# MOHD. IQBAL M. SHAIKH AND ORS v. ST ATE OF MAHARASHTRA

- **Citation:** [1998] 2 S.C.R. 734
- **Court:** Supreme Court of India
- **Decided:** 1998-04-15
- **Case number:** Criminal Appeal Nos. G 97-100of1997
- **Bench:** G.N. Ray, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-iqbal-m-shaikh-and-ors-v-st-ate-of-maharashtra-16420
- **Pages:** 29

## Headnote

Criminal Law :
Terrorist and Disruptive Activities (Prevention) Act, 1987: Section
c 2(h).
'Terrorist act '-Meaning of-As a sequel to the demolition of Bahri
Masjid, the house of Hindus was set afire by members of the rival community
with the result that several persons were burnt alive-Held: 'Terrorist act'
produces a prolonged psychological effect on society, disturbs even the
D tempo and tranquillity of society and creates a sense of fear and insecurity
in the minds of a section of the society or society at large-Therefore, having
regard to the sensitive and tense atmosphere then prevailing in the society
and the real impact of the gruesome and atrocious activities on the society,
the aforesaid act amounted to a 'terrorist act'.
E
F
Section 20-A (1) (introduced w.e.f 22-5-1993)-District Superintendent
of Police (DSP) competent authority to accord approval for application of
TADA-Occurrence took place on 7-1-1993-Commissioner of Police
accorded approval for application of TADA-Validity of-Held: Occurrence
took place prior to coming into force of S. 20-A (1)-Hence, question of
obtaining prior approval of DSP for application of TADA does not ariseEven otherwise, the Commissioner of Police, on the basis of the report of
Senior Police Inspector of the concerned police station, had accorded
approval to apply TADA-Jn the circumstances of the case, there is no
infirmity with the investigation being proceeded under TADA, charges being
G framed therein and trial being held by the Designated Court.
Section 20-A (1)-Prosecution-Sanction for-Cognizance by courtCondition precedent-Application of mind before according sanction-Valid
sanction-Held: If the sanction order shows that sanction was granted only
after consideration of relevant material then validity of such sanction order
H cannot be questioned on ground of non-application ·of mind-But if the
734
-
+.
---.{,
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,.(
"'
.+
MOHD. IQBAL M. SHAIKH v. STA TE OF MAHARASHTRA
735
sanction order does not clearly indicate application of mind, then prosecution A
is entitled to adduce evidence allude of the sanctioning authority, based on
which court can be satisfied about application of mind-The fact that sanction
was accorded on the very same day of receipt of relevant papers does not
indicate non-application of mind or invalidate sanction-Administrative Law.
Appreciation of evidence-Held: Law does not make a distinction in B
the matter of appreciation of evidence in a case under TADA or under normal
criminal law.
Criminal Trial :
Appreciation of evidence-Witness-Questioning of-By police-Delay c
in-Held: Delay in questioning the witness by itself does not render his
evidence unreliable-But while testing the credibility and assessing the
intrinsic worth of such evidence court should scrutinise it strictly-Nonexamination of a witness at the earliest point of time, though he was available
right from the time of occurrence, indicates callousness on the conduct of the D
investigating agency.
Appreciation of evidence-Separation of-Chaff from grain-Duty of
court-Held: If the witness is wholly unreliable the question of corroboration
does not arise-Hence, the question of separating the chaff from grain also
does not arise-Unless the prosecution evidence conclusively establishes the E
offence conviction cannot be recorded on mere conjectures and hypothesis.
Evidence Act, 1872: Section 9.
Test Identification Parade-Necessity of-Accused was known to the
witness by face only and not by name-Accused was also shown to the F
witness during investigation-Held: Under such circumstances, evidence of
TI Parade can corroborate the evidence of identification in court-As the
accused was shown to the witness the so-called identification parade loses
its value and identification in court also becomes inconsequential.
The appellant-accused were convicted by the Designated Court for the G
offences under Sections 120-B and 149 of the Penal Code, 1860 read with
Section 3(2)(i) of the Terrorist and Disruptive Activit

## Text

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A
B
MOHD. IQBAL M. SHAIKH AND ORS.
v.
ST ATE OF MAHARASHTRA
APRIL 15, 1998
[G.N. RAY AND G.B. PATTANAIK, JJ.]
Criminal Law :
Terrorist and Disruptive Activities (Prevention) Act, 1987: Section
c 2(h).
'Terrorist act '-Meaning of-As a sequel to the demolition of Bahri
Masjid, the house of Hindus was set afire by members of the rival community
with the result that several persons were burnt alive-Held: 'Terrorist act'
produces a prolonged psychological effect on society, disturbs even the
D tempo and tranquillity of society and creates a sense of fear and insecurity
in the minds of a section of the society or society at large-Therefore, having
regard to the sensitive and tense atmosphere then prevailing in the society
and the real impact of the gruesome and atrocious activities on the society,
the aforesaid act amounted to a 'terrorist act'.
E
F
Section 20-A (1) (introduced w.e.f 22-5-1993)-District Superintendent
of Police (DSP) competent authority to accord approval for application of
TADA-Occurrence took place on 7-1-1993-Commissioner of Police
accorded approval for application of TADA-Validity of-Held: Occurrence
took place prior to coming into force of S. 20-A (1)-Hence, question of
obtaining prior approval of DSP for application of TADA does not ariseEven otherwise, the Commissioner of Police, on the basis of the report of
Senior Police Inspector of the concerned police station, had accorded
approval to apply TADA-Jn the circumstances of the case, there is no
infirmity with the investigation being proceeded under TADA, charges being
G framed therein and trial being held by the Designated Court.
Section 20-A (1)-Prosecution-Sanction for-Cognizance by courtCondition precedent-Application of mind before according sanction-Valid
sanction-Held: If the sanction order shows that sanction was granted only
after consideration of relevant material then validity of such sanction order
H cannot be questioned on ground of non-application ·of mind-But if the
734
-
+.
---.{,
-<
,.(
"'
.+
MOHD. IQBAL M. SHAIKH v. STA TE OF MAHARASHTRA
735
sanction order does not clearly indicate application of mind, then prosecution A
is entitled to adduce evidence allude of the sanctioning authority, based on
which court can be satisfied about application of mind-The fact that sanction
was accorded on the very same day of receipt of relevant papers does not
indicate non-application of mind or invalidate sanction-Administrative Law.
Appreciation of evidence-Held: Law does not make a distinction in B
the matter of appreciation of evidence in a case under TADA or under normal
criminal law.
Criminal Trial :
Appreciation of evidence-Witness-Questioning of-By police-Delay c
in-Held: Delay in questioning the witness by itself does not render his
evidence unreliable-But while testing the credibility and assessing the
intrinsic worth of such evidence court should scrutinise it strictly-Nonexamination of a witness at the earliest point of time, though he was available
right from the time of occurrence, indicates callousness on the conduct of the D
investigating agency.
Appreciation of evidence-Separation of-Chaff from grain-Duty of
court-Held: If the witness is wholly unreliable the question of corroboration
does not arise-Hence, the question of separating the chaff from grain also
does not arise-Unless the prosecution evidence conclusively establishes the E
offence conviction cannot be recorded on mere conjectures and hypothesis.
Evidence Act, 1872: Section 9.
Test Identification Parade-Necessity of-Accused was known to the
witness by face only and not by name-Accused was also shown to the F
witness during investigation-Held: Under such circumstances, evidence of
TI Parade can corroborate the evidence of identification in court-As the
accused was shown to the witness the so-called identification parade loses
its value and identification in court also becomes inconsequential.
The appellant-accused were convicted by the Designated Court for the G
offences under Sections 120-B and 149 of the Penal Code, 1860 read with
Section 3(2)(i) of the Terrorist and Disruptive Activities (Prevention) Act,
1987, Section 302 IPC and read with Section 149 IPC, Section 436 IPC read
with Section 149 IPC, Sections 147 IPC and 148 IPC and sentenced to
undergo imprisonment for life. Hence this appeal.
H
736
SUPREME COURT REPORTS
[1998] 2 S.C.R.
A
According to the prosecution on 7-1-1993, as a sequel to the demolition
of Bahri Masjid, the accused persons, who were Muslims, terrorised the
r--
minority Hindus of the locality in consequence of which the Hindus remained
inside'their respective rooms in the chawl. One of the houses in which some
Hindus had taken shelter was set afire by the accused persons with the
B
result that several of them were burnt alive. The accused persons were
arrested and approval of the Commissioner of Police was taken under Section
j.. --
20-A(l) of TADA for investigation of the case. The Police Commissioner on
27-1-1993 gave the sanction for prosecution of the accused persons under
Section 20-A(l) of TADA.
c
On behalf of the accused persons it was contended that the violence
committed in the house of the Hindus was not a 'terrorist act' within the
meaning of Section 3(h) of TADA and, therefore, the provisions of TADA
would be inappl.icable; that the order passed by the Commissioner as well as
his evidence in court show that the sanction for prosecution was given
without application of mind and, therefore, it was invalid; that the competent
D authority for granting approval for investigation under Section 20-A(l) of
TADA was the District Superintendent of Police and not the Commissioner
of Police; that there was an inordinate delay in questioning the witnesses by
the police and, therefore, their evidence was untrustworthy and unreliable;
that the accused persons were known to the witnesses by name and not by
E face; that the accuse persons were shown to the witnesses by the police
during investigation; that there was no Test Identification Parade; and,
therefore, the identification of the accused persons by the witnesses in court
was of no consequence.
On behalf of the respo~dent-State it was contended that the testimony
F of the witnesses could not b1~ held untrustworthy and unreliable merely on
....
the ground of delay in questioning them by the investigating agency; and that
although there were several omissions in the evidence of witnesses yet the
court should separate the chaff from the grain and decide if conviction could
be sustained based on the available grains.
G
Allowing the appeal, this Court
HELD : 1.1. It is not possible to give a precise definition of terrorism
-"".
or to lay down what constitutes terrorism. But 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
H effect it produces or has the potential of producing on the society as a whole.
I
.+
MOl!D. JQl:lAL M. SHAIKH v. STATE OF MAHARASHTRA
737
If the object of the activity is to disturb harmony of the society or to terrorise A
people and the society with a view to disturb the even tempo, tranquillity of
the sociei~, and a sense of fear and insecurity is created in the minds of a
section of the society or society at large then it will, undoubtedly, he hdd to
he a terrorist act. The question, therefore, docs not really hoil down to an
examination as to whether for the acth·itics, under the normal criminal law,
the accused 11ersons can he punished but to examine the real impact of such
gruesome and atrocious activities on the society at large or at least on the
section of the societ)'. (747-B-EJ
1.2. rf the case in hand is examined from the aforesaid stand point, on
B
the facts that shortly after the demolition of Bahri Masjid, a communal riot C
erupted and dul"ing that period in the locality in question which was
predominantly occupied hy Muslims, a chawl occupied hy Hindus who were
in minority was set to lire hy the people belonging to the rival community
and on account of such fire, several people were burnt alive, it is difficult
to accept the contention that the activities do not fall within the ambit of the
Terrorist and Disruptiw Activities (Prevention) Act, 1987. Judging from the D
atrocity of the activities and judging from the sensitive and tense atmosphere
prevailing in the town under which the acts were 11crpetrated resulting
ultimately in the death of several persons, the conclusion becomes irresistihle
that such activities has far reaching consequences and it affects the society
at large and the even tempo had been greatly disturbed and as such the E
provisions of TADA get attracted to such activities. [747-E-GJ
Hitendra Vishnu Thakur v. State of Maharshtra, [1994J 4 SCC 602,
relied on.
2. Section 20-A(l) of TADA was brought on the statute book on 22- F
1-1993 and the said provision was not in existence on the date of the occurrence
on 7-1-1993 and consequently, the question of obtaining the prior aJ1J1roval
of the District Superintendent of Police hefore proceeding with the
investigation into the offence under TADA does not arise. Even othenvise,
the Commissioner of Police by his Order dated 27-1-1993, on the basis of
the repo11 of the Senior Police lns11ector of the concerned police station, G
accorded approval to apply the provisions of TADA. There is, therefore, no
infirmity with the investigation being proceeded under TADA, charges being
framed therein and trial being held by the Designated Court. (748-E-G]
Anirud~hinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC
302, relied on.
H
738
SUPREME COURT REPORTS
[1998] 2 S.C.R.
A
3.1. When a statute requires a sanction of the competent authority as
a pre-condition for taking congnizance hy the Com1 and the relcyant sanction
order is produced which itself indicates the materials considered and then
~ -
after applying mind, the sanctioning authority accorded sanction, the same
would he sufficient to hold that there is a valid section. Besides, when the
B sanction order it~elf is not sufficient to indicate that the sanctioning authority
applied his mind then the prosecution is entitled to adduce evidence alliunde
of the person who accorded sanction and that would be a ~ullicient compliance.
After going through the said evidence the court can come to the conclusion
that relevant materials were considered by the sanctioning authority
whereafter he accorded the sanction in question. [749-C-E]
C
3.2. In the case in hand if the order passed by the Commissioner of
Police sanctioning prosecution of the accused persons under TADA is
examined, it would be a11parent that the sanctioning authority clearly persued
the records of investigation and then on being sati~fied passed the impugned
order of the sanction. The sanctioning authority was examined as a witness
D in the court and his evidence clearly ~1ablishes that it is only after thoroughly
a11plying his mind to the relevant materials and the 11roposals, he accorded
sanction on being satisfied that a 111ima facie case exists against the accused
persons to 11roceed against them under TADA. It cannot, therefore, be said
that there has been no valid sanction as required under Section 20-A(l) of
TADA. There was no infirmity with the sanction accorded in the case and
E as such there was no illegality in taking cognizance and trying the accused
11ersons under TADA. [749-E-G]
4.1. Merely because a witness was examined after a considerable
period from the date of occurrence his evidence need not be discarded on that
ground alone but at the same time while testing the creibility and assessing
p the intrinsic worth of such witnesses the delay in their examination by the
police has to be borne in mind and their evidence would require a stricter
"'
scrutiny before being accepted. [750-D]
4.2. When a witness who happens to be a resident of the locality where
the incident occurred and took active 11a11 in rescuing the injured persons
from the burnt house in the presence of the police and then accom11anied
G them to the hospital and was also available at the hospital when police had
come but for some mysterious reasons police did not choose to ask him
anything about the occurrence, then this conduct on the part of the
+ •
investigation is highly reprehensible and indicates the callousness on the
part of the investigating agency in carrying out the investigation in the case.
H
(751-F-G]
MOHD. IQBAL M. SHAIKH v. STATE OF MAHARASHTRA
739
5. If the witness knew the accused persons either by name or by face, A
question of police showing him the accused becomes irrelevant. If the witness
did not know the accused persons by name but can only identify from their
appearance then a test identification parade was necessary, so that the
substantive evidence in court about the identification, which is held after
fairly a long period, could get corroboration from the identification parade. B
But in this case the prosecution did not take any steps in that regard and
no test identification parade had been held. Then again if the police show the
accused persons in the police lock-up to the identifying witness then the socalled identification loses its value, inasmuch as, it is only because of the
police showing the persons, the witness is being able to identify the alleged
accuse. If the accused has been shown to him in the course of investigation C
then the so-called identification in court is of no consequence and cannot
form the basis of convicting. Therefore, if the witness was called to the police
station while the accused persons were in police lock-up and the witness had
been given the opportunity of seeing those persons in the police lock-up then
the so-called identification made by the witness in court is of no significance.
[753-D-F; 757-G) D
6. It is true that in a country like India where it is difficult to find a
witness who has not made any embellishment or exaggeration and, therefore,
. in such a case court would be justified in separating the chaff from the grain
· and then act upon the grain. But where the evidence consists of only chaff,
as in the present case, question of separating chaff from the grain would not E
arise. Then again when all the eyewitnesses suffer from the same infirmities
the question of one corroborating the other would not arise. If a witness is
partly reliable and partly unreliable then one may look for corroboration to
the reliable part of the ocular version of a witness. But if a witness is wholly
unreliable the question of corroboration does not arise. Even though the F
present case was a ghastly one and on account of communal frenzy several
people belonging to one community were brunt alive by some others but
unless and until the prosecution evidence conclusively establishes those
others, as the perpetrators of the crimes, it is not possible for a court of law
to record conviction on mere conjectnres and hypothesis. [761-D-G[
7. The law does not make any distinction in the matter of appreciation
of evidence in a case under TADA or under normal criminal law. [761-A)
Dilawar Husssain v. State of Gujarat JT, (1990) 4 SC 282, relied on.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
G
97-100of1997.
H
740
SUPREME COURT REPORTS
(1998] 2 S.C.R.
A
From the Judgment and Order dated 16.10.96 of the Designated Court
in Bombay in TADA Special Case Nos. 35/93 @ 1194@ 37/94@ 17 of 1995.
.,....._
P.C. Jain, A. Vachher and K.L. Mehta for Mis. K.L. Mehta, Co., for the
Appellants.
B
M.S. Nargolkar, S.S. Shindhe and D.M. Nargolkar for the Respondents.
The Judgment of the Court was delivered by
)>....
PA TTANAIK, J. These appeals by the 11 accused persons under Section
c 19 of the Terrorist and Disruptive f_ctivities (Prevention) Act, 1987 (hereinafter
referred to as ' the TADA) are directed against the judgment dated 16.10.1996
passed by the Additional Judge, Designated Court for Greater Bombay in
TADA Special Case Nos, 35/93@ 1194, 37/94 and 17/95. These appellants and
six other stood charged under Sections 120(B), 147, 148, 149, 302, 326, 436,
506 1.P.C. and Section 3(2)(i) and (ii) of the TADA for the ghastly occurrence
D dated 7th of January, 1993, wherein six persons died out of bum injuries being
locked in a room and the room having been put to fire by putting petrol on
,,.,
it. The occurrence is a sequel to the demolition of Bahri Masjid at Ayodya.
Shortly after the demolition of the mosque at Ayodya communal riots erupted
all over the country including the city of Mumbai. When communal riots
E erupted in the city in the suburban Jogeswari, an area known as Bandra plots
was predominantly occupied by the Muslims and Hindus were in minority. A
number of Hindu families were staying in chawls known as Gandhi Chaw!,
Rajbhai Chaw!, Nail Chaw! etc. The accommodation usually consists of oneroom-tenements having one entrance door and the tenements are situated
adjacent to each other. The tragic incident occurred in the house of deceased
F Rajaram Bane who was residing in room no. 2 of Gandhi Chaw!. As stated
earlier the Hindu community being in minority, while a group of residents had
.... -
taken shelter in room no. 2 of Gandhi Chaw!, it is alleged that the Muslim
accused persons put petrol on the roof of said room no. 2 of Gandhi Cha\\ I
and set it on fire and in course of occurrence Rajaram Bane, his wife Sulochana,
-,::
G
his neighbours Laxmi Bai Batalu and her daughter Kamla, one crippled girl by
name Meenakshi Narkar and one Vandana Todkar died out of burn injuries.
It may be stated, out of these deceased persons Sulochana and Vandana were
removed to the hospital and they died in the hospital on 10th of January, 1993
.f -
and 16th of January, 1993, respectiveiy, while the rest died at the spot itself.
While the occurrence is undoubtedly a ghastly one and exhibits the brutality
H with which the members of one community attacked the members of another
,r
MOHD. IQBAL M. SHAIKH v. STATE OF MAHARASHTRA [PATTANA!K. J.]
74 J
community at a point of time when people had been depraved of their sense A
of judgment and decency and when people had behaved like animals, the still
·---«:
more painful is the manner in which the prosecuting agency picked up
indiscriminately people from one community as they were residing in the
locality and booked them under different sections of the Penal Code and the
TADA and ultimately the learned Designated Court convicted these 11 B
appellants and acquitted six other co-accused persons. This case exhibits not
only callousness on the part of the investigating agency and the cavalier
~
fashion with which the investigation proceeded but also the extent to which
the trial judge has been swayed away to record conviction without any legally
admissible trustworthy evidence. It would, therefore, be necessary for this
Court to scrutinise the evidence with care and caution and to find out as to C
whether notwithstanding the infirmities in the evidence of the prosecution
witnesses whether conviction of any of the accused appellants can at all be
sustained.
The prosecution case in brief is that on 7th of January, 1993 the accused
persons along with some other Muslims terrorised the minority Hindus of the D
locality in consequence of which the Hindus remained inside their respective
rooms in the Chaw!. The prosecution further alleged that these accused
persons came with deadly weapons in their hands at 9.30 p.m. and warned
the Hindus of the locality not to come out of their respective tenements as
otherwise they would be killed. The Hindus got frightened, and therefore, E
preferred to remain inside their respective houses. At 11.30 p.m. while the
Hindus had taken shelter in their respective tenements they could hear some
noise outside and then through the windows they could see that some of
these accused persons had sprinkled petrol/kerosene on the ota and door of
the room of Rajaram Bane and then set the said room to fire. As the room
had been closed from outside, the persons who were inside the room of F
Rajaram Bane shouted for help but none of the Hindu community could come
out, because of fear for their lives from the unruly Muslim accused persons
who had been armed with lethal weapons. Seeing the flames, however, the
police rushed to the spot and seeing the police the accused persons ran away.
After the police arrived at the spot the other Hindus who were living in their G
respective tenements and some of whom are the prosecution witnesses
mustered courage and came out and tried their best to extinguish fire. By the
time the fire could be extinguished and t!1e people were able to get into the
room, Rajaram Bane, his neighbour Laxmi Bai Batalu and her daughter Kam.la
and another crippled girl by name Meenakshi Narkar were found dead. Rajaram
Bane's wife Sulochana and another lady Vandana Todkar were alive but had H
742
SUPREME COURT REPORfS
(1998) 2 S.C.R
A suffered serious burn injuries, and therefore, they were removed to the hospital.
Sulochana died in the hospital on 10. l.1993 and Vandana died on 16.1.1993
in the hospital. The police then shifted the Hindu population of the local it)
r~
to a nearby Municipal School and accommodated them in a room under strict
police vigilance. Vandana who "·as alive and had been removed to the Cooper
B
Hospital gave her statement on the basis of which CR No. 15 of 1993 in
Jogeshwari Police Station was registered and police took up im estigation of
the said case. After the police officers of Jogeshwari Police Station had
proceeded with the investigation to some extent, the investigation was
~
entrusted to D.C.P (CID) who registered CR No. 14of1993. The approval of
the Police Commissioner was taken under Section 20A. (I), for investigation
c of the case, under TADA and after completion of the investigation sanction
of the Commissioner under Section 20A.(2) was obtained and charge sheet
was submitted against 14 accused persons in TADA Special Case No. 35 of
1993. Subsequent to the filling of the aforesaid charge sheet when accused
No. 15 was arrested a fresh charge sheet was filed against him in TAD<\.
D
Special Case No. 1to1994 and similarly Special Case No. 37of1994 was filed
against accused No. 16 and Special Case No. 17 of 1995 was filed against
accused No. 17. The learned Designated Court framed charges against all the
17 accused persons under Sections 120 (P), 147, 143, 149, 302, 326, 436, 506
I.PC. and under Section 3(2)(i) and (ii) of the TADA. The accused persons
denied their complicity in the crime and took the stand that as the mvestigating
E agency failed to arrest the real culprit and a communal riot had erupted in the
area and some Hindus were burnt and ultimately died, the accused persons
who belonged to the Muslim community were residing in the locality were
arrested and were arrayed as accused persons. The defence also challenged
the validity of the sanction given by the Commissioner of Police.
F
The learned designated court formulated 12 points for being answered
and then after analysis of the oral and documentary evidence on record as
,J... ...
well as the material produced came to hold that prosecution has proved valid
I
permission of the competent authority for applying the provisions of TADA
and valid sanction to prosecute the accused as required under Section 20A
G
of the Act. The learned court also came to hold that the accused persons Nos.
L 2, 4. 7, 8, 9, IO, I I, 14, 15, and 17 struck terror in the minds of Hindus public
to adversely affect the disharmony amongst Hindus and Muslims and for that
purpose used explosives like petrol and kerosene and entered into a conspiracy
+-
to c,ommit the terrorist act. It further came to hold that the said 11 accused
persons were the members of an unlawful assembly whose common object
H was to threat the Hindus to kill and further to strike terror in the minds of
•· +
MOHD. IQBAL M. SHAIKH v. STATE OF MAHARASHTRA [PATTANAIK, J.]
743
Hindu persons with lethal weapons. It also came to hold that the 11 accused A
persons used force with the common object to kill the Hindus and committed
riot and while committing riot used deadly weapons like choppers and knives.
The designated court further held that the aforesaid 11 accused persons
being members of an unlawful assembly and in furtherance of their common
intention to kill the deceased knowingly burnt the house of Rajaram Bane with B
intention and knowledge that thereby they will cause the death of the deceased
and in the process committed murders of Rajaram Bane, Sulochana, Laxmi Bai,
Kamla, Meenakshi and Vandana. The learned designated court also came to
hold that the aforesaid 11 accused persons being members of an .unlawful
assembly committed terror in the minds of the Hindu public possessjng
swords, choppers. petrol and kerosene and burnt the house of Rajaran1 Bane C
after pouring kerosene and petrol on the house and set the said house on
fire. With these conclusions the aforesaid 11 accused persons having been
convicted and sentenced to difierent terms as hereinafter. The accused
appellants were convicted for the offences under Section 120 B read with
Section (3(2) (1) of TADA, under Section 149 !PC read with Section 3(2)(i) of
TADA, under Section 302 !PC read with Section 149 lPC, under Section 436 D
read with Section 149 !PC and under Sections 147 and 148 of the Indian Penal
Code. For such conviction they are sentenced to imprisonment for life and
to pay a fine of Rs. 500, in default to sufier R.I. for six months. The Designated
Court did not, however, award separate sentence for each of the offence. The
present appeal has been preferred against the aforesaid convictiol\ and E
sentence passed by the designated court. Be it be stated that out of 17
accused persons, who stood trial, 6 of them have been acquitted of all the
charges against them. The prosecution in support of its case ·examined several
witnesses of whom PWs 1, 2, 3, 4, 9 and 10 are stated to be the eye-witnesses
to the crime. In coming to the conclusion that the prosecution case has been
established beyond reasonable doubt and it is these accused appellants who F
are the perpetrators of the crime the learned designated court examined the
evidence of the aforesaid 6 eye-witnesses and held them to be reliable and
on the basis of their identification of the accused persons in court convicted
those accused persons who could be identified by two or more witnesses. In
assessing the testimony of the aforesaid eye-witnesses and in deciding the G
question of the reliability of these witnesses the learned designated court has
examined whether it was at all possible for the witnesses to see the occurrence
from the place where they alleged to have been seen, the inordinate delay in
their examination by the investigating officer under Section 161 Cr. P.C., their
non-disclosure of the incident to anybody else, and the fact that they were
admittedly residing in the locality where the occurrence took place. Having H
744
SUPREME COURT REPORTS
[1998] 2 S.C.R.
A examined the impugned judgment of the learned designated court, we find
that what persuaded the learned Judge to believe the testimony of these
witnesses is the fact that they are the residents of the locality and the
accused persons also belonged to the said locality and they know each other
well and as such there could not have been any mistaken identity of the
accused persons. The learned designated court, however. took the precaution,
B since large number of accused persons were involved, to hold that the
prosecution case has been proved beyond reasonable doubt against those
accused persons who have been identified by more than two eye witnesses
of the occurrence.
C
Mr. Jain the learned Senior counsel appearing for the appellants
contended before us that 1.he evidence of the so-called eye-witnesses examined
in this case b~· the prosecution is totally unworthy of credit and no credence
can be given to their testimony of account of several infirmities in the same.
According to the learned counsel the method adopted by the learned Judge
while the witnesses were being examined to get the accused persons identified
D is a peculiar one and, therefore, no reliance can be placed on such identification
in court after so many years of the occurrence. According to Mr. Jain, if the
witnesses really knew the accused persons being resident of the same locality
nothing stood in their way to name them and in case they did not know the
name but could identify them only on seeing them then in the absence of any
E earlier test identification parade and merely pointing out one or two persons
from amongst the 17 accused persons who stood tried it is not possible to
hold that in fact the accused persons were· duly identified by the witnesses
in court.
Mr. Jain also further urged that Vandana, the deceased, had categorically
F stated that some unknown Muslim people threw petrol on the house and set
A
fire to the house. While in the hospital, she made a statement on 14.1.1993
...
that she could see petrol being sprinkled on the roof and then the house
being set to fire but yet did not name any of the accused persons and on
the other hand stated that the faces of the accused persons were covered
G with napkins. Sulochana, the other deceased, was specifically asked as to
whether she could recognise any of the persons who set fire to the house,
she replied in the negative as the faces of the accused persons had been
covered with napkins. Naina as well as Sandeep and Sailesh who survived
in the incident were not examined by the prosecution and practically no
explanation has been offered. The eye-witnesses, who were examined, though
H stated in court that they knew the accused persons from the childhood or at
MOHD. IQBAL M. SHAIKH v. STATE OF ~IAHARASHTRA jPAfTANAIK. J]
745
least for 25 years yet they did not know the names of the accused persons. A
Mr. Jain also severely commented upon the fact that the time of the incident
has been shifted from 12.30 in night to l l .30. which was necessary because
PW-7 in his evidence had indicated that he had learnt about the burning of
the room in the Chaw! at 11.00 p.m. So far as PW I and PW 9 are concerned.
according to Mr. Jain. it would be difficult for any person to see the incident B
from where they alleged to have seen in view of the existence of the cement
grill in their front. The learned counsel also contended that after the arrest
of the accused persons and before they were put to trial and the witnesses
were called upon to identify those accused persons on several occasions and
as such the witnesses had the opportunity of seeing them and in fact they
so deposed in their evidence in court. Mr. Jain also submitted that though C
several other independent witnesses from the adjacent locality were examined
by the prosecution in course of im·estigation but during trial those witnesses
were not produced. Even Smt. Sukesha Bane occupying room just opposite
to Rajaram Bane whose room was set to fire, though had been examined by
the police during im·estigation but was not examined during trial. This being
the nature of evidence of the eye-witnesses, Mr. Jain urged that conviction D
of the appellants on the basis of such infirm evidence is wholly unsustainable
and as such the appellants are entitled to be acquitted. Mr. Jain also urged
that the case in hand reveals a problem relating to ordinary criminal law and
alleged violence on the house of Rajaram Bane at Gandhi Chaw! on the
relevant date cannot be held to be a 'terrorist act' within the meaning of E
Section 3(h) of the TADA and, therefore, the provisions of TADA would be
wholly inapplicable. On the basis of the evidence of the Police Commissioner
and the sanction granted by the Commissioner the learned counsel urged that
there had been no application of mind by the Commissioner of Police to the
relevant materials and on the other hand the said Commissioner has
mechanically signed the order of sanction and as such the cognizance of the F
offence itself becomes vitiated as the provisions of Section 20A(2) must be
held not to have been complied with.
Mr. Nargolkar, learned senior counsel appearing for the respondent on
the other hand contended that a ghastly occurrence took place on the fateful G
night where several people were burnt alive and such a ghastly crime should
not go unpunished. According to the learned counsel, taking into account the
situation then prevalent arising out of demolition of Babri mosque. at Ayodya,
the delay caused in examining the witnesses by the investigating agency
cannot be held to be a ground for impeaching the testimony of the witnesses
in court. The learned counsel also urged that the so-called contradictions or H
746
SUPREME COURT REPORTS
(1998] 2 S.C.R.
A variance inter se between the witnesses have to be viewed from the stand
point that they were utterly stunned by the ferocity and ghastly act of the
accused persons and when near and dear ones were found to have been
burnt in their front, it is just possible that they have not been able to
remember the incident \Vith minute detail and on that score some variance is
reasonable but the witnesses can ·t be held to be untrustworthy on that score.
B Mr. Nargolkar further contended that the witnesses being sufficiently familiar
with the accused persons who were residing in the same locality, there cannot
be any doubt about their capacity to identify nor the identification made by
them in the court can be said to be infirm and, therefore, the learned designated
court rightly took the precaution and convicted only those persons who
C could be identified by two or more eye-witnesses to the occurrence. Mr.
Nargolkar also urged that the presence of the witnesses at the scene of
occurrence cannot be disputed as they were admittedly the residents of the
locality, opportunity on their part to see the accused persons was sufficient
as the activities continued for a fairly long period and, therefore, it was quite
natural for the witnesses to remember the role played by the accused persons
D and there is no justification to discard such trustworthy evidence. Judged
from this stand point the conviction recorded by the learned designated court
is unassailable. Mr. Nargolkar also submitted that the order of sanction prima
facie indicates clear application of mind of the sanctioning authority who
accorded the sanction after perusing all the relevant material. That apart, the
E sanctioning authority also deposed in court and indicated the materials
considered by him before according sanction and in this view of the matter
the challenge of the appellants to the validity of the order of sanction cannot
be sustained. According to tl1e learned counsel, Mr. Nargokar, the atrocities
and activities perpetrated by the accused persons at a point of time when the
communal riots had broken in this city of Bombay had such impact on the
F society that such activities cannot but be held to be 'terrorist activity' within
the ambit of TADA and as such the provisions of TADA have rightly been
applied. Mr. Nargolkar, lastly submitted that undoubtedly there are some
embellishments and omissions in the statements of the eye-witnesses made
in court from their statements made to the police during investigation but
G such omissions and embellishments are not in respect of the substratum of
the prosecution case and. therefore. the evidence of such witnesses cannot
be discarded as a whole. According to the learned counsel, court must in
-
such case separate the chaff from the grain and then on the grains available
. .{ ~
would examine whether the conviction of the accused persons can be
sustained or not. In this view of the matter, it is contended by the learned
H counsel for the respondent that the appea I deserves to be dismissed.
MOHD. IQBAL M. SHAIKH v. STATE OF MAllARASHTRA [PATTANAIK, J.J
747
In view of the rh·al submissions at the bar. the first question that arises A
for our consideration in whether the activities can be held to be 'terrorist
-.::
acti1·ities· so as to bring it within the pufl"ie11· of TADA. The expression
·terrorist act" has not been defined and. on the other hand. Section 2(h)
stipulates that it would have the same meaning as has been assigned to it
in sub-section (I) of Section 3. The expression ·terrorism· has not been B
defined under the Act and as has been held by this Court in the case of
Hitendra Vishnu Thakur and Ors. v. State o/Maharashtra, [ 1994] 4 SCC 602.
it is not possible to give a precise definition of terrorism or to lay down what
constituted terrorism. But the Court had indicated in the aforesaid decision
that 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 C
but the prolonged psychological effect it produces or has the potential of
producing on the society as a whole. It has also been stated in the aforesaid
decision that if the object of the activity is to disturb harmony of the society
..
or to terrorise people and the society with a view to disturb even the tempo,
tranquillity of the society, and a sense of fear and insecurity is created in the
minds of a section of the society or society at large, then it will. undoubtedly, D
be held to be a terrorist act. The question, therefore, does not really boil down
to an examination as to whether for the activities, under the normal criminal
law, the accused persons can be punished but to examine the real impact of
such grnesome and atrocious activities on the society at large or at least on
the section of the society. If the case in hand is examined from the aforesaid E
stand point, on the facts that shortly after the demolition of Babri Masjid at
Ayodhya, a communal riot erupted in Mumbai and during that period in the
locality in question which was predominantly occupied by Muslims, a Chaw!
occupied by Hindus who were in minority was set to fire by the people
belonging to the rival community and on account of such fire, several people
were burnt alive, it is difficult to accept the contention of Mr. Jain that the F
activities do not fall within the ambit to TADA. In our considered opinion,
judging from the atrocity of the activities and judging from the sensitive and
tense atmosphere prevailing in the town under which the acts were perpetrated
resulting ultimately in the death of several persons, the conclusion becomes
irresistible that such activities has far reaching consequences and it affects G
the society at large and the even tempo had been greatly disturbed and as
such the provisions of the Act get attracted to such activities.
The next question that arises for consideration is whether there has
been an infraction of sub-section (I) of Section 20(a) inasmuch as the competent
authority prescribed under the statute haye not exercised jurisdiction vested H
748
SUPREME COURT REPORTS
(1998] 2 S.C.R.
A in him and, on the other hand. an authority \\'ho was not competent has
accorded ~?pronli for application of the provisions. and as such entire
proceeding starting from inyestigation and culminating in cotl\'iction gets
yitiatcd. This contention of Mr. Jain i> mainly based upon the fact that though
under the provisions of TADA only the district Superintendent of Police
could accord approYal but in fact ii is the State Government who accorded
B apprO\·al and the Stale Government being not the prescribed authority under
the statute, investigation made must be held lo be without jurisdiction and
consequently the ultimate conviction cannot be sustained. Reliance has been
placed on the decision of this Court in the case ofAnirudhsinhji Karanshinhji
Jadeja and Am: v. State of Gujarat, (1995) 5 SCC 302.