Holding

A‑10 is entitled to the benefit of doubt and is acquitted; the conviction under Section 3 TADA is unsustainable for all appellants, while the IPC convictions for murder, attempt to murder and causing hurt are upheld.

Summary

The appellants were convicted by a Designated Court for murder, attempt to murder, causing hurt and an offence under Section 3 of the Terrorist and Disruptive Activities (Prevention) Act (TADA) arising from an altercation at a video parlour that led to a fatal assault near a hotel. On appeal, the Supreme Court held that the prosecution failed to prove beyond reasonable doubt the participation of appellant A‑10 and that the requisite intention to create terror in the Wadar community, essential for a conviction under Section 3 TADA, was not established. Consequently, A‑10 was acquitted and the TADA convictions of all appellants were set aside, while the IPC convictions for murder, attempt to murder and causing hurt against A‑5, A‑8, A‑9 and A‑11 were upheld. The Court also clarified that an appeal under Section 19 of TADA cannot be transferred to a High Court and must lie directly before the Supreme Court, notwithstanding Article 142 of the Constitution.

Issues considered

The prosecution proved the participation of appellant A‑10 in the assault beyond reasonable doubt.
Whether the facts satisfied the elements of an offence under Section 3 of TADA, particularly the intention to create terror in a specific community.
Whether an appeal under Section 19 of TADA can be transferred to a High Court under Article 142 of the Constitution.
The jurisdiction of a Designated Court and the Supreme Court in appeals involving TADA offences.

Legislation cited

Code of Criminal Procedure, 1973s. 220(1)
Constitution of Indias. Article 142
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 323, s. 324
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 12, s. 18, s. 19, s. 3

Subjects

TADASection 3intention to create terrorbenefit of doubtidentification paradeIPC murderappellate jurisdictionArticle 142communal violence

Judgment

BONKY@ BHARAT SHIVAJI MANE AND ORS. A
v.
STATE OF MAHARASHTRA

SEPTEMBER 27, 1995

!AS. ANAND AND K.S.PARIPOORNAN, J.1.J B

!1Zdia1Z Pc/la/ Code, 1861f--Scctio1Zs 302, 3117, 3231149--Proscrntioll
under--lnj ured 1vit11 ess-Corrob oration by eye wit 11 es s es-Conviction
-Validity of

Sectio1Zs 302, 307, 323/ 149--Prosecutioll l111de1~Namc 1Zot 111e1Ztio1Zed
c
ill FIR-Not ide1Ztified ill identificatioll parade-Stateme1Zts of PWs Improved
upon-Also contradicto1y to earlier statentents--No co1roboration by 111edical
evidence-Held, Not guilty.

India/! Evidellcc Act, 1872---illjured wit1Zesses-Testimo1Zy D
of-Reliability on-----Held, cannot be doubted as they are staniped witnesses.

Te1rorists and Disruptive Activities (Prevention) Act, 1987-Section
3(1 )---Prosecution under.

Assault-After altercation-Victims belong to 'Wadar' com- E
1nunity-Conununity of the ·assaulters ·and the witnesses not known-Convic-
tion by Designated Court holding that assaulte1>· intended to create tenw in
the community-Held, inference of i11te11tio11 ca1111ot be draw11 from mere
consequence.

Sections 12, 18, llf--Conviction ll/uler !PC as also under TADA by F
Designated Court-Acquittal under TADA by S11pre111e Cowt -P/e{f-To
transfer the case j(1r fi1st appeal to High Cowt-Held, Plea fallacioll.1-After
framing of charges and tJial by Designated Cowl, appeal against conviction,
sentence or acquittal lies only to Supre111e Cotut-Designated Cou1t-Jun·sdic-
tion of-T1ial of cases under IPC connected with TADA-Held, Before G
ji"aming of charge if offence under TADA 1wl made out-Designated cowt
can transfer the case to regular cou1t.

Constitution of India, 1950-AJt. 142-Jwisdiction unde1~Held not to
be exercised in disregard of statuto1y provision-Tl;ough the an11Jlitude of the
JJowe1~ not conditioned by any statuto1y provision. H
89
90 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A The appellants (A-S, 8, 9, 10, & 11) were prosecuted under Sections
302, 307, 323/149 IPC and Section 3 of TADA.

Subset1uent to an altercation between the Accused 6, 10, & 11 with
the complainant party (PW-111 and his 3 friends) at a video parlour, the
complainants left towards a hotel where PWs 9, 14, lS and some other PWs
B were present, to whom PW-111 narrated the incident at the video parlour.
Mcan\\ hile the appellants '''ith the accused arrived there variously ar1ned
1

and -opened assault on them, as a result of \Vhich PW-14 sustained injury.
PW-9 and the deceased fled towards a 'Math'. The assaulters chased them
and assaulted them as a result of which PW-9 sustained injuries and the
C deceased died. None of those with whom altercation had taken place at
the video parlour, sustained any injury. All the 3 victims belonged to
'Wadar Community.

On the Basis of the statements of PWs 9 & 14 F!Rs were lodged, but
in the statement of PW-9, name of A-10 was not mentioned specifically.
D
In Identification Parade, all the accused were identified by the
witness, but PW-9 failed to identify A-10. During trial, PWs 1(1, 11 & lS
improved upon their statements, regarding the involvement of A-10. The
testimony of PW-14 was also exaggerated contrary to his earlier statement.
E The medical evidence showed only one injury on PW-14 which was inflicted
by A-11, as per the deposition of the witnesses.

The Designated Court holding, the motive for assault, i.e., incident
at video parlour, as proved on the basis of depositions of PWs 10, 11 & 12
corroborated by the deposition of PWs 9, 13, 14, and IS, and also holding
F the connection of the accused \'Vith the incident at the hotel and the 'math',
as proved, on the basis of testimony of PWs 3, 4, 9 to 14, corroborated by
the evidence of PW-IS, and further holding that the accused (appellants)
intended to create terror in a section of the people ( Wadar Community),
convicted then1 of the otTences, .they were prosecuted for.

G In appeal under Section 19 of TADA, this court, partly allowing the
appeal

HELD: I. The prosecution has not been able to establish the case
against A-10 beyond reasonable doubt and thus he is entitled to benefit of
H doubt. In view of the improvement made by the prosecution witness and
BONKY v. STATE 91

their infirmities, it cannot he said \Vith any amount of certainty that the A
participation of A-10 in the assault or even his presence in the unlawful
assc1nhly at the ti nu~ of the assault has been substantiated. The tendency
to exaggerate the incident .is not uncomn1on and that an innocent person
may be roped in along with the guilty ones is a possibility which cannot,
in the fads and circumstances of the case, he ruled out. [1110-A]
B
2. The prosecution has been able to establish its case against A-5,
A-8, A-9 and A-11 and the deceased A-1 beyond reasonable doubt. The
evidence of eye \Vitnesses unmistakably connects the1n \\-'ith the assault on
the Complainant party near the hotel and the Math. Out of the witnesses
two are injured witnesses . These are thus the stamped witnesses \Vhose C
presence adn1its of no doubt and being themselves the victims, they would
not leave out the real assailants and substitute them with innocent per-
sons. [100-E]

3.1. The finding of the Designated Court that the appellants have com·
milted an offence punishable under Section 3 of TADA is dearly erroneous. D
In the facts and circumstances of the case no offence under Section 3 of
TADA could be said to have been committed by the appellants. The Trial
Court has ignor~d to take in~o consideration the essential requirements for
establishing an otTence under Section 3 of TADA tha.t the criminal activity in
order to invoke TADA must be committed with the requisite intention as E
contemplated by Section 3 (1) of the Act by use of such weapons as have been
enumerated therein and which cause or are likely to result in the commission
of offences as mentioned in that Section. [102-G-H, 101-F]

Hi1e11dra Vishnu Thakur v. S1a1e of Maharashlra, [1994] 4 SCC 602
and Kmtar Singh v. Stale of Punjab, [1994] 3 SCC 569, relied on. F

3.2. Merely because the deceased and the two injured \'fitnesses
belong to Wadar Community no inference could be drawn that the attack
by the appellants on them was intended to strike terror in a section of the
society, namely the Wadar Community. There is no basis for such an G
assun1ption. Prosecution has led no evidence in that behalf either. It is
mere coincidence that PW-9, PW-14 and the deceased all belong to the
'Wadar Community11 • There is nothing ~,n the record to disclose as to
which conimunity do the appellants belong to or what grievance they had
against the 'Wadar Community". By no stretch of imagination can it be
said that the accused had the intention to strike terror, much less in a H
92 SUPRtMI~ COURT REPORTS fl995) SUPP. 4 S.C.R.

A particular section of society, when they entered into an altercation and
even later when they went after the Complainant party and opened assault
on the1u opposite Jag:da1nba hotel or at the J\tlath. None out of those \'Vho
were present at the video parlour received any injury and there is no
material on the record to show as to which community did they belong to
either. It "'as not proper for the Designated court to dra\V an inference of
B
intention front the 1nere conse(1uence, i.e., the victim belonging to a par-
ticular community. [101-B-E]

4. In the face of the express provision of Section 19 of TADA, there
is no scope to urge that the appeal may be transferred to the High Court
C because of the ac<tuittal of the appellants for the oftence punishable under
Section 3 of TADA. There cannot be piecemeal hearing of an appeal on
n1erits first by this court to detern1ine if an offence under TADA is made
out or not and then by the High Court. In a case where a Designated court
finds that no offence under TADA is made out, it is open to the said court
to transfer the case to the regular criminal court under Section 18 of
D TADA, but once the charge is framed and the case is tried by the Desig-
nated court, an appeal against conviction, sentence of acc1uittal lies only
to the Supreme Court and no other court. Under Section 12 of TADA, the
Designated court has the jurisdiction not only to try the cases under
TADA, but also to try offence under the Indian Penal Code, if the offence
E under TADA is connected With such other offence. [104-B-D]

S. This Court exercises jurisdiction under Article 142 of the Con-
stitution with a view to do justice between parties but not in disregard of
the relevant statutory provision, though the amplitude of powers available
to this Court under Article 142 of the constitution normally speaking, is
F not conditioned by any statutory provision. [104-}'-E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No
749 of 1993.

From the Judgment and Order dated 28.10.93 of the Hon'hle Desig-
G nated Court, Pune in Terrorist Sessions Case No. 8 and 9 of 1991.
'
l.G. Shah, Raju Ramachandran, M.D. Adkar and Ejaz Maqbool for
the Appellants.

K. Madhava Reddy, S.M . .Jadhav and D.M. Nargolkar for the
H Respondent.
BONKY v. STATE [DR. ANAND,J.J 93

The Judgment of the Court was delivered by A

DR. ANAND, J. Twelve accpsed persons were tried for offences
under Sectiohs 3112, 307/149, 324, 147, 148, and Section 3 of Terrorist and
Disruptive Activities (Prevention) Act, 1987 (hereinafter referred lo as
'TADA') by the learned Designated Judge, Punc. Out of the said twelve
accused, 6 accused were acquitt_ed of all the charges while the five appel- B
lants herein, namely, Bonkya Alias Bharat Shiva.ii Mane (A-5), Mandu
Baliba Dombc (A-8), Ashok Baloba Dombc (A-9), Ranjar Bhausaheb
Dombe (A- 10) and Kaka Alias Pandurang Baloba Dombe (A-11) were
convicted for offences under Sections 302, 3071149 !PC and Section 3 of
TADA and sentenced to suffer life imprisonment and to pay a fine of Rs.
5,000 each for the offence under Section 302/ I 49 IPC; HJ years RI and a
c
fine of Rs. 5,000 each for the offence under Section 307/149 !PC; 2 years
RI for the offence under Section 324/149 !PC and life imprisonment and
fine of Rs. 5,000 each for the offence under Section 3 of TADA. In default
of payment of fine on each of counts, the appellants were to undergo
further RI for two years each. The substantive sentences of imprisonment D
were however directed to run concurrently. One accused died during the
pendency of the trial. Through this appeal under Section 19 of TADA, the
appellants have called in question their conviction and sentence. For the
sake of convenience the accused shall be referred to hereinafter by the
number assigned to them in the Trial Court judgment as accused i.e. (A-5,
A-8, A-10 etc.). E

According to the prosecution case on 11th August , 1990 at about
3.00 p.m. Anna Shety Band Patte, Mukesh, Ramesh and Prakash Band
Patte had gone to the Vrindavan video parlour for watching a movie. The
accused A·o, A-lll and A-11 alonf,•with one other person were also present F
at the video parlour. There was an altercat.ion between the accused and
the complainant party when the leg of Kaka Dombe (A-11) dashed
against the leg of Anna Shety Band Palte PW. Both the prosecution
witnesses as well as the accused party left the video parlour threatening
each other. The complainant party went towards Jagdamba Hotel owned G
by Waman Band Patte PW. At that time Baban Karpe, Bajrang Band Patte,
Sanjay Mane, Ramesh Pawar were also present near the hotel. At about
4.00 p.m., the appellants and other accused persons allegedly armed with
swords, satturs and sticks arrived there in t\Vo auto-rickshaws and one jeep.
Out of the accused A-5, A-6, A-8, A-10, and A-11 were carrying swords
while A-7 an<l A-9 had satturs and the remaining accused were armed with H
94 SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R.

A sticks. On the arrival of accused party Anmr Shelly ran away. Appellants
A-5, A-10 and A-1 l thereafter assaulted Bajrang Band Patte (PW-14) on
his head in front of the hotel. They also assaulted Baban Karpe (PW-9 and
Popat deceased, who had run away to the Math, after chasing them in the
auto rickshaws and the jeep. It is alleged that A-5, A-10, and A-1~,
assaulted Popat deceased with the swords on his head and thighs and when
B
Baban tried to intervene he \vas also assaulted and he received a blow with
the sattur near his knee. He ran away to conceal himself. Bajrang (PW-14)
was taken to the hospital by Waman PW-15, Ramesh PW-11 and Prakash
PW-2, whereas Popat deceased who was seriously injured and had fallen
down unconscious after receipt of the injuries was removed to the hospital
C by the police when it arrived at the spot a little later. All the injured
persons were admitted to the hospital. While receiving the treatment,
Popat succumbed to his injuries. On receipt of information, Asstt. Police
Inspector Joshi arrived at the hospital and Baban Karpe PW-9 narrated
the occurrence to him which was reduced into writing. On the basis of the
D said report, an FIR for offences under Section 302/307/149/147/148 !PC
was registered vide CR. No. 101 of 1990 at about G.00 p.m. The inquest on
the dead body of Popat was conducted and the body was sent for post-
mortem examination.

Bajrang PW-14 regained consciousness during the night intervening
E 11th and 12th August, 1990 and made a statement to the police in respect
of the incident which took place in front of Jagdamba hotel and on the
basis of that statement, CR. No.102/90 was registered. The jeep allegedly
used by the accused party was later found in front of the house of accused
Baloba Dombe, A- 1 (who died subsequently). One sword, stained with
blood and two blood stained sticks were recovered from the said jeep. An
F
auto- rickshaw bearing registration No. MWQ-5624 belonging to Manik
Bhent!e-Gavali was found abandoned in a damaged condition with broken
glasses. It was also taken into possession vide a panchnama. The accused
were searched for hut could not be traced. They were subsequently ar-
rested on different dates. On a disclosure statement made by A-11 before
G the police anti the panches under Section 27 of the Evidence Act and on
his pointing out a sword was recovered from the field al Korti, where it lay
buried. A-10 also made a disclosure statement under Sector 27 of the
Evidence Act to the effect that he had buried a sword behind Yamai Tukai
temple and could get it recovered. On the pointing out by A-10, the said
sword was also recovered and taken into possession through a panchnama.
H During the investigation, an identification parade was got conducted
HONKY v. STATE [DR. ANAND, J.) 95

through the Executive Magistrate, PW-32 when Baban Karpe (PW-9) and A
other prosecution witnesses identified the assailants. Samples of blood of
the accused were collected for ascertaining their blood groups and sent for
chemical analysis. The blood samples of Bajrang (PW-14) and Baban
Karpe (PW-9) were similarly collected. The blood stained clothes of the
deceased and the injured persons as also the swords were sent to the
chemical examiner for analysis. After completion of the investigation, l\VO B
charge- sheets arising out of crime No. 101/90 and crime No 102/90 were
filed before the Designated Court. During the pendency of the two charge-
sheets the Addi. Public Prosecutor through an application, Ex. P-35, re-
quested the Court for holding trial in respect of both the chargesheets
together, which application was allowed by the Designated Court vide
order dated 5.12.1992 and that is how both the cases were tried together c
hy virtue of the provisions of Section 220 (1) Cr.P.C., as the series of acts
in both the cases were so inter-connected as to form one transaction. At
the trial, the prosecution alleged that the accused party with an intent to
commit terror in the Wadar community had committed the murder of
Popat and injured PW-9 and PW-14, by using lethal weapons and had D
thereby committed terror in the Wadar community and, thus committed an
offence under Section 3 of TADA, besides the other offences as already
noticed. Baloba (A-1) died during the pendency of the trial and therefore,
the proceedings against him abated. The plea of the remaining accused in
their statements under Section 313 Cr.P.C. was one of total denial and false
implication. According to A-2, A-3, A-5, A-6 and A-7 they had been E
identified by PW-9, during the identification parade, at the instance of the
police. A-4 alleged false implication at the instance of PW-15 Waman while
A-8 alleged false implication at the hands of the police with a view to
pressurise him to withdraw a complaint concerning the murder of his
brother and 5 others allegedly committed by the police. A-9 also put
forward a similar defence, while A-10 alleged that the police had instituted F
a false case against him at the instance of Narayan Dhotare, according to
A-11, also the witnesses had deposed falsely against him at the instance of
Narayan Dhotare. The learned Judge of the Designated Court acquitted
A-2, A-3, A-4, A- 6, A-7 and A-12 of the offences charged against them,
apparently influenced by the lack of identification of these accused persons
by the prosecution witnesses at the identification parade conducted by the G
Executive Magistrate. The appellants however, were convicted and sen-
tenced in the manner as already noticed.

We have heard learned counsel for the parties and perused the
record. H
96 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A That the incident arose out of a petty altercation between A-11 and
his three companions with PW-10 and his three companions at the video
parlour and later on led in the homicidal death of Popat Band Patte on
l l.8.1990 and injuries to PW-9 and PW-14 was neither disputed before the
learned Designated Court nor before us. From the post-mortem report
prepared by Dr.A.P. Khiste (PW- 22), we find that the deceased had four
B incised injuries \vhich had caused extensive damage to his interna] organs
also. According lo PW-22, the internal injuries on the deceased were a
result of the following external injuries :

(1) Incised wound, transverse on left groin at centre medial to left
c pubic symphysis and left superior iliac crest, all muscles, vessels
cul, both femoral vessels, vein artery cut, dimension 4 x 2 x 5 ems.

(2) Transverse incised wound on right parital region, bone deep,
4 x 2 x 1 ems., 6 ems. above right ear, fracture of right parietal
bone with laceration of brain.
D
(3) Vertical incised wound 5 x 1 x 1 ems., bone deep at centre of
vertex, fracture of skull with laceration of brain.

PW-22 opined that these injuries, individually as well as collectively, were
sufficient in the ordinary course of nature to cause death.
E
PW-9 was examined by Dr. Khiste PW-22 who noticed the following
two injuries on his person :

(1) Transverse superficial incised wound 10 x 1/2 cm. On posterior
of left knee in popliteal. Edges were clean cut.
F
(2) Abraded contusion below right knee and front of right leg, 5
x 5 cm.

PW-14 Bajrang was also medically examined and the following in-
juries were found on him :-
G
(l) Transverse Lacerated \Vound on occipital region, 3 x 1 cm.,
bone deep. Injury was bleeding fresh.

(2) Multipkabraded contusion all over the back.

H The defence plea of total denial and false implication has been rightly

-
•
BONKY v. STATE[DR.ANAND,J.j 97

rc_jected by the Designated Court in view of the overwhelming, cogent and A
reliable prosecution evidence.

The Trial Court for the purposes of consideration of the evidence
divided the prosecution case into three parts namely : (l) the incident at
Vrindavan video parlour (ii) incident near Jagdamba hotel and (iii) the
incident at the Math. B

So far as the first incident is concerned, that merely provided the
motive for the assault near the Jagdamba hotel and the Math. The evidence
regarding the first incident was given by PW-10, PW-11 and PW- 12. These
witnesses deposed that while they were watching a movie at the video c
parlour, A-11, A-6 and A-10 alongwith one other person had occupied the
seats in the row behind them and when the leg of A-11 dashed against the
leg of PWlO, who told him to keep his leg properly, A-11 started abusing
him in filthy language and threatened him that he would "deal" with him.
In view of the altercation, the complainants left the video parlour and went
towards .Tagdamba hotel. Some of the prosecution witnesses including the D
deceased, PW9 and PW14 were already standing near the Jagdamba hotel.
PWlO narrated the incident of the video parlour to those persons and in
the meantime the accused party arrived there in a jeep and two auto-rick-
shaws and started assaulting the complainant party. However, according to.
the prosecution evidence itself, during the assault, none out of the four
prosecution witnesses with whom the altercation had taken place at the E
video parlour was injured. Near the .Jagdamba Hotel it was Bajrang PW-14
who received the injures at the hands of the a.ceused. Some of the other
witnesses including Popat deceased and Ba ban PW '9 fled towards the
Math to save themselves. The evidence of PWlO, PW-11 and PW-12 has
received an1ple corroboration fron1 the tcstin1ony of PW-9, PW-13, PW-1.4
and PW-15, who deposed that \vhile the \Vitnesses were narrating the
F
incident of the video parlour to Waman Band Patte PW-15 and other
witnesses present there the accused party arrived in a Jeep and two
auto-rickshaws variously armed and opened an attack on the complainant
party with ·a view to teach them a lesson for the altercation which had taken
place earlier at the video parlour. We do not find any force in the G
submission of the learned counsel for the appellant that since
Mohan Lal PW-19, who runs the video parlour has not fully sup-
ported the prosecution version regarding the cause of altercation at the
video parlour, the genesis of the occurrence gels shrouded in doubt.
PW-19 was declared hostile by the prosecution and was . cross-ex-
amined by the Addi. Public Prsecutor. We find from a careful analysis H
98 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A of the evidence that the testimony of PW-9 to PW-15 regarding the incident
at the video parlour is cogent and trustworthy an<l nothing has been
brought out during the cross-examination of these witnesses which may cast
any doubt about the correctness of the version given by them regarding the
incident at the video parlour. Even form the evidence of the hostile
witnesses PW-19 Mohan Lal, it emerges that on the day of the incident
B there was an altercation at the video parlour, though he has given the cause
of the altercation to be somewhat different, which explanation does not
appeal to us. Even if for the sake of argument we were to ignore the
evidence of PW19, it would not materially affect the prosecution case in so
far as the incident at the video parlour is concerned. We are in agreement
with the Designated Court that there is ample evidence led by the prosecu-
C tion to establish the incident at the video parlour and also that the said
incident was the origin for the subsequent assault.

To connect the accused with the incidents near the .Jagdamba hotel
and the Math, the prosecution has examined PW3, PW4, PW9, PWlO,
PWll, PW12, PW13, and PW14 besides PW7, PW20, and PW21. The last
D three witnesses however, turned hostile at the trial and were cross-ex-
amined by the Addi. Public Prosecutor with the permission of the court.
Out of the remaining witnesses mentioned above, PW-9 and PW-14 are the
injured witnesses. These are thus the stamped witnesses whose presence
admits of no doubt and being themselves the victims they would not leave
E out the real assailants and substitute them with innocent persons. PW-15
Waman Band Patte who is the owner of the Jagdamba hotel has lent
sufficient corroboration to the testimony of the other prosecution witnesses
in general and PW9 and PW14 in particular. From the testimony of PW9,
it stands established that while Mukesh PW-12 was narrating the incident
which had taken place at the video parlour, the appellants alongwith 7/8
F other p~rsons arrived in a jeep and l\VO auto-ricksha\vs arn1ed \Vith S\VOrds,
satturs and sticks and opened the assault on the prosecution witnesses and
that A-11 and his two associates assaulted PW-14 with swords. His tes-
timony receives ample corroboration from the testimony of PWlO, PWll,
PW14 and PW15 Waman, the proprietor of Jagdamba Hotel besides the
medical evidence. These witnesses categorically deposed that A-5, A-10
G and A-11 were responsible for causing injuries to Bajrang PW-14. These
witnesses knew the accused from before by their names and had also
identified them later when called upon to do so. They specifically described
the roles played by A-5, A-10 and A-11. PW-10, PW-11, PW-12, PW-13,
PW-14, and PW-15 also spoke about the presence of A-1, A-8 and A-9
with their respective weapons alongwith A-5, A-10 and A-11 near the
H
BONKY v.STATEIDR.ANAND,J.J 99

Jagdamba Hotel at the time of assault on.PW-14. An identification parade A
had been held by Shri Shrikanl Chimanji .lahagirdar (PW-32), Executive
Magistrate. Al the identification parade, A-5 was identified by PW-9,
PW-Hl, PW-11, PW-14 and PW-15; A-JO by PWslO lo 15; A-11 by PW 3
and PWs 9 lo 15; A-l by PWs 10 to 15; A-8 and A-9 by PW-3 and by
PWslO to 15.
B
So far as other accused are concerned, none of the prosecution
witnesses ascribed any role to A-2, A-3 and A-12 and even though PW-15
deposed at the trial about the presence of A-4, A-6 and A-7 and stated
that they were present with the accused party bui the Trial Court, for good
and sufficient reasons found that his testimony as regards their presence
in the unlawful assembly, had not received trustworthy corroboration from C
any other prosecution evidence. The learned Designated Court opined that
though the identity of A-1 (since dead), A-5, A-8, A-9, A-10 and A-11 as
the assailants had been established by the prosecution evidence beyond a
reasonable doubt, the same could not be said about the participation of
the remaining accused. We agree. From our independent analytical ap- D
precialion of the evidence on the record, we are of the opinion that the
Designated Court rightly found the participation of A-1, A-5, A-8, A-9, and
A-11, in the assault, to have been positively established. However, so far
as A-10 is concerned, we find that there is merit in the submissions of the
learned counsel for the appellant that his identity and participation in the
assault has not been established beyond a reasonable doubt. E

Baban Karpe PW-9, himself an injured witness, failed to identify
A-10 at the time of the identification parade held by PW-32, though he
identified A-10 later on in the Court during the trial. That apart the name
of A-10 does nol figure specifically in the statement of Baban PW-9, which
formed the basis of the FIR, Ex. 77. PW-lll, PW-1 land PW-15 have tried F
to implicate A-10 by making tell tale improvements in their statements al
the trial by ascribing a role to him in the assault by improving upon their
statements earlier recorded during the investigation, with which statements
they were duly confronted. Even Bajrang PW-14 who is an injured witness
himself and deposed about the incident al Jagdamba hotel with sufficient G
details appears to have exaggerated the version when he stated that he had
been assaulted by A-10 also besides A-5 and A-11 quite contrary to his
earlier statement. There is only one injury which was received by PWJ4
and according to the other prosecution· witnesses, that injury had been
caused to him by A-11. The tendency to exaggerate the incident is not
uncommon and that an innocent person may be roped in alongwith the H
100 SUPREME COURT REPORTS [1995) SUPP. 4S.C.R.

A guilty ones is a possibility \vhich cannot, in the facts and circumstances of
this case, be ruled out. In vie\v of the i111prove111ent 111ade by the prosecution
\Vitnesscs at the trial from their earlier statements and the infirmities
already noticed, we are of the opinion that it cannot be said with any
amount of certainty that the participation of A-10 in the assault or even his
presence in the unlawful assembly at the time of the assault near .Jagdamba
B hotel or the Math, has been substantiated. The prosecution has not been
able lo establish the case against A-10 beyonc;I a reasonable doubt and in
our opinion he is entitled to the benefit of the doubt.

In so far as the remaining appellants are concerned, the evidence of
the eye-witnesses and particularly of PW-3 and PWs 9 to 14 unmistakably
c connects them with the assault on the complainant party near the
Jagdamba hotel and at the Math, resulting in the death of Popat and
injuries being caused to PW9 and PW14. Despite searching cross-examina-
tion, nothing has been brought out in their cross-examination from which
any doubt may arise about the participation of A-1, A-5, A-8, A-9 and A-11
D in the assault or discredit the testimony of any of these witnesses. Their
evidence establishes the manner in \vhich the assault originated as well as
the role played by each one of them. The appellants (other than AlO) were
as already noticed identified by various prosecution witnesses at the iden·
tification parade held by PW-32, the Executive Magistrate also. Besides,
the testimony of these prosecution witnesses has received ample corrobora-
E tion from the medical evidence as well as the recoveries of the weapons of
offence. From our independent examination of the material on the record,
we are satisfied that the prosecution has been able to establish its case
against A-5, A-8, A-9, and A-11 and the deceased A-1 beyond a reasonable
doubt.

F That takes us now to consider the nautre of the offence committed
by A-5, A-8, A-9 and A-11. The Designated Court, as already noticed,
found all of them guilty and convicted them for the offences under Section
3 TADA, 302/149, 307/149 and 323/149 !PC.

The victims, it appears from the record, belong to the Wadar com·
G munity. The Designated Court after considering the evidence of the first
incident and the manner of assault on the deceased and PW-9 and PW-14,
came to the conclusion that the appellants, alongwith some others had
intended to create tenvr in a section of the people(Wadar community) and
with that intention had assaulted PW-14, the deceased and PW9 by lethal
J
H weapons and were therefore guilty of committing an offence under Section
BONKY V. STATE [DR.ANAND,J.] 101

3 TADA. A

In ()Ur opinion the Designated Court fell in error in holding that an
offence under Section 3 of TADA had been committed by the accused-ap-
pellants in the established facts and circumstances of this case. Merely
because the deceased and the two injured witnesses belong to Wadar
community, no inference could be drawn that the attack by the appellants B
on them was intended to strike terror in a section of the society namely,.
the Wadar community. There is no basis for such an assumption. Prosecu-
tion has led no evidence in that behalf either. It appears to be a mere
coincidence that PW9, PW14 and the deceased all belong to the "Wadar
Community". There is nothing on the record to disclose as to which c
community do the appellants belong to or what grievance they had against
the "Wadar Community". By no stretch of imagination can it be said that
the accused had the intention to strike terror, much less in a particular
section of the society, when they entered into an altercation at the video
parlour or even when they went after the complainant party and opened
an assault on them opposite Jagdamba hotel or at the Math. None out of D
those who were present at the video parlour received any injury and there
is no material on the record to show as to which community did they belong
to either. Prosecution has led no evidence nor brought any circumstances
on the record from which any inference may be drawn that the appellants
11
intended to strike terror amongst the Wadar Community". It was not
proper for the Designated Court to draw an inference of intention from E
the mere consequence, i.e., the victims belonging to the particular com-
munity. The learned Trial Court appears to have ignored to take into
consideration the essential requirements for establishing an offence under
Section 3 of TADA. In Hitendra Vishnu 77iakur And Others v. State of
Maharashtra And Others IJ9'J41 4 SCC, till2 this Court opined that the F
criminal activity in order to invoke TADA must be committed with the
1rq11isite intention as contemplated by Section 3(1) of the Act by u.se of such
weapons as have been enumerated therein and which cause or are likely to
result in the co1111nissio11 of offl!nces as mentioned in that Section. It was
observed :
G
"Thus, kf'.eping in view the settled position that the provisions of
Section 3 of TADA have been held to be constitutionally valid in
Kartar Singh case and from the law laid down by this Court in
Usmanbhai and Niranjan cases, it follows that an activity which is
sought to be punished under Section 3 (1) of TADA has to be H
•
102 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A such which cannot be classified as a mere law and order problem
or disturbance of public order or even disturbance of the even
tempo of the life of the community of any specified locality but is
of the nature which cannot be tackled as an ordinary criminal
activity under the ordinary penal law by the normal law-enforce-
ment agencies because the intended extent and reach of the
B
criminal activity of the 'terrorist' is such. which travels beyond the
gravity of the mere disturbance of public order even of a 'virulent
nature' and may at times transcend the frontiers of the locality and
may include such anti-national activities which throw a challenge
lo the very integrity and sovereignty of the country in its democratic
c polity............................. Thus, unless the Act complained of falls
strictly within the letter and spirit of Section 3 (1) of TADA and
is committed with the intention as envisaged by that section by
means of the weapons etc. as are enumerated therein with the
motive as postulated thereby, an accused cannot be tried or con-
victed for an offence under Section 3 (1) of TADA .................. .
D
......... . Likewise, if it is 011/y as a co11seque11ce of the C1imi11al act
that fea1~ ten-or or/and panic is caused but tile intention of conunitting
the pa1ticular c1in1e cannot be said to be the one st1ictly envisaged
by Sectio11 3 (I), it would be impennissible to tly or convict and
punish an accused under TADA. The commission of the crime with
E the intention to achieve the result as envisaged by the section and
not merely where the consequence of the crime committed by the
accmed create that result, would attract the provisions of Section
3 (1) of TADA. (Emphasis supplied)

F Thus, keeping in vie\\' the background in \Vhich the occurrence took
place, namely, the altercation at the video parlour, which has a great
relevance to determine the applicability of Section 3 TADA, we are of the
opinion that the finding of the Designated Court that the appellants have
committed an offence punishable under Section 3 TADA is clearly er-
roneous. In fairness to the learned counsel for the State Mr. Madhav
G Reddy, Sr. advocate, we must also record that he conceded that in the facts
and circumstances of the case and keeping in view the law laid down by
the Constitution Bench in K01tar Singh's case, [19941 (supp) Scale 1 and
Hitendra Vishnu Thakur's case, (supra) no offence under Section 3 of
TADA could be said to have been committed by the appellants. The
H conviction and sentence of the appellants for the offence under Section 3
., HONKY v. STATE [DR. ANAND,J.] 103

TADA cannot therefore, be sustained and is hereby set aside. A
Appellants No. 1 (A-5), 2 (A-8), 3 (A-9) and 5 (A-11) had alongwith
the deceased accused A-1 and some others, about whose identity there has
been some doubt, formed an unlawful assembly and in furtherance of the
common object of that assembly committed the murder of Popat deceased
besides causing injuries to PW9 and PW14. The Designated Court there- B
fore, rightly found the said appellants guilty of the offences under Sections
302/149, 307/149 and Section 324/149 IPC. The conviction and sentence of
appellants No. 1 (A-5), 2 (A-8), 3 (A-9) and 5 (A-11) for the said offences,
as recorded by the learned Designated Court, are well merited, and calls
for no interference. C
In the result, the appeal succeeds insofar as A-10 (appellant No. 4)
is concerned. He is given the benefit of doubt and acquitted of all the ·
charges against him. He shall be released from custody forthwith irnot- - \
·\ ':~ \
required in any other case. The conviction and sentence of appellants No.
1, 2, 3, and 5 for the offence under Section 3 TADA is also set aside but D
their conviction and sentence for the other offences as recorded by the
Designated Court is upheld and to that extent their appeals fail.

Before we part with the judgment, we would also like to deal with a
submission made on behalf of the appellants by their learned counsel that E
since the offence under Section 3 of TADA is not made out, the criminal
appeal filed in this court, may be transferred to the High Co\Jrt for its
disposal in exercise of our jurisdiction under Article 142 of the Constitution
of India, for the reason that a first appeal against conviction and sentence
recorded for various offences under the Indian Penal Code by the Sessions
Court lies to the High Court. Learned counsel submitted that the appel- - F
!ants should not be denied the opportunity to get the first hearing in the
High Court because in the event of their failure in the High Court, they
still have a chance to approach this Court under Article 136 of the
Constitution of India. The argument is fallacious and runs in the teeth of
the express provisions of Section 19 of TADA. Sections 19 (1) and (2) of G
TADA read as follows :

"19. Appeal - {1) Notwithstanding anything contained in the code,
an appeal shall lie as a matter of right from any judgment, senience
or order, not being an interlocutory order, of a Designated Court
to the Supreme Court both on facts and on law. H
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104 SUPREME COURT REPORTS [1995) SUPP. 4 S.C.R.

A (2) Except as aforesaid , no appeal or revision shall lie to any
Court from any judgment, sentence or order including an inter-
locutory order of a Designated Court."

A bare perusal of the above Section shows that an appeal against the
B judgment, sentence or order, of the Designated Court (except an inter-
locutory order) shall lie on facts and on law to the Supreme Court and that
no appeal or revision shall lie to any other court. In the face of this express
provision, there is no scope to urge that the appeal may be transferred to,
the High Court because of the acquittal of the appellants for the offence
punishable under Section 3 TADA by us. In a case where the Designated
C Court finds that no offence under TADA is made out, it is open to the said
Court to transfer the case to the regular Criminal Court under Section 18
TADA but once the charge is framed and the case is tried by the Desig-
nated Court, an appeal against conviction, sentence or acquittal only to the
Supreme Court and to no other Court. Under Section 12 of TADA the
D Designated Court has the jurisdiction not only to try the cases under
TADA but also to try offences under the Indian Penal Code if the offence
under TADA is connected with such other offences.

The amplitude of powers available to this Court under Article 142
of the Constitution of India is normally speaking not conditioned by any
E statutory provision but it cannot be Jost sight of that this Court exercises
jurisdiction under Article 142 of the Constitution with a view to do justice
between the parties but not in disregard of the relevant statutory
provisions. The transfer of the appeal to the High Court, after hearing the
appeal on merits and finding that Section 3 of TADA on the basis of the
F evidence led by the prosecution, was not made out, is neither desirable nor
proper nor permissible let alone justified. There cannot be piece meal
hearing of an appeal on merits-first by this Court to determine if an offence
under TADA is made out or not and then by the High Court. The
submission of the learned counsel is, thus, devoid of n1erits and is conse-
quently rejected.

K.T. Appeal partly allowed.