CONVICTION

(1) It is difficult to define terrorism in precise terms. Whether the criminal violent act was committed with an intent to strike terror in people or section of the people would always depend upon facts of each case. For finding out the intention of the accused, there would hardly be any case where there could be direct evidence. It is to be inferred from the manner and mode adopted while committing the act and its after-effect including fear psychosis. In appropriate cases, from the nature of violent act, inference can be culled out. There can also be no doubt that fallout of violent act varies from person to person and society to society but is well understood by a prudent person and by those who are affected.

(Paras 60 and 46)

From the circumstances in the present case, irresistible inference can be drawn that crime was committed to create terror and also to take revenge. Such act creates terror in the minds of the people or section of the people so that the targeted persons would succumb to the dictates or extortion because of fear for survival. In the present case, PSI who was on duty resigned from his job, suffered mental depression, spent sleepless nights and was worried about the safety of his family after a lapse of seven years of the incident. A retired army officer, who was on guard duty there at the time of the incident, deposing before the court appeared to be scared and started weeping in the witness box. Effect of fear psychosis also can be seen from the statement of the President of Bhiwandi Municipal Corporation (A-2) that he was compelled to use his official vehicle along with Police Constable for the movement of the accused. In such cases, the ground reality has to be accepted that it would hardly be possible to get evidence of eyewitnesses. There is no substance in the contention that the shoot-out at J.J Hospital was merely an act of gang rivalry. Shoot-out at J.J Hospital, which is a government hospital of 1500 beds in Mumbai, at midnight causing death of three persons and injuries to six others was, in the facts of the present case, nothing but an act of terrorism. Designated Judge has rightly tried and convicted the accused for the offences punishable under the TADA.

(Para 60)

Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47; State v. Nalini, (1999) 5 SCC 253 : 1999 SCC (Cri) 691; Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087; Girdhari Parmanand Vadhava v. State of Maharashtra, (1996) 11 SCC 179 : 1997 SCC (Cri) 159, distinguished

(2) Under Section 15 of the Act and the Rules, conditions for recording the confessional statement of a person by a police officer is required to be satisfied. If those conditions are complied with then the statement is admissible in evidence. It is a substantive evidence and it can be relied upon in the trial of such person or co-accused, abettor or conspirator for an offence punishable under the Act or the Rules. The police officer before recording the confession has to observe the requirement of sub-section (2) of Section 15. Irregularities here and there would not make such confessional statement inadmissible in evidence. If the legislature in its wisdom has provided after considering the situation prevailing in the society that such confessional statement can be used as evidence, it would not be just, reasonable and prudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not recorded truly by the officer concerned in whom faith is reposed. It is true that there may be some cases where the power is misused by the authority concerned. But such contention can be raised in almost all cases and it would be for the court to decide to what extent the said statement is to be used. Ideal goal may be: confessional statement is made by the accused as repentance for his crime, but for achieving such ideal goal, there must be altogether different atmosphere in the society. Hence, unless a foolproof method is evolved by the society or such atmosphere is created, there is no alternative, but to implement the law as it is.

(Paras 49 and 60)

Lal Singh v. State of Gujarat, (2001) 3 SCC 221 : 2001 SCC (Cri) 472; Wariyam Singh v. State of U.P, (1995) 6 SCC 458 : 1995 SCC (Cri) 1124; State v. Nalini, (1999) 5 SCC 253 : 1999 SCC (Cri) 691, relied on

Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899; S.N Dube v. N.B Bhoir, (2000) 2 SCC 254 : 2000 SCC (Cri) 343, cited

The contention that, because there was delay in sending the confessional statement to the Chief Judicial Magistrate and it was not sent forthwith as required under Rule 15 of the TADA Rules, it becomes doubtful and inadmissible in evidence, also requires to be rejected. As per Rule 15 what is mandatory is that the confessional statement should be forwarded to the Designated Court, which may take cognizance of the offence. Such violation of the Rule cannot be held to be incurable illegality.

(Para 50)

It is true that if the confessional statements are taken as they are, the accused can be convicted for the offences for which they are charged as the said statements are admissible in evidence and are substantive pieces of evidence. However, considering the facts of the case, particularly that the confessional statements were recorded by the police officer during investigation; the said statements were not sent to the Judicial Magistrate forthwith; and that after recording the statements, the accused were not sent to judicial custody, unless there is sufficient corroboration to the said statements, it is not safe to convict the accused solely on the basis of the confessions. In this case other evidence fully corroborates the confessional statements.

(Para 52)

It is not possible to accept the contention that considering the facts, A-2 cannot be held guilty for the offence punishable under Section 3(3) of the TADA as he had no knowledge that A-6 and the others were involved in the shoot-out at J.J Hospital and that in any set of circumstances, he was compelled and threatened by A-7 to help in moving out the other accused. From his confessional statement, it is apparent that he was not ignorant of the fact that A-7 was involved in criminal activities. It would also be difficult to hold that A-2 was not having any knowledge with regard to the fact that A-6 and others were involved in the shoot-out at J.J Hospital or that he was not assisting the said culprits.

(Paras 53 and 54)

(3) Though the incident of firing must have happened within a few minutes, but at the same time, according to PW 9 who was the Police Constable present in the room and was injured, he saw Accused 6 coming in the room thrice and firing indiscriminately and hence, there is no reason to doubt identification by him. Considering the nature of duty of a Police Constable, there is no reason to doubt his statement. On the facts of the case it would be difficult to hold that PW 9 has committed any error or mistake in identifying A-6.

(Paras 57 and 58)

Substantive evidence of a witness is his evidence in court. Identification parade is not primarily meant for the court but is meant for investigation purposes. It serves two purposes, namely, to enable the witness to satisfy that the prisoner whom he suspects is really the one who was seen by him in connection with the commission of the crime and for satisfying the investigating authority that the suspect is the real person whom the witness had seen in connection with the said occurrence. In case when the evidence is cogent, consistent and without any motive, it is no use to theoretically imagine that as the witness has seen the accused for a few minutes it would be difficult for him to identify. It always depends upon one's capacity to recapitulate what he has seen earlier. Power of perception and memorising differs from man to man and also depends upon the situation. Finally, appreciation of such evidence would depend upon the strength and trustworthiness of witnesses.

(Para 57)

Rameshwar Singh v. State of J&K, (1971) 2 SCC 715 : 1971 SCC (Cri) 638 : AIR 1972 SC 102; Suraj Pal v. State of Haryana, (1995) 2 SCC 64 : 1995 SCC (Cri) 313; Daya Singh v. State of Haryana, (2001) 3 SCC 468 : 2001 SCC (Cri) 553, relied on

(4) Sanction to prosecute under the TADA granted by the competent authority cannot be said to be in any way illegal or erroneous. For proving sanction, the prosecution relied upon the evidence of the Commissioner of Police concerned. He specifically stated that after necessary scrutiny of the papers, sanction to prosecute was granted. In a detailed cross-examination, he has clarified that he arrived at a definite conclusion for according sanction after perusing the papers and report of the Chief PP covering the legal aspects and the report of the Additional Commissioner of Police. He has also clarified that the incident was certainly designed to spread a wave of terror in the minds of the people by indiscriminate firing with lethal weapons in a place like the hospital. Sanction order also recites that relevant material was perused by him and thereafter he accorded sanction under Section 20-A(2) of the TADA for the offences committed by the accused under Sections 3(2), 3(3), 3(4), 3(5), 3(6), 5 and 6 of the TADA. The sanction order is exhaustive and relevant material is referred to. Hence, it cannot be said that there is any illegality or irregularity in granting sanction to prosecute the accused under the provisions of the TADA.

(Paras 60 and 59)

Hence the Designated Court was fully justified in convicting A-2, A-6 and A-7 and the same is upheld.

(Para 61)

SENTENCE

The submission that A-2 has undergone more than six years of imprisonment and considering the fact that he was required to send his cars for moving out the accused persons under threat, sentence may be reduced to the sentence already undergone does not merit any consideration. May be that A-2 is a political leader or that there may be some threat or compulsion in using his official vehicle for moving the accused from one place to another, but that would hardly be a ground for reducing the sentence. As a responsible citizen, he ought to have informed the police authorities concerned. It is not possible to accept the submission that when the police failed to give protection to the person who was in custody, it would be difficult to imagine that the police would have given such protection to him or could have saved him from the wrath of the gangsters. It is difficult to hold that the police would not have given necessary assistance to A-2 who was the President of Bhiwandi Municipal Corporation. The citizens are not supposed to help the criminals on the assumption that in case of need the police would not come to their rescue and should succumb to illegal demands of the gangsters.

(Para 62)

Considering the activities carried out by A-7 as confessed by him, it cannot be said that sentence imposed by the learned Judge is in any way excessive or discriminatory. From the role played by A-7, it is clear that he was vitally involved. At his instance, A-2 was compelled to bring the cars of Bhiwandi Nagarpalika, that too with the police guard, for giving treatment to the injured accused and for facilitating further to move from one place to another. Considering the overwhelming evidence against A-7, particularly the evidence of PW 26, the armed guard to A-2 and confessional statements, it cannot be said that learned Judge has committed any error in convicting A-7 and sentencing him to suffer RI for 10 years.

(Para 63)

Accused 6, who has confessed his involvement in the crime including the crimes committed by him previously, has specifically stated that he asked his companion to go back from the hospital without firing. He has not confessed that he had fired any shot during the incident. In this set of circumstances, even though it is held that it was an act of terrorism committed by the accused, this would not be a fit case for imposing death sentence. However, considering the confessional statement as a whole coupled with the other evidence and the terror created by the accused, the conviction is confirmed but the sentence is modified from death penalty to imprisonment for life — till rest of life. Considering the heinous act of terrorism and brutal murder of two Police Constables who were on duty to guard the deceased, even though it is held that this would not be a fit case for imposing death sentence, it is directed that the accused will not be entitled to any commutation or premature release under Section 433-A of the Criminal Procedure Code, Prisoners Act, Jail Manual or any other statute and the Rules made for the purpose of commutation and remissions..

(Paras 65 and 69)

Subash Chander v. Krishan Lal, (2001) 4 SCC 458 : 2001 SCC (Cri) 735; Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC 296 : 2001 SCC (Cri) 1095; Bhagirath v. Delhi Admn., (1985) 2 SCC 580 : 1985 SCC (Cri) 280; Zahid Hussein v. State of W.B, (2001) 3 SCC 750 : 2001 SCC (Cri) 631, relied on

State of M.P v. Ratan Singh, (1976) 3 SCC 470 : 1976 SCC (Cri) 428; Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 3 SCR 440 : (1961) 1 Cri LJ 736; Pandit Kishori Lal v. King Emperor, (1944) 72 IA 1 : AIR 1945 PC 64; Sohan Lal v. Asha Ram, (1981) 1 SCC 106, cited

R-M/ATZ/24708.SR