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CASE NO.:

Appeal (crl.) 289 of 2000

PETITIONER:

SAGAYAM

RESPONDENT:

STATE OF KARNATAKA

DATE OF JUDGMENT: 26/04/2000

BENCH:

S. SAGHIR AHMAD & S. RAJENDRA BABU

JUDGMENT:

JUDGMENT

2000 (3) SCR 565

The Judgment of the Court was delivered by

RAJENDRA BABU, J. The appellant before us had been charged for offences

under Sections 3 and 5 of Terrorists and Disruptive Activities Act, 1987

and under Section 307 read with Section 34 of the Indian Penal Code. The

case against the appellant and accused No. 2 (who was absconding whose case

was separated) are rowdy elements and are so recorded in the concerned

Police Stations. It is alleged that there are 17 cases registered against

them the details of which are not forthcoming. On the charge sheet being

filed before the Jurisdictional Magistrate, he committed to the Court of

the Principal Session Judge at Kolar. Later the case had been treated as

one arising under TADA and filed by the Designated Court.

The appellant pleaded not guilty to the charges. The prosecution examined

as many as 9 witnesses and statement of the appellant under Section 313

Cr.P.C. is also recorded. The defence taken up by the appellant is that the

case pleaded against them is totally concocted and the witnesses who are

police personnel have given interested testimony. Witnesses other than

police officers did not support the case of the prosecution. The witnesses

PWs 2 to 5, 7 and 8 raided the premises of the appellant and conducted

investigation at different stages. The Designated Court relying upon the

evidence of 8 police officers and a confessional statement made under Exh.

P-7 convicted the accused under Sections 3 and 5 of the TADA and Section

307 IPC and convicted him to undergo sentence of 5 years under TADA and 10

years under Section 307 IPC. Against the said conviction and sentence

passed against the appellant, this appeal is filed.

In order to constitute an act to be a 'terrorist act', the meaning assigned

to that expression under Section 3(1) of the TADA has to be borne in mind

and the expression "terrorist" has to be accordingly construed. Section 3

has come up for consideration before this Court on many occasions and the

decisions rendered therein lay down that the person who does any act by

using any of the substances enumerated in the aforesaid provision in any

manner as specified therein cannot be said to commit a terrorist act unless

the act is done with the intent to do :

1. To overawe the Government as by law established; or

2. To strike terror in the people or any section of the people; or

3. To alienate any section of the people; or

4. To adversely affect the harmony amongst different sections of the

people.

The evidence upon which the Designated Court relied is that the appellant

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in order to speared the fear psycohosis in the minds of the people stored

lethal weapons in his house, besides committed the act of terror in the

people or in the section of people by threatening many people like

business-men, autorikshaw drivers and others and forcibly snatched away

money, valuable from them. In reaching this conclusion, the Trial Court

relied upon Exh. P-7 made to a Police Officer. If the allegation made

against the appellant does not establish any of the acts under Section 3(1)

of the Act to which we have adverted to above and all the acts attributed

to him should have been done with the intent to cause any of the above four

acts; that such requirement would be satisfied only if the dominant

intention of the doer is to cause the aforesaid effect. It is not enough

that the act resulted in any of the four consequences. In Niranjan Singh

Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, [1990]4 SCC 76; it is

stated that when the allegation was that the accused was alleged to have

killed two persons for gaining supremacy in the underworld, a mere

statement to the effect, that the show of such violence would create terror

or fear in the minds of the people and none would dare Io oppose them

cannot constitute an offence under Section 3(1) of the Act. The consequence

of such violence is bound to cause panic and fear but the intention of

committing the crime cannot be said to be to strike terror in the people or

any section of the people. In Hitendra Vishnu Thakur v. State of

Maharashtra, [1994] 4 SCC 602 this Court noticed the distinction between

the act done with the requisite intent and another act which had only

ensued such consequences. In that decision, it is further noticed that a

terrorist activity is not confined to unlawful activity or crime committed

against the individual or individuals but it aims at bringing about terror

in the minds of the people or section of people disturbing public order,

public peace and tranquility, social and communal harmony, disturbing or

destabilising public administration and threatening security and integrity

of the country. Thus, the legal position is that whether the act was done

to overawe the Government as by law established and to strike terror in

people or any section of the people, etc. If we examine the statements made

by the witnesses who are Police Officers in this light it is clear that it

is only to the effect of recovering certain arms or materials which can be

used as lethal weapons and vague allegations of extortion or robbery.

Though statements have been made that the appellant use to extract money

from public by wielding a knife so as to threaten people and is involved in

many cases of other illegal activities by itself would not lead to the

conclusion the he has committed acts arising under Section 3 of the Act.

Mere storing of certain weapons such as cycle chain, chopper would not also

lead (o the conclusion that the accused has committed these offences.

The sheet anchor of the prosecution case is the confessional statement Hxh.

P-7. It is stated by P.W. 7, Sri M.V. Murthy, Superintendent of Police that

he recorded confessional statement after observing due formalities and

admin-islering due warning as required in law that the statement made by

him may be used against him. The statement has been recorded in the

question and answer form and even before he affixed his signature to the

said statement, due warning is stated to have been again administrated to

him that his statement may be used against him in evidence and even so he

signed the same voluntarily. The confessional statement which is marked as

Exh. P-7 indicates that he used to go to Mines and used to commit theft of

gold and iron articles and he used to terrorise people with the help of his

group of friends and used to forcibly collect money, gold jewels etc. from

the passers by and also from the businessmen; that he used to give threat

to life along with his friends Janson, Raja Harry Aseer and his brother

Thangam; that he also admitted that he used to store lethal weapons in his

house such as 'Katti' (knife or sword), cycle chains which were to get

money and he used to get the weapons by threatening the workshop owners and

used to collect cycle chains; that whenever any complaint was made against

him, he used to destroy the property of the complainant and he used to harm

the witnesses we would give evidence against him; that there are many cases

against him and others in Andersonpet, Robertsonpet, Marikuppam and

Championreefs' Police Stations. Taking this entire statement as a whole,

the acts attributed to the appellant do not amount to any terrorist

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activity answering the test to which we have adverted to earlier.

Therefore, the charge framed against him under the TADA Act falls to the

ground much less could the Designated Court have relied upon the so called

confessional statement recorded in terms of Section 15 of the TADA Act to

come to such a conclusion.

To justify conviction under this Section 307 IPC, it is not essential that

bodily injury capable of causing death should have been inflicted. An

attempt in order to be criminal need not be the penultimate act fore boding

death. It is sufficient in law if there is present an intent coupled with

some overt act in execution thereof, such act being proximate to the crime

intended and if the attempt has gone so far that it would have been

complete but for the extaneous intervention which frustrated its

consummation. There are different stages in a crime. First intention to

commit it; second preparation to commit it; third, an attempt to commit it.

if at the third stage, the attempt falls, the crime is not complete but law

punishes for attempting the same. An attempt to commit crime must be

distinguished from an intent to commit it or preparation of its commission.

ASI Rajanna PW 2 was deputed to search the house of the appellant along

with two other members of his staff. When he went to the house of the

appellant along with the other officers, the accused tried to assault them.

He somehow escaped from the assault. Again accused is said to have tried to

pierce with a sword but he escaped that assault and caught hold of him but

then he threatened that he would kill. This is all the evidence that have

been given by the ASI which would only mean that there was only a threat to

assault the said Rajanna but the overt acts attributed to him would not

amount to attempt to murder, at best it can be one of attempt to assault

but there is not even an injury upon the victim.

A charge of this nature when there is not even an injury upon the victim

cannot lead to an inference that there was any attempt to kill when the

incident took place. It is possible that the accused confronted the ASI

Rajanna but that by itself would not result in coming to the conclusion

that it was an attempt to murder him.

The ingredients of none of the sections arising under the TADA or in the

IPC have been established. We find the prosecution case does not hold water

and cannot stand scrutiny much less a close one. Therefore, we set aside

the conviction recorded against the appellant and acquit him of all the

charges framed against him. If he is in jail serving sentence, he shall be

set at liberty at once unless he is required in any other case.