Holding

The conviction of the appellant under TADA, the Arms Act and the IPC is upheld because the police eye‑witnesses' testimony is reliable and the act meets the statutory definition of a terrorist offence.

Summary

Ravindra Shantaram Sawant was convicted under the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Arms Act and the IPC for firing a revolver in the Sessions Court, injuring the victim Ashwin Naik and three police officers. The appellant argued that the police eye‑witnesses required independent corroboration, that the weapon was not properly linked to him, and that the act did not constitute a terrorist offence. The Supreme Court held that the police witnesses, many of whom were injured, were trustworthy and their testimony did not need independent corroboration; the forensic evidence linked the seized revolver to the shooting; and the intent to kill the victim and to spread terror satisfied the definition of a terrorist act under TADA. Consequently, the conviction and sentence were upheld.

Issues considered

The admissibility and credibility of police eye‑witness testimony without independent corroboration.
Whether the offence falls within the ambit of TADA, i.e., whether the act was intended to strike terror.
The sufficiency of forensic evidence linking the seized revolver to the appellant.
Whether the failure to prove conspiracy against co‑accused affects the appellant's conviction.
The requirement for the prosecution to account for every bullet fired in the incident.

Legislation cited

Arms Act, 1959s. 25(1-B)(a), s. 27
Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 120-B, s. 307, s. 333
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3(2)(ii), s. 3(5), s. 5, s. 6

Subjects

TADAterrorismpolice eyewitnessindependent corroborationconspiracyarms actattempted murdercourt securityevidence reliability

Judgment

RA VINDRA SHANTARAM SAWANT A
v.
STATE OF MAHARASHTRA

MAY 8, 2002
" [R.P. SETHI AND BISHESHW AR PRASAD SINGH, JJ.] B

Penal Code, 1860/Terrorist and Disruptive Activities (Prevention) Act,
1987/Arms Act, 1959-Sections 120-8, 307 and 333/Sections 3(2){ii), 3(5),
5 and 6125(1-B){a) and 27-Prosecution under-Accused identified by irifured C
eye-witnesses who were police officials-Conviction of appellant-accused
under the provisions except Sections 120-B /PC and 3(5) TADA-Acquittal
of co-accused of all the charges-On appeal conviction upheld, ·since the
evidence led by prosecution is consistent and trustworthy-The offence under
TADA is established since the intention ef the accused was not only to kill
the victim but also to strike terror. D
Crilninal Trial :

Evidence of police officials who 1vere injured eye witnesses-Non-
corroboration by independent witnesses-Effect of-Held, evidence of such
witnesses does not require independent corroboration if otherwise their E
evidence is found to be truthfol and reliable.

Terrorist and Disruptive Activities (Prevention) Act, 1987-
Applicability of-Held, the provisions of the Act need not be resorted to if
the nature of the activities of the accused can be checked and controlled
under ordinary law. F
• Appellant-accused No. 1 was tried for various offences under Terrorist
and Disruptive Activities (Prevention) Act, 1985, Arms Act, 1959 and IPC.
Prosecution case was that appellant-accused No. 1 alongwith other co-accused
entered into a conspiracy to commit terrorist act with a view to eliminate the
victim and hence the appellant attempted to commit his murder and injured G
him in the premises of Sessions Court. At the time of committing the offence,
appellant-accused was dressed in the attire of an advocate. He also fired at
police officials and some of them i.e. PWs 3, 4, and 6 who were escorting the
victim were injured. Appellant-accused also got injured during the incident,

881 H
y
882 SUPREME COURT REPORTS [2002) 3 S.C.R.

A when police retaliated. The weapon of offence i.e. revolver was seized from him.
The report of the ballastic expert was that some of the bullets were fired from
the revolver seized from him. Appellant-accused made confessional statement
and before making such statement he was duly informed that he was not bound
to confess and that the statements might be used against him. During trial,
the police officials i.e. the injured eye-witnesses categorically stated to have
B seen the accused firing at them from his revolver and that he was dressed in
the attire of an advocate. All t:.e independent Panch witnesses turned hostile.
Defence of appellant-accusP:! was that he was falsely implicated in the case
and though such an occurrence did take place, it was another person who after
firing a few shots from his revolver ran away throwing his revolver which was
C planted on him; that the injury on him was the result of a stray bullet hitting
him in the course of the incident; and that the actual culprit was not seen by
the eye-witnesses.

The trial court convicted appellant-accused for the offences under
Sections 3(2)(ii), 5 and 6 of Terro4t-ist and Disruptive Activities (Prevention)
D Act, 1985; under Sections 25(1-B)(a) and 27 of Arms Act, 1959 and Sections
307 and 333 IPC. However, he was acquitted under Sections 120-B IPC and
-
Section 3(5) of TADA. The co-accused were acquitted of all the charges on the
ground that prosecution failed to prove its case of conspiracy of which all the
.
accused were members.
E In appeal to this Court the appellant contended that prosecution case
cannot be relied upon in the absence of independent corroboration of the
evidence of police witnesses; that since after removal of the bullet from the
wound of PW3 neither the investigating officer was informed about it nor was
the bullet sent for further action; prosecution had failed to give account of
F bullet shots fired in the course of the incident and had not explained as to how
one buliet got tucked in the collar of the coat of the accused; that in view of the ...
finding of the trial court that there was no conspiracy to commit the offence
and that it was not established that the co-accused belonged to a terrorist gang
and that accused did not share common intention to commit the offence, the
G substratum of the prosecution case vanished and nothing remained on the basis
of which the appellant could be convicted; and that the facts proved did not
answer the description ofa terrorist act under Section 3 of TADA.

Dismissing the appeal, the Court

H HELD: 1.1. Evidence led by the prosecution about the occurrence that
RA VIND RA SHA NT ARAM SA WANT 1•. ST ATE OF MAHARASHTRA 883
took place on that date is consistent and trust-worthy. It leaves no manner of A
_, doubt that appellant-accused fired at' A' and in the process injured two police
constables as well. In retaliation PW2 fired from his carbine causing injury

-
to appellant-accused. The witnesses are clear and categoric that they had seen
the accused firing at them. There appears to be no reason why the witnesses
would falsely implicate appellant-accused. Moreover one fails to understand B
why appellant-accused was there in the attire of an advocate. There appears to
be no other reason for him to put on the dress of an advocate but for he fact
that his movement in the Court was facilitated by his wearing the attire of an
advocate. Witnesses have stated that h·e was wearing the dress of an advocate.
Even PW.11 who reached the scene of occurrence on hearing the report of
gun shots, stated that he saw PW.2 struggling, with a per*in who was dressed C
as an advocate. (90~E-F; 901-B, D-E)

1.2. 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 D
would not reflect on the veracity of the prosecution witnesses. In the instant
case three of the police witnesses, namely, PW3, PW4 and PW6 are also injured
witnessess. The police party in the instant case was the victim of assault
launched by appellant-accused. They cannot, therefore, be described as official
witnesses interested in the success of the investigation or prosecution. They
are eye witnesses who were injured in the course of the incident. In fact the E
testimony of such witnesses, does not require independent corroboration, if
otherwise their evidence is found to be truthful and reliable. This is not a
case where police witnessess have been introduced to bolster the case of the
prosecution for its success. Therefore, independent corroboration of their
testimony was not necessary in the facts and circumstances of this case. In a F
case of this nature, where two gangs are fighting for supremacy, it was hardly
r 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. Moreover, all the independent
witnesses who were associated with the investigation as panch witnesses, G
turned hostile and did not support the prosecution case. Whatever may be the
legal effect of their turning hostile, it is clear that they were afraid to depose
against the accused. The defence of the appellant-accused that he was hit by a
stray bullet must be rejected outright. (903-B; 902-D-G; 903-A-B, CI
H
1.3. In the facts and circumstances of the case the Court is satisfied
884 SUPREME COURT REPORTS (2002] 3 S.C.R.

A that the weapon of offence, namely, the revolver was seized from appellant-
accused. 1904-C)

1.4. The fact that the occurrence took place cannot be disputed. In an

B
incident of this nature it would be impossible for the prosecution witnesses to
account for each and every bullet fired in the course of the incident. The
prosecution is not expected to account for all the empties and the bullets fired
in the course of '"'~·1rrence. It is also not possible for the prosecution in an
-
incident of this nature to explain each and every injury suffered by the
witnesses. It is not permitted to conjecture as to how injuries may have been
caused in an incident of this nature where firing has taken place from both
C directions. It was neither necessary nor was it possible for the prosecution to
explain how the holes were caused in the coat of the accused, and by what
process one bullet was tucked in the collar of the coat. Moreover these are
hardly matters which will cast a reflection on the case of the prosecution.
[904-G; 905-A, B; 906-D, EJ
D
1.5. State is right in submitting that no fault can be found with the
investigating agency when the evidence discloses that after removal of the bullet
from the wound of PW.3, neither the Investigating Officer was informed about
it nor was the bullet removed from the wound sent to him for further action. "'
[906-B, CJ
E
1.6. 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 that
F the incident 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 appellant-
G accused. The evidence which implicates appellant-~ccused has been found to
be reliable and trustworthy and, therefore, even if accused Nos. 2 and 3 have
been acquitted of the charges levelled against them, on the basis of the evidence
on record the conviction of appellant-accused can be sustained.
1906-G-H; (907-A, BJ
H 2.1. It is no doubt true that even though the crime committed by a
RA VINORA SHANTARAM SAW ANT ''·ST A TE OF MAHARASHTRA
885
-> "terrorist" and an ordinary criminal would be overlapping to an extent, it is A
not the intention of the legislature that every criminal should be tried under
TADA, when the fall out of his activity does not extend beyond the normal
frontiers of the ordinary criminal activity. The provisions of the Act, need not
be resorted to if the nature of the activities of the accused can be checked and
controlled under the ordinary law of the land. It is only in those cases where
E

-·
the law enforcing machinery finds the ordinary law to be inadequate or not
sufficiently effective for tackling the menace of terrorism and disruptive
activities that resort should be had to the drastic provisions of the Act. Some
•
difficulties, however, arise when the intended activity of the offender results
in striking terror or creating fear and panic amongst the people in general or
a section thereof. It is in this situation that the Courts have to be cautious to c
draw a line between the crime punishable under the ordinary criminal law and
the ones which are punishable under Section 3(1) of TADA. 1907-D-FJ

- Hitendra Vishnu Thakur v. State ofMharashtra and Ors., 1199414 SCC
602 and Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj
D
Bijaya and Ors., 11998) 4 SCC 76, referred to.
-"
Jayawant Datta/ray Suryarao v. State of Maharashtra, JT (2001) 9 SC
605, relied on.

2.2. The blatant manner in which the plan was executed in the instant E
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
, the objective. The facts proved to establish the commission of offences under F
" TADA. (909-G, H; 910-AJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 230 of
1997.

From the Judgment and Order dated 7.9.96 of the Designated Court in
G
TADA Special Case No. 31 of 1994.

Sushil Kumar, Makrand D. Adkar, Tripurari Ray, Rishi Agarwal, S.D.
Singh and Vishwajit Singh for the Appellant.
H
H.W. Dhabe and S.V. Deshpande for the Respondent.
886 SUPREME COURT REPORTS [2002] 3 S.C.R.

A The Judgment of the Court was delivered by "--

BISHESHWAR PRASAD SINGH, J. This appeal has been preferred
by Ravindra Shantaram Sawant (hereinafter referred to as accused No. l)
against the judgment and order of the Designated Court at Brihan. Mumbai
in TADA Special Case No. 31of1994.
B
Accused No. 1 was tried for various offences under the Indian Penal
Code; Terrorist and Disruptive Activities (Prevention) Act. l 987 (hereinafter
....
referred to as the "TADA") an{l under the Arms Act. :a

Accused No. I was put up for trial alongwith two others namely Nagesh
c Vishnu Mohite (for short accused No. 2) and Arun Guiab Gavli (for short
accused No. 3). The fourth accused, namely Sada Pawale could not be put
up for trial, as he remained absconding. Accused No. l has been sentenced
to life imprisonment under Section 3(2j(ii) of TADA and has also been directed
to pay a fine of Rs. 5,000 in default of payment of fine, to undergo six months' .-
D rigorous imprisonment. He has also bee~ sentenced to life imprisonment and
to pay a fine of Rs. 500 and in default to undergo one month' rigorous
imprisonment each under Sections 5 and 6 of TADA. He has also been found '--
guilty of the offence under Section 25(1-B)(a) of the Arms Act and sentenced
to three years' rigorous imprisonment and a fine of Rs. 500, in default of
payment of fine, to undergo rigorous imprisonment for one month. Similarly,
E he has been found guilty of the offence under Section 27 of the Arms Act
and sentenced to suffer rigorous imprisonment for seven years and a fine of
Rs. 500 in default to undergo one month's rigorous imprisonment. He has also
been found guilty of the offence under Section 307 IPC for attempting to
commit the murder of the victim Ashwin Naik, ASI Gangadhar Bhau
Waghchaure. PW.4 and two other constables, namely- Dayanadeo Bhagyawan ..,.
F Nikam, PW.6 and Sanjay Shankar Bhingardive, PW. 3 and has been sentenced
""
to suffer imprisonment for life and to pay a fine of Rs. 500, in default of
payment of fine, to undergo rigorous imprisonment and to pay a fine of Rs.
500, in default to undergo rigorous imprisonment for one month. He has been
also found guilty of the offence under Section 333 l PC and sentenced to ten
G years ·rigorous imprisonment for one month. All the substantive sentences
have been directed to run concurrently. Accused No. I has however, been
acquitted of the charges under Section 120-B IPC and 3(5) of TADA. The
ramaining two accused had been acquitted of all the charges levelled against
""
them.

H Briefly stated the case of the prosecution is that with a view to eliminate
RAVINDRA SHANTARAM SA WANT •'. ST ATE OF MAHARASHTRA [BISHESHW AR PRASAD SINGH, J.] 887

-> Ashwin Naik, all the three accused herein together with Sada Pawale A
(absconder) entered into a conspiracy with a view to commit a terrorist act
within the meaning of Section 3(1) of TADA and in pursuance thereof accused
No. I attempted to commit the· murder of Ashwin Naik within the precinents
of the Sessions Court, Brihan, Mumbai. The said Ashwin Naik, who was
facing trial before the Sessions Court had been produced before the Sessions
Court on the date of occurrence under police escort. Accused No. 1 fired at B
Ashwin Naik and injured him. In the process he also fired at the police
officials escorting Ashwin Naik and injured them as well. He was, however,
• over-powered by the police and apprehended on the spot. His revolver was
seized and thereafter the case was registered against them. As earlier noticed,
accused Nos. 2 and 3 have been acquitted of the charges levelled against C
them primarily on the ground that the prosecution failed to prove that the
various acts were committed pursuant to a conspiracy of which all the three
accused were members.

The case of the prosecution is that accused No. 3 is the leader of a gang
of criminals which indulges in criminal activities such as murder, extortion etc. D
It is the case of the prosecution that Ashwin Naik, the injured is also a leader
of a similar gang. Accused No. 2 is a member of the gang of accused No. 3.
Accused No. I had come in contact with accused No. 3 with a view to join
his gang and this was the first assignment given to him by the leader of the
gang. On account of gang rivalry as well as personal enmity between Ashwin
Naik and accused No. 3, accused No. 3 decided to eliminate him and with that E
in view, conspired with the remaining three accused to get him murdered on
the date of occurrence. According to the prosecution, the conspiracy was
hatched while accused No. 3, was in the Yerwada Central Prison as an under-
trial prisoner. Sada Pawale (absconder) was also detained in the same prison.
It is the prosecution's case that in December, I 993, accused No. I alongwith F
·PW.18 Anil Gavkar went to the Yerwada Central Prison and after making a
ficitious entry met accused No. 3 and expressed his desire to join his gang.

-- He was asked to wait and was assured that in due time, he will get a message.
A few days late, he got a message from accused No. 3 to meet Sada pawale
(absconder) who had since been released from ajil. He met him, and thereafter G
they continued to meet over the next two months. Small payments were made
to accused No. I by Sada Pawale to meet his daily expenses. Sada Pawale
(absconder) took into confidence accused No. 2 and assigned to him the duty
to keep a watch on Ashwin Naik and the proceedings pending against him
in Court. He was directed to keep a watch on the dates on which Ashwin Naik
was required to be produced in Court. He was told that Ashwin Naik was to H
888 SUPREME COURT REPORTS [2002] 3 S.C.R.

A be murdered and this was being done with a view to facilitate his murder.
Accordingly accused No. 2 kept a watch on the proceedings pending in the
Courts .and kept himself informed of the dates on which Ashwin Naik was
required to be produced before the Court in cases in which he was involved.
It is also the case of the prosecution that accused No. 2 alongwith Sada
Pawale visited the Court on one occasion and saw the elaborate police
B arrangements made for protecting Ashwin Naik. It was, therefore, decided that
the person deputed for the job should put on the attire of an Advocate so ..
as to facilitate his movement in the Court premises. Accordingly accused No.
2 is alleged to have purchased a black coat from PW.5 and a pair of bands
which he handed over to Sada Pawale.
c Ashwin Naik and five others were the accused in TADA Special Case
No. 76 of 1992 which was pending in the Court of the Additional Sessions
Judge (Designated Court under TADA. It was fixed for hearing on 18th April,
1994 in Court No. 33 of the Sessions Court which is on the 5th floor of the
new building. Ashwin Naik was to be brought from Adharwadi Jail from
D Kalyan and for that purpose a police van had been provided. An escort party
led by PW. I Laxman Bhau Thorawat, ASI and consisting ofBhagwat Saundane,
PW.2, a commando anned with Carbine, Sanj~y Bhingardive. PW.3 and
Bhagywan Nikam. PW.6 was deputed to Escort Ashwin Naik from the jail at
Kalyan to the Sessions Court. The remaining five co-accused were similarly
E brought in a separate van escorted by another police party headed by PW.4
Gangadhar Waghchaure. Ashwin Naik as also the other five accused were
brought before the TADA Court in the morning session but were told by the
Sheristedar of the Court that the case will be taken up in the afternoon
session. PW.6 Gangadhar Waghchaure took the five accused persons under
his charge to the ground floor of the building where a provisional lock-up has
F been provided in the barracks to the South of the new court building. However,
Ashwin Naik was made to sit in the passage in front of the court hall. All this
was being watched by accused No. 2. When he found that Ashwin Naik had
been brought to the Court at about 12.30 p.m. he went to Dagdi Chawl and
met Sada Pawale whom he found talking to accused No. I near a temple. He
G informed them about the arrival of Ashwin Naik in the court premises. Sada
Pawale asked him to get a taxi. Accused No. 2 then told accused No. I that
Ashwin Naik was to be finished on the same day. He loaded three rounds in
a .38 caliber revolver and took accused No. I to an uninhabited room i!l the
Chawl and asked him to fire the shots. This he did with a view to satisfy
himself that accused No. I was in a position to execute the job entrusted to
H him. It is the case of the prosecution that in the said room, accused No. I used
RA VIND RA SHA NT ARAM SA WANT ,, ST ATE OF MAHARASHTRA [BISHESHWARPRASAO SINGH, J ] 889

to do target practice so as to equip himself with sufficient accuracy to execute A
->
the job. Thereafter he loaded six live cartridges in the revolver which he
handed over to accused No. I and instructed him to murder Ashwin Naik in
the TADA Court itself, and if that was not possible, within the precincts of
the Sessions Court. He also instructed him to run away immediately after the
completion of the job, but in case that was not possible, to raise his hands B
and surrender so as to avoid retaliation by the police. He also gave him the
black coat, white shirt etc. so that he could dress himself up as an Advocate.
In the meantime accused No. 2 brought a taxi. Sada Pawale instructed
• accused No. 2 to point out Ashwin Naik to accused No. I so that he could
do the job. Accused Nos. I and 2 thereafter came to the old Sessions Court
~~~ c
Accused No. 2 alongwith accused No. I entered the Sessions Court
building. Accused No. I was shown by accused No. 2 the connecting bridge
leading to the new Court building. He also described to accused No. l, the
clothes being worn by Ashwin Naik and assured him that he will be watching
the happenings from the old Court building. Accused No. I entered the D
TADA Court and saw that Aswin Naik was sitting on a bench in the passage.
He sat in the Court room for a while, but when he noticed that a number of
policemen were guarding Ashwin Naik, he decided not to take a chance in
the TADA Court as that may not be wise. He therefore, returned to the old
Court building and met accused No. 2 and told him that he will do the job E
when Ashwin Naik comes down.

At about 3.00 p.m. Ashwin Naik as well as other five co-accused were
produced before the TADA Court but the case was adjourned to 22nd April,
1994. The police parties thereafter proceeded to the ground floor with a view
to take the accused to the waiting police vans for being taken to jail. The case F
• of the prosecution is that PW.4 was ahead of the police party escorting
Ashwin Naik. While Ashwin Naik was proceeding towards the police van,
accused No. 2 again identified Ashwin Naik for the benefit of accused No.
l and thereafter hide himself behind a pillar. PW.4 Gangadhar Waghchaure
was a few steps ahead of Ashwin Naik. Ashwin Naik was handcuffed and the G
rope was held by PW.3 Sanjay Bingardive who was to the left of Ashwin Naik
while PW.6 Dayanade Bhagyanwan Nikam was to his right. PW.I laxman Bhan
Thorawat was just behind Ashwin Naik and to his right was PW.2 Bhagwat
Saundane armed with a carbine. While they were so proceeding, accused No.
I aimed at Ashwin Naik when he came within his range and fired at him. The
shot hit Ashwin Naik on the back of his head and he fell down on the ground. H
y

890 SUPREME COURT REPORTS [2002] 3 S.C.R.

A PW. I Thorawat as well as other members of the escorting party noticed that
accused No. I had fired at him. Accused No. I fired two more shots which
injured police constables, PW.3. Sanjay Bhihgardive and PW.6 Dayanade
Bhagyawan Nikam. On account of the injuries suffered on their legs, they fell I-
,>

down. PW.4 Gangadhar Waghchaure rushed towards accused No. I. In the
B meantime PW.2. Bhagwat Saundane, who was armed with a carbine, fired 25
rounds from his carbine. While PWs. I, 2 and 4 rushed towards accused No.
I, one of the shots fired by accused No. I, injured PW.4, Waghchaure on his
left thumb and index finger. However, PW. 4 pounced upon accused No. I
and over-powered him with the help of PW.2. One of the shots fired by PW.2
caused injury to accused No. I on the right side of this neck. PW. I who
C had also rushed to the aid of other police officials snatched from the hands
of accused No. I the revolver. While all this was happening, the case of
prosecution is, that accused No. 2 fled away from the Court premises and
reported the matter to Sada Pawale who advised him to leave Mumbai
immediately and to go to his native place in the District of Satara.

D PW.I I, Police Inspector Ratansingh Rathod and Police Im1pector Bhgwat
had also come to attend the TADA Court in connection with some other case.
When they heard shots being fired, they rushed to the scene of occurrence
and saw the scuffle between accused No. 1 and PW.2 . Accused No. I was
wearing the attire of an Advocate. They took into custody the accuse~ No.
E I and also asked PW.2 to sit in the jeep. They came to the Cuff Parade Police
Station but there they were told that the Sessions Court fell within the
jurisdiction of Colaba Police Station. They, therefore went to the Colaba Police
Station and handed over accused No. I and his revolver to Police Inspector
Issaq Bhagwan.

F The further case of the prosecution is that on 18th April, I 994, since
the police inspector of Colaba Police Station was on leave, PW-i 9 Police
Inspector A.R. Gaikwad was holding charge in his absence. At about 3.15 p.m.
he received a wireless message from the control room reporting the incident
which had taken place in the precincts of the Sessions Court. He along with
G API Jadhav and API Pathan, PW.14 and other officers and staff left for the
scene of occurrence and reached the Sessions Court, which was hardly two
minutes drive from the police station. By the time they reached the court
premises, the injured namely, Ashwin Naik, PW.3, PW.6 and PW.4 had been
removed to the St. Georges Hospital for medical aid. At the St. Georges
Hospital they were examined by Dr. Bakshi, the casualty medical officer. Since
H the injury of Ashwin Naik was found to be serious in nature, he was shifted
RAVINDRA SHANTARAM SA WANT v. STATE OF MAHARASHTRA [BISHESHWARPRASAD SINGH,J.] 891

->
to JJ. Hospital for further treatment. PW.19 Inspector Gaikwad after directing A
PW.14 AP! Pathan to guard the scene of occurrence also rushed to the St.
Georges Hospital. In the meantime PW.20 ACP Vasant Gosavi of Colaba
Division, on receiving the message from the C<>ntrol room, rushed to the scene
of offence. The Deputy Commissioner of Police, Incharge of Colaba Zone, and
the Additional Commissioner of Police had also reached the scene of occurrence
and made necessary enquiries. All of them went to St. Georges Hospital where B
PW. I ASI Thorawat and PW.19 Police Inspector Gaikwad were also present.
After some discussion, DCP Mr. Verma directed PW.19, Inspector Gaikwad to
• record the F.l.R. under TADA, since he was the competent authority to grant
such approval under TADA. Accordingly, PW.19 Inspector Gaikwad recorded
the statement of PW. I Thorawat. Ext. IO, on the basis of which First C
Information Report was drawn up. He rang up the Colaba Police Station and
secured the running crime number. After deputing AP! Jadhav at the St.
Georges Hospital he came to the place of occurrence and then proceeded to
the Colaba Police Station.

In the meantime at the Colaba Police Station, PW. 12 Samson Barse on D
the instruction of Duty Police Inspector lssaq Bhagwan drew up the
panchnama relating to the seizure of the revolver and the clothes of accused
No. 1. He also noticed 5 empties and one live cartridge in the chamber of the
revolver and that the clothes of the accused were blood stained. He also
noticed two holes in the coat of the accused near the right shoulder and two
holes on the rear side of the coat on the right side below the shoulder. One E
cupro 'jacketed bullet (article 7) was tucked in a hole by the side of the collar
of the coat. There were also two holes in the shirt. He also noticed that
accused No. I had an injury on the chin and an injury on the index finger
of the right hand, apart from the injury on the neck near the shoulder joint.
There were also some abrasions near the right knee. It appears that panch F
witness PW.7 Raju Vaze, in whose presence the seizure was made, was
declared hostile and did not support the case of the prosecution. The other
panch witness was already dead.

At the Colaba Police Station, PW.19 recorded the statement of PW.I
Thorawat. PW. I I Ratansingh Rathod and PW.2 Bhagwat Saundane. He again G
came to the St. Georges Hospital and reco•ded the statements of PW.3
Bhingardive, PW.4 Waghchaure and PW.6 Bhagyawan Nikam and the driver
of the escort vehicle.

AP! Jadhav, after preparing the panchnama relating to seizure of clothes
of the injured went to the Sessions Court and prepared the panchnama H
y

892 SUPREME COURT REPORTS [2002] 3 S.C.R.

A relating to the scene of offence witnessed by PW. I 0. Here again PW. I 0. Vijay 4- _

Kaleshwar Rauth, panch witness, was declared hostile while the other panch
witness could not be found.

The clothes of victim Ashwin Naik were seized under panchnama Ex.24.
B Since the accused No. 1 had also suffered injury, PW.12 brought him
to the St. Georges Hospital for medical treatment where he was examined
by Dr. Bakshi, PW.11 at 5.45 p.m. At the hospital, PWs. 4, 3 and 5 again
continued that he was the same person who had fired at Ashwin Naik and
the police party. PW.19 therefore recorded their supplementary statements.
C Accused No. 1, who was admitted in the hospital was discharged on the next
day i.e. 19th April, 1994.

PW .19 made several attempts to record the statement of Ash win Naik
but the hospital authorities certified that he was not in a position to make the
statement. Certificates to this effect were issued between 19th April, 1994 to
D 13th May, 1994. In fact the statement of Ashwin Naik was recorded long after
his discharge from the hospital with the permission of the Court on 25th
January, 1996, even after the charge sheet was filed. Having regard to
antecedents of Ashwin Naik, it is not surprising that he was not traceable
and therefore not available for examination as a witness in the trial.

E PW.19 the Investigating Officer took charge of all the seized articles. He
also requested the Thane Police Head Quarters to send the carbine which was
used in the occurrence by PW.2 and on his request the same was sent to
him which was seized under panchnama Ext. 16. The weapon was kept in safe
custody. The muddemal properties were sent to the Forensic Science Laboratory
F through Hawaldar Uma Kant, PW.17. This was done on 28th April, 1994.

Accused No. 2 was arrested on 18th May, 1994 at the Mumbai Central
Railway Station. In the test identification parade on 31st May, 1994, he was
identified by PWs. 1, 2, 3, 4 and 6.

G The reports submitted by the Chemical Analyser were produced at the
trial as Exts. 27, 28, 29 and 30. The clothes were found stained with human
blood. The .38 caliber revolver was found to be in working order. Similarly the
carbine was also found to be in working order and the residue of the fire
ammunition nitrite was detected in the barrel washings which showed that the
weapons had been used. The bullets, on examination, were also found to have
H been fired from .38 caliber revolver and that they had been fired from revolver,
RA VIND RA SHANT ARAM SA WANT v. ST ATE OF MAHARASHTRA [BISHESHWAR PRASAD SINGH. J.J 893

article I. The empties which were seized from the scene of occurrence had A
- > been fired from the carbine, article 14.

On 23rd July, 1994, ACP Gosavi took over the investigation of the case.
Efforts were made to arrest accused No. 3 and he was ultimately arrested on
9th August, 1994 when he was released from jail.
B
It is the case of prosecution that in the course of interrogation on 14th
August, 1994 accused No. I had expressed his desire to make a truthful
statement. He was again interrogated on 16th August, 1994 and he again
expressed his desire to make a clean breast of the matter. PW.20 ACP Gosavi
got in touch with DCP, PW.16 Mr. Yadav and met him in his office and
requested him to record the statement of accused No. I. PW.19, Inspector C
Gaikwad was directed to produce accused No. I before the Deputy
Commissioner of Police, PW.16. Accordingly at about 6.00 p.m. PW.19 Inspector
Gaikwad produced accused No. I before DCP Yadav, PW.16. Several questions
were put to the accused No. l by the DCP to ascertain whether he wanted
to make a voluntary statement. He was told that he was not bound to confess D
and was further warned that if he makes a confessional statement, that may
be used against him. Despite all this, accused No. I insisted on making the
confessional statement. DCP, PW.16 Mr. Yadav then directed him to be detained
in Azad Maidan Police Station and to be produced before him on 18th
August, I 994 at 4.00 p.m. This, according to the prosecution, was done with
a view to give him enough time to reconsider his decision as also to ensure E
that he was not in any manner influenced or pressurised by the officers of
the Colaba Police Station. Thereafter on I 8th August, I 994, the accused No.
I was produced before the D.C.P. He made a confessional statement which
was recorded by PW.16 marked, Ex.46. Similarly the voluntary statement of
accused No. 2 was recorded on 30th August , 1994. The charge sheet in the F
ce<e was filed on 14th October, 1994 but without sanction, since the prescribed
I dO days were about to lapse. On the very next date i.e. I 5th October, I 994
the sanction was obtained and filed in Court even before the Court took
cog:•i,.ncc un the basis of the charge sheet submitted by the investigating
officer.
G
The appellant alongwith two others (since acquitted) was put up for
trial before the Designated Court at Mumbai in TADA Special Case No. 3 I
of I 994 variously charged as earlier noticed.

The prosecution examined as many as 21 witnesses in support of its
case. PW. I, 2, 3, 4, 6, 11, 12, 14, 16, 19 and 20 are witnesses who belong to H
y
894 SUPREME COURT REPORTS [2002) 3 S.C.R.

A the police force. Of them PW. I ASI Thorawat, PW.2. Bhagwat Saundane,
PW.3, Sanjay Bhingardive and PW.4 ASI Waghchature and PW.6 Bhagyawan
Nikam are eye witnesses who witnessed accused No. I firing at Ashwin Naik.
PW. I 1 Inspector Ratansingh Rathod appeared on the scene of occurrence
when PW.2 was struggling with accused No. I trying to over-power him.
Moreover PWs. 3, 4 and 6 are injured witnesses who suffered gun shot
B injuries in the course of the incident. PW. I 9 and 20 are the investigating
officers. PW. I I is a Police Inspector who apprehended accused No. I at the
place of occurrence and took him to Colaba Police Station. PWI2 was the
police officer at Colaba Police Station who recorded the panchnama regarding
seizure of the revolver and the clothes worn by accused No. I. PW. 14, API
C . Pathan is a police officer who was asked to guard the scene of occurrence
and in whose presence the scene occurrence panchnama was drawn by API
Jadhav, PW.2 I. Dr. Bakshi examined the injured witnesses as well as accused
No. 1 at the St. Georges Hospital. PW. I5 is the Magistrate who conducted
the )'est Identification Parade. PW. 16 Sharda Prashad Yadav is the Deputy
D Commissioner of Police who recorded the confessions of accused Nos. I and
2.

Apart from the police witnesses, some of them eye witnesses, and some
of them injured in the course of the incident, the prosecution also examined
as panch witnesses several persons who were the members of the public and
E who were associated with the investigation to witness the recording of
panchnamas. Unfortunately almost all of them had to be declared hostile as
they did not support the case of the prosecution. Such witnesses are PW.7
Raju Vaze who signed the panchnama relating to seizure of revolver of accused
No. I and his clothes at the Colaba Police Station. PW. I 0 Vijay Rauth was the
panch witness to the preparation of the panchnama relating to the scene of
F occurrence. PW.9 Safraj Ali was the panch witness who had accompanied the
police party to a place in Byculla from where certain items were recovered.
All the panch witnesses were declared hostile. PW.5 is the person from whom
the black coat had been purchased but he also did not support the case of
the prosecution. PW.8 Anil Mahendradkar the proprietor of Anil Tailors from
G where the shirt had been purchased, which was worn by accused No. I at the
time of occurrence, was not declared hostile, though he also did no fully
support the prosecution case. PW. I 3 Dattaram Kadam who is said to have
introduced accused No. I to PW. I8 Anil Gavkar, also turned hostile and
denied having introduced accused No. I to anyone. PW.18 Anil Gavkar also
H denied having introduced accused No. I to accuspd No. 3 in Yerwada Central
Prison. In fact he even denied that he knew accused No. I or accused No.
RA VINDRA SH ANT ARAM SA WANT v. ST ATE OF MAHARASHTRA (BISHESHW AR PRASAD SINGH, J.] 895

3. Both these witnesses were declared hostile. A
The trial court on a careful scrutiny of the evidence on record, in a
rather detailed judgment, held that the evidence produced by the prosecution
consisting of the evidence ofPWs.13 and 18 to the effect that PW.13 had
introduced accused No. l to accused No.3, who was his childhood friend, did
not prove the fact that accused No. l was introduced to Accused No. 3 in B
the Yerwada Jail. PW.13 and PW.18 did not support the prosecution case and,
therefore, their evidence was of no assistance to the prosecution. Referring
to the two confessional statements said to have been made by accused Nos.
l and 2, after examining the evidence on record, it came to the conclusion
that those confessions could not be relied upon as they did not appear to C
be voluntary. He further found that there was no evidence whatsoever to
connect accused No. 3 with the offence and, therefore, even ifthe confessional
statements were found to be voluntary and reliable, they could be of no avail
to the prosecution as the confessional statement of co-accused could be used
only to lend assurance to the conclusion reached on the basis of other
evidence on record which was completely lacking. On these findings, it was D
held that there was no evidence to connect accused No. 3 with the crime and
therefore, the prosecution had failed to prove that the accused had entered
into a conspiracy with accused No. 2 and 3 to commit the offence.

The trial court, however, accepting the prosecution evidence held that
so far as accused No. I is concerned, he had attempted to commit the murder E
of Ashwin Naik as well as the policemen who were escorting him, by firing
at them with his revolver. In this connection the trial court has placed
considerable reliance on the evidence of PW.4 Waghchaure who was fully
corroborated by PWs. I, 2, 3, and 6. As earlier noticed PWs. 3, 4 and 6 are
injured witnesses and their presence cannot be doubted. It further found that F
!Pe FIR was fully consistent with the case of the prosecution. The recoveries
• 111ade a11d the Chemical Analyser's Reports supported and corroborated the
prosecution case. The report of the Ballistic Expert also established that some
of· he ou1:ors were fired from the revolver seized from accused No. I. On
consideration of the material on record the trial court held that so far as
accused No. 1 is concerned the prosecution had succeeded in proving his G
guilt.

The trial court rejected the defence of accused No. l that while he was
going to the Employment Exchange, he was hit by a stray bullet on his head
and, therefore, he became unconscious and regained consciousness only
when he was admitted in the St. Georges Hospital. The evidence on record H
896 SUPREME COURT REPORTS [2002] 3 S.C.R.

A clearly established that he was conscious all along and that he had not
become unconscious at any stage. The defence raised by accused No. l that
someone fired a few shots from a revolver and ran away after throwing away
the revolver which was planted on him, was not convincing. Moreover there
was no reason for the witnesses to falsely implicate accused No. r with whom
they had no enmity.
B
The trial court further held that the manner, place and circumstances
in which the offence was committed, clearly established that an offence under
TADA had been committed. He, therefore, found accused No. l guilty of the
offences under Sections 3(2)(ii), 5 and 6 of TADA, under Sections 25(1-B)(a)
C and 27 of the Arms Act as also under Sections 307 and 333 of the Indian Penal
Code.

The Court, however, did not accept the prosecution case in so far as
it related to accused Nos. 2 and 3 abetting the commission of the terrorists
Act, or the attempt to commit murder by accused No. 1.
D
The trial court was also not impressed with the evidence relating to the
identification of accused No. 2 in the Test Identification Parade by the five
members of the escorting team. It, therefore, discarded the evidence of
identification the Test Identification Parade. The Court was of the view that
having regard to the facts and circumstances of the case, the witnesses might
E not have had sufficient opportunity to notice the features of accused No. 2
who is said to have run away when the police party retaliated. It, therefore,
gave to accused No. 2 the benefit of doubt.

The trial court held that there was no material to establish that accused
Nos. l and 2 were members of a terrorists gang because even though cases
F had been instituted against accused No. 3, he had not been convicted even
in a single case. On such findings the trial court acquitted the accused Nos.
2 and 3 of all the charges levelled against them convicted and sentenced
accused No. l. as earlier noticed.

The State has not preferred an appeal against acquittal of respondent
G Nos. 2 and 3 and, therefore, it is not necessary for us to deal with the
evidence which relates to their complicity in the commission of the offence.
We shall, therefore, not refer to the evidence led by the prosecution to
establish the existence of the conspiracy or to establish the abetment of the
offences by accused Nos. 2 and 3. We shall confine ourselves to the evidence
H on record which implicates accused No. I alone.
RAVINDRA SHANTARAM SA WANT 11. STATE OF MAHARASHTRA {BISHESHWARPRASADSINGH,J.] 897
Before adverting to the evidence of the prosecution, it may be useful A
to notice the defence of accused No. l as is apparent from his statement
recorded under Section 313 Cr. P.C. In answer to question No. 155, accused
No. l stated thus :-

"On. 18.4.94 at about 3 pm, I was going towards the Employment
Exchange. My certificates were with me. I entered the precincts of the B
court, from the Southern side gate of the New Court building. All of
a sudden I noticed the shots being fired through the fire arm. Before,
I could guess as to what was going on, one bullet hit me on my neck
and so l fell down because l felt giddiness. l became unconsdous.
When l regained the consciousness, l came to know that l was in the C
St. George's Hospital. l enquired with the policemen there about my
file containing the certificates. The policemen did not tell me anything
then. Police have want only involved me in a false case, and l have
been in the jail from last three years."

The defence had made suggestions to the prosecution witnesses from D
which it appears that it was the case of the defence that the so called eye
witnesses had not seen the person who had fired the shots at Ashwin Naik,
~ and that the person who had fired the shots dropped the weapon and ran
away.

Accused Nos. 2 and 3 have also denied their complicity and while E
accused No. 3 stated that he was not in any manner connected with the crime,
accused No. 2 denied that he had ever visited the Court premises or made
a confessional statement. In fact his signatures were obtained on blank
papers by use of force which were later utilized to record the so called

- "
confessional statement.

PW. l, AS! Thorawat is the first informant. He has deposed to the effect
that on l 8th April, l 994 at 7 .30 a.m. he had gone to the Police Head Quarters,
Thane. The duty distribution officer allotted to him the duty to take the
F

prisoner Ashwin Naik from Kalyan Jail to the TADA Court at Mumbai. He was
incharge of the escort party which included PW.2, PW.3 and PW.6. The escort G
team was provided •"ith a police van, driven by driver Bhingale. He went to
Kalyan Jail where prisoner Ashwin Naik was handed over to him alongwith
the production warrant at about l 0.20 a.m. The accused was handcuffed and
was made to sit in the police van. Another police van carried five other co-
accused and some other prisoners to the Sessions Court escorted by another
police team. Both the vehicles reached the Sessions Court at Mumbai at about H
898 SUPREME COURT REPORTS [2002) 3 S.C.R.

A 12.30 p.m. Eleven accused were brought in the second van out of whom five
were facing trial alongwith Ashwin Naik and the remaining six were required .. _.
in connection with some other case. ASI Waghchaure, PW.4 was incharge of
the escorting party of the five accused who had to face trial with Ashwin
Naik. He then described the location of the TADA Court in Session Court
B premises. He claimed to have produced the accused Ashwin Naik before the
TADA Court. So did ASI Waghchaure. They were told by Sheristedar of the
Court that the case would come up at about 2.45 p.m. in the afternoon
session. The concerned TADA Court was located on the 5th floor of the new
building. The escort team escorting the five co-accused went down the stairs
but he stayed with prisoner Ashwin Naik and the escort party in the improvised
C room near the Court. Thereafter he again produced Ashwin Naik before the
Court at about 2.45 p.m. The other five co-accused were also brought to the
Court hall. Since the case was adjourned t<? 22nd April, 1994, after collecting
the warrants from the Court Sheristedar, they proceeded to the police van
which was parked in the premises of the Sessions Court. The e~cort team
D headed by ASI Waghchaure, PW.4, escorting the five co-accused went down
by the stair case. He and other members of the escort team escorting Ashwin
Naik followed them. After coming to the ground floor they all proceeded to
the police van which was parked in the Court compound on the Southem side
of the building. When he came out of the Court building and was proceeding
towards the police van, he looked behind and noticed a young boy wearing
E the attire of an advocate with revolver in his hands. He fired two/four rounds
from his revolver. One of the bullets hit the lower part of the head of Ashwin
Naik from the back. At that time Constable Nikam, PW.6 was walking alongwith
the prisoner and was on his right side. Constable Bhingardive, PW.3 was on
the left side of Ashwin Naik. The escort team of ASI Waghchaure, PW.4 was
F in front of Ashwin Naik. The witness was walking behind Ashwin naik. The
distance between him and Ashwin Naik was a~out 10 feet. When the shots
were fired accused No. l was at a distance of about 20 feet from him. Two
of the bullets fired by him hit the two constables, PW.3 and PW.6. All the
three injured persons fell down. PW.2, Saundane, a trained commando armed
with a carbine started firing in the direction from which the bullets were fired.
G One of the bullets fired from the carbine also hit accused No. l. PW.2
pounched upon accused No. l and over powered him. The witness (PW.I)
snatched the revolver from the grip of accused No. l who was holding the
revolver with both his hands. At about that time Police Inspector Bhagwat
and Police Inspector Rathod, PW.11 also reached the place of occurrence.
H Police Inspector Rathod, PW.11 took accused No. l in his custody after
enquiring about his name etc. and thereafter took him to the Colaba Police
RA VINDRA SHANTARAM SA WANT ~. ST ATE OF MAHARASHTRA (BISHESHW AR PRASAD SINGH, J.J 899
Station. When accused No. I was apprehended there were number of persons A
who had gathered but one person ran away from that crowd, whom he could
identify, if shown. He, thereafter took the three injured persons, namely
prisoner Ashwin Naik, PW.3 and PW.6 to the St. Georges Hospital. This
witness has further stated that after relieving accused No. I of the revolver,
he handed over the same to Police Inspector Rathod, PW. I I. AS! Waghchaure.
PW.4 also accompanied the injured witnesses to the St. Georges Hospital. At B
the hospital his statement was recorded by Police Inspector Gaikwad, PW.19.
He proved the said statement which was marked as Ext. 10. By the time his
> statement was recorded accused No. I was also brought to the St. Georges
Hospital. On seeing him he told Police Inspector Gaikwad, PW. 19 that he was
the same person who had fired at Ashwin Naik. PW.19 recorded his further C
statement. The witness has deposed about the identification parade in which
he identified accused No. 2. The witness also identified the revolver and the
carbine which were seized in the course of investigation. In the course of his
cross-examination this witness stated that he remained at the St. Georges
Hospital till about 11.30 p.m. Inspector Gaikwad, PW.19 had met him in the
hospital at about 3.20 p.m. and he must have taken about I hour or I Y, hours D
to record the statement.

The witness stood the test of cross-examination and answered all
questions in a forthright manner. Small discrepancies were sought to be
highlighted such as that he had not stated before PW.19, the Investigating E
Officer that the Commando had encircled the body of accused No. I with both
his hands when he caught him. It was also sought to be highlighted that the
witness had not stated before the investigating officer that after being injured,
the two constables fell down. He denied the suggestion that he had not seen
the person who had fired at Ashwin Naik. He further clarified that only two
persons had used fire arms, namely-accused No. 1 and the Commandor, PW.2. F
PW.2 was the only member of the escorting party who was armed. There is
hardly anything in the cross-examination of this witness which may impeach
his credibility.

The next important witness is PW.4 AS! Waghchaure. He has deposed
on the same lines as PW. I. He has corroborated PW. I by saying that he was G
walking ahead of Ashwin Naik and that when he had walked a distance of
about 15 paces after coming out from the Court building the escort party
escorting Ashwin Naik, which was following him and Ashwin Naik was hardly
2-3 feet behind him. All of a sudden, he heard a gun shot being fired and,
therefore, he looked back. He saw Ashwin Naik falling on the ground and H
900 SUPREME COURT REPORTS [2002] 3 S.C.R.

A he also noticed a person in a lawyer's attire firing the shots from his revolver.
Constable Nikam, PW.6 and Constable Bhingardrive, PW.3 also sustained
bullet injuries who were on the right and left side of Ashwin Naik. PW.2
Saundane opened fire and one of the bullets hit the person who was firing
from his revolver. He also rushed to catch hold of that person but in the
meantime that person fired at him arrd he received two injuries on his left
B hand. However, he pounched upon that person and he was also helped by
PW.2. PW. I, ASI Thorawat also came there and snatched the revolver from
the hands of accused No. I. At about that time two Inspectors came there
to their aid and they took the accused in their jeep towards Colaba Police
Station. He placed injured Ashwin Naik alongwith injured constables and ASI
C Thorawat in the van and proceeded to St. Georges Hospital. This witness
further clarified that on that date service revolver was not issued to him
because there was shortage of service revolvers. Normally an ASI is issued
a service revolver when he goes on escorting assignment. ASI Thorawat was
also not issued a service revolver on that date. Though cross-examined at
length, there is hardly anything in his cross-examination which may cast a
D reflection on the truthfulness of this witness.

The testimony of the other injured witnesses, namely PW.3 Bhingardive
and PW.6 Nikam are wholly consistent with the testimony or PW. I and PW.4.
PW.2 has also fully supported the prosecution case and his evidence fully
E 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 trust worthy. It
leaves no manner of doubt that accused No. I fired at Ashwin Naik and in
the process injured two police constables as well as ASI Waghchaure, PW.4.
F In retaliation PW.2 fired from his carbine causing injury to accused No. I. 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. I. According to accused No. I, as is evident from
G 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 Employing Exchange and unfortunately he was
struck by a stray bullet. The person who had actually fired at Ashwini Naik
threw away his revolver and ran away. That revolver was planted on him and
H the prosecution made out a false case implicating him in the crime. He was
RA VINDRA SHANT ARAM SAW ANT 1•. ST ATE OF MAHARASHTRA [BISHESHW AR PRASAD SINGH, J.J 901

an innocent passer by and was caught in the cross-fire. Having regard to the A
defence of accused No. I, 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. I who
fired at Ashwin Naik or whether some one else fired at Ashwin Naik and fled
after throwing away the revolver.
B
The direct testimony of the eye witnesses is unambiguous and each one
of them has clearly stated that it was accused No. I who was seen firing from
his revolver. There appears to be no reason why the witnesses would falsely
implicate Accused No. I. It is not as if accused No. I 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 C
this was the first assignment of accused No. I. We are, therefore, satisfied
that the witnesses have truthfully stated that they had seen accused No. I
firing at Ash win Naik and it was he who fired at members of the police party
escorting Ashwin Naik. Moreover one fails to understand why accused No.
l was there in the attire of an advocate. Admittedly he is not an advocate, D
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. I I, 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. E
Before us Mr. Sushi! Kumar, Senior Advocate, appearing on behalf of
the appellant advanced five submissions. Firstly, it was submitted that the
appellant was not arrested in the manner alleged nor was he involved in the
shoot out. He was himself a victim who was hit by a stray bullet. Secondly,
there is no reliable evidence regarding recovery of the weapon of offence from F
the appellant as also regarding seizure of the clothes worn by him. This
submission was apparently advanced because the seizure witness on the
point was declared hostile. Thirdly, it was submitted that weapon allegedly
seized was not connected with the offence. Fourthly, it was submitted that
in any event no offence under TADA had been made out. Lastly, he made G
his submission on the nature of offence and the proper sentence to be
passed.

Conscious of the consistent testimony of Pws. I, 2, 3, 4, and 6, learned
counsel submitted that all these witnesses are police personnel. Not a single
witness had been examined by the prosecution from amongst the members of H
902 SUPREME COURT REPORTS [2002] 3 S.C.R.

A the public, even though many persons must have witnessed the occurrence.
Reliance was placed on the judgment of this Court in Pradeep Narayan
Madgaonkar and Ors. v. State of Maharashtra, (1995] 4 SCC 255 and it was
submitted that in the absence of independent witnesses, meaning thereby
non police witnesses the case of the prosecution should not be accepted in
the absence of independent corroboration of their testimony. We have carefully
B perused the judgment of this Court and we find that the aforesaid judgment
does not assist the defence. It was held that the evidence of official (police)
witnesses cannot be discarded merely on the ground that they belong to
the police force and are either interested in the investigating or the prosecuting
agency. But prudence dictates that their evidence needs to be subjected to
C strict scrutiny and as far as possible corroboration of their evidence in
material particulars should be sought. Their desire to see the success of the
case based on their investigation requires greater care to appreciate their
testimony.

One cannot loose sight of the fact that in the instant case three of the
D police witnesses, namely, PW.3, PW.4 and PW.6 are also injured witnesses.
The police party in the instant case was the victim of assault launched by
accused No. I. They cannot, therefore, be described as official witnesses
interested in the success of the investigation or prosecution. They are eye
witnesses who were injured in the course of the incident. In fact the testimony
E of such witnesses, does not require independent corroboration, if otherwise
their evidence is found to be truthful and reliable. 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
F corroboration of their testimony was not necessary in the facts and
circumstances of this case. Moreover one cannot loose sight of the realities
of the situation. In a case of this nature, where two gangs are fighting for
suprem.acy, 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
G 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 galery 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
H forward to tell him anything about the incident. The manner in which they
RA VlNDRA SHA NT ARAM SAW ANT ''· ST ATE OF MAHARASHTRA {BJSHESHW AR PRASAD SINGH. J.j 903

talked to him, gave him the impression that they were afraid to speak. Moreover, A
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, B
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
c
be rejected outright. There appears to be a ring of truth in the case of the
prosecution that accused No. I 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. I. therefore, cannot be accepted. D
The second submission of learned counsel for the appellant is a!So
devoid of merit. The consistent case of the prosecution is that PW. I and
PW.2 pounded upon accused No. I and pressed him to the ground. PW4. also
came to their aid and in the meantime two other police inspectors including rl
PW.I I reached the spot. PW.I, AS! Thorawat has categorically stated that fl.
after PW.2. Commando Saundane caught hold of accused No. I and pressed
him to the ground, he snatched the revolver from accused No. I who was
holding the revolver in both his hands. The revolver was handed over to
Police Inspector Rathod, PW. 11 who had already come there and apprehended
the accused and who took him in his vehicle to Colaba Police Station. On this F
aspect of the matter the evidence of the prosecution is consistent. At the
Colaba Police Station Duty Inspector Issaq Bagwan and PW.12 AS! Barse
were present. The matter was reported to Inspector lssaq Bagwan who directed
AS! Barse to draw up the Panchnama relating to the seizure of the revolver
and the clothes of accused No. I. PW.12 noticed the injuries on the neck of
accused No. I. The panch witness associated with the preparation of the G
panchnama, namely PW.7 Raju Vaze was declared hostile. The other panch
witness who was associated could not be examined as he was dead. There
is evidence to support the prosecution case that all the seized articles were
kept in the safe and the store under the custody of PW.19. Those articles were
sent to the Forensic Science Laboratory and the person who took them to the H
904 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Forensic Science Laboratory was Hawaldar Uma Kant, PW, 17. The report of
the Chemical Analyst as well as the report of the Ballistic Expert Fully
establish the fact that the aforesaid revolver was used and the empties were
fired from the said revolver. The said reports fully corroborate the case of the
prosecution. It is true that the seizure panchnama could not be proved on
account of the fact that the panch witness turned hostile, but there is over
B whelming credible evidence on record to establish that accused No. I was
firing from his revolver and after he was over-powered,_PW. 1 relieved him
of his revolver and handed over the same of PW.12, Police Inspector Rathod,
who in turn handed over the revolver to PW.12 AS! Barse. Later all the seized
articles were taken charge of by PW.19, the investigating officer.
c 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 in inter-connected with the second submission.
We have already referred to the report of the Ballistic Expert and the report
D 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. "--

Much was sought to be made of the fact that the medical evidence on
record falsities the prosecution case that only five shots were fired whereas
E there were as many as 8 gun shot injuries on Ashwin Naik and the injured
policemen, as deposed by Dr. Bakshi, PW.21. It was also argued before us that
if PW.2 had. fired 25 shots from his carbine, and the accused has also fired
five shots from his revolver, many more injures should have been caused. It
was, therefore, submitted that the prosecution has not come forward with the
F truthful version of the occurrence. It was submitted that the prosecution had
not explained how one bullet was found tucked in the collar of the coat.
Moreover one bullet was recovered after a surgery was performed on PW.3
at the hospital. That bullet was not sent for examination by the Ballistic
Expert.

G As we have observed earlier, the fact that the occurrence took place
cannot be disputed. In an incident of this nature it would be impossible for
the prosecution witnesses to account for each and every bullet fired in the
course of the incident. The prosecution is not expected to account for all the
empties and the bullets fired in the course of occurrence, because apart from
bullets which are found embedded in the wounds of the injured witnesses,
H the other bullets may be lost or destroyed after hitting some hard surface. It
RA VINO RA SHANTARAM SA WANT v. ST ATE OF MAHARASHTRA {BISHESHW AR PRASAD SINGH, J.] 9()5

is, therefore, not possible for the prosecution to collect and account for all A
the bullets and empties with mathematical precision. It is also not possible for
the prosecution in an incident of this nature to explain each and every injury
suffered by the witnesses. We are not permitted to conjecture as to how
injuries may have been caused in an incide.nt of this nature where firing has
taken packs from both direc~ions. According to the doctor, there are as many B
as 8 gun shots injuries. So far as injuries on PW.4 is concerned, Dr. Bakshi,
PW .1 has not ruled out the possibility of the same shot causing both the
injuries. It may be possible that one bullet may have caused more than one
>
injury. It is difficult for us to speculate because it may be that some of the
shots fired by accused No. l may. have injured more than one witness,
because apart from PW.3 no bullet was found stuck in any of the injuries C
suffered by other witnesses.

It was then submitted that there is no evidence to prove where the
revolver was kept after its seizure. Evidence on record discloses that PW.12
ASI Barse had prepared the seizure parichnama relating to the revolver. PW.19
has stated that he took charge of all the articles which were seized by API D
Jadhav and API Barse, PW.12. He saw to it that all the articles were properly
labelled and sealed. He kept all those articles in his custody in the safe. The
clothes and other articles were kept in the store. Relevant entries were made
by the officers concerned in the muddamal register and the register maintained
by the Store Hawaldar. The evidence of PW.17, Uma Kan~ the Store Hawaldar E
is to the effect that on 26th April, 1994 a forwarding letter was prepared in
the prescribed proforma and the muddamal property in this case which was
in the custody of PW.19, Investigating Officer, was handed over to him. He
ascertained that the seals of all the articles were intact. He also found that
the clothes and the other articles, which were stored in the store room, were
• also duly sealed and labelled. He was directed to carry those articles to the F
Chemical Analyser on the same date but since he was deployed on bandobast
duty on 26th and 27th April, 1994, he carried the muddamal properties to the
Chemical Analyst on 28th April, 1994.

It thus appears from the evidence on record that after PW. 19 took
charge of the muddamal properties he got the articles kept in the safe and the G
clothes etc. were kept in the store. They were all duly packed, labelled and
sealed and were handed over to the Store Hawaldar for being taken to the
Chemical Analyst on 26th April, 1994. We are, therefore, satisfied that the
revolver after its seizure was properly kept in safe custody under the charge
of PW.19 and was thereafter sent to the Chemical Analyser (Forensic Science H
906 SUPREME COURT REPORTS (2002) 3 S.C.R

A Laboratory) where they were received on 28th April, 1994.
It was submitted that one bullet was recovered fr4:)m the wound of PW.3
when he was operated upon. It appears that the operation took place on the
following day. There is nothing on record to suggest that the doctor either
infonned the Investigating Officer about the recovery of the bullet or handed
B over the same to him. In fact no question was put to the doctor on this aspect
of the matter when he was in the witness box. Learned counsel for the State
is therefore, right in submitting that no fault can be found with the investigating
agency when the evidence discloses that after removal of the bullet from the
wound of PW.3, neither the Investigating Officer was informed about it nor
C was the bullet removed from the wound sent to him for further action.

Counsel for the appellant further submitt.ed that in the coat, which is
said to have been seized from accused No. I four holes were found and in
addition one bullet was found tucked in the collar of the coat. This bullet was
found to have been fired from a .38 caliber revolver. He submitted that it has
D not been explained by the prosecution as to how this bullet got tucked in the
coat of the accused. In our view it was neither necessary nor was it possible
for the prosecution to explain how the holes were caused· in the coat of the
accused, and by what process one bullet was tucked in the collar of the coat.

More over these are hardly matters which will cast. a reflection on the
E case of the prosecution. As we have observed wh~n firing took place from
both directions, it was not possible for the witnesses to notice in which
direction the bullets were flying.

Lastly it was submitted that in view of the findings recorded by the irial
court, namely that there was no conspiracy to commit the offence, that it was
F not established that accused Nos. 2 and 3 belonged to a terrorist gang and
that the accused did not share a common intention to commit the offence, the
sub stratum of the prosecution case vanished and nothing remained on the
basis on which the appellant could be convicted. The submis!iion has 110
force. It is no doubt true that the prosecution has not been able to establish
G 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
H injured witnesses whose presence cannot be doubted and whose testimony
RA VINDRA SH ANT ARAM SA WANT " ST ATE OF MAHARASHTRA [B\SHESHW AR PRASAD SINGH. J.J 907

has been found to be truthful. In these circumstances even if the prosecution A
has failed to establish its case as against accused Nos. 2 and 3, it has
certainly proved its case as against accused No. I. The evidence which
implicates accused No. I 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 B
of accused No. I can be sustained.

It was lastly submitted that even on the basis of the facts proved at the
trial, no offence under TADA was made out. This was a simple case in which
• at best accused No. I attempted to commit the murder of Ashwin Naik, which
was an ordinary criminal activity which could be dealt with under the ordinary C
penal law. This was, therefore, not a case of an offence which answered the
description of a terrorist act under Section 3 of TADA.

It is no doubt true that even though the crime committed by a "terrorist"
and an ordinary criminal would be overlapping to an extent, it is not the
intention of the legislature that every criminal should be tried under TADA, D
when the fall out of his activity does not extend beyond the normal frontiers
of the ordinary criminal activity. The provision of the Act need not be
resorted to if the nature of the activities of the accused can be checked and
controlled under the ordinary law of the land. It is only in those cases where
the law enforcing machinery finds the ordinary law to be inadequate or not
sufficiently effective for tackling the menace of terrorism and disruptive E
activities that resort should be had to the drastic provisions of the Act. Some
difficulties, however, arise when the intended activity of the offender results
in striking terror or creating fear and panic amongst the people in general or
a section thereof. It is in this situation that the Courts have to be cautious
to draw a line between the crime punishable under the ordinary criminal law F
~ and the ones which are punishable under Section 3(1) of TADA. (See Hitendra
. ~nu Thakur v. State of Maharashtra and Ors., [ 1994] 4 SCC 602 and
Ni,·anjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya
and Ors.. [1998] 4 SCC 76.

In Javawant Dattatray Suryarao v. State of Maharashtra, JT [2001] 9 G
SC 605 after an exhaustive consideration of the authorities on the subject, this
Court observed:

"In our view, it is not possible to define 'terrorism' by precise words.
Whether the act was committed with intent to strike terror in the
people or a section of the people would depend upon facts of each H
908 SUPREME COURT REPORTS [2002] 3 S.C.R.

A case, further, for finding. out intention of the accused, there would
hardly be a few cases where there could be evidence. Mainly it is to
be inferred from the circumstances of each case. In appropriate cases,
from the nature of viole~t act, inference can. be culled out. There can
also be no doubt that fall out of violent act vary from person to
person ahd society to society but· is well understood by a prudent
B person and by those who are affected.

That was a case in which the accused armed themselves with
sophisticated weapons and attacked their victim in the J.J. Hospital, despite
the fact that police guards had been posted to give protection. In the process
C they shot dead one member of the rival gang and two policemen on duty.
Considering the facts of that case, this Court observed :

"As confessed by A-2 Suryarao, President of Bhiwandi municipal
corporation, he sought assistance from A-7 and others and thereafter
it is his say that he was required to comply with the illegal demand
D of A-7 of rendering assistance to A-6 and A-7 after commission of the
offence. Further, the intention of the accused could be gathered from
their act of shooting the police guards who were on duty and causing
injury to others whosoever came in their way. In such a situation 1 it
...
could be inferred that the dastardly act was to administer a terrqr or
a shockwave in the people at large and convey that the fate of all
E those who did not obey their dictates or oppose them would be the
same as that of Shailesh Haldankar. It further conveys that police
guard on duty cannot save the victim, but they also may meet the
same fate. Not only this, the crime was perpetuated in a protected
place i.e. J.J. Hospital by master-minding the operation of the achieving
F the target. Necessary information was collected and after equipping
themselves with sophisticated weapons they went to the hospital
where patients and staff on duty went.helter-skelter, witnesses turned
hostile, PW42 PSI Thakur who was police officer on duty could not
do any thing to protect anyone and after giving detailed FIR failed to
support the same before the court."
G

"Hence, there is no substance in the contention oft_he learned counsel
for the accused that there was no intention on the part of the accused
to strike terror and that the crime would not be covered by the
H terrorist activity as provided under section 3(1) of TAD~. We would
RAVINDRA SHANTARAM SA WANT "·STATE OF MAHARASHTRA (BISHESHWARPRASAD SINGH, J.J 909

again reiterate that whether the crime committed creates terror or not, A
depends upon the facts and circumstances of each case and cannot
be defined by precise words."

Keeping these prii~ciples 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 B
of a criminal gang. The accused did not have any personal aniinosity with
him, and even though the prosecuiion 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 C
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.
D
When a dastardly act is sought to be executed in such a bold and
daring manner, what is the message which the accused intents 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 not 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 E
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 F
witnessed 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 Ci\Se G
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 ~mmand in future. An
attempt was also made on the lives 0f three policeman which reinforces the
conclusion that the intention was to strike terror and the killing was attempted H
910 SUPREME COURT REPORTS [2002] 3 S.C.R.

A to achieve that objective. We have therefore no doubt, that the facts proved
to 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.
B
KK.T. Appeal dismissed.