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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

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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.

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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.

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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

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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

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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;

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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

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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

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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

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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'

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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

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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.

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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

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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

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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

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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

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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

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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.

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