Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 753 (GUJ)

Mohmed Juned Shaikh v. State of Gujarat

2016-04-06

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT K.S. Jhaveri, J. 1. To understand the controversy on hand, it would be expedient to look into the history of certain events that took place after the carnage of 2002, infamously known as the Godhra carnage. On 11.03.2003, at around 2115 hrs., one Jagdish Tiwari, a leader of Hindu organization, named, Vishwa Hindu Parishad (VHP), was shot at while he was at his Medical Shop in Bapunagar area of Ahmedabad City. He, however, survived the gunshot. A complaint was registered against unknown individuals at Bapunagar Police Station vide I-C.R. No. 101 of 2003. In another incident, Haren Pandya, Ex-Home Minister of the State of Gujarat, was shot at in the early hours of 26.03.2003 while he had gone for his morning walk to Law Garden in Ahmedabad City. In respect of this incident, a complaint was registered with Ellisbridge Police Station vide I-C.R. No. 272 of 2003. Investigation into both the offences was undertaken by the local police. However, vide Notification dated 26.03.2003 issued by the Government of Gujarat and Notification dated 28.03.2003 issued by the Cabinet Secretary, Government of India, the case was transferred to Central Bureau of Investigation (for short, "the CBI") and the case was re-registered by the CBI on 28.03.2003. On the basis of evidence collected by the CBI during investigation, it appeared that the incident of attempt of murder of Jagdish Tiwari and murder of Haren Pandya were not isolated incidents but, were part of a larger conspiracy. Therefore, the case of attempt of murder of Jagdish Tiwari was also transferred to the CBI by Notification dated 28.04.2003 of the State Government and Notification dated 29.05.2003 of the Central Government. These two cases registered by the local Police Stations were treated as part of the conspiracy to strike terror amongst a section of the people, i.e. Hindus. 2. The conspiracy alleged by the prosecution is that deceased Haren Pandya was an M.L.A. of the political party, named, Bhartiya Janta Party from Ellisbridge Constituency of Ahmedabad City and had held the portfolio of Home Minister and Revenue Minister in the Government of Gujarat. It was alleged that he played an active role during the post-Godhra riots, in which hundreds of lives were lost and a large number of places of worship were destroyed. It was alleged that he played an active role during the post-Godhra riots, in which hundreds of lives were lost and a large number of places of worship were destroyed. As a larger conspiracy to strike terror was alleged, the provisions of Prevention of Terrorism Act (for short, "the POTA") were invoked in the first case of attempt of murder of Jagdish Tiwari on 11.06.2003 and in the second case of murder of Haren Pandya on 02.06.2003. At the end of investigation, one charge-sheet for both the incidents was filed by the CBI before the Special Court dealing with POTA matters on 08.09.2003 and the case was numbered as Special POTA Case No. 10 of 2003. In this charge-sheet, the accused herein was shown as absconding accused. 3. On 11.12.2003 the Special Court framed charges against 15 accused persons for the offences punishable u/s. 302, 307, 201 r/w. Section 120-B of Indian Penal Code (IPC), Sections 25(1-B)(a),27(1) and 5 of the Arms Act and Sections 3(1), 3(2), 3(3), 3(4) and 4 of the POTA. The charges under POTA were required to be dropped against accused No. 15 to 17 at the instance of Central POTA Review Committee and further proceedings against them had to be stayed pursuant to the order of the Hon'ble Apex Court in Criminal Appeal No. 1113 of 2005 in the case of Mohmad Hussain Abdul Rehman Shikh v. Union of India. Original accused No. 13, 14 & 18 were absconding, therefore, Red Corner Notices were issued against them. 4. In the meantime, Proclamation u/s. 82(1) of Cr.P.C. was issued against the accused by which the accused was required to present himself before the Special Court on 27.01.2004. However, the accused failed to appear on the fixed date. After the trial, the Special Court delivered the judgment in Special POTA Case No. 10 of 2003 on 25.06.2007 convicting the twelve accused persons under different offences. 5. The appellant herein, original accused in Special POTA Case No. 04 of 2007, surrendered before the Special Court on 09.07.2007, after the judgment was delivered in Special POTA Case No. 10 of 2003. It was alleged that the appellant had played an active role in giving final shape to the larger criminal conspiracy. Charge-sheet was filed against the appellant-accused on 03.10.2007 and charge was framed vide Exhibit-19. 6. It was alleged that the appellant had played an active role in giving final shape to the larger criminal conspiracy. Charge-sheet was filed against the appellant-accused on 03.10.2007 and charge was framed vide Exhibit-19. 6. During the trial, the prosecution had examined 81 witnesses; PW No. Name of Witness Exhibit No. 1. Dr. Pratik Ravjibhai Patel 22 2. Janaksingh Khusalsinh 23 3. Satyen Harshadbhai Patel 24 4. Dr. Virendra Kanaiyalal Shah 25 5. Jashwantsingh Himmatsinh Rathod 26 6. Dr. Hasumatiben Kalubhai Patel 27 7. Hadmatsinh Pratapsinh Vihol 28 8. Anilkumar Balvantsingh Yadav 29 9. Altaf Hussain Anvar Ali Saiyed 30 10. Bhaveshbhai Nagindas Shah 31 11. Chandrabhusan Bageshwar Tiwari 32 12. Sureshbhai Chelwaiya Patel 33 13. Popatbhai Virchandbhai Padhiyar 34 14. Jagdish Subhajit Tiwari 35 15. Anilram Yadram Patel 36 16. Dr. Kuldeep Jayantilal Joshi 37 17. Ramsinh Poodarsinh Solanki 38 18. Sanjab Akhtar Maheboob Akhtar 39 19. Ashokbhai Ambalal Shah 40 20. Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan 41 21. Ayubbhai Dadamiyan 42 22. Tawabbhai Yusufbhai Shaikh 43 23. Manojbhai Baldevbhai Patel 44 24. Maqsoodbhai Ismailbhai Mansoori 45 25. Kamlesh Bamanrao Marathe 46 26. Alpesh Ranchhodbhai Patel 47 27. Abdul Rahim Abdul Aziz Shaikh 48 28. Radheshyambhai Nagarbhai Makwana 49 29. Yusufbhai Idubhai Pathan 50 30. Jayantibhai Vitthaldas Suthar 51 31 Badiram Gangaram Parmar 52 32. Shevantilal Babulal Shah 53 33. Babarbhai Maljibhai Rabari 54 34. Shantikumar Narmadashankar Pandya 55 35. Sanjay Rameshbhai Brahmane 56 36. Alpesh Ranchhodbhai Rathod 57 37. Bipinchandra Rarmaniklal Shah 58 38. Vinayak Prabhakar Apte 245 39. Udhamsinh Ramkaransinh Solanki 282 40. Vijaysinh Prakashsinh Yadav 284 41. Nagindas Kalidas Barot 285 42. Dr. Harun Abrahambhai 288 43. Ganpatsingh Ranjitsingh Rathod 289 44. Nazirbhai Zabir Hussain Shaikh 290 45. Sirajbhai Mustufabhai Shaikh 291 46. Turk Salim Rasa Majurirule Islam 292 47. Satyendra Sriramayan Pandey 294 48. Mohmed Rafiq Majidkhan Pathan 295 49. Sikandarkhan Usmankhan Sidhe 296 50. Sajid Ibrahim Patel 297 51. Sushilkumar S. Gupta 298 52. Mohammed Jamil Nasir Mohammed 303 53. Jayantilal Hiralal Panchal 304 54. Arun Kalapur Thackare 306 55. Usmankhan Nawabkhan Pathan 308 56. Mohmmed Sharif Amir Mohmmed 309 57. Sadhu Narayandas Jivramdas 311 58. Asif Hussain Sabir Shaikh 313 59. Usmangani Mehmood Raheman Pathan 314 60. Revabhai Somabhai Chavda 317 61. Abbas Fatemohmed Seliya 322 62. Dasratsinnh @ Pintu Himmatsinh Randevar 323 63. Bharat Hiralal Kadiya 325 64. Mohmed Parikh Gulamhussain Shaikh 327 65. Kuldeep Chand Kapoor 329 66. Mohmmed Sharif Amir Mohmmed 309 57. Sadhu Narayandas Jivramdas 311 58. Asif Hussain Sabir Shaikh 313 59. Usmangani Mehmood Raheman Pathan 314 60. Revabhai Somabhai Chavda 317 61. Abbas Fatemohmed Seliya 322 62. Dasratsinnh @ Pintu Himmatsinh Randevar 323 63. Bharat Hiralal Kadiya 325 64. Mohmed Parikh Gulamhussain Shaikh 327 65. Kuldeep Chand Kapoor 329 66. Dilipbhai Kantilal Trivedi 330 67. Dahyabhai Mathurbhai Bhatt 331 68. Malvikaben Dililpbhai Bhatt 332 69. Narsaji Surtaji Prajapati 333 70. Himanshu Kanubhai Darji 344 71. V. Prabhanjan Kumar 347 72. Manohar Mohandas Tehalvani 348 73. Vasantbhai Hathibhai Patel 355 74. Dr. Amod Singh 358 75. V. Srinivasan 368 76. Viren Jagdishbhai Soni 378 77. Rameshkumar Bhavanishankar Joshi 379 78. Girishkumar Lavjibhai Singhal 381 79. Suresh D. Gajre 384 80. Rajendra Singh Chhikara 386 81. Vinit Vinayak 390 7. The prosecution had produced several documentary evidence, particularly, the FIR dated 11.03.2003 at Exh. 60, Notification dated 29.05.2003 at Exh. 61, Notification dated 20.04.2003 at Exh. 62, complaint of Jagdish Tiwari at Exh. 63, FIR dated 28.03.2003 at Exh. 70, Notification dated 28.03.2003, Notification dated 26.03.2003, complaint of Janaksinh Khusalsinh Parmar at Exh. 73, panchnama of place of occurrence of C.R. No. 272/2003 at Exh. 75, Post mortem report of Haren Pandya at Exh. 191 & 192 and CFSL Reports at Exhs. 196, 198, 200, 203 to 206, 208, 210, 300, 301, 211 & 212. 8. At the end of trial, the Special Court recorded further statement of appellant-accused u/s. 313Cr.P.C. and ultimately, passed the impugned judgment and order dated 28.02.2008, by which the accused was convicted for the offence punishable u/s. 174A of IPC but, was acquitted of the charges u/s. 302, 307, 201 and 212 r/w. Section 120-B IPC, Sections 3(1), 3(2), 3(3), 3(4) and 4 of POTA and Sections 25(1-B)(A) and 27(1) of the Arms Act. 9. Being aggrieved by the impugned judgment and order, the appellant has preferred Criminal Appeal No. 1111 of 2008 against his conviction; whereas, the State has preferred Criminal Appeal No. 207 of 2009 against the acquittal of accused of the charges u/s. 302, 307, 201 and 212 r/w. Section 120-B IPC, Sections 3(1), 3(2), 3(3), 3(4) and 4 of POTA and Sections 25(1-B)(A) and 27(1) of the Arms Act. As both these appeals arise out of the same judgment, they are decided by this common judgment. 10. Mr. As both these appeals arise out of the same judgment, they are decided by this common judgment. 10. Mr. Hriday Buch, learned counsel appearing on behalf of appellant-original accused, submitted that the Court below committed serious error in law in convicting the appellant for the offence u/s. 174AIPC. It was submitted that conviction u/s. 174A IPC could be recorded only if Proclamation, as provided u/s. 82(4) Cr.P.C., is published. He drew our attention to the provision of Section 174A IPC, which reads as under; "174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974 : Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a Proclamation has been made under Sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine." 10.1 It was submitted by learned counsel Mr. Buch that no formal Proclamation u/s. 82(4) Cr.P.C. was issued against the appellant. Hence, the conviction of the appellant u/s. 174A IPC is erroneous and it deserves to be quashed and set aside. 10.2 Learned counsel Mr. Buch further submitted that Section 174A IPC was introduced by Act 25 of 2005 with effect from 23rd June 2006. He pointed out that alleged offence was committed on 27.01.2004 when the accused allegedly did not remain present before the Special Court in pursuance of a Proclamation issued u/s. 82(1) Cr.P.C. However, by convicting the accused u/s. 174A IPC, the Special Court has given retrospective effect to the provision of Section 174A IPC. 10.3 It was submitted by learned counsel Mr. Buch that for an offence allegedly committed on 27.01.2004, conviction could not have been recorded under a provision introduced on 23.06.2006 by giving it a retrospective effect, particularly when, the offence is not a continuing one. Hence, the conviction of the appellant for the offence u/s. 174A IPC is bad in law and deserves to be quashed and set aside. 10.4 Learned counsel Mr. Hence, the conviction of the appellant for the offence u/s. 174A IPC is bad in law and deserves to be quashed and set aside. 10.4 Learned counsel Mr. Buch further submitted that the Investigating Officer never filed a complaint against the appellant u/s. 174 IPC from 2003/2004 till 2008. In fact, the appellant voluntarily surrendered on 09.07.2007. The Charge was framed on 21.11.2007, however, at that time also, no charge u/s. 174A IPC was included. The entire trial proceeded without the charge u/s. 174A IPC and therefore, the appellant had not placed his defence in counter of the charge u/s. 174A IPC. However, the Charge u/s. 174A IPC was added only on the date of passing of the impugned judgment, which has caused serious prejudice to the appellant since the appellant had no opportunity to defend himself of the charge u/s. 174A IPC. 10.5 Alternatively, it was submitted that the appellant has already remained in custody for about 17 months. No other offence has been registered against him. The appellant has settled down in life with his family and children. Therefore, if the Court is inclined to sustain the conviction, then the sentence imposed upon the appellant may be converted to one already undergone by taking a sympathetic view since no minimum sentence is contemplated under the provision or he may be ordered to pay some reasonable amount as Fine. 11. Mr. R.C. Kodekar, learned counsel appearing for respondent-CBI, supported the impugned judgment and order and submitted that the Court below has not committed any error in law and on facts while convicting the accused. It was submitted that in the earlier case being Special POTA Case No. 10/2003, the Court below believed the aspect of criminal conspiracy and the role played by the appellant. It was the appellant herein who had provided shelter and necessary financial assistance to the conspirators, who have already been convicted by the Special Court. It was, therefore, submitted that the Court below was justified in convicting the appellant for the crime in question. 11.1 Learned counsel Mr. Kodekar submitted that the Court below has rightly convicted the appellant u/s. 174A IPC. It was submitted that the appellant deliberately remained absconded and concealed himself to avoid the warrant. Earlier, the Special Court had issued Proclamation u/s. 82(1) of Cr.P.C. against the appellant, however, he failed to appear on the scheduled date. 11.1 Learned counsel Mr. Kodekar submitted that the Court below has rightly convicted the appellant u/s. 174A IPC. It was submitted that the appellant deliberately remained absconded and concealed himself to avoid the warrant. Earlier, the Special Court had issued Proclamation u/s. 82(1) of Cr.P.C. against the appellant, however, he failed to appear on the scheduled date. There was an open Warrant against the appellant as Red Corner Notice had been issued. But, the appellant conveniently surrendered only on 09.07.2007, after the pronouncement of judgment in Special POTA Case No. 10 of 2003. Therefore, it is a continuing offence and the Court below has rightly convicted the appellant u/s. 174AIPC. 11.2 Learned counsel Mr. Kodekar further submitted that the Court below ought not to have acquitted the appellant of all the other charges. He submitted that in the earlier case, the Court below has recorded specific findings regarding the larger conspiracy hatched by the convicts. The appellant herein also played a major role in that conspiracy. Therefore, the Court below ought not to have acquitted the appellant of all the other charges. Hence, the appeal filed by the State against acquittal deserves to be allowed. 12. We have heard learned counsel for both the sides and perused the oral as well as documentary evidence on record. Before we give our findings on the applicability or otherwise of Section 174A IPC on this case, it would be beneficial to look at certain facts, as it would provide us with a better insight into the issue on hand. Section 174A IPC was inserted by Act 25 of 2005 under Chapter 10 of "Contempt of the Lawful Authorities of Public Servant" and the effect was given from 23.06.2006. In view of this, specific contention was raised by learned counsel Mr. Buch appearing for the appellant that a provision notified on 23.06.2006 cannot be made use of for punishing the accused for not having appeared on an earlier date, viz. 27.01.2004, which was the date stipulated by the Special Court u/s. 82(1) of Cr.P.C. In other words, non-appearance in pursuance of a Proclamation u/s. 82(1) of Cr.P.C. was not an offence before 23.06.2006, and therefore, no retrospective effect could be accorded to Section 174A IPC. 27.01.2004, which was the date stipulated by the Special Court u/s. 82(1) of Cr.P.C. In other words, non-appearance in pursuance of a Proclamation u/s. 82(1) of Cr.P.C. was not an offence before 23.06.2006, and therefore, no retrospective effect could be accorded to Section 174A IPC. It was also argued that the word "and" in Section 174A IPC needs to be read conjointly and not in isolation and that in absence of any Proclamation u/s. 82(4) of Cr.P.C., no conviction u/s. 174A IPC could have been recorded. 13. It is true that charge u/s. 174A IPC was added during the pendency of trial. When charge-sheet was filed in Special POTA Case No. 10 of 2003 on 08.09.2003, the appellant herein was shown as "absconding accused". When other charges were framed on 21.11.2007, the charge u/s. 174A IPC was not levelled. 14. At this juncture, a reference to the provision of Section 26 of POTA is apposite; "26. If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorized by this Act or such rule or, as the case may be, under such other law." 14.1 In simple terms, Section 26 of POTA empowers the Court to try any other offence with which the accused may be charged under the Code at the same trial, if the offence is connected with such other offence. It is a matter of record that when charge-sheet was filed on 08.09.2003, the appellant was absconding. Therefore, procedure u/s. 70 of Cr.P.C. was followed and thereafter, Proclamation was issued against the appellant u/s. 82(1) of Cr.P.C. requiring the appellant to present himself before the Special Court on 27.01.2004. However, the appellant did not appear before the Special Court on the stipulated date. 14.2 In our opinion, non-appearance of the appellant on the stipulated date, i.e. on 27.01.2004, would not conclude the offence there and then. The appellant not only avoided his presence before the Special Court on 27.01.2004 but also continued to disobey the authority of law by not presenting himself before the Court on any day after that date. 14.2 In our opinion, non-appearance of the appellant on the stipulated date, i.e. on 27.01.2004, would not conclude the offence there and then. The appellant not only avoided his presence before the Special Court on 27.01.2004 but also continued to disobey the authority of law by not presenting himself before the Court on any day after that date. The appellant was required to present himself on 27.01.2004 in pursuance of the Proclamation issued u/s. 82(1) of Cr.P.C. However, he did not present himself on the said date and surrendered before the Special Court only on 09.07.2007. Therefore, during the interregnum, i.e. from 27.01.2004 to 09.07.2007, the appellant continuously disobeyed the Proclamation issued against him u/s. 82(1) of Cr.P.C. and thereby, committed the offence that was continuous. 14.3 Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, the offence is committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In case of a continuing offence, there is thus the ingredient of continuance of the offence, which is absent in the case of an offence which takes place when an act or omission is committed once and for all. In this background, it cannot be said that provision of Section 174A IPC, which was notified on 23.06.2006, would not apply to the offence committed on 27.01.2004 since the appellant continuously evaded the authority of law beginning 27.01.2004 by not presenting himself before the Special Court in compliance of the Proclamation issued against him u/s. 82(1) of Cr.P.C. Under the circumstances, we are of view that the Court below was completely justified in convicting the appellant u/s. 174A IPC. 15. 15. It was contended on behalf of the appellant that no Proclamation u/s. 82(4) of Cr.P.C. was issued against the appellant and therefore, conviction u/s. 174A IPC is erroneous since the proviso has to be read as a whole and not in isolation. However, we disagree with the aforesaid submission for the reason that there could not have been a Proclamation u/s. 82(4) against the appellant before 23.06.2006, which is the date on which Section 174A IPC was notified. Though, in its true sense, the appellant had not been declared a "proclaimed offender" u/s. 82(4) of Cr.P.C., the fact remains that Red Corner Notice was issued against him and three other accused persons. However, none of them appeared before the Special Court. An open undated Warrant was also given to the prosecuting agency, which was also directed to the foreign agencies. But, Non-bailable warrant issued against the appellant, pursuant to the Red Corner Notices issued against all the absconding accused, though did not stipulate any date of appearance, will remain in force till its execution. Issuance of Red Corner Notice and Non-bailable open Warrant clearly amounts to declaring the man a proclaimed offender. However, the fact remains that Non-bailable warrant could not be executed despite the best of efforts of the prosecution agency and the accused continued to evade appearance from the Court of law. In the above background, the willful disobedience and non-compliance on the part of the appellant is nothing but, an offence u/s. 174A IPC. 16. A contention was also raised that provision of Section 174A IPC has to be read as a whole while recording conviction u/s. 174A IPC. Section 174A IPC is in two parts and both of them are distinct. The first part requires the issuance of a Proclamation u/s. 82(1) of Cr.P.C. for nonappearance whereas, the second part requires issuance of a Proclamation for nonappearance of a "proclaimed offender". Thus, nonappearance to a Proclamation u/s. 82(1) of Cr.P.C. has a lesser gravity whereas, once having been declared a "proclaimed offender", no further procedurality is needed u/s. 82(4) of Cr.P.C. Thus, the gravity is more and punishment prescribed is also on the higher side. Therefore, both the parts could not be considered conjointly in the present case and they have to be read distinctly. 17. Therefore, both the parts could not be considered conjointly in the present case and they have to be read distinctly. 17. Insofar as acquittal of the appellant of the charges u/s. 302, 307, 201 and 212 r/w. Section 120-BIPC and Sections 3(1), 3(2), 3(3) and 4 of POTA and Sections-3, 25(1-B)(A) and 27(1) of Arms Act are concerned, it is a matter of fact that the accused surrendered himself before the Court of law on 09.07.2007 after the judgment in Special POTA Case No. 10 of 2003 was pronounced. 17.1 For proving the charge levelled against the appellant, broadly speaking, the prosecution had produced four sets of evidence; (i) the statement of appellant recorded u/s. 164 of Cr.P.C. in connection with offence registered vide I-C.R. No. 06/2003 (ii) his visit to Mumbai along with convict-Mufti Sufiyan (iii) polygraph test conducted by FSL, Gandhinagar and CFSL, New Delhi and (iv) telephone bills of Mobile Phone. 17.2 Insofar as the evidence regarding the visit of appellant to Mumbai along with convict-Mufti Sufiyan is concerned, the prosecution had failed to adduce cogent and reliable evidence to prove the complicity of appellant so as to hold him guilty of conspiring or abetting the conspiracy or extending assistance, financially or otherwise, to other accused persons. Further, the confessional statement of other accused persons qua the appellant herein cannot be used against the appellant; and, in absence of any overt act being proved on record, the visit of the appellant to Mumbai will not prove his complicity. 18. As regards the statement recorded u/s. 164 of Cr.P.C. is concerned, admittedly, it was recorded in his capacity of a Witness and not of an accused. The law on the aspect of admissibility of the statement and its appreciation in the event of non-examination of a Witness is abundantly clear. Here, it is not the statement of Witness who has turned hostile but, the statement recorded of an accused as that of a Witness in another case, where he speaks of events of the present case as well, which is sought to be relied upon by the prosecution as if it is a confession of the accused. Hence, the said statement cannot be used as evidence against the appellant herein. 19. Insofar as the result of Polygraph test is concerned, the same would not be of any help to the prosecution. Hence, the said statement cannot be used as evidence against the appellant herein. 19. Insofar as the result of Polygraph test is concerned, the same would not be of any help to the prosecution. The mobile phone records do lend corroboration to the evidence procured by the prosecution but, in isolation, the said piece of evidence would not lead anywhere. Thus, there is nothing on record to prove the complicity of the appellant in the crime except for the offence u/s. 174A IPC. Hence, the Court below was justified in convicting the appellant u/s. 174A IPC and in acquitting him from all the other charges. 20. Learned counsel Mr. Buch requested us to take a sympathetic view in the matter on the grounds that the appellant is a changed man now. He is not involved in any other offence and that he has settled down in life along with his family and children. He has already undergone jail custody of about 17 months. Learned counsel, therefore, made a suggestion that instead of sending the appellant to incarceration, he may be penalized by imposing some amount as Fine. When inquired about the amount of fine that the appellant is ready to pay, he informed that the Court may impose any amount ranging between 15 Lacs to 25 Lacs as Fine. Considering the facts and circumstances of the case and in the interest of justice, we deem it appropriate to impose Fine of Rs. 21.00 Lacs upon the appellant for conviction u/s. 174A IPC instead of sending him to incarceration. 21. For the foregoing reasons, Criminal Appeal No. 1111/2008 is partly allowed. The impugned judgment and order passed by the Court below in Special POTA Case No. 04/2007 dated 28.02.2008 is modified to the extent that conviction of the original accused u/s. 174A of Indian Penal Code and acquittal under the other offences stands confirmed; and instead of undergoing sentence, the original accused is imposed Fine of Rs. 21.00 Lacs [Rupees Twenty One lacs only], as suggested by learned counsel Mr. Hriday Buch appearing for the original accused. The said amount of Fine shall be deposited before the Registry of the Court below within a period of One Month from today, failing which the order of sentence for conviction u/s. 174A shall automatically stand revived. 21.00 Lacs [Rupees Twenty One lacs only], as suggested by learned counsel Mr. Hriday Buch appearing for the original accused. The said amount of Fine shall be deposited before the Registry of the Court below within a period of One Month from today, failing which the order of sentence for conviction u/s. 174A shall automatically stand revived. The amount so deposited by the original accused shall be utilized by the State Government for welfare schemes in the area from where the deceased leader was elected. The impugned judgment and order stands modified accordingly. In view of the above order, Criminal Appeal No. 207/2009 stands dismissed. Bail bonds stand cancelled.