MOHMED SALEEM A LIAS CHUHO MOHMED SHAKOOR A v.

STATE OF GUJARAT

JULY 19, 1994

[DR. A.S. ANAND AND FAIZAN UDDIN, JJ.]

Terrorist and Disrnptive Activities (Prevention) Act, 1987-Section 3(1)-Ambit and Scope of-No evidence that injury caused to complainant with intention contemplated by Section 3(1}-Conviction u/s 3(1) not sustainable.

Indian Penal Code, 1860--Section 324-injuries on abdomen and back caused by a sharp knife-Conviction u/s 324 sustainable.

The appellant was put up for trial for offences underSection 324 IPC. Section 3(1) of TADA and Section 135(1) of the Bomahy Police Act. D The Trial Court found that the charge for the offence u/s 135(1) of the Bombay Police Act was not made out and consequently the appellant was acquitted of the said charge.

In this appeal under section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, the Complainant alleged that while he E was returning after visiting his brother, be found some unknown person coming towards him. On reaching the complainant, that person took out a knife and gave him a blow on bis abdomen. While being dragged towards the Chawl, he was given one more blow on bis neck. The assailant was also inflicted a knife blow on bis back. The complainant however managed to F escape.

Disposing of the matter, this Court

HELD : 1.1. The complainant sustained an Injury on his abdomen apart from an injury on his back. The injuries had been caused by him by G a sharp knife and the designated court was right in coming to the con cluslon that an offence under section 324 IPC had been made out against the appellant. The appreciation of the evidence in so far as the offence u/s 324 !PC was concerned, is proper. (804-C, D]

1.2. The designated court convicted the appellant for an offence H

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A under Section 3(1) of TADA. The court fell in error in finding that the offence u/s 3(1) had been made out against the appellant. In the estab lished facts and circumstances of the case recourse to Section 3(1) of TADA disclosed a clear misuse of the provisions of that Act. There was no an iota of evidence that the injury was caused to the complainant with the

B intention contemplated by Section 3(1) to achieve the objective envisaged by the said section. The complainant had not stated that at any point of time, any of the assailants belaboured him only because they believed him to be a "non-Muslim" or had attacked him for that reason. That apart, the complainant on his own admission "managed to escape from the clutches of the assailants". In the absence of any evidence from which even an C inference could be drawn that the assault was made on the victim with the requisite intention as envisaged by Section 3(1) of TADA to achieve the objective as envisaged by that section, the conviction of the appellant for an offence under section 3(1) TADA is not at all sustainable.

(804-E, F, 805-A, C, 806-A) D Hitendra Vishnu Thakur & Ors. Etc. Etc. v. State of Maharashtra & Ors., (1994) suppl. 1 SCR, relied on.

CRIMINAL APPELLATE JURISDICTION Crl. Appeal No. 197/94.

E From the Judgment aod 0, der dated the 31st December 1993 of the Additional designated Court at Ahmedabad in Terrorist Criminal case No. . ., ... , .... 6 of 1993.

W.A Nomani & lrshad Ahmed for the Appellant.

F R.P. Bhatti, Anip Sachthey and S.K. Sabharwal for the Respondents.

The following Order of the Court was delivered by :

This is an appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter TADA).

The prosecution story, as emerging from the record is that a complaint was lodged by one Jugal Kishore Puran Lal Gupta complainant, with Gomtipur Police Station on 10th July, 1992 alleging that when he was returning after visiting his brother's Video Cassette Library Located near Vivekanada Mills on a bicycle, near Arbuda Mills, he found one unknown H person coming towards him. On reaching near the complainant, that

MOHD. SALEEM v. STATE OF GUJARAT 803

person took out a knife and gave him a blow on his abdomen. Two or three. A more persons came out from a nearby Chaw! and asked the assailant to drag the complainant into the Chaw!. While being dragged towards the Chaw!, he was given one more blow on the left side of this neck. The assailant was also inflicted a knife blow on his back. The complainant, however, managed to free himself and started running towards the four B cross-roads. He found one police jeep on patrol duty and the police took him to the hospital. A complaint was thereafter lodged and investigation taken in hand. The co-accused of the appellant was released on bail during the investigation but at the time of the framing of the charge-sheet, the co-accused did not turn up and even the sureties could not be located. On the request of the Public Prosecutor, the case of the appellant was C separated and on 30th July, 1993, the appellant was put up for trial for offences under Section 324 !PC, Section 3(1) of TADA and Section 135(1) of the Bombay Police Act. The Trial Court after recording the evidence led by the prosecution and exhibiting the injury certificate received from the hospital, Ex.Pll formulated the following three points for considera- D lion:

"(1) Does the prosecution proNe that on 10th July, 1992 at about 9/30 p.m. near Arbuda Mills situated within Gomtipur Police Station limits the present accused along with the absconding accused Saleem Ibrahim Shaikh Voluntarily caused hurt on the complainant Jugalkishore Puranlal Gupta by means of any instrument for stabbing or cutting, or any instrument, which if used as a weapon of offence, is likely to cause death and has, thus, rendered himself liable for the offence punishable under Section 324 of J.P. Code?

(2) Does the prosecution prove that on the aforesaid date, time and place the present accused by carrying with him any weapon in violation of any prohibitory order committed the offence punishable under Section 135(1) of the Bombay Police Act?

(3) Does the prosecution prove that on the aforesaid, time and place the present accused with intent to strike terror in the people or any section of the people or to alienate any section of the people or to adversely effect the harmony amongst different sections of

the people did any act or thing by using lethal weapon like knife H

A or razor in such a manner as to cause, or as is likely to cause death of, or injuries to, any person or persons and has committed a terrorist act as defined in Sec. 3(1) of the TADA (Prevention) Act punishable under Section 3(2) of the said Act?

B The Trial Court found that the charge against the appellant for the offence under Section 135(1) of the Bombay Police Act was not made out and consequently the appellant "·· • acquitted of the said charge.

The injuries which were disclosed in the injury certificate (Ex. P-11), upon admission by the defence, indicated that the complainant sustained c an injury of 10 cm x 0.75 cm x 0. 75 cm on his abdomen apart from an injury on his back of the size 3 cm 0.25 cm. x 0.25 cm. The injuries received by the complainant undoubtedly show that those had been caused to him by a sharp knife and the designated court, in our opinion, was right in coming 'o the conclusion that an offence under Section 324 !PC bad been made

D out against the appellant. Lean; cd counsel for the appellant was unable to point out any infirmity in the finding of the Trial Court. The appreciation of the evidence in so far as the '" (ence under Section 324 !PC is concerned, is proper and we agree with the conclusion arrived at by the designated court with regard to the offence of the appellant punishable under Section

324 !PC.

E The designated court con"icted the appellant for an offence under Section 3(1) of TADA also and sentenced him to 8 years rigorous im prisonment and a fine of Rs. PlO and in default ther•,0f 3 months rigorous imprisonment. In our oninion the designated court fell in error in finding

F that the offence under Section 3(1) of TADA had been made out against the appellant. In the established facts and circumstances of the case recourse to section 3(1) of TADA discloses a clear misuse of the provisions of that Act. There is not an iota of evidence that the injury was caused to the complainant with the intention contemplated by Section 3(1) to achieve the objective envisaged by the said Section. The complainant, at the trial, G as a definite improvement over his statement in the F.1.R., while narrating the manner of assault added that after he said to the assailants that be was a "Muslim", he was let off. Apart from the fact that such an improved ' version does not inspire confidence because there was no occasion for the ,,

Complainant' to say so, it appears to us that the prosecution introduced this H statement with a view to show that the objective of the assailants was to

I MOHD. SALEEMv. STATE OF GUJARAT 805

create communal disharmony so as to invoke the provisions of Section 3(1) A of TADA. The complainant has not stated anywhere in his statement, that at any point of time, any of the assailants belaboured him only because they believed him to be a "non-Muslim" or had attacked him for that reason.

That apart, the complainant on his own admission "managed to escape from the clutches of the assailants and ran towards the four-cross roads". B This would not have been his conduct, if the assailants on coming to know that he is a 'Muslim' had let him off! Jn the absence of any evidence from which even an inference could be drawn that the assault was made with the requisite intention as envisaged by Section 3(1) of TADA, this attempt on the part of the complainant to give a communal colour to the occurrence C was futile and the designated court not have convicted the appellant for an offence under Section 3(1) of TADA. While dealing with the ambit and scope of Section 3(1) of TADA in Criminal Appeal Nos. 732-735 of 1993 etc. etc. Hitendrc Vishnu Thakur & Ors. etc. etc. v. State of Maharashtra & .

Ors. This Court opined : D

"Thus the true ambit and scope of Section 3(1) is that no conviction under Section 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by Section 3(1) by means of the weapon etc. as enumerated in the Section and was committed with E the motive as postulated by the said Section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror fear or panic is caused, but the crime was not committed with the intention as envisaged by Section 3(1) to achieve the objective as envisaged by the section, F an accused should not be convicted for an offence under Section 3(1) of TADA. To bring home a charge under Section 3(1) of the Act the terror or panic etc. must be actually intended with a view to achieve the result as envisaged by the said section and not be merely an incidental fall out or a consequence of the criminal activity. Every crime, being a revolt flgainst the society, involves G some violent activity which results in some degree of panic or create some fear or terror in the people or a section thereof. But unless the panic, fear or terror was intended and was sought to achieve either of the objectives as envisaged in Section 3(1) the offence would not fall Stricto-senso under TADA." H

In view of the law laid down as above, we find 'that the conviction of the appellant for the offence under Section 3(1) TADA is not at all sustainable. The conviction and sentence of the appellant for the offence under Section 3(1) TADA is consequently set aside. ·

As a result of the above discussion, this appeal succeeds in part. The conviction and sentence of the appellant for an offence under Section 3( 1) TADA is set aside but his conviction and sentence for the offence under Section 324 !PC is upheld.

With the aforesaid modification, this appeal is partly allowed.

A.G.

Appeal allowed.