(1) THE appellant was challaned by the police for offences under Sections 307, 392, 452, 393 and 511 read with Section 34 Indian Penal Code and Section 3 of the Terrorist and Disruptive Activities (Prevention) Act (hereinafter TADA). After investigation, the appellant was sent up for trial before the Designated court and the charges were drawn up against him for offences under S. 452 and 393 Indian Penal Code as well as under Section 3 of TADA. (2) IN brief the prosecution case is that on the night intervening 30/6/1991 and 1/7/1991 three Sikh youths, who covered their bodies with chadars scaled the wall and entered the house of Jarnail Singh, complainant where he. along with his other family members was sleeping. One out of the three youths was heading the party and on reaching near Jarnail Singh, he asked the complainant Jarnail Singh to hand over all his possessions to him and threatened that if he did not part with the valuable articles, his whole family would be done to death. Jarnail Singh pleaded helplessness and stated that he was penniless. In the meanwhile, the wife of Jarnail Singh, Kanso, Public Witness 2 also woke up. The daughter of Jarnail Singh also woke up and went up to the roof of the house and raised alarm. Some persons from the locality including Gian Singh Sarpanch Public Witness 3 arrived at the spot. Two out of the three youths, who were at some distance, on the arrival of the people from the locality ran away. The locality people caught hold of the third youth who was grappling with Jarnail Singh and gave him severe beating as a result of which he died on the spot. The deceased youth was later on identified as one Balwinder Singh, who was employed in the Home Guards. Out of the two youths, who ran away, Gurbax Singh was declared a proclaimed offender while Gurmej Singh, the present appellant, was arrested by Teg Bahadur Singh, ASI, Public Witness 5 on 21/7/1991. The deceased youth was later on identified as one Balwinder Singh, who was employed in the Home Guards. Out of the two youths, who ran away, Gurbax Singh was declared a proclaimed offender while Gurmej Singh, the present appellant, was arrested by Teg Bahadur Singh, ASI, Public Witness 5 on 21/7/1991. Out of fear of the two youths who had run away, Jarnail Singh did not go to the police station during the night and it was only at about 8.30 am on the next morning i.e. 1/7/1991 that he recorded the statement of Jarnail Singh who met him by chance while he was on a routine checking duty, near the government High School, Khadur Sahib. The statement of Jarnail Singh forms the basis of FIR Ex. PA. (3) AT the trial, the prosecution examined five witnesses, including the complainant Jarnail Singh Public Witness I, .Kanso, Public Witness 2 and Gian Singh Sarpanch Public Witness 3. The appellant in his statement recorded under Section 313 Criminal Procedure Code pleaded innocence and asserted that he had been falsely implicated. He produced Jagir Singh DW 1 as a witness in defence. (4) THE Designated court alter a consideration of the evidence on the record found that the case against the appellant had been proved beyond a reasonable doubt and that the appellant was guilty of the offences under S. 452 Indian Penal Code, 393 Indian Penal Code and Section 3 TADA. Convicting the appellant tor those offences, he was sentenced to serve rigorous imprisonment tor a period of three years and to pay a fine of Rs. 200.00 for the offence under Section 452, rigorous imprisonment for a period of seven years and a fine of Rs. 200.00 for the offence under Section 393 Indian Penal Code and rigorous imprisonment for five years and a fine of Rs. 200.00 for the offence under Section 3 TADA. In default-of payment of Rs. 200.00 fine on each of the three counts, the appellant was to suffer further rigorous imprisonment for two months, on each of the three counts. The appellant, has through this appeal under Section 19 of the TADA, challenged his conviction and sentence. (5) WE have heard learned counsel for the appellant and gone through the evidence on the record with his assistance. The appellant, has through this appeal under Section 19 of the TADA, challenged his conviction and sentence. (5) WE have heard learned counsel for the appellant and gone through the evidence on the record with his assistance. (6) WE find substance in his submission that from the evidence on the record no offence under Section 3 of the TADA can be said to have been made out against the appellant. A bare reading of Section 3 of TADA would show that none of the ingredients of that section have been referred to in the evidence, much less established by the prosecution in this case. As a matter of fact, none of the witnesses for the prosecution has even alleged at the trial that the appellant was armed with any weapon whatsoever or that he acted with the intent to overawe the government as by law established or to strike terror in the mind of the people or any section of the people or to alienate any section of the people or otherwise to adversely affect the harmony amongst different sections of the people by using any bomb, dynamite, explosive substance, inflammable substance, firearm or any other lethal weapon or poison etc. In the absence of any evidence to show the intention of the appellant, as is necessary to establish an offence under Section 3 of the TADA, we are at a loss to understand as to how the learned Designated court could sentence the appellant for the offence under Section 3 of TADA. It appears to us that the provisions of Section 3 were not at all present to the mind of learned Designated court for had he even cursorily looked at those provisions, we have no reason to think that he would have, in the face of the evidence led by the prosecution, recorded any conviction under Section 3 of TADA. In fairness, to the learned counsel for the State, we must also record that on the basis of the evidence on the record, he also did not support the conviction of the appellant for the offences under Section 3 of TADA. We, therefore, set aside his conviction and sentence for the said offence. (7) THE evidence of Jarnail Singh Public Witness 1 and Kanso Public Witness 2, unmistakably connects the appellant with the crime alleged against him. We, therefore, set aside his conviction and sentence for the said offence. (7) THE evidence of Jarnail Singh Public Witness 1 and Kanso Public Witness 2, unmistakably connects the appellant with the crime alleged against him. The argument that since the appellant was alleged to have covered himself with a chadar, therefore, he could not have been identified merits a notice only to be rejected, for the simple reason that when the prosecution witnesses deposed at the trial that they had identified the appellant, who was married to one Bindro, daughter of Karnail Singh living only a lew houses away from that of the complainant and had therefore identified him they were not challenged in cross-examination on that part of the evidence at all. As a matter of fact. it is in the cross- examination of most of these witnesses that the identity of appellant lias been established. Kanso Public Witness 2 categorically admitted in cross-examination that she knew the appellant well and had identified him as one of the three youths who had come to their house on the night of the occurrence. The statement of Jagir Singh DW 1 does not inspire any confidence and his deposition that the name of the wife of the appellant was not Bindro but Jogindro does not appeal to us. Neither the wife of the appellant nor Karnail Singh who was stated by the prosecution witnesses to be the father-in-law of the appellant stepped in the witness box on behalf of the appellant to deny and say that the appellant was not married to Bindro or was not the son-in-law of Karnail Singh. Jagir Singh DW 1 also introduced a new story in the case to the effect that the appellant had enmity with one Dial Singh of his village and since Dial Singh was a friend of the police the appellant had been falsely involved at the instance of Dial Singh. There is no material in support of this statement of Jagir Singh DW I. It is worth mentioning that no suggestion to this effect was put to any of the prosecution witnesses, much less to the investigating officer. Teg Bahadur Singh, ASI Public Witness 5. There is no material in support of this statement of Jagir Singh DW I. It is worth mentioning that no suggestion to this effect was put to any of the prosecution witnesses, much less to the investigating officer. Teg Bahadur Singh, ASI Public Witness 5. From the evidence on the record, we are satisfied that the prosecution has successfully established that it was the appellant who was present along with Balwinder Singh, who was done to death at the spot, and Gurbax Singh, proclaimed offender, at the time of the occurrence in the house of Jarnail Singh. The conviction of the appellant, therefore, for the offences under S. 452 Indian Penal Code and 393 Indian Penal Code is well-merited and we uphold the same. (8) COMING now to the question of sentence. The prosecution on its own showing did not attribute any overt act to the appellant. The demand of valuables from Jarnail Singh complainant was made by Balwinder Singh deceased. The grappling with the complainant also took place with Balwinder Singh only. The appellant according to the prosecution case itself had remained at a little distance along with his co-accused Gurbax Singh and had run away when people assembled. Keeping in view all these factors, we are of the opinion that the sentence imposed upon the appellant for the offences under Sections 452 and 393 Indian Penal Code is rather severe and harsh. The trial court has imposed the maximum sentence prescribed by law for the offences under Section 393 Indian Penal Code on the appellant. It appears that the trial court while imposing that sentence was influenced by the fact that the appellant belonged to the Home Guards, whose duty is to protect citizens rather than to indulge in such type of criminal activities. That may be a worthy consideration but it certainly did not justify the imposition of the maximum sentence prescribed by law for the offences under Section 393 Indian Penal Code in the facts and circumstances of the case (9) A sentence of two years for the offence under Section 452 in our opinion would meet the ends of justice and we accordingly, while confirming the conviction of the appellant for the offence under Section 452 Indian Penal Code reduce the sentence to two years rigorous imprisonment but maintain the sentence of fine and the imprisonment in default of payment of fine. (10) THE appellant was arrested on 21/7/1991. He has not been released on bail and has been in custody ever since. The appellant has undergone about two years and nine months sentence already. In our opinion, the ends of justice would be met if for the offence under Section 393 Indian Penal Code, he is sentenced to the term of imprisonment already undergone by him. We make an order accordingly. The sentence of fine for the offence under Section 393 Indian Penal Code and the imprisonment in default of payment of fine is, however, maintained. (11) AS a result of the above discussion, this appeal is partly allowed and the conviction and sentence of the appellant for the offence under Section 3 TADA is set aside. While maintaining his conviction tor the offence under Section 452, the sentence is reduced to two years plus a fine of Rs. 200.00 and in default rigorous imprisonment for two months and for the offence under Section 393 Indian Penal Code, he is sentenced to the imprisonment already undergone and a fine of Rs 200 and in default to undergo rigorous imprisonment for two months. (12) THE appeal is disposed of in the above terms. The sentences shall, however, run concurrently.