# MOHD. KHALID v. STATE OF WEST BENGAL

- **Citation:** [2002] Supp. 2 S.C.R. 31
- **Court:** Supreme Court of India
- **Decided:** 2002-09-03
- **Case number:** Criminal Appeal No. 1114 of 2001
- **Bench:** B.N. Kirpal, K.G. Balakrishnan, Arijit Pasayat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-khalid-v-state-of-west-bengal-18688
- **Pages:** 36

## Headnote

Penal Code: Sections 1208, 302, 307, 326, 436/Explosive Substances
Act, 1908; Sections 3 and 5:
. 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
of an agreement between accused for commission of crime is enough to convict
A
B
c
them under Section 1208-Proof of overt act is not necessary.
D
Criminal Conspiracy-Confession by co-accused-Corroboration ofHeld, when trustworthy evidence establishing all links of circumstantial 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.
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.
F
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
demolished and two other adjoining buildings were partially demolished,
B 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 u

## Text

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MOHD. KHALID
V.
STATE OF WEST BENGAL
SEPTEMBER 3, 2002
[B.N. KIRPAL, CJI., K.G. BALAKRISHNAN AND
ARIJIT PASAYAT, JJ.]
Penal Code: Sections 1208, 302, 307, 326, 436/Explosive Substances
Act, 1908; Sections 3 and 5:
. 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
of an agreement between accused for commission of crime is enough to convict
A
B
c
them under Section 1208-Proof of overt act is not necessary.
D
Criminal Conspiracy-Confession by co-accused-Corroboration ofHeld, when trustworthy evidence establishing all links of circumstantial 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.
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.
F
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
demolished and two other adjoining buildings were partially demolished,
B 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
E
Bhagwan Swarup Lal Bishan Lal etc. etc. v. State of Maharashtrta, AIR
(1965) SC 682 at p. 686, referred to.
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.
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.
c
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]
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.
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.
F
G
156-E, F; 57-AI H
j'6
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.
E
F
G
(58-A, B; F; 59-D, El
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.
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
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. [59.7F, 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
A
B
c
38
SUPREME COURT REPORTS f2002) SUPP. 2 S.C.R.
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
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.
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 midnight, 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.
...
' ..
..
...
T
t ...
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 I 20B, 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.
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
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
....
...
l
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 soC
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
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
D
were arrayed as accused persons. Even if, they caused the explosion, they
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
....
,d
) ...
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
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
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.
D
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 theaccused-appellants that Section I 0 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 I 0 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 accusedD 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. PW67 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 B
accused-appellant Pannala Jaysoara on 15.4.1993. Confessional statement of
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 E
cannot in all cases be tenned to be fatal so far as the prosecution is concerned.
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 G
cannot be said to be improbable. Though, an attempt has been made to show
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.