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CASE NO.: Appeal (crl.)  734 of 2003

PETITIONER: Nazir Khan and Ors.                              

RESPONDENT: Vs. State of Delhi                                           

DATE OF JUDGMENT: 22/08/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

With

Death Reference No.(Crl.) No.1 of 2003 AND CRIMINAL APPEAL NO.......(D.14990/2002)

ARIJIT PASAYAT,J

       Terrorists have no religion, no concept of communal or     social  harmony and value for human life.  Secularism, which is one of the   greats attributes of  the Indian Constitution,  is  viewed differently  by some people. Communal harmony is not what they want. No religion  propagates terrorism or hatred. Love for all is the basic foundation on  which almost all religions are founded. Unfortunately, some fanatics  who have distorted views of religion spread messages of terror and  hatred. They do not understand or realise the amount of damage they do  to the society and as a result of these fanatic acts of misguided  people innocent lives are lost, distrust in the minds of communities  replaces love and affection for others. Neighbours belonging to  different communities who have lived like brothers for ages start  viewing each other with suspicion and hatred. Their compassion is first  replaced by  a sense of diabolic designs. The object of these misguided  people- the terrorists - seems to be to spread a message of terror and  strike fear in the hearts of the citizens. The present case amply  reflects the designs of some people to perpetrate such acts. The temple  of democracy in the country - the Parliament - did not also escape the  wrath of such people. Whoever did it, wanted to disturb the equilibrium  in the minds of the citizens.  The millions of peace loving citizens in  the country are threatened to be put on a ransom by a group of people.   

The background scenario with which the case at hand  is concerned  reveals the macabre  designs  of a group of such people. The Kingpin of  the whole case is a person called Ahmed Umar Sayeed Sheikh (described  shortly as ’Umar Sheikh’) a British national and trained militant who  allegedly received training in Afghanistan and other places.    Prosecution version as unfolded during trial which led to  conviction of the present appellants for offences punishable under  Sections 364A, 121A, 122, 124A read with Section 120B of the Indian  Penal Code, 1860 (for short the ’IPC’) and Sections 3 and 4 of the  Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short  the ’TADA Act’), and Section 14 of the Foreigners Act, 1946 (in short  ’Foreigners Act’) is as under:

       There were originally 9 accused persons who were tried in the

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Sessions Case No.43/2001 by the learned Designated Court, TADA, New  Delhi. Along with the accused appellants three other persons faced  trial. Two of them namely, Haji Shamin and Mohd. Yamin have been  acquitted. Interestingly, before completion of trial, Umar Sheikh was  allowed to leave the country along with other militants in exchange of  passengers who had been made hostages in Indian Air Lines hijacked  flight AI-814. . In other words, the mastermind of the whole conspiracy  with which the present case is involved escaped nets of law. The  legitimacy of such action is not the subject matter of consideration in  these cases, though it has raised many eyebrows.  Interestingly this  plea was raised by the appellants who submitted that they have become  victims of unintended circumstance, while the mastermind and kingpin  has gone out mocking of the security network in the country, and they  are facing the blunt. This case does not seek to find out an answer to  such questions and therefore we are not dealing with them.  

       Nazir Khan (A-1), Abdul Rahim (A-3) and Naser Mohmood Sodozey (A- 8) who were Pakistani nationals have been convicted and sentenced to  suffer death sentence for offence punishable under Section 364A  IPC  read with Section 120B IPC. For the said offences, Narul Amin (A-2),  Mohd. Sayeed (A-4) and Mohmood (A-7) have been awarded life sentence.  All the accused appellants were subjected to a fine of Rs.50,000/- each  under Section 364A IPC and in default to undergo RI for three years  each. All the accused persons were sentenced under Section 120B read  with Sections 364, and 364A IPC to life imprisonment and  each one  of  them was sentenced for the offence under Sections 121A, 122 and 124A  IPC and also to pay a fine of Rs.10,000/- each. A-1, A-3 and A-8 were  sentenced to death under Section 3(2)(1) of the TADA Act and a fine of  Rs.50,0000/- each. For the said offence, others were convicted and  sentenced to life imprisonment and a fine of Rs.50,000/- each. A-2 and  A-7 were sentenced to 10 years imprisonment for harbouring and  concealing the terrorists under Section 3(4) of the TADA Act. All the  six accused persons were found guilty for the offence punishable under  Sections 3(1) and 3(5) of the TADA Act. Nazir Khan (A-1) and Naser  Mohmood Sodozey (A-8) were also convicted under Section 14 of the  Foreigners Act for having entered India without valid permission and  valid documents. They were each to undergo 5 years rigorous  imprisonment and a fine of Rs.25,000/-each. Since the death sentence  awarded to the three accused appellants is subject to confirmation by  this Court, Death Reference No.1 of 2003 has been made to this Court.

       To continue the narration of facts as presented by the  prosecution, Umar Sheikh visited several places in Pakistan and met  Abdul Rauf and other militants associated with Harkat-ul-Mujahiddin (in  short ’HUM’). He came in contact with other militant organizations like  Jamet-e-Islamic and Al-e-Hadees. He was given a mission to perpetrate  terrorist activities in India. He obtained visa for India and  was  given instructions to reach India and contact other militants. He was  advised to organize kidnapping of foreign nationals visiting India and  to pressurize Indian Government to release some dreaded militants  confined in jails of India. He met some people in Islamabad to get  instructions. He came to Delhi in 1994. He was apprised of the militant  network already working and was asked to contact Mohmood (A-7) a  Mauzzin of Jama Masjid, Delhi who was to introduce another militant  named Farooque. He went to Jama Masjid to meet Farooque. He met one  Yusuf @ Sultan @ Mehboob at Jama Masjid and was told that one Shahji  was the main architect of the entire operation.

       Umar Sheikh was put up in a hotel named Ishak Guest House in Jama  Masjid Area on 27th July, 1994. Thereafter, he was contacted by other  militants and he moved about in Delhi, Ghaziabad, Saharanpur etc.  A  number of hide outs were prepared in these areas by either purchasing  properties or by taking rooms on rent. Some of these hide outs were in  Nizamuddin, Sarai Kale Khan, Jama Masjid area, Suaiwalan area, Turkman  Gate area of Delhi. Some other hideouts were at Ghaziabad and

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Saharanpur. Shahji arranged arms, ammunition and money.  Since Umar  Sheikh was London born and had studied there, his accent and command of  English were used to develop contacts with and seek friendship with   different foreigners, who were to be subsequently kidnapped.  He did so  on three occasions i.e. 29.9.1994, 16.10.1994 and 20.10.1994. A Maruti  Van bearing registration No. DID 9016 was purchased from Karol Bagh by  Abdul Rahim (A-3). British and American nationals were taken to the  hideouts and were kept as hostages. However, on one occasion one  foreign national managed to escape. After these nationals were  kidnapped they were told that they have been taken as hostages and that  they would face death if they try to escape. The hideouts were at  Saharanpur, Ghaziabad where these persons were kept confined. It was a  stroke of good luck that while on a routine check around in Ghaziabad,  police officials became suspicious and struck gold while trying to find  out as to why a person was suspiciously running away when asked to  stop. After kidnapping the four nationals their photographs were taken  by the militants  and along with the photographs demand letters were  sent to British Embassy and American Embassy,  and to various news  agencies (in India and abroad), newspapers and the demand was that the  Government  of India should release 10 hard core terrorists from jails.  Copies of the demands were faxed to President, Prime Minister and other  dignitaries. Three days’ time was given for meeting the demands and the  threat was given that in case the demands were not met, the kidnapped  foreigners would be killed. As indicated above, it was just a fortunate  and providential co-incidence that   led the revelation of the  conspiracy hatched. On 31.10.1994 a police party headed by Station  Officer, Satya Dev Yadav of Police Station, Mussourie near Ghaziabad,  had gone to Nai Basti, Mussourie in connection with the investigation  of a theft case. Since they found a person running suspiciously they  entered the house from which the person had jumped out and ran away.  They found the door bolted from inside and when nobody responded, they  broke open the door and entered the house. An American national was  found chained inside the room with a spike. He was unchained and  released and on enquiry he disclosed how he had been abducted from  Delhi. From there he was brought to the police station. His statement  was recorded and FIR under different provisions of IPC and TADA Act was  recorded. On the basis of his information, police officials were posted  near the house from where he had been rescued expecting that some  members of the militants organizations may visit the place being  unaware of the police action. Constables Sompal and Jagpal Singh saw  three persons approaching the  house of Sufi Anwar where the captive  was held. When they came near the house, constables  challenged them  and the three persons attacked the constables by raising slogans and  they wanted to kill the constables. One of the constables was assaulted  by two of them, while another constable was over-powered by the third  terrorist. One of the terrorists fired at the constable concerned. Two  of the terrorists fled away after firing and the third one was arrested  after he suffered a bullet injury. He was the main architect of the  entire operation i.e. Umar Sheikh. Another case was registered and the   police became suspicious that what they have found out is the tip of  the iceberg and laid trap. Ultimately, the Maruti van DID 9016 was  found in the possession of Abdul Rahim (A-3) and Mohd. Sayeed (A-4).  The police had become aware of vehicle’s number during interrogation of  Umar Sheikh.  The van was surrounded while it was being driven by Mohd.  Sayeed (A-4). He tried to run away while police officials tried to  apprehend him. However, the van was stopped and accused persons were  apprehended. On interrogation, all the accused persons claimed to be  the members of Harkut-ul-Ansar (in short ’HUA’) a terrorist  organisation. During interrogation police learnt about kidnapping and  abduction of three British nationals who were kept as hostages in a  house at Saharanpur. Immediately, action was  taken and the house where  the three British nationals were confined was surrounded. By throwing  bombs and taking advantage of the darkness some of the terrorists  managed to escape, but one of the terrorists was killed in an  encounter. Unfortunately, two police officials sacrificed their lives

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while trying to combat with the  terrorists. The  three British  nationals were abducted from Connaught Place in Delhi and were found to  be chained when they were rescued. They were brought to Delhi. Arms and  ammunitions of huge quantity were seized from the house where they were  confined. The Police swung into action. On interrogation, the details  of hide outs were found out and on raiding them huge quantity of arms  and ammunitions including AK-47 rifle were seized. The names of the two  persons involved in the operation i.e. Mohmood @Ayub (A-7) and Nasar  Mohmood (A-8) surfaced during investigation. Rest were declared  proclaimed offenders as they could not be arrested in spite of best  efforts. However, three of the proclaimed offenders were later  arrested. A-2 was arrested by Assam Police while A-7 was arrested by  Jammu and Kashmir Police and A-8 was arrested by Srinagar Police.  During investigation, it came to light that not only the effort was of  kidnapping the foreigners who had already kept as hostages, but  intention  was to kidnap many more so that greater pressure can be used  for getting release of 10 hard core terrorists who were the members of  HUA.  

       Since accused  Umar Sheikh was released from Tihar Jail along  with other militants no charge was framed against him but charges were  framed against rest of the accused persons under various provisions.  

       During investigation, the statements of the accused persons were  recorded in terms of Section 15 of the TADA Act. Though statements of  foreign nationals had been recorded under Section 164 of the Code of  Criminal Procedure, 1973 (for short the ’Code’) it was not possible to  secure their presence as they had left India and gone back to their  respective countries. They did not choose to come to India. However,  placing reliance on the prosecution version substantiated to a great  extent by the confessional statements recorded under Section 15 of the  TADA Act, and amongst other corroboration provided by recoveries of  arms and ammunitions, the accused appellants were found guilty and  sentenced as afore-mentioned.

       In support of the appeal filed by the accused appellants, Mr.  M.N. Krishnamani, learned senior counsel submitted that use of the  statements recorded under Section 15 of the TADA Act was impermissible  as the statements cannot be called voluntary statements, free from any  coercion or threat or undue influence.  It was further submitted that  even if the confessional statements are taken into account, they do not  in any manner establish offences for which the accused appellants have  been convicted. Accepting the prosecution version, based on the  confessional statements, A-1 can at the most be said to have been  involved in kidnapping but he never threatened to kill the captive.  Similarly, so far as A-2 is concerned, he was involved in the  kidnapping as he was not aware of it when it was done. So he was not  involved in the conspiracy. Though A-3 can be said to be a part of the  conspiracy and kidnapping, there was no material to fasten A-4 who is  only a driver of the vehicle with any offence. At the most, he can be  guilty of not disclosing the factum of kidnapping under Section 368 IPC  and, therefore, there was no scope for applying Section 120B along with  other provisions to convict the said accused appellant. A-7 was not  aware of the conspiracy and was not involved in any kidnapping. A-8 at  the most can be guilty of conspiracy and nothing else. In any event,  the confessional statements  would not entail  conviction under Section  364A read with Section 120B  IPC. The confessional statements in their  entirety  may come to the extent of sharing that A-1 and A-3 were  involved in conspiracy and kidnapping while others were not so  involved. In any event, Umar Sheikh  was the person who is stated to be  head of the whole mission, and the present appellants cannot be held to  be guilty.  The ingredients of Section 3(2)(i), it was submitted are  non-existent and therefore the conviction under these provisions is  unfounded. All the accused are small pawn in a big plot and do not  deserve the harsh sentence imposed. More so when some of the accused

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have been given life sentence for similar offences, no differential  treatment to award death sentence in case of three can be countenanced.  The alleged kidnapped persons have not appeared as witnesses and  statements made by them during investigation cannot be utilized.  

Rebutting the submissions, Mr. K.K. Sood, learned Additional  Solicitor General submitted that the evidence, materials and  circumstances are sufficient to establish involvement of each of the  accused. There has been no retraction from the confessional statements,  the procedural requirements have been meticulously followed, the  statements were voluntary and at no point of time any objection was  made relating to recording of the confessional statements. The  recoveries of arms and ammunitions provide ample substantiation to the  confessions made. Even though  in law there is no requirement for any  corroboration, there is ample corroboration in the case at hand. There  is no question of segregating the acts so far as offence of criminal  conspiracy is concerned. Even if a person withdraws after participating  in a conspiracy for some time, that does not dilute the factum of  conspiracy. With reference to the definition of criminal conspiracy in  Section 120A in particular in Explanation appended to the main  provision, it is submitted that whether the illegal act is the ultimate  object of such agreement or is merely incidental to that object is  immaterial. The offence is made under the illustration appended to  Section 10 of the Indian Evidence Act, 1872 (in short the ’Evidence  Act’) and even if all the conspirators are ignorant of all the  decisions and are strangers, that is really of no consequence. The  object and purpose of the conspiracy was clear and the manner of  organizing the activities to achieve the ultimate objective has been  amply established. Merely because the persons who were kidnapped have  not appeared at trial to give evidence  on account of unavoidable  circumstances that does not weaken the quality/quantity of evidence  placed on record. The position where they were placed certainly would  have left a bad taste in the mouth, and no adverse inference can be  drawn because of their non-appearance due to their leaving for their  homes.  

The rival stands need careful consideration.  

In Hitendra Vishnu Thakur and Ors. vs. State of Maharashtra and  Ors. (1994 (4) SCC 602), this Court observed that:  "the legal position remains unaltered that the  crucial postulate for judging whether the  offence is a terrorist act falling under TADA  or not is whether it was done with the intent  to overawe the Government as by law established  or to strike terror in the people etc. A  ’terrorist’ activity does not merely arise by  causing disturbance of law and order or of  public order.  The fall out of the intended  activity is to be one that it travels beyond  the capacity of the ordinary law enforcement  agencies to tackle it under the ordinary penal  law. It is in essence a deliberate and  systematic use of coercive intimidation".  

As was noted in the said case, it is a common feature that  hardened criminals today take advantage of the situation and by wearing  the cloak of terrorism, aim to achieve acceptability and respectability  in the society; because in different parts of the country affected by  militancy, a terrorist is projected as a hero by a group and often even  by many misguided youth. As noted at the outset, it is not possible to  precisely define "terrorism".  Finding a definition of "terrorism" has  haunted countries for decades. A first attempt to arrive at an

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internationally acceptable definition was made under the League of  Nations, but the convention drafted in 1937 never came into existence.  The UN Member States still have no agreed-upon definition. Terminology  consensus would, however, be necessary for a single comprehensive  convention on terrorism, which some countries favour in place of the  present 12 piecemeal conventions and protocols. The lack of agreement  on a definition of terrorism has been a major obstacle to meaningful  international countermeasures. Cynics have often commented that one  State’s "terrorist" is another State’s "freedom fighter". If terrorism  is defined strictly in terms of attacks on non-military targets, a  number of attacks on military installations and soldiers’ residences  could not be included in the statistics. In order to cut through the  Gordian definitional knot, terrorism expert A. Schmid suggested in 1992  in a report for the then UN Crime Branch that it might be a good idea  to take the existing consensus on what constitutes a "war crime" as a  point of departure. If the core of war crimes - deliberate attacks on  civilians, hostage taking and the killing of prisoners - is extended to  peacetime, we could simply define acts of terrorism as "peacetime  equivalents of war crimes".  

League of Nations Convention (1937) :

"All criminal acts directed against a State  along with intended or calculated to create a  statute of terror in the minds of particular  persons or a group of persons or the general  public".

(GA Res. 51/210 Measures to eliminate international terrorism)

1. Strongly condemns all acts, methods and  practices of terrorism as criminal and  unjustifiable, wherever and by whomsoever  committed;

2.      Reiterates that criminal acts intended or  calculated to provoke a state of terror in the  general public, a group of persons or  particular persons for political purposes are  in any circumstances unjustifiable, whatever  the considerations of a political,  philosophical, ideological, racial, ethnic,  religious or other nature that may be invoked  to justify them".

3.      Short legal definition proposed by A.P.  Schmid to United Nations Crime Branch (1992) :

Act of Terrorism = Peacetime Equivalent of War  Crime

4.      Academic Consensus Definition:

"Terrorism is an anxiety-inspiring of repeated  violent action, employed by (semi-) clandestine  individual, group or state actors, for  idiosyncratic, criminal or political reasons,  whereby - in contrast to assassination - the  direct targets of violence are not the main  targets.  The immediate human victims of  violence are generally chosen randomly (targets  of opportunity) or selectively (representative  or symbolic targets) from a target population,  and serve as message generators.  Threat- and

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violence-based communication processes between  terrorist (organization), (imperiled) victims,  and main targets are used to manipulate the  main target (audience (s)), turning it into a  target of terror, a target of demands, or a  target of attention, depending on whether  intimidation, coercion, or propaganda is  primarily sought" (Schmid, 1988).

Definitions:  

Terrorism by nature is difficult to define.  Acts of terrorism  conjure emotional responses in the victims (those hurt by the violence  and those affected by the fear) as well as in the practitioners.  Even  the U.S. government cannot agree on one single definition of uniform  and universal application.  The old adage, "One man’s terrorist is  another man’s freedom fighter" is still alive and well.  Listed below  are several definitions of terrorism used by the Federal Bureau of  Investigation.

Terrorism is the use or threatened use of force  designed to bring about political change.  -  Brian Jenkins

Terrorism constitutes the illegitimate use of  force to achieve a political objective when  innocent people are targeted. - Walter Laqueur.

Terrorism is the premeditated, deliberate,  systematic murder, mayhem, and threatening of  the innocent to create fear and intimidation in  order to gain a political or tactical  advantage, usually to influence an audience. -  James M. Poland

Terrorism is the unlawful use or threat of  violence against persons or property to further  political or social objectives.  It is usually  intended to intimidate or coerce a government,  individuals or groups, or to modify their  behavior or politics. - Vice-President’s Task  Force, 1986

Terrorism is the unlawful use of force or  violence against persons or property to  intimidate or coerce a government, the civilian  population, or any segment thereof, in  furtherance of political or social objectives.  - FBI Definition

No doubt in the case of conspiracy there cannot be any direct evidence.  The ingredients of offence are that there should be an agreement  between persons who are alleged to conspire and the said agreement  should be for doing an illegal act or for doing illegal means an act  which itself may not be illegal. Therefore, the essence of criminal  conspiracy is an agreement to do an illegal act and such an agreement  can be proved either by direct evidence or by circumstantial evidence  or by both, and it is a matter of common experience that direct  evidence to prove conspiracy is rarely available. Therefore, the  circumstances proved before, during and after the occurrence have to be  considered to decide about the complicity of the accused.

In Halsbury’s Laws of England (vide 4th Ed. Vol.11, page 44, page

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58), the English Law as to conspiracy has been stated thus:

"Conspiracy consists in the agreement of two or  more persons to do an unlawful act, or to do a  lawful act by unlawful means. It is an  indictable offence at common law, the  punishment for which is imprisonment or fine or  both in the discretion of the Court.  

The essence of the offence of conspiracy is the  fact of combination by agreement. The agreement  may be express or implied, or in part express  and in part implied. The conspiracy arises and  the offence is committed as soon as the  agreement is made; and the offence continues to  be committed so long as the combination  persists, that is until the conspiratorial  agreement is terminated by completion of its  performance or by abandonment or frustration or  however, it may be. The actus rues in a  conspiracy is the agreement to execute the  illegal conduct, not the execution of it. It is  not enough that two or more persons pursued the  same unlawful object at the same time or in the  same place; it is necessary to show a meeting  of minds, a consensus to effect an unlawful  purpose. It is not, however, necessary that  each conspirator should have been in  communication with every other."

       There is no difference between the mode of proof of the offence  of conspiracy and that of any other offence, it can be established by  direct or circumstantial evidence. (See: Bhagwan Swarup Lal Bishan Lal  etc.etc vs. State of Maharashtra [AIR 1965 SC 682 at p.686])

       Privacy and secrecy are more characteristics of a conspiracy,  than of a loud discussion in an elevated place open to public view.  Direct evidence in proof of a conspiracy is seldom available, offence  of conspiracy can be proved by either direct or circumstantial  evidence. It is not always possible to give affirmative evidence about  the date of the formation of the criminal conspiracy, about the persons  who took part in the formation of the conspiracy, about the object,  which the objectors set before themselves as the object of conspiracy,  and about the manner in which the object of conspiracy is to be carried  out, all this is necessarily a matter of inference.  

       The provisions of Section 120-A and 120-B, IPC have brought the  law of conspiracy in India in line with the English Law by making the  overt act unessential when  the conspiracy is to commit any punishable  offence. The English Law on this matter is well settled. Russell on  crime (12 Ed.Vol.I, p.202) may be usefully noted-

       "The gist of the offence of conspiracy  then lies, not in doing the act, or effecting  the purpose for which the conspiracy is formed,  nor in attempting to do them, nor in inciting  others to do them, but in the forming of the  scheme or agreement between the parties,  agreement is essential. Mere knowledge, or even  discussion, of the plan is not, per se,  enough."

Glanville Williams in the "Criminal Law" (Second Ed. P. 382) states-

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"The question arose in an lowa case, but it was  discussed in terms of conspiracy rather than of  accessoryship. D, who had a grievance against  P, told E that if he would whip P someone would  pay his fine. E replied that he did not want  anyone to pay his fine, that he had a grievance  of his own against P and that he would whip him  at the first opportunity. E whipped P. D was  acquitted of conspiracy because there was no  agreement for ’concert of action’, no agreement  to ’co-operate’.  

Coleridge, J. while summing up the case to Jury in Regina v. Murphy  [(1837) 173 ER 502 at p. 508] states:          "I am bound to tell you, that although  the common design is the root of the charge, it  is not necessary to prove that these two  parties came together and actually agreed in  terms to have this common design and to pursue  it by common means, and so to carry it into  execution. This is not necessary, because in  many cases of the most clearly established  conspiracies there are no means of proving any  such thing and neither law nor common sense  requires that it should be proved. If you find  that these two persons pursued by their acts  the same object, often by the same means, one  performing one part of an act, so as to  complete it, with a view to the attainment of  the object which they were pursuing, you will  be at liberty to draw the conclusion that they  have been engaged in a conspiracy to effect  that object. The question you have to ask  yourselves is, had they this common design, and  did they pursue it by these common means the  design being unlawful."  

       As noted above, the essential ingredient of the offence of  criminal conspiracy is the agreement to commit an offence. In a case  where the agreement is for accomplishment of an act which by itself  constitutes an offence, then in that event no overt act is necessary to  be proved by the prosecution because in such a situation, criminal  conspiracy is established by proving such an agreement. Where the  conspiracy alleged is with regard to commission of a serious crime of  the nature as contemplated in Section 120B read with the proviso to  sub-section (2) of Section 120A, then in that event mere proof of an  agreement between the accused for commission of such a crime alone is  enough to bring about a conviction under Section 120B and the proof of  any overt act by the accused or by any one of them would not be  necessary. The provisions, in such a situation, do not require that  each and every person who is a party to the conspiracy must do some  overt act towards the fulfillment of the object of conspiracy, the  essential ingredient being an agreement between the conspirators to  commit the crime and if these requirements and ingredients are  established, the act would fall within the trapping of the provisions  contained in section 120B [See: S.C. Bahri v. State of Bihar (AIR 1994  SC 2420)]

The conspiracies are not hatched in open, by their nature, they  are secretly planned, they can be proved even by circumstantial  evidence, the lack of direct evidence relating to conspiracy has no

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consequence. [See: E.K. Chandrasenan v. State of Kerala (AIR 1995 SC  1066)].  

       In Kehar Singh and Ors. v. The State (Delhi Administration) [AIR  1988 SC 1883 at p. 1954], this Court observed:

       "Generally, a conspiracy is hatched in  secrecy and it may be difficult to adduce  direct evidence of the same. The prosecution  will often rely on evidence of acts of various  parties to infer that they were done in  reference to their common intention. The  prosecution will also more often rely upon  circumstantial evidence. The conspiracy can be  undoubtedly proved by such evidence direct or  circumstantial. But the court must enquire  whether the two persons are independently  pursuing the same end or they have come  together to the pursuit of the unlawful object.  The former does not render them conspirators,  but the latter does. It is, however, essential  that the offence of conspiracy required some  kind of physical manifestation of agreement.  The express agreement, however, need not be  proved. Nor actual meeting of the two persons  is necessary. Nor it is necessary to prove the  actual words of communication. The evidence as  to transmission of thoughts sharing the  unlawful design may be sufficient. Conspiracy  can be proved by circumstances and other  materials. (See: State of Bihar v. Paramhans  [1986 Pat LJR 688]). To establish a charge of  conspiracy knowledge about indulgence in either  an illegal act or a legal act by illegal means  is necessary. In some cases, intent of unlawful  use being made of the goods or services in  question may be inferred from the knowledge  itself. This apart, the prosecution has not to  establish that a particular unlawful use was  intended, so long as the goods or service in  question could not be put to any lawful use.  Finally, when the ultimate offence consists of  a chain of actions, it would not be necessary  for the prosecution to establish, to bring home  the charge of conspiracy, that each of the  conspirators had the knowledge of what the  collaborator would do so, so long as it is  known that the collaborator would put the goods  or service to an unlawful use. (See: State of  Maharashtra v. Som Nath Thapa [JT 1996 (4) SC  615])

We may usefully refer to Ajay Agarwal vs. Union of India and Ors.  (JT 1993 (3) SC 203). It was held:  

    x  x       x       x       x       x

"8.....It is not necessary that each  conspirator must know all the details of the  scheme nor be a participant at every stage.  It  is necessary that they should agree for design  or object of the conspiracy.  Conspiracy is  conceived as having three elements: (1)  agreement; (2) between two or more persons by

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whom the agreement is effected; and (3) a  criminal object, which may be either the  ultimate aim of the agreement, or may  constitute the means, or one of the means by  which that aim is to be accomplished.  It is  immaterial whether this is found in the  ultimate objects.  The common law definition of  ’criminal conspiracy’ was stated first by Lord  Denman in Jones’ case that an indictment for  conspiracy must "charge a conspiracy to do an  unlawful act by unlawful means" and was  elaborated by Willies, J. on behalf of the  judges while referring the question to the  House of Lords in Mulcahy v. Reg and House of  Lords in unanimous decision reiterated in Quinn  v. Leathem:   ’A conspiracy consists not merely in the  intention of two or more, but in the agreement  of two or more, to do an unlawful act, or to do  a lawful act by unlawful means.  So long as  such a design rest in intention only, it is not  indictable.  When two agree to carry it into  effect, the very plot is an act in itself, and  the act of each of the parties, promise against  promise, actus contra actum, capable of being  enforced, if lawful; punishable of for a  criminal object, or for the use of criminal  means.’

This Court in B.G. Barsay v. State of  Bombay held:

"The gist of the offence is an agreement  to break the law.  The parties to such an  agreement will be guilty of criminal  conspiracy, though the illegal act agreed to be  done has not been done.  So too, it is an  ingredient of the offence that all the parties  should agree to do a single illegal act.  It  may comprise the commission of a number of  acts.  Under Section 43 of the Indian Penal  Code, an act would be illegal if it is an  offence or if it is prohibited by law."

In Yash Pal Mittal v. State of Punjab  [(1977) 4 SCC 540] the rule was  laid as follows: (SCC p. 543 para 9)

"The very agreement, concert or league is  the ingredient of the offence.  It is not  necessary that all the conspirators must know  each and every detail of the conspiracy as long  as they are co-participators in the main object  of the conspiracy.  There may be so many  devices and techniques adopted to achieve the  common goal of the conspiracy and there may be  division of performances in the chain of  actions with one object to achieve the real end  of which every collaborator must be aware and  in which each one of them must be interested.   There must be unity of object or purpose but  there may be plurality of means sometimes even  unknown to one another, amongst the  conspirators. In achieving the goal several

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offences may be committed by some of the  conspirators even unknown to the others.  The  only relevant factor is that all means adopted  and illegal acts done must be and purported to  be in furtherance of the object of the  conspiracy even though there may be sometimes  misfire or overshooting by some of the  conspirators.

In Mohammad Usman Mohammad Hussain  Maniyar and Ors.  v. State of Maharashtra   (1981) 2 SCC 443, it was held that for an  offence under Section 120B IPC, the prosecution  need not necessarily prove that the  perpetrators expressly agreed to do or cause to  be done the illegal act, the agreement may be  proved by necessary implication."

The main plea of the accused-appellant is that there was no  corroboration to the alleged confessional statement.  Various circumstances, according to him, clearly show that  it was not voluntary. Strong reliance is placed on State v.  Nalini (1999 (5) SCC 253) to contend that corroboration is  necessary. It is to be noted that the legislature has set  different standards of admissibility of a confessional  statement made by an accused under TADA Act from those made  in other criminal proceedings. A confessional statement  recorded by a police officer not below the rank of  Superintendent of Police under Section 15 of TADA Act is  admissible, while it is not so admissible unless made to  the Magistrate under Section 25 of the Evidence Act. It  appears, consideration of a  confessional statement of an  accused to a police officer except to the extent permitted  under Section 27 of the Evidence Act is not permissible.  These aspects are noted by this Court in Sahib Singh v.  State of Haryana (1997 (7) SCC 231) and Gurdeep Singh v.  State (Delhi Admn.) (2000 (1) SCC 498). There is one common  feature, both in Section 15 of TADA Act and Section 24 of  the Evidence Act that the confession has to be voluntary.  Section 24 of the Evidence Act interdicts a confession, if  it appears to the Court to be the result of any inducement,  threat or promise in certain conditions. The principle  therein is that confession must be voluntary. Section 15 of  TADA Act also requires the confession to be voluntary.  Voluntary means that one who makes it out of his own free  will inspired by the sound of his own conscience to speak  nothing but the truth. As per Stroud’s Judicial Dictionary,  5th Edn., at p.2633 threat means:

       "It is the essence of a threat that it be made  for the purpose of intimidating, or overcoming, the  will of the person to whom it is addressed (per Lush,  J, Wood v. Bowron (1866) 2 QB 21) cited intimidate."

Words and Phrases, permanent edition, Vol.44, p. 622 defines  ’voluntary’ as:

’Voluntary’ means a statement made of the free  will and accord of accused, without coercion,  whether from fear of any threat of harm,  promise, or inducement or any hope of reward -  State v. Mullin (85NW 2nd 598, 600, 249 lown  10)".

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 In Words and Phrases by John B. Saunders 3rd edition, vol.4, p.401,  ’voluntary’ is defined as:

".....the classic statement  of the principle  is that of Lord Sumner in Ibrahim v. Regem (  1914 AC 599) ( at p.609) where he said, "it has  long been established as a positive rule of  English criminal law that no statement  by an  accused is admissible in evidence against him  unless it is shown by the prosecution to be a  voluntary statement, in the sense that it has  not been obtained from him either by fear of  prejudice or hope of advantage exercise or held  out by a person in authority. The principle is  as old as Lord Hale".  However, in five of the  eleven textbooks cited to us ....support is to  be found for a narrow and rather technical  meaning of the word "voluntary". According to  this view, "voluntary" means merely that the  statement has not been made in consequence of  (i) some promise of advantage or some threat  (ii) of a temporal character (iii) held out or  made by a person in authority, and (iv)  relating to the charge in the sense that it  implies that the accused’s position in the  contemplated proceedings will or may be better  or worse according to whether or not the  statement is made. R. v. Power [( 1966) 3 All  ER 433) ( at pp.454, 455)] per Cantley, V."  

So the crux of making a statement voluntarily is, what is  intentional, intended, unimpelled by other influences,  acting on one’s own will, through his own conscience. Such  confessional statements are made mostly out of a thirst to  speak the truth which at a given time predominates in the  heart of the confessor which impels him to speak out the  truth. Internal compulsion of the conscience to speak out  the truth normally emerges when one is in despondency or in  a perilous situation when he wants to shed his cloak of  guilt and nothing but disclosing the truth would dawn on  him. It sometimes becomes so powerful that he is ready to  face all consequences for clearing his heart.  

As was observed in Nalini’s  case (supra) TADA Act  was enacted to meet any extraordinary situation existing in  the country. Its departure from the law relating to  confession as contained in the Evidence Act is deliberate.  Section 24 of the Evidence Act deals with confession caused  by inducements, threat or promise, which is irrelevant in  criminal proceedings. The expression ’confession’ has not  been defined in the Evidence Act. Broadly speaking, it is  an admission made at any time by a person charged with  crime, stating or suggesting the inference that he  committed that crime. Law relating to confessions is to be  found generally in Sections 24 to 30 of the Evidence Act  and Sections 162 and 164 of the Code of Criminal Procedure,  1898 (for short ’the old Code’) corresponding to identical  provisions of the Code. Confession is a species of  admission. A confession or admission is evidence against  its maker, if its admissibility is not excluded by some  provision of law. Law is clear that a confession cannot be  used against an accused person unless the Court is  satisfied that it was voluntary. At that stage, the

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question whether it is true or false does not arise. If the  facts and circumstances surrounding the making of a  confession appear to cast a doubt on the voluntariness of  the confession, the court may refuse to act upon the  confession, even if it is admissible in evidence. The  question whether a confession is voluntary or not is always  a question of fact. A free and voluntary confession is  deserving of highest credit, because it is presumed to flow  from the highest sense of guilt. In Principle and Digest of  Law of Evidence, Vol.I, New Edn. By Chief Justice M. Monir,  after noticing conflicting views and discussing various  authorities, the learned author summarized the position as  follows:          "The rule may therefore, be stated to be that  whereas the evidence in proof of a confession  having been made is always to be suspected, the  confession, if once proved to have been made  and made voluntarily, is one of the most  effectual proofs in the law."                    

       As was noted in Gurdeep Singh’s case (supra) whenever an accused  challenges that his confessional statement is not voluntary, the  initial burden is on the prosecution for it has to prove that all  requirements under Section 15 of TADA Act and Rule 15 of the TADA Rules  have been complied with. 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’s  case (supra) 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. The following observations in Jayawant Dattatray  Suryarao v. State of Maharashtra (2001 (10) SCC 109) are relevant:

"60 (2): Confessional statement before the police  officer under Section 15 of the TADA Act is  substantive evidence and it can be relied upon in  the trial of such person or co-accused, abettor or  conspirator for an offence punishable under the Act  or the Rules. The police officer before recording  the confession has to observe the requirement of  sub-section (2) of Section 15. Irregularities here  and there would not make such confessional statement  inadmissible in evidence. If the legislature in its  wisdom has provided after considering the situation  prevailing in the society that such confessional  statement can be used as evidence, it would not be  just, reasonable and prudent to water down the  scheme of the Act on the assumption that the said  statement was recorded under duress or was not  recorded truly by the officer concerned in whom  faith it is reposed. It is true that there may be  some cases where the power is misused by the  authority concerned. But such contention can be  raised in almost all cases and it would be for the  Court to decide to what extent the said statement is  to be used. Ideal goal may be: confessional  statement is made by the accused as repentance for  his crime but for achieving such ideal goal, there  must be altogether different atmosphere in the  society. Hence, unless a foolproof method is evolved

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by the society or such atmosphere is created, there  is no alternative, but to implement the law as it  is."                    Aforesaid aspects have been highlighted in Devender Pal Singh v.  State of NCT of Delhi and Anr. (2002 (5) SCC 234) and Mohd. Khalid v.  State of West Bengal (2002 (7) SCC 334).

       Applying the principles which can be culled out from the  principles set out above to the factual scenario, the inevitable  conclusion is that the trial Court was justified in its conclusions by  holding the accused appellants guilty. When an accused is a participant  in a big game planned, he cannot took the advantage of being ignorant  about the finer details applied to give effect to the conspiracy  hatched, for example, A-7 is stated to be ignorant of the conspiracy  and the kidnapping. But the factual scenario described by the co- accused in the statements recorded under Section 15 of the TADA Act  shows his deep involvement in the meticulous planning done by Umar  Sheikh. He organized all the activities for making arrangements for the  accused and other terrorists.  

       Confessional statement of A-2 shows how he got acquainted with  bigger players like Shahji and Mohmood @Ayub (A-7) and others who used  to visit Farooque.  His presence when Umar Sheikh showed photographs of  Americans kidnapped has also been established by confessional  statement. The officials who were of the requisite rank recorded the  confessional statements after meticulously following the procedural  requirements of the Tada Act and Terrorist and Disruptive Activities  (Prevention) Rules, 1987 (in short the ’TADA Rules’). Though a faint  attempt was made to say that the statement was not voluntary, the fact  that there was no retraction at any point of time and particularly,  when they were brought before the concerned Magistrate for confirmation  of the fact that the statement had been recorded by the police  officials, the stand appears to be afterthought.  The object and the  purpose for which the conspiracy was hatched is clear from the fact  that messages were sent to Embassies, government officials, high  dignitaries and the medias indicating the nature of the ransom, and the  consequences if demanded ransom was not fulfilled. The circumstances  clearly show the role played by each of the accused in the conspiracy.  It was submitted that the activities cannot be treated as an offence  against the State. Chapter VI of IPC relates to offence of the State.          The Trial Court has convicted the accused under Sections 121A,  122 and 124 IPC. For convicting the accused persons under the aforesaid  provisions, the trial Court has relied on the fact that the accused  persons were trying to overawe the Government of India by criminal  force and to bring out hatred and contempt in the people of India and  to arouse dissatisfaction in a section of people in India against the  Government of India established by laws and collected materials and  arms for the aforesaid offences.  

       The line dividing preaching disaffection towards the Government  and legitimate political activity in a democratic set up cannot be  neatly drawn. Where legitimate political criticism of the Government in  power ends and disaffection begins, cannot be ascertained with  precision. The demarcating line is thin and wavy.  

       The Indian Law Commissioners in their Second Report dated  24.6.1847 had observed We conceive the term "wages war against the  Government" naturally to import a person arraying himself in defiance  of the Government in like manner and by like means as a foreign enemy  would do, and it seems to us, we presume it did to the authors of the  Code that any definition of the term so unambiguous would be  superfluous". Mere collection of men, arms and ammunitions does not  amount to waging war.

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       There is a difference, says Foster: (3 Crown cases, pp.208, 209  and 210) "between those insurrections which have carried the appearance  of an army formed under leaders, and provided with military weapons,  and with drums, colours, etc., and those other disorderly tumultuous  assemblies which have been drawn together and conducted to purposes  manifestly unlawful, but without any of the ordinary shew and apparatus  of war before mentioned.

       "I do not think any great stress can be laid on that distinction.   It is true, that in case of levying war the indictments generally  charge, that the defendants were armed and arrayed in a warlike manner;  and, where the case would admit of it, the other circumstances of  swords, guns, drums, colours etc., have been added.  But I think the  merits of the case have never turned singly on any of these  circumstances".

"In the cases of Damaree and Purchase,...there was nothing giving  in evidence of the usual pageantry of war, no military weapons, no  banners or drums, nor any regular consultation previous to the rising;  and yet the want of these circumstances weighed nothing with the Court,  though the prisoners’ counsel insisted much on that matter.  The number  of the insurgents supplied the want of military weapons; and they were  provided with axes, crows, and other tools of the like nature, proper  for the mischief they intended to effect....

"The true criterion, therefore, in all these cases is, Quo animo  did the parties assemble?  For if the assembly be upon account of some  private quarrel, or to take revenge on particular persons, the statute  of treasons hath already determined that point in favour of the  subject....

"Upon the same principle and within the reason and equity of the  statute, risings to maintain a private claim of right, or to destroy  particular inclosures, or to remove nuisance, which affected or were  thought to affect in point of interest the parties assembled for these  purposes, or to break prisons in order to release particular persons  without any other circumstances of aggravation, have not been holden to  amount to levying war within the statute."

It is the fundamental right of every citizen to have his own  political theories and ideas and to propagate them and work for their  establishment so long as he does not seek to do so by force and  violence or contravene any provision of law.  Thus where the pledge of  a Society amounted only to an undertaking to propagate the political  faith that capitalism and private ownership are dangerous to the  advancement of society and work to bring about the end of capitalism  and private ownership and the establishment of a socialist State for  which others are already working under the lead of the working classes,  it was held that it was open to the members of the Society to achieve  these objects by all peaceful means, ceaselessly fighting public  opinion that might be against them and opposing those who desired the  continuance of the existing order of society and the present  Government; that it would also be legitimate to presume that they  desired a change in the existing Government so that they could carry  out their programme and policy; that the mere use of the words ’fight’  and ’war’ in their pledge did not necessarily mean that the Society  planned to achieve its object by force and violence.

1.      About the expression ’Whoever’ - the Law Commissioners say: (2nd  Report: Section 13)  "The laws of a particular nation or country cannot  be applied to any persons but such as owe allegiance to the Government  of the country, which allegiance is either perpetual, as in the case of  a subject by birth or naturalization, &c., or temporary, as in the case  of a foreigner residing in the country.  They are applicable of course

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to all such as thus owe allegiance to the Government, whether as  subjects or foreigners, excepting as excepted by reservations or  limitations which are parts of the laws in question.

2.      Regarding ’Wage war’ according to the Law Commissioners -       These  words "seems naturally to import a levying of war by one who throwing  off the duty of allegiance arrays himself in open defiance of his  Sovereign in like manner and by the like means as a foreign enemy would  do, having gained footing within the realm.  There must be an  insurrection, there must be force accompanying that insurrection, and  it must be for an object of a general nature.

       The expression "waging war" means and can only mean waging war in  the manner usual in war.  In other words, in order to support a  conviction on such a charge it is not enough to show that the persons  charged have contrived to obtain possession of an armoury and have,  when called upon to surrender it, used the rifles and ammunition so  obtained against the Government troops.  It must also be shown that the  seizure of the armoury was part and parcel of a planned operation and  that their intention in resisting the troops of the Government was to  overwhelm and defeat these troops and then to go on and crush any  further opposition with which they might meet until either the leaders  of the movement succeeded in obtaining the possession of the machinery  of Government or until those in possession of it yielded to the demands  of their leaders.

       The word "wages" has the same meaning as "levying" used in the  English statute.  In Lord George Gorden’s case (1784) 21 St Tr 485,  644, Lord Mansfield said: "There are two kinds of levying war :- one  against the person of the king; to imprison, to dethrone, or to kill  him; or to make him change measures, or remove counsellors  : - the  other, which is said to be levied against the majesty of the king, or,  in other words, against him in his regal capacity; as when a multitude  rise and assemble to attain by force and violence any object of a  general public nature; that is levying war against the majesty of the  king; and most reasonably so held, because it tends to dissolve all the  bonds of society, to destroy property, and to overturn government; and  by force or arms, to restrain the king from reigning according to law."

       An assembly armed and arrayed in a warlike manner for any  treasonable purpose is bellum levatum, though not bellum percussum.   Lifting and marching are sufficient overt acts without coming to a  battle or action.

       "No amount of violence, however great, and with whatever  circumstances of a warlike kind it may be attended, will make an attack  by one subject on another high treason.  On the other hand, any amount  of violence, however insignificant, directed against the King will be  high treason, and as soon as violence has any political objects, it is  impossible to say that it is not directed against the king, in the  sense of being armed opposition to the lawful exercise of his power.   Where the object of a mob is not mere resistance to a District  Magistrate but the total subversion of the British power and the  establishment of the Khilafat Government, a person forming part of it  and taking part in its actions is guilty of waging war.  When a  multitude rises and assembles to attain by force and violence any  object of a general public nature, it amounts to levying war against  the Government.  It is not the number of the force, but the purpose and  intention, that constitute the offence and distinguish it from riot or  any other rising for a private purpose.  The law knows no distinction  between principal and accessory, and all who take part in the  treasonable act incur the same guilt.  In rebellion cases it frequently  happens that few are let into the real design, yet all that join in it  are guilty of the rebellion.  A deliberate and organized attack upon  the Government forces would amount to a waging war if the object of the

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insurgents was by armed force and violence to overcome the servants of  the Government and thereby to prevent the general collection of the  capitation-tax". (See Aung Hia’s Case (1931) 9 Rangoon page 404)

       "There is a diversity between levying of war and committing of a  great riot, a rout, or an unlawful assembly.  For example, as if three,  or four, or more, do rise to burn, or put down an inclosure in Dale,  which the lord of the manor of Dale hath made there in the particular  place; this or the like is a riot, a rout or an unlawful assembly, and  no treason.  But if they had risen of purpose to alter religion  established within the realm, or laws, or to go from town to town  generally, and to cast down inclosures, this is a levying of war  (though there be great number of the conspirators) within the purview  of this statute, because the pretence is public and general, and not  private and particular". (See Cokes’ Inst. Ch.1, 9)           Section 124A deals with ’Sedition’. Sedition is a crime against  society nearly allied to that of treason, and it frequently precedes  treason by a short interval.  Sedition in itself is a comprehensive  term, and it embraces all those practices, whether by word, deed, or  writing, which are calculated to disturb the tranquility of the State,  and lead ignorant persons to endeavour to subvert the Government and  laws of the country.  The objects of sedition generally are to induce  discontent and insurrection, and stir up opposition to the Government,  and bring the administration of justice into contempt; and the very  tendency of sedition is to incite the people to insurrection and  rebellion. "Sedition has been described as disloyalty in action, and  the law considers as sedition all those practices which have for their  object to excite discontent or dissatisfaction, to create public  disturbance, or to lead to civil war; to bring into hatred or contempt  the Sovereign or the Government, the laws or constitutions of the  realm, and generally all endeavours to promote public disorder.                     In the aforesaid analysis, the offences punishable under Sections  121A, 122, 124A are clearly established and sufficiently and properly  stand substantiated, on the overwhelming materials available on record.  

       In order to bring the offences within the parameters of Section  3(2)(i) of TADA Act, the death sentence is permissible to be imposed  when the act has resulted in the death of any person. Under Clause (ii)  of sub-section (2) of Section 3, in any other case, the maximum  sentence is imprisonment for life. In the case at hand except the  killing of two police officials, no other death has resulted. The  ransom letters and the threats had not resulted in any death. Further,  the direct involvement of the present accused appellants in the killing  of the two police officials has not been established by cogent  evidence. There is no evidence that any of the accused was directly or  indirectly involved in the killings. The deaths occurred when police  surrounded the hideout and some terrorists wanted to escape. It is not  the case of the prosecution that the accused-appellants were inside or  that they escaped during the shoot out or that any of them fired any  shot or that there was any conspiracy in those regards. The action of  those terrorists who successfully escaped by firing at the police  appears to be independent of the present conspiracy and not shown to be  related in any manner. There is nothing on record to involve or connect  them with the design, conspiracy or action for which the appellants are  being now dealt with. Neither their names nor their identity or even  their role in the conspiracy with which we are concerned has ever been  placed on record to connect them or their actions with the present  group of conspirators and their design. The punishment for terrorists  act is provided in sub-section (2) of Section 3. For the purpose of  bringing in application of Section 3(2)(i) of the TADA Act, the  terrorist act should have resulted in the death of any person. In other  cases clause (ii) operates.  Sub-section (1) provides as to commission  of which acts can be considered to be a terrorist act. Above being the

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position, we feel the imposition of death sentence is not at any rate a  compulsion in this case and cannot be imposed and only life sentence  can be imposed.  

       No infirmity could be pointed out regarding conviction and/or  sentence for offences relatable to Section 3(4) of TADA Act or Section  14 of Foreigners Act. Accordingly, they are maintained.  

       The criminal law adheres in general to the principle of  proportionality in prescribing liability according to the culpability  of each kind of criminal conduct. It ordinarily allows some significant  discretion to the Judge in arriving at a sentence that reflect more  sublet considerations of culpability that are raised by the special  facts of each case. Punishment ought always to fit with the crime.                   

       In the case at hand, the entire planning for commission of  offence punishable under Section 364A was masterminded and executed by  Umar Sheikh who has managed presently to go out of net of law. In his  case, death sentence may have been appropriate. But in case of the co- conspirators (the present six accused appellants) similar approach is  not warranted on the peculiar facts found/established. No distinctive  feature has been indicated to impose two different sentences i.e. death  sentence for three and life sentence for three others. There is no  appeal by the prosecution to enhance the sentence in those cases where  life sentence has been imposed.  It would be therefore appropriate to  impose life sentence on all the six accused appellants.  

       In the ultimate, convictions of A-1, A-3 and A-8 under Section  3(1)(i) of TADA Act is altered to Section 3(1)(ii) of TADA Act. Their  convictions under Sections 121A, 122 and 124 IPC and sentences imposed  are maintained. The conviction under Section 364-A read with Section  120B IPC is maintained, as it is the conviction under Section 3(4) of  the TADA Act and Section 14 of the Foreigners Act for the concerned  accused appellant along with sentence imposed.  

However, considering the gravity of the offence and the dastardly  nature of the acts and consequences which have flown out and would have  flown in respect of the life sentence, incarceration for the period of  20 years would be appropriate. The accused appellants would not be  entitled to any remission from the aforesaid period of 20 years. As  observed by this Court in Ashok Kumar v. Union of India (AIR 1991 SC  1792 and Satpal v. State of Haryana and Anr.  (1992 (4) SCC 172),  "imprisonment for life" means imprisonment for the full span of life.   

The death reference and appeals are accordingly disposed of.