Holding

Proof of an agreement to commit a terrorist act is sufficient for conviction under Section 1208 IPC, and confessional statements of co‑accused are admissible when corroborated, rendering the TADA sanction valid and the appeals dismissed.

Summary

The case arose from a bomb blast in Bow Bazar, Calcutta, which demolished a building, killed 69 people and injured many others. The prosecution alleged that the accused conspired to manufacture and explode bombs to terrorise the public and disrupt communal harmony, charging them under Sections 1208, 302, 307, 326, 436 IPC, Sections 3 and 5 of the Explosive Substances Act and Sections 3(2)(1) and 3(3) of the Terrorist and Disruptive Activities (Prevention) Act (TADA). The accused challenged the admissibility of confessional statements of co‑accused, the validity of the TADA sanction, the sufficiency of proof of conspiracy without an overt act, and claimed the right to private defence. The Supreme Court held that an agreement to commit a serious offence suffices for conviction under Section 1208 IPC, that confessional statements are admissible when corroborated, that the TADA sanction was valid, and that private defence does not commence without a reasonable apprehension of attack. It also ruled that a short delay in examining witnesses does not automatically render their testimony unreliable and upheld the acquittal on murder charges, dismissing all appeals.

Issues considered

The admissibility of co‑accused confessional statements under Sections 10 and 30 of the Evidence Act in a TADA case
Whether proof of an agreement alone is sufficient for conviction under Section 1208 IPC without proof of an overt act
Validity of the sanction granted for prosecution under the TADA Act
Whether the right to private defence can be invoked in the absence of a reasonable apprehension of attack
The effect of delay in examination of witnesses on the reliability of their testimony
The propriety of the acquittal on Sections 302/34 and 436/34 IPC

Legislation cited

Code of Criminal Procedure, 1973s. 164
Explosive Substances Act, 1908s. 3, s. 5
Indian Evidence Act, 1872s. 10, s. 24, s. 25, s. 30
Indian Penal Code, 1860s. 1208, s. 302, s. 307, s. 326, s. 436
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 3(2)(1), s. 3(3)

Subjects

criminal conspiracyTADAconfessional statementsevidence lawprivate defenceexplosive substanceswitness examinationovert act requirementsanction validity

Judgment

MOHD. KHALID A
V.
STATE OF WEST BENGAL

SEPTEMBER 3, 2002

[B.N. KIRPAL, CJI., K.G. BALAKRISHNAN AND B
ARIJIT PASAYAT, JJ.]

Penal Code: Sections 1208, 302, 307, 326, 436/Explosive Substances
Act, 1908; Sections 3 and 5:
c
. Criminal Conspirac;~Proving of-Held, in the absence of direct
evidence, the circumstances prov.ed before, during and after the occurrence of
crime could be considered to decide about complicity of accused-Mere proof
ofan agreement between accused for commission of crime is enough to convict
them under Section 1208-Proof of overt act is not necessary. D
Criminal Conspiracy-Confession by co-accused-Corroboration of-
Held, when trustworthy evidence establishing all links ofcircumstantial evidence
is available, it could be taken into consideration-,-Court must consider first
evidence adduced by the prosecution and form opinion as to quality and effect
and then to consider such confession to arrive at the conclusion of guilt- E
Evidence Act, 1872-Confession.

Right to private defence-Commencement of-Held, in the absence of
any attack, reasonable apprehension does not arise-Thus, right to private
defence does not commence.
F
Examination of witnesses-Selection thereof-Held, the prosecution can
pick and choose with due care, honestly and fairly those witnesses who could
be considered relevant and material in unfolding the case-Evidence Act,
1872.

EvidenceAct, 1872: Statement made by one conspirator against another- G
Admissibility of-Held, admissible, so long as the agreement to do illegal act
continues or-the object is achieved.

Terrorist and Disruptive Activities (Prevention) Act, 1987: Sections
3(2)(1) and 3(3): Terrorizing of people .Ambit and meaning of-Held, H
31
32 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A preparation of bomb and its possession would amount to terror~ing the people
and is a terrorist act.

According to the prosecution, accused persons conspired and
manufactured bombs and exploded them. One building was completely

B
demolished and two other adjoining buildings were partially demolished,
as a result of which a large number of people died and several injured.
'
An F.I.R. was lodged under Sections 1208, 436, 302, 307,327 IPC and
Sections 3 and .5 of the Explosive Substances Act.

Two of the accused were arrested. Their confessional statements were
recorded by the Magistrates (PWs.81 and ·82). Since accused exploded
C bombs with intent to strike terror in the minds of the people adversely
affecting the communal harmony amongst Hindus and Muslims, relevant
provisions of the TADA Act were also added after seeking necessary
sanction from the Government. Accused challenged the validity ofsanction
for their prosecution under TADA Act. High Court quashed the order of ·
D sanction. This Court allowed the appeal against the said order and directed
·the TADA ·cou~t to proceed in accord~nce with law with utmost
expedition •
....
The Designated Court examined 165 witnesses and also picked up 3 ·
star :witnesses to prove the conspiracy and the connected act. The Court
· E · found them guilty of the offences punishable under Sections 1208 IPC,
and Sections 3(2)(1), 3(3) of the TADA Act read with Section 34 IPC.
However, it acq.uittei:I them of charges under Sections 302 and 406 IPC.
Hence these cross appeals. .
I • • • • '

It was contended for the appellant-accused that the star witnesses
F : were rowdy elements and were persons with doubtful antecedents,
therefore, probablises their deposition ·as fake at the behest of police
officers;. that statements of PWs were recorded after two days of
occurrence of crime ,,;ithout any explanation; that many. independent.
witnesses were not examined thereby raising suspicion on the prosecution ~
G . version; that accused had made retraction subsequently and so no
importance could be given to such confessio.n;.the accused were preparing.
to protect themselves in exercise of their right to private defence in the
event of attack by Hindus on them; they were not aggressors; that there
was no material to show that they had caused explosions; that confession
by co-accused persons cannot be used against others unless other evidence
H was convincing and ·credrble; that Section IO of the Evidence Act has no ·

.
MOHD. KHALID,, STATE OF WEST BENGAL 33
application since the act flowing from the conspiracy was over, and so the A
confessional statement recorded in relation to the ·conspiracy is of no
consequence; and that a liberal view on sentence might be taken.

On behalf of State, it was contented that intention Of accused was to
terrorise a section of the people and not that they wanted t.o exercise their
right of private defence for themselves; that their real object and motive B
was to use large quantity of explosives and bombs for spreading communal
disharmony; that retraction was an afterthought; that after occurrence
of the incident their first priority was to save the lives of injured than to
record the statement of the witnesses, besides delay in examination of
witnesses would not per se render their evidence suspect; that the C
confessional statement recorded by the Judicial Magistrate clearly came
within Section I 0 of the Evidence Act and no further corroboration was
necessary; and that the purpose of keeping explosives and as to its
possession have been established and so constructive liability of the accused
could not be wiped out.
D
Dismissing the appeals, the Court

HELD: I.I. Evidence of PWs. cannot be termed as unreliable. The
very fact that they were regular visitors to the place of occurrence makes
their pr~sence nothing but natural. Mere delay in examination of the
witnesses for a few days cannot, in all cases, be termed to be fatal so far E
as the prosecution is concerned. As to the length of the delay and
explanation, Court can act on the testimony of the witness if it is found to
be cogent and credible. In the instant case, when the explosion in the
building took place, the first priority was to render assistance to those who
had suffered injuries and were lying under the debris of the demolished F
buildings. The magnitude of the incident could be well judged from the
fact that a building totally collapsed and two other buildings were
substantially damaged, many persons lost their lives and large number of
persons were injured. Therefore, statement of PW68 that he was busy in
attending to the injured and collecting dead bodies till recording of the
statement cannot be said to be improbable. [45-D, E, F[ G
1.2. Normally, the prosecution's duty is to examine all the
eyewitnesses selection of whom has to be made with due care, honestly
and fairly. The witnesses have to be selected with a view not to suppress
any honest opinion, and due care has to be taken that in selection of
witnesses, no adverse inference is drawn against the prosecution. However, H
34 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A no general rule can be laid down that each and every witness has to be
examined even though his testimony may or may not be material. The most
important factor for the prosecution being that all those witnesses
strengthening the case of the prosecution have to be examined, the
prosecution can pick and choose the witnesses who are considered to be
B relevant and material for the purpose of unfolding the case of the
prosecution. 146-C, Df

Habeeb Mohammad v. State of Hyderabad, AIR (1954) SC 51, relied
on.

C 1.3. The essence of criminal conspiracy is an agreement to do an
illegal act and such an agreement can be proved either by direct evidence
or by circumstantial evidence or by both, and it is a matter of common
experience that direct evidence to prove conspiracy is rarely available.
Therefore, the circumstances proved before, during and after the
occurrence have to be considered to decide about the complicity of the
D accused. There is no difference between the mode of proof of the offence
of conspiracy and that of any other offence, it can be established by direct
or circumstantial evidence. 148-C, D; 49-A-81

Bhagwan Swarup Lal Bishan Lal etc. etc. v. State of Maharashtrta, AIR
(1965) SC 682 at p. 686, referred to.
E
Halsbu1J1's laws of England (4th Ed Vol./ I, page 44, page 58), referred

2.1. W,here the conspiracy alleged is with regard to commission of
a serious crime of the nature as contemplated in Section 1208 read with
F the proviso 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 1208 and the
proof of any overt act by the accused or by any one of them would not be
necessary. 150-E, Fl

G SC Bahri v. State of Bihar, AIR (1994) SC 2420); EK. Chandrasenan
v. State of Kera/a, AIR (1995) SC 1066; Kehar Singh and Ors. v. The State
(Delhi Administration), AIR (1988) SC 1883; Ajay Agarll'al v. Union of India
and Ors,. JT (1993) 3 SC 202; Yash Pal Mittal v. State of Punjab 1199714
SCC 540 and Mohammad Usman Mohammad Hussain Maniyar and Ors. v.
H Stute of Maharashtra, 119811 2 sec 443, relied on.
MOHD. KHALIDv STATE OF WEST BENGAL 35
Russel on Crime (12th Ed Vol.I, p. 202; "Criminal law" by Glanville A
Williams (Second Ed P. 382 and Regina v. Murphy, (1937) 173 ER 502 at, ·
508, referred to.

J..2. Where trustworthy evidence establishing all links of
J circumstantial evidence is available the confession of a co-accused as to
conspiracy even without corroborative evidence .can be taken into B
consideratfon. (53-DI

Baburao Bajirao Patil v. State of Maharashtra, (1971] 3 SCC 432 and
Shivanarayan laxminarayan Joshi and Ors. v. State of Maharashtra and Ors.,
AIR (1980) SC 439, relied on.
c
Words and Phrases, permanent edition, Vo/.44, p. 622 and Words and
Phrases by John B. Saunders, 3rd edition, Vol. 4, p. 40/., referred to.

3.1. To attract the provisions of Section 30 of the Evidenced Act, it
should for all purposes be a confession, an admission of guilt and not
merely a statement raising the inference with regard to such a guilt. The D
evidence of co-accused cannot be· considered where he was not tried jointly
with the accused and where he did not make a statement incriminating
himself along with the accused. The confession of a co-accused does not
come within the definition contained in Section 3 of the Evidence Act. It
is not required to be given on oath, nor in the presence of the accused, E
and it cannot be tested by cross-examination. It is only when a person
admits guilt to the fullest extent, and exposes himself to the pains and
penalties provided for his guilt, there is a guarantee for his truth.
Legislature provides that his statement may be considered against his
fellow accused charged with the same crime. (5_4-G, H; 55-A-B]
F
Hari Charan Kurmi and Jogia Hajam v. State of Bihar, (1964( 6 SCR
623, followed.

Kashmira Singh v. The State a/Madhya Pradesh, AIR (1952) SC 159
!Ind Biiubani v. The King, AIR (1949) PC 257, relied on.
G
3.2. In the instant case, great stress was laid down on the retraction
of the makers of the confession. Apart from the fact that the same was
made after about two years of the confession, the evidence clearly
establishes that the confessions were true and voluntary and the Judicial
Magistrates, PWs. 81 and 82, have followed the requisite procedure.
156-E, F; 57-AI H
'6
j SUPREME COURT REPORTS [2002] SUPP. 2 S C.R.

A Shankaria v. State of Rajasthan. (1978) Crl. LJ 1251, relied on.

3.3. It cannot be overlooked that the basic principle which underlies
in Section 10 of the Evidence Act is the theory of agency. Every conspirator
is an agent of his associate in carrying out the object of the conspiracy.
Section JO; which is an exception to the general rule, while permitting the
B statement made by one conspirator to be admissible as against another
conspirator restricts it to the statement made during the period when the
agency subsisted. Once it is shown that a person became snapped out of
the conspiracy, any statement made subsequent thereto cannot be used
as against the other conspir.ators und~r Section JO. Intention is the volition
C of mind immediately preceding the act while the object is the end to which
effect is directed the thing aimed at and that which one endeavours to
attain and ,carry on. Intention implies the resolution of the mind while the
object means the purpose for which the resolution was made. However, if
the object of conspiracy has not been achieved and there is still agreement
to do the illegal act, the offence of a criminal conspiracy continues and
D Section to.of the Evidence Act applies. The evidence in each case has to
be tested and the conclusions arrived at. In the present case, the
prosecution has not led any evidence to show that any particular accused
continued to be a member of the conspiracy after his arrest.
(58-A, B; F; 59-D, El

E State of Gujarat v. Mohd Atik and Ors .. (19981 4 SCC 351); Mirza
Akbar v. King-Emperor, AIR (1940) P.C. 176; Bhagwan Swarup Lal Bishan
Lal etc. etc. '" State of Maharashtra, AIR (J965) SC 682; Sardul Singh
Caveeshar v. The State of Bombay, AIR (J957) SC 747 and Stale v. Nalini,
IJ999J 5 sec 253, relied on.
F
4.1. While dealing with an accused tried under the TADA Act, it 'is
necessary to find out the legislative intent for enacting it. It defines
"terrorist a.~ts" and "terrorist". It is not possible to define the expression
'terrorism'. in precise term. The intended object of the Terrorist and
Disruptive Activities (Prevention) Act, 1985 (Old Act) was to deal with
G persons responsible for escalation of terrorist activities in many parts of
the country. It was expected that it would be possible to control the menace
within a pedod of two years, and initially life of the Act was restricted to
the period .of two years from the date of its commencement. But noticing
the rontinu.ance of menace, that too on a larger scale, TADA has been
H enacted. [59.7 F, G, H; 60-AI
MOHD. KHALID v. STATE OF WEST BENGAL 37
Hitendra Vishnu Thakur and Ors. v. Slate of Maharashtra and Ors.. A
119941 4 sec 602, referred to.

League o/Nations Convention (/937) !GA Res. 511210) and Definition
by A. Schmid to United Nations Crime Branch (1992), referred to.

4.2. The preparation of bombs and possession of bombs would B
tantamount to terrorizing the people. Credible evidence proves it to be a
terrorist act. The explosion of large number of live bombs is a clear
. indication of conspiracy. It cannot be accepted that if the bombs are for
self defence there was no mens rea. Preparation and storage of bombs are
per se illegal acts. In the instant case, there was neither any evidence nor C
any indication about attack on the Muslims and, therefore, the question
of any reasonable apprehension does not arise. The cover of self-protection
when pierc~d unravels a sinister design to unleash terror. [63-D, E, Fl

Yogendra Morarji v. State of Gujarat, [19801 2 SCC 218) and Puran
Singh and Ors. v. The State of Punjab, AIR (1975) SC 1674), referred to. D
5. Charges under Sections 3(2)(1) and 3(3) of TADA Act and Section
1208 IPC are clearly established. If it is established that Section 3 of the
Act was not applicable and instead Section 4 of the Explosive Act, yet it
can only be the question of sentence which can be imposed. As the charge
is for higher offence, conviction of lesser offence is permissible. Since the E
award of life sentence for the offences under Sections 1208 IPC and
Sections 3(2)(1) and 3(3) of the TADA Act is upheld any reduction in
sentence from 10 years to 7 years (in the background of Sections 3 and 4
of the Explosive Act) is really of no consequence. [64-E, F]

6. The appeal filed by the prosecution is against the acquittal in F
respect of charges under Section 302/34 and Section 436/34 IPC. It is not
necessary to go into the question of enhancing of sentences in respect of
established offences in the absence of an appeal by the prosecution in that
regard. [64-G, H; 65-AJ

[Relying upon the decision of this Court in State of UP. v. Shambu G
Nath Singh and Ors., [200114 SCC 667 and NG. Dastane v. Shrikant
S. Shivde and Anr., 12001 J 6 SCC 135, the Court observed that it
would be desirable for the Courts to keep the following aspects in
view, viz., unnecessary adjournments give scope for grievance
that accused persons get over the witnesses and such adjournments H
38 SUPREME COURT REPORTS f2002) SUPP. 2 S.C.R.

A lack the spirit of Section 309 of the Code, where a witness is
availa~le and his examination-in-chief is over, unless compelling
reasons are there, the Trial Court should not adjourn the matter
on mere asking; and that this Court has time and again deprecated
the practice of adjourning cases without examination of witnesses
when they are in attendance.I 165-8, Cl
B
CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No. 1114
of 2001.

From the Judgement and Order dated 31.8.2001 of the Designated Court,
Kolkata in TADA Case No. I of 1993.
c
Rajendra Singh, Sushi) Kumar, K.T.S Tulsi S. Muralidhar, S.M. Shreyas
Jayasimha, Md. Abubakar Dhali, Adolf Mathew, R.P. Wadhwa11i, Raj Kumar
Gupta, Sheo Kumar Gupta, A.N. Bardiyar, N.R. Chodhary, Somnath
Mukherjee, Rishi Malhotra, Ashok Bhakshi, Gaurav Sharma, H.K. Puri, S.K.
D Puri, Ujjwal Banerjee and Ms. Anindita Gupta and Shakil Ahmed Syed for
the appearing parties.

The Judgment of the Court was delivered by ...
ARIJIT PASA YAT, J. No religion propagates terrorism or hatred.
E Love for all is the basic foundation on which almost all religions are founded.
Unfortunately, some fanatics who have distorted views of religion spread
messages of terror and hatred. They do not understand and realize what
amount of damage they do to the society. Sometimes people belonging to
their community. or religion also become victims. As a result bf these fanatic
acts of some misguided people, innocent lives are lost, distrust in the minds
F of communities replaces love and affection for others, The devastating effect
of such dastardly acts is the matrix on which the present case to which these
appeals relate rests. On 16th March, 1993, just before the stroke of mid-
night, people in and around B.B. Ganguly Street in the Bow Bazar Area of
Calcutta heard deafening sounds emanating from thundering explosions which
G resultei;l in total demolition of a building and partial demolition of two other ·
adjacent buildings situated at 267,266 and 268 A, B.B. Ganguly Street. Large
..'
number of people were trapped in and buried under the demolished buildings.
It was indeed a very ghastly sight and large number of people died because
of the explosions impact and/or on account of the falling debris. Human
limbs were found scattered all around the area. Those who survived tried to
H rescue the unfortunate victims. Police officers arrived at the spot immediately.
..
MOHD.KHALID v. STATE OF WEST BENGAL [ARillT PASAYAT. J.] 39
The first information report was lodged at Bow Bazar Police Station for A
alleged commission of offences punishable under Section I20B, 436. 302,
307 326 of the Indian penal Code. 1860 (in short 'the IPC) and Sections 3
and 5 of the Explosive Substances Act, 1908 (in short 'The Explosive Act').

Considering the seriousness and gravity of the incident, the
Commissioner. of Police set up a special investigating team. On investigation B
8 persons including the six appellants were found linked with the commission
of offences. Arrests were made. While rescue operations were on there was
... further explosion on 18.3.1993. The exploded bomb was handed over to the
police officer after its examination on the spot by a Military Officer.
Meanwhile, the pay loader picked up a gunny bag containing 22 live bombs. C
Afterwards. They were defused after examination. Certain materials were
seized by the investigating team from the site of the occurrence and on
examination, it was found that nitro-glycerin explosives were involved in the
explosion. Large number of witnesses were examined.

Two of the accused persons, Pannalal faysoara (accused-appellant in D
Criminal Appeal No. 299/2002) and Mohd. Guizar (accused-appellant in
Criminal Appeal No. 494/2002) were arrested on 29.3.1993 and 13.5.1993
respectively. As they wanted to make their confessions, those were to be
recorded before the Judicial Magistrate. accordingly, their confessional
statements were recorded by the magistrates (PWs.81 and 82). Some of the
accused persons were also identified by witnesses in the Test Identification E
Parade. On 11.6.1993. the Commissioner of Police on examination of the
case diary, statement of witnesses, reports of the experts and confessional
statements came to the conclusion that provisions of Terrorist and Disruptive
Activities (Prevention) Act, 1987 (in short 'The TADA Act') were applicable.
Accordingly, sanction, was accorded for prosecution of the accused persons F
under the said statute. Charge sheet was submitted on 14.6.1993.
T
Accused Persons filed a writ application before the Calcutta High Court
challenging the validity of the sanction and the order whereby the Designated
Court took cognizance of the offences under the TADA Act. The High Court
...t quashed the order of sanction and taking of cognizance. The matter .was G
challenged before this Court by the prosecution. The appeal was allowed' and
the Designated Court was directed to proceed with the case in accordance
with law with utmost expedition. [See: State of West Bengal and Anr. v.
Mohd. Khalid and Ors. etc. [ 1995] I SCC 684. The Designated Coµ rt framed
charges under Section 120B, 436/34, 302/34, !PC, Section 3 and 5 of the
Explosive Act and under Section 3 (2) (1) and 3(3) of the TADA Act. As the H
40 SUPREME COURT REPORTS f2002] SUPP. 2 S.C.R.

A accused persons facing trial pleaded innocence, trial was conducted.

The case of the prosecution, in short, is that the accused persons
conspired and agreed to manufacture bombs illegally by using explosives to
strike terror in the people, pa11icularly, in the mind of the people living in
Bow Bazar and its adjacent areas to adversely affect communal harmony
B amongst members of Hindu and Muslim communities Pursuant to this criminal
conspiracy and in pursuance of the common intention, they caused complete/
partial destruction of properties by using the explosive substances. They
committed murders knowing fully well that illegal manufacture of bombs by
explosive substances in most likelihood would result in deaths or bodily
C injuries, by causing explosion. Jn causing explosion by unlawful and malicious
user of explosive substances which was likely to endanger life or to cause
serious injury to properties, they committed offences in terms of Sections 3
and 5 of the Explosive Act. The fact that they possessed explosive substances
gave rise to a reasonable suspicion that such possession and control of the
explosi".e substances were not for lawful object. Prrvisions of the TADA Act
D were applied on the allegations that pursuant to the conspiracy and in pursuance
of the c01~mon intention they prepared bombs with huge quantities of explosive
substances and highly explosive materials with intent to strike terror in the
mind of the people adversely affecting the communal harmony amongst the
people belonging to Hindu and Muslim religions. Their terrorist activities
E resulted .in the death of 69 persons, injuries to a large number of persons and
destruction and damage to properties. As a result of these acts commission
of terrorist acts was facilitated.

Out of the 165 witnesses examined, three witnesses were picked up as
star witnesses to prove the conspiracy and the connected acts. They are PW.
F 40 (Md. Sabir @ Natu), PW. 67 (Santosh Hazra) and PW 68 (Kristin Chow
@ Kittu),. By a detailed judgment ,the Designated Court found the accused
appellants guilty of offences punishable under Section 120 B IPC, Sections
3 and 5 of the Explosive Act and Section 3(2)( I) and 3(3) of the TADA Act
read with Section 34 IPC. However, they were found not guilty of the offences
in terms 'of Sections 302 and 436 read with Section 34 !PC. After hearing on
G the question of sentence, the accused appellants were sentenced to undergo
rigorous imprisonment for life and to pay a fine of Rs. 3000 each for
commiS'sion of offences under Section 3(2)(1) of the TADA Act read with
Section 34 !PC, to undergo rigorous imprisonment for five years and to pay
a fine of Rs. 500 each for commission of offence under Section 3 (3) of the
H TADA Act. They were further sentenced to undergo rigorous imprisonment
MOHD. KHALID v. STATE OF WEST BENGAL [ARl.llT PASAY AT. J J 41

for 10 years and to pay a fine of Rs. 1,000 each for commission of offence A
under Section 3 of the Explosive Act and to suffer an imprisonment for one
year and to pay a fine of Rs. 300 each for commission of offence under
Section 5 of the Explosive Act. Each of them were also sentenced to
imprisonment for life and to pay a fine of Rs. 3000 each for commission of
offence under Section 120 B of IPC.
B
These appeals relate to the common judgment of the Designated Court.
.... While the accused appellants have questioned the legality of the conviction
and sentences imposed, the State has questioned the propriety of acquittal in
respect of the offences in terms of Sections 302/34 and 436/34 !PC. Learned
counsel for the accused appellants have submitted, .inter alia, that the so- C
called star witnesses are persons with doubtful antecedents. They were rowdy
elements who were under the thumb of police officers and the possibility of
their having deposed falsely at the behest of police officers cannot be ruled
out, and this is more probable. Referring to the evidence of PWs 40,67 and
68, it was submitted that their evidence suffers from innumerable fallacies.
PW-40 claimed to have heard the accused-appellant, Rashid asking the D
accused-appellant, Pannala I Joysorara about the preparation of bembs. He
... was the witness who was available immediately after the incident. But his
statement was recorded two days after without any explanation being offered
as to why he was examined two days after. Similarly, PWs. 67 and 68 , were
also examined.after two days. In Court, they made embellished and highly E
ornamented statements. It was pointed out that evidenced of PW-67, in
particular, is full of holes. According to his own testimony, he was only
connected with satta games. It was, therefore, highly improbable that he was
allowed to go up and notice all those materials which were lying in the rooms
and the activities being carried out, It was highly improbable that nobody
stopped him. Many independent witnesses were not examined though their F
l presence is accepted by the prosecution. A grievance is made that some of
the persons who were available to be examined have not been so done.
Particular reference has been made to Nausad and Osman. It is stated that the
prosecution case is that Nausad was the owner of one of the premises and
PW-68 told Osman about the conspiracy. Non-examination of these material G
and independent witnesses rendered the prosecution version suspect. There
was no reliable evidence of conspiracy. There was no design to commit any
act even if it is accepted that there was any explosion. That was an accident.
In fact, no importance can be attached to the so-called judicial confessions
because two accused person who allegedly made the confession had made
retraction subsequently on 3.2.1995. They were terrorized, threatened and H
42 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A were compelled to make the confession. Even if, according to them, the.
prosecution case is accepted in its toto, it only proves that the Muslims were
trying to protect themselves in the event of a possible attack of Hindus on
them. In the bomb blast which took place in Bombay a few months earlier,
the police was _totally ineffective and could not save the lives of number of
B Muslims and were silent onlookers. That spread message of fear in the mind
of Muslims and as the prosecution version itself goes to show, they were
preparing to protect themselves as a matter of exercise of their right of
prevent defence, to protect defence, in the most likely event of attack by the
Hindus on them. This according to them rules out application of the TADA
Act. They were not the a~gressors and this preparations to protect their rights
C and properties in the event of an attack was not to spread a terror or to cause
·any unlawful act but was an act intended to be used as a shield and not a
weapon. Further, Section 3 of the Explosive Act has no application because
there was no material to show that the accused persons had caused explosion.
It was pointed out that several persons who had lost their lives in the explosion
were arrayed as accused persons. Even if, they caused the explosion, they
D could not save their own lives and it cannot be said that the accused appellants
were responsible for the explosion. Coming to the charge of conspiracy, it ....
was submitted that the statements recorded under Section 164 of the Code of
Criminal Procedure, 1973 (in short 'the Code') of the two accused persons
cannot be used against others unless the prescriptions of Section 30 of the
E Indian Evidence Act, 1872 (in short 'the Evidence Act') were fulfilled.
According·to them, confession of a co-accused was not a substantive piece
of evidence. It had a limited role to play. In case other evidence was convincing
and credible, as an additional factor, confession of a co-accused for limited
purpose can be used in evidence. The present was not a case of that nature.
Finally, it was submitted that accused appellants are in custody since 1993
F and a liberal view on sentence should be taken.
In response, Mr. K.T.S. Tulsi, learned senior counsel appearing for the
prosecution submitted that the apparent intention of the accused appellants
was to terrorise the people. Large quantity of the explosives and bombs
G recovered clearly gives a lie to the plea that self-protection was the object.
Seen in the context of the motive it is clear that the intention was l.o terrorise
a section of the people and it is not a case that the accus.ed appellants wanted
to exercise their right of private defence for themselves. The real object and
that motive were to use it for spreading communal disharmony under the
cover of self-protection and to terrorise people. So far as the confession in
H terms of Section 164 of the Code is concerned, it was submitted that the
MOHD. KHALIDv. STATE OF WEST BENGAL [ARIJIT PASAYAT, J.] 43
statements were recorded after making the confessors aware that they may be A
utilized in evidence against them. The so-called retraction was afterthought.
The mere fact that the witnesses were examined after two days does not per
se render their evidence suspect. It has to be noted that there was total chaos
after the explosions. Everywhere bodies were lying scattered. There was no
infonnation as to how many were buried under the debris. The first attempt
was to save lives of people rendering immediate medical assistance. At that B
point of time, recording of evidence was not the first priority. In fact, after
the special team was constituted, the process of recording statements was
.sta1ted on 18.3.1993 and on that date the statements of material witnesses
were recorded, With reference of Section 15 of the TADA Act, it is submitted
that though the statements recorded by the Magis~rate was not strictly in line C
with Section · 15 ·of the TADA Act, yet it deserves. a greater degree of
acceptability under the said Act. It cannot be conceived that the confession
recorded by a Po lice Officer would stand on a better footing than one recorded
,d
by the Judicial Magistrate. Further, it was submitted that the confessional
statements recorded clearly come within the ambit of Section I 0 of the
Evidence Act and, therefore, no further corroboration was riecessary and to D
that extent Section 30 may not be applicable. Even otherwise, according to
him, there was ample material to connect the accused appella·nts with. the
crime and the confessional statements were the last straw.

Responding to the plea that Section 3 of the Explosive Act had no E
application. It was submitted that the possession of the explosives has been
established, the purpose for which they were stored and the bombs were
manufactured has been established. Even if theoretically it is accepted that
the accused appellants did not cause the explosion, but the others did at their
behest. Their ~onstructive liability cannot be wiped out. They were the
perpetrators of the cri,ne being the brain behind it. Even if, for the sake of F
arguments it is accepted that the final touch was given by somebody else,
may be the deceased accused persons, as they were the brains behind the
whole show, their liability cannot be ign_ored and ruled out. In any event,
according to him, they have been charged with Section 3 of the Explosive
)
... Act and could be convicted under Section 4 of the said Act because the latter G
constitutes a lesser offence.

By ways of rejoinder, it was submitted by learned counsel for the-
accused-appellants that Section I0 of the Evidence Act has no application,
because after the act flowing from the conspiracy is over, the relevance of
any statement of relation to the conspiracy is of no consequence. After the H
44 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A explosion even if the same was the result of conspiracy as alleged. any
confessional statement recorded under Section 164 of the Code cannot come
within the ambit of Section I0 of the Evidence Act.

First. we shall deal with the plea regarding acceptability of the evidence.
It is to be seen as to what is the evidence of PWs 40, 67 and 68 and how they
B establish prosecution case. PW-40 had deposed about presence of Murtaza
Bhai, Gulzar:Bhai, Khalid Bhai. Ukil Tenial, Khursid and Hansu while they
were coming inside Satta Gali carrying two loaded gunny bags. Thereafter.
they went upstairs of 267 B.B. Ganguly Street. PW-40 followed them up. He
noticed the aforesaid persons mixing the ingredients of bombs and also
C manufacturing bombs. He found two drums, few gunny bags and small
containers lying there. Murtaza, Guizar and Khalid were shifting and straining
the explosive materials after taking it and from the gunny bags. His nose and
eyes got irritated when the process was going on. Therefore, he came down.
Around IO to 10.30 p.m. he saw Rashid, Aziz Zakrin and Lalu coming inside
the Satta Gali with an old man wearing spectacles (identified as accused-
D appellant Panalal Jaysoara). While moving up the stairs to the upper floor,
Rashid asked the old man to prepare bombs with the materials brought by
him. Criticism was levelled by learned counsel for accused-appellant that the
entire conversation alleged to have taken place was disclose by PW40 during
investigation. On verification of records, it appears that though the exact
E words of the conversation were not stated, in substance the same idea was
conveyed. PWs 67 and 68 have stated about plan of and preparation for
manufacture of bombs. Their statement was to the effect that on 16.3 .1993
at about 11.00 p.m. they went to meet Rashid Khan to ventilate their grievance
against some of the pencillors disturbing the tranquility of the locality. PW-
67 has deposed that Rashid was standing alone in front of the Satta office.
F As he and PW-68 were reporting the matter to Rashid, an old man wearing
spectacles (identified as accused Pannalal Jaysoara) and Osman came out of
Satta gail. The old man reported to Rashid that it would take whole night to
prepare bombs by using the mixture. On being asked as to what would be
done with the bombs, Rashid replied that large number of bombs were required
bombs were required because of the riot at Bombay between Hindus and
G Mus!ims. Statement of PW-68 is to the similar effect that on 16.3.1993 around
11.00 p.m. accused-appellant Rash id intimated an old man (identified as
accused-appellant Pannalal faysoara) that preparation of large number of
bombs was required to be used in the event Hindus attacked the Muslims,
and it was necessary in view of riots in Bombay . PWs 67 and 68 belonged
H to the locality and wer~ acquainted with Rashid Khan. Their near relatives
MOHD. KHALID.- STATE OF WEST BENGAL [ARl.llT PASAY/\T. J.] 45
were staying in locality. It is on record that some relatives of PW-68 have. A
lost their lives in the incident. Confidential statement of acctised-appellant,
Pannalal Jaysoara was to the effect that he had asked accused-appellant Rashid
as to the urgency for preparing large number of bombs. His reply was that
'I
-"
he took the decision of preparing bombs so that Muslims could fight in the
possible riot. In the test identification parade PWs 40, 67 and 68 identified
accused-appellant Pannala Jaysoara on 15.4.1993. Confessional statement of B
accused-appellant ·Guizar is relevant, He stated that Rashid had reminded
them that many Muslims had been killed in the riot at Bombay and Government
did not do anything for the Muslims. If there is a riot, many Muslims may
die as the Government may not do anything. Therefore, he took the decision
of preparing large quantity of explosives and bombs. PW 67 has deposed that c
accused-appellant Rashid directed preparation of large number of bombs
overnight. Presence of the accused persons in and around the place of
occurrence has been amply established by the evidence of PWs 40,67 and 68,
as well the confessional statements of Pannalal and Guizar.

In the case at hand , the evidence of PWs. 40,67 and 68 even after the D
close scrutiny cannot be termed to be unreliable. Merely because they were
the persons with no fixed avocation, the very fact that they were regular
visitors to the place of occurrence described as 'Sana Gali' makes their
presence nothing but natural. Additionally, we find that relatives of PW-68
have lost lives. Mere delay in examination of the witnesses for a few days
cannot in all cases be tenned to be fatal so far as the prosecution is concerned.
E
There may be several reasons. When the delay is explained, whatever be the
length of the delay, the Court can act on the testimony of the witness if it is
found to be cogent and credible. In the case at hand, as has been rightly
pointed out by the learned counsel for the respondents, the first priority was
rendering assistance to those who had suffered injuries and were lying under F
the debris of the demolished buildings. The magnitude of the incident can be
well judged from the fact that a total building collapsed and two other buildings
were demolished to a substantial extent, 69 persons lost their lives and large
number of persons were injured. Therefore, statement of PW-68 that he was
~ busy in attending to the injured and collecting dead bodies till 18.3.1993
cannot be said to be improbable. Though, an attempt has been made to show G
that there is no truth in his statement that he had carried the injured persons
to the hospital by making reference to certain noting in the medical reports
to the effect that unknown person brought the injured to the hospital, that is
really of no consequence. When large number of persons were being brought
to the hospital. the foremost duty of the doctors and other members of the H
46 SUPREME COURT REPORTS (2002) SUPP. 2 S.C.R.

A staff was to provide immedliate treatment and not to go about collecting
information as to who had brought the injured t.o the hospital for treatment.
That 'would be contrary ~ the normal human conduct. Looked at from any
angle, the evidence of PWs. 40, 67 and 68 cannot be said to be suffering
from any infirmity. Their statements along with the confessional statements 1...

B of the co-accused and a definite assurance to the prosecution version.

Next comes the accused-appellants' plea relating to non-examination of
witnesses.

Normally, the prosecution's duty is to examine all the eyewitnesses
selection of whom has to be made with due care, honestly and fairly. The
C witnesses have to be selected with a view not to suppress any honest opinion,
and due care has to be taken that in selection of witnesses, no ·adverse inference
is drawn against the prosecution. However, no general rule can be laid down
that each and every witness has to be examined even though his testimony
may or may not be material. The most important factor for the prosecution
D being that those witnesses sti"·engthening the case of the prosecution have to
be examined, the prosecution can pick and choose the witnesses who are
considered to be relevant and material for the purpose of unfolding the case
of the prosecution. It is not the quantity but the quality of the evidence that
is important. In the case at hand, if the prosecution felt that its case has been
well established though the witnesses examined, it cannot be said that non-
E examination of some persol'ls rendered its version vulnerable.

As was observed by this Court in Habeeb Mohammad v. State of
Hyderabad, AIR (1954) SC 51 prosecution is not bound to call a witness
about whom there is a reasonable ground for believing that he will not speak
F the truth.

It has not been shown as to how the examination of persons like Nausad
and Osman would have thrown any light on the issues involved. Whether
Usman was the owner of the house or not has no significance when the
prosecution has established the conspiracy angle and preparation of bombs
G by credible evidence. Similarly, Osman was the person to whom one witness
is stated to have told about the conspiracy angle. Since that witness has been
held t9 be reliable, non-examination of Osmana is really of no consequence.
A reference was made to some persons who were parties to the Test
Identification Parade. It is pointed out that some of them did not identify all
the accused persons. Here again, the non-examination of these persons cannot
H be held to be of any consequence. Those persons who have identified the
MOHD. KHALID v. STATE OF WEST BENGAL [ARIJITPASAYAT. J.] 47

accused persons knew them earlier. Therefore, even if some persons not A
examined did not identify all the accused persons that does not in any way
affect the credibility of the witnesses who knew them, have identified them
and deposed about the conspiracy and the preparation of oombs. Above
i. being the position, no adverse inference can be drawn.

·it would be appropriate to deal with the question of conspiracy. Section B
1208 of IPC is the provision which provides for punishment for criminal
conspiracy. Definition of 'criminal conspiracy' given in Section 120A reads
as follows:

"120A-When two or more persons agree to do, or cause to be done,-
C
(I) all illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy;

Provided that no agreement except an agreemem to commit an offence D
shall amount to a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement in
pursuance thereof.'

The elements of a criminal conspiracy have been stated to be: (a) an object
to be accomplished, (b) a plan or scheme embodying means to accomplish E
that object, (c) an agreement or understanding between two or more of the
accused persons whereby, they become definitely committed to co-operate
for the accomplishment of the object by the means embodied in the agreement,
or by any effectual means, (d) in the jurisdiction where the statute required
an overt act. The essence of a criminal conspiracy is the unlawful combination
and ordinarily the offence is complete when the combination is framed. From F
this, it necessarily follows that unless the statute so requires, no overt act
need be done in furtherance of the conspiracy, and that the object of the
combination need not be accomplished, in order to constitute an indictable
offence. Law making conspiracy a crime, is designed to curb immoderate
power to do mischief which is gained by a combination of the means. The G
encouragement and support which co-conspirators give to one another
rendering enterprises possible which, if left to individual effort, would have
been impossible, furnish the ground for visiting conspirators and abettors
with condign punishment. The conspiracy is held to be continued and renewed
as to all its members wherever and whenever any member of the conspiracy
acts in furtherance of the common design. (See: American Jurisprudence Vol. H
48 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A II Sec. 23, p. 559). For an offence punishable under section 120-B, prosecution
need not necessarily prove that the perpetrators expressly agree to do or
cause to be done illegal act; the agreement may be proved by necessary
implication. Offence of criminal conspiracy has its foundation in an agreement
to commit an offence. 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 by
B unlawful means. So long as such a design rests in intention only, it is not
indictable. When two agree to carry it into effect, the very plot is an act in
itself, and an act of each of the: parties,'promise against promise, actus contra
actum, capable of being enforced, if lawful, punishable if for a criminal
object or for use of criminal means.
c No doubt in the case of conspiracy there cannot be any direct evidence.
The ingredients of offence arc that there should be an agreement between
persons who are alleged to conspire and the said agreement should be for
doing an illegal act or for doing illegal means an act which itself may not be
illegal, Therefore, the essence of criminal conspiracy is an agreement to do
D an illegal act and ·such an agreement can be proved either by direct evidence
or by circumstantial evidence or by both, and it is a matter of common
experience that direct evidence to prove conspiracy is rarely available.
Therefore, the circumstances piroved before, during and after the occurrence
have to be considered to decide about the complicity of the accused.
E In Halsbury's Laws of England (vide 4th Ed. Vol. I I, page 44 page 58),
the English Law as to conspiracy has been stated thus:

"Conspiracy consists in the agreement of two or more persons to do
an unlawful act, or to do a lawful act by unlawful means. It is an
indictable offence at common law, the punishment for which is
F imprisonment or fine or both in thee discretion of the Court.

The essence of the offence of conspiracy is the fact of combination by
agreement. The agreement may be express or implied, or in part express and
in part implied. The conspiracy arises and the offence is committed as soon
G as the agreement is made, and the offence continues to be committed so long
as the combination persists, that is until the conspiratorial agreement is
terminated by completion of its performance or by abandonment or frustration
or however, it may be. The actus rues in a conspiracy is the agreement to
execute the illegal conduct, not the execution of it. It is not enough that two
or more persons pursued the same unlawful object at the same time or in the
H same place, it is necessary to show a meeting of minds, a consensus to effect
.. '
MOHD. KHALID v. STATE OF WEST BENGAL [ARIJITPASAYAT, J.] 49
an unlawful purpose. It is not, however, necessary that each conspirator A
should have been in communication with every other."

There is no difference between the mode of proof of the offence of
conspiracy and that of any other offence, it can be established by direct or
circumstantial evidence. (See: Bhagwan Swarup Lal etc. etc. v. State of
Maharashtra, AIR (1965) SC 682 at p. 686]. B
Privacy and secrecy are more characteristics of 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 C
to give affirmative evidence about the date of the fonnation of the criminal
conspiracy, about the persons who took part in the fonnation 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.
D
The provisions ofSection 120-A and 120-B,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 usefullly noted-
E
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 attempting to do them, nor in citing others to do them, but in the
forming of the scheme or agr'eement between the parties, agreement
is essential. Mere knowledge, or even discussion, of the plan is not,
per se, enough." F
Glanville Williams in the "Criminal Law" (Second Ed. P. 382) states-

"The question arose in an Iowa case, but it was discussed in
J terms of conspiracy rather then of accessoryship. D, who had a
grievance against P, told. E that if he would whip P someone would G
pay his fine. E replied that he did not want anyone to pay his fine,
that he had a grievance of his own against P and that he would whip
him at the first opportunity. E whipped P.O. was acquitted of
conspiracy because there was no agreement for 'concert of action, no
agreement to 'co-operate'.
H
50 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A Coleridge, J, while summing up the case.to Jury in Regina v. Murphy, (1837)
173 ED 502 at p. 508] states:

"I am bound to tel I you, that although the common design is the
,.root of the charge, it is not necessary to prove that these two parties
,. .came together and actually agreed in terms to have this common
B design and to pursue it by common means, and so to carry it into
execution. This is not necessary, because in many cases of the most
. clearly established conspiracies there are no means of proving any
such thing and neither' law nor common sense requires that it should
· be proved. If you find that these two persons pursued by their acts the
··same object, often by the same means, one performing one part of an
c ·act, so as to complete it, with a view to the attainment of the object
'·which they were pursuing, you will be at liberty to draw the conclusion
that they have been engaged in a conspiracy to effect that object. The
question you have to ask yourselves is, had they this common design,
and did they pursue it by these common means the· design being
D unlawful."
·,'
'
As note above, the essential ingredient of the offence of criminal
conspiracy is the agreement to commit an offence. In a case where the
agreement is for accomplishment of an act which by itself constitutes an
offence, then· in that event no overt act is necessary to be proved by the
E prosecution because in such a situation, criminal conspiracy is established by
proving such an agreement. Where the conspiracy alleged is with regard to
commission of a serious crime of the nature as contemplated in Section 120
B read with the proviso to sub-section (2) of Section 120 A, then in that
event mere proof of an agreement between the accused for commission of
F such a crime alone is enough to bring about a conviction under Section 120
B 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 party to the conspiracy must do some overt act
towards the fulfilment of the object of conspiracy, to commit the essential
ingredient being an agreement b1~tween the conspirators to commit the crime
G and if these requirements and ingredients are established, the act would fall
within the trapping of the provisions contained in section 120 B [See: S.C.
Bahri v. State of Bihar, AIR (1994) SC 2420.

The conspiracies are not hatched in open, by their nature, they are
secretly, planned, they can be proved even by circumstantial evidence, the
H lack of direct evidence relating to conspiracy has no consequence. [See: E.K.
MOHD. KHALIDv. STATE OF WEST BENGAL [ARIJITPASAYAT, J] 51
Chandrasenan v. State of Kera/a, AIR (1995) SC 1066). A
In Kehar Singh and Ors. v. The State (Delhi Administration), AIR (1988) SC
1883 at p. 1954), this Court observed:

"Generally, a conspiracy is hatched in secrecy and it may be
difficult to adduce direct evidence of the same. The prosecution will B
often rely on evidence of acts of various parties to infer that they
were done in reference to their common intention. The prosecution
will also more often rely upon circumstantial evidence. The conspiracy
can be undoubtedly proved by such evidence direct or circumstantial.
But the court must enquire whether the two persons are independently
pursuing the same end or they have come together to the pursuit of C
the unlawful object. The former does not render them conspirators,
but the latter does. It is, however, essential that the offence of
conspiracy required some kind of physical manifestation of agreement.
The express agreement, however, need not be proved. Nor actual
meeting of the two persons is necessary. Nor it is necessary to prove D
the actual words of communication. The evidence as to transmission
of thoughts sharing the unlawful design may be sufficient. Conspiracy
can be proved by circumstances and other materials. (See: State of
Bihar v. Paramhans, (1986) Pat LJR 688. To establish a charge of
conspiracy knowledge about indulgence in either an illegal act or a
legal act by illegal means is necessary, In some cases, intent of E
unlawful use being made of the goods or services in question may be
inferred from the knowledge itself. This apart, the prosecution has
not to establish that a particular unlawful use was intended, so long
as the goods or service in question could not be put to any lawful use.
Finally, when the ultimate offence consists of a chain of actions, it p
would not be necessary for the prosecutions to establish, to bring
home the charge of conspiracy, that each of the conspirators had the
knowledge of what the collaborator would do so, so long as it is
known that the collaborator would put the goods or service to an
unlawful use . (See State of Maharashtra v. Som Nath Thapa, JT
(1996) 4 SC 615. G
We may usefully refer to Ajay Agarwal v. Union of India and Ors., JT
(1993) 3 SC 203. It was held:

xxx xxx xxx
H
52 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A "l? ........... It is not necessary that each conspirator must know all
the details of the scheme nor be a participant at every stage. It is
' necessary that they should agree for design or object of conspiracy.
Conspiracy is conceived as having three elements: (I) agreement; (2)
between two or more persons by whom the agreement is effected:
and (3) a criminal object, which may be either the ultimate aim of the
B 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 an unlawful
. act by unlawful mearns" and 'was elaborated by Willies, J. on behalf
c
· of the judges while referring the question to the House of Lords in
• 1:
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
D , 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, actu~. contra actum, capable of being enforced, if
lawful; punishable of for a criminal object, or for the use of criminal
E means.'

The Court in B.G. Barsay v. State of Bombay, held:

"The gist of the offence is an agreement to break the law. The
parties to such an agreement will be guilty of criminal conspiracy,
F . though the illegal act agreed to be done has not been done. So too,
it is an ingredient of the offence that all the parties should agree to
do a single illegal act. It may comprise the commission of a number
f ~facts. Under Section 43 of the India Penal Code, an act would be
·illegal if it is an offence or if it is prohibited by law."
G In Yash Pal Mittal v. State of Punjab, (1977] SCC 540 the rule was laid
as follows: (SCC p. 543 para 9)
~ '-

'The very agreement, concert or league is the ingredient of the
offence. It is not necessary that all the conspirators must know each
and every detail of the conspiracy as long as they are co-participators
H
MOHD. KHALID v. STATE OF WEST BENGAL [ARllIT PASAYAT, J.] 53
in the main object of the conspiracy. There may be so many devices A
and techniques adopted to achieve the common goal of the conspiracy
and there may be division of performances in the chain of actions
with one object to achieve the real end of which every collaborator
must be aware and in which each one of them must be interested.
There must be unity of object or purpose but there may be plurality B
of means sometimes even unknown to one another, amongst the
conspirators. In achieving the goal several offences may be committed
by some of the conspirators even unknown to the others. The only
relevant factor is that all means adopted and illegal acts done must be
and purported to be in furtherance of the object of the conspiracy
even though there may be sometimes misfire or overshooting by C
some of the conspirators.'

In Mohammad Usman Mohammad Hussain Maniyar and Ors. v.
State of Maharashtra, (1981) 2 SCC 443, it was held that for an
offence under Section 1208 IPC, the prosecution need not necessarily
prove that the perpetrators expressly agreed to do or cause to be done D
the illegal act, the agreement may be proved by necessary implication."
...
Where trustworthy evidence establishing all links of circumstantial
evidence is available the confession of a co-accused as to conspiracy even
without corroborative evidence can be taken into consideration. [See Baburao
Bajirao Patil v. State of Maharashtra, [ 1971] 3 SCC 432]. It can in some E
cases be inferred from the acts and conduct of parties. [See Shivanarayan
Laxminarayan Joshi and Ors. v. State of Maharashtra and Ors., AIR (I 980)
SC 439.

That brings us to another angle i.e. acceptability of the confession.
F
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. It must
be the outcome of his own free will inspired by the sound of his own
conscience to speak nothing but truth.
G
Words and Phrases, permanent edition, Vol. 44, p. 622 defines
'voluntary' as:

'Voluntary' means a statement made of the free will and accord of
accuse, without coercion, whether from fear of any threat of harm,
promise, or inducement or any hope of reward-State v. Mullin. H
54 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A (85NW 2nd 598, 600, 249 down IO)"

Words and Phrases by John B. Saunders 3rd edition, vol. 4 4, p. 40 I,
'voluntary' is defined as:

" ......... the classic statement of the principle is that of Lord Sumner in
B Ibrahim v. Regem. (1914) AC 599 (at p. 609) where he said, "it has
long been established as a positive rule of English criminal law that
no statement by an accused is admissible in evidence against him
unless it is shown by the prosecution to be a voluntary statement, in
the sense that it has not been obtained from him either by fear of
prejudice or hope of advantage exercise or held out by a person in
c authority. The principle is as old as Lord Hale". However, in five of
the eleven te:,tbooks cited to us ...... support is to be found for a
narrow and rather technical meaning of the word "voluntary".
According to this view, "voluntary". According to this view,
'voluntary" means merely that the statement has not been made in
D consequence of (i) some promise of advantage or some threat (ii) of
a telnporal character (iii) held out or made by a person in authority,
and (iv) relating to the charge in the sense that it implies that the ...
accused's position in the contemplated proceedings will or may be
better or worse according to whether or not the statement is made. R.
v. Power, (1966) 2 All ER 433 (at pp. 454, 455) per Cantley, V."
E
A confessional statement is mot admissible unless it is made to the
Magistrate under Section 25 of the Evidence Act. The requirement of Section
30 of the Evidence Act is that before it is made to operate against the co-
accused the confession should be strictly established. In other words, what
must be before the Court should be a confession proper and not a mere
F circumstance or an information which could be an incriminating one. Secondly,
it being the confession of the maker, it is not to be treated as evidence within
the meaning of Section 3 of the Evidence Act against the non-maker co-
accused and lastly, its use depends on finding other evidence so as to connect
the co-accused with crime and that too as a corroborative piece. It is only
G when the other evidence tendered ag,ainst the co-accused points to his guilt
then the confession duly proved could be used against such co-accused if it
appears to effect him as lending support or assurance to such other evidence.
To attract the provisions of Section 30, it should for all purposes be a
confession, that is a statement containing an admission of guilt and not merely
a statement raising the inference with regard to such a guilt. The evidence of
H co-accused cannot be considered under Section 30 of the Evidence Act,
MOHD. KHALID v. STATE OF WEST BENGAL [ARIJIT PASAYAT, J.] 55
where he was not tried jointly with the accused and where he did not make A
a stateme1it incriminating himself along with the accused. As noted above,
the confession of co-accused does not come within the definition of evidence
contained in Section 3 of the Evidence Act. It is not required to be given on
oath, nor in the presence of the accused, and it cannot be tested by cross-
examination. It is only when a persons admits guilty to the fullest extent, and B
exposes himself to the pains and penalties provided for his guilt, there is a
guarantee for his truth. Legislature provides that his statement may be
considered against his fellow accused charged with the same crime. The test
is to see whether it is sufficient by itself to justify the conviction of the
person making it of the offence for which he is being jointly tried with the
other person or persons against whom it is tendered. The proper way to C
approach a case of this kind is, first to marshal the evidence against the
accused excluding the confession altogether from consideration and see
whether if it is believed, a conviction could safely be based on it. If it is
capable of belief independently of the confession, then of course it is not
necessary to call the confession in aid. But cases may arise where the Judge
is not prepared to act on the other evidence as it stands even though, if D
believed, it would be sufficient to sustain a conviction. In such an event the
Judge may call in aid the confession and use it to lend assurance to the other
evidence. This position has been clearly explained by this Court Kashmira
Singh v. The State of Madhya Pradesh, AIR (1952) SC 159. The exact Scope
of Section 30 was discussed by the Privy Council in the case of Bhubani v. E
The King, AIR (1949) PC 257. The relevant extract from the said decision
which has become locus classicus reads as follows:

"Sec. 30 applies to confessions, and not to statements which do not
admit the guilt of the confessing party ........ But a confession of a co-
accused is obviously evidence of a very weak type .... .lt is a much F
weaker type of evidence than the evidence of an approver which is
not subject to any of those infirmities. Sec. 30, however, provides
that the Court may take the confession into consideration and thereby,
no doubt, make it evidence on which the Court may act but the
J section does not say that the confession is to amount to proof. riearly G
there must be other evidence. The confession is only one element in
the consideration of all the facts proved in the case; it can be put into
the scale and weighed with the other evidence. The confession of the
co-accused and be used only in support of other evidence and cannot
be made the foundation of a conviction".
H
56 SUPREME COURT REPORTS [2002] SUPP. 2 S.CR.

A Kashmira Singh 's principles were noted with approval by a Constitution
Bench of these Cou11 Hori Charan Kurmi and Jodia Hai am v. State of Bihar,
[1964] 6 SCR 623. It was noted that the basis on which Section 30 operates
. is that if a person makes a confession implicating himself that may suggest
that the maker of the confession is speaking the truth. Normally, if a statement
made by an accused person is found to be voluntary and it amounts to a
B confession: in the sense that it implicates the maker, it is to likely that the
maker would implicate himself untruly. So Section 30 provides that such a
confession may be taken into consideration even against the co-accused who
is being tried along with the maker of the confession. It is significant however
that like other evidence which is produced before the Court it is not obligatory
C on the Court to take the confession into account. When evidence as defined
by the Evidence Act is produced before the Court it is the duty of the Court
to consider. that evidence. What weight should be attached to such evidence
is a matter in the discretion of the Court. But the Court cannot say in respect
of such evidence that it will just not take that evidence into account. Such an
approach can however be adopted by the Court in dealing with a confession
D because Section 30 merely enables the Court to take the confession into
account. Where, however, the Court takes it into confidence, it cannot be
faulted. The principle is that the Court cannot start with confession of a co-
accused person; it must begin with other evidence adduced by the prosecution
and after ii has formed its opinion with regard to the quality and effect of the
E said evidences, then it is permissible to turn to the confession in order to
receive assurance to the conclusion of gui It which the judicial mind is about
the reach on some other evidence. That is the true effect of the provision
contained in Section 30. We may note that great stress was laid down on the
so-called retraction of the makers of the confession. Apart from the fact that
the same was made after about two years of the confession. PWs 81 and 82
F have stated in Court as to the proc1~dures followed by them, while recording
the confession. The evidence clearly e.stablishes that the confessions were
true and voluntary. That was not the result of any tutoring, compulsion or
pressurization. As was observed by this Court in Shankaria v. State of'
Rajas than, ( 1978) Crl. LJ. 1251, the Court is to apply double test for deciding
G the acceptability of a confession i.e. (i) whether the confession was perfectly
voluntary and (ii) if so, whether it is true and trustworthy. Satisfaction of the
first test is a sine qua non for its admissibility in evidence. If the confession
appears to the Court to have been caused by any inducement, threat or promise,
such as mentioned in Section 24 of the Evidence Act, it must be excluded
and rejected brevi manu. If the first test is satisfied, the Court must before
H acting upon the confession reach the finding that what is stated therein is true
MOHD. KHALID v. STATE OF WEST BENGAL [ARIJIT PASAYAT, J] 57
and reliable. The Judicial Magistrate PWs. 81 and 82 have followed the A
requisite procedure. It is relevant to further note that complaint was lodged
before the Magistrate before his recording of the confessional statement of
accused Md. Guizar. The complaint was just filed in Court and it was not
moved. The name of the lawyer filing the complaint could not be ascertained
either. This fact has been noted by the Designated Court.
B
In view of what we have said about the confessional statement it is not
necessary to go into the question as to whether the statement recorded under
Section 164 of the Code as to be given ~reater credence even ifthe confessional
statement has not been recorded under Section 15 of the TADA Act. However,
we find substance in the stand of learned counsel for accused-appellants that C
Section I 0 of the Evidence Act which is an exception to the general rule
while permitting the statement made by one conspirator to be admissible as
against another conspirator restricts it to the statement made during the period
when the agency subsisted. In State of Gujarat v. Mohd. Atik and Ors.,
[1998] 4 sec 351, it was held that principle is no longer res integra that any
statement made by an accused after his arrest, whether as a confession or D
otherwise, cannot fall within the ambit of Section 10 of the Evidence Act.
Once the common intention ceased to exist any statement made by a former
conspirator thereafter cannot be regarded as one made in reference to their
common intention. In other words, the post arrest statement made to a police
officer, whether it is a confession or otherwise touching his involvement in E
the conspiracy, would not fall within the ambit of Section 10 of the Evidence
Act.

The first condition which is almost the opening lock of that provision
is the existence of "reasonable ground to believe" that the conspirators have
conspired together. This condition will be satisfied even when there is some F
prima facie evidence to show that there was such a criminal conspiracy. If the
aforesaid preliminary condition is fulfilled then anything said by one of the
conspirators becomes substantive evidence against the other, provided that
should have been a statement "in reference to their common intention". Under
1 the corresponding provision in the English law the expression used is "in G
furtherance of the common object." No doubt, the words "in reference to
their common intention" we wider than the words used in English law (vide
Sardar Sardul Singh Caveeshar v. The State of Maharashtra, AIR (1965) SC
682.

But the contention that any statement of a conspirator, whatever be the H
58 SUPREME COURT REPORTS (2002) SUPP. 2 S.C.R.

A extent of time, would gain admissibility under Section 10 if it was made "in
reference'' to the common intention, is too broad a proposition for acceptance.
We cannot overlook that the basi1: principle which underlies in Section l 0 of
the Evidence Act is the theory of agency. Every conspirator is an agent of
his associate in carrying out the object of the conspiracy. Section l 0, which ••
is an exception to the general rule, while permitting the statement made by
B one conspirator to be admissible as against another conspirator restricts it to
the statement made during the p<:riod when the agency subsisted. Once it is
shown that a person became snapped out of the conspiracy, any statement
made subsequent thereto cannot be 4sed as against the other conspirators
under Section I0.
c Way back in 1940, the Privy Council had considered this aspect and
Lord Wright, speaking for Viscount Maugham and Sir George Rankin in
Mirza Akbar v. King-Emperor, AIR (1940) P.C. 176 had stated the legal
position thus:

"The words 'common intt:ntion' signify a common intention existing
-
D
at the time when the thing was said, done or written by one of them.
Things said, done or written while the conspiracy was on foot are
relevant as evidence of the common intention, once reasonable ground
has been shown to believe in its existence. But it would be a very
different matter to hold that any narrative or statement or confession
E made to a third party after the common intention or conspiracy was
no longer operating and had ceased to exist is admissible against the
other party."

Intention is the volition of mind immediately preceding the act while
F the object is the end to which effect is directed the thing aimed at and that
which one ~ndeavours to attain and carry on. Intention implies the resolution
of the mind while the object means the purpose for which the resolution was
made. '

Jn Bhagwan Swarup 's case (supra), it was observed that the expression
G 'in reference to their common intention' is widP.r than the words 'in furtherance
of the common intention' and this is very comprehensive and it appears to
have been designedly used to give it a wider scope than the words 'in
furtherance of in the English Law. But, once the common intention ceased to
exist any statement made by a former conspirator thereafter cannot be regarded
as one made 'in reference to the common intention. Therefore, a post arrest
H statement made to the police Jfficer was held to be beyond the ambit of
MOHD. KHALID v. STATE OF WEST BENGAL [ARI.HT PASAYAT. J.) 59
Section l 0 of the Evidence Act. A
In Sardul Singh Caveeshar v. The State of Bombay, AIR (1957) SC
747, it was held:

'The principle underlying the reception of evidence under Section
l 0 of the Evidence Act of the statements, acts and writings of one co- B
conspirator as against the other is on the theory of agency. The rule
in Section l 0 of the Evidence Act corifines that principle of agency
in criminal matters to the acts of the co-conspirator within the period
during which it can be said that the acts were 'in reference to their
common intention' that is to say 'things said, done or written while
the conspiracy was on foot' and 'in carrying out the conspiracy'. It C
would seem to follow that where the charge specified the period of
conspiracy evidence of acts of co-conspirators outside the period is
not receivable in evidence."

In a given case, however, if the object of conspiracy has not been D
achieved and there is still agreement to do the illegal act, the offence of a
criminal conspiracy continues and Section l 0 of the Evidence Act applies. In
other words, it cannot be said to be a rule of universal application. The
evidence in each case has to be tested and the conclusions arrived at. In the
present case, the prosecution has not led any evidence to show that any
particular accused continued to be a member of the conspiracy after his E
arrest. Similar view was expressed by this Court in State v. Na/ini, (1999] 5
sec 253.
It was urged with some amount of vehemence by the learned counsel
for the appellants that no terrorise act was involved.
F
While dealing with an accused tried under the TADA, certain special
features of the said Statute need to be focused. It is also necessary to find out
the legislative intent for enacting it. If defines "terrorist acts" in Section 2(h)
with reference to Section 3( I) and in that context defines a terrorist. It is not
possible to d•:fine the expression 'terrorism' in precise terms. It is derived G
from the word 'terror'. As the Statement of Objects and Reasons leading to
enactment of the TADA is concerned, reference to The Terrorist and Disruptive
Activities (Prevention) Act, 1985 (hereinafter referred to as the 'Old Act') is
necessary. It appears that the intended object of the said Act was to deal with
persons responsible for escalation of terrorist activities in many parts of the
country. lt was expected that it would be possible to control the menace H
60 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A within a period of two years, and life of the Act was restricted to the period
of two years from the date of its commencement. But noticing the continLance
of menance, that too on a larger s1;ale TADA has been enacted. Menance of
terrorism is not restricted to our country, and it has become a matter of
international concern and the attacks on the World Trade Centre and other
laces on 11th September, 2001 amply show it. Attack on the P'lrliament on
B 13th December, 200 I shows how grim the situation is. TADA is applied as
an extreme measure when police fails to tackle with the situation under the
ordinary penal law. Whether the criminal act was committed with an intention
to strike terror in the people or section of people wou Id depend upon the facts
of each case. As was noted in Jayawant Dalla/ray Swyarao etc. etc. v. State
C of Maharashtra etc. etc., (200 I) AIR SCW 4 717, for finding out the intention
of the accused, there would hardly be a few cases where there would be
direct evidence. It has to be main:ly inferred from the circumstances of each
case.

In Hintendra Vishnu Thakur and Ors. v. State of Maharashtra and
D Ors., [1994] 4 sec 602, this Court observed that:

"that legal position remains unaltered that the crucial postulate for
judging whether the offence is a terrorist act falling under TADA or
not is whether it was done with the intent to overawe the Government
· as by law established or to strike terror in the people etc. A 'terrorist'
E activity does not merely arise by causing disturbance of law and
order or of public order. The fall out of the intended activity is to be
one that it travels beyond the capacity of the ordinary law enforcement
agencies to tackle it under the ordinary penal law. It is in essence a
deliberate and systematic use of conercive intimidation".
F
As was noted in the said case, it' is a common feature that hardened
criminalstoday take advantage of the situation and by wearing the cloak of
terrorism, aim to achieve acceptability and respectability in the society; because
in different parts of the country affected by militancy, a terrorist is projected
as a hero by a group and often even by many misguided youth. As noted at
G 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 agree-upon definition. Terminology consensus would,
H however, be necessary for a single comprehensive convention on terrorism,
MOHD. KHALID v. STATE OF WEST BENGAL [ARIJIT PASAYAT. J.] 6J
which some countries favour in place of the present 12 piecemeal conventions A
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 on non-military
targets, number of µttacks on military installations and soldiers' residences B
·could not be included in the statistics. In order to cut through the Gordian
definitional knot, terrorist expert A. Schmid suggested in 1992 in a report for
the then UN Crime Branch that it might be a good idea to take the existing
consensus on what constitutes a "war crime" as a point of departure. If the
core of war crime-deliberate attacks on civilians, hostage taking and the
killing of prisoners-is extended to peacetime, we could simply define acts C
.... of terrorism as "peacetime equivalents of war crimes."
I

League of Nations Convention (1937) :

"All criminal acts directed against a State along with intended or
calculated to create a statute of terror in the minds of particular persons D
or a group of persons or the general public".

(GA Res. 51/210 Measures to eliminate international terrorism)
•• "I. Strongly condemns all acts, methods and practices of terrorism as
criminal and unjustifiable, wherever and by whomsoever committed;
E
2. Reiterates that criminal acts intended or calculated to provoke a
state of terror in the general public, a. group of persons or particular
persons for political purposes are in any circumstances unjustifiable,
whatever the considerations of a political, philosophical, ideological,
racial, ethnic, religious or other nature that may be invoked to justify
them."
F

3. Short legal definition proposed by A.P. Schmid to United Nations
·=a Crime Branch (1992):

Act of Terrorism = Peacetime Equivalent or War Crime
G
4. Academic Consensus Definition:

"Terrorism is an anxiety-inspiring of repeated violent action, employed
by (semi-) clandestine individual, group or state actors, for
idiosyncratic, criminal or political reason, whereby -in contrast to
assassination -the direct targets of violence are not the main .targets. H
62. SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R._

A . The immediate human victims oL violence ,are generally chosen
·r~nd~mly (targets of opportunity). or· selectively (representative or
symbolic. targets) from a. target population, and serve as message ·
,gene-rators. Threat.-and violence-based communication processes
. between terrorist (organization), (imperiled) victims, and main targets
are used to manipulate the main target (audience (s)), turning it into
a target of terror, a target .of demands, or. a target of attention,
.4epe1_1d_ing on. whether intimidation, coercion, or propaganda is ·
.pfi~arily sought". (Schmid, 1988).

Definitions: '.
'. ' ..-
c ·; Terrorism.by nature is 'difficult to. d~rine. Acts of terrorism conjure
emotional responses in the· victims (those hu'ri by the violence ai!d those
affected by the fear) as well as in the practitioners. Even the U.S. government
cannot agree on one single definition. The.Old adage'~ "Ofie ma~'s terrorist is
another man's freedmn fighter'', is still alive and well. Listed below are several
D definitions of terrorism used by the Federal Bureau of Investigation .
.'
Terrorism is the us~ Or. threatened ·use of force d_eS.igned to bring
f about political change.-Brain Jenkins.·
Terrorism constitutes the illegitimate use of force to achieve a political
...objective when innocent people are targeted.-Walter Laqueur.
E,
Terrorism is the premeditated, deliberate, systematic murder, mayhem,
and threatening .of the innocent. to create fear and intimidation in
order io ga_in a p~liiical or tactical advantage, usually to influence an
audience. -James M. Poland.
' .
F Terrorism is the unlawful use or threat ·or violence against persons or
property to further political or social objectives. It is usually intended
to intimidate or coerce a governmental, individuals or groups; or to
modify their behaviour or polities. -Vice-President's Task Force, 1986.

Terrorism is the unlawful use of force or violence against persons or
G . a
property to intimidate or coerce government, the civilian population,
or any segment thereof, in furtherance of political ·or s~cial objectives.
-Definition. · ..

Terrorism is .one of the manifestations of increased lawlessness and cult
of violence. Violence and crime constitute a threat to an established order
H, and are ,(revolt against a civilised society. 'Terrorism' has not been defined
MOHD. KllALIDv. STATE OF WEST BENGAL [ARllITPASAYAT, J.) 63 "
under TADA nor is it possible to giv~
a precise definition of ::~r-A:
lay down what constitutes 'terrorism'. It may be possible to describe it as use ...
of violence when its most important result is not merely the 'physical and
mental damage of the victim but the prolonged psychological effect it produces· ·
or has the potential or producing on the society as a whole. There may be
death, injury, or destruction of property or even deprivation' of individual
liberty in the process but the extent and reach of the intended terrorist activity B : ;
travels beyond the effect of an ordinary crime capable of being punished
under the ordinary penal law of the land and its main objective is to overawe
the Government or. disturb harmony of the society or 'terrorise' people and
th; socieiY and not
only those directly ;,,saulted; with a view to disturb even
te~p'O,"peac~ anci t~anquillity'of the socieiy .anci 'create a' s~nse of fear and c ...
insecllri.ty'. "· :.·' _,' · -' : ' · - · · · ;. '· ·
.. ' · ·· ··

In the background of what we have said abci~t te;,.orist's a~ts {supra),
plea of accused-appellants is dearly. unacceptable. As was observed by this
Court when earlier the matter was before it in the prosecution's appeal
questioning the quashing of order of sanction and application of TADA, the D
preparation of bombs and possession of bombs would tantimount to'terrorizing
the people. Credible eviderice proves it to be a terrorist act: The explosion of
a
large number ofHve bombs is clear indication of conspiracy.' It was further
held that it cannot be contended that if the bombs are for self defence there
,•
was no . mens 'rea:. ••Preparation and •storage of bombs ~re per se illeg~I ·acts. E'
' ,, < _....,_. ' ' I
Further question is when the right of private defence ai-ises. It n;ver •
commences.before a reasonable apprehension arises in the i'nirid of the accused. : .
Here there was no evidence that there ,.;a~ ·any indication about attack on the
..
Muslims and, therefore, the question of any_ reas'onable apprehension does
not arise: The cover of self-protection when pierced unravels a ~inister design F .
to unleash tei-'ror. . .. . . . ,. . .. .
... '

As was 'observed by this Court' in Yogendra Morafji v. State of Gujarat,
(1980] 2 sec 218, the right of self defence commences not befor~ a reasonable
• apprehension arises in the mind of the accused. . . . . . ..
,._,.
As was ·observed oy this Court in Puran Singh and O~s. v. .The State
of P~nj~b; AIR (I 975) SC 1674 (Par~ 20) right is no't available if there is
sufficie~t time for recourse to a· public authoritY. There ~as no scope for .
interfering the so-called 'view of the accused persons' that police may not help'
them. That occasion .had .not arisen. . . . .. . . .. . H : ·
64 SUPREME COURT RE)>ORTS (2002] SUPP. 2 S.C.R.

A qn the question of applicability of Sections 3 and 4 of the Explosive
Act a119 the true intent, we only need to refer to Corpus Juris Secundum·(A
Contemporary Statement of American Law), Volume 22. It is held at page
..
I I 6 (Criminal Law) as under:
•
"Intention
<\
B
(a) In general

(b) Specific or general intent crimes '\
. '
. '\
(a) In general.-As actual intent to commit the particular crime tow~rd
which the act moves is a necessary element of an attempt to commit
c 'a crime. Although the intent must be one in fact, not merely in l~w,
and may not be inferred from the overt act alone, it may be inferred
from the circumstances."

r1 As regards motive in American Jurisprudence, 2nd Edn., Vol. 21,

in Section 133, it is stated as under:
D
I '
"133. Motive-In criminal law motive may be defined as that
w)lich leads or tempts the mind to indulge in a criminal act or as the
nioving power which impels to action for a definite result." .•

Jn' view of our conclusions that charges under· Sections 3(2)(1) and 3(3)
E of TADA and Section I 208 !PC are clearly established, we do not think it
necessary to go through a hair splitting approach vis-a-vis Section 3 and 4
of the Explosive Act. Even if it is accepted that Section 3 of the Act was not
applicable and what was applicable in Section 4 of the Explosive Act yet .it
can only be the question of sentence which can be imposed. As the charg~
F is for higher offence, conviction of lesser offence is permissible. As we are
upholding' the award of life sentence for the offences under Sections 1208 ,,_
!PC and Section 3(2)(1) and Section 3(3) of the TADA Act, any reduction
in sentence from I 0 years to 7 years (in the background of Sections 3 and
...
~.t\

4 of the Explosive Act) is really of no consequence. The appeals filed by the
accused persons deserves to be dismissed, and we so direct.
G
Coming to the appeal filed by the prosecution against the acquittal in
respect or' charges under Section 302/34 and Section 436/34 !PC, learned
counsel fo~ the prosecution fairly stated, and in our opinion rightly, that• the
acquittal' is justified. Though, it was submitted by Mr. K.T.S. Tulsi that
H higher seniences would have been more appropriate in respect of established
MOHD. KHALID v. STATE OF WEST BENGAL [ARIJIT PASAYAT, J,] 65
offences, we do not think it necessary to go into that question in absence of A
an appeal by the prosecution in that regard. The appeal filed by the State is
accordingly dismissed. In the result, all the seven appeals stand dismissed.

Before parting with the case, we may point out that the Designated
Court deferred the cross examination of the witnesses for a long time. That
is a feature which is being n.oticed in many cases. Unnecessary adjournments B
give a scope for a grievance that accused persons get a time to get over the
witnesses. Whatever be the truth in this allegation, the fact remains that such
adjournments lack the spirit of Section 309 of the Code. When a witness is
available and_ his examination-in-chief is over, unless compelling reasons are
there, the Trial Court, should not adjourn the matter on mere asking. These C
aspects were highlighted by this Court in State of U.P. v. Shambhu Nath
Singh and Ors., [200 l] 4 SCC 667 and N. G. Dastance. v. Shrikant S. Shivde
and Anr., [2001] 6 SCC 135. In Shambhu Nath Singh's case (supra) this
Court deprecated the practice of courts adjourning cases without examination
of witnesses when they are in attendance with following observations:
D
"9. We make it abundantly clear that if a witness is present in court
he must be examined on that day. The court must know that most of
the witnesses could attend the court only at heavy cost to them, after
keeping aside their own avocation. Certainly they incur suffering and
loss of income. The meagre amount of bhatta (allowance) which a
witness may be paid by the court is generally a poor solace for the E
financial loss incurred by him. It is a sad plight in the trial courts that
witnesses who are called through summons or other processes stand
at the door stamp from morning till evening only to be told at the end
of the day that the case is adjourned to another day. This primitive
practice must be reformed by the presiding officers of the trial courts p
and it can be refonned by everyone provided the presiding officer
concerned has a commitment towards duty. No sadistic pleasure, in
seeing how other persons summoned by him as witnesses are stranded
on account of the dimension of his judicial powers, can be persuading
factor for granting such adjournments lavishly, that too in a casual
manner." G
In N. G. Dasane case (supra) the position was reiterated. The following
observations in the said case amply demonstrate the anxiety of this Court in
the matter :

"An advocate abusing the process of court is guilty of misconduct. H
66 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A , " When witnesses are present in the court for examination the advocate
concerned has a duty to see that their examination is conducted. We
remind that witnesses who come to the court, on being called by the
court, do so as they have no other option, and such witnesses are also
., responsible citizens who have other work to attend to for eking out
a livelihood. They cannot be treated as less respectable to be told to
B 1 come again and again just to suit the convenience of the advocate
'·, concerned. If the advocate has any unavoidable inconvenience it is
.• his duty to make other arrangements for examining the witnesses
)• who are present in the court. Seeking adjournments for postponing
.. the examination of the witnesses who are present in court even without
c making other arrangements for examining such witnesses is a
·: dereliction of an advocate's duty to the court as that would cause
' much harassment and hardship to the witnesses. Such dereliction if
.t repeated would amount to misconduct of the advocate concerned.
~ Legal profession must be purified from such abuses of the court
1
· • procedures. Tactics of filibuster, if adopted by an advocate, is also a
D professional misconduct."

! It would be desirable for the Court to keep these aspects in view.

Appeals are dismissed, as noted above.

E s.K:s. Appeals dismissed.
''
··;.,

I,