2002(1) Crimes 31 (SC)
Supreme Court of India
(From Designated Court, Bombay)
M.B. Shah and R.P. Sethi, JJ.
Jayawant Dattatray Suryarao - Appellant
versus
State of Maharashtra - Respondent
Criminal Appeal No. 975 of 2000
With
Criminal Appeal Nos. 956, 966 and 1101 of 2001
And
Death Ref. No. 1 of 2001
Decided on 5-11-2001
Counsel for the Parties :
For the Appearing Parties : Altaf Ahmad, Additional Solicitor General, Sushil Kumar, Sr. Advocate, Niteen Pradhan, Dr. Rajeev B. Masokdar, K.L. Taneja, Sudeep Pasbola, Sushil Karanjkar, G.B. Sathe, Ravi P. Wadhwani, Sanjay Jain, Narender Kr. Choudhary, V.B. Joshi, S.S. Shinde, Ms. Rohini Salian, S.V. Deshpande, Arun K. Sinha, N.M. Sakhardande, Ms. Meenakshi Sakhardande, Ms. S.D. Khot, Ms. Ruby Singh Ahuja, Advocates.

Important Point
Appeals against conviction by A2, A7 and A6 are dismissed. But as regards sentence of death penalty awarded to A6, life imprisonment – till rest of the life is awarded as his case is not ‘rare of the rarest’ though covered under TADA (P) Act.

Headnote:(i) TADA (P) Act - Sections 3(2)(i), 3(2)(ii), 3(3) and 3(4), 4, 5, 6 - I.P.C. 1860 - Sections 120B, 302, 307, 307 r/w 34, 212 - Arms Act - Section 27 - Offences under - 24 accused tried in TADA Special Case No. 31 of 1993 for incident of shoot out which took place in J.J. Hospital Complex at Mumbai killing one patient and two policemen and wounding several by fire arms - Only 3 convicted 6 acquitted and rest were absconding whose trial was separated - One of the convicted A6 was awarded, inter alia, death sentence - Three appeals by convicted persons, one appeal by State against acquittal of 6 accused and a Death Reference were made to Supreme Court - Convictions based on confessional statements, evidence of injured witnesses and other corroborative evidence - Whether provisions of TADA are applicable? (Yes) (Paras 41 to 47) - Whether confessional statements are admissible in evidence? (Yes) (Paras 48 to 51) - Evidentiary value of such confessional statements - Considered in connection with other evidence connecting the accused with Crimes (Paras 52 to 54) - Whether identification of A6 is doubtful? (No) (Paras 55 to 58) - Whether sanction u/s 20A(2) of TADA is valid? (Yes) (Para 59) - Conclusions - Convictions of A2, A6 and A7 are upheld - Case law referred.

       Held : From the aforesaid discussion, we arrive at the conclusion that :

        1. Learned Designated Judge has rightly tried and convicted the accused for the offences punishable under the TADA. There is no substance in the contentions raised by the learned counsel for the accused that the shoot out at the J.J. Hospital was mere an act of gang rivalry. Shoot out at the J.J. Hospital, which is a Government Hospital of 1500 beds in Mumbai, at midnight causing death of three persons and injuries to six others­ was, in the facts of the present case, is nothing but an act of terrorism. It cannot be termed as simple act of gang rivalry. It is true that it is difficult to define terrorism in precise terms. Whether the criminal violent act was committed with intent to strike terror in people or section or people would always depend upon facts of each case. For finding out the intention of the accused, there would hardly be any case where there could be direct evidence. It is to be inferred from the manner and mode adopted while committing the act and its after effect including fear psychosis. From the circumstances in the present case, irresistible inference can be drawn that crime was committed to create terror and also to take revenge. Such act creates terror in the minds of the people or section of the people so that the targeted persons would succumb to the dictates or extortion because of fear for survival. In the present case, PSI who was on duty resigned from his job, suffered mental depression, spent sleepless nights and worried about the safety of his family, after lapse of seven years of incident. A retired army ­officer deposing before the court appeared to be scared and started weeping in the witness box.­ Effect of fear psychosis also can be seen from the statement of President of Bhiwandi Municipal Corporation (accused) that he was compelled to use his official vehicle along with police constable for the movement of the accused. In such cases, we should accept the ground reality that it would hardly be possible to get evidence of eye-witnesses.

        2. Confessional statement before the police officer under Section 15 of the TADA 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 concerned officer in whom faith is reposed. It is true that there may be some cases where the power is misused by the concerned authority. 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 fool-proof method is evolved by the society or such atmosphere is created, there is no alternative, but to implement the law as it is.

        3. Sanction to prosecute under TADA granted by the competent authority cannot be said to be in any way illegal or erroneous.

        4. Confessional statements of A2, A6 and A7 are corroborated:-

       (a) By the confessional statements of other accused as discussed by the Designated Judge.

       (b) By the evidence of PW 12 Laxman Vishe and PW 26 Ramesh Patil.

       (c) There is no reason to disbelieve the evidence of PW9 who himself is an injured witness and who was police constable on duty in ward No.18 for the deceased Shailesh Haldankar. He got bullet injury at the relevant time. There is no reason to disbelieve the identification of A-6 by him. Description given by him gets full corroboration from evidence of PW12, PW26 and PW42 PSI Thakur.

       (d) Evidence of PW25 Girish Singh, PW 17 Tambe and that of PW37 Dr. Sonrakke corroborates the version of A-2 with regard to movement of car on 12th and 14th as well as asking driver Tambe to go out of city as directed by A-7 because police was making enquiry about movement of car. The evidence with regard to logbook and tearing of two pages also reveals guilty consciousness of A-2.

       Hence, in our view, the Designated Court was fully justified in convicting the A-2, A-6 and A-7 and we uphold the same. (Paras 60 & 61)

       (ii) TADA (P) Act - Section 3(4) - I.P.C. 1860 - Section 212 - Conviction of A2 Jayawant Dattatray Surya Rao under - Upheld - Designated Courts awarded him RI for 7 years and fine for TADA offence and RI for 2 years and fine for offence under I.P.C. - Contention that it should be reduced to sentence already undergone as he was President of Bhiwandi Municipal Corporation - Whether be accepted? (No) (See para 62) - His appeal dismissed.

       (iii) TADA (P) Act - Section 3(4) - I.P.C. 1860 - Section 212 - Conviction of A7 Sham Kishore Sham Sharma Garikapatti under - Upheld by Supreme Court - Designated Court awarded him sentence of RI for 10 years and fine for TADA offence and RI for 2 years and fine for IPC offence - Whether excessive? (No). (Para 63)

       (iv) TADA (P) Act - Sections 3(2)(i), 3(2)(ii), 3(3), 5 and 6 - I.P.C. 1860 - Sections 120B, 302, 307, 307 r/w 34 - Arms Act - Sections 27 - Conviction of A6, Subhash Singh Shobhnath Singh Thakur under - Upheld by Supreme Court - Designated Court awarded death penalty for offences u/s. 3(2)(i) TADA (P) Act and for offence u/s. 120 B IPC and different sentences for other - Appeal and Death Reference to Supreme Court - Question of death penalty - Whether rare of the rarest cases? (No) - Converted to life imprisonment - Till rest of the life - Meaning of “till rest of the life” explained - Case law referred - A6’s appeal partly allowed and Death Reference dispos­ed of accordingly. (Paras 64 to 70)

       (v) State’s appeal against acquittal of A1, A3, A4, A8, A9 and A10 - Acquittal based on non-corroboration of confessional statements - Whether needs interference? (No) - Appeal dismissed. (Para 71)