers cannot be ruled out, and this is more probable. Referring to the
evidence of PWs 40,67 and 68, it was submitted that their evidence suffers
from innumerable fallacies. PW-40 claimed to have heard the accused-
appellant, Rashid asking the accused-appellant, Pannalal Joysorara about
the preparation of bombs. He was the witness who was available immediately
after the incident. But his statement was recorded two days after without
any explanation being offered as to why he was examined two days after.
Similarly, PWs. 67 and 68 , were also examined after two days. In Court,
they made embellished and highly ornamented statements. It was pointed out
that evidenced of PW-67, in particular, is full of holes. According to his
own testimony, he was only connected with satta games. It was, therefore,
highly improbable that he was allowed to go up and notice all those
materials which were lying in the rooms and the activities being carried
out, It was highly improbable that nobody stopped him. Many independent
witnesses were not examined though their presence is accepted by the
prosecution. A grievance is made that some of the persons who were
available to be examined have not been so done. Particular reference has
been made to Nausad and Osman. It is stated that the prosecution case is
that Nausad was the owner of one of the premises and PW-68 told Osman about
the conspiracy. Non-examination of these material and independent witnesses
rendered the prosecution version suspect. There was no reliable evidence of
conspiracy. There was no design to commit any act even if it is accepted
that there was any explosion. That was an accident. In fact, no importance
can be attached to the so-called judicial confessions because two accused
person who allegedly made the confession had made retraction subsequently
on 3.2.1995. They were terrorized, threatened and were compelled to make
the confession. Even if, according to them, the prosecution case is
accepted in its toto, it only proves that the Muslims were trying to
protect themselves in the event of a possible attack of Hindus on them. In
the bomb blast which took place in Bombay a few months earlier, the police
was totally ineffective and could not save the lives of number of Muslims
and were silent onlookers. That spread message of fear in the mind of
Muslims and as the prosecution version itself goes to show, they were
preparing to protect themselves as a matter of exercise of their right of
prevent defence, to protect defence, in the most likely event of attack by
the Hindus on them. This according to them rules out application of the
TADA Act. They were not the aggressors and this preparations to protect
their rights and properties in the event of an attack was not to spread a
terror or to cause any unlawful act but was an act intended to be used as a
shield and not a weapon. Further, Section 3 of the Explosive Act has no
application because there was no material to show that the accused persons
had caused explosion. It was pointed out that several persons who had lost
their lives in the explosion were arrayed as accused persons. Even if, they
caused the explosion, they could not save their own lives and it cannot be
said that the accused appellants were responsible for the explosion. Coming
to the charge of conspiracy, it was submitted that the statements recorded
under Section 164 of the Code of Criminal Procedure, 1973 (in short ‘the
Code’) of the two accused persons cannot be used against others unless the
prescriptions of Section 30 of the Indian Evidence Act, 1872 (in short ‘the
Evidence Act’) were fulfilled. According to them, confession of a co-
accused was not a substantive piece of evidence. It had a limited role to
play. In case other evidence was convincing and credible, as an additional
factor, confession of a co-accused for limited purpose can be used in
evidence. The present was not a case of that nature. Finally, it was
submitted that accused appellants are in custody since 1993 and a liberal
view on sentence should be taken.
In response, Mr. K.T.S. Tulsi, learned senior counsel appearing for the
prosecution submitted that the apparent intention of the accused appellants
was to terrorise the people. Large quantity of the explosives and bombs
recovered clearly gives a lie to the plea that self-protection was the
object. Seen in the context of the motive it is clear that the intention
was to terrorise a section of the people and it is not a case that the
accused appellants wanted to exercise their right of private defence for
themselves. The real object and that motive were to use it for spreading
communal disharmony under the cover of self-protection and to terrorise
people. So far as the confession in terms of Section 164 of the Code is
concerned, it was submitted that the statements were recorded after making
the confessors aware that they may be utilized in evidence against them.
The so-called retraction was afterthought. The mere fact that the witnesses
were examined after two days does not per se render their evidence suspect.
It has to be noted that there was total chaos after the explosions.
Everywhere bodies were lying scattered. There was no information as to how
many were buried under the debris. The first attempt was to save lives of
people rendering immediate medical assistance. At that point of time,
recording of evidence was not the first priority. In fact, after the
special team was constituted, the process of recording statements was
started on 18.3.1993 and on that date the statements of material witnesses
were recorded, With reference of Section 15 of the TADA Act, it is
submitted that though the statements recorded by the Magistrate was not
strictly in line with Section 15 of the TADA Act, yet it deserves a greater
degree of acceptability under the said Act. It cannot be conceived that the
confession recorded by a Police Officer would stand on a better footing
than one recorded by the Judicial Magistrate. Further, it was submitted
that the confessional statements recorded clearly come within the ambit of
Section 10 of the Evidence Act and, therefore, no further corroboration was
necessary and to that extent Section 30 may not be applicable. Even
otherwise, according to him, there was ample material to connect the
accused appellants with the crime and the confessional statements were the
last straw.
Responding to the plea that Section 3 of the Explosive Act had no
application. It was submitted that the possession of the explosives has
been established, the purpose for which they were stored and the bombs were
manufactured has been established. Even if theoretically it is accepted
that the accused appellants did not cause the explosion, but the others did
at their behest. Their constructive liability cannot be wiped out. They
were the perpetrators of the crine being the brain behind it. Even if, for
the sake of arguments it is accepted that the final touch was given by
somebody else, may be the deceased accused persons, as they were the brains
behind the whole show, their liability cannot be ignored and ruled out. In
any event, according to him, they have been charged with Section 3 of the
Explosive Act and could be convicted under Section 4 of the said Act
because the latter constitutes a lesser offence.
By ways of rejoinder, it was submitted by learned counsel for the-accused-
appellants that Section 10 of the Evidence Act has no application, because
after the act flowing from the conspiracy is over, the relevance of any
statement of relation to the conspiracy is of no consequence. After the
explosion even if the same was the result of conspiracy as alleged, any
confessional statement recorded under Section 164 of the Code cannot come
within the ambit of Section 10 of the Evidence Act.
First, we shall deal with the plea regarding acceptability of the evidence.
It is to be seen as to what is the evidence of PWs 40, 67 and 68 and how
they establish prosecution case. PW-40 had deposed about presence of
Murtaza Bhai, Gulzar Bhai, Khalid Bhai, Ukil Tenial, Khursid and Hansu
while they were coming inside Satta Gali carrying two loaded gunny bags.
Thereafter, they went upstairs of 267 B.B. Ganguly Street. PW-40 followed
them up. He noticed the aforesaid persons mixing the ingredients of bombs
and also manufacturing bombs. He found two drums, few gunny bags and small
containers lying there. Murtaza, Gulzar and Khalid were shifting and
straining the explosive materials after taking it and from the gunny bags.
His nose and eyes got irritated when the process was going on. Therefore,
he came down. Around 10 to 10.30 p.m. he saw Rashid, Aziz Zakrin and Lalu
coming inside the Satta Gali with an old man wearing spectacles (identified
as accused-appellant Panalal Jaysoara). While moving up the stairs to the
upper floor, Rashid asked the old man to prepare bombs with the materials
brought by him. Criticism was levelled by learned counsel for accused-
appellant that the entire conversation alleged to have taken place was
disclose by PW40 during investigation. On verification of records, it
appears that though the exact words of the conversation were not stated, in
substance the same idea was conveyed. PWs 67 and 68 have stated about plan
of and preparation for manufacture of bombs. Their statement was to the
effect that on 16.3.1993 at about 11.00 p.m. they went to meet Rashid Khan
to ventilate their grievance against some of the pencillors disturbing the
tranquility of the locality. PW-67 has deposed that Rashid was standing
alone in front of the Satta office. As he and PW-68 were reporting the
matter to Rashid, an old man wearing spectacles (identified as accused
Pannalal Jaysoara) and Osman came out of Satta gali. The old man reported
to Rashid that it would take whole night to prepare bombs by using the
mixture. On being asked as to what would be done with the bombs, Rashid
replied that large number of bombs were required bombs were required
because of the riot at Bombay between Hindus and Muslims. Statement of
PW-68 is to the similar effect that on 16.3.1993 around 11.00 p.m. accused-
appellant Rashid intimated an old man (identified as accused-appellant
Pannalal Jaysoara) that preparation of large number of bombs was required
to be used in the event Hindus attacked the Muslims, and it was necessary
in view of riots in Bombay . PWs 67 and 68 belonged to the locality and
were acquainted with Rashid Khan. Their near relatives were staying in
locality. It is on record that some relatives of PW-68 have lost their
lives in the incident. Confidential statement of accused-appellant.
Pannalal Jaysoara was to the effect that he had asked accused-appellant
Rashid as to the urgency for preparing large number of bombs. His reply was
that he took the decision of preparing bombs so that Muslims could fight in
the possible riot. In the test identification parade PWs 40, 67 and 68
identified accused-appellant Pannala Jaysoara on 15.4.1993. Confessional
statement of accused-appellant Gulzar is relevant, He stated that Rashid
had reminded them that many Muslims had been killed in the riot at Bombay
and Government did not do anything for the Muslims. If there is a riot,
many Muslims may die as the Government may not do anything. Therefore, he
took the decision of preparing large quantity of explosives and bombs. PW
67 has deposed that accused-appellant Rashid directed preparation of large
number of bombs overnight. Presence of the accused persons in and around
the place of occurrence has been amply established by the evidence of PWs
40,67 and 68, as well the confessional statements of Pannalal and Gulzar.
In the case at hand , the evidence of PWs. 40,67 and 68 even after the
close scrutiny cannot be termed to be unreliable. Merely because they were
the persons with no fixed avocation, the very fact that they were regular
visitors to the place of occurrence described as ‘Satta Gali’ makes their
presence nothing but natural. Additionally, we find that relatives of PW-68
have lost lives. Mere delay in examination of the witnesses for a few days
cannot in all cases be termed to be fatal so far as the prosecution is
concerned. There may be several reasons. When the delay is explained,
whatever be the length of the delay, the Court can act on the testimony of
the witness if it is found to be cogent and credible. In the case at hand,
as has been rightly pointed out by the learned counsel for the respondents,
the first priority was rendering assistance to those who had suffered
injuries and were lying under the debris of the demolished buildings. The
magnitude of the incident can be well judged from the fact that a total
building collapsed and two other buildings were demolished to a substantial
extent, 69 persons lost their lives and large number of persons were
injured. Therefore, statement of PW-68 that he was busy in attending to the
injured and collecting dead bodies till 18.3.1993 cannot be said to be
improbable. Though, an attempt has been made to show that there is no truth
in his statement that he had carried the injured persons to the hospital by
making reference to certain noting in the medical reports to the effect
that unknown person brought the injured to the hospital, that is really of
no consequence. When large number of persons were being brought to the
hospital, the foremost duty of the doctors and other members of the staff
was to provide immediate treatment and not to go about collecting
information as to who had brought the injured to the hospital for
treatment. That would be contrary to the normal human conduct. Looked at
from any angle, the evidence of PWs. 40, 67 and 68 cannot be said to be
suffering from any infirmity. Their statements along with the confessional
statements of the co-accused and a definite assurance to the prosecution
version.
Next comes the accused-appellants’ plea relating to non-examination of
witnesses.
Normally, the prosecution’s duty is to examine all the eyewitnesses
selection of whom has to be made with due care, honestly and fairly. The
witnesses have to be selected with a view not to suppress any honest
opinion, and due care has to be taken that in selection of witnesses, no
adverse inference is drawn against the prosecution. However, no general
rule can be laid down that each and every witness has to be examined even
though his testimony may or may not be material. The most important factor
for the prosecution being that those witnesses strengthening the case of
the prosecution have to be examined, the prosecution can pick and choose
the witnesses who are considered to be relevant and material for the
purpose of unfolding the case of the prosecution. It is not the quantity
but the quality of the evidence that is important. In the case at hand, if
the prosecution felt that its case has been well established though the
witnesses examined, it cannot be said that non-examination of some persons
rendered its version vulnerable.
As was observed by this Court in Habeeb Mohammad v. State of Hyderabad, AIR
(1954) SC 51 prosecution is not bound to call a witness about whom there is
a reasonable ground for believing that he will not speak the truth.
It has not been shown as to how the examination of persons like Nausad and
Osman would have thrown any light on the issues involved. Whether Usman was
the owner of the house or not has no significance when the prosecution has
established the conspiracy angle and preparation of bombs by credible
evidence. Similarly, Osman was the person to whom one witness is stated to
have told about the conspiracy angle. Since that witness has been held to
be reliable, non-examination of Osmana is really of no consequence. A
reference was made to some persons who were parties to the Test
Identification Parade. It is pointed out that some of them did not identify
all the accused persons. Here again, the non-examination of these persons
cannot be held to be of any consequence. Those persons who have identified
the accused persons knew them earlier. Therefore, even if some persons not
examined did not identify all the accused persons that does not in any way
affect the credibility of the witnesses who knew them, have identified them
and deposed about the conspiracy and the preparation of combs. Above being
the position, no adverse inference can be drawn.
It would be appropriate to deal with the question of conspiracy. Section
120B of IPC is the provision which provides for punishment for criminal
conspiracy. Definition of ‘criminal conspiracy’ given in Section 120A reads
as follows:
“120A-When two or more persons agree to do, or cause to be done,-
(1) all illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall
amount to a criminal conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in pursuance thereof.’
The elements of a criminal conspiracy have been stated to be: (a) an object
to be accomplished, (b) a plan or scheme embodying means to accomplish that
object, (c) an agreement or understanding between two or more of the
accused persons whereby, they become definitely committed to co-operate for
the accomplishment of the object by the means embodied in the agreement, or
by any effectual means, (d) in the jurisdiction where the statute required
an overt act. The essence of a criminal conspiracy is the unlawful
combination and ordinarily the offence is complete when the combination is
framed. From this, it necessarily follows that unless the statute so
requires, no overt act need be done in furtherance of the conspiracy, and
that the object of the combination need not be accomplished, in order to
constitute an indictable offence. Law making conspiracy a crime, is
designed to curb immoderate power to do mischief which is gained by a
combination of the means. The encouragement and support which co-
conspirators give to one another rendering enterprises possible which, if
left to individual effort, would have been impossible, furnish the ground
for visiting conspirators and abettors with condign punishment. The
conspiracy is held to be continued and renewed as to all its members
wherever and whenever any member of the conspiracy acts in furtherance of
the common design. (See: American Jurisprudence Vol. II Sec. 23, p. 559).
For an offence punishable under section 120-B, prosecution need not
necessarily prove that the perpetrators expressly agree to do or cause to
be done illegal act; the agreement may be proved by necessary implication.
Offence of criminal conspiracy has its foundation in an agreement to commit
an offence. A conspiracy consists not merely in the intention of two or
more, but in the agreement of two or more to do an unlawful act by unlawful
means. So long as such a design rests in intention only, it is not
indictable. When two agree to carry it into effect, the very plot is an act
in itself, and an act of each of the parties, promise against promise,
actus contra actum, capable of being enforced, if lawful, punishable if for
a criminal object or for use of criminal means.
No doubt in the case of conspiracy there cannot be any direct evidence. The
ingredients of offence are that there should be an agreement between
persons who are alleged to conspire and the said agreement should be for
doing an illegal act or for doing illegal means an act which itself may not
be illegal, Therefore, the essence of criminal conspiracy is an agreement
to do an illegal act and such an agreement can be proved either by direct
evidence or by circumstantial evidence or by both, and it is a matter of
common experience that direct evidence to prove conspiracy is rarely
available. Therefore, the circumstances proved before, during and after the
occurrence have to be considered to decide about the complicity of the
accused.
In Halsbury’s Laws of England (vide 4th Ed. Vol.11, page 44 page 58), the
English Law as to conspiracy has been stated thus:
“Conspiracy consists in the agreement of two or more persons to do an
unlawful act, or to do a lawful act by unlawful means. It is an indictable
offence at common law, the punishment for which is imprisonment or fine or
both in thee discretion of the Court.
The essence of the offence of conspiracy is the fact of combination by
agreement. The agreement may be express or implied, or in part express and
in part implied. The conspiracy arises and the offence is committed as soon
as the agreement is made, and the offence continues to be committed so long
as the combination persists, that is until the conspiratorial agreement is
terminated by completion of its performance or by abandonment or
frustration or however, it may be. The actus rues in a conspiracy is the
agreement to execute the illegal conduct, not the execution of it. It is
not enough that two or more persons pursued the same unlawful object at the
same time or in the same place, it is necessary to show a meeting of minds,
a consensus to effect an unlawful purpose. It is not, however, necessary
that each conspirator should have been in communication with every other.”
There is no difference between the mode of proof of the offence of
conspiracy and that of any other offence, it can be established by direct
or circumstantial evidence. (See: Bhagwan Swarup Lal etc. etc. v. State of
Maharashtra, AIR (1965) SC 682 at p. 686].
Privacy and secrecy are more characteristics of conspiracy, than of a loud
discussion in an elevated place open to public view. Direct evidence in
proof of a conspiracy is seldom available, offence of conspiracy can be
proved by either direct or circumstantial evidence. It is not always
possible to give affirmative evidence about the date of the formation of
the criminal conspiracy, about the persons who took part in the formation
of the conspiracy, about the object, which the objectors set before
themselves as the object of conspiracy, and about the manner in which the
object of conspiracy is to be carried out, all this is necessarily a matter
of inference.
The provisions of Section 120-A and 120-B,IPC have brought the law of
conspiracy in India in line with the English Law by making the overt act
unessential when the conspiracy is to commit any punishable offence. The
English Law on this matter is well settled. Russell on crime (12 Ed. Vol.
I, p. 202) may be usefully noted-
The gist of the offence of conspiracy then lies, not in doing the act, or
effecting the purpose for which the conspiracy is formed, nor in attempting
to do them, nor in citing others to do them, but in the forming of the
scheme or agreement between the parties, agreement is essential. Mere
knowledge, or even discussion, of the plan is not, per se, enough.”
Glanville Williams in the “Criminal Law” (Second Ed. P. 382) states-
“The question arose in an Iowa case, but it was discussed in terms of
conspiracy rather then of accessoryship. D, who had a grievance against P,
told E that if he would whip P someone would pay his fine. E replied that
he did not want anyone to pay his fine, that he had a grievance of his own
against P and that he would whip him at the first opportunity. E whipped
P.O. was acquitted of conspiracy because there was no agreement for
‘concert of action, no agreement to ‘co-operate’. Coleridge, J, while
summing up the case to Jury in Regina v. Murphy, (1837) 173 ED 502 at p.
508] states:
“I am bound to tell you, that although the common design is the root of the
charge, it is not necessary to prove that these two parties came together
and actually agreed in terms to have this common design and to pursue it by
common means, and so to carry it into execution. This is not necessary,
because in many cases of the most clearly established conspiracies there
are no means of proving any such thing and neither law nor common sense
requires that it should be proved. If you find that these two persons
pursued by their acts the same object, often by the same means, one
performing one part of an act, so as to complete it, with a view to the
attainment of the object which they were pursuing, you will be at liberty
to draw the conclusion that they have been engaged in a conspiracy to
effect that object. The question you have to ask yourselves is, had they
this common design, and did they pursue it by these common means the design
being unlawful.”
As note above, the essential ingredient of the offence of criminal
conspiracy is the agreement to commit an offence. In a case where the
agreement is for accomplishment of an act which by itself constitutes an
offence, then in that event no overt act is necessary to be proved by the
prosecution because in such a situation, criminal conspiracy is established
by proving such an agreement. Where the conspiracy alleged is with regard
to commission of a serious crime of the nature as contemplated in Section
120 B read with the proviso to sub-section (2) of Section 120 A, then in
that event mere proof of an agreement between the accused for commission of
such a crime alone is enough to bring about a conviction under Section 120
B and the proof of any overt act by the accused or by any one of them would
not be necessary. The provisions, in such a situation, do not require that
each and every person who is party to the conspiracy must do some overt act
towards the fulfilment of the object of conspiracy, to commit the essential
ingredient being an agreement between the conspirators to commit the crime
and if these requirements and ingredients are established, the act would
fall within the trapping of the provisions contained in section 120 B [See:
S.C. Bahri v. State of Bihar, AIR (1994) SC 2420.
The conspiracies are not hatched in open, by their nature, they are
secretly, planned, they can be proved even by circumstantial evidence, the
lack of direct evidence relating to conspiracy has no consequence. [See:
E.K. Chandrasenan v. State of Kerala, AIR (1995) SC 1066].
In Kehar Singh and Ors. v. The State (Delhi Administration), AIR(1988)SC
1883 at p. [1954], this Court observed:
“Generally, a conspiracy is hatched in secrecy and it may be difficult to
adduce direct evidence of the same. The prosecution will often rely on
evidence of acts of various parties to infer that they were done in
reference to their common intention. The prosecution will also more often
rely upon circumstantial evidence. The conspiracy can be undoubtedly proved
by such evidence direct or circumstantial. But the court must enquire
whether the two persons are independently pursuing the same end or they
have come together to the pursuit of the unlawful object. The former does
not render them conspirators, but the latter does. It is, however,
essential that the offence of conspiracy required some kind of physical
manifestation of agreement. The express agreement, however, need not be
proved. Nor actual meeting of the two persons is necessary. Nor it is
necessary to prove the actual words of communication. The evidence as to
transmission of thoughts sharing the unlawful design may be sufficient.
Conspiracy can be proved by circumstances and other materials. (See: State
o) Bihar v. Paramhans, (1986) Pat LJR 688. To establish a charge of
conspiracy knowledge about indulgence in either an illegal act or a legal
act by illegal means is necessary, In some cases, intent of unlawful use
being made of the goods or services in question may be inferred from the
knowledge itself. This apart, the prosecution has not to establish that a
particular unlawful use was intended, so long as the goods or service in
question could not be put to any lawful use Finally, when the ultimate
offence consists of a chain of actions, i would not be necessary for the
prosecutions to establish, to bring home the charge of conspiracy, that
each of the conspirators had the knowledge of what the collaborator would
do so, so long as it is known that the collaborator would put the goods or
service to an unlawful use . (See State of Maharashtra v. Som Nath Thapa,
J] (1996) 4 SC 615.
We may usefully refer to Ajay Agarwal v. Union of India and Ors., J] (1993)
3 SC 203. It was held:
XXX XXX XXX
“8………..It is not necessary that each conspirator must know all the
details of the scheme nor be a participant at every stage. It is necessary
that they should agree for design or object of conspiracy. Conspiracy is
conceived as having three elements. (1) agreement; (2) between two or more
persons by whom the agreement is effected: and (3) a criminal object, which
may be either the ultimate aim of the agreement, or may constitute the
means, or one of the means by which that aim is to be accomplished. It is
immaterial whether this is found in the ultimate objects. The common law
definition of ‘criminal conspiracy’ was stated first by Lord Denman in
Jones’ case that an indictment for conspiracy must “charge a conspiracy to
do an unlawful act by unlawful means” and was elaborated by Willies, J. on
behalf of the judges while referring the question to the House of Lords in
Mulcahy v. Reg, and House of Lords in unanimous decision reiterated in
Quinn v. Leathem:
‘A conspiracy consists not merely in the intention of two or more, but in
the agreement of two or more, to do an unlawful act, or to do a lawful act
by unlawful means. So long as such a design rest in intention only, it is
not indictable. When two agree to carry it into effect, the very plot is an
act in itself, and the act of each of the parties, promise against promise,
actus contra actum, capable of being enforced, if lawful; punishable of for
a criminal object, or for the use of criminal means.’
The Court in B.G. Barsay v. State of Bombay, held:
“The gist of the offence is an agreement to break the law. The parties to
such an agreement will be guilty of criminal conspiracy, though the illegal
act agreed to be done has not been done. So too, it is an ingredient of the
offence that all the parties should agree to do a single illegal act. It
may comprise the commission of a number of acts. Under Section 43 of the
India Penal Code, an act would be illegal if it is an offence or if it is
prohibited by law.”
In Yash Pal Mittal v. State of Punjab, [1977] SCC 540 the rule was laid as
follows: (SCC p. 543 para 9)
‘The very agreement, concert or league is the ingredient of the offence. It
is not necessary that all the conspirators must know each and every detail
of the conspiracy as long as they are co-participators in the main object
of the conspiracy. There may be so many devices and techniques adopted to
achieve the common goal of the conspiracy and there may be division of
performances in the chain of actions with one object to achieve the real
end of which every collaborator must be aware and in which each one of them
must be interested. There must be unity of object or purpose but there may
be plurality of means sometimes even unknown to one another, amongst the
conspirators. In achieving the goal several offences may be committed by
some of the conspirators even unknown to the others. The only relevant
factor is that all means adopted and illegal acts done must be and
purported to be in furtherance of the object of the conspiracy even though
there may be sometimes misfire or overshooting by some of the
conspirators.’
In Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of
Maharashtra, (1981) 2 SCC 443, it was held that for an offence under
Section 120B IPC, the prosecution need not necessarily prove that the
perpetrators expressly agreed to do or cause to be done the illegal act,
the agreement may be proved by necessary implication.”
Where trustworthy evidence establishing all links of circumstantial
evidence is available the confession of a co-accused as to conspiracy even
without corroborative evidence can be taken into consideration. [See
Baburao Bajirao Patil v. State of Maharashtra, [1971] 3 SCC 432]. It can in
some cases be inferred from the acts and conduct of parties. [See
Shivanarayan Laxminarayan Joshi and Ors. v. State of Maharashtra and Ors,,
AIR (1980) SC 439.
That brings us to another angle i.e. acceptability of the confession.
Section 24 of the Evidence Act interdicts a confession if it appears to the
Court to be the result of any inducement, threat or promise in certain
conditions. The principle therein is that confession must be voluntary. It
must be the outcome of his own free will inspired by the sound of his own
conscience to speak nothing but truth.
Words and Phrases, permanent edition, Vol. 44, p. 622 defines ‘voluntary’
as:
‘Voluntary’ means a statement made of the free will and accord of accuse,
without coercion, whether from fear of any threat of harm, promise, or
inducement or any hope of reward-State v. Mullin,
(85NW 2nd 598, 600, 249 down 10)”
Words and Phrases by John B. Saunders 3rd edition, vol. 4 4, p. 401,
‘voluntary’ is defined as:
“………the classic statement of the principle is that of Lord Sumner in
lbrahim v. Regem, (1914) AC 599 (at p. 609) where he said, “it has long
been established as a positive rule of English criminal law that no
statement by an accused is admissible in evidence against him unless it is
shown by the prosecution to be a voluntary statement, in the sense that it
has not been obtained from him either by fear of prejudice or hope of
advantage exercise or held out by a person in authority. The principle is
as old as Lord Hale”. However, in five of the eleven textbooks cited to us
……support is to be found for a narrow and rather technical meaning of
the word “voluntary”. According to this view, “voluntary”. According to
this view, ‘voluntary” means merely that the statement has not been made in
consequence of (i) some promise of advantage or some threat (ii) of a
temporal character (iii) held out or made by a person in authority, and
(iv) relating to the charge in the sense that it implies that the accused’s
position in the contemplated proceedings will or may be better or worse
according to whether or not the statement is made. R. v. Power, (1966) 2
All ER 433 (at pp. 454, 455) per Cantley, V.”
A confessional statement is not admissible unless it is made to the
Magistrate under Section 25 of the Evidence Act. The requirement of Section
30 of the Evidence Act is that before it is made to operate against the co-
accused the confession should be strictly established. In other words, what
must be before the Court should be a confession proper and not a mere
circumstance or an information which could be an incriminating one.
Secondly, it being the confession of the maker, it is not to be treated as
evidence within the meaning of Section 3 of the Evidence Act against the
non-maker co-accused and lastly, its use depends on finding other evidence
so as to connect the co-accused with crime and that too as a corroborative
piece. It is only when the other evidence tendered against the co-accused
points to his guilt then the confession duly proved could be used against
such co-accused if it appears to effect him as lending support or assurance
to such other evidence. To attract the provisions of Section 30, it should
for all purposes be a confession, that is a statement containing an
admission of guilt and not merely a statement raising the inference with
regard to such a guilt. The evidence of co-accused cannot be considered
under Section 30 of the Evidence Act, where he was not tried jointly with
the accused and where he did not make a statement incriminating himself
along with the accused. As noted above, the confession of co-accused does
not come within the definition of evidence contained in Section 3 of the
Evidence Act. It is not required to be given on oath, nor in the presence
of the accused, and it cannot be tested by cross-examination. It is only
when a persons admits guilty to the fullest extent, and exposes himself to
the pains and penalties provided for his guilt, there is a guarantee for
his truth. Legislature provides that his statement may be considered
against his fellow accused charged with the same crime. The test is to see
whether it is sufficient by itself to justify the conviction of the person
making it of the offence for which he is being jointly tried with the other
person or persons against whom it is tendered. The proper way to approach a
case of this kind is, first to marshal the evidence against the accused
excluding the confession altogether from consideration and see whether if
it is believed, a conviction could safely be based on it. If it is capable
of belief independently of the confession, then of course it is not
necessary to call the confession in aid. But cases may arise where the
Judge is not prepared to act on the other evidence as it stands even
though, if believed, it would be sufficient to sustain a conviction. In
such an event the Judge may call in aid the confession and use it to lend
assurance to the other evidence. This position has been clearly explained
by this Court Kashmira Singh v. The State of Madhya Pradesh, AIR (1952) SC
159. The exact Scope of Section 30 was discussed by the Privy Council in
the case of Bhubani v. The King, AIR (1949) PC 257. The relevant extract
from the said decision which has become locus classicus reads as follows:
“Sec. 30 applies to confessions, and not to statements which do not admit
the guilt of the confessing party……..But a confession of a co-accused
is obviously evidence of a very weak type…..It is a much weaker type of
evidence than the evidence of an approver which is not subject to any of
those infirmities. Sec. 30, however, provides that the Court may take the
confession into consideration and thereby, no doubt, make it evidence on
which the Court may act but the section does not say that the confession is
to amount to proof. Heady there must be other evidence. The confession is
only one element in the consideration of all the facts proved in the case;
it can be put into the scale and weighed with the other evidence. The
confession of the co-accused and be used only in support of other evidence
and cannot be made the foundation of a conviction”. Kashmira Singh’s
principles were noted with approval by a Constitution Bench of these Court
Hart Charan Kurmi and Jodia Hajam v. State of Bihar, [1964] 6 SCR 623. It
was noted that the basis on which Section 30 operates . is that if a person
makes a confession implicating himself that may suggest that the maker of
the confession is speaking the truth. Normally, if a statement made by an
accused person is found to be voluntary and it amounts to a confession in
the sense that it implicates the maker, it is to likely that the maker
would implicate himself untruly. So Section 30 provides that such a
confession may be taken into consideration even against the co-accused who
is being tried along with the maker of the confession. It is significant
however that like other evidence which is produced before the Court it is
not obligatory on the Court to take the confession into account. When
evidence as defined by the Evidence Act is produced before the Court it is
the duty of the Court to consider that evidence. What weight should be
attached to such evidence is a matter in the discretion of the Court. But
the Court cannot say in respect of such evidence that it will just not take
that evidence into account. Such an approach can however be adopted by the
Court in dealing with a confession because Section 30 merely enables the
Court to take the confession into account. Where, however, the Court takes
it into confidence, it cannot be faulted. The principle is that the Court
cannot start with confession of a co-accused person; it must begin with
other evidence adduced by the prosecution and after it has formed its
opinion with regard to the quality and effect of the said evidences, then
it is permissible to turn to the confession in order to receive assurance
to the conclusion of guilt which the judicial mind is about the reach on
some other evidence. That is the true effect of the provision contained in
Section 30. We may note that great stress was laid down on the so-called
retraction of the makers of the confession. Apart from the fact that the
same was made after about two years of the confession. PWs 81 and 82 have
stated in Court as to the procedures followed by them, while recording the
confession. The evidence clearly establishes that the confessions were true
and voluntary. That was not the result of any tutoring, compulsion or
pressurization. As was observed by this Court in Shankaria v. State of”
Rajasthan, (1978) Crl. LJ. 1251, the Court is to apply double test for
deciding the acceptability of a confession i.e. (i) whether the confession
was perfectly voluntary and (ii) if so, whether it is true and trustworthy.
Satisfaction of the first test is a sine qua non for its admissibility in
evidence. If the confession appears to the Court to have been caused by any
inducement, threat or promise, such as mentioned in Section 24 of the
Evidence Act, it must be excluded and rejected brevi manu. If the first
test is satisfied, the Court must before acting upon the confession reach
the finding that what is stated therein is true and reliable. The Judicial
Magistrate PWs. 81 and 82 have followed the requisite procedure. It is
relevant to further note that complaint was lodged before the Magistrate
before his recording of the confessional statement of accused Md. Gulzar.
The complaint was just filed in Court and it was not moved. The name of the
lawyer filing the complaint could not be ascertained either. This fact has
been noted by the Designated Court.
In view of what we have said about the confessional statement it is not
necessary to go into the question as to whether the statement recorded
under Section 164 of the Code as to be given greater credence even if the
confessional statement has not been recorded under Section 15 of the TADA
Act. However, we find substance in the stand of learned counsel for
accused-appellants that Section 10 of the Evidence Act which is an
exception to the general rule while permitting the statement made by one
conspirator to be admissible as against another conspirator restricts it to
the statement made during the period when the agency subsisted. In State of
Gujarat v. Mohd. Atik and Ors., [1998] 4 SCC 351, it was held that
principle is no longer res Integra that any statement made by an accused
after his arrest, whether as a confession or otherwise, cannot fall within
the ambit of Section 10 of the Evidence Act. Once the common intention
ceased to exist any statement made by a former conspirator thereafter
cannot be regarded as one made in reference to their common intention. In
other words, the post arrest statement made to a police officer, whether it
is a confession or otherwise touching his involvement in the conspiracy,
would not fall within the ambit of Section 10 of the Evidence Act.
The first condition which is almost the opening lock of that provision is
the existence of “reasonable ground to believe” that the conspirators have
conspired together. This condition will be satisfied even when there is
some prima facie evidence to show that there was such a criminal
conspiracy. If the aforesaid preliminary condition is fulfilled then
anything said by one of the conspirators becomes substantive evidence
against the other, provided that should have been a statement “in reference
to their common intention”. Under the corresponding provision in the
English law the expression used is “in furtherance of the common object.”
No doubt, the words “in reference to their common intention” we wider than
the words used in English law (vide Sardar Sardul Singh Caveeshar v. The
State of Maharashtra, AIR (1965) SC 682.
But the contention that any statement of a conspirator, whatever be the
extent of time, would gain admissibility under Section 10 if it was made
“in reference” to the common intention, is too broad a proposition for
acceptance. We cannot overlook that the basic principle which underlies in
Section 10 of the Evidence Act is the theory of agency. Every conspirator
is an agent of his associate in carrying out the object of the conspiracy.
Section 10, which is an exception to the general rule, while permitting the
statement made by one conspirator to be admissible as against another
conspirator restricts it to the statement made during the period when the
agency subsisted. Once it is shown that a person became snapped out of the
conspiracy, any statement made subsequent thereto cannot be used as against
the other conspirators under Section 10.
Way back in 1940, the Privy Council had considered this aspect and Lord
Wright, speaking for Viscount Maugham and Sir George Rankin in Mirza Akbar
v. King-Emperor, AIR (1940) P.C. 176 had stated the legal position thus:
“The words ‘common intention’ signify a common intention existing at the
time when the thing was said, done or written by one of them. Things said,
done or written while the conspiracy was on foot are relevant as evidence
of the common intention, once reasonable ground has been shown to believe
in its existence. But it would be a very different matter to hold that any
narrative or statement or confession made to a third party after the common
intention or conspiracy was no longer operating and had ceased to exist is
admissible against the other party.”
Intention is the volition of mind immediately preceding the act while the
object is the end to which effect is directed the thing aimed at and that
which one endeavours to attain and carry on. Intention implies the
resolution of the mind while the object means the purpose for which the
resolution was made.
In Bhagwan Swamp’s case (supra), it was observed that the expression ‘in
reference to their common intention’ is wider than the words ‘in
furtherance of the common intention’ and this is very comprehensive and it
appears to have been designedly used to give it a wider scope than the
words ‘in furtherance of in the English Law. But, once the common intention
ceased to exist any statement made by a former conspirator thereafter
cannot be regarded as one made ‘in reference to the common intention.
Therefore, a post arrest statement made to the police officer was held to
be beyond the ambit of Section 10 of the Evidence Act.
In Sardul Singh Caveeshar v. The State of Bombay, AIR (1957) SC 747, it was
held:
“The principle underlying the reception of evidence under Section 10 of the
Evidence Act of the statements, acts and writings of one co-conspirator as
against the other is on the theory of agency. The rule in Section 10 of the
Evidence Act confines that principle of agency in criminal matters to the
acts of the co-conspirator within the period during which it can be said
that the acts were ‘in reference to their common intention’ that is to say
‘things said, done or written while the conspiracy was on foot’ and ‘in
carrying out the conspiracy’. It would seem to follow that where the charge
specified the period of conspiracy evidence of acts of co-conspirators
outside the period is not receivable in evidence.”
In a given case, however, if the object of conspiracy has not been achieved
and there is still agreement to do the illegal act, the offence of a
criminal conspiracy continues and Section 10 of the Evidence Act applies.
In other words, it cannot be said to be a rule of universal application.
The evidence in each case has to be tested and the conclusions arrived at.
In the present case, the prosecution has not led any evidence to show that
any particular accused continued to be a member of the conspiracy after his
arrest. Similar view was expressed by this Court in State v. Nalini, [1999]
5 SCC 253.
It was urged with some amount of vehemence by the learned counsel for the
appellants that no terrorise act was involved.
While dealing with an accused tried under the TADA, certain special
features of the said Statute need to be focused. It is also necessary to
find out the legislative intent for enacting it. If defines “terrorist
acts” in Section 2(h) with reference to Section 3(1) and in that context
defines a terrorist. It is not possible to define the expression
‘terrorism’ in precise terms. It is derived from the word ‘terror’. As the
Statement of Objects and Reasons leading to enactment of the TADA is
concerned, reference to The Terrorist and Disruptive Activities
(Prevention) Act, 1985 (hereinafter referred to as the ‘Old Act’) is
necessary. It appears that the intended object of the said Act was to deal
with persons responsible for escalation of terrorist activities in many
parts of the country. It was expected that it would be possible to control
the menace within a period of two years, and life of the Act was restricted
to the period of two years from the date of its commencement. But noticing
the continuance of menance, that too on a larger scale TADA has been
enacted. Menance of terrorism is not restricted to our country, and it has
become a matter of international concern and the attacks on the World Trade
Centre and other laces on 11th September, 2001 amply show it. Attack on the
Parliament on 13th December, 2001 shows how grim the situation is. TADA is
applied as an extreme measure when police fails to tackle with the
situation under the ordinary penal law. Whether the criminal act was
committed with an intention to strike terror in the people or section of
people would depend upon the facts of each case. As was noted in Jayawant
Dattatray Suryarao etc. etc. v. State of Maharashtra etc. etc., (2001) AIR
SCW 4717, for finding out the intention of the accused, there would hardly
be a few cases where there would be direct evidence. It has to be mainly
inferred from the circumstances of each case.
In Hintendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors.,
[1994] 4 SCC 602, this Court observed that:
“that legal position remains unaltered that the crucial postulate for
judging whether the offence is a terrorist act falling under TADA or not is
whether it was done with the intent to overawe the Government as by law
established or to strike terror in the people etc. A ‘terrorist’ activity
does not merely arise by causing disturbance of law and order or of public
order. The fall out 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 conercive intimidation”.
As was noted in the said case, 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 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
convention drafted in 1937 never came into existence. The UN Member States
still have no agree-upon definition. 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 commented that one State’s “terrorist” is another State’s “freedom
fighter”. If terrorism is defined strictly in terms of attacks on non-
military targets, 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, terrorist 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 crime-deliberate attacks on civilians,
hostage taking and the killing of prisoners-is extended to peacetime, we
could simply define acts of terrorism 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 statute 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 or 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 reason, 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), (imperiled)
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 propoganda is
primarily sought” (Schmid, 1988).
Definitions:
Terrorism by nature is difficult to define. Acts of terrorism conjure
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 or threatened use of force designed to bring about
political change.-Brain 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 governmental, individuals or groups, or to modify
their behaviour or polities. -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. –
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 society. ‘Terrorism’ has not been
defined under TADA 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 or 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
harmony of the society or ‘terrorise’ people and the society and not only
those directly assaulted, with a view to disturb even tempo, peace and
tranquillity of the society and create a sense of fear and insecurity.
In the background of what we have said about terrorist’s acts (supra), plea
of accused-appellants is clearly unacceptable. As was observed by this
Court when earlier the matter was before it in the prosecution’s appeal
questioning the quashing of order of sanction and application of TADA, the
preparation of bombs and possession of bombs would tantamount to
terrorizing the people. Credible evidence proves it to be a terrorist act.
The explosion of large number of live bombs is a clear indication of
conspiracy. It was further held that it cannot be contended that if the
bombs are for self defence there was no mens rea. Preparation and storage
of bombs are per se illegal acts.
Further question is when the right of private defence arises. It never
commences before a reasonable apprehension arises in the mind of the
accused. Here there was no evidence that there was any indication about
attack on the Muslims and, therefore, the question of any reasonable
apprehension does not arise. The cover of self-protection when pierced
unravels a sinister design to unleash terror.
As was observed by this Court in Yogendra Moraffi v. State of Gujarat,
[1980] 2 SCC 218, the right of self defence commences not before a
reasonable apprehension arises in the mind of the accused.
As was observed by this Court in Puran Singh and Ors. v. The State of
Punjab, AIR (1975) SC 1674 (Para 20) right is not available if there is
sufficient time for recourse to a public authority. There was no scope for
interfering the so-called view of the accused persons that police may not
help them. That occasion had not arisen. On the question of applicability
of Sections 3 and 4 of the Explosive Act and the true intent, we only need
to refer to Corpus Juris Secundum (A Contemporary Statement of American
Law), Volume 22. It is held at page 116 (Criminal Law) as under:
“Intention
(a) In general
(b) Specific or general intent crimes
(a) In general.-As actual intent to commit the particular crime toward
which the act moves is a necessary element of an attempt to commit a crime.
Although the intent must be one in fact, not merely in law, and may not be
inferred from the overt act alone, it may be inferred from the
circumstances.”
As regards motive in American Jurisprudence, 2nd Edn., Vol. 21, in Section
133, it is stated as under:
“133. Motive-In criminal law motive may be defined as that which leads or
tempts the mind to indulge in a criminal act or as the moving power which
impels to action for a definite result.”
In view of our conclusions that charges under Sections 3(2)(1) and 3(3) of
TADA and Section 120B IPC are clearly established, we do not think it
necessary to go through a hair splitting approach vis-a-vis Section 3 and 4
of the Explosive Act. Even if it is accepted that Section 3 of the Act was
not applicable and what was applicable in Section 4 of the Explosive Act
yet it can only be the question of sentence which can be imposed. As the
charge is for higher offence, conviction of lesser offence is permissible.
As we are upholding the award of life sentence for the offences under
Sections 120B IPC and Section 3(2)(1) and Section 3(3) of the TADA Act, any
reduction in sentence from 10 years to 7 years (in the background of
Sections 3 and 4 of the Explosive Act) is really of no consequence. The
appeals filed by the accused persons deserves to be dismissed, and we so
direct.
Coming to the appeal filed by the prosecution against the acquittal in
respect of charges under Section 302/34 and Section 436/34 IPC, learned
counsel for the prosecution fairly stated, and in our opinion rightly, that
the acquittal is justified. Though, it was submitted by Mr. K.T.S. Tulsi
that higher sentences would have been more appropriate in respect of
established offences, we do not think it necessary to go into that question
in absence of an appeal by the prosecution in that regard. The appeal filed
by the State is accordingly dismissed. In the result, all the seven appeals
stand dismissed.
Before parting with the case, we may point out that the Designated Court
deferred the cross examination of the witnesses for a long time. That is a
feature which is being noticed in many cases. Unnecessary adjournments give
a scope for a grievance that accused persons get a time to get over the
witnesses. Whatever be the truth in this allegation, the fact remains that
such adjournments lack the spirit of Section 309 of the Code. When a
witness is available and his examination-in-chief is over, unless
compelling reasons are there, the Trial Court, should not adjourn the
matter on mere asking. These aspects were highlighted by this Court in
State of U.P. v. Shambhu Nath Singh and Ors., [2001] 4 SCC 667 and N.G.
Dastance, v. Shrikant S. Shivde and Anr., [2001] 6 SCC 135. In Shambhu Nath
Singh’s case (supra) this Court deprecated the practice of courts
adjourning cases without examination of witnesses when they are in
attendance with following observations:
“9. We make it abundantly clear that if a witness is present in court he
must be examined on that day. The court must know that most of the
witnesses could attend the court only at heavy cost to them, after keeping
aside their own avocation. Certainly they incur suffering and loss of
income. The meagre amount of bhatta (allowance) which a witness may be paid
by the court is generally a poor solace for the financial loss incurred by
him. It is a sad plight in the trial courts that witnesses who are called
through summons or other processes stand at the door stamp from morning
till evening only to be told at the end of the day that the case is
adjourned to another day. This primitive practice must be reformed by the
presiding officers of the trial courts and it can be reformed by everyone
provided the presiding officer concerned has a commitment towards duty. No
sadistic pleasure, in seeing how other persons summoned by him as witnesses
are stranded on account of the dimension of his judicial powers, can be
persuading factor for granting such adjournments lavishly, that too in a
casual manner.”
In N.G. Dasane case (supra) the position was reiterated. The following
observations in the said case amply demonstrate the anxiety of this Court
in the matter :
“An advocate abusing the process of court is guilty of misconduct. When
witnesses are present in the court for examination the advocate concerned
has a duty to see that their examination is conducted. We remind that
witnesses who come to the court, on being called by the court, do so as
they have no other option, and such witnesses are also responsible citizens
who have other work to attend to for eking out a livelihood. They cannot be
treated as less respectable to be told to come again and again just to suit
the convenience of the advocate concerned. If the advocate has any
unavoidable inconvenience it is his duty to make other arrangements for
examining the witnesses who are present in the court. Seeking adjournments
for postponing the examination of the witnesses who are present in court
even without making other arrangements for examining such witnesses is a
dereliction of an advocate’s duty to the court as that would cause much
harassment and hardship to the witnesses. Such dereliction if repeated
would amount to misconduct of the advocate concerned. Legal profession must
be purified from such abuses of the court procedures. Tactics of
filibuster, if adopted by an advocate, is also a professional misconduct.”
It would be desirable for the Court to keep these aspects in view. Appeals
are dismissed, as noted above. S.K.S.
Appeals dismissed.