Order
1. The appellant, Anil Sanjeev Hegde, has directed this criminal appeal challenging the correctness and legality of the judgment and order dated August 8/9, 1989 made by the learned Judge of the Designated Court, Pune in Terrorists Sessions Case No. 3 of 1989 whereunder the appellant has been convicted under Section 3(2)(ii) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the ‘Act’) and sentenced to undergo the minimum sentence of five years' rigorous imprisonment. The trial court in the prefatory part of its judgment has made certain observations regarding the lack of evidence to substantiate the charge in its entirety. The said observation as appears in para 2 of the impugned judgment is reproduced hereunder:
“It is indisputed on behalf of the prosecution that there is no such evidence, which the prosecution could effect that the accused committed any terrorist act, with intent to adversely affect the harmony amongst different sections of the people by means of any weapon like dagger or sword. Therefore, the second part of the charge now stands not proved.”
2. On going through the charge and conclusion under challenge arrived at by the Designated Court, we are at a loss to find out as what the trial Judge has really meant by the above observation. In fact, none of the learned counsel appearing for the respective parties is also not in a position to explain that observation.
3. Be that as it may, we shall now discuss the evidence let in by the prosecution regarding the two incidents relied upon by the prosecution to make out a case within the ambit of Section 3 of the Act.
4. The prosecution has made an abortive and vain attempt to establish its case by examining PWs 2 to 10 of whom PWs 5 to 10 have resiled from their earlier statements and become hostile to the prosecution. The totality of the evidence relied upon covers two incidents which took place on September 12, 1987 and July 12, 1988. PWs 4 and 5 were examined to speak about the earlier incident which is alleged to have taken place on September 12, 1987. We shall first of all examine the veracity of these two witnesses and see whether their evidence inspires the confidence of this Court. The allegations in respect of this incident are that on September 26, 1987 at about 8.30 p.m while PWs 4 and 5 were sitting in a hotel by name “Silver Bowl”, the appellant came there accompanied by his associates and unleashed a threat by wielding his sword and abusing the witnesses in intemperate language. PWs 4 and 5 panicked and took to their heels. It is further alleged that at the exhortation of the appellant, his associates took PW 4 to a nearby petrol pump and gave him four blows with a sword. It is brought in evidence that PW 4 stated before the Investigating Officer that he was assaulted by the appellant alone but not by his associates which version is diametrically opposed to the one given before the Court on oath. There is absolutely no record to prove that PW 4 sustained any injury, if so, what kind of injury he sustained. Nothing has come in evidence as to whether any criminal case has been registered in respect of this incident. PW 4 has admitted in the cross-examination that he has been prosecuted for offences such as robbery, voluntarily causing hurt and so on. Even though PW 5 has been treated as a hostile witness as he has resiled from his earlier statement, the trial Judge placing reliance upon the judgment reported in Shankarlal v. State of M.P 1982 Cri LJ 254, 1981 MP LJ 736 has relied upon certain portion of the evidence of this hostile witness as corroborating PW 4's evidence. After going through the entire evidence and the judgment impugned, we are of the view that the prosecution has not at all established this incident, on the other hand, has miserably failed in its attempt.
5. The second incident as we have already stated, relates to the incident which is alleged to have taken place on July 12, 1988 in respect of which a case in Crime No. 203 of 1988 was registered. The allegations are that on July 12, 1988 at about 8.30 p.m, PW 3 was assaulted by the appellant and his associates, that when PW 2 intervened, he too was assaulted and that both PWs 2 and 3 were taken to Vallabnagar where they were belaboured with a dagger. PW 2 has admitted that he did not sign any statement at the police station in respect of this incident nor did he know as to what was written by the police officer in the chowki as he was taken to the Sasoon General Hospital for treatment. Further, he has admitted that he was assaulted in a place where there was darkness and that nobody could witness this incident on account of the pitch darkness. According to the investigating officer, no witness was available at the scene place to support the evidence of PW 2. It is surprising that this witness has not stated before the police officer that the appellant or his associate gave him 16 blows with a dagger.
6. In view of the above, self-contradictory evidence, we feel that no reliance — much less safe reliance — could be placed on the evidence of PW 2. Similarly, the evidence of PW 3 also suffers from the vice of inconsistencies and lacks confidence. He has deposed that he was attacked by 30 or 40 people but did not sustain any external injury and he did not inform this incident to anyone till he was examined on July 25, 1988. During the course of the argument, the learned senior counsel appearing for the appellant produced a copy of the judgment relating to this incident which was tried before the Court of Sessions, Pune in Sessions Case No. 4 of 1989 in which there were 10 accused persons inclusive of this appellant and which ultimately ended in acquittal. Of course, the judgment in the sessions case was rendered after the pronouncement of the judgment in the present case by the Designated Court.
7. On a careful examination of the impugned judgment, we find that the Judge of the Designated Court has rested his conclusion on conjectures and presumptions evidently drawing them from his fertile imagination. Further, when the evidence of the witnesses PWs 2 to 5 is meticulously and scrupulously examined and tested, we find the credibility of the testimony of these four witnesses is completely shaken, compelling us not to place any reliance on such evidence. In this connection, the learned senior counsel for the appellant placed reliance on the judgment of this Court reported in Niranjan Singh Punjabi v. Jitendra Bhimraj (1990) 4 SCC 76 in which this Court after extracting the observation made in Usmanbhai Dawodbhai v. State of Gujarat (1988) 2 SCC 271 has observed as follows:
“To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty-bound to show from the record of the case and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law.”
8. The learned counsel for the respondent State drew our attention to the preamble of the Act and the evidence of the investigating officer and submitted that the activities of the appellant would fall within the mischief of Section 3 of the Act and as such the judgment impugned need not be interfered with. We are unable to see any force in the submission of the learned counsel for the aforementioned reasons.
9. In fact, we are of the strong view that the evidence let in by the prosecution in proof of these two incidents is not only unreliable and untrustworthy but also do not make out any case constituting the necessary ingredients which would attract the invocation of Section 3 of the Act.
10. In the result, we set aside the conviction and sentence passed against the appellant by the Designated Court, and allow this appeal and acquit the appellant. The appeal is thus allowed. The appellant is directed to be set at liberty forthwith unless his detention is otherwise required for any other cause.