- (1.) ACCORDING to the prosecution case on 13 -1 -1993 at about 3.30 p.m., while curfew had been imposed in the city of Ahmedabad, the complainant Siyaram Ramjash Yadav, PW was passing by Khanpur near Parsi Gymkhana, when he was intercepted by the appellant and after being asked to state his name and his destination, while the curfew was in force, the appellant is alleged to have drawn out a razor from his pocket and assaulted the complainant who tried to ward off the blow and the injury was received by him on his cheek, which on medical examination, was found to be a simple injury. The appellant after causing the injury escaped and was chased by the patrolling police party and apprehended along with the razor. After investigation, the appellant was sent up for trial for offences under Sections 324 IPC, 188 IPC and 135(1) of the Bombay Police Act, 1951 (22 of 1951) read with Section 3 of TADA. The learned Designated Court found the appellant guilty of all the offences and convicted and sentenced him. The appellant has challenged his conviction and sentence.
(2.) LEARNED counsel for the appellant submits that the conviction and sentence recorded against the appellant for an offence punishable under Section 3(2)(ii) of TADA, is not at all sustainable. Learned counsel argued that the material on the record, including the evidence of the complainant and the FIR lodged by him, do not at all make out any offence under Section 3(1) of TADA. We find considerable force in this submission.
(3.) FROM a bare perusal of the complaint filed by the complainant, we find that no allegation whatsoever was made by him which could even remotely attract the provisions of Section 3(1) of TADA. All that the complainant disclosed in the complaint is that the appellant had caught hold of his shirt collar from behind and warned him as to why he was moving about during the curfew and then assaulted him with the razor, which he took out from the pocket of his pants and caused an injury on his left cheek. Thus, in the complaint a simple case of causing an injury by a sharp -edged weapon was projected. At the trial, indeed, an effort was made by the complainant to improve his version and say that the assailant had before assaulting him, enquired of his name also and so soon as he had disclosed his name, the assailant took out the razor from his pocket and gave him an injury on his cheek. The Designed Court read into this evidence a streak of communal violence and opined that attack was made by the appellant, a Muslim, on learning that the victim was a Hindu. We do not find even an iota of evidence on the record from which such an inference could be justified. The entire approach of the Designated Court is clearly erroneous. In Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri)1087 this Court opined: (SCC pp.623 -24, para 15) "15. Thus, the true ambit and scope of Section 3(1) is that no conviction under Section 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by Section 3(1) by means of the weapons etc. as enumerated in the section and was committed with the motive as postulated by the said section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by Section 3(1) to achieve the objective as envisaged by the section, an accused should not be convicted for an offence under Section 3(1) of TADA. To bring home a charge under Section 3(1) of the Act, the terror or panic etc. must be actually intended with a view to achieve the result as envisaged by the said section and not be merely an incidental fallout or a consequence of the criminal activity. Every crime, being a revolt against the society, involves some violent activity which results in some degree of panic or creates some fear or terror in the people or a section thereof, but unless the panic, fear or terror was intended and was sought to achieve either of the objectives as envisaged in Section 3(1), the offence would not fall stricto sensu under TADA." ;