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TMI Blog2010 (5) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Shri Lalwala received serious injuries on the vital part of his body. However, he survived. The complaint was given on the very same day by the brother of Shri Lalwala, which was registered vide IC. R.No.111/02 with Athwalines Police Station, Surat. After some investigation, police filed A-Summary on 27.02.2003. In the month of May 2003, a secret information was received by Crime Branch, Surat for the alleged involvement of accused No. 1, who is appellant of Criminal Appeal No.1803/05 (hereinafter referred to as A1 ) and accused No.4, who is appellant of Criminal Appeal No.1800/05 (hereinafter referred to as A4 ). In the attack on Shri Lalwala, further investigation was carried out and thereafter, it was realized in the investigation that a conspiracy was hatched by targeting Shri Hasmukhbhai Lalwala as Hindu leader so as to take revenge from Hindu community on account of certain attacks on Muslims after Godhra carnage and also with an intention to strike terror amongst people of Hindu community and thereby to cause threat to the community. The provisions of Prevention of Terrorism Act, 2002 (hereinafter referred to as POTA ) was found to have been attracted and section 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW-9 Mr. Manabhai Gemabhai Makwana (PSI-recording complaint) Exh. 90 PW-10 Mr. Khurseed Ahmed Manzoor bhai Exh. 93 PW-11 Mr. Rajendrakumar Pratapray Mehta (The then Chief Judicial Magistrate, Surat) Exh.106 PW-12 Mr. Kuldeepchandra Laksmandas Kapoor Secretary Department of Home Affair (Sanctioning Authority) Exh.110 PW-13 Mr. Anandkumar Khusalbhai Pandya (DCP, Zone-III, Ahmedabad City and an authorised officer to record statement) Exh. 119 PW-14 Mr. Hasmukhbhai Laljibhai Rathod (ACP-Surat-(Investigating Officer) Exh.127 The prosecution also produced documentary evidence in support of its case, which are as under: 1. Exh.92 Report of registration of offence dated 21.05.2002 2. Exh.91 Original complaint of the complaint Ganesh chandra, dated 21.05.2002. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yadi to the Director of FSL for issuance of Certificate after due examination of Muddamal dated 26.05.2002. 19 Exh.130 Copy of dispatch note dated 26.05.2002. 20 Exh.131 Receipt from FSL dated 28.05.2002. 21 Exh.132 Yadi sent by P.I. Mr. N.R. Patel, dated 29.05.2003. 22 Exh.49 Opinion of F.S.L. Dated 17.09.2002. 23 Exh.133 Letter to Police Commissioner from Addl. Police Commissioner, Surat for addition of section of POTA dated 09.06.2003. 24 Exh.71 Delivery Note of purchase of motor bike in the name of accused Mohmed Tahir, dated 26.06.2002. 25 Exh.72 Delivery Note in the name of purchaser of motor bike Dhirubhai Karpitiya Sarfarajali, dated 26.06.2002. 26 Exh.79 Copy of yadi sent to the Judicial Magistrate for addition of section 3 of the POTA in the case date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused, dated 24.10.2003 42 Exh.146 Medical Certificate of injured Advocate Mr.Hasmukh Lalwala, dated 21.05.2002 43 Exh.145 Copy of notification of Police Commissioner of Surat city, dated 07.15.2002 to 05.06.2002. 44 Exh.86 'A' Summary report from ACP Mr.Rathod to J.M.F.C. (Surat) dated 27.02.2003. 45 Exh.87 Resolution u/s.165 of Cr.P.C. dated 13.05.2003. 5. The learned Special Judge (POTA) recorded further statement of accused under section 313 of the Cr.P.C., wherein A1 denied all materials against him claiming to be completely innocent and it was stated that he has been wrongly involved by the prosecution. Whereas, A4 while denying the incriminating evidence against him, stated that the signature reflected in the alleged confessional statements were taken on a blank sheet by DCP Khurseed and he also stated that he has been wrongly dragged into the complaint and he is a social worker and therefore, he should be acquitted. 6. The learned Spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injury received, etc. were known to the prosecution and on the basis of such material available, A-Summary report was also filed and the chapter was closed. There was no reason or valid ground for reopening of the matter by alleged pointing out panchnama. It was submitted that the said pointing out panchnama cannot be considered in the evidence and therefore, if the said part of the evidence led by the prosecution is excluded, the basis of the investigation would be lost and the accused would be entitled to the benefit of the same. 10. The examination of the said contention shows that it is on account of the discovery of certain facts and the information received under section 27 of the Evidence Act, the matter has been further investigated. Section 27 of the Evidence Act for ready reference, reads as under: 27. How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated to be the extract from the computer could not have been admitted in evidence. It was also submitted that no translator from Urdu to Gujarati was examined by the prosecution in support of its case and therefore, in absence of the examination of the translator, the Trial Court could not have accepted the translation as evidence in considering the case of the prosecution. 14. If the contention is examined in light of the facts of the present case, it appears that the panchnama for search of the house of A1, Exh.46, the panchnama for recovery of the files from the computer, Exh.67 were exhibited in the deposition of PW5 Mukund Ishwarlal Mahant, Exh.66. Further, the extract of the files in Urdu and translation was produced in the evidence of P.W.8 Shri Ajaykumar Gakhakhar, Exh.77 and no objection was raised for accepting the same in evidence, but on the contrary, it was with the consent on behalf of the accused. Under these circumstances, if a consent has been given for admissibility of a document extracted from the electronic record, it could hardly be contended on behalf of the accused that mandatory procedure for extraction of file or translation thereof could not have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the sanctioning authority and the discussion as to the applicability of each and every Section of the penal provision quoted therein is not an imperative requirement. A pedantic repetition from what is stated in the FIR or the draft charge-sheet or other documents is not what is called for in order to judge whether there was due application of mind. It must be noted that the grant of sanction is an executive act and the validity thereof cannot be tested in the light of principles applied to the quasijudicial orders. 17. The examination of the facts of the present case on the aspects of sanction shows that Shri KL Kapoor, Secretary of Home Department, P.W.12, in his deposition at Exh.110 has stated that the request was received from the Commissioner of Police, Surat containing 48 pages alongwith statements and panchnamas on 28.08.2003 and 04.09.2003. Thereafter, the further details were called for and the witness has stated that the details were verified by the Home Department and thereafter, the papers were studied and the same were sent to the Minister for State for Home Affair and then it was forwarded to the Chief Minister of the State and thereafter, the sanction w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was submitted that if such confessional statements are excluded from the evidence of the prosecution, not only the substratum of the case of the prosecution would be lost, but the case may turn to be a case based on circumstantial evidence for which there is no link proved by material evidence leading to the guilt of the accused and therefore, the Trial Court has committed error in not considering the aforesaid aspect while recording the conviction of the accused. 19. Whereas the learned counsel appearing for the State did contend that the requisite procedure has been followed while recording the confessional statement. It was submitted that when opportunity was given to the accused concerned by specifically informing that he is not to give the confessional statement which may be used against him, in spite of the same, he has voluntarily agreed to give the statement, the requirement of not intimating in writing would not invalidate the confessional statement which otherwise has come on record. It was also submitted that the requirement of giving time to think by the accused on the aspect that whether he should give the confessional statement or not may vary from facts to fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to make a confession and that if he does so, it may be used against him: Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession. (3) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it. (4) The person from whom a confession has been recorded under sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours. (5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody. 21. The Apex Court in the case of State (NCT of Delhi) Vs. Navjot San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not bound to make the confessions and that if any confession is made, such may be used against him, it is not possible to hold that the failure to explain in writing, though the confession by an unimpeachable evidence in the testimony of the Police Officer concerned, would be a sole base for discarding the confessional statement in toto. It appears that in such circumstances, when there is failure to communicate in writing while considering the evidentiary value of the confessional statement, the Court may consider the other oral evidence for such communication and whether such oral communication was made by an unimpeachable testimony of the witness in support thereof, would also be an aspect to be considered. If the prosecution has been able to show by an unimpeachable evidence that such procedure of explaining was followed by the concerned Police Officer, coupled with the circumstances of available corroborative piece of evidence for finding out the genuineness of the confessional statement, the principles of substantial compliance an be applied while considering the evidentiary value of such confessional statements. 23. At this stage, we may also consider the aspects of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the omission in recording confession under Section 164 Cr.P.C., the Court has clarified that the same approach can be adopted in respect of confession recorded under Section 15 of the TADA Act. 25. Therefore, in light of the aforesaid, the confessional statement of the accused are required to be considered. 26. On the aspects of compliance to the provisions of section 52, the Apex Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra) observed at para 164 as under: In our considered view, the violation of procedural safeguards under Section 52 does not stand on the same footing as the violation of the requirements of sub- Sections (2) to (5) of Section 32. As already observed, sub-Sections (2) to (5) of Section 32 have an integral and inseparable connection with the confession recorded under Section 32(1). They are designed to be checks against involuntary confessions and to provide an immediate remedy to the person making the confession to air his grievance before a judicial authority. These safeguards are, so to say, woven into the fabric of Section 32 itself and their observance is so vital that the breach thereof will normally result in esche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention that it is required for the prosecution to prove that the procedure as required under section 52 of the Act was followed is ill-founded inasmuch as it is only when the denial to the procedure of arrest under section 52 comes on record, it may be required for the Court to consider the same while considering the evidentiary value of the confessional statement. It may be recorded that as per the Evidence Act, in normal circumstances, all acts in official capacity are presumed to be done in accordance with law and as per the requirement of law to rebut such presumption or to negative such presumption, it is required for the defence to put forward the case for such denial, if any. Not a single incident is put to any of the witness and more particularly the investigating officers by the counsel for the accused in the cross-examination on such aspects. Therefore, it is not possible to accept the contention that there was any denial of the procedure as required under section 52 of the POTA. In absence of any denial, such consideration to the compliance of the provisions of section 52 would hardly have any role to play while considering the evidentiary value of the confessiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read that a reasonable time is required to be given by the concerned police officer to the concerned accused to think as to whether he should or he should not give the confessional statement which may be used against him. But such reasonable time may vary from facts to facts and it is not possible to read any express time limit by stipulating the hours or the minutes. The requirement is that time should be given to the accused so as to extract free atmosphere in a cool mind. But if the accused himself has already made up his mind to give the confessional statement and he declares before the concerned police officer that he is not desirous to further think about it and thereafter if the confessional statement has been recorded with the other circumstances came on record that such confession was not under threat or inducement or compulsion, it cannot be held that such a confessional statement would lose its evidentiary value while tracing the guilt of the accused concerned. Had the accused not declared before the concerned police officer that he is not desirous to think further and he has already made up his mind to give the confessional statement, it may be required for the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bottom of the verification statement, the learned Magistrate has recorded on 24.06.2003 that the accused is not required to be sent for medical examination and as the remand has been given by the Court, the custody of the accused is entrusted to the police officer. In the cross-examination, of the said learned Magistrate, no such defence has been put forward to contend that that entrustment of the custody to the police was not required or otherwise. On the contrary, the defence is absolutely silent on the said aspects in the cross examination of the learned Magistrate. Under these circumstances, it is not possible for the us to hold that as the judicial custody has not been ordered by the learned Magistrate, the confessional statement can be said as vitiated and it would lose its evidentiary value. 32. So far as the case of A1 is concerned, when his confessional statement was verified by the learned Magistrate, or in the earlier confessional statement of A4, which also was verified by the learned Magistrate, no such case has been put forward by the defence to the concerned witness as to the police custody was not required or there was any nonapplication of mind by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 2-3 months. Therefore, such retraction can only be termed as afterthought or ingenuous device to nullify the evidentiary value of the confessional statement. Further, both the confessional statements are not only duly verified by the learned Magistrate, but one of the verification of A4 is in question answer form by the learned Magistrate. The evidence of the learned Magistrate, Exh.106, P.W.11, shows that the recording of the confessional statement is duly verified by the learned Magistrate. No complaint has been made for any physical or mental torture and as per the material disclosed in the cross-examination of the learned Magistrate Exh.106, P.W.11, no symptoms were found on the face of the accused for no sufficient sleep or no sufficient food. Therefore, such a belated retraction of the confessional statement can hardly be considered as a valid ground to dilute the evidentiary value of the confessional statement. Apart from the above, even if the aspects of retraction is to be considered, it would not nullify the whole evidentiary value of the confessional statement. In such circumstance, as per the settled legal position, the Court may verify about the other piece of evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not made voluntarily. The confessional statement of the accused can be relied upon for the purpose of conviction, and no further corroboration is necessary if it relates to the accused himself. It has to be noted that in Nalini case by majority it was held that as a matter of prudence the court may look for some corroboration if confession is to be used against a co-accused though that will be again within the sphere of appraisal of evidence. 38. It was next contended by the learned counsel appearing for the appellant-accused that there was no panchnama drawn for taking custody of the computer and the computer was kept by the police officer Shri Gakhakhar in his possession. As the mandatory procedure was not followed of drawing of panchnama for seizure of the computer, the material extracted there from the alleged file, etc., could not be used against the accused and therefore, the said part of evidence is required to be excluded while considering the case of the prosecution. 39. As per the deposition of Shri Gakhakhar, P.W.8, Exh.77, the computer was kept by him in the sealed cupboard after seizure thereof and necessary panchnama was drawn for extraction of the file a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the spirit of our Constitution nor by a strained construction of any of the fundamental rights cane we spell out the exclusion of evidence obtained on an illegal search. So far as India is concerned its law of evidence is modeled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out. 40. Thereafter, the Apex Court set aside the direction given by the High Court to exclude the evidentiary value of the material which had already come up on record. In view of the aforesaid, the said contention of the learned counsel for the appellants cannot be accepted. 41. It was next contended by the learned counsel for the appellants-accused that there is no sufficient material available on record on the aspects of conspiracy and more particularly, for involvement of A4 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others. A codefendant in a conspiracy trial , observed Jackson, J, occupies an uneasy seat and it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. [vide Alvin Krumlewitch vs. United States of America, (93 L.Ed. 790). In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy . The pertinent observation of Judge Hand in U.S. vs. Falcone (109 F. 2d,579) was referred to: This distinction is important today when many prosecutors seek to sweep within the dragnet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof and it would not be a case for conviction of the accused. 44. Whereas, the learned counsel appearing for the prosecution did contend that the bullet is recovered from the body of the victim and therefore, recovery of the weapon is not must when the case is proved by the other material evidence of the witnesses who were examined, coupled with the confessional statement. Therefore, it was submitted that the accused would not be entitled to the benefit. 45. As such, the bullet was been found from the body of the victim and the evidence has come up on record to that extent beyond reasonable doubt and corroborated by the medical evidence of the Doctor. 46. The Apex Court had an occasion to consider the aspects of non-recovery of weapon, whether fatal to the case of the prosecution in the case of Munna Alias Surendra Kumar Vs. State of M.P. reported at 2004 SCC (Criminal) 179 and the observations made at para 7 are as under: 7. Before concluding, we must consider the argument of learned counsel for the appellant that in the course of judgment of the trial court, it is noticed that an argument was addressed on behalf of the appellant that a 12 bore gun was recovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deflect the course of justice . (Emphasis supplied) 49. Further, in Devender Pal Singh Vs. State of NCT of Delhi (supra), while considering the case under TADA, the Apex Court observed at paras 53 and 54 as under: 53 . Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh) Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava) 54. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn)] Vague hunches c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, commits a terrorist act. Explanation.-For the purposes of this sub-section, a terrorist act shall include the act of raising funds intended for the purpose of terrorism. (2) Whoever commits a terrorist act, shall,- (a) If such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine; (b) In any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (4) Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person is a terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the crime committed by the accused create that result would attract the provisions of S.3(1) of TADA. Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the section, the offence would not attract S 3(1) of TADA. On the other hand, if a crime was committed with the intention to cause terror or panic or to alienate a section of the people or to disturb the harmony etc. it would be punishable under TADA, even if no one is killed and there has been only some person who has seen injured or some damage etc. has been caused to the property, the provisions of S. 3(1) of TADA would be squarely attracted. Where the crime is committed with a view to overawe the Government as by law established or is intended to alienate any section of the people or adversely affect the harmony amongst different sections of the people and is committed in the manner specified in S. 3(1) of TADA, no difficulty would arise to hold that such an offence falls within the ambit and scope of the said provision. Some difficulty, however, arises where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to exist. 53. It is in light of the aforesaid legal position, if the material of translated files at Exhibits 81, 82 83 are considered, it does appear that there was not only thinking process in the mind of the accused concerned about the sufferings of a Muslim community after Godhra carnage, but there was also consideration of relevant literature by the accused so as to consider the base camps of terrorist activity, availability of the space, the requirement of space in context to the political atmosphere prevailing at the relevant point of time by a particular political party having affinity with a particular section of the Society. The overall reading of the material would lead to show that it is to pamper and instigate the religious feeling of a particular community, viz. Muslim community to take revenge from Hindu community. 54. It is hardly required to be stated that our country has wadded to a secular State policy. The State or a nation as a whole cannot be branded with religion of a particular class or the community. If the citizens of the country start with mental strategy of division based on the religion followed by them, it may result into, if not divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence, attack is permissible and not for causing injury to somebody. Such principles are interwoven even in the Indian Penal Code for invoking the right of self defence. The aforesaid glimpse observed by us would highlight the situation that in any secular State or nation, the unity and harmony amongst various sections of the society professing various religion would be of paramount consideration. It is like a family having different way of thinking and sometimes different way of praying to the God. Merely because the ways to get the blessings of the God are different, one cannot divide the family nor the unity and the security of the family should be put to jeopardy on account of such personal feeling of any member of the family or may be consequently a section of the society in any secular nation. 55. The material as extracted from the computer file whose translation are produced read with the confessional statement of the accused clearly goes to show that it is after the Godhra Carnage, the information was collected including the material by the accused concerned about certain alleged suffering of the Muslims in the State. Based on such material, a systematic momentum was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Apex Court in the case of Hitendra Vishnu Thakur (supra), the offence can be said to have been committed since the culpability in the mind of the accused is proved with a view to create a terror amongst the particular class and section of the Society. It may be that in a given case, the creation of huge terror amongst the society on account of targeted action may be one of the relevant circumstance at the time when the punishment is to be imposed, but it is not possible to record the conclusion that no offence can be said to have been committed by the accused when the weapon was used for shooting Shri Lalwala out of a planned targeted action to take revenge by the accused, against a particular section of the society. 57. On the aspect of confessional statements, we have already observed earlier that retraction does not carry weightage to the extent as sought to be canvassed to frustrate the voluntariness of the statement. Further, even if the circumstance of retraction may be a belated, is to be considered, and if the Court is to trace the corroborative material by way of reasonable prudence, there are corroborative evidence available in support on record for st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d fact as led by the prosecution that the firearm was used for commission of the alleged offence and the injury was also received by the firearm. Therefore, the offence under the Arms Act for possession of the firearm without holding a valid licence could be said as proved. It is in this fact situation, if the contention is examined, it can be said that such would attract the punishment as per section 25(1B) (a) as could be said as proved, wherein the punishment can extent upto 3 years. As per the evidence on record, the possession of the firearm without holding a valid licence is proved. Further, the use of the firearm is also proved. Under these circumstances, we find that it would not be a case of acquitting the accused from the offence under the Arms Act merely because the charge was framed under section 25(1)(c). And the pertinent aspect is that for the alleged offence under section 25(1)(c), the punishment was higher than that of the punishment for which the offence under section 25(1B)(a) and the opportunity to defend if given for a charge where the punishment is for higher period, the matter if considered for the charge under section 25(1B) (a), wherein the punishment provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant circumstance while imposing sentence. It does appear from the evidence of the case that the intention was not to cause injury, but was to kill the victim, but the fact remains that because of the injury received on the cheekbone, the victim survived. It is also true that the intention was to create great terror amongst the particular section of the society, but the fact remains that it ended with creation of tensed situation in the society. It has not come on record that any untoward incident or any rioting took place after the incident amongst two sections of the society. Under these circumstances, we find that if the learned Special Judge has exercised the discretion of imposing punishment of 7 years for the offence punishable under section 3(2) of the POTA or for the period of 6 years under section 307 of the IPC or for the period of 6 years for the offence under section 120B of the IPC, it can neither be said that there is improper exercise of the judicial discretion by the learned Special Judge (POTA) nor can be said as principles of deterrent effect was at not at all considered by the learned Special Judge (POTA). 63. Therefore, we find that the concerned appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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