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TMI Blog2010 (5) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... received serious injuries on the vital part of his body. However, he survived. The complaint was given on the very same day by the brother of Shri Lalwala, which was registered vide IC. R.No.111/02 with Athwalines Police Station, Surat. After some investigation, police filed A-Summary on 27.02.2003. In the month of May 2003, a secret information was received by Crime Branch, Surat for the alleged involvement of accused No. 1, who is appellant of Criminal Appeal No.1803/05 (hereinafter referred to as 'A1') and accused No.4, who is appellant of Criminal Appeal No.1800/05 (hereinafter referred to as 'A4'). In the attack on Shri Lalwala, further investigation was carried out and thereafter, it was realized in the investigation that a conspiracy was hatched by targeting Shri Hasmukhbhai Lalwala as Hindu leader so as to take revenge from Hindu community on account of certain attacks on Muslims after Godhra carnage and also with an intention to strike terror amongst people of Hindu community and thereby to cause threat to the community. The provisions of Prevention of Terrorism Act, 2002 (hereinafter referred to as "POTA") was found to have been attracted and section 3 of POTA was added ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer to record statement) Exh. 119 PW-14 Mr. Hasmukhbhai Laljibhai Rathod (ACP-Surat-(Investigating Officer) Exh.127 The prosecution also produced documentary evidence in support of its case, which are as under: 1. Exh.92 Report of registration of offence dated 21.05.2002 2. Exh.91 Original complaint of the complaint Ganesh chandra, dated 21.05.2002. 3 Exh.40 Panchnama of scene of offence dated 21.05.2002. 4 Exh.41 Copy of yadi sent to the export of FSL to visit scene of offence and its preliminary report dated 21.05.2002. 5 Exh.42 Panchnama of production of bullet recovered from the body of the injured by Dr. Amar during operation dated 21.05.2002. 6 Exh.43 Panchnama of production of clothes worn by injured Hasmukhbhai at the time of incident dated 21.05.2002. 7 Exh.45 Panchnama of scene of offence shown by the accused Mohmed Asharaf Ismail Nagori, dated 12.05.2003. 8 Exh.44 Panchnama regarding search of the accused Mohmed Ashraf Ismail dated 12.05.2003. 9 Exh.78 Panchnama of search of house of the accused Mohmed Tahir, dated 13.05.2003. 10 Exh.46 Panchnama of search of house of the accused Mohmed Asharaf Ismail Nagori, dated 14.05.2003 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 34 Exh.139 Copy of dispatch note dated 14.07.2003. 35 Exh.140 Receipt from FSL regarding muddamal, dated 15.07.2003. 36 Exh.117 Letter written to Police Commissioner, Surat for permission to file chargesheet against the accused of the aforesaid case dated 30.07.2003. 37 Exh.141 Reminder to FSL expert dated 13.10.2003. 38 Exh.142 Copy of reminder yadi sent to Director, FSL regarding examination of muddamal dated 22.10.2003. 39 Exh.143 Reminder Yadi sent to Director, FSL for opinion dated 07.11.2003. 40 Exh.144 Letter from Police Commissioner, Surat to ACP Mr.Rathod informing about chargesheet for the offence under Arms Act and section 3 of the POTA against the accused dated 06.11.2003. 41 Exh.111 Original letter regarding sanction given by competent authority to prosecute against the accused, dated 24.10.2003 42 Exh.146 Medical Certificate of injured Advocate Mr.Hasmukh Lalwala, dated 21.05.2002 43 Exh.145 Copy of notification of Police Commissioner of Surat city, dated 07.15.2002 to 05.06.2002. 44 Exh.86 'A' Summary report from ACP Mr.Rathod to J.M.F.C. (Surat) dated 27.02.2003. 45 Exh.87 Resolution u/s.165 of Cr.P.C. dated 13.05.2003. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the task of overall reappreciation of the evidence, it would be just and proper to consider the legal position and simultaneously, also to consider the questions of law contended by the respective parties. 9. The first contention raised by the learned counsel appearing for the appellants was that once the A-Summary was filed, there was no lawful warrant to reopen the case on the basis of the alleged material of discovery or pointing out panchnama as sought to be contended and canvassed by the prosecution. It was submitted that the fact of the incident in question, scene of offence, the injury received, etc. were known to the prosecution and on the basis of such material available, A-Summary report was also filed and the chapter was closed. There was no reason or valid ground for reopening of the matter by alleged pointing out panchnama. It was submitted that the said pointing out panchnama cannot be considered in the evidence and therefore, if the said part of the evidence led by the prosecution is excluded, the basis of the investigation would be lost and the accused would be entitled to the benefit of the same. 10. The examination of the said contention shows that it is on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence as an incriminating factor against the accused. " Further, at para 125, it was observed thus - "We are of the view that Kotayya's case is an authority for the proposition that 'discovery of fact' cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place." At para 142, it was observed as under: "There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been wrongly accepted in evidence by the Trial Court. It was submitted that after taking custody of the computer, it was not kept in sealed condition. Further, the mandatory procedure for proving a document from an electronic machine as per the Evidence Act has not been followed. The learned counsel in support of his submission attempted to rely upon the provisions of section 65B of the Evidence Act and it was submitted that until the evidence was led as required by the provisions of section 65B of the Evidence Act, the material in Urdu which is stated to be the extract from the computer could not have been admitted in evidence. It was also submitted that no translator from Urdu to Gujarati was examined by the prosecution in support of its case and therefore, in absence of the examination of the translator, the Trial Court could not have accepted the translation as evidence in considering the case of the prosecution. 14. If the contention is examined in light of the facts of the present case, it appears that the panchnama for search of the house of A1, Exh.46, the panchnama for recovery of the files from the computer, Exh.67 were exhibited in the deposition of PW5 Mukund Ish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be granted by the highest authority, has not recorded dissented note nor any such record has come out for such purpose. The Apex Court had also an occasion to consider the aspects of application of mind while granting sanction by the competent authority. In its decision in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra), after considering the Privy Council decision in Jaswant Singh Vs. State of Punjab [AIR 1958 SC 124], it was inter alia observed as under - "The elaborate narration of facts culled out from the record placed before the sanctioning authority and the discussion as to the applicability of each and every Section of the penal provision quoted therein is not an imperative requirement. A pedantic repetition from what is stated in the FIR or the draft charge-sheet or other documents is not what is called for in order to judge whether there was due application of mind. It must be noted that the grant of sanction is an executive act and the validity thereof cannot be tested in the light of principles applied to the quasijudicial orders." 17. The examination of the facts of the present case on the aspects of sanction shows that Shri KL Kapoor, Secretary of Hom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 52 of the POTA and under these circumstances, it cannot be said that the confessional statement was recorded after due compliance of the statutory requirement. It was also contended that both the accused had retracted from the confessional statement by raising the ground that the same was under duress and coercion and mental torture in the police custody and therefore, such confessional statement lacks voluntariness and is not a valid confessional statement in the eye of law as per the provisions under section 32 of the POTA. It was submitted that if such confessional statements are excluded from the evidence of the prosecution, not only the substratum of the case of the prosecution would be lost, but the case may turn to be a case based on circumstantial evidence for which there is no link proved by material evidence leading to the guilt of the accused and therefore, the Trial Court has committed error in not considering the aforesaid aspect while recording the conviction of the accused. 19. Whereas the learned counsel appearing for the State did contend that the requisite procedure has been followed while recording the confessional statement. It was submitted that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2023 before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder. (2) A police officer shall, before recording any confession made by a person under sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him: Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession. (3) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it. (4) The person from whom a confession has been recorded under sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within fort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, but the compliance of such provision orally is fully established in the oral evidence of the officer who recorded the confessional statement and noncontradiction thereof in the cross-examination, whether would not invalidate such confessional statement. Further, when the confessional statement is found with the corroborative evidence on record coupled with the oral evidence of the officer who recorded the confessional statement for explaining to the accused that he is not bound to make the confessions and that if any confession is made, such may be used against him, it is not possible to hold that the failure to explain in writing, though the confession by an unimpeachable evidence in the testimony of the Police Officer concerned, would be a sole base for discarding the confessional statement in toto. It appears that in such circumstances, when there is failure to communicate in writing while considering the evidentiary value of the confessional statement, the Court may consider the other oral evidence for such communication and whether such oral communication was made by an unimpeachable testimony of the witness in support thereof, would also be an aspect to be considered. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the omission made by the competent officer is curable in view of the provision contained in Section 463 Cr.P.C. In the same manner, the Court has held even if there was any omission in respect of the certificate which the competent officer is required to append under sub-rule (3) at the foot of the confession, it can be cured as provided under Section 463 of the Cr.P.C. Such approach is permissible in view of Section 463 of the Cr.P.C. in regard to the omission in recording confession under Section 164 Cr.P.C., the Court has clarified that the same approach can be adopted in respect of confession recorded under Section 15 of the TADA Act." 25. Therefore, in light of the aforesaid, the confessional statement of the accused are required to be considered. 26. On the aspects of compliance to the provisions of section 52, the Apex Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra) observed at para 164 as under: "In our considered view, the violation of procedural safeguards under Section 52 does not stand on the same footing as the violation of the requirements of sub- Sections (2) to (5) of Section 32. As already observed, sub-Sections (2) to (5) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 52 of the Act may deserve consideration only if there is denial of the safeguard under sub-section(2) to (4) of section 52. Nowhere, it is the case of the defence before the Trial Court that the right to consult a legal practitioner was denied to any of the accused or that the information was not communicated about the arrest of the accused to the family members or that the accused was not permitted to meet the legal practitioner. The contention that it is required for the prosecution to prove that the procedure as required under section 52 of the Act was followed is ill-founded inasmuch as it is only when the denial to the procedure of arrest under section 52 comes on record, it may be required for the Court to consider the same while considering the evidentiary value of the confessional statement. It may be recorded that as per the Evidence Act, in normal circumstances, all acts in official capacity are presumed to be done in accordance with law and as per the requirement of law to rebut such presumption or to negative such presumption, it is required for the defence to put forward the case for such denial, if any. Not a single incident is put to any of the witness and more pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the cross-examination of the said witness. It is in that light of the fact situation, the contention deserves to be examined. 30. Section 32 of POTA itself does not provide for any specific time to be given by the concerned police officer to the accused concerned to think about. However, as the requirement of sub-section (3) is to record the confessional statement in the free atmosphere from threat or inducement, it is to be read that a reasonable time is required to be given by the concerned police officer to the concerned accused to think as to whether he should or he should not give the confessional statement which may be used against him. But such reasonable time may vary from facts to facts and it is not possible to read any express time limit by stipulating the hours or the minutes. The requirement is that time should be given to the accused so as to extract free atmosphere in a cool mind. But if the accused himself has already made up his mind to give the confessional statement and he declares before the concerned police officer that he is not desirous to further think about it and thereafter if the confessional statement has been recorded with the other circumstances c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situations. If the Magistrate is satisfied that the confession appears to have been made voluntarily and the person concerned was not subjected to any torture or intimidation, he need not direct judicial custody. Having regard to the circumstances of this case, there was nothing wrong in sending back Afzal to police custody. This contention cannot be sustained on deeper scrutiny." (Emphasis supplied) At the bottom of the verification statement, the learned Magistrate has recorded on 24.06.2003 that the accused is not required to be sent for medical examination and as the remand has been given by the Court, the custody of the accused is entrusted to the police officer. In the cross-examination, of the said learned Magistrate, no such defence has been put forward to contend that that entrustment of the custody to the police was not required or otherwise. On the contrary, the defence is absolutely silent on the said aspects in the cross examination of the learned Magistrate. Under these circumstances, it is not possible for the us to hold that as the judicial custody has not been ordered by the learned Magistrate, the confessional statement can be said as vitiated and it would los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alleged retraction prior to the recording of the confessional statement cannot be termed as retraction as sought to be canvassed by the learned counsel for the appellant-A4. Apart from the above, the retraction of the confessional statement by A1 is after about 3 months and the retraction of the confessional statement by A4 is on 24.06.2003. Both if considered as it is, such are long period of more than 2-3 months. Therefore, such retraction can only be termed as afterthought or ingenuous device to nullify the evidentiary value of the confessional statement. Further, both the confessional statements are not only duly verified by the learned Magistrate, but one of the verification of A4 is in question answer form by the learned Magistrate. The evidence of the learned Magistrate, Exh.106, P.W.11, shows that the recording of the confessional statement is duly verified by the learned Magistrate. No complaint has been made for any physical or mental torture and as per the material disclosed in the cross-examination of the learned Magistrate Exh.106, P.W.11, no symptoms were found on the face of the accused for no sufficient sleep or no sufficient food. Therefore, such a belated retrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (5) SCC, 234, while considering the evidentiary value of the confessional statement and the requirement of the corroboration thereof, majority observed inter a lia at para 33, relevant of which reads as under: "Once this is done the prosecution discharges its burden and then it is for the accused to show and satisfy the Court that the confessional statement was not made voluntarily. The confessional statement of the accused can be relied upon for the purpose of conviction, and no further corroboration is necessary if it relates to the accused himself. It has to be noted that in Nalini case by majority it was held that as a matter of prudence the court may look for some corroboration if confession is to be used against a co-accused though that will be again within the sphere of appraisal of evidence." 38. It was next contended by the learned counsel appearing for the appellant-accused that there was no panchnama drawn for taking custody of the computer and the computer was kept by the police officer Shri Gakhakhar in his possession. As the mandatory procedure was not followed of drawing of panchnama for seizure of the computer, the material extracted there from the alleged fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution. So, neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights cane we spell out the exclusion of evidence obtained on an illegal search. So far as India is concerned its law of evidence is modeled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out." 40. Thereafter, the Apex Court set aside the direction given by the High Court to exclude the evidentiary value of the material which had alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to decide about the complicity of the accused. [vide Esher Singh vs. State of A.P., 2004 (11) SCC 585]. Lord Bridge in R. vs. Anderson [1985 (2) All E.R. 961] aptly said that the evidence from which a jury may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties. In (AIR 1945 PC 140), the Privy Council warned that in a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others. "A codefendant in a conspiracy trial", observed Jackson, J, "occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together." [vide Alvin Krumlewitch vs. United States of America, (93 L.Ed. 790). In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended by the learned counsel appearing for the accused that as per the FSL report, it has not come out that the bullet used for causing injury to the victim was fired from the same weapon which is recovered by the prosecution. It was therefore submitted that the link in the case of the prosecution is not proved beyond reasonable doubt and the accused would be entitled to the benefit thereof and it would not be a case for conviction of the accused. 44. Whereas, the learned counsel appearing for the prosecution did contend that the bullet is recovered from the body of the victim and therefore, recovery of the weapon is not must when the case is proved by the other material evidence of the witnesses who were examined, coupled with the confessional statement. Therefore, it was submitted that the accused would not be entitled to the benefit. 45. As such, the bullet was been found from the body of the victim and the evidence has come up on record to that extent beyond reasonable doubt and corroborated by the medical evidence of the Doctor. 46. The Apex Court had an occasion to consider the aspects of non-recovery of weapon, whether fatal to the case of the prosecution in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the accused to explain its possession or discovery or recovery and would depend upon facts of each case which are to be appreciated on the scales of common sense of a prudent man possessing capacity to "separate the chaff from grain". In such cases, as stated by Lord Denning J., law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice." (Emphasis supplied) 49. Further, in Devender Pal Singh Vs. State of NCT of Delhi (supra), while considering the case under TADA, the Apex Court observed at paras 53 and 54 as under: "53 . Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh) Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava) 54. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an association declared unlawful under the Unlawful Activities (Prevention) Act, 1967, or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, commits a terrorist act. Explanation.-For the purposes of this sub-section, "a terrorist act" shall include the act of raising funds intended for the purpose of terrorism. (2) Whoever commits a terrorist act, shall,- (a) If such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine; (b) In any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act prepara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of committing the particular crime cannot be said to be the one strictly envisaged by S. 3(1), it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create that result would attract the provisions of S.3(1) of TADA. Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the section, the offence would not attract S 3(1) of TADA. On the other hand, if a crime was committed with the intention to cause terror or panic or to alienate a section of the people or to disturb the harmony etc. it would be punishable under TADA, even if no one is killed and there has been only some person who has seen injured or some damage etc. has been caused to the property, the provisions of S. 3(1) of TADA would be squarely attracted. Where the crime is committed with a view to overawe the Government as by law established or is intended to alienate any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment or create terror in people etc, but he uses the arms and ammunitions which results in death or is likely to cause and damage to property etc. In other words, a person becomes a terrorist or is guilty of terrorist activity when intention, action and consequence all the three ingredients are found to exist." 53. It is in light of the aforesaid legal position, if the material of translated files at Exhibits 81, 82 & 83 are considered, it does appear that there was not only thinking process in the mind of the accused concerned about the sufferings of a Muslim community after Godhra carnage, but there was also consideration of relevant literature by the accused so as to consider the base camps of terrorist activity, availability of the space, the requirement of space in context to the political atmosphere prevailing at the relevant point of time by a particular political party having affinity with a particular section of the Society. The overall reading of the material would lead to show that it is to pamper and instigate the religious feeling of a particular community, viz. Muslim community to take revenge from Hindu community. 54. It is hardly required to be stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olence for taking revenge or to use the power to offend somebody, but the same is to be used only as a protective measure and the war is to play the role only when it is unavoidable after all measures to bring peace have failed. Such are the principles known in Hinduism too. It is only by way of self defence, attack is permissible and not for causing injury to somebody. Such principles are interwoven even in the Indian Penal Code for invoking the right of self defence. The aforesaid glimpse observed by us would highlight the situation that in any secular State or nation, the unity and harmony amongst various sections of the society professing various religion would be of paramount consideration. It is like a family having different way of thinking and sometimes different way of praying to the God. Merely because the ways to get the blessings of the God are different, one cannot divide the family nor the unity and the security of the family should be put to jeopardy on account of such personal feeling of any member of the family or may be consequently a section of the society in any secular nation. 55. The material as extracted from the computer file whose translation are produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala, there was tense situation in the nearby area. Therefore, it is not a matter where the targeted action was not brought about the result. It may be that the terror which was intended with higher degree might not have resulted, but if the said aspect is considered in light of the above referred decision of the Apex Court in the case of Hitendra Vishnu Thakur (supra), the offence can be said to have been committed since the culpability in the mind of the accused is proved with a view to create a terror amongst the particular class and section of the Society. It may be that in a given case, the creation of huge terror amongst the society on account of targeted action may be one of the relevant circumstance at the time when the punishment is to be imposed, but it is not possible to record the conclusion that no offence can be said to have been committed by the accused when the weapon was used for shooting Shri Lalwala out of a planned targeted action to take revenge by the accused, against a particular section of the society. 57. On the aspect of confessional statements, we have already observed earlier that retraction does not carry weightage to the extent as sought to be canvasse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed for the alleged offence under the Arms act deserves to be set aside. 59. It is true that the charge was under section 25(1)(c) of the Arms Act and no such provision exist in the statute book since the said section was already deleted with effect from 25.05.1988. However, it is a proved fact as led by the prosecution that the firearm was used for commission of the alleged offence and the injury was also received by the firearm. Therefore, the offence under the Arms Act for possession of the firearm without holding a valid licence could be said as proved. It is in this fact situation, if the contention is examined, it can be said that such would attract the punishment as per section 25(1B) (a) as could be said as proved, wherein the punishment can extent upto 3 years. As per the evidence on record, the possession of the firearm without holding a valid licence is proved. Further, the use of the firearm is also proved. Under these circumstances, we find that it would not be a case of acquitting the accused from the offence under the Arms Act merely because the charge was framed under section 25(1)(c). And the pertinent aspect is that for the alleged offence under section 25(1)(c), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspects of personal circumstances of the accused, Court cannot lose sight of the deterrent effect to be created while imposing sentence. But at the same time, the gravity of the offence and the consequential effect arising on account of the commission of offence would also be one of the relevant circumstance while imposing sentence. It does appear from the evidence of the case that the intention was not to cause injury, but was to kill the victim, but the fact remains that because of the injury received on the cheekbone, the victim survived. It is also true that the intention was to create great terror amongst the particular section of the society, but the fact remains that it ended with creation of tensed situation in the society. It has not come on record that any untoward incident or any rioting took place after the incident amongst two sections of the society. Under these circumstances, we find that if the learned Special Judge has exercised the discretion of imposing punishment of 7 years for the offence punishable under section 3(2) of the POTA or for the period of 6 years under section 307 of the IPC or for the period of 6 years for the offence under section 120B of the IPC, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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