SUPREME COURT OF INDIA
Dr. A.S. Anand and K.S. Paripoornan, JJ.
Bonkya alias Bharat Shivaji Mane and Ors. - Appellants
versus
State of Maharashtra - Respondent
Crl. Appeal No. 749 of 1993
Decided on 27.9.1995

Headnote:(i) Indian Penal Code, 1860 - Sections 3021 307/149 - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 3 - Conviction under - Appeal- Assault - Eye witnesses being themselves victims - Their presence not doubtful - Their testimony corroborated from testimony of other witnesses and medical evidence - These witnesses implicated A-1, A-5, A-8, A-9, A-10 and A-11 as assailants - These witnesses knew accused from before by their names and had also identified them later - However identity and participation of A-10, in assault not established beyond a reasonable doubt - He is entitled to be acquitted - Prosecution established its case against A-1, A-5, A-8, A-9 andA-11 beyond reasonable doubt.

       Held: The prosecution has examined P.W. 3, P.W.4, P.W.9, P.W. 10, P.W.11, P.W.12, P.W. 13 and P.W.14 besides P.W. 7, P.W. 20 and P.W. 21. The last three witnesses, however, turned hostile at the trial and were cross-examined by the Addl. Public Prosecutor with the permission of the court. Out of the remaining witnesses mentioned above, P.W. 9 and P.W. 14 are the injured witnesses. These are thus the stamped witnesses whose presence admits of no doubt and being themselves the victims they would not leave out the real assailants and substitute them with innocent persons. P.W. 15 Waman Band Patte who is the owner of the Jagdamba Hotel has lent sufficient corroboration to the testimony of the other prosecution witnesses in general and P.W. 1 and P.W.14 in particular. From the testimony of P.W. 9, it stands established that while Mukesh P.W. 12 was narrating the incident which had taken place at the video parlour, the appellants alongwith 7/8 other persons arrived in a jeep and two auto-rickshaws armed with swords, satturs and sticks and opened the assault on the prosecution witnesses and that A-11 and his two associates assaulted P.W. 14 with swords. His testimony receives ample corroboration from the testimony of P.W. 10, P.W. 11, P.W. 14 and P.W. 15 Waman, the proprietor of Jagdamba Hotel besides the medical evidence. These witnesses categorically deposed that A-5, A-10 and A-11 were responsible for causing injuries to Bajrang P.W. 14. These witnesses knew the accused from before by their names and had also identified them later when called upon to do so. They specifically described the roles played by A-5, A-10 and A-11, P.W.10, P.W.11, P.W.12, P.W.13, P.W.14 and P.W. 15 also spoke about the presence of A-1, A8 and A-9 with their respective weapons alongwith A-5, A-10 and A-11 near the Jagdamba Hotel at the time of assault on P.W. 14. (para 7)

       Further Held: So far as other accused are concerned, none of the prosecution witnesses ascribed any role to A-2, A-3 and A-12 and even though P.W. 15 deposed at the trial about the presence of A-4, A-6 and A-7 and stated that they were present with the accused party but the trial court, for good and sufficient reasons found that his testimony as regards their presence in the unlawful assembly, had not received trustworthy corroboration from any other prosecution evidence. The learned Designated Court opined that though the identity of A-1 (since dead), A-5, A-8, A-9, A-10 and A-11 as the assailants had been established by the prosecution evidence beyond a reasonable doubt, the same could not he said about the participation of the remaining accused. We agree. From our independent analytical appreciation of the evidence on the record, we are of the opinion that the Designated Court rightly found the participation of A-1, A-5, A-8, A-9 and A-11, in the assault, to have been positively established. However, so far as A-10 is concerned, we find that there is merit in the submissions of the learned

       counsel for the appellant that his identify and participation in the assault has not been established beyond a reasonable doubt. (Para 8)

       Consequently Held: Baban Karpe P.W. 9, himself an injured witness, failed to identify A-10 at the time of the identification parade held by P.W. 32, though he identified A-10 later on in the Court during the trial. That apart the name of A-10 does not figure specifically in the statement of Baban P.W. 9, which formed the basis of the F.I.R. Ex. 77. P.W. 10, P.W. 11 and P.W. 15 have tried to implicate A.10 by making tell talc improvements in their statements at the trial by ascribing a tale to him in the assault by improving upon their statements earlier recorded during the investigation, with which statements they were duly confronted. Even Bajrang P.W. 14 who is an injured witness himself and deposed about the incident at Jagdamba Hotel with sufficient dek1ils appears to have exaggerated the version when he stated that he had been assaulted by A-1O also besides A-5 and A-11 quite contrary to his earlier statement. There is only one injury which was received by P.W. 14 and according to the other prosecution witnesses, that injury had been caused to him by A-11. The tendency to exaggerate the incident is not uncommon and that an innocent person may be roped in alongwith the guilty ones is a possibility which cannot, in the facts and circumstances of this case, be ruled out. In view of the improvement made by the prosecution witnesses at the trial from their earlier statements and the infirmities already noticed, we are of the opinion that it cannot be said with any amount of certainty that the participation of A-10 in the assault or even his presence in the unlawful assembly at the time of the assault near Jagdamba Hotel or the Math, has been substantiated. The prosecution has not been able to establish the case against A-10 beyond a reasonable doubt and in our opinion he is entitled to the benefit of the doubt. (para 9)

       Finally Held: The appellants (other than A10) were as already noticed identified by various prosecution witnesses at the identification parade held by P.W. 32, the Executive Magistrate also. Besides, the testimony of these prosecution witnesses has received ample corroboration from the medical evidence as well as the recoveries of the weapons of offence. From our independent examination of the material on the record, we are satisfied that the prosecution has been able to establish its case against A-5, A-8, A-9 and A-11 and the deceased A-1 beyond a reasonable doubt. (Para 10)

       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987. Section 3 -Conviction under. Appeal Victims belong to Wader Community. No inference could be drawn that attack by appellants on them was intended to strike terror in that Community. No evidence that accused had intention to strike terror. Finding of Designated Court that appellants committed an offence punishable u/s 3 is erroneous.

       Held: In our opinion that Designated Court fell in error in holding that an offence under Section 3 of TADA had been committed by the accused-appellants in the established facts and circumstances of this case. Merely because the deceased and the two injured witnesses belong to Wadar community, no inference could be drawn that the attack by the appellants on them was intended to strike terror in a section of the society, namely, the Wadar community. There is no basis for such an assumption. Prosecution has led no evidence in that behalf either. It appears to be a mere coincidence that P.W. 9, P.W. 14 and the deceased all belong to the "Wadar Community". There is nothing on the record to disclose as to which community do the appellants belong to or what grievance they had against the "Wadar Community". By no stretch of imagination can it be said that the accused had the intention to strike terror, much less in a particular section of the society, when they entered into an altercation at the video parlour or even when they went after the complainant party and opened an assault on them opposite Jagdamba Hotel or at the Math. None out of those who were present at the video parlour received any injury and there is no material on the record to show as to which community did, they belong to either. Prosecution has led no evidence nor brought any circumstances on the record from which an inference may be drawn that the appellants intended to strike terror amongst the "Wadar Community". It was not proper for the Designated Court to-draw an inference of intention from the mere consequence, i.e., the victims belonging to the particular community. The learned trial court appears to have ignored to take into consideration the essential requirements for establishing an offence under Section 3 of TADA. (Para 13)

       (iii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3 & 19 - Appeal u/s 19 - Acquittal of appellants for offence u/s 3 - Prayer for transfer of appeal to High Court to try offences under Indian Penal Code. Rejected - Transfer of appeal to High Court after hearing appeal on merits and finding that section 3 of TADA was not made out, is neither desirable nor proper nor permissible. (Constitution on India - Article 142).

       Held: In a case where the Designated Court finds that no offence under TADA is made out, it is open to the said Court to transfer the case to the regular Criminal Court under Section 18 TADA but once the charge is framed and the case is tried by the Designated Court, an appeal against conviction, sentence or acquittal lies only to the Supreme Court and to no other court. Under Section 12 of TADA the Designated Court has the jurisdiction not only to try the cases under TADA but also to try offences under the Indian Penal Code if the offence under TADA is connected with such other offences. (Para 18)

       Further Held: The amplitude of powers available to this Court under Article 142 of the Constitution of India is normally speaking not conditioned by any statutory provisions but it cannot be lost sight of that this Court exercises jurisdiction under Article 142 of the Constitution with a view to do justice between the parties but not in disregard of the relevant statutory provisions. The transfer of the appeal to the High Court, after hearing the appeal on merits and finding that Section 3 of TADA on the basis of the evidence led by the prosecution, was not made out, is neither desirable nor proper nor permissible let alone justified. There cannot be piece meal hearing of an appeal on merits - first by this Court to determine if an offence under TADA, is made out or not and then by the High Court. (Para 19)

       Result: Ordered accordingly.