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CASE NO.:

Appeal (crl.) 734 of 2003

PETITIONER:

Nazir Khan and Ors.

RESPONDENT:

Vs.

State of Delhi

DATE OF JUDGMENT: 22/08/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

With

Death Reference No.(Crl.) No.1 of 2003

AND

CRIMINAL APPEAL NO.......(D.14990/2002)

ARIJIT PASAYAT,J

Terrorists have no religion, no concept of communal or social

harmony and value for human life. Secularism, which is one of the

greats attributes of the Indian Constitution, is viewed differently

by some people. Communal harmony is not what they want. 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 or realise the amount of damage they do

to the society and as a result of these fanatic acts of misguided

people innocent lives are lost, distrust in the minds of communities

replaces love and affection for others. Neighbours belonging to

different communities who have lived like brothers for ages start

viewing each other with suspicion and hatred. Their compassion is first

replaced by a sense of diabolic designs. The object of these misguided

people- the terrorists - seems to be to spread a message of terror and

strike fear in the hearts of the citizens. The present case amply

reflects the designs of some people to perpetrate such acts. The temple

of democracy in the country - the Parliament - did not also escape the

wrath of such people. Whoever did it, wanted to disturb the equilibrium

in the minds of the citizens. The millions of peace loving citizens in

the country are threatened to be put on a ransom by a group of people.

The background scenario with which the case at hand is concerned

reveals the macabre designs of a group of such people. The Kingpin of

the whole case is a person called Ahmed Umar Sayeed Sheikh (described

shortly as 'Umar Sheikh') a British national and trained militant who

allegedly received training in Afghanistan and other places.

Prosecution version as unfolded during trial which led to

conviction of the present appellants for offences punishable under

Sections 364A, 121A, 122, 124A read with Section 120B of the Indian

Penal Code, 1860 (for short the 'IPC') and Sections 3 and 4 of the

Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short

the 'TADA Act'), and Section 14 of the Foreigners Act, 1946 (in short

'Foreigners Act') is as under:

There were originally 9 accused persons who were tried in the

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Sessions Case No.43/2001 by the learned Designated Court, TADA, New

Delhi. Along with the accused appellants three other persons faced

trial. Two of them namely, Haji Shamin and Mohd. Yamin have been

acquitted. Interestingly, before completion of trial, Umar Sheikh was

allowed to leave the country along with other militants in exchange of

passengers who had been made hostages in Indian Air Lines hijacked

flight AI-814. . In other words, the mastermind of the whole conspiracy

with which the present case is involved escaped nets of law. The

legitimacy of such action is not the subject matter of consideration in

these cases, though it has raised many eyebrows. Interestingly this

plea was raised by the appellants who submitted that they have become

victims of unintended circumstance, while the mastermind and kingpin

has gone out mocking of the security network in the country, and they

are facing the blunt. This case does not seek to find out an answer to

such questions and therefore we are not dealing with them.

Nazir Khan (A-1), Abdul Rahim (A-3) and Naser Mohmood Sodozey (A-

8) who were Pakistani nationals have been convicted and sentenced to

suffer death sentence for offence punishable under Section 364A IPC

read with Section 120B IPC. For the said offences, Narul Amin (A-2),

Mohd. Sayeed (A-4) and Mohmood (A-7) have been awarded life sentence.

All the accused appellants were subjected to a fine of Rs.50,000/- each

under Section 364A IPC and in default to undergo RI for three years

each. All the accused persons were sentenced under Section 120B read

with Sections 364, and 364A IPC to life imprisonment and each one of

them was sentenced for the offence under Sections 121A, 122 and 124A

IPC and also to pay a fine of Rs.10,000/- each. A-1, A-3 and A-8 were

sentenced to death under Section 3(2)(1) of the TADA Act and a fine of

Rs.50,0000/- each. For the said offence, others were convicted and

sentenced to life imprisonment and a fine of Rs.50,000/- each. A-2 and

A-7 were sentenced to 10 years imprisonment for harbouring and

concealing the terrorists under Section 3(4) of the TADA Act. All the

six accused persons were found guilty for the offence punishable under

Sections 3(1) and 3(5) of the TADA Act. Nazir Khan (A-1) and Naser

Mohmood Sodozey (A-8) were also convicted under Section 14 of the

Foreigners Act for having entered India without valid permission and

valid documents. They were each to undergo 5 years rigorous

imprisonment and a fine of Rs.25,000/-each. Since the death sentence

awarded to the three accused appellants is subject to confirmation by

this Court, Death Reference No.1 of 2003 has been made to this Court.

To continue the narration of facts as presented by the

prosecution, Umar Sheikh visited several places in Pakistan and met

Abdul Rauf and other militants associated with Harkat-ul-Mujahiddin (in

short 'HUM'). He came in contact with other militant organizations like

Jamet-e-Islamic and Al-e-Hadees. He was given a mission to perpetrate

terrorist activities in India. He obtained visa for India and was

given instructions to reach India and contact other militants. He was

advised to organize kidnapping of foreign nationals visiting India and

to pressurize Indian Government to release some dreaded militants

confined in jails of India. He met some people in Islamabad to get

instructions. He came to Delhi in 1994. He was apprised of the militant

network already working and was asked to contact Mohmood (A-7) a

Mauzzin of Jama Masjid, Delhi who was to introduce another militant

named Farooque. He went to Jama Masjid to meet Farooque. He met one

Yusuf @ Sultan @ Mehboob at Jama Masjid and was told that one Shahji

was the main architect of the entire operation.

Umar Sheikh was put up in a hotel named Ishak Guest House in Jama

Masjid Area on 27th July, 1994. Thereafter, he was contacted by other

militants and he moved about in Delhi, Ghaziabad, Saharanpur etc. A

number of hide outs were prepared in these areas by either purchasing

properties or by taking rooms on rent. Some of these hide outs were in

Nizamuddin, Sarai Kale Khan, Jama Masjid area, Suaiwalan area, Turkman

Gate area of Delhi. Some other hideouts were at Ghaziabad and

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Saharanpur. Shahji arranged arms, ammunition and money. Since Umar

Sheikh was London born and had studied there, his accent and command of

English were used to develop contacts with and seek friendship with

different foreigners, who were to be subsequently kidnapped. He did so

on three occasions i.e. 29.9.1994, 16.10.1994 and 20.10.1994. A Maruti

Van bearing registration No. DID 9016 was purchased from Karol Bagh by

Abdul Rahim (A-3). British and American nationals were taken to the

hideouts and were kept as hostages. However, on one occasion one

foreign national managed to escape. After these nationals were

kidnapped they were told that they have been taken as hostages and that

they would face death if they try to escape. The hideouts were at

Saharanpur, Ghaziabad where these persons were kept confined. It was a

stroke of good luck that while on a routine check around in Ghaziabad,

police officials became suspicious and struck gold while trying to find

out as to why a person was suspiciously running away when asked to

stop. After kidnapping the four nationals their photographs were taken

by the militants and along with the photographs demand letters were

sent to British Embassy and American Embassy, and to various news

agencies (in India and abroad), newspapers and the demand was that the

Government of India should release 10 hard core terrorists from jails.

Copies of the demands were faxed to President, Prime Minister and other

dignitaries. Three days' time was given for meeting the demands and the

threat was given that in case the demands were not met, the kidnapped

foreigners would be killed. As indicated above, it was just a fortunate

and providential co-incidence that led the revelation of the

conspiracy hatched. On 31.10.1994 a police party headed by Station

Officer, Satya Dev Yadav of Police Station, Mussourie near Ghaziabad,

had gone to Nai Basti, Mussourie in connection with the investigation

of a theft case. Since they found a person running suspiciously they

entered the house from which the person had jumped out and ran away.

They found the door bolted from inside and when nobody responded, they

broke open the door and entered the house. An American national was

found chained inside the room with a spike. He was unchained and

released and on enquiry he disclosed how he had been abducted from

Delhi. From there he was brought to the police station. His statement

was recorded and FIR under different provisions of IPC and TADA Act was

recorded. On the basis of his information, police officials were posted

near the house from where he had been rescued expecting that some

members of the militants organizations may visit the place being

unaware of the police action. Constables Sompal and Jagpal Singh saw

three persons approaching the house of Sufi Anwar where the captive

was held. When they came near the house, constables challenged them

and the three persons attacked the constables by raising slogans and

they wanted to kill the constables. One of the constables was assaulted

by two of them, while another constable was over-powered by the third

terrorist. One of the terrorists fired at the constable concerned. Two

of the terrorists fled away after firing and the third one was arrested

after he suffered a bullet injury. He was the main architect of the

entire operation i.e. Umar Sheikh. Another case was registered and the

police became suspicious that what they have found out is the tip of

the iceberg and laid trap. Ultimately, the Maruti van DID 9016 was

found in the possession of Abdul Rahim (A-3) and Mohd. Sayeed (A-4).

The police had become aware of vehicle's number during interrogation of

Umar Sheikh. The van was surrounded while it was being driven by Mohd.

Sayeed (A-4). He tried to run away while police officials tried to

apprehend him. However, the van was stopped and accused persons were

apprehended. On interrogation, all the accused persons claimed to be

the members of Harkut-ul-Ansar (in short 'HUA') a terrorist

organisation. During interrogation police learnt about kidnapping and

abduction of three British nationals who were kept as hostages in a

house at Saharanpur. Immediately, action was taken and the house where

the three British nationals were confined was surrounded. By throwing

bombs and taking advantage of the darkness some of the terrorists

managed to escape, but one of the terrorists was killed in an

encounter. Unfortunately, two police officials sacrificed their lives

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while trying to combat with the terrorists. The three British

nationals were abducted from Connaught Place in Delhi and were found to

be chained when they were rescued. They were brought to Delhi. Arms and

ammunitions of huge quantity were seized from the house where they were

confined. The Police swung into action. On interrogation, the details

of hide outs were found out and on raiding them huge quantity of arms

and ammunitions including AK-47 rifle were seized. The names of the two

persons involved in the operation i.e. Mohmood @Ayub (A-7) and Nasar

Mohmood (A-8) surfaced during investigation. Rest were declared

proclaimed offenders as they could not be arrested in spite of best

efforts. However, three of the proclaimed offenders were later

arrested. A-2 was arrested by Assam Police while A-7 was arrested by

Jammu and Kashmir Police and A-8 was arrested by Srinagar Police.

During investigation, it came to light that not only the effort was of

kidnapping the foreigners who had already kept as hostages, but

intention was to kidnap many more so that greater pressure can be used

for getting release of 10 hard core terrorists who were the members of

HUA.

Since accused Umar Sheikh was released from Tihar Jail along

with other militants no charge was framed against him but charges were

framed against rest of the accused persons under various provisions.

During investigation, the statements of the accused persons were

recorded in terms of Section 15 of the TADA Act. Though statements of

foreign nationals had been recorded under Section 164 of the Code of

Criminal Procedure, 1973 (for short the 'Code') it was not possible to

secure their presence as they had left India and gone back to their

respective countries. They did not choose to come to India. However,

placing reliance on the prosecution version substantiated to a great

extent by the confessional statements recorded under Section 15 of the

TADA Act, and amongst other corroboration provided by recoveries of

arms and ammunitions, the accused appellants were found guilty and

sentenced as afore-mentioned.

In support of the appeal filed by the accused appellants, Mr.

M.N. Krishnamani, learned senior counsel submitted that use of the

statements recorded under Section 15 of the TADA Act was impermissible

as the statements cannot be called voluntary statements, free from any

coercion or threat or undue influence. It was further submitted that

even if the confessional statements are taken into account, they do not

in any manner establish offences for which the accused appellants have

been convicted. Accepting the prosecution version, based on the

confessional statements, A-1 can at the most be said to have been

involved in kidnapping but he never threatened to kill the captive.

Similarly, so far as A-2 is concerned, he was involved in the

kidnapping as he was not aware of it when it was done. So he was not

involved in the conspiracy. Though A-3 can be said to be a part of the

conspiracy and kidnapping, there was no material to fasten A-4 who is

only a driver of the vehicle with any offence. At the most, he can be

guilty of not disclosing the factum of kidnapping under Section 368 IPC

and, therefore, there was no scope for applying Section 120B along with

other provisions to convict the said accused appellant. A-7 was not

aware of the conspiracy and was not involved in any kidnapping. A-8 at

the most can be guilty of conspiracy and nothing else. In any event,

the confessional statements would not entail conviction under Section

364A read with Section 120B IPC. The confessional statements in their

entirety may come to the extent of sharing that A-1 and A-3 were

involved in conspiracy and kidnapping while others were not so

involved. In any event, Umar Sheikh was the person who is stated to be

head of the whole mission, and the present appellants cannot be held to

be guilty. The ingredients of Section 3(2)(i), it was submitted are

non-existent and therefore the conviction under these provisions is

unfounded. All the accused are small pawn in a big plot and do not

deserve the harsh sentence imposed. More so when some of the accused

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have been given life sentence for similar offences, no differential

treatment to award death sentence in case of three can be countenanced.

The alleged kidnapped persons have not appeared as witnesses and

statements made by them during investigation cannot be utilized.

Rebutting the submissions, Mr. K.K. Sood, learned Additional

Solicitor General submitted that the evidence, materials and

circumstances are sufficient to establish involvement of each of the

accused. There has been no retraction from the confessional statements,

the procedural requirements have been meticulously followed, the

statements were voluntary and at no point of time any objection was

made relating to recording of the confessional statements. The

recoveries of arms and ammunitions provide ample substantiation to the

confessions made. Even though in law there is no requirement for any

corroboration, there is ample corroboration in the case at hand. There

is no question of segregating the acts so far as offence of criminal

conspiracy is concerned. Even if a person withdraws after participating

in a conspiracy for some time, that does not dilute the factum of

conspiracy. With reference to the definition of criminal conspiracy in

Section 120A in particular in Explanation appended to the main

provision, it is submitted that whether the illegal act is the ultimate

object of such agreement or is merely incidental to that object is

immaterial. The offence is made under the illustration appended to

Section 10 of the Indian Evidence Act, 1872 (in short the 'Evidence

Act') and even if all the conspirators are ignorant of all the

decisions and are strangers, that is really of no consequence. The

object and purpose of the conspiracy was clear and the manner of

organizing the activities to achieve the ultimate objective has been

amply established. Merely because the persons who were kidnapped have

not appeared at trial to give evidence on account of unavoidable

circumstances that does not weaken the quality/quantity of evidence

placed on record. The position where they were placed certainly would

have left a bad taste in the mouth, and no adverse inference can be

drawn because of their non-appearance due to their leaving for their

homes.

The rival stands need careful consideration.

In Hitendra Vishnu Thakur and Ors. vs. State of Maharashtra and

Ors. (1994 (4) SCC 602), this Court observed that:

"the 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 coercive 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

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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 agreed-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, a

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, terrorism 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 crimes - 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 of War

Crime

4. Academic Consensus Definition:

"Terrorism is an anxiety-inspiring of repeated

violent action, employed by (semi-) clandestine

individual, group or state actors, for

idiosyncratic, criminal or political reasons,

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

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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 propaganda 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 of uniform

and universal application. 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. -

Brian 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 government,

individuals or groups, or to modify their

behavior or politics. - 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.

- FBI Definition

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

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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 the discretion of the Court.

The essence of the offence of conspiracy is the

fact of combination by agreement. The agreement

may be express or implied, or in part express

and in part implied. The conspiracy arises and

the offence is committed as soon as the

agreement is made; and the offence continues to

be committed so long as the combination

persists, that is until the conspiratorial

agreement is terminated by completion of its

performance or by abandonment or frustration or

however, it may be. The actus rues in a

conspiracy is the agreement to execute the

illegal conduct, not the execution of it. It is

not enough that two or more persons pursued the

same unlawful object at the same time or in the

same place; it is necessary to show a meeting

of minds, a consensus to effect an unlawful

purpose. It is not, however, necessary that

each conspirator should have been in

communication with every other."

There is no difference between the mode of proof of the offence

of conspiracy and that of any other offence, it can be established by

direct or circumstantial evidence. (See: Bhagwan Swarup Lal Bishan Lal

etc.etc vs. State of Maharashtra [AIR 1965 SC 682 at p.686])

Privacy and secrecy are more characteristics of a 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 inciting

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-

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"The question arose in an lowa case, but it was

discussed in terms of conspiracy rather than 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. D 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 ER 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 noted above, the essential ingredient of the offence of

criminal conspiracy is the agreement to commit an offence. In a case

where the agreement is for accomplishment of an act which by itself

constitutes an offence, then in that event no overt act is necessary to

be proved by the prosecution because in such a situation, criminal

conspiracy is established by proving such an agreement. Where the

conspiracy alleged is with regard to commission of a serious crime of

the nature as contemplated in Section 120B read with the proviso to

sub-section (2) of Section 120A, 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 120B 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 a party to the conspiracy must do some

overt act towards the fulfillment of the object of conspiracy, 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 120B [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

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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 of 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, it would not be necessary

for the prosecution 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 [JT 1996 (4) SC

615])

We may usefully refer to Ajay Agarwal vs. Union of India and Ors.

(JT 1993 (3) SC 203). It was held:

x x x x x x

"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 the conspiracy. Conspiracy is

conceived as having three elements: (1)

agreement; (2) between two or more persons by

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whom the agreement is effected; and (3) a

criminal object, which may be either the

ultimate aim of the agreement, or may

constitute the means, or one of the means by

which that aim is to be accomplished. It is

immaterial whether this is found in the

ultimate objects. The common law definition of

'criminal conspiracy' was stated first by Lord

Denman in Jones' case that an indictment for

conspiracy must "charge a conspiracy to do an

unlawful act by unlawful means" and was

elaborated by Willies, J. on behalf of the

judges while referring the question to the

House of Lords in Mulcahy v. Reg and House of

Lords in unanimous decision reiterated in Quinn

v. Leathem:

'A conspiracy consists not merely in the

intention of two or more, but in the agreement

of two or more, to do an unlawful act, or to do

a lawful act by unlawful means. So long as

such a design rest in intention only, it is not

indictable. When two agree to carry it into

effect, the very plot is an act in itself, and

the act of each of the parties, promise against

promise, actus contra actum, capable of being

enforced, if lawful; punishable of for a

criminal object, or for the use of criminal

means.'

This 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 Indian 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) 4 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

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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."

The main plea of the accused-appellant is that there was no

corroboration to the alleged confessional statement.

Various circumstances, according to him, clearly show that

it was not voluntary. Strong reliance is placed on State v.

Nalini (1999 (5) SCC 253) to contend that corroboration is

necessary. It is to be noted that the legislature has set

different standards of admissibility of a confessional

statement made by an accused under TADA Act from those made

in other criminal proceedings. A confessional statement

recorded by a police officer not below the rank of

Superintendent of Police under Section 15 of TADA Act is

admissible, while it is not so admissible unless made to

the Magistrate under Section 25 of the Evidence Act. It

appears, consideration of a confessional statement of an

accused to a police officer except to the extent permitted

under Section 27 of the Evidence Act is not permissible.

These aspects are noted by this Court in Sahib Singh v.

State of Haryana (1997 (7) SCC 231) and Gurdeep Singh v.

State (Delhi Admn.) (2000 (1) SCC 498). There is one common

feature, both in Section 15 of TADA Act and Section 24 of

the Evidence Act that the confession has to be voluntary.

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. Section 15 of

TADA Act also requires the confession to be voluntary.

Voluntary means that one who makes it out of his own free

will inspired by the sound of his own conscience to speak

nothing but the truth. As per Stroud's Judicial Dictionary,

5th Edn., at p.2633 threat means:

"It is the essence of a threat that it be made

for the purpose of intimidating, or overcoming, the

will of the person to whom it is addressed (per Lush,

J, Wood v. Bowron (1866) 2 QB 21) cited intimidate."

Words and Phrases, permanent edition, Vol.44, p. 622 defines

'voluntary' as:

'Voluntary' means a statement made of the free

will and accord of accused, 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 lown

10)".

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In Words and Phrases by John B. Saunders 3rd edition, vol.4, p.401,

'voluntary' is defined as:

".....the classic statement of the principle

is that of Lord Sumner in Ibrahim 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" 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) 3 All

ER 433) ( at pp.454, 455)] per Cantley, V."

So the crux of making a statement voluntarily is, what is

intentional, intended, unimpelled by other influences,

acting on one's own will, through his own conscience. Such

confessional statements are made mostly out of a thirst to

speak the truth which at a given time predominates in the

heart of the confessor which impels him to speak out the

truth. Internal compulsion of the conscience to speak out

the truth normally emerges when one is in despondency or in

a perilous situation when he wants to shed his cloak of

guilt and nothing but disclosing the truth would dawn on

him. It sometimes becomes so powerful that he is ready to

face all consequences for clearing his heart.

As was observed in Nalini's case (supra) TADA Act

was enacted to meet any extraordinary situation existing in

the country. Its departure from the law relating to

confession as contained in the Evidence Act is deliberate.

Section 24 of the Evidence Act deals with confession caused

by inducements, threat or promise, which is irrelevant in

criminal proceedings. The expression 'confession' has not

been defined in the Evidence Act. Broadly speaking, it is

an admission made at any time by a person charged with

crime, stating or suggesting the inference that he

committed that crime. Law relating to confessions is to be

found generally in Sections 24 to 30 of the Evidence Act

and Sections 162 and 164 of the Code of Criminal Procedure,

1898 (for short 'the old Code') corresponding to identical

provisions of the Code. Confession is a species of

admission. A confession or admission is evidence against

its maker, if its admissibility is not excluded by some

provision of law. Law is clear that a confession cannot be

used against an accused person unless the Court is

satisfied that it was voluntary. At that stage, the

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question whether it is true or false does not arise. If the

facts and circumstances surrounding the making of a

confession appear to cast a doubt on the voluntariness of

the confession, the court may refuse to act upon the

confession, even if it is admissible in evidence. The

question whether a confession is voluntary or not is always

a question of fact. A free and voluntary confession is

deserving of highest credit, because it is presumed to flow

from the highest sense of guilt. In Principle and Digest of

Law of Evidence, Vol.I, New Edn. By Chief Justice M. Monir,

after noticing conflicting views and discussing various

authorities, the learned author summarized the position as

follows:

"The rule may therefore, be stated to be that

whereas the evidence in proof of a confession

having been made is always to be suspected, the

confession, if once proved to have been made

and made voluntarily, is one of the most

effectual proofs in the law."

As was noted in Gurdeep Singh's case (supra) whenever an accused

challenges that his confessional statement is not voluntary, the

initial burden is on the prosecution for it has to prove that all

requirements under Section 15 of TADA Act and Rule 15 of the TADA Rules

have been complied with. Once this is done the prosecution discharges

its burden and then it is for the accused to show and satisfy the Court

that the confessional statement was not made voluntarily. The

confessional statement of the accused can be relied upon for the

purpose of conviction, and no further corroboration is necessary if it

relates to the accused himself. It has to be noted that in Nalini's

case (supra) by majority it was held that as a matter of prudence the

Court may look for some corroboration if confession is to be used

against a co-accused though that will be again within the sphere of

appraisal of evidence. The following observations in Jayawant Dattatray

Suryarao v. State of Maharashtra (2001 (10) SCC 109) are relevant:

"60 (2): Confessional statement before the police

officer under Section 15 of the TADA Act is

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 it 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

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by the society or such atmosphere is created, there

is no alternative, but to implement the law as it

is."

Aforesaid aspects have been highlighted in Devender Pal Singh v.

State of NCT of Delhi and Anr. (2002 (5) SCC 234) and Mohd. Khalid v.

State of West Bengal (2002 (7) SCC 334).

Applying the principles which can be culled out from the

principles set out above to the factual scenario, the inevitable

conclusion is that the trial Court was justified in its conclusions by

holding the accused appellants guilty. When an accused is a participant

in a big game planned, he cannot took the advantage of being ignorant

about the finer details applied to give effect to the conspiracy

hatched, for example, A-7 is stated to be ignorant of the conspiracy

and the kidnapping. But the factual scenario described by the co-

accused in the statements recorded under Section 15 of the TADA Act

shows his deep involvement in the meticulous planning done by Umar

Sheikh. He organized all the activities for making arrangements for the

accused and other terrorists.

Confessional statement of A-2 shows how he got acquainted with

bigger players like Shahji and Mohmood @Ayub (A-7) and others who used

to visit Farooque. His presence when Umar Sheikh showed photographs of

Americans kidnapped has also been established by confessional

statement. The officials who were of the requisite rank recorded the

confessional statements after meticulously following the procedural

requirements of the Tada Act and Terrorist and Disruptive Activities

(Prevention) Rules, 1987 (in short the 'TADA Rules'). Though a faint

attempt was made to say that the statement was not voluntary, the fact

that there was no retraction at any point of time and particularly,

when they were brought before the concerned Magistrate for confirmation

of the fact that the statement had been recorded by the police

officials, the stand appears to be afterthought. The object and the

purpose for which the conspiracy was hatched is clear from the fact

that messages were sent to Embassies, government officials, high

dignitaries and the medias indicating the nature of the ransom, and the

consequences if demanded ransom was not fulfilled. The circumstances

clearly show the role played by each of the accused in the conspiracy.

It was submitted that the activities cannot be treated as an offence

against the State. Chapter VI of IPC relates to offence of the State.

The Trial Court has convicted the accused under Sections 121A,

122 and 124 IPC. For convicting the accused persons under the aforesaid

provisions, the trial Court has relied on the fact that the accused

persons were trying to overawe the Government of India by criminal

force and to bring out hatred and contempt in the people of India and

to arouse dissatisfaction in a section of people in India against the

Government of India established by laws and collected materials and

arms for the aforesaid offences.

The line dividing preaching disaffection towards the Government

and legitimate political activity in a democratic set up cannot be

neatly drawn. Where legitimate political criticism of the Government in

power ends and disaffection begins, cannot be ascertained with

precision. The demarcating line is thin and wavy.

The Indian Law Commissioners in their Second Report dated

24.6.1847 had observed We conceive the term "wages war against the

Government" naturally to import a person arraying himself in defiance

of the Government in like manner and by like means as a foreign enemy

would do, and it seems to us, we presume it did to the authors of the

Code that any definition of the term so unambiguous would be

superfluous". Mere collection of men, arms and ammunitions does not

amount to waging war.

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There is a difference, says Foster: (3 Crown cases, pp.208, 209

and 210) "between those insurrections which have carried the appearance

of an army formed under leaders, and provided with military weapons,

and with drums, colours, etc., and those other disorderly tumultuous

assemblies which have been drawn together and conducted to purposes

manifestly unlawful, but without any of the ordinary shew and apparatus

of war before mentioned.

"I do not think any great stress can be laid on that distinction.

It is true, that in case of levying war the indictments generally

charge, that the defendants were armed and arrayed in a warlike manner;

and, where the case would admit of it, the other circumstances of

swords, guns, drums, colours etc., have been added. But I think the

merits of the case have never turned singly on any of these

circumstances".

"In the cases of Damaree and Purchase,...there was nothing giving

in evidence of the usual pageantry of war, no military weapons, no

banners or drums, nor any regular consultation previous to the rising;

and yet the want of these circumstances weighed nothing with the Court,

though the prisoners' counsel insisted much on that matter. The number

of the insurgents supplied the want of military weapons; and they were

provided with axes, crows, and other tools of the like nature, proper

for the mischief they intended to effect....

"The true criterion, therefore, in all these cases is, Quo animo

did the parties assemble? For if the assembly be upon account of some

private quarrel, or to take revenge on particular persons, the statute

of treasons hath already determined that point in favour of the

subject....

"Upon the same principle and within the reason and equity of the

statute, risings to maintain a private claim of right, or to destroy

particular inclosures, or to remove nuisance, which affected or were

thought to affect in point of interest the parties assembled for these

purposes, or to break prisons in order to release particular persons

without any other circumstances of aggravation, have not been holden to

amount to levying war within the statute."

It is the fundamental right of every citizen to have his own

political theories and ideas and to propagate them and work for their

establishment so long as he does not seek to do so by force and

violence or contravene any provision of law. Thus where the pledge of

a Society amounted only to an undertaking to propagate the political

faith that capitalism and private ownership are dangerous to the

advancement of society and work to bring about the end of capitalism

and private ownership and the establishment of a socialist State for

which others are already working under the lead of the working classes,

it was held that it was open to the members of the Society to achieve

these objects by all peaceful means, ceaselessly fighting public

opinion that might be against them and opposing those who desired the

continuance of the existing order of society and the present

Government; that it would also be legitimate to presume that they

desired a change in the existing Government so that they could carry

out their programme and policy; that the mere use of the words 'fight'

and 'war' in their pledge did not necessarily mean that the Society

planned to achieve its object by force and violence.

1. About the expression 'Whoever' - the Law Commissioners say: (2nd

Report: Section 13) "The laws of a particular nation or country cannot

be applied to any persons but such as owe allegiance to the Government

of the country, which allegiance is either perpetual, as in the case of

a subject by birth or naturalization, &c., or temporary, as in the case

of a foreigner residing in the country. They are applicable of course

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to all such as thus owe allegiance to the Government, whether as

subjects or foreigners, excepting as excepted by reservations or

limitations which are parts of the laws in question.

2. Regarding 'Wage war' according to the Law Commissioners - These

words "seems naturally to import a levying of war by one who throwing

off the duty of allegiance arrays himself in open defiance of his

Sovereign in like manner and by the like means as a foreign enemy would

do, having gained footing within the realm. There must be an

insurrection, there must be force accompanying that insurrection, and

it must be for an object of a general nature.

The expression "waging war" means and can only mean waging war in

the manner usual in war. In other words, in order to support a

conviction on such a charge it is not enough to show that the persons

charged have contrived to obtain possession of an armoury and have,

when called upon to surrender it, used the rifles and ammunition so

obtained against the Government troops. It must also be shown that the

seizure of the armoury was part and parcel of a planned operation and

that their intention in resisting the troops of the Government was to

overwhelm and defeat these troops and then to go on and crush any

further opposition with which they might meet until either the leaders

of the movement succeeded in obtaining the possession of the machinery

of Government or until those in possession of it yielded to the demands

of their leaders.

The word "wages" has the same meaning as "levying" used in the

English statute. In Lord George Gorden's case (1784) 21 St Tr 485,

644, Lord Mansfield said: "There are two kinds of levying war :- one

against the person of the king; to imprison, to dethrone, or to kill

him; or to make him change measures, or remove counsellors : - the

other, which is said to be levied against the majesty of the king, or,

in other words, against him in his regal capacity; as when a multitude

rise and assemble to attain by force and violence any object of a

general public nature; that is levying war against the majesty of the

king; and most reasonably so held, because it tends to dissolve all the

bonds of society, to destroy property, and to overturn government; and

by force or arms, to restrain the king from reigning according to law."

An assembly armed and arrayed in a warlike manner for any

treasonable purpose is bellum levatum, though not bellum percussum.

Lifting and marching are sufficient overt acts without coming to a

battle or action.

"No amount of violence, however great, and with whatever

circumstances of a warlike kind it may be attended, will make an attack

by one subject on another high treason. On the other hand, any amount

of violence, however insignificant, directed against the King will be

high treason, and as soon as violence has any political objects, it is

impossible to say that it is not directed against the king, in the

sense of being armed opposition to the lawful exercise of his power.

Where the object of a mob is not mere resistance to a District

Magistrate but the total subversion of the British power and the

establishment of the Khilafat Government, a person forming part of it

and taking part in its actions is guilty of waging war. When a

multitude rises and assembles to attain by force and violence any

object of a general public nature, it amounts to levying war against

the Government. It is not the number of the force, but the purpose and

intention, that constitute the offence and distinguish it from riot or

any other rising for a private purpose. The law knows no distinction

between principal and accessory, and all who take part in the

treasonable act incur the same guilt. In rebellion cases it frequently

happens that few are let into the real design, yet all that join in it

are guilty of the rebellion. A deliberate and organized attack upon

the Government forces would amount to a waging war if the object of the

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insurgents was by armed force and violence to overcome the servants of

the Government and thereby to prevent the general collection of the

capitation-tax". (See Aung Hia's Case (1931) 9 Rangoon page 404)

"There is a diversity between levying of war and committing of a

great riot, a rout, or an unlawful assembly. For example, as if three,

or four, or more, do rise to burn, or put down an inclosure in Dale,

which the lord of the manor of Dale hath made there in the particular

place; this or the like is a riot, a rout or an unlawful assembly, and

no treason. But if they had risen of purpose to alter religion

established within the realm, or laws, or to go from town to town

generally, and to cast down inclosures, this is a levying of war

(though there be great number of the conspirators) within the purview

of this statute, because the pretence is public and general, and not

private and particular". (See Cokes' Inst. Ch.1, 9)

Section 124A deals with 'Sedition'. Sedition is a crime against

society nearly allied to that of treason, and it frequently precedes

treason by a short interval. Sedition in itself is a comprehensive

term, and it embraces all those practices, whether by word, deed, or

writing, which are calculated to disturb the tranquility of the State,

and lead ignorant persons to endeavour to subvert the Government and

laws of the country. The objects of sedition generally are to induce

discontent and insurrection, and stir up opposition to the Government,

and bring the administration of justice into contempt; and the very

tendency of sedition is to incite the people to insurrection and

rebellion. "Sedition has been described as disloyalty in action, and

the law considers as sedition all those practices which have for their

object to excite discontent or dissatisfaction, to create public

disturbance, or to lead to civil war; to bring into hatred or contempt

the Sovereign or the Government, the laws or constitutions of the

realm, and generally all endeavours to promote public disorder.

In the aforesaid analysis, the offences punishable under Sections

121A, 122, 124A are clearly established and sufficiently and properly

stand substantiated, on the overwhelming materials available on record.

In order to bring the offences within the parameters of Section

3(2)(i) of TADA Act, the death sentence is permissible to be imposed

when the act has resulted in the death of any person. Under Clause (ii)

of sub-section (2) of Section 3, in any other case, the maximum

sentence is imprisonment for life. In the case at hand except the

killing of two police officials, no other death has resulted. The

ransom letters and the threats had not resulted in any death. Further,

the direct involvement of the present accused appellants in the killing

of the two police officials has not been established by cogent

evidence. There is no evidence that any of the accused was directly or

indirectly involved in the killings. The deaths occurred when police

surrounded the hideout and some terrorists wanted to escape. It is not

the case of the prosecution that the accused-appellants were inside or

that they escaped during the shoot out or that any of them fired any

shot or that there was any conspiracy in those regards. The action of

those terrorists who successfully escaped by firing at the police

appears to be independent of the present conspiracy and not shown to be

related in any manner. There is nothing on record to involve or connect

them with the design, conspiracy or action for which the appellants are

being now dealt with. Neither their names nor their identity or even

their role in the conspiracy with which we are concerned has ever been

placed on record to connect them or their actions with the present

group of conspirators and their design. The punishment for terrorists

act is provided in sub-section (2) of Section 3. For the purpose of

bringing in application of Section 3(2)(i) of the TADA Act, the

terrorist act should have resulted in the death of any person. In other

cases clause (ii) operates. Sub-section (1) provides as to commission

of which acts can be considered to be a terrorist act. Above being the

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position, we feel the imposition of death sentence is not at any rate a

compulsion in this case and cannot be imposed and only life sentence

can be imposed.

No infirmity could be pointed out regarding conviction and/or

sentence for offences relatable to Section 3(4) of TADA Act or Section

14 of Foreigners Act. Accordingly, they are maintained.

The criminal law adheres in general to the principle of

proportionality in prescribing liability according to the culpability

of each kind of criminal conduct. It ordinarily allows some significant

discretion to the Judge in arriving at a sentence that reflect more

sublet considerations of culpability that are raised by the special

facts of each case. Punishment ought always to fit with the crime.

In the case at hand, the entire planning for commission of

offence punishable under Section 364A was masterminded and executed by

Umar Sheikh who has managed presently to go out of net of law. In his

case, death sentence may have been appropriate. But in case of the co-

conspirators (the present six accused appellants) similar approach is

not warranted on the peculiar facts found/established. No distinctive

feature has been indicated to impose two different sentences i.e. death

sentence for three and life sentence for three others. There is no

appeal by the prosecution to enhance the sentence in those cases where

life sentence has been imposed. It would be therefore appropriate to

impose life sentence on all the six accused appellants.

In the ultimate, convictions of A-1, A-3 and A-8 under Section

3(1)(i) of TADA Act is altered to Section 3(1)(ii) of TADA Act. Their

convictions under Sections 121A, 122 and 124 IPC and sentences imposed

are maintained. The conviction under Section 364-A read with Section

120B IPC is maintained, as it is the conviction under Section 3(4) of

the TADA Act and Section 14 of the Foreigners Act for the concerned

accused appellant along with sentence imposed.

However, considering the gravity of the offence and the dastardly

nature of the acts and consequences which have flown out and would have

flown in respect of the life sentence, incarceration for the period of

20 years would be appropriate. The accused appellants would not be

entitled to any remission from the aforesaid period of 20 years. As

observed by this Court in Ashok Kumar v. Union of India (AIR 1991 SC

1792 and Satpal v. State of Haryana and Anr. (1992 (4) SCC 172),

"imprisonment for life" means imprisonment for the full span of life.

The death reference and appeals are accordingly disposed of.