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TMI Blog2003 (8) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... these fanatic acts of misguided people innocent lives are lost, distrust in the minds of communities replaces love and affection for others. Neighbours belonging to different communities who have lived like brothers for ages start viewing each other with suspicion and hatred. Their compassion is first replaced by a sense of diabolic designs. The object of these misguided people - the terrorists - seems to be to spread a message of terror and strike fear in the hearts of the citizens. The present case amply reflects the designs of some people to perpetrate such acts. The temple of democracy in the country - the Parliament - did not also escape the wrath of such people. Whoever did it, wanted to disturb the equilibrium in the minds of the citizens. The millions of peace loving citizens in the country are threatened to be put on a ransom by a group of people. 2. The background scenario with which the case at hand is concerned reveals the macabre designs of a group of such people. The Kingpin of the whole case is a person called Ahmed Umar Sayeed Sheikh (described shortly as 'Umar Sheikh') a British national and trained militant who allegedly received training in Afghanista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and a fine of ₹ 50,000/- each. For the said offence, others were convicted and sentenced to life imprisonment and a fine of ₹ 50,000/- each. A-2 and A-7 were sentenced to 10 years imprisonment for harbouring and concealing the terrorists under Section 3(4) of the TADA Act. All the six accused persons were found guilty for the offence punishable under Sections 3(1) and 3(5) of the TADA Act. Nazir Khan (A-1) and Naser Mohmood Sodozey (A-8) were also convicted under Section 14 of the Foreigners Act for having entered India without valid permission and valid documents. They were each to undergo 5 years rigorous imprisonment and a fine of ₹ 25,000/- each. Since the death sentence awarded to the three accused appellants is subject to confirmation by this Court, Death Reference No. 1 of 2003 has been made to this Court. 6. To continue the narration of facts as presented by the prosecution, Umar Sheikh visited several places in Pakistan and met Abdul Rauf and other militants associated with Harkat-ul-Mujahiddin (in short 'HUM'). He came in contact with other militant organizations like Jamet-e-Islamic and Al-e-Hadees. He was given a mission to perpetrate terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Embassy and American Embassy, and to various news agencies (in India and abroad), newspapers and the demand was that the Government of India should release 10 hard core terrorists from jails. Copies of the demands were faxed to President, Prime Minister and other dignitaries. Three days' time was given for meeting the demands and the threat was given that in case the demands were not met, the kidnapped foreigners would be killed. As indicated above, it was just a fortunate and providential co-incidence that led the revelation of the conspiracy hatched. On 31.10.1994 a police party headed by Station Officer, Satya Dev Yadav of Police Station, Mussourie near Ghaziabad, had gone to Nai Basti, Mussourie in connection with the investigation of a theft case. Since they found a person running suspiciously they entered the house from which the person had jumped out and ran away. They found the door bolted from inside and when nobody respondent, they broke open the door and entered the house. An American national was found chained inside the room with a spike. He was unchained and released and on enquiry he disclosed how he had been abducted from Delhi. From there he was brought to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice swung into action. On interrogation, the details of hide outs were found out and on raiding them huge quantity of arms and ammunitions including AK-47 rifle were seized. The name of the two persons involved in the operation i.e. Mohmood @ Ayub (A-7) and Nasar Mohmood (A-8) surfaced during investigation. Rest were declared proclaimed offenders as they could not be arrested in spite of best efforts. However, three of the proclaimed offenders were later arrested. A-2 was arrested by Assam Police while A-7 was arrested by Jammu and Kashmir Police and A-8 was arrested by Srinagar Police. During investigation, it came to light that not only the effort was of kidnapping the foreigners who had already kept as hostages, but intention was to kidnap many more so that greater pressure can be used for getting release of 10 hard core terrorists who were the members of HUA. 8. Since accused Umar Sheikh was released from Tihar Jail along with other militants no charge was framed against him but charges were framed against rest of the accused persons under various provisions. 9. During investigation, the statements of the accused persons were recorded in terms of Section 15 of the TADA Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld to be guilty. The ingredients of Section 3(2)(i), it was submitted are non-existent and therefore the conviction under these provisions is unfounded. All the accused are small pawn in a big plot and do not deserve the harsh sentence imposed. More so when some of the accused have been given life sentence for similar offences, no differential treatment to award death sentence in case of three can be countenanced. The alleged kidnapped persons have not appeared as witnesses and statements made by them during investigation cannot be utilized. 11. Rebutting the submissions, Mr. K.K. Sood, learned Additional Solicitor General submitted that the evidence, materials and circumstances are sufficient to establish involvement of each of the accused. There has been no retraction from the confessional statements, the procedural requirements have been meticulously followed, the statements were voluntary and at no point of time any objection was made relating to recording of the confessional statements. The recoveries of arms and ammunitions provide ample substantiation to the confessions made. Even though in law there is no requirement for any corroboration, there is ample corroboration in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected by militancy, a terrorist is projected as a hero by a group and often even by many misguided youth. As noted at the outset, it is not possible to precisely define terrorism . Finding a definition of terrorism has haunted countries for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the convention drafted in 1937 never came into existence. The UN Member States still have no agreed-upon definition. Terminology consensus would, however, be necessary for a single comprehensive convention on terrorism, which some countries favour in place of the present 12 piecemeal conventions and protocols. The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures. Cynics have often commented that one State's terrorist is another State's freedom fighter . If terrorism is defined strictly in terms of attacks of non-military targets, a number of attacks on military installations and soldiers' residences could not be included in the statistics. In order to cut through the Gordian definitional knot, terrorism expert A. Schmid suggested in 1992 in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as in the practitioners. Even the U.S. Government cannot agree on one single definition of uniform and universal application. The old adage, One man's terrorist is another man's freedom fighter is still alive and well. Listed below are several definitions of terrorism used by the Federal Bureau of Investigation. Terrorism is the use or threatened use of force designed to bring about political change. - Brian Jenkins Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targeted. - Walter Laqueur. Terrorism is the premeditated, deliberate, systematic murder, mayhem, and threatening of the innocent to create fear and intimidation in order to gain a political or tactical advantage, usually to influence an audience. - James M. Poland Terrorism is the unlawful use or threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or coerce a government, individuals or groups, or to modify their behavior or politics. - Vice-President's Task Force, 1986 Terrorism is the unlawful use of force or violence against persons or property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .etc. v. State of Maharashtra AIR 1965 SC 682 18. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference. 19. The provisions of Section 120A and 120B, IPC have brought the law of conspiracy in India in line with the English Law by making the overt act unessential when the conspiracy is to commit any punishable offence. The English Law on this matter is well settled. Russell on crime (12 Ed.Vol. I, p.202) may be usefully noted- The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Sub-section (2) of Section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirement sand ingredients are established, the act would fall within the trapping of the provisions contained in Section 120B [See: S.C. Bahri v. State of Bihar 1994CriLJ3271 ] 21. The conspiracies are not hatched in open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has no consequence. [See: E.K. Chandrasenan v. State of Kerala 1995CriLJ2060 ]. 22. In Kehar Singh and Ors. v. The State (Delhi Administration) 1989CriLJ1 , this Court observed: Generally, a conspiracy is hatched in secrecy and it may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones' case that an indictment for conspiracy must charge a conspiracy to do na unlawful act by unlawful means and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg and House of Lords in unanimous decision reiterated in Quinn v. Leathem: 'A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rest in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; punishable of for a criminal object, or for the use of criminal means.' This Court in B.G. Barsay v. State of Bombay held: The gist of the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional statement recorded by a police officer not below the rank of Superintendent of Police under Section 15 of TADA Act is admissible, while it is not so admissible unless made to the Magistrate under Section 25 of the Evidence Act. It appears, consideration of a confessional statement of an accused to a police officer except to the extent permitted under Section 27 of the Evidence Act is not permissible. These aspects are noted by this Court in Sahib Singh v. State of Haryana 1997CriLJ3956 and Gurdeep Singh v. State (Delhi Admn.) 1999CriLJ4573 . There is one common feature, both in Section 15 of TADA Act and Section 24 of the Evidence Act that the confession has to be voluntary. Section 24 of the Evidence Act interdicts a confession, if it appears to the Court to be the result of any inducement, threat or promise in certain conditions. The principle therein is that confession must be voluntary. Section 15 of TADA Act also requires the confession to be voluntary. Voluntary means that one who makes it out of his own free will inspired by the sound of his own conscience to speak nothing but the truth. As per Stroud's Judicial 'Dictionary, 5th Edn., at p.2633 threat means: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becomes so powerful that he is ready to face all consequences for clearing his heart. 25. As was observed in Nalini's case (supra) TADA Act was enacted to meet any extraordinary situation existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Section 24 of the Evidence Act deals with confession caused by inducements, threat or promise, which is irrelevant in criminal proceedings. The expression 'confession' has not been defined in the Evidence Act. Broadly speaking, it is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. Law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898 (for short 'the old Code') corresponding to identical provisions of the Code. Confession is a species of admission. A confession or admission is evidence against its maker, if its admissibility is not excluded by some provision of law. Law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Irregularities here and there would not make such confessional statement inadmissible in evidence. If the legislature in its wisdom has provided after considering the situation prevailing in the society that such confessional statement can be used as evidence, it would not be just, reasonable and prudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not recorded truly by the officer concerned in whom faith it is reposed. It is true that there may be some cases where the power is misused by the authority concerned. But such contention can be raised in almost all cases and it would be for the Court to decide to what extent the said statement is to be used, Ideal goal may be: confessional statement is made by the accused as repentance for his crime but for achieving such ideal goal, there must be altogether different atmosphere in the society. Hence, unless a foolproof method is evolved by the society or such atmosphere is created, there is no alternatives but to implement the law as it is. 27. Aforesaid aspects have been highlighted in Devender Pal Singh v. State of NCT of Delhi and Anr. 2002CriLJ2034 . and Mohd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused persons were trying to overawe, the Government of India by criminal force and to bring out hatred and contempt in the people of India and to arouse dissatisfaction in a section of people in India against the Government of India established by laws and collected materials and arms for the aforesaid offences. 31. The line dividing preaching disaffection towards the Government and legitimate political activity in a democratic set up cannot be neatly drawn. Where legitimate political criticism of the Government in power ends and disaffection begins, cannot be ascertained with precision. The demarcating line is thin and wavy. 32. The Indian Law Commissioners in their Second Report dated 24.6.1847 had observed We conceive the term wages war against the Government'', naturally to import a person arraying himself in defiance of the Government in like manner and by like means as a foreign enemy would do, and it seems to us, we presume it did to the authors of the Code that any definition of the term so unambiguous would be superfluous . Mere collection of men, arms and ammunitions does not amount to waging war. 33. There is a difference, says Foster: (3 Crown cases, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to an undertaking to propagate, the political faith that capitalism and private ownership are dangerous to the advancement of society and work to bring about the end of capitalism and private ownership and the establishment of a socialist State for which others are already working under the lead of the working classes, it was held that it was open to the members of the Society to achieve these objects by all peaceful means, ceaselessly fighting public opinion that might be against them and opposing those who desired the continuance of the existing order of society and the present Government; that it would also be legitimate to presume that they desired a change in the existing Government so that they could carry out their programme and policy; that the mere use of the words 'fight' and 'war' in their pledge did not necessarily mean that the Society planned to achieve its object by force and violence. 1. About the expression 'Whoever' - the Law Commissioners say; (2nd Report: Section 13) The laws of a particular nation or country cannot be applied to any persons but such as owe allegiance to the Government of the country, which allegiance is either p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to overturn government; and by force or arms, to restrain the king from reigning according to law. 41. An assembly armed and arrayed in a warlike manner for any treasonable purpose is bellum levatum, though not bellum percussum. Lifting and inarching are sufficient overt acts without coming to a battle or action. 42. No amount of violence, however great, and with whatever circumstances of a warlike kind it may be attended, will make an attack by one subject on another high treason. On the other hand, any amount of violence, however insignificant, directed against the King will be high treason, and as soon as violence has any political objects, it is impossible to say that it is not directed against the king, in the sense of being armed opposition to the lawful exercise of his power where the object of a mob is not mere resistance to a District Magistrate but the total subversion of the British power and the establishment of the Khilafat Government, a person forming part of it and talking part in its actions is guilty of waging war. When a multitude rises and assembles to attain by force and violence any object of a general public nature, it amounts to levying war against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder. 45. In the aforesaid analysis, the offences punishable under Sections 121A, 122, 124A are clearly established and sufficiently and properly stand substantiated, on the overwhelming materials available on record. 46. In order to bring the offences within the parameters of Section 3(2)(i) of TADA Act, the death sentence is permissible to be imposed when the act has resulted in the death of any person. Under Clause (ii) of Sub-section (2) of Section 3, in any other case, the maximum sentence is imprisonment for life. In the case at hand except the killing of two police officials, no, other death has resulted. The ran letters and the threats had not resulted in any death. Further, the direct involvement of the present accused appellants in the killing of the two police officials has not been established by cogent evidence. There is no evidence that any of the accused was directly or indirectly involved in the killings. The deaths occurred when police surrounded the hideout and some terror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntence for three and life sentence for three others, There is no appeal by the prosecution to enhance the sentence in those cases where life sentence has been imposed. It would be therefore appropriate to impose life sentence on all the six accused appellants. 50. In the ultimate, convictions of A-1, A-3 and A-8 under Section 3(1)(i) of TADA Act is altered to Section 3(i)(ii) of TADA Act. Their convictions under Sections 121A, 122 and 124 IPC and sentences imposed are maintained. The conviction under Section 364-A read with Section 120B IPC is maintained, as it is the conviction under Section 3(4) of the TADA Act and Section 14 of the Foreigners Act for the concerned accused appellant along with sentence imposed. 51. However, considering the gravity of the offence and the dastardly nature of the acts and consequences which have flown out and, would have flown in respect, of the life sentence, incarceration for the period of 20 years would be appropriate. The accused appellants would not be entitled to any remission from the, aforesaid period of 20 years. As observed by this Court in Ashok Kumar v. Union of India 1991CriLJ2483 and Satpal v. State of Haryana and Anr. 1993CriLJ3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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