Holding

The convictions under Sections 3 and 5 of the TADA Act and Section 307 IPC are unsustainable; the appellant is acquitted of all charges.

Summary

The appellant was convicted by a Designated Court under Sections 3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Section 307 read with Section 34 of the Indian Penal Code for allegedly storing lethal weapons, extorting money and threatening a police officer during a search. On appeal, the Supreme Court examined whether the alleged conduct satisfied the statutory definition of a “terrorist act” which requires a dominant intention to overawe the government, strike terror in the people, alienate a section of the people, or disturb communal harmony. The Court held that the evidence, including the confessional statement, did not disclose such dominant intent and therefore could not support a conviction under TADA. It further ruled that the alleged assault on the police officer did not amount to an attempt to commit murder under Section 307 IPC, as there was no overt act proximate to the intended killing. Consequently, the convictions under both TADA and the IPC were set aside and the appellant was acquitted.

Issues considered

Whether the appellant’s conduct constitutes a ‘terrorist act’ within the meaning of Section 3(1) of the TADA Act.
Whether a confessional statement recorded under Section 15 of TADA can be the basis for conviction.
Whether the alleged assault on a police officer amounts to an attempt to commit murder under Section 307 IPC.
Whether the convictions under Sections 3, 5 of TADA and Section 307 IPC are sustainable on the facts.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 307, s. 34
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 3, s. 5

Subjects

TerrorismTADAterrorist actdominant intentionconfessional statementattempt to murderIPC 307criminal appealacquittal

Judgment

SAGAYAM A
v.
STATE OF KARNATAKA

APRIL 26, 2000

[S. SAGHIR AHMAD ANDS. RAJENDRA BABU, JJ.] B

Tenvrist and Disruptii•e Activities (Prevention) Act, 1987 :

Ss. 3 and 5-'Termrist act'-What is-Accused in order to spread fear
in the minds of people and for exto11ing money, storing lethal weapons in his
house-Confessional statement-Conviction and sentence by Designated Cow1
c
Validity o.fHeld, to constitute an act to be a 'tenvrist act' it has to be committed
with the dominant intention (i) f.:J overawe the Govemment; or (ii) to strike
termr in the people, or (iii) to alienate any section of the people; or (iv) to
adversely affect the hmmony amongst d~fferent sections of the people-Acts
attributed to the accused or the confessional Statement do not disclose commis- D
sion of any 'tenvrist act'-Conviction set aside.

Penal Code, 1860-S. 307.

• Attempt to commit murder-Held, has to be distinguishedfrom an intent
to commit it or preparation to commit it. E

Attempt to commit murder-Accused t1ying to assault a police officer on
search-Officer escaping the assault without any injury-Held, would not
amount to attempt to commit murde1:

W01ili & Phrases : F

'Te1mrist act'-Meaning and scope o.f in the context of S. 3(1) o.f the
Te1mrist and Disruptive Activities (Prevention) Act, 1987.

Appellant was prosecuted for offences under Sections 3 and 5 of
Terrorists and Disruptive Activities (Prevention) Act, 1987 and under
G
Section 307 read with Section 34 of the Penal Code. The prosecution case
was that appellant in order to spread fear in the minds of the people and for
extorting money and valuables, stored lethal weapons in his house. When
PW 2 (ASI) went to his house for search, appellant unsuccessfully tried to
assault him. The Designated Court relying upon the evidence of Police H
565
566 SUPREME COURT REPORTS [2000] 3 S.C.R.
A Officers and confessional statement made by appellant under Exh. P-7
convicted and sentenced him. Hence the present appeal.

Allowing the appeal, the Court

HELD : 1.1. The ingredients of none of the section, arising under
B Terrorist and Disruptive Activities (Prevention) Act, 1987 or in the Penal
Code have been established against the appellant. Thus, conviction and
sentence imposed by the Designated Court is set aise. [571-D]

1.2. Under S. 3(1) of the TADA Act in order to constitute an act to be
a 'terrorist act' it should have been committed with the dominant intention
c to,

(i) overawe the Government as by law established; or

(ii) to strike terror in the people or any section of the people; or
D (iii) to alienate any section of the people; or

(iv) to adversely affect the harmony amongst different sections of the
people. [568-E-F]

In the instant case, if statements made by the witnesses are examined
E it is clear that it is only to the effect of recovering certain arms and
materials which could be used as lethal weapons, and vague allegations of
extortion or robbery. Though statements have been made that the appel-
lant used to extract money from public by wielding a knife so as to threaten
people an is involved in many cases of other illegal activities by itself could
F not lead to the conclusion that he has committed acts arising under Section
3 of the Act. Mere storing of certain weapons such as cycle chain, chopper
would not also lead to the conclusion that the accused has committed these
offences. [569-F -G]

Niranjan Singh Karam Singh Punjabi v. JitendraBhimraj Bijjaya, [1990]
G 4 SCC 76 and Hitendra Vishnu Thakur v. State of Maharatra, [1994) 4 SCC
602, relied on.

2. The confessional statement made by the appellant do not disclose
commission of any 'terrorist act' under Section 3(1) of the Act. Thus, the
H Designated Court was not justified in relying upo1,1 the confessional state-
ment for conviction of the appellant. [568-H]
SAGAYAM v. STATE [RAJENDRA BABU, J.] 567
3.1. To justify conviction under Section 307 IPC, it is not essential A
that bodily injury capable of causing death should have been inflicted. An
attempt in order to be criminal need not be the penultimate act fore-boding
death. It is sufficient in law if there is present an intent coupled with some
overt act in execution thereof, such act being proximate to the crime
intended and if the attempt bas gone so far that it would have been
B
complete but for the extraneous intervention which frustrated its consum-
mation. There are different stages in a crime. First intention to commit it;
second preparation to commit it; third, an attempt to commit it. Ir at the
tnird stage, the attempt fal~he crime is not complete but law punishes for
attempting the same. An attempt to commit crime must be distinguished
from an intent to commit it or preparation of its commission. [570-F -G] c
3.2. In the instan~ case, the evidences of PW 2 only establish that there
was a threat to assault him but the overt acts attributed to the appellant
could not amount to attempt to murder at best it can be one of attempt to
assault but there is not even an injury upon the victim. It is possible that
accused confronted PW 2 but that by itself could not result in coming to the D
conclusion thatit was an attempt to murder him. [571-B-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 289
of 2000.

From the Judgment and Order dated 3.6.97 of the Pril Sessions Court E
in Kolar at Karnataka in TADA No. 2 of 1994.

P.S. Narasimha, P. Sridhar, K.N. Jha and Bharati B.V.G. Pragasam for
the Appellant.

Sanjay R. Hegde and Satya Mitra for the Respondent. F

The Judgment of the Court was delivered by

RAJENDRA BABU, J, The appellant before us had been charged for
offences under Sections 3 and 5 of Terrorists and Disruptive Activities Act,
1987 and under Section 307 read with Section 34 of the Indian Penal Code. G
The case against the appellant and accused No. 2 (who was absconding whose
case was separated) are rowdy elements and are so recorded in the concerned
Police Stations. It is alleged that there are 17 cases registered against them the
details of which are not forthcoming. On the charge sheet being filed before
the Jurisdictional Magistrate, he committed to the Court of the Principal H
568 SUPREME COURT REPORTS [2000] 3 S.C.R.
"'
A Session Judge at Kolar. Later the case had been treated as one arising under
TADA and filed by the Designated Court.

The appellant pleaded not guilty to the charges. The prosecution
examined as many as 9 witnesses and statement of the appellant under Section
313 Cr.P.C. is also recorded. The defence taken up by the appellant is that the
B case pleaded against them is totally concocted and the wiu1esses who are
police personnel have given interested testimony. Witnesses other than police
officers did not support the case of the prosecution. The witnesses PW s 2 to
5, 7 and 8 raided the premises of the appellant and conducted investigation
at different stages. The Designated Court relying upon the evidence of 8 police
c officers and a confessional statement made under Exh. P-7 c.;onvicted the
accused under Sections 3 and 5 of the TADA and Section 307 IPC and
convicted him to undergo sentence of 5 years under TADA and 10 years under
Section 307 IPC. Against the said conviction and sentence passed against the
appellant, this appeal is filed. _....

D In order to constitute an act to be a 'terrorist act', the meaning assigned
to that expression under Section 3(1) of the TADA has to be borne in mind
and the expression "terrorist" has to be accordingly construed. Section 3 has
come up for consideration before this Court on many occasions and the
decisions rendered therein lay down that the person who does any act by using
E any of the substances enumerated in the aforesaid provision in any manner as
specified therein cannot be said to commit a terrorist act unless the act is done
with the intent to do :

1. To overawe the Government as by law established; or

2. To strike terror in the people or any section of the people; or
F
3. To alienate any section of the people; or

4. To adversely affect the harmony amongst different sections of
the people.
G The evidence upon which the Designated Court relied is that the
appellant in order to speared the fear psycohosis in the minds of the people
stored lethal weapons in his house, besides committed the act of terror in the
people. or in the section of people by threatening many people like business-
men, autorikshaw drivers and others and forcibly snatched away money,
H valuable from them. In reaching this conclusion, the Trial Court relied upon
SAGAYAM v. STATE [RAJENDRA BABU, J.] 569
Exh. P-7 made to a Police Officer. If the allegation made against the appellant A
does not establish any of the acts under Section 3(1) of the Act to which we
have adverted to above and all the acts attributed to him should have been
done with the intent to cause any of the above four acts; tha.: such requirement
would be satisfied only if the dominant intention of the doer is to cause the
aforesaid effect. It is ·not enough that the act resulted in any of the four
B
consequences. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj
Bijjaya, [1990]4 SCC 76; it is stated that when the allegation was that the
accused was alleged to have killed two persons for gaining supremacy in the
underworld, a mere statement to the effect, that the show of such violence
would create terror or fear in the minds of the people and none would dare
to oppose them cannot constitute an offence under Section 3(1) of the Act. The C
consequence of such violence is bound to cause panic and fear but the
intention of committing the crime cannot be said to be to strike terror in the
people or any section of the people. In Hitendra Vishnu Thakur v. State of
Maharashtra, [1994] 4 SCC 602 this Court noticed the distinction between the
act done with the requisite intent and another act which had only ensued such D
consequences. In that decision, it is further noticed that a terrorist activity is
not confined to unlawful activity or crime committed against the individual or
individuals but it aims at bringing about terror in the minds of the people or
section of people disturbing public order, public peace and tranquility, social
and communal harmony, disturbing or destabilising public administration and
threatening security and integrity of the country. Thus, the legal position is that E
whether the act was done to overawe the Government as by law established
and to strike terror in people or any section of the people, etc. If we examine
the statements made by the witnesses who are Police Officers in this light it
is clear that it is only to the effect of recovering certain anns or materials
which can be used as lethal weapons and vague allegations of extortion or p
robbery. Though statements have been made that the appellant use to extract
money from public by wielding a knife so as to threaten people and is involved
in many cases of other illegal activities by itself would not lead to the
conclusion the he has committed acts arising under Section 3 of the Act. Mere
storing of certain weapons such as cycle chain, chopper would not also lead
to the conclusion that the accused has committed these offences. G

The sheet anchor of the prosecution case is the confessional statement
Exh. P-7. It is stated by P.W. 7, Sri M.V. Murthy, Superintendent of Police that
he recorded confessional statement after observing due formalities and admin-
istering due warning as required in law that the statement made by him may H
570 SUPREME COURT REPORTS (2000] 3 S.C.R.
A be used against him. The statement has been recorded in the questjon and
answer form and even before he affixed his signature to the said statement,
due warning is stated to have been again administrated to him that his
statement may be used against him in evidence and even so he signed the same
voluntarily. The confessional statement which is marked as Exh. P-7 indicates
that he used to go to Mines and used to commit theft of gold and iron articles
B
and he used to terrorise people with the help of his group of friends and used
to forcibly collect money, gold jewels etc. from the passers by and also from
the businessmen; that he used to give threat to life along with his friends
Janson, Raja Harry Aseer and his brother Thangam; that he also admitted that
he used to store lethal weapons in his house such as 'Katti' (knife or sword),
c cycle chains which were to get money and he used to get the weapons by
threatening the workshop owners and used to collect cycle chains; that
whenever any complaint was made against him, he used to destroy the
property of the complainant and he used to harm the witnesses we would give
evidence against him; that there are many cases against him and others in
D Andersonpet, Robertsonpet, Marikuppam and Championreefs' Police Stations.
Taking this entire statement as a whole, the acts attributed to the appellant do
not amount to any terrorist activity answering the test to which we have
adverted to earlier. Therefore, the charge framed against him under the TADA
Act falls to the ground much less could the Designated Court have relied upon
the so called confessional statement recorded in terms of Section 15 of the
E TADA Act to come to such a conclusion.

To justify conviction under this Section 307 IPC, it is not essential that
bodily injury capable of causing death should have been inflicted. An attempt
in order to be criminal need not be the penultimate act fore boding death. It
p is sufficient in law if there is present an intent coupled with some overt act
in execution thereof, such act being proximate to the crime intended and if the
attempt has gone so far that it would have been complete but for the extaneous
intervention which frustrated its consummation. There are different stages in
a crime. First intention to commit it; second preparation to commit it; third,
an_attempt to commit it. if at the third stage, the attempt falls, the crime is not
G complete but law punishes for attempting the same. An attempt to commit
crime must be distinguished from an intent to commit it or preparation of its
commission.

ASI Rajanna PW 2 was deputed to search the house of the appellant
H along with two other members of his staff. When he went to the house of the
SAGAYAM v. STATE [RAJENDRA BABU, J.] 571
appellant along with the other officers, the accused tried to assault them. He A
somehow escaped from the assault. Again accused is said to have tried to
pierce with a sword but he escaped that assault and caught hold of him but
then he threatened that he would kill. This is all the evidence that have been
given by the ASI which would only mean that there was only a thfeat to assault
the said Rajanna but the overt acts attributed to him would not amount to
B
attempt to murder, at best it can be one of attempt to assault but there is not
even an injury upon the victim.

A charge of this nature when there is not even an injury upon the victim
cannot lead to an inference that there was any attempt to kill when the incident
took place. It is possible that the accused confronted the ASI Rajanna but that C
by itself would not result in coming to the conclusion that it was an attempt
to murder him.

l The ingredients of none of the sections arising under the TADA or in
the IPC have been established. We find the prosecution case does not hold
water and cannot stand scrutiny much less a close one. Therefore, we set aside D
the conviction recorded against the appellant and acquit him of all the charges
framed against him. If he is in jail serving sentence, he shall be set at liberty
at once unless he is required in any other case.

S.V.K.I. Appeal allowed.