2002 Supreme(SC) 635

2002(4) Supreme 408
Supreme Court of India
(From Designated Court in TADA Special Case No. 31 of 1994)
R. P. Sethi & Bisheshwar Prasad Singh, JJ.
Ravindra Shantram Sawant —Appellant
versus
State of Maharashtra —Respondent
Criminal Appeal No. 230 of 1997
Decided on 8-5-2002
Counsel for the Parties :
For the Appellant : Sushil Kumar Sr. Advocate, Makrand D. Adkar, Tripurari Ray, Rishi Agarwal, S.D. Singh, Vishwajit Singh, Advocates.
For the Respondent : H.W. Dhabe, Sr. Advocate and S.V. Deshpande, Advocate.

Important Point
The facts proved do establish the commission of offences by Appellant under TADA, Arms Act and IPC. No interference with the order of conviction or with the sentence passed by designated court will be justified in the facts of the case. The appeal is liable to be dismissed.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987—Sections 3(2)(ii), 5 and 6—Arms Act—Sections 25(1-B)(a) and 27—I.P.C. 1860—Sections 307 and 333—Appellant convicted for offences under TADA, Arms Act and IPC for attempt to murder Ashwin Naik, a criminal gang leader in broad day light in the precincts of Sessions Court premises while returning to jail in police escort—Appellant was set up by another criminal gang to accomplish the job in Advocate’s dress with a revolver —In the incident victim was injured and so were three members of Police Party—Appellant also injured in retaliation scuffle—No member of Public was willing to give evidence—Evidence of police personnel & doctors—Confession of appellant and recoveries relied on—Appeal to Supreme Court—Whether prosecution has proved the occurrence and guilt of accused 1/Appellant by reliable evidence? (Yes)—Whether evidence of police, in the absence of independent witness, can be relied upon? (Yes)—The defence of appellant that he was hit by a stray bullet while going to employment exchange whether sustainable? (No)—Whether revolver was seized from accused and it was used in Commission of Offence? (Yes).

       Held : The testimony of the other injured witnesses, namely PW.3 Bhingardive and PW.6 Nikam are wholly consistent with the testimony of PW.1 and PW.4. PW.2 has also fully supported the prosecution case and his evidence fully corroborates the evidence of other eye witnesses. It will thus appear that the evidence led by the prosecution about the occurrence that took place on that date is consistent and trustworthy. It leaves no manner of doubt that accused No.1 fired at Ashwin Naik and in the process injured two police constables as well as ASI Waghchaure. PW 4. In retaliation PW.2 fired from his carbine causing injury to accused No.1. The witnesses are clear and categoric that they had seen the accused firing at them. That the occurrence took place in the manner alleged is not even disputed by accused No.1. According to accused No.1, as is evident from his statement recorded under section 313 Cr.P.C., the occurrence did take place on the date and place as specified by the prosecution. His defence is that he was proceeding to the Employment Exchange and unfortunately he was struck by a stray bullet. The person who had actually fired at Ashwin Naik threw away his revolver and ran away. That revolver was planted on him and the prosecution made out a false case implicating him in the crime. He was an innocent passer by and was caught in the cross-fire. Having regard to the defence of accused No.1, there can be no reason to doubt that such an incident took place at the time and place alleged by the prosecution. The only question that deserves consideration is whether it was accused No. 1 who fired at Ashwin Naik or whether some one else fired at Ashwin Naik and fled after throwing away the revolver. The direct testimony of the eye witnesses is unambiguous and each one of them has clearly stated that it was accused No. 1 who was seen firing from his revolver. There appears to be no reason why the witnesses would falsely implicate Accused No. 1. It is not as if accused No.1 is a seasoned criminal sought after by the police, and taking advantage of the situation the police caught him and falsely implicated him. In fact, it appears from the record, that this was the first assignment of accused No. 1. We are, therefore, satisfied that the witnesses have truthfully stated that they had seen accused No. 1 firing at Ashwin Naik and it was he who fired at members of the police party escorting Ashwin Naik. Moreover one fails to understand why accused No.1 was there in the attire of an advocate. Admittedly he is not an advocate, and there appears to be no other reason for him to put on the dress of an advocate but for the fact that his movement in the Court was facilitated by his wearing the attire of an advocate. Witnesses have stated that he was wearing the dress of an advocate. Even PW.11, Police Inspector Rathod, who reached the scene of occurrence on hearing the report of gun shots, stated that he saw PW. 2 struggling with a person who was dressed as an advocate. (Paras 39 to 42)

       Held further : This is not a case where police witnesses have been introduced to bolster the case of the prosecution with a view to its success. The injured police witnesses as well as other police witnesses are eye witnesses being members of the escorting party escorting Ashwin Naik to the police van. In our view, therefore, independent corroboration of their testimony was not necessary in the facts and circumstances of this case. More over one cannot loose sight of the realities of the situation. In a case of this nature, where two gangs are fighting for supremacy, it was hardly possible for the prosecution to secure independent witnesses being members of the public who had witnessed the incident. In fact the evidence is to the effect that though many persons must have seen the occurrence, they were not willing to speak as they were totally terrorized PW.19, Investigating officer, stated that he could see a number of persons watching from the gallery of the two buildings. He enquired of those persons as well as some advocates on the first floor of the new Sessions Court building, if they knew anything about the occurrence, but none of them came forward to tell him anything about the incident. The manner in which they talked to him, gave him the impression that they were afraid to speak. Moreover, as was noticed earlier, all the independent witnesses who were associated with the investigation as panch witnesses, turned hostile and did not support the prosecution case. Whatever may be legal effect of their turning hostile, it is clear that they were afraid to depose against the accused. We are, therefore, satisfied that the evidence of the police witnesses, who are also the eye witnesses, some of them injured, is worthy of credence and can be acted upon. The failure to examine independent witnesses in the facts and circumstances of this case would not reflect on the veracity of the prosecution witnesses. The defence of accused No.1 that he was hit by a stray bullet must be rejected outright. There appears to be a ring of truth in the case of the prosecution that accused No.1 put on the attire of an advocate so that his movement in the Sessions Court was facilitated. The eye witnesses are clear and categoric that they had seen him firing from his revolver at Ashwin Naik and later at them. Defence of accused No.1, ­therefore, cannot be accepted. (Paras 45, 46 & 47)

       Held also : In the facts and circumstances of the case we are satisfied that the weapon of offence, namely the revolver was seized from accused No.1. The third submission is inter-connected with the second submission. We have already referred to the report of the Ballistic Expert and the report of the Chemical Analyst. Read with the ocular testimony of the witnesses, the evidence on record leaves no room for doubt that the said weapon was used in the commission of the offence. (Paras 49 & 50)

       (ii) Acquittal of co-accused 2 and 3 for abetment and conspiracy—Whether it can be said that nothing remained on which appellant could be convicted? (No).

       Held : It is no doubt true that the prosecution has not been able to establish its case as against accused Nos. 2 and 3. The confessional statements which implicated accused Nos. 2 and 3 have not been accepted by the trial court as being voluntary. But even so there is nothing to discredit the evidence adduced by the prosecution in regard to the occurrence that took place within the precincts of the Sessions Court. The occurrence was witnessed by several witnesses. Though all of them belong to the police force, three witnesses are injured witnesses whose presence cannot be doubted and whose testimony has been found to be truthful. In these circumstances even if the prosecution has failed to establish its case as against accused Nos. 2 and 3, it has certainly proved its case as against accused No. 1. The evidence which implicates accused No.1 has been found to be reliable and trust worthy and, therefore, even if accused Nos. 2 and 3 have been acquitted of all the charges levelled against them, on the basis of the evidence on record, the conviction of accused No.1 can be sustained. (Para 58)

       (iii) Whether on the facts of the case an offence under TADA has been made out? (Yes)—Whether on nature of offence life sentence could have been imposed? (Yes)—Result—Appeal dismissed.

       Held (after reviewing case law) : Keeping these principles in mind, let us advert to the facts of this case. An attempt was made on the life of a gang leader in broad day light within the precincts of the Sessions Court premises. The victim was an alleged leader of a criminal gang. The accused did not have any personal animosity with him and even though the prosecution case regarding conspiracy failed, obviously the accused was set up by someone to accomplish the job. The plan was sought to be executed within the view of large number of persons present in the Court premises. The victim was being escorted under the protection of a police party and at least one member of the escorting party was armed with a carbine. In the incident, the victim was injured, and so were three members of the police party. They were lucky that the injuries did not prove fatal. None from amongst the members of the public was willing to give evidence in the case. When a dastardly act is sought to be executed in such a bold and daring manner, what is the message which the accused intends to convey to the ordinary people of this country? The message is that obedience to Law is irrelevant. People must obey the dictates of the law breakers. Neither the Courts nor the police force can give them any protection for it is the right of the criminals to command habitual obedience from the citizens of this country. The State has lost is supremacy, in any event, its subjects must disregard the code of conduct established by law and must obey the dictates of those for whom law is meaningless. If they fail to do so they shall be dealt with in the same manner as the victim in the instant case, notwithstanding the fact that he was under police protection, and the incident was being witnesses by a large number of persons within the Court premises. Such activities have the effect of undermining the very authority of the State and have a terrorizing effect on those who witness such an incident, and those who come to know of it. The terror, fear and panic which they suffer is unfathomable and tend to completely demoralize the ordinary man in the street. The blatant manner in which the plan was executed in the instant case leaves no manner of doubt that the intention of the perpetrator was not merely to kill the victim, but also to send a terrorising message to the people in general, so that there was no defiance of their command in future. An attempt was also made on the lives of three policemen which reinforces the conclusion that the intention was to strike terror and the killing was attempted to achieve that objective. We have therefore no doubt, that the facts proved do establish the commission of offences under TADA. No interference with the sentence passed will be justified in the facts of this case. We therefore, find no merit in this appeal. Accordingly the appeal is dismissed. (Paras 63 to 65)