ORDER

A designated court convicted these two appellants, who were arraigned in that court as A-1 and A-7, along with other accused for different offences. A-1- Mohmed Aslam (@ Sheru Mohd. Hasan) has been convicted under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA ) besides under Sections 25 (1-A) and 25 (1B) (a) of the Arms Act. He was sentenced to undergo rigorous imprisonment for 10 years under the first two counts each, besides fine, with a direction that sentence of imprisonment under each count willrun concurrently. He filed Criminal Appeal No. 613 of 1999. A-7 Adam Gafoor Shaikh @ Adam Toofani was convicted under Section 302 of the Indian Penal Code and has been sentenced to life imprisonment. He was also convicted under Section 5 of the TADA besides under Sections 25 and 27 of the Arms Act for which he was sentenced to varying terms of imprisonment which are lesser in duration. He filed Criminal Appeal No. 949 of 1999.

2. On 24.2.1994 at 8.15 p.m. one Amar Bhaskar Suvarna was shot dead in front of Trishna Restaurant at Kala Gohda (near the High Court of Mumbai). Then PW-3 - Cyrus was also present. A-1 was arrested on 6.10.1994 and on the strength of the information elicited from him one semi-automatic US Carbine magazine along with 113 cartridges were recovered from his own house at Mumbai. A-7 was arrested in March, 1995. Confessional statements were recorded under Section 15 of the TADA from both the appellants.

3. The designated court found that one of the assailants who fired the firearm at the deceased was A-7 and accordingly he was convicted under Section 302 of the Indian Penal Code besides other offences. While dealing with the case of A-7 - Adam Gafoor Shaikh @ Adam Toofani, we may record here that learned Counsel for the appellant frankly conceded that he is not disputing the fact that Amar Bhaskar Suvarna was shot dead in front of Trishna Restaurant around 8.15 p.m. on 24.2.1994. So, the limited question to be considered is whether A-7 was one of the assailants who shot him dead.

4. The case was initiated on the statement recorded from the deceased which became a dying declaration under Section 32 of the Indian Evidence Act. In that statement the deceased was not able to state the particulars of the assailants, but he did state that he was then in the company of PW-3 - Cyrus. If so, the decisive importance of the testimony of PW-3 need not be described in so many words. PW-3 said in court pointing to A-7 that he is one of the persons who shot at the deceased (It is unnecessary to mention the name of the other persons who shot him as the conviction passed against the other persons has not been at all challenged in appeals). PW-3 has also identified A-7 Adam Gafoor Shaikh @ Adam Toofani in a test identification parade conducted on 30.3.1995. The version of PW-3 is further supported by another eye-witness PW-4 - Selwaraj Naikar who also identified A-7 - Adam Gafoor Shaikh @ Adam Toofani in the court as well as in a test identification parade.

5. The testimony of the above two eye-witnesses was believed by the TADA Court and their evidence had been relied on. Learned Counsel for the appellant made an endeavour to contend that the test identification parade is replete with many lapses, and therefore that cannot be used for the purpose of corroborating the testimony of PW-3. We are not told of any serious lapse in the parade conducted by a Magistrate and therefore, even if there are some minor lapses that would not help to hold that the test identification parade was vitiated. We too have no reason to doubt the truth of the version given by PW-3 and PW-4. Of course, learned Counsel then contended that the time of the occurrence was night and hence it would not have been possible for the eye-witnesses to get a proper glimpse of the assailants. We cannot forget the fact that the incident happened in the city of Mumbai at about 8.15 p.m. It was not a tim