ORDER
Nanavati, J.
1. The appellant has filed this appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, challenging his conviction and also the order of sentence passed in TADA(P) file No. 23 of 7.9.94, by the Court of Additional Judge, Designated Court, Ferozepur at Bathinda.
2. The prosecution case was that the appellant alongwith Suba Singh went to the house of Mukhtiar Singh armed with fire arms, at about 9.30 p.m. on 22-9-1992 scaled the wall of the courtyard and went inside the house and after reaching the place where Mukhtiar Singh was sitting alongwith his brother Basant Singh and his uncle Sudagar Singh told Mukhtiar Singh to handover his tractor as they wanted it. Mukhtiar Singh refused to part with the tractor. Thereupon Suba Singh opened fire and killed Mukhtiar Singh on the spot. According to the prosecution, at that time appellant Pal Singh was also having a pistol in his hand. after Killing Mukhtiar Singh they starting running away. Sudagar Singh was able to catch hold of Suba Singh and Basant Singh PW-2 was able to catch Pal Singh. Both the assailants however managed to escape but in the scuffle, Sudagar Singh was able to snatch away the AK-56 rifle of Suba Singh. Hearing the sound of gun fire Police Inspector Teja Singh reached the spot within a very short time and recorded the complaint of Basant Singh. It was then sent to the Police Station and an offence was registered on its basis and thereafter the investigation followed. On the basis of the material collected the Police charge sheeted both the accused for the offence punishable under Section 302 IPC read with Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act.
3. In order to prove its case, (apart from the other supporting evidence), the prosecution relied upon the evidence of two eye witnesses – Basant Singh (PW-2) and Sudagar Singh (PW-3) and also of Karnail Singh (PW-4) who had seen both the accused running away soon after the incident. Accepting their evidence, the Designated Court convicted appellant Pal Singh under Section 302 read with Section 34 IPC and also under Sections 3 and 4 of the TADA. Before the trial could begin accused Suba Singh was killed in an encounter and, therefore, the trial had proceeded only against appellant Pal Singh.
4. What is contended by the learned counsel for the appellant is that the Designated Court has committed a grave mistake in accepting the evidence of the two eye witnesses – Basant Singh (PW-2) and Sudagar Singh (PW-3) and Sudagar Singh (PW-3) the evidence of Karnail Singh. He submitted that neither Basant Singh nor Sudagar Singh knew the assailants. That also become apparent from the fact that in the complaint which came to be recorded soon after the incident, names of the two assailants were not given and they were merely described as two unknown persons.
5. He also submitted that the evidence of Karnail Singh, that he knew the accused, and that he had given the names to Basant Singh and Sudagar Singh and also to the police, cannot be believed because if he had disclosed the names then these names would have been mentioned in the complaint whereas in the complaint it was stated that the assailants were unknown persons.
6. It is true that Karnail Singh in his evidence has stated that his statement was recorded by the Police at 9.30 p.m. on 22-9-1992. It is also true that Inspector Teja Singh has also deposed that the statement of Karnail Singh was recorded immediately after recording the complaint of Basant Singh and statement of Sudagar Singh. But from the note made by the learned Designated Judge while recording evidence of Karnail Singh and the other material on record, it becomes clear that statement of Karnail Singh was not recorded on 22.9.1992 at about 9.30 p.m. but it was recorded sometime after the midnight and therefore it bears the date 23-9-1992. It was recorded during the same night and therefore Karnail Singh and the Officer recording the statement have mistakenly stated that it was recorded on 22-9-1992.
7. Karnail Singh has deposed that he had disclosed names of the assailants to the Police when his statement was recorded. The learned counsel submitted that Karnail Singh stood contradicted by his Police statement wherein he had not stated from which distance he had seen the two accused passing by him on the road. He had also not stated that he knew the names of the appellant because he was keeping pigeons and used to train them for performing acrobatics in sky. He had also not stated that he knew the appellant because he is having a workshop and the appellant used to come to his workshop for getting welding work done. Karnail Singh had given reasons in his examination in chief for his knowing the accused and no doubt they were not stated in his police statement but he was not contradicted on the point that he had in fact disclosed their names to the police. Therefore, the evidence of this witness that he had disclosed the names of the assailants to the police on that very night deserves to be accepted.
8. The evidence of both the eye witnesses does not suffer from any infirmity and is consistent with the evidence of PW-4 Karnail Singh. There is nothing on record to show that the eye witnesses and Karnail Singh had any reason to falsely involve the accused. The learned Designated Judge was, therefore, right in accepting their evidence.
9. It was then contended by the learned counsel for the appellant that even if the evidence of the three witnesses is believed, it does not constitute an offence punishable under Section 302 read with Section 34 of the I.P.C. so far as the appellant is concerned. Learned counsel submitted that in the case regarding possession of a fire arm by the appellant, he has been acquitted. But that by itself cannot lead to an inference that he did not have common intention with the other accused in respect of what they did on that night. In this behalf, learned counsel for the appellant drew our attention to the omission that PW-2 Basant Singh had not stated to the Police that accused Pal Singh had instigated Suba Singh to open fire on Mukhtiar Singh when he refused to part with his tractor. The evidence clearly establishes that both the accused had gone together to the house of Mukhtiar Singh. They had scaled the wall of the courtyard and gone inside his house. At that time Suba Singh was armed with a fire arm – an AK-56 rifle. They had gone there to take away the tractor of Mukhtiar Singh. When Mukhtiar Singh refused to give it Suba Singh fired a shot and killed him. Both the accused then started running away. This evidence clearly establishes presence and participation of the appellant in commission of the crime and sharing of common intention. We, therefore, hold that he has been rightly convicted for the offence punishable under Section 302 read with Section 34 IPC.
10. Learned counsel also made an attempt to convince us that conviction of the appellant under Sections 3 and 4 of the TADA is not sustainable. He submitted that the appellant’s acquittal in the case for possession of a firearm was sufficient to lead to an acquittal for the offences under the TADA Act also. This submission is misconceived because the appellant was tried in this case for an offence punishable under Section 5 of TADA. He has been convicted for committing a terrorist act. Once the evidence of PWs 2,3 and 4 is believed the conviction of the appellant under Sections 3 and 4 has to be upheld.
11. This appeal is, therefore, dismissed.