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PETITIONER: BONKYA ALIAS BHARATSHIVAJI MANE AND ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT27/09/1995

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) PARIPOORNAN, K.S.(J)

CITATION:  1996 AIR  257            1995 SCC  (6) 447  JT 1995 (7)   194        1995 SCALE  (5)556

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T DR. ANAND. J.      Twelve accused  persons were  tried for  offences under Section 302,  307/149,  324,  147,  148  and  Section  3  of Terrorist and  Disruptive Activites  (Prevention) Act,  1987 (hereinafter  referred   to  as   ‘TADA’)  by   the  learned Designated Judge,  Pune. Out  of the  said twelve accused, 6 accused were  acquitted of  all the  charges while  the five appellants herein,  namely, Bonkya alias Bharat Shivaji Mane (A-5), Mandu  Baliba Dombe  (A-8), Ashok Baloba Dombe (A-9), Ranjar Bhausaheb  Dombe  (A-10)  and  Kaka  alias  Pandurang Baloba  Dombe  (A-11)  were  convicted  for  offences  under Section 302/307/149  IPC and Section 3 of TADA and sentenced to suffer  life imprisonment and to pay a fine of Rs.5,000/- each for  the offence under Section 302/149 IPC; 10 years RI and a  fine of Rs.5,000/- each for the offence under Section 307/149 IPC;  2 years  RI  for  the  offence  under  Section 324/149 IPC  and life  imprisonment and  fine of  Rs.5,000/- each for  the offence under Section 3 of TADA. In default of payment of  fine on  each of the counts, the appellants were to undergo  further RI  for two  years each. The substantive sentences of  imprisonment  were  however  directed  to  run concurrently. One  accused died  during the  pendency of the trial. Through  this appeal  under Section  19 of  TADA, the appellants have  called in  question  their  conviction  and sentence. For  the sake  of convenience the accused shall be referred to  hereinafter by  the number  assigned to them in the Trial  Court judgment  as accused  i.e. (A-5,  A-8, A-10 etc.).      According to  the prosecution case on 11th August, 1990 at about 3.00 p.m. Anna Shety Band Patte, Mukesh, Ramesh and Prakash Band  Patte had  gone to the Vrindavan video parlour for watching  a  movie.  The  accused  A-6,  A-10  and  A-11 alongwith one  other person  were also  present at the video parlour. There  was an  altercation between  the accused and

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the complainant  party when  the leg  of Kaka  Dombe  (A-11) dashed against the leg of Anna Shety Band Patte PW. Both the prosecution witnesses  as well as the accused party left the video parlour  threatening each other. The complainant party went towards Jagdamba Hotel owned by Waman Band Patte PW. At that time  Baban Karpe,  Bajrang Band  Patte,  Sanjay  Mane, Ramesh Pawar were also present near the hotel. At about 4.00 p.m., the  appellants and  other accused  persons  allegedly armed with  swords, satturs  and sticks arrived there in two auto-rickshaws and one jeep. Out of the accused A-5, A-6, A- 8, A-10  and A-11 were carrying swords while A-7 and A-9 had satturs and the remaining accused were armed with sticks. On the  arrival   of  accused   party  Anna  Shetty  ran  away. Appellants A-5,  A-10 and  A-11 thereafter assaulted Bajrang Band Patte  (PW-14) on  his head in front of the hotel. They also assaulted  Baban Karpe  (PW-9) and  Popat deceased, who had run  away to  the Math,  after chasing  them in the auto rickshaws and  the jeep. It is alleged that A-5, A-10 and A- 11 assaulted  Popat deceased with the swords on his head and thighs and  when  Baban  tried  to  intervene  he  was  also assaulted and  he received  a blow  with the sattur near his knee. He  ran away  to conceal  himself. Bajrang (PW-14) was taken to  the hospital  by Waman  PW-15,  Ramesh  PW-11  and Prakash PW-2,  whereas  Popat  deceased  who  was  seriously injured and had fallen down unconscious after receipt of the injuries was  removed to  the hospital by the police when it arrived at  the spot a little later. All the injured persons were  admitted   to  the   hospital.  While   receiving  the treatment, Popat  succumbed to  his injuries.  On receipt of information, Asstt.  Police Inspector  Joshi arrived  at the hospital and Baban Karpe PW-9 narrated the occurrence to him which was  reduced into  writing. On  the basis  of the said report,    an     FIR    for    offences    under    Section 302/307/149/147/148 IPC  was registered  vide CR  No.101  of 1990 at  about 6.00  p.m. The  inquest on  the dead  body of Popat was  conducted and  the body  was sent for post-mortem examination.      Bajrang PW-14  regained consciousness  during the night intervening 11th  and 12th August, 1990 and made a statement to the police in respect of the incident which took place in front of  Jagdamba hotel and on the basis of that statement, CR No.102/90  was registered. The jeep allegedly used by the accused party  was later  found in  front of  the  house  of accused Baloba  Dombe,  A-1  (who  died  subsequently).  One sword, stained  with blood and two blood stained sticks were recovered from  the  said  jeep.  An  auto-rickshaw  bearing registration No.  MWQ-5624 belonging  to Manik Bhende-Gavali was found  abandoned in  a  damaged  condition  with  broken glasses. It was also taken into possession vide a panchnama. The accused  were searched for but could not be traced. They were  subsequently   arrested  on   different  dates.  On  a disclosure statement  made by A-11 before the police and the panches under  Section 27  of the  Evidence Act  and on  his pointing out  a sword was recovered from the field at Korti, where it  lay buried.  A-10 also made a disclosure statement under Section  27 of  the Evidence Act to the effect that he had buried  a sword  behind Yamai Tukai temple and could get it recovered.  On the  pointing out  by A-10, the said sword was also  recovered and  taken  into  possession  through  a panchnama.  During   the  investigation,  an  identification parade was  got conducted  through the Executive Magistrate, PW-32  when   Baban  Karpe   (PW-9)  and  other  prosecution witnesses identified the assailants. Samples of blood of the accused were  collected for  ascertaining their blood groups and sent for chemical analysis. The blood samples of Bajrang

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(PW-14) and Baban Karpe (PW-9) were similarly collected. The blood stained  clothes  of  the  deceased  and  the  injured persons as  also  the  swords  were  sent  to  the  chemical examiner   for    analysis.   After    completion   of   the investigation,  two   charge-sheets  arising  out  of  crime No.101/90  and   crime  No.102/90   were  filed  before  the Designated Court.  During the  pendency of  the two  charge- sheets the  Addl. Public  Prosecutor through an application, Ex. P-35,  requested the  Court for holding trial in respect of both  the chargesheets  together, which  application  was allowed by  the Designated  Court vide order dated 5.12.1992 and that is how both the cases were tried together by virtue of the  provisions of Section 220 (1) Cr.P.C., as the series of acts in both the cases were so inter-connected as to form one transaction.  At the trial, the prosecution alleged that the accused  party with  an intent  to commit  terror in the Wadar community  had  committed  the  murder  of  Popat  and injured PW-9  and PW-14,  by using  lethal weapons  and  had thereby committed  terror in  the Wadar community and, thus, committed an  offence under  Section 3  of TADA, besides the other offences  as already noticed. Baloba (A-1) died during the pendency  of the  trial and  therefore, the  proceedings against him  abated. The  plea of  the remaining  accused in their statements  under Section 313 Cr.P.C. was one of total denial and false implication. According to A-2, A-3, A-5, A- 6 and  A-7 they  had been  identified by  PW-9,  during  the identification parade,  at the  instance of  the police. A-4 alleged false  implication at  the instance  of PW-15  Waman while A-8  alleged false  implication at  the hands  of  the police with a view to pressurise him to withdraw a complaint concerning the  murder of his brother and 5 others allegedly committed by  the police.  A-9 also  put forward  a  similar defence, while A-10 alleged that the police had instituted a false case  against him  at the instance of Narayan Dhotare, according to  A-11, also  the witnesses  had deposed falsely against him  at the instance of Narayan Dhotare. The learned Judge of  the Designated Court acquitted A-2, A-3, A-4, A-6, A-7  and   A-12  of   the  offences  charged  against  them, apparently influenced by the lack of identification of these accused  persons   by  the   prosecution  witnesses  at  the identification parade conducted by the Executive Magistrate. The appellants, however, were convicted and sentenced in the manner as already noticed.      We have  heard learned  counsel  for  the  parties  and perused the record.      That the  incident arose  out of  a  petty  altercation between A-11  and his  three companions  with PW-10  and his three companions  at the  video parlour  and later on led in the homicidal  death of  Popat Band  Patte on  11.8.1990 and injuries to  PW9 and  PW14 was  neither disputed  before the learned Designated Court nor before us. From the post-mortem report prepared by Dr. A.P. Khiste (PW-22), we find that the deceased  had   four  incised   injuries  which  had  caused extensive damage  to his  internal organs also. According to PW-22, the  internal injuries  on the deceased were a result of the following external injuries:      (1)  Incised wound,  transverse on  left      groin at  centre medial  to left  public      symphysis and left superior iliac crest,      all muscles,  vessels cut,  both femoral      vessels, vein  artery cut, dimension 4 x      2 x 5 cms.      (2)  Transverse incised  wound on  right      parital region,  bone deep,  4 x  2 x  1      cms., 6  cms. above  right ear, fracture

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    of right  parietal bone  with laceration      of brain.      (3)  Verticle incised  wound 5  x 1  x 1      cms., bone  deep at  centre  of  vertex,      fracture of  skull  with  laceration  of      brain. PW 22  opined that  these injuries,  individually as well as collectively, were  sufficient in  the  ordinary  course  of nature to cause death.      PW-9 was  examined by  Dr. Khiste PW-22 who noticed the following two injuries on his person:      (1)  Transverse superficial incised wound 10x1/2 cm. on      posterior of  left knee  in popliteal. Edges were clean      out.      (2)  Abraded contusion  below right  knee and  front of      right leg, 5 x 5 cm.      PW-14 Bajrang  was  also  medically  examined  and  the following injuries were found on him :-      (1)  Transverse Lacerated  would on occipital region, 3      x 1 cm., bone deep. Injury was bleeding fresh.      (2)  Multiple abraded contusion all over the back.      The defence  plea of total denial and false implication has been rightly rejected by the Designated Court in view of the over-whelming, cogent and reliable prosecution evidence.      The trial  court for  the purposes  of consideration of the evidence  divided the  prosecution case into three parts namely; (i)  the incident  at Vrindavan  video parlour  (ii) incident near  Jagdamba hotel  and (iii) the incident at the Math.      So far  as the first incident is concerned, that merely provided the  motive for the assault near the Jagdamba hotel and the  Math. The evidence regarding the first incident was given by  PW10, PW11  and PW12. These witnesses deposed that while they were watching a movie at the video parlour, A-11, A-6 and  A-10 alongwith  one other  person had  occupied the seats in the row behind them and when the leg of A-11 dashed against the  leg of  PW10, who  told him  to  keep  his  leg properly, A-11  started abusing  him in  filthy language and threatened him that he would "deal" with him. In view of the altercation, the  complainants left  the video  parlour  and went  towards   Jagdamba  hotel.  Some  of  the  prosecution witnesses including  the deceased, PW9 and PW14 were already standing near the Jagdamba hotel. PW10 narrated the incident of the  video parlour  to those  persons and in the meantime the accused  party arrived  there in  a jeep  and two  auto- rickshaws and  started  assaulting  the  complainant  party. However,  according  to  the  prosecution  evidence  itself, during  the  assault,  none  out  of  the  four  prosecution witnesses with  whom the  altercation had taken place at the video parlour  was injured.  Near the  Jagdamba Hotel it was Bajrang PW-14  who received the injuries at the hands of the accused.  Some   of  the  other  witnesses  including  Popat deceased and  Baban PW-9  fled  towards  the  Math  to  save themselves. The  evidence  of  PW10,  PW-11  and  PW-12  has received ample corroboration from the testimony of PW-9, PW- 13, PW-14  and PW-15,  who deposed  that while the witnesses were narrating  the incident  of the  video parlour to Waman Band Patte  PW-15 and  other  witnesses  present  there  the accused party  arrived in  a  Jeep  and  two  auto-rickshaws variously armed  and opened  an attack  on  the  complainant party with a view to teach them a lesson for the altercation which had  taken place  earlier at  the video parlour. We do not find  any force in the submission of the learned counsel for the  appellant that  since Mohan Lal PW-19, who runs the video  parlour  has  not  fully  supported  the  prosecution

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version regarding  the cause  of altercation  at  the  video parlour, the  genesis of  the occurrence  gets  shrouded  in doubt. PW-19 was declared hostile by the prosecution and was cross examined  by the Addl. Public Prosecutor. We find from a careful analysis of the evidence that the testimony of PW9 to PW-15  regarding the  incident at  the video  parlour  is cogent and  trustworthy and  nothing has  been  brought  out during the  cross-examination of  these witnesses  which may cast any doubt about the correctness of the version given by them regarding  the incident at the video parlour. Even from the evidence  of the  hostile  witness  PW-19  Mohanlal,  it emerges that  on the  day  of  the  incident  there  was  an altercation at  the video  parlour, though  he has given the cause of  the altercation  to be  somewhat different,  which explanation does  not appeal  to us. Even if for the sake of argument we  were to  ignore the  evidence of PW19, it would not materially  affect the  prosecution case in so faras the incident at  the video  parlour  is  concerned.  We  are  in agreement with  the Designated  Court that  there  is  ample evidence led by the prosecution to establish the incident at the video  parlour and  also that  the said incident was the origin for the subsequent assault.      To connect  the accused  with the  incidents  near  the Jagdamba hotel  and the  Math, the  prosecution has examined PW3, PW4,  PW9, PW10, PW11, PW12, PW13 and PW14 besides PW7, PW20 and  PW21. The  last three  witnesses, however,  turned hostile at  the trial  and were  cross-examined by the Addl. Public Prosecutor  with the  permission of the court. Out of the remaining  witnesses mentioned above, PW-9 and PW-14 are the injured  witnesses. These are thus the stamped witnesses whose presence  admits of  no doubt and being themselves the victims they  would not  leave out  the real  assailants and substitute them  with innocent  persons.  PW-15  Waman  Band Patte who  is the  owner of  the  Jagdamba  hotel  has  lent sufficient corroboration  to  the  testimony  of  the  other prosecution  witnesses  in  general  and  PW9  and  PW14  in particular. From the testimony of PW9, it stands established that while Mukesh PW-12 was narrating the incident which had taken place  at the  video parlour, the appellants alongwith 7/8 other  persons arrived  in a jeep and two auto-rickshaws armed with swords, satturs and sticks and opened the assault on the  prosecution witnesses  and that  A-11  and  his  two associates  assaulted   PW-14  with  swords.  His  testimony receives ample  corroboration from  the testimony  of  PW10, PW11, PW14  and PW15 Waman, the proprietor of Jagdamba Hotel besides the  medical evidence. These witnesses categorically deposed that A-5, A-10 and A-11 were responsible for causing injuries to  Bajrang PW-14. These witnesses knew the accused from before  by their  names and  had also  identified  them later when called upon to do so. They specifically described the roles played by A-5, A-10 and A-11. PW-10, PW-11, PW-12, PW-13, PW-14 and PW-15 also spoke about the presence of A-1, A-8 and  A-9 with their respective weapons alongwith A-5, A- 10 and  A-11 near  the Jagdamba Hotel at the time of assault on PW-14.  An identification  parade had  been held  by Shri Shrikant Chimanaji Jahagirdar (PW-32), Executive Magistrate. At the  identification parade,  A-5 was  identified by PW-9, PW10, PW-11,  PW-14 and PW-15; A-10 by PWs 10 to 15; A-11 by PW 3  and PWs  9 to  15; A-1 by PWs 10 to 15; A-8 and A-9 by PW-3 and by PWs 10 to 15.      So far  as other  accused are  concerned, none  of  the prosecution witnesses ascribed any role to A-2, A-3 and A-12 and even  though  PW-15  deposed  at  the  trial  about  the presence of  A-4, A-6  and A-7  and stated  that  they  were present with the accused party but the trial court, for good

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and sufficient  reasons found  that his testimony as regards their presence  in the  unlawful assembly,  had not received trustworthy  corroboration   from  any   other   prosecution evidence. The  learned Designated  Court opined  that though the identity of A-1 (since dead), A-5, A-8, A-9, A-10 and A- 11 as the assailants had been established by the prosecution evidence beyond  a reasonable  doubt, the  same could not be said about  the participation  of the  remaining accused. We agree. From  our independent  analytical appreciation of the evidence on  the record,  we are  of the  opinion  that  the Designated Court  rightly found the participation of A-1, A- 5,  A-8,  A-9  and  A-11,  in  the  assault,  to  have  been positively  established.   However,  so   far  as   A-10  is concerned, we find that there is merit in the submissions of the learned  counsel for the appellant that his identify and participation in the assault has not been established beyond a reasonable doubt.      Baban Karpe PW-9, himself an injured witness, failed to identify A-10  at the time of the identification parade held by PW-32,  though he  identified A-10  later on in the Court during the  trial. That  apart the  name of  A-10  does  not figure specifically  in the  statement of  Baban PW-9, which formed the  basis of the FIR, Ex. 77. PW-10, PW-11 and PW-15 have  tried   to  implicate   A-10  by   making  tell   tale improvements in their statements at the trial by ascribing a role  to   him  in  the  assault  by  improving  upon  their statements earlier  recorded during  the investigation, with which statements they were duly confronted. Even Bajrang PW- 14 who  is an  injured witness himself and deposed about the incident at  Jagdamba hotel  with sufficient details appears to have  exaggerated the  version when he stated that he had been assaulted  by A-10  also besides  A-5  and  A-11  auite contrary to  his earlier statement. There is only one injury which was  received by  PW-14 and  according  to  the  other prosecution witnesses, that injury had been caused to him by A-11.  The  tendency  to  exaggerate  the  incident  is  not uncommon and  that  an  innocent  person  may  be  roped  in alongwith the  guilty ones is a possibility which cannot, in the facts  and circumstances  of this case, be ruled out. In view of the improvement made by the prosecution witnesses at the trial  from their earlier statements and the infirmities already noticed,  we are  of the  opinion that  it cannot be said with  any amount of certainty that the participation of A-10 in  the assault  or even  his presence  in the unlawful assembly at  the time  of the assault near Jagdamba hotel or the Math,  has been  substantiated. The  prosecution has not been able  to establish  the  case  against  A-10  beyond  a reasonable doubt  and is  our opinion  he is entitled to the benefit of the doubt.      In so  far as  the remaining  appellants are concerned, the evidence  of the  eye-witnesses and particularly of PW-3 and PWs  9 to 14 unmistakably connects them with the assault on the  complainant party near the Jagdamba hotel and at the Math, resulting  in the  death of  Popat and  injuries being caused to PW9 and PW14. Despite searching cross-examination, nothing has been brought out in their cross-examination from which any doubt may arise about the participation of A-1, A- 5, A-8,  A-9 and  A-11  in  the  assault  or  discredit  the testimony  of   any  of   these  witnesses.  Their  evidence establishes the  manner in  which the  assault originated as well as  the role played by each one of them. The appellants (other than  A10) were  as  already  noticed  identified  by various prosecution  witnesses at  the identification parade held by  PW-32, the  Executive Magistrate also. Besides, the testimony of  these prosecution witnesses has received ample

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corroboration from  the medical  evidence  as  well  as  the recoveries of  the weapons  of offence. From our independent examination of  the material on the record, we are satisfied that the  prosecution has  been able  to establish  its case against A-5, A-8, A-9 and A-11 and the deceased A-1 beyond a reasonable doubt.      That takes us now to consider the nature of the offence committed by  A-5, A-8,  A-9 and A-11. The Designated Court, as already  noticed, found  all of them guilty and convicted them for the offences under Section 3 TADA, 302/149, 307/149 and 323/149 IPC.      The victims,  it appears from the record, belong to the Wadar community.  The Designated Court after considering the evidence of  the first incident and the manner of assault on the deceased and PW-9 and PW-14, came to the conclusion that the appellants, alongwith some others had intended to create terror in a section of the people (Wadar community) and with that intention  had assaulted PW-14, the deceased and PW9 by lethal weapons  and were  therefore guilty  of committing an offence under Section 3 TADA.      In our  opinion the  Designated Court  fell in error in holding that  an offence  under Section  3 of  TADA had been committed by the accused-appellants in the established facts and circumstances  of this case. Merely because the deceased and the  two injured witnesses belong to Wadar community, no inference could  be drawn  that the attack by the appellants on them  was intended  to strike  terror in a section of the society, namely,  the Wadar community. There is no basis for such an  assumption. Prosecution has led no evidence in that behalf either. It appears to be a mere coincidence that PW9, PW14 and  the deceased  all belong to the "Wadar Community". There is  nothing on  the record  to disclose  as  to  which community do the appellants belong to or what grievance they had  against   the  "Wadar  Community".  By  no  stretch  of imagination  can  it  be  said  that  the  accused  had  the intention to  strike  terror,  much  less  in  a  particular section  of   the  society,   when  they   entered  into  an altercation at  the video  parlour or  even when  they  went after the  complainant party  and opened  an assault on then opposite Jagdamba  hotel or  at the  Math. None out of those who were  present at  the video  parlour received any injury and there  is no  material on the record to show as to which community did  they belong to either. Prosecution has led no evidence nor  brought any  circumstances on  the record from which  any  inference  may  be  drawn  that  the  appellants intended to  strike terror amongst the "Wadar Community". It was not proper for the Designated Court to draw an inference of intention  from the  mere consequence,  i.e., the victims belonging to  the particular  community. The  learned  trial court appears to have ignored to take into consideration the essential requirements  for establishing  an  offence  under Section 3  of TADA. In Hitendra Vishnu Thakur And Others Vs. State of  Maharashtra And  Others [(1994)  4 SCC,  602] this Court opined  that the  criminal activity in order to invoke TADA must  be committed  with  the  requisite  intention  as contemplated by  Section 3(1)  of the  Act by  use  of  such weapons as  have been  enumerated therein and which cause or are likely  to result  in  the  commission  of  offences  as mentioned in that Section. It was observed :      "Thus, keeping  in view  the settled  position that the      provisions of  Section 3  of TADA  have been held to be      constitutionally valid  in Kartar  Singh case  and from      the law  laid down  by  this  Court  in  Usmanbhai  and      Niranjan cases,  it follows  that an  activity which is      sought to be punished under Section 3(1) of TADA has to

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    be such  which cannot  be classified  as a mere law and      order problem  or disturbance  of public  order or even      disturbance of  the even  tempo  of  the  life  of  the      community of  any specified  locality  but  is  of  the      nature which  cannot be tackled as an ordinary criminal      activity under  the ordinary  penal law  by the  normal      law-enforcement agencies  because the  intended  extent      and reach  of the  criminal activity of the ’terrorist’      is such  which travels  beyond the  gravity of the mere      disturbance of public order even of a ’virulent nature’      and  may  at  times  transcend  the  frontiers  of  the      locality and  may include such anti-national activities      which throw  a challenge  to  the  very  integrity  and      sovereignty  of   the   country   in   its   democratic      polity................ Thus,  unless the Act complained      of falls  strictly within  the  letter  and  spirit  of      Section  3(1)   of  TADA  and  is  committed  with  the      intention as  envisaged by that section by means of the      weapons etc.  as are enumerated therein with the motive      as postulated  thereby, an  accused cannot  be tried or      convicted  for   an  offence   under  Section  3(1)  of      TADA.......... Likewise, if it is only as a consequence      of the  criminal act  that fear, terror or/and panic is      caused but  the intention  of committing the particular      crime cannot  be said  to be the one strictly envisaged      by Section  3(1), it  would be  impermissible to try or      convict  and   punish  an   accused  under   TADA.  The      commission of  the crime  with the intention to achieve      the result  as envisaged  by the section and not merely      where the  consequence of  the crime  committed by  the      accused  create   that  result,   would   attract   the      provisions  of   Section  3(1)   of  TADA."   (Emphasis      supplied)      Thus, keeping  in view  the  background  in  which  the occurrence took  place, namely, the altercation at the video parlour, which  has  a  great  relevance  to  determine  the applicability of  Section 3 TADA, we are of the opinion that the finding of the Designated Court that the appellants have committed an  offence punishable  under Section  3  TADA  is clearly erroneous.  In fairness  to the  learned counsel for the State  Mr. Madhav  Reddy, Sr.  advocate,  we  must  also record that  he conceded that in the facts and circumstances of the  case and  keeping in  view the  law laid down by the Constitution Bench in Kartar Singh’s case [1994 (supp) Scale 1] and  Hitendra Vishnu  Thakur’s case  (supra)  no  offence under Section 3 of TADA could be said to have been committed by the  appellants.  The  conviction  and  sentence  of  the appellants for  the offence  under  Section  3  TADA  cannot therefore, be sustained and is hereby set aside.      Appellants No.  1 (A-5),  2 (A-8), 3 (A-9) and 5 (A-11) had alongwith  the deceased  accused A-1  and  some  others, about whose  identity there  has been  some doubt, formed an unlawful assembly and in furtherance of the common object of that assembly committed the murder of Popat deceased besides causing injuries  to PW9  and  PW14.  The  Designated  Court therefore, rightly  found the  said appellants guilty of the offences under  Section 302/149, 307/149 and Section 324/149 IPC. The conviction and sentence of appellants No.1 (A-5), 2 (A-8), 3  (A-9) and  5 (A-11)  for  the  said  offences,  as recorded by  the learned Designated Court, are well merited, and calls for no interference.      In the  result, the  appeal succeeds  insofar  as  A-10 (appellant No.  4) is  concerned. He is given the benefit of doubt and acquitted of all the charges against him. He shall be released  from custody  forthwith if  not required in any

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other case.  The conviction  and sentence  of appellants No. 1,2,3 and 5 for the offence under Section 3 TADA is also set aside but  their  conviction  and  sentence  for  the  other offences as  recorded by  the Designated Court is upheld and to that extent their appeals fail.      Before we part with the judgment, we would also like to deal with  a submission  made on behalf of the appellants by their learned counsel that since the offence under Section 3 of TADA  is not  made out, the criminal appeal filed in this court, may be transferred to the High Court for its disposal in exercise  of our  jurisdiction under  Article 142  of the Constitution of  India, for  the reason  that a first appeal against  conviction   and  sentence   recorded  for  various offences under  the Indian  Penal Code by the Sessions Court lies to  the High  Court. Learned counsel submitted that the appellants should  not be  denied the opportunity to get the first hearing  in the  High Court  because in  the event  of their failure in the High Court, they still have a chance to approach this Court under Article 136 of the Constitution of India. The  argument is  fallacious and runs in the teeth of the express provisions of Section 19 of TADA. Section 19 (1) and (2) of TADA read as follows :      "19. Appeal - (1) Notwithstanding anything contained in      the Code, an appeal shall lie as a matter of right from      any  judgment,   sentence  or   order,  not   being  an      interlocutory order,  of  a  Designated  Court  to  the      Supreme Court both on facts and on law.      (2)  Except as  aforesaid, no  appeal or revision shall      lie to  any court  from any judgment, sentence or order      including  an   interlocutory  order  of  a  Designated      Court."      A bare  perusal of  the above  Section  shows  that  an appeal against  the judgment,  sentence  or  order,  of  the Designated Court  (except an  interlocutory order) shall lie on facts  and on law to the Supreme Court and that no appeal or revision  shall lie  to any  other court.  In the face of this express  provision, there  is no scope to urge that the appeal may  be transferred  to the High Court because of the acquittal of the appellants for the offence punishable under Section 3  TADA by  us. In a case where the Designated Court finds that  no offence under TADA is made out, it is open to the said  Court to transfer the case to the regular Criminal Court under  Section 18  TADA but  once the charge is framed and the  case is  tried by  the Designated  Court, an appeal against conviction,  sentence or  acquittal lies only to the Supreme Court  and to  no other  court. Under  Section 12 of TADA the  Designated Court  has the jurisdiction not only to try the  cases under TADA but also to try offences under the Indian Penal  Code if  the offence  under TADA  is connected with such other offences.      The amplitude  of powers  available to this Court under Article  142  of  the  Constitution  of  India  is  normally speaking not  conditioned by  any statutory provision but it cannot  be   lost  sight   of  that   this  Court  exercises jurisdiction under  Article 142  of the  Constitution with a view to  do justice between the parties but not in disregard of the  relevant statutory  provisions. The  transfer of the appeal to the High Court, after hearing the appeal on merits and finding  that Section  3 of  TADA on  the basis  of  the evidence led  by the  prosecution,  was  not  made  out,  is neither desirable  nor  proper  nor  permissible  let  alone justified. There  cannot be  piece meal hearing of an appeal on merits  - first  by this Court to determine if an offence under TADA  is made  out or  not and then by the High Court. The submission  of the  learned counsel  is, thus, devoid of

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merits and is consequently rejected.