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PETITIONER: MOHD. IQBAL M. SHAIKH & ORS.

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT:       15/04/1998

BENCH: G.B. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      These appeals  by the  11 accused persons under Section 19 of  the Terrorist  and Disruptive Activities (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  @  ‘/94  and  17/95.  These appellants  and  six  other  stood  charged  under  Sections 120(B), 147, 148, 149, 302, 326, 436, 506 I.P.C. and Section 3(2)(1) and  (ii) of  the TADA  for the  ghastly  occurrence dated 7th  of January, 1993, wherein six persons died our of burn 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  Babri  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 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 Chawl,  Rajbhai Chawl,  Nail Chawl etc. The accommodation usually  consists of one-room-tenements having one entrance door and the tenements are situated adjacent to each other.  The tragic  incident occurred  in the  house of deceased Rajaram  bane who  was residing  in room  no. 2  of Gandhi Chawl. As stated earlier the Hindu community being in minority, while  a group  of residents  had taken shelter in room no.  2 of  Gandhi Chawl,  it is alleged that the Muslim accused persons  put petrol on the roof of said room no.2 of Gandhi Chawl  and set it on fire and in course of occurrence Rajaram Bane,  his wife  Sulochana, 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 and 16th of January, 1993, respectively, while the rest died at the spot itself. While  the occurrence  is undoubtedly  a ghastly one and exhibits  the brutality  with which  the members  of one

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community attacked  the members  of another  community at  a points of  time when people had been depraved of their sense 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 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 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 locality in consequence  of  which  the  Hindus  remained  inside  their respective rooms  in  the  Chawl.  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,  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 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  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 the people were able to get into the  room, Rajaram Bane, his neighbour Laxmi Bai Batalu and her  daughter Kamla  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 suffered serious burn injuries, and therefore, they were removed to  the hospital.  Sulochana died in the hospital on 10.1.1993 and Vandana died on 16.1.1993 in the hospital. The police then  shifted the Hindu population of the locality to a nearby  Municipal School  and accommodated  them in a room under strict police vigilance. Vandana who was alive and had been removed  to the  Cooper Hospital  gave her statement on the basis  of which  CR No.  15 of 1993 in Jogeshwari Police Station was  registered and  police took up investigation 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. 14  of 1993.  The approval  of the Police Commissioner  was   taken  under   Section  20A.   (1),  for investigation of  the case,  under TADA and after completion

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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 TADA Special Case No. 1 to 1994 and similarly Special  Case No.  37 of  1994 was  filed  against accused No.  16 and  Special Case  No. 17 of 19965 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.P.C. and under Section 3(2)(1)  and (ii)  of the  TADA. The accused persons denied their complicity in the crime and took the stand that as the  investigating  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.      The learned  designated court  formulated 12 points for being answered  and then  after analysis  of  the  oral  and documentary evidence  on record  as  well  as  the  material produced came  to hold  that prosecution  has  proved  valid permission of  the  competent  authority  for  applying  the provisions of  TADA and  valid  sanction  to  prosecute  the accused as  required under  Section  20A  of  the  Act.  The learned court  also came  to hold  that the  accused persons Nos. 1,2,4,7,8,9,10,11,14,15,  and 17  struck terror  in the minds of  Hindus public  to adversely  affect the disharmony amongst Hindus  an d  Muslims  and  for  that  purpose  used explosives like  petrol and  kerosene  and  entered  into  a conspiracy to  commit the  terrorist act. It further came to hold that the said 11 accused persons were the members of an unlawful assembly  whose common  object was  to  threat  the Hindus to  kill and further to strike terror in the minds of Hindu persons with lethal weapons. It also came to hold that the 11  accused persons used force with the common object to kill the  Hindus and committed riot and while committing not 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 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 possessing swords, choppers, petrol and kerosene and burnt the house of Rajaram Bane 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 different terms  as hereinafter. The accused appellants were convicted for  the offences  under Section  120 B  read with Section (3(2)  (I) of  TADA, under Section 149 IPC read with Section 3(2)(i)  of TADA,  under Section  302 IPC  read with Section 149 IPC, under Section 436 read with Section 149 IPC and under  Section 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 suffer 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 conviction

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and sentence passed by the designated court. Be it be stated that out  of 17  accused persons, who stood tried, 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 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 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  t he locality where the occurrence  took place.  Having  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,  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 tow eye witnesses of the occurrence.      Mr. Jain  the learned  Senior counsel appearing for the appellants contended  before us that the evidence of the so- called  eye-witnesses   examined  in   this  case   by   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 t he accused persons identified 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 earlier test identification prade 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, h ad  categorically stated  that some  unknown Muslim people threw petrol  on the  house and set 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 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

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accused persons had been covered with napkins. Naina as well as Sandeep  and Sailesh  who survived  in t he incident were not  examined   by  the   prosecution  and   practically  no explanation has  been offered.  The eye-witnesses,  who were examined, though  stated in court that they knew the accused persons from the childhood or at least for 25 years yet they did not know the names of the accused persons. Mr. Jain also severely commented  upon the  fact  that  the  time  of  the incident has  been shifted  from 12.30  in night  to  11.30, which  was  necessary  because  PW-7  in  his  evidence  had indicated that  he had  learnt about the burning of the room in the  Chawl at  11.00 p.m.  So far  as PW1  and PW  9  are concerned, according  to Mr. Jain, it would be difficult for any person  to see  the incident  from where they alleged to have seen  in view  of the  existence of the cement frill in their front.  The learned  counsel also contended that after the arrest  of t he 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 several  other independent  witnesses from the  adjacent locality were examined by the prosecution in course  of investigation but during trial those witnesses were not  produced. Even  Smt. Sukesha  Banne occupying room just opposite  to Rajaram  Bane whose  room was set to fire, though had  been examined by the police during investigation but was  not examined during trial. This being the nature of evidence  of   the  eye-witnesses,   Mr.  Jain   urged  that conviction 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 Chawl  on the  relevant date  cannot be  held to be a ‘terrorist act’  within the  meaning of  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 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  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 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 with minute detail and on that score some variance is reasonable but the witnesses can’t  be held  to be untrustworthy on that score. Mr. Nargolkar  further contended  that the  witnesses  being

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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 could b e 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 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 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  the  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  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 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  counsel  for  the respondent that the appeal deserves to be dismissed.      In view  of the rival submissions at the bar, the first question that  arises for  our consideration  in whether the activities can be held to be ‘terrorist activities’ so as to bring  it   within  the  purview  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 (1) of Section 3. The expression  ‘terrorism’ has  not been  defined under the Act and  as has  been held  by this  Court, in  the case  of HITENDRA VISHNU  THAKUR AND  ORS. v.  STATE OF  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 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 t  he 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

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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, 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 gruesome  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 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 Chawl 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 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 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 (1) of Section 20(a) inasmuch as the competent authority prescribed under the  statute have not exercised jurisdiction vested in him and,  on the  other  hand,  an  authority  who  was  not competent, has  accorded approval  for  application  of  the provisions, and  as such  entire  proceeding  starting  from investigation and  culminating in  conviction gets vitiated. This contention  of Mr.  Jain is  mainly based upon the fact that though  under the  provisions of TADA only the district Superintendent of  Police could  accord approval but in fact it is  the State  Government who  accorded approval  and the State Government  being not  the prescribed  authority under the statute,  investigation made  must be held to be without jurisdiction and consequently the ultimate conviction cannot be sustained.  Reliance   has been placed on the decision of this Court  in the  case of ANIRUDSHINHJI KARANSINHJI JADEJA AND ANOTHER  v. STATE  OF GUJARAJ,  1995 (5) SCC 302. In the said case,  what h  as been  held by  this Court is that for invocation of the Act, the District Superintendent of Police is  the   authority  whose   prior  approval   is  condition precedent, and  since the  said statutory authority, who has been  vested   with  jurisdiction,   did  not  exercise  his discretion and,  on the other hand, orders were based at the behest of  the higher  authority, then in the eye of law, it is to beheld that the prescribed authority has not exercised discretion at  all. On  examining the  facts of  the present case, we are of the considered opinion that the ratio of the aforesaid case has no application at all.      Firstly, Section 20A(1) was brought on the statute book by Central  Act 43  of 1993  w.e.f. 22nd  May, 1993 and said provision was not in existence on the date of the occurrence on 7th  of January,  1993 and  consequently, the question of obtaining the  prior approval of the District Superintendent of Police  before proceeding with the investigation into the offence under  TADA does  not  arise.  Even  otherwise,  the Commissioner of  Police, Greater  Bombay, by his Order dated the 27th of January, 1993, on the basis of the report of the

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Senior Police  Inspector, Jogeshwari  Police  Station  dated 13th of  January,  1993,  accorded  approval  to  apply  the provisions of  TADA, in  Jogeshwari Police Station CR No. 15 of 1993  and we  find no  infirmity with  the said Order. In this view  of the  matter, we do not find any infirmity with the investigation  being proceeded under TADA, charges being framed therein  an d  trial being  held  by  the  designated Court, Mr.  Jain’s contention on this score, therefore, must be rejected.      The next  question that  arises  for  consideration  is whether  the  sanction  accorded  under  Section  20A(2)  is invalid. Undoubtedly,  without the  previous sanction of the Commissioner of  Police no  Court can take cognizance of any offence under  the Act.  Mr.  Jain  does  not  dispute  that factually their  exists and  Order of  the  Commissioner  of Police sanctioning  the prosecution  of the  accused persons under TADA  but according  to the  learned Sr,  Counsel, Mr. Jain, the  said  sanction  is  the  outcome  of  total  non- application  of   mind  to   the  relevant   materials  and, therefore, cannot  be held to be a valid sanction in the eye of the law. It is, in this connection, Mr. Jain, the learned Senior Counsel,  took us  through the  order passed  by  the Commissioner of  Police, Greater  Bombay, Shri  A.S.Samra as well as his evidence in Court and from the fact that the day on  which   he  received  all  t  he  papers  in  course  of investigation together  with the proposal for filling of the charges, he  has accorded  the  impugned  sanction,  exhibit total non-application  of  mind, and therefore, the sanction accorded  is   vitiated.  We   are  unable  to  accept  this contention raised  by the  learned counsel.  The law is well settled that  when a  statute requires  a  sanction  of  the competent authority as a pre-condition for taking cognizance by the  Court and  the relevant  sanction Order  is produced which itself  indicated the  materials considered  and  then after applying  mind,  the  sanctioning  authority  accorded sanction, the same would be sufficient to hold that there is a valid sanction. Besides, when the sanction order itself is not sufficient  to indicate  that the  sanctioning authority applied his  mind then the prosecution is entitled to adduce evidence aliunde  of the  person who  accorded sanction  and that would  be a  sufficient 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. 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  apparent  that  the sanctioning  authority   clearly  perused   the  records  of investigation  and   then  on  being  satisfied  passed  the impugned order  of the  sanction. The  sanctioning authority was examined  as witness  in  the  Court  and  his  evidence clearly  establishes   that  it  is  only  after  thoroughly applying  his   mind  to  the  relevant  materials  and  the proposals, he  accorded sanction  on being  satisfied that a prima facie  case exists  as against  the accused persons to proceed against  them under  TADA. We are, therefore, unable to accept  the submission  of Mr.  Jain, the  learned Senior Counsel appearing  for the appellants that there has been no valid sanction  as required  under Section 20A(2) of the Act and we  see no  infirmity with  the sanction accorded in the case  and   as  such  there  was  no  illegality  in  taking cognizance and trying the accused persons under TADA.      Let use  now examine the reliability of the prosecution witnesses through whom the prosecution has to establish that the case  against the  appellants  has  been  proved  beyond

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reasonable  doubt.  As  has  been  stated  earlier  the  six witnesses who  were supposed  to be the eye-witnesses to the occurrence are PWs 1, 2, 3, 4, 9 and 10. It is to be noticed that while  PW 4 was examined by the police on 17.1.1993 and PW 3  was examined by the police on 18.1.1993 but PW 2 Surya Kant was  examined on  25.1.1993 and  the three  other  eye- witnesses were  examined on  29.1.1993 while  the occurrence was on  7.1.1993. It  is established  from t  he prosecution evidence itself that these witnesses were the inhabitants of Gandhi  Chawl   where  the  ghastly  incident  occurred  and immediately on  the next  day of  the occurrence  they  were shifted to a local school for safety and were staying there. Normally, therefore,  there was no justification on the part of the  investigating agency  in not examining them for this length  of   time.  The  only  explanation  offered  by  the investigating officer  is that on account of riot the Police was busy with law and order problem but that problem did not continue  for   this  length   of  time   and  in  fact  the investigating officer  has failed  to indicate as to why the eye-witnesses though  available had  not been  examined till 29.1.1993. We  are conscious of the fact that 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 credibility  and  assessing  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.   We   would, therefore, apply  the test of stricter scrutiny and consider the value  of their evidence. It may be stated at this stage that even  though the  statement of Vandana Todkar which was treated as FIR did not reveal the name of any accused person and PW  4 -  Mohinder Eknath was the first eye-witness to be examined by  the police  on 17.1.1993 but much prior to that date accused  No. 1,  accused No.  2 and  accused No. 3 were arrested by  the police.  PW 1  - Nitin  Pandurang,  in  his evidence- in-chief  has stated that he could see through the window of  his  house  that  four  persons  were  sprinkling kerosene and  petrol on  the doors and the roof of the house of Rajaram  Bane and those persons are : Sallo, Iqbal, Kalya Kasam and  Langda Bachchan. According to the witness he knew these four  persons from his childhood and he could identify them in court. On being asked to identify them  he correctly identified accused  Sallo and Iqbal. Thus, it appears that a witness who  was acquainted  with the  accused persons right from his  childhood though  named four  of them in the chief but could  identify only  two of them, namely, accused 9 and accused 1.  This itself  throws considerable  doubt  on  the reliability of  the witness.  The witness had further stated that when  he saw  the room  occupied by  his sister Vandana Todkar has  been set  to fire he came out of his room and at that point  of time  he could  see a person called Tubelight Baba who  was  holding  a  chopper  in  his  hand  and  Baba Rickshawala who  was also  holding a chopper in his hand and Musa was  holding a  Sword and  several  other  persons  had gathered there.  In  the  court,  the  witness  pointed  out accused No.  8 as  accused Hayatu and accused No. 7 as Musa. The witness  also identified  accused  Tubelight  Baba.  The witness pointed  out another  accused and  told his  name as Salim Istriwala  but he was actually Shaikh Salim Babamiyan. The  witness   further  stated  that  the  person  by  named Tubelight Baba  was shown to him in the Crime Branch. If the accused has been shown to him in the course of investigation then  the   so-called  identification  in  court  is  of  no consequence and  cannot form the basis of conviction. It is,

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of course,  true  that  accused  Nos.  7  and  8  have  been correctly named  and identified  by the witness in court but not the accused Shaikh Salim Babamiyan as the name indicated by the  accused was Salim Istriwala and there is no material on record  to indicate  that Shaikh Salim Babamiyan was also being called  as Salim  Istriwala. It  further appears  that witness told  in his  evidence that even he did not know the names, but  t he  persons who  were present  at the  time of incident are  also present in the court and then could point out two  persons who  are accused  Nos. 17 and 13. It may be stated that  the witness  having not  known these persons by name and there having not been any test identification prade earlier by  mere pointing  in court  after so many days, the said alleged  identification cannot  be pressed into service by the  prosecution. From  the evidence  of this  witness it further transpires  that after  the fire was extinguished he entered into  the house  of Rajaram  Bane and  took out  the injured persons  at a point of time when the police was also present and the injured persons were carried to the hospital through the  Ambulance and he had accompanied the injured to the hospital  and then he remained in the hospital till next morning and  police had  come to the hospital but the police never  examined   him  or   asked  him  anything  about  the occurrence. It  is really amazing to note that a witness who happens to  be a resident of the locality where the incident occurred and  took  active  part  in  rescuing  the  injured persons from  the burnt  house in the presence of the police and then  accompanied 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. 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. It  is   also revealed from  the evidence of this witness that even though all the  accused persons  were present while the witness was being examined  but he  stated that  accused Lengda Bachchan was not  present in  the court. In his former statement made to the  police he  had omitted  to state several aspects and those omissions have been confronted to the witness to which he denied and the investigating officer also had brought out as to  what the  witness stated  in  his  examination  under Section 161  Cr. P.C. and those material omissions amount to contradiction  and  such  contradiction  makes  the  witness untrustworthy.      According to  PW1 he saw the occurrence from the cement grill of the window of his house but PW6, the draftsman, who has been examined by the prosecution categorically stated in his evidence  that if  a person  stands inside  the house of Nitin Gardi  and tries  to see  through window  of the house then the  house of  Rajaram Bane  will not be visible as the cement grill  in the  house of  Nitin Gardi  has  sufficient thickness and  thereby obstruction is caused. This statement of PW  6 makes  it impossible for PW 1 to see the occurrence from inside  his house  as narrated  by him  in Court.  PW 1 stated in  Court that  police  had  recorded  his  statement immediately after  the incident  but the  said statement has not been  produced  by  the  prosecution.  He  categorically stated in  Court that  he had  stated  to  the  police  when examined on  29th January,  1993, that  he saw Rajaram Bane, Sulochna, Vandana,  Meenakshi and  Laxmibai when  they  were burning with  fire, but  infact, he had not stated so in his earlier statement  to the  police and on being confronted he states that the had not stated so. In Court the witness  had stated that  he found  Rajaram Bane dead when he entered the

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burnt house.  Curiously enough  he had  bot stated so in his statement recorded by the police on 29th January, 1993. Even in his  earlier statement  to the  police he  had  not  even stated about  accused persons  pouring kerosene on the house of Rajaram  Bane and  on being  confronted he states that he does not  know as  to why  it has  not been mentioned in his earlier  statement.   In  view   of  the  aforesaid  glaring infirmities it  would be unwise to rely on this witness and, therefore, his  evidence cannot  be pressed  into service by the prosecution  for bringing  home the  charge against t he accused persons.      PW 2  - Suryakant,  was a resident in the room No. 5 of Gandhi Chawl.  According to  his evidence he was from inside his house  that accused  Sallo was  holding a  plastic  cane containing Kerosene.  But in  the court when he was asked to identify the  said accused Sallo he went and pointed out one of the   accused  persons in  court who  on enquiry revealed that his  name is Khwaja Sattar Shaikh. It is really amazing that a person who claims to be an inhabitant of the locality for long  years and  claims to  have closed association with the accused  persons would  make such a wrong identification and such  wrong identification  totally  makes  the  witness unbelievable.  Such  erroneous  identification  can  be  the result of the fact that he does not know the accused persons at all  or that  he was not present when the occurrence took place. The  witness, of course, correctly identified accused No. 4  Mohd. Yusuf  Gul. He  also stated  that accused  Baba Rickshawala was  armed with  Sallya (Iron  Rod) and on being asked to  identify the  said accused  he pointed  out to one person who  tole his  name as  Mohammed Jafar.  There is  no evidence to  indicate that Mohammed Jafar was  also commonly called  as  Baba  Rickshawala.  Similarly,  he  stated  that accused Tubelight  Baba was  holding a  sword  and  when  he pointed out  the person  to whom  he knew  as Tubelight Baba that person  concerned revealed  his name  as Mustaque Yasin Khan.  Prosecution  has  not  been  able  to  establish  any evidence to indicate that Mustaque Yasin Khan was also being called as  Tubelight Baba. This witness correctly identified accused Iqbal Hussain and accused Musa. But the question for consideration would  be whether any credence can be given to such identification. According to the witness he has been in the locality  since 1972 and, therefore, he knew the accused persons personally.  If that is the correct state of affairs it is  not expected  as to  how he  could commit  mistake in identifying the  accused Sallo  who  was  supposed  to  have played the  key role  of holding  a plastic  cane containing kerosene and  sprinkling kerosene.  Evidence of this witness also indicates that he had been called to the Police Station on several occasions and had been shown the accused persons. If the witness knew the accused persons either by name or by face, question  of police  showing him  the accused  persons becomes irrelevant.  It the witness did not know the accused persons by  name but can only identify from their appearance then a test identification prade 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    prade.   But unfortunately the prosecution did not take any steps in that regard and  no test identification prade had been held. Then again if  the police shows the accused persons in the police lock-up  to  the  identifying  witness  then  the  so-called 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 accused.  It is further revealed from  the evidence  of this  witness that  when the

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accused persons  were  pouring  kerosene  on  the  house  of Rajaram Bane the door was open and Rajaram Bane later closed the door when the witness also closed the door of his house, obviously, referring  to the  period when  the accused came. This on  the face of it is improbable inasmuch as if accused persons are  seen to  be pouring  petrol and kerosene on the roof of  the house,  where people  has taken  shelter nobody would close  the door  so as  to  give  opportunity  to  the accused persons to achieve their goal of burning the persons inside alive.  On the other hand the normal human conduct is that the persons would come out of the house irrespective of the danger  which they  may face  even coming  out.  If  his statement to  the police  recorded under Section 161 Cr.P.C. is compared  with the  statement in  court it  appears  that there has  been material  contradictions and omissions which would make his statement wholly unbelievable and unreliable. If, Gullu  was holding a cane containing kerosene and poured kerosene on  the house  of Rajaram  Bane as  stated  by  the witness in  court there  cannot be  any possible explanation why that did not find place in his earlier statement made to the police.  The said  statement made to the police had been duly confronted and the witness merely admits the fact. Such a glaring  omission in  the earlier statement of the witness in respect  of the  most important aspect of Gullu’s conduct unhesitatingly  points  out  to  the  unreliability  of  the witness. In  the court  the witness had stated that he could see the  incident from  the window of the house where he was staying but  he did not state so while being examined by the Police under  Section 161  Cr.P.C. It is also interesting to note that  while the  witness in his statement under 161 had stated that  Sulochana,  Vandana,  Naina  had  several  burn injuries and Sandeep and Sailesh had minor burn injuries but in that  court he stated that he saw only one injured person - name - Sulochana and on being confronted he stated that he cannot ascribe any reason as to why police had recorded such incorrect statement. While according to this witness accused Sallo (A-9),  Gullu (A-4)  were the persons who were pouring petrol and  kerosene on  the roof of Rajaram Bane’s room but according to  PW 1  accused No. 1, accused No. 17 and Langda Bachchan were pouring petrol and kerosene. According to this witness he  had seen  accused  Baba  Tubelight,  Musa,  Baba Rickshawala sometimes in February 1993 in the Police Station while these  people were  in the  police lock-up but eh case reveals that accused No. 15 Baba Tubelight was arrested only on 23rd  of July, 1993 five months after the witness saw him in  the  police  lock-up.  Similarly,  accused  No.  11  was arrested on  20th April, 1993. No explanation is forthcoming as to  why the  accused persons  had not  been arrested even though they  had been  shown to  the witness  at the  police station much  earlier. Then again Kasim Badshah, accused No. 17 was  shown to  the witness  on 20th of March, 1993 at the Police Station  and the  said accused  was arrested  on 21st April, 1995  and when  the witness  was asked to identify in court he  even could not tell the said person was present in the court.  The witness  in his  evidence has stated that he did not see who actually lit match stick and put on fire the house of  Banne but  later  he  could  only  see  the  fire. According top  the witness on the very night of the incident at Jogeshwari  Police Station  he had  narrated  the  entire incident and the police also reduced the same in writing but the said  statement has  not seen the light in course of the criminal  proceeding.   In  this  state  of  affair,  it  is difficult to  rely on any part of the statement of PW 2, who in our opinion is a wholly unreliable witness.      PW 3, Shivaji Shankar Todkar, is the husband of Vandana

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and his  two sons  are Sandip  and Sailesh.  Vandana died on account  of   burn  injury   bin  course  of  the  incident. Admittedly, he  was a  resident of the locality. PW 1 is the brother of his wife Vandana. He has deposed in court that on the night  of 7th January, 1993 the atmosphere was tense and the  Muslim   people  were   threatening  the   Hindus.   He categorically stated  that he  would not be in a position to tell the  names of  the persons  who were threatening but he can only  identify them  by faces  and when  the witness was asked to  identify the  persons who  were  threatening  from amongst the  persons in  the dock  he  pointed  out  at  two accused persons  who told  their names  as  Mohammed  Iqbal, accused No.  1, and Moosa Yakub, accused No. 7. The value of such identification  will be  discussed at a later stage but he redeeming  feature is  that while  this witness  has been residing in  the locality  for fairly  long period  and  was otherwise known  to the accused persons and according to him several accused  persons were  threatening in  the  locality before the actual incident of setting fire, it is impossible to believe  that even by facial identification he could only point out  two of them. His evidence in court discloses that while he  was there  in his  house with his wife Vandana and the two  sons he  heard a  chaos and  he found  that accused persons  are  dissuading  them  from  sitting  outside,  and therefore, they  all went  inside their respective rooms. At the next  breath he  stated that  his wife took his two sons and all  three went  inside their  respective rooms.  At the next breath  he stated  that his  wife took his two sons and all three  went inside  the room of Rajaram Bane whereas the witness himself  stayed in  the  room  of  Chuahan,  another person in  the locality.  This conduct  on the  part of  the witness is  highly improbable  inasmuch if  he was scared to remain alone  with his  family members in their own room and wanted to  say  inside  the  neighbour’s  room  then  it  is expected from  all  of  them  they  would  remain  together. Further if  he was expecting trouble from accused persons as stated in his evidence it is highly improbable that he would leave his  wife and  children in  one place  and he  himself would stay  in some  other room.  The place  from where  the witness has state to have seen the occurrence is from inside Chuahan’s room  though open  place at  upper portion  of the door and  he is  supposed to  have stood  over a  stool  and witnessed the  occurrence. The  witness in  his evidence has stated that  he does  not know  the names of the persons who were holding  the petrol cane and on being asked to identify them in  court he  stated that he would not be in a position to identify  anybody as  all the persons were having similar appearance. According to this witness after the fire was set in when  police people  arrived at  the place occurrence the accused persons  ran away and at that point of time his wife Vandana and  two sons  Sandip and  Sailesh as  well as Naina Bane came  from the  back side of the house of Rajaram Bane. He then  entered inside  the house  of Rajaram  Bane and saw Sulochana Bane  lying with  burn injuries  on the cot and he also saw  Rajaram Bane  with flames  all over  the body.  He further saw Kamala Batalu and Laxmi Batalu were lying on the ground with  burn injuries  and Minakshi  was lying  in  the bathroom with burn injury. This part of the evidence of this witness is  totally at  variance with the evidence of Nitin, PW 1,  since according to Nitin it is he who accompanied the injured persons  to the  Cooper Hospital by an Ambulance and no police  man travelled  in the  Ambulance along  with  the injured  persons.  He  also  stated  in  his  evidence  that Inspector Mahadik  showed him all the accused persons in the office of  Crime  Branch  at  Boribandar  but  he  does  not

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remember the  name of  any of   these  five persons. Even on being asked  by the  court to identify those five persons he candidly stated  that    he  cannot  identify  anybody  else excepting one  person and  that person  told his  name to be Mohammed Iqbal.  Thus, neither  he know  t he  name of those five accused  persons who were shown to him by the Inspector Mahadik nor  even was able to identify them in the court. It is interesting  to note  that he had deposed in his evidence that when the police was recording the statement of the five accused persons  shown to  him but  his  statement  was  not recorded at  all and it is again two or two and a half month thereafter he  was called  by the  police to  the office  of Crime Branch at Andheri and then his statement was recorded. In the  cross-examination it  has been  elicited  from  this witness that  house of  Rajaram Bane  is  not  visible  from inside his  house. It  was also  elicited that when his wife and children  went to the house of Rajaram Bane being afraid of staying alone in their own house, he went to the house of Chauhan  as   Chauhan  had   invited    him  for  tea.  This explanation offered  by the witness is hardly believable. He had indicated  in his  statement recorded by the police that after he  tried to  extinguish the  fire  he learnt that his wife Vandana  and two  children and  wife  and  daughter  of Batalu were found insider the house of Rajaram Bane, whereas in his  evidence in  court he  gave a  completely  different picture and on being confronted he stated that the statement recorded by  the police  is not  correct. According  to  the witness while  he was  in the Municipal School he was called to the Jogeshwari Police Station by a Police officer and his statement was recorded but infact the 161 statement has been recorded by  the Crime  Branch. In  view  of  the  aforesaid inherent improbabilities  in the statement of the witness in the court  and the  contradictions and omissions witness had made in  his statement recorded by the police no part of his evidence can  be relied  upon and it must be held that he is thoroughly and unreliable witness.      PW  4,   another  eye-witness  to  the  occurrence  was residing in room No. 3 of Gandhi Chawl at the relevant point of time and he was there since 25 years. He deposed in court that on 7th of January, 1993 while he was sitting on the ota in front  of his  house at  9.30 p.m.  15 persons  came  and threatened  them   as  to  why  they  are  sitting  outside. According to the witness the persons were armed with swords, iron rods  and choppers.  He stated  that the names of those persons were  Iqbal  Madar,  Shaikh,  Kaliya  Kasam,  Langda Bachchan,  Sallo   Sattar,  Irfan   Roshan  Barafwala,  Baba Tubelight, Baba Rickshawala, Salim Istriwala, Gullu, Hayatu, Moosa and  Salim Sagir  Khan. But on being asked to identify them in  court, though he could correctly point out some but could not  correctly point  out some others. The person whom he pointed  put as Baba Tubelight told his name as Mushtaque Yasin  Khan;  the  person  whom  he  pointed  out  as  Salim Istriwala told  his name  as  Salim  Babumiyan  Shaikh;  the person whom  he pointed out as Hayatu told his name as Hayat Waris; and  there is  no material  to co-relate  that  these accused persons  had nick  name by  which the  witness  knew them. According  to the  witness the  accused Noor  Mohammad Khan was  spreading petrol  on the  door of Rajaram Bane but said Noor  Mohammad Khan has already been acquitted. He also stated in his evidence that he had been called to the office of the  crime branch  at  Crawford  Market  where  Inspector Mahadik showed  him  four  accused  persons  and  they  were accused Iqbal  Madar Shaikh and accused Gullu (accused No. 1 and 4  respectively). When  he was  asked to  point out  and identify the  other accused  persons he could only point out

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two of them and not others. It is his statement on court, he stated that  he was  called to the office of crime branch at Crawford Market  after one  month where  police  showed  him accused No.  14 -  Tubelight Baba and again about one or one and a  half month after he was called to the office of crime branch at Kandivali where police showed him accused Mohammad Irfan Roshan  Barafwala,  who  has  been  acquitted  by  the learned trial  judge. The witness further states that he was called tot he office of crime branch at Andheri where police showed  him  accused  Salim  Istriwala  and  again  15  days thereafter he was shown someone of the accused persons whose name he does not remembers. 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. In  cross-examination when  this  witness  was confronted with his earlier statement on account of material omissions and variations the witness explained that what has been recorded  in the  earlier statement  is not correct and he does  not know  why the  police has mentioned so. Even in the earlier  statement of this witness recorded on 17.1.1993 he had not stated that the accused persons came to the Chawl at 9.30  p.m. and  went away  and again  came at  11.00 p.m. though in court he has stated so and on being confronted h e replied that police has not erroneously recorded the same in the earlier statement. While other witnesses had stated that some of  the accused  persons were  sprinkling kerosene  and petrol on  the roof  of Rajaram  Bane’s house  this  witness introduced a  story that  kerosene cloth  balls  were  being thrown on  the door and ota of Rajaram Bane’s house.  In his statement  to  the  police  recorded  on  17.1.1993  he  had categorically stated  that when injured persons were brought outside the house of Rajaram Bane for the first time he came know that  his sister  Minakshi was also inside the house of Rajaram  Bane   whereas  in   his  evidence   in  court   he categorically stated  that  he  had  not  learnt  about  the presence of  his sister  earlier and while extinguishing the fire he  knew the  same and  on being  confronted  with  the earlier statement  recorded by  the police he merely replied that the  statement recorded  by the police is incorrect. On being cross-examined  as to why he has not stated to anybody else that he saw the accused persons while putting the house to fire,  he answered  that he  was  mentally  confused  and therefore did not approach anybody and even did not tell the police even  though police  reached the  spot of  occurrence soonafter. This  witness in  court  had  wrongly  identified accused No.  2 by  saying his  name as Salim Khan Shabir. He was not  able to  identify accused  No. 1  and  pointed  out towards accused  No. 5  on being  asked to  identify accused No.1. According  to  him  accused  Noor  Mohammad  Khan  was spreading petrol  from cane  and said Noor Mohammad Khan has been  acquitted.   In  view   of  the   aforesaid   inherent inconsistency and improbability in his evidence in court and in view  of the  fact that  even those  accused persons  who could be correctly identified by the witness have been shown to him  by the  police  on  different  occasions  while  the accused persons  were in  the police  lock-up and in view of the fact  that he  has not been able to identify many of the accused persons  even though he claims to be residing in the locality for  25 years  and for  other improbability  in his evidence as  discussed above  it would  be highly  unsafe to rely on  his evidence  and in  our  considered  opinion  the witness must be held to be a wholly unreliable witness.      The next  eye-witness is  PW -9  , Laxmibai  Gardi, who

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happens to  be the  mother of  Nitin  as  well  as  deceased Vandana. She  frankly stated  in court that she would not be able to  identify any of the persons who were threatening in the locality much prior to the incident. She stated in court that she had been called tot he Andheri Police Station where she could  identify tow  of the  accused persons  and one of them was  Jada Karim but she was not able to identify him in the  court.   According  to  her  evidence  though  she  had identified 4  of  the  accused  persons  at  Borivli  Police Station but  neither she  can tell  their names  nor can she tell the  court as  to whether  those  accused  persons  are present in  the court.  In her  evidence in court she stated that these  accused persons  were not threatening the Hindus during one  month prior to the incident which is at variance with the  evidence of  all other  witnesses. She  also  like other eye-witnesses  stated that the crime branch police had shown her  3 or 4 accused persons on 22nd of March, 1997 but she was  neither in a position to identify them even by face nor could  she tell  their names.  She deposed in court that when the  miscreants set  fire to  the house of Rajaram Bane her daughter Vandana was inside the house and she could hear her voice who was shouting and calling her to save her. This statement can  hardly be  believed in  the scenario in which the room  in question is alleged to have been set afire. She also stated in her evidence that her daughter along with her sons climbed  up on  the roof  and jumped on the backside on the ground at the back side of the house of Rajaram Bane. We fail to  understand how the witness could state so, when she was in  her house.  Coming to  the identity  of the  accused persons the  witness candidly  stated  in  court  "I  cannot identify the  persons who are present or were present at the time of  incident in  the gang  of 20 to 22 persons. Today I cannot identify  the persons  who were threatening for about one month  prior to the incident."  According to the witness though she  had identified earlier accused Jada Karim in the office of the police at Andheri but in court she will not be in a  position to  identify the  said Jada  Karim  in.  This statement  itself   makes  her   wholly  unreliable  witness inasmuch as  if she  knew Jada  Karim and  could identify on earlier occasion  there was  nor reason why she was not in a position to  identify the  accused in  court. Then again the hole thorough  which she  stated to have seen the occurrence was a  cement grill  window and the electric meter board had been installed right on the front adjacent to the window and it would  be difficult for a person to see the occurrence in the house  of Rajaram Bane through that window. She had been confronted  with   her  statement   recorded  on   different occasions wherein  there had been material omissions and she only states  that the  earlier statement  is not correct and she has  not stated  so before the police. She admitted that she learnt  for the first time when Vandana and her tow sons cam before  her after  the fire  took place that Vandana was inside the house of Rajaram Bane even though earlier she had stated that  she could  hear her cries from inside the house of Rajaram  Bane. On  the aforesaid premises the evidence of this witness  does not  inspire any confidence and we do not think it is safe to rely on her testimony for convicting any of the accused persons.      The only  other witness on which the prosecution relied upon to bring home the charge against the accused persons is Krishna Harishchandra Kate, PW -10, who was also residing in Gandhi Chawl.  He is  brother of  PW 2 and his statement was recorded by  the police  for  the  first  time  on  29th  of January, 1993.  He had  stated in  his evidence  that he was called to the office of the crime branch where police showed

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him 3  to 4 accused persons but he neither known their names nor would  be in  a position  to identify  them in the court even by  face. It is his further evidence that he was called upon by  the police  15 days  thereafter and  he  was  shown another accused  person but he does not remember the name of that accused  person nor  in a  position to  identify him in court. He  also stated  that he  was called  to  the  Police Station at Kandivli on 22.4.1993 where police showed him one accused but he does not know the name of that accused person nor he can identify the same by face. Though in the Court he had stated  that  between  6th  December,  1992  to  7th  of January, 1993  the goondas  of the locality were threatening them but  he had not stated so in his earlier statement made before the  police. In  the court he had also stated that he had never  made any complaint on that score before. On being cross-examined he candidly admitted that he could not insert his head through the grill to see what is happening outside, and therefore,  he climbed on a loft and from there he could see  the  incident  through  the  window.  But  neither  the investigating officer  nor any other person has stated about the existence of such a loft. It was elicited  in his cross- examination that  he was  sitting inside  the house from the time when  the accused  started pouring  kerosene  till  the accused went away is not correct. A scrutiny of his evidence clearly indicates  that it bristles with inconsistencies and improbabilities and  the witness  has contradicted  from his statement made  to the  police which  makes  him  thoroughly unreliable and  it is difficult for us to place any reliance on the testimony of such witness.      Mr. Nargolkar  the learned senior counsel appearing for the State  of Maharashtra, however, contended that no doubt, there  has  been  several  omissions  on  the  part  of  the witnesses in  their statement  under 161 but those omissions would not  impeach their evidence, in any manner, so far as, the basic  prosecution case  is concerned and the case being one  under  TADA  and  the  circumstances  under  which  the witnesses have  given their  evidence, the  court  would  be justified in  separating the  chaff from  the grain  and  on accepting the  grain can  base conviction  in  view  of  the corroboration it  gets from  other evidence. This submission of the  learned counsel  for the  respondent suffers  from a misgiving as law does not make any distinction in the matter of appreciation  of evidence  in a  case under TADA or under normal criminal law. This question had been answered by this Court in a case in somewhat similar circumstances in DILAWAR HUSSAIN v.  THE STATE  OF GUJARAT  & ANR.  [JT 1990 (4) S.C. 282], wherein it has been observed :      Misgiving,  also,  prevailed  about      appreciation of  evidence.  Without      adverting to submissions suffice it      to  mention   that  credibility  of      witnesses has  to be  measured with      same yardstick, whether , it i s an      ordinary crime or a crime emanating      due to  communal frenzy.  Law  does      not make  any distinction either in      leading  of   evidence  or  in  its      assessment.   Rule is  one and only      one,  namely,  if  depositions  are      honest  and   true.   Whether   the      witnesses, who  claim to  have seen      the   incident    in   this   case,      withstand this test is the issue.      We are  quite aware  of the principle that in a country like India where it is difficult to find witness who has not

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made any  embellishment or  exaggeration, and  therefore, in such case  Court would  be justified in separating the chaff from the  grain an  d 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 arise. Then again  when all  the eye-witnesses suffer from the same infirmities as  has been  discussed by  us, 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 as has been assessed by  us, the  question  of  corroboration  does  not arise. It  is no  doubt true that the incident with which we are concerned in ‘the present case was a ghastly one and one account of  communal frenzy  several people belonging to one community were  burnt 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 conjectures and hypothesis.      As we  have discussed  earlier the investigating agency merely on  suspicion have  roped-in the persons belonging to the other  community who  were residing  in the locality and then somehow  trying to  get  them  identified  through  the witnesses who  belong to the community from where the people were burnt alive and the learned Designated Court was swayed away   by the so-called evidence of identification and based the  conviction.   We  have  already  discussed  as  to  how unreliable the evidence of these eye-witnesses and not court on  the   basis  of   such  unreliable   evidence  can  base conviction, howsoever,  ghastly the  crime may  be.  In  the aforesaid premises  we set aside the conviction and sentence passed by  the learned Designated Court under the provisions of TADA  as well  as under  different Sections of the Indian Penal Code  and direct that the appellants be set at liberty forthwith unless they are required in any other case.