Page No.# 1/41

GAHC010250882018

2026:GAU-AS:1073

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Death Sentence Ref./5/2018

NATIONAL INVESTIGATION AGENCY (NIA)

REPRESENTED BY SC, NIA

VERSUS

BISHNU NARZARY ANR

ASSAM

2:AJOY BASUMATARY

ASSAM

Advocate for the Petitioner : SC, NIA,

Advocate for the Respondent : MR N DUTTA (R2), MR. N N B CHOUDHURY (R2),MR. N

SARKAR (R2)

Linked Case : Crl.A./342/2018

SRI NITUL DAIMARY @ NAIHAB

S/O JOGESHWAR DAIMARY

VILL. HIRIMBAPUR NO. 2

P.S. DHEKIAJULI

DIST. SONITPUR

ASSAM

PIN 782124

VERSUS

Page No.# 2/41

THE NATIONAL INVESTIGATION AGENCY (NIA)

REPRESENTED BY THE PUBLIC PROSECUTOR

------------

Advocate for : MR. M SARANIA

Advocate for : SC

NIA appearing for THE NATIONAL INVESTIGATION AGENCY (NIA)

Linked Case : Crl.A./93/2019

BISHNU NARZARY @ N. BERAMA

S/O- SUNIL NARZARY

VILL- BATASHIPUR

P.S.-DHEKIAJULI

DIST- SONITPUR

ASSAM. PIN-784110.

VERSUS

THE NATIONAL INVESTIGATING AGENCY (NIA)

REPRESENTED BY THE STANDING COUNSEL

------------

Advocate for : MR. M SARANIA

Advocate for : SC

NIA appearing for THE NATIONAL INVESTIGATING AGENCY (NIA)

Linked Case : Crl.A./358/2018

SRI AJOY BASUMATARY @ B. BUHUM

S/O SR BOLENDRO BASUMATARY

PERMANENT R/O VILL. DULIGAON

P.S. BISWANATH CHARIALI

DIST. BISWANATH CHARIALI

ASSAM.

VERSUS

Page No.# 3/41

NATIONAL INVESTIGATION AGENCY AND ANR

REPRESENTED BY SPECIAL PP

NIA

2:THE STATE OF ASSAM

REPRESENTED BY PP

ASSSAM.

------------

Advocate for : MR N DUTTA

Advocate for : SC

NIA appearing for NATIONAL INVESTIGATION AGENCY AND ANR

Linked Case : Crl.A./171/2019

SRI SANJU BORDOLOI

S/O- LATE DIMBESWAR BORDOLOI

R/O- VILLAGE- KULAJARI

DIMORIA

P.S.- KHETRI

DIST- KAMRUP

PIN-782403

ASSAM.

VERSUS

THE NATIONAL INVESTIGATION AGENCY

REPRESENTED BY STANDING COUNSEL

NIA

------------

Advocate for : MR K K KALITA

Advocate for : SC

NIA appearing for THE NATIONAL INVESTIGATION AGENCY

BEFORE

HON’BLE THE CHIEF JUSTICE ASHUTOSH KUMAR

HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

Page No.# 4/41

For the Appellants : Mr. K. Gogoi, Public Prosecutor, Assam

assisted by Mr. R. R. Kaushik, Additional

Public Prosecutor, Assam, for the State in

Death Sentence Ref. No. 5/2018.

Mr. A. K. Bhattacharyya, Senior Advocate

assisted by Mr. D. K. Bhattacharyya for the

appellants in Crl. A. No. 342/2018, Crl. A. No.

358/2018, Crl. A. No. 93/2019 and Crl. A.

No. 171/2019.

For the Respondents : Mr. A.K. Bhattacharyya, Senior Advocate

assisted by Mr. D. K. Bhattacharyya for the

respondents in Death Sentence Ref. No.

5/2018.

Mr. K. Gogoi, Public Prosecutor, Assam.

Mr. R. R. Kaushik, Additional Public

Prosecutor, Assam.

Amicus Curiae : Mr. K. Agarwal, Senior Advocate/Amicus

Curiae in Death Sentence Ref. No. 5/2018.

Date on which Judgment is

Reserved : 08.12.2025

Date of pronouncement of

Judgment : 30.01.2026

Whether the pronouncement

is of the operative part of the

Judgement : NA.

Page No.# 5/41

Whether the full Judgment has

been pronounced : Yes.

JUDGMENT & ORDER (CAV)

(A.D.Choudhury, J)

1. The Death Sentence Ref. No. 5/2018, Crl. A. No. 342/2018, Crl. A. No.

358/2018, Crl. A. No. 93/2019 and Crl. A. No. 171/2019, have been heard

together and are being disposed of by this Common Judgment and Order.

2. We have heard Mr K. Gogoi, learned Public Prosecutor, Assam, assisted by

Mr. R. R. Kaushik, learned Additional Public Prosecutor, Assam, for the State in

Death Sentence Ref. No. 5/2018 and Mr. A. K. Bhattacharyya, learned Senior

Advocate, assisted by Mr D. K. Bhattacharya, learned Advocate for the

appellants in Crl. A. No. 342/2018, Crl. A. No. 358/2018, Crl. A. No. 93/2019 and

Crl. A. No. 171/2019. We have also heard Mr K. Agrawal, Learned Amicus

Curiae.

3. By the impugned judgment dated 29.08.2018 and Order of sentence

dated 15.09.2018 passed by the learned Special Judge, NIA, Assam, Guwahati

in Special NIA Case No. 04/2015, the accused/appellants were convicted and

sentence in the following manner:-

Sl.

No.

Accused/Appellants Conviction Sentenced

1.Sanju Bordoloi I. U/S 121 IPC

Imprisonment for life

and fine of Rs.

10,000/- i.d. SI for 1

year.

Page No.# 6/41

II. U/S 16(1)/18/20

of UA(P) Act.

Imprisonment for life

and fine of Rs.

10,000/- i/d SI for 1

year.

2.Bishnu Narzary I. U/S 302/34 IPC.

II. U/S 25(1A) of

Arms Act.

III. U/S 5 of

Explosive

Substance Act.

IV. U/S 121 IPC.

V. U/S 307 IPC

Death Sentence.

R.I. for 7 years and

fine of Rs. 5000/- i/d

to suffer SI for

another period of 6

months.

R.I. for 7 years and

fine of Rs. 5000/- i/d

to suffer SI for

another period of 6

months.

Imprisonment for life

and fine of Rs.

10,000/- i/d to suffer

SI for 1 year.

RI for 10 years and

fine of Rs. 10,000/- i/d

to suffer SI for 1 year.

Imprisonment for life

and fine of Rs.

Page No.# 7/41

VI. U/S 16(1)

(a)/18/20 of

UA(P) Act.

10,000/- i/d to suffer

SI for 1 year.

3.Ajoy Basumatary I. U/S 302/34 IPC.

II. U/S 121 IPC.

III. U/S 307 IPC.

IV. U/S

16(1)a/18/20 of

UA(P) Act.

Death.

Imprisonment for life

and fine of Rs.

10,000/- i/d to suffer

SI for 1 year.

RI for 10 years and

fine of Rs. 10,000/- i/d

to suffer SI for 1 year.

Imprisonment for life

and fine of Rs.

10,000/- i/d to suffer

SI for 1 year.

Page No.# 8/41

4.Nitul Daimary I. U/S 121 IPC.

II. U/S 16(1)

(a)/18/20 of

UA(P) Act.

Imprisonment for life

and fine of Rs.

10,000/- i/d to suffer

SI for 1 year.

Imprisonment for life

and fine of Rs.

10,000/- i/d to suffer

SI for 1 year.

4. The prosecution case in a nutshell is that on 23.12.2014, the villagers of

Santipur and Hatijuli area under Dhekiajuli Police Station were attacked by the

cadre of the extremist group of NDFB(S). The incident of firing took place

between 04:00 PM and 05:00 PM. In the aforesaid incident, six people died, and

two were injured. Accordingly, a GD entry was made, and Assam Police

started an investigation. The dead bodies were sent for post-mortem, and the

injured were sent for medical examination and treatment in the Kanaklata Civil

Hospital, Tezpur.

5. PW-1, Lakheswar Mirdha, lodged the FIR. Accordingly, Dhekiajuli PS Case

No. 738/2014 was registered. The Assam Police continued the investigation until

06-01-2015, when it was handed over to the National Investigating Authority (in

short, NIA). Thereafter, the National Investigating Authority continued with the

investigation and filed a charge sheet against the four appellants before the

Special Judge, NIA, Assam.

6. The learned Special Judge framed charges under Sections 120B, 121,

121A, read with Sections 302, 307, and 34 of IPC, Sections 7, 25(1-A) Arms Act,

Section 5 of Explosive Substance Act and Sections 16(1)(a), 18 and 20 of

Page No.# 9/41

Unlawful Activities (Prevention) Act, 1967, and read over to the accused, to

which the accused pleaded not guilty, and accordingly, the trial proceeded.

7. During the Trial, to bring home the charges, the prosecution examined as

many as 63 witnesses and exhibited 130 numbers of documents and material

exhibits. The accused were examined under Section 313 CrPC. The defence did

not lead any evidence in their defence.

8. Thereafter, the impugned judgment and sentence was passed by the

learned Special Judge, Assam, convicting and sentencing the accused as

detailed hereinabove.

9. Assailing the impugned judgment, Mr. A. K. Bhattacharya, learned Senior

Counsel for the Appellants, first challenges the validity of the sanction,

contending that a competent authority did not accord it in accordance with

law. Though Exhibit 27 refers to a recommendation for sanction, such a

recommendation neither forms part of the sanction order nor was proved

before the trial court, thereby depriving the appellants of an opportunity of

cross-examination. It is further urged that the timelines prescribed under the

UA(P)A Sanction Rules 2008 were not adhered to.

10. Learned Counsel next assails the reliability of eyewitnesses. PW4, a child

witness aged about 13 years at the time of the occurrence, identified the

accused Ajay for the first time in court without any prior test identification

parade, despite admitting to having only a fleeting glance at the assailants.

Such dock identification, it is argued, is inherently weak.

11. PW53, aged about 9 years at the relevant time, allegedly identified the

accused Bishnu through photographs; however, the source and authenticity of

the photographs were not proved. PW49, not a cited witness in the charge

sheet, was later made to identify the accused Bishnu, rendering such

identification doubtful.

12. Reference is also made to Exhibit 101, a photo identification memorandum

of one Rajen Hemron, a minor, who was never examined, nor does the

Page No.# 10/41

memorandum bear the signature of the investigating officer. PW40, though

claiming to have witnessed the shooting, neither named nor identified any

accused, rendering his testimony of no evidentiary value.

13. With regard to the linkage of the appellants with NDFB, reliance placed by

the prosecution on later pads and cadre lists, Exhibits 77, 95 and 99, is assailed

on the grounds that their authenticity and evidentiary value were not duly

proved.

14. Similarly, intercepted phone transcripts are challenged as PW19 failed to

disclose who prepared the transcript. The certificate issued under Section 65B

does not reveal the identity of the translator, the computer system used, or the

exact process adopted and contains ambiguous opinions, thereby failing to

meet the mandatory requirement of Section 65B of the Evidence Act. Reliance

is placed on Anwar P V versus PK Basir, 2014, 10 SCC 473, Arjun Panditrao

Kotkar versus Kailash Kusandrao Grantial, 2020, 7 SCC 1 and Sundar @

Sundarajan versus Inspector of Police, 2023, 2 SCC 671.

15. Similar infirmities are pointed out in Exhibits 92 and 85, including a lack of

endorsement by PW44 that the contents were true to his knowledge and belief.

The seizure of the NDFB’s cash register is also questioned as it was seized from

one Durga Boro, who is neither an accused nor shown to be an NDFB cadre or

conspirator. Regarding disclosure and recovery, it is argued that arms and

exclusives were seized by the Assam Police prior to the transfer of the

investigation to the NIA. In contrast, the disclosure memo, Exhibit 109, was

recorded later by the NIA.

16. It is argued that the contradiction regarding the place of arrest, prior custody

of arms, and inconsistencies in handing over memos raise serious doubt about

the alleged recoveries under Section 27 of the Evidence Act. The prosecution

has also failed to clearly establish the number of grenades allegedly recovered,

thereby undermining the entire recovery narrative, argues the learned senior

counsel.

Page No.# 11/41

17. On the discovery of fact under Section 27, reliance is placed on Muhammad

Inayatullah versus State of Maharashtra, 1976, 1 SCC-828, contending that only

the admissible portion of the statement can be relied upon. It is further urged

that recovery alone cannot sustain conviction without corroboration, relying on

Waqar versus State of UP, 2011, 3 SCC-306 and Bijoy Kumar versus State of

Rajasthan, 2014, 3 SCC-412.

18. Summing up, learned Senior counsel submits that serious investigation lapses

entitle the appellants to the benefit of doubt, relying on Rampal Pithwa versus

State of Maharashtra, 1994, supplementary to SCC-73 and State of UP versus

Wasif Haider, 2019, to SCC-303

19. On sentencing, it is argued that the mandatory requirement of assessing the

possibility of reformation before imposing the penalty, as enunciated in Basant

Singh, was not complied with.

20. Accordingly, acquittal is prayed for.

21. Par Contra, Mr. K. Gogoi, learned Public Prosecutor, submits that the validity

of the sanction must be challenged at the earliest stage, and no justification

has been offered for raising it belatedly in appeal. According to him, the

sanction was duly granted and proved by a competent authority.

22. Relying on Dhanaj Adab alias Zahu, it is argued that the absence of a test

identification parade does not render dock identification inadmissible if found

trustworthy.

23. On photo identification, reliance is placed on Lakshmira Shetty versus Tamil

Nadu, 1988, 3 SCC-319, to contend that photographic identification is a

recognised mode of identification.

24. The disclosure statement and recoveries are asserted to be duly proved, and

the non-examination of independent witnesses is not fatal. Reliance is placed

on Rizwan Khan versus State of Chhattisgarh, 2020, 9 SCC-627.

25. As regards electronic evidence, it is contended that the certificate under

Page No.# 12/41

Section 65B is not necessary where the original electronic record is produced.

26. We have given anxious consideration to the submissions advanced by the

learned counsel for the parties. Also, perused the material available on record.

27. The vital prosecution witnesses are PW-1 the informant; PW-39, PW-40, PW-53,

PW-57, PW-58 and PW-59, the villagers; PW-4 and PW-53 the two eyewitnesses;

PW-15 a witness to photo identification parade; PW-17, who collects different

photographs of terrorist from various sources; PW-49 witness to photo

identification; The witness relating to the seizure of the arms and ammunition

such as PW-37, PW-38, PW-9, PW-51 and PW-63; The witness relating to

interception of mobile phones conversation i.e. PW-20 and PW-19; the witness

recording of voice sample i.e. PW-21; PW-63, PW-32, PW-44 and PW-45.

28. For the sake of completeness, the evidence of the aforesaid witnesses is

summarised below:

I. PW-1, Shri Lakheswar Mirdha, President of the Assam Tea

Tribes Students Association, is the informant who lodged the FIR on

24.12.2014. He proved Exhibit-1, FIR and his signature therein.

In cross-examination, he stated that he received information about the

incident over the phone from the members of the Association at about

6:00 pm on 23.12.2014 and lodged the FIR on 24.12.2014.

II. PW-39, Shri Deepak Urang, a villager deposed that on

23.12.2014, at around 4/4:30 pm, he along with other friends were

confronted by 7/8 cadres of NDFB(S) with arms and informed that they

had killed villagers and that when this witness reached the village, saw

the dead bodies of mother and elder brother of his friend Rajen Hemron

who were killed by the NDFB cadres. According to him, six villagers were

killed by the NDFB(S) cadres, and two villagers received bullet injuries.

In cross-examination, he testified that NIA had recorded his statement,

but the police had not questioned him.

Page No.# 13/41

III. PW40, Smt. Bimala Kurmi deposed that on 23.12.2014 at

around 4.30/5.00 p.m., she, her sister-in-law, father Mahabir Kurmi and her

children were sitting in their courtyard. Suddenly, they saw some NDFB

cadres killed Karna Hemrom by firing bullets from firearms in front of his

house, which is situated just opposite their house. Witnessing the incident,

her father asked them to run away. PW40 further deposed that she could

not run away because of her ill health and she entered into her dwelling

house. Her father and sister-in-law ran away, and her 3-year-old minor

daughter was with her father. The NDFB cadres chased h er father,

Mahabir Kurmi and shot him dead in the paddy field in front of their

house. Her minor daughter escaped unhurt and started crying, and then

she came out to take her back. The said NDFB cadres took away the

mobile handset of her father. On earlier occasions, the NDFB cadres with

arms visited their village, and on the day of the incident, they could not

anticipate that the NDFB cadres would kill them.

In cross-examination, PW40 stated that NIA had recorded her statement.

She denied the fact that she had not stated before the NIA that she

could not run away because of her ill health, and entered into her

dwelling house and also denied the fact that she had not stated before

the NIA that the NDFB cadres chased her father, Mahabir Kurmi and shot

him dead in the paddy field in front of their house. She also denied that

she had not stated before NIA that on earlier occasions, the NDFB cadres

with arms visited their village. PW40 further admitted that she had not

stated before the NIA that NDFB cadres were involved in the incident.

IV. PW53, Sh. Suresh Bhengra, another eyewitness, deposed that

about 3 years back, his mother Bhingni Bhengra was killed by a terrorist in

their village residence on 23

rd

December at around 4 P.M. He can

identify the terrorist who fired and killed his mother. PW53 was shown

several photographs where he identified two photographs of the terrorist,

Page No.# 14/41

who killed his mother and put his signature on the back side of the

photographs in the presence of Officials. Material Ext. 9 and 10 are two

photographs of the said terrorist, who killed his mother.

In cross-examination, PW53 deposed that NIA did not examine and

record his statement. The Assam police examined him and recorded his

statement in the presence of his father. During the cross-examination, he

admitted that some persons were wearing black cloths covering their

faces. PW53 further deposed that their house consists of four connected

rooms, with no electrical connection. There were two doors in two rooms,

and the other two rooms had only frames without doors. The room where

he was hiding had a wooden frame with hanging curtains. He further

deposed that he did not know the contents of the Ext. 101, having two

pages, as it was written in English because he could not read or write in

English language. He further admitted that the signatures of the witnesses

and others in Ext. 101/1,101/2,101/3 and 101/4 were not put in his

presence.

PW53 admitted that before identifying the accused in the photograph,

he had not explained the physical features of the said accused to any

official.

V. PW-57, Smt. Joba Hemron, a villager of Hatijuli deposed that

on 23.12.2014, after returning from market, she found her dauther Bela

Hemrom was lying on the bed with a pool of blood spread all over her

body. When she asked her daughter, Bella stated that 3 NDFB militants

entered the house and fired bullets at her, due to which she sustained

bullet injuries and later on, Bella died.

In cross-examination, she testified that she did not file any written Ezahar

and that the police came to her village and recorded her statement.

NIA also recorded her statement. She denied mentioning the word NDFB

in her statement to the NIA.

Page No.# 15/41

VI. PW-58, Smt. Salomi Hajda, a villager of Hatijuli village, stated

that after returning from the market, on 23.12.2014, at about 3 PM, she

found her husband Budrai Hajda in a pool of blood, as he sustained

bullet injuries and when she asked her husband about his condition, he

replied that NDFB cadres fired upon him, due to which he sustained

bullet injuries in his stomach.

In cross-examination, she testified that police interrogated her after the

incident. Still, she cannot say if the police recorded her statement, and

she admitted that she was not present at the time of the incident.

VII. PW-59, Smt. Archumoni Hemrom , a farmer, deposed that on

23.12.2014, while she reached home after returning from the paddy field,

suddenly, Bodo militants started firing on her along with the family

members, and they ran away from the spot. But her husband , Karna

Hemrom, sustained bullet injuries and died on the spot.

In cross-examination, she testified that her village organisation submitted

a written ezahar. Police did not meet her , nor did she make any

statement before the police.

VIII. PW4, Sh. Kati Hemron, an eyewitness, deposed that on

23.12.2014, two Bodo persons entered their house with guns and asked

for drinking water, but before they could fetch the drinking water, one of

them shot his elder brother, who subsequently died on the spot. When his

mother tried to escape, she was also shot dead. PW4 further deposed

that he also received a bullet injury on the right side of his chest, but he

was treated at Tezpur Medical College. PW4 had seen the assailants,

whom he could now identify in court. PW4 looked at the accused

persons and other persons present in the court and identified Ajay

Basumatary.

PW4 was interrogated in Tezpur Police Station, and the Police recorded

his statement. PW4 did not give any facial description of the assailants to

Page No.# 16/41

the police. PW4 denied the fact that while the assailants were firing at his

mother and brother, he did not see their faces. PW4 also denied falsely

identifying the person in court as one of the assailants.

IX. PW15, Sh. Jayanta Sarkar, an Executive Magistrate, deposed

that he was officially deputed to conduct inquest over the dead bodies

pertaining to the mass killings in Hatijuli village. Accordingly, PW15

conducted inquest over the bodies and prepared inquest reports

mentioning the visible injuries. He proved the inquest reports as Ext. 7,

Ext.10, Ext.13, Ext. 18, Ext.21 and Ext. 24.

In cross-examination, PW 15 stated that in Ext. 7, 10, 21, and 24, there are

corrections with whitener, without an initial, in respect of the case

numbers. In Ext 13 and 18, the GDE entry number and date of the

concerned Police Station were not entered by him, and he could not say

who had entered the same. In Ext. 7, 10, 13, 18, 21, 24, there is no official

seal. In the aforesaid Inquest reports, namely Ext. 7, 10, 13, 18, 21, the time

of receipt of the dead bodies was not mentioned, and the date

mentioned therein also had overwriting without his initial. In Ext 24, the

date of receipt of the dead body mentioned as 23.12.2014 was not in his

handwriting. In the aforesaid Inquest reports, there were two witnesses in

each Inquest; however, the details of only one such witness were

mentioned. In Ext. 10, Inquest report, there was no entry in the column of

description of Injury mark. He denied that, in preparing the Inquest report,

he did not apply his mind and also that he had prepared the Inquest

report mechanically.

X. PW-17 Shri Prafulla Kumar Bora, DSP Headquarters Tezpur,

testified that they usually collect different photographs of terrorists from

different sources. On 11.06.2015, he handed over 11 photographs of

members of NDFB(S) cadres to NIA, which were seized by R.S. Tyagi, DSP

NIA, Guwahati vide Exhibit-35 (production-cum-seizure memo). He

Page No.# 17/41

proved Material Exhibits-9 & 10 to be two photographs among the 11

photographs provided under Exhibit 35.

During cross-examination, this witness admitted that NIA did not record

his statement; the source of Exhibit-35 is not mentioned; while handing

over the photographs to NIA, no witness was there; and that the source

did not supply any memory stick/negatives, etc. of the 11 photographs,

including that of Material Exhibits 9 & 10.

XI. PW49, Smt. Liza Talukdar, Circle Officer, Thelamara, deposed

that on requisition received from NIA, she and her Senior Mr. Jayanta

Sarkar, Circle Officer, Dhekiajuli, took part in a photo identification

process as witnesses. On 12.6.15 at about 12.30 hours , a photo

Identification parade was conducted at the Dhekiajuli Circle Office in

their presence. At the chamber of Mr. Jayanta Sarkar, a total of 11

photographs, bearing Sl No. 1 to 11, were laid down. A witness, namely

Suresh Bhengra, aged 8 years, accompanied by his father Sri Chemmel

Bhengra of Hatijuli Village under Dhekiajuli PS, Dist-Sontipur, was called

inside the room, to identify the photographs of any assailant seen in the

11 photographs who were present or involved in the Killing of Adivasi

people at village Hatijuli and Shantipur on 23.12.2014. After carefully

analysing the said 11 photographs, the witness, Suresh Bhenggra,

identified two photographs bearing Sl. No. 6 & 10 as the person/assailant

who was involved in the killing of Adivasis on 23.12.2014 at Hatijuli and

Shantipur village. Sh. Jayanta Sarkar reshuffled the said photographs and

asked the witness Suresh Bhenggra to re-identify them. PW49 re-identified

the two photographs in question bearing Sl. No. 6 & 10, and as a token of

correctness of his identification to the said photographs, the said witness

put his signature on the back side of the identified photographs. She

proved Ext. 101 as the memorandum prepared in connection with said

photo identification process after the witness identified the said two

photographs out of 11 photographs. The witness Suresh Bhenggra had

Page No.# 18/41

put his signature in their presence. The witness Suresh Bhenggra was

produced before them by the NIA on 12.6.2015 to participate in the said

proceeding. The proceeding was completed at about 13.00 hours.

In cross-examination, PW 49 stated that she was not given any written

order to attend the photo identification process at the Circle Office,

Dhekiajuli. PW 49 further stated that she was not shown the negatives of

the said 11 photographs at the Circle Office, Dhekiajuli and in the Court.

She further stated that she does not know whether the said photographs

were manipulated and that she never saw them before the

identification. PW49 denied that Ext. 101 was prepared without following

the due procedure of law.

XII. PW-37, Shri Keshab Ranjan Choudhury, is a Sub-Inspector of

Assam Police and Investigating Officer of BNC PS Case No. 15/2015.

According to this witness, during the investigation of the said case, he

arrested accused Bishnu. On interrogation, Bishnu disclosed voluntarily

about the arms and ammunition kept by him and on 12.01.2015, he led

the police to the place where arms and ammunition were kept, and this

witness recovered the arms and seized under Exhibit-68. According to

him, the seized articles were handed over to the NIA later on.

According to this witness, he also conducted the investigation of BNC PS

Case No. 23/2015 and arrested accused Nitul, accused Runilius and

accused Sokson Basumatary. On interrogation, the accused persons

disclosed voluntarily about the arms and ammunition kept by them and

led them to the place where the same were kept. He seized an AK-56

Rifle bearing No. 29830652 with one magazine and handed over the

same to NIA. He also handed over the material Exhibits 11 to 16 to NIA in

connection with RC-04/2014/NIA-GUW.

In cross-examination, he testified that NIA did not record his statement.

He does not know whether the seizure list, which he exhibited as Exhibits

Page No.# 19/41

68 & 71, had any relation to the present NIA Spl. Case No. 4/2015. In

Exhibits-68 & 71, there is no independent witness except the police

officials. He denied that the accused Bishnu Narzary had not put his

signature on Exhibit 68. In Exhibit 71, he did not mention specifically from

whose conscious possession the seized arms were recovered.

XIII. PW-38, Shri Krishna Kanta Doley, Sub-Inspector of Assam Police,

on instructions Sr. Officer, Addl. S.P. (HQ), investigated the BNC P.S. Case

No. 23/2015, and during the investigation, accused Nitul Daimary was

arrested. On interrogation, the accused voluntarily disclosed the arms

and ammunition kept by him. On 30.01.2015, he led to the place where

the arms and ammunition were kept and seized the same vide Seizure

List Ext. 72. He seized two M-22 Rifle bearing Nos. 0898348 & 00320001 with

Magazines (Material Ext. 12 & 13). Again, on 03.02.2015, he seized one HK

33 Rifle with Magazine, one M-22 Rifle bearing No. 0898776 with

Magazine loaded with 3 rounds, and one M-81 Rifle bearing No. A0.2905

with Magazine (Material Ext. 14, 15 & 16 respectively). Material Exts.

12/1,13/1,14/1, 15/1 & 16/1 are the Magazines recovered and seized

along with the aforesaid arms.

In cross-examination, he testified that he does not know whether the

seizure list, which he exhibited as Ext. 72 & 73 have any relation to the

present NIA Spl. Case No. 4/2015 and that he had not seen the extract

copy of GD entries in connection with Sootea P.S. to Biswanath Chariali

PS and recovery of arms and ammunition of Biswanath Chariali P.S. Case

No. 23/2015. He denied that he did not seal and pack the seized arms

vide Seizure List Ext. 72 & 73. He admitted that he did not see the

photographs/sketch map of the location and condition before the

recovery and securing of the articles mentioned in Ext. 72 & 73.

XIV. PW-9, Sh. Chayaram Doimary, one NDFB cadre stated that in

1998, he surrendered before the then Chief Minister of Assam and on the

Page No.# 20/41

day of surrender he fled from the NDFB camp, so he could not carry his

arms with him and no arm was deposited. PW9 further stated the family

member of Nitul Doimary @ Naihab requested him to see that Nitul

Doimary @ Naihab is rescued from the cadre of NDFB, who was working

as Deputy Commander of NDFB and accordingly, he led accused Nitul

Doimary @ Naihab to Bishwanath Chariali Police Station where he was

arrested. PW9 further stated that at the time of arrest accused Nitul

Doimary handed over a black coloured mobile to him to hand over the

same to his family member but NIA confronted him and took the mobile

set from PW19.

In cross-examination, PW9 testified that he was arrested and put to jail.

PW9 further testified that around 1997-98 he abandoned NDFB and after

his abandonment, he was not related to any recruitment for NDFB.

XV. PW-51, Shri Dinesh Basumatary, presently a businessman, was a

member of NDFB cadre. He deposed that he brought Nitul Daimary @

Naihab to Biswanath Chariali P.S. for surrendering before the authority just

after the killings of Advasi. He was arrested, and at the time of arrest, he

handed over one mobile to this witness. Thereafter, NIA official rang him

up and enquired about the mobile and asked him to produce it before

the NIA and on production, the same was seized by NIA. Ext. 104 is the

said production cum-seizure memo, and Material Ext-26 is the said mobile

handset. This witness testified that he knew the different cadres of NDFB.

On 23.12.2014, an incident of killing of Adivasi people took place at

Dhekiajuli, which was carried out by NDFB(S) and in the said incident,

Ajoy Basumatary Buhum and Bishnu were directly involved under the

instruction of Nitul Daimary, Deputy Commanding Officer of NDFB in

Sonitpur District.

In cross-examination, he stated that NIA did not record his statement. He

denied that Naihab never handed over any mobile handset to him to

Page No.# 21/41

hand over the same to the family members , and that Naihab, Ajoy

Basumatary & Bishnu were not NDFB cadres and were not involved in the

incident of killing of Adivasi.

XVI. PW-63, Sri Ranveer Singh Tyagi, Deputy S.P., NIA HQ, New Delhi,

deposed that he was entrusted to investigate the cases as CIO, with the

assistance of AIOs under the NIA Guwahati Branch. On 27.12.2014,

Dhekiajuli P.S. Case No. 738/2014 was handed over to NIA along with

other cases of killings committed by NDFB(S). He started the investigation

and took over the documents, materials, arms and ammunition from the

Assam Police vide handing and taking over memo dated 06.01.2015. The

handing over and taking over procedure started from the evening of

06.01.2015 and was completed on the morning of the next day, i.e.,

07.01.2015. Ext. 53 is the said handing/taking over memo. On 02.01.2015,

he visited the place of occurrence along with the investigation team. He

recovered four empty cases likely to be of AK 47 Rifle and two fired bullet

heads likely to be of AK 47 Rifle in the presence of witnesses, namely,

Anut Orang and Badka Hembrom . Ext. 114 is the said search and seizure

dated 02.01.2015. He again visited the place of occurrence and

recovered two empty cases likely to be of 5.56 rifle, 1 missed fire of

potential to be of AK 47 Rifle, one empty case likely to be of AK 47 Rifle,

one bullet head of AK 47 rifle ,one bullet head of .22 Rilfe and one

sample of burnt wooden pieces of ashes and seized the same from the

place of occurrence. Ext. 47 is the said search and seizure list and Ext.

47/1 is the signature of Narayan Kurmi and Ext. 47/2 is the signature of

Junus Bhenggra as witness.

During interrogation of the arrested accused persons, he found that one

of the main accused, Sanju Bordoloi, was hiding in Bangalore and

immediately informed the same to the DCP Bangalore and finally

arrested the said accused at Bangalore. During personal search, one

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PAN card (Mat. Ext. 34) in the name of the said accused, one back

colour mobile handset (Mat. Ext.23), one Vodafone SIM (Mat. Ext. 24)

and one memory card of 2 GB were found (Mat. Ext.25). He produced

the arrested accused person before the Court at Bangalore and

obtained transit remand.

XVII. PW20, Sh. Bhaba Kumar Bora, Inspector, SOU, Special Branch (SB),

Assam Police, Guwahati, deposed that he has been looking after the IT

Section since 2010, and they used to do lawful interceptions of mobile

phone conversations of terrorists/extremists. PW20 further deposed that as

directed by their Controlling S.P., PW19, he retrieved the data from

database and recorded in sterile Moserbaer CD Pro which was marked

as CD-II (Sonitpur) along with required certification U/S 65(B) of Indian

Evidence Act which was forwarded to the NIA, Guwahati by S.P. These

Intercepted conversations were in Bodo language which was

subsequently translated into English language by his colleagues who

were conversant with Bodo and English language. He exhibited Mat. Ext.

1 as the said Moserbaer CD Pro marked as CD-II (Sonitpur), which

contained the intercepted conversations of NDFB(S) cadres copied and

recorded by him.

In cross-examination, he stated that he did not physically intercept the

mobile phone conversations. PW 20 further said that in Ext.42, he had not

mentioned in which period he was in charge of the office computer

where the aforesaid conversations were stored. PW 20 denied that while

storing the enclosed sterile CD of Moserbaer CD Pro from mobile phone

conversations is tempered and manipulated. PW20 further stated that he

did not see the order issued by PW19, under which he retrieved the data

from the database and recorded it in a sterile Moserbaer CD Pro, which

was marked as CD-II (Sonitpur). PW 20 also denied that Ext.42

interception of mobile phone conversations was not lawfully done.

Page No.# 23/41

XVIII. PW19, Smt. Banya Gogoi, S.P., SOU, Assam, under Special Branch,

Assam Police, Kahilipara, Guwahati testified that since 2007, has been

looking after mainly the collection of extremist Intelligence Inputs using

both human resources and scientific techniques and devices. They

usually collect conversations intercepted under lawful interception on

mobile phones by various terrorists/extremists involved in various unlawful

activities. They mainly collect those interceptions of telephonic

conversations made by cadres of different active terrorist/extremist

organisations of Assam. They also intercepted telephonic conversations

of NDFB(S) cadres and stored them in their database system, which is a

secret matter. In order to maintain a law and order situation, they share

these interceptions and intelligence inputs with other law-enforcing

agencies of both the central and state governments. On 15.6.2015, PW19

received a requisition from NIA, Guwahati vide letter No.RST/CIO/RC-

04/2014/3150 dtd 15.6.2015 signed by one Ranbir Singh, DSP, NIA,

Guwahati for providing further copies of lawful interceptions of mobile

phone conversations of NDFB(S) cadres through mobile phones (Ext.37).

For lawful interception of conversations through mobile phones ,

permission from the competent authority is necessary under Indian

Telegraph Act, 1885. They were issued such orders from the competent

authority for lawful Interception of conversations.

She proved Ext.38, Ext.39 & Ext.40, all are in two sheets each, as those

orders under the Indian Telegraph Act, 1885, issued by the Principal

Secretary to the Govt. of Assam, Home & Political Deptt, who is the

competent authority. These lawful interceptions are done by competent

and experienced police personnel under her supervision. The

conversations through phones, which are made in local languages, are

translated into English. Trained personnel under the department know

different local languages of Assam. The conversations made by NDFB(S)

cadres on phones are in the local Bodo language and are intercepted

Page No.# 24/41

by personnel conversant with the Bodo language. The NDFB(S) cadres

also use code language, which is known to them. They decipher the

code languages and act accordingly. They provided the translated

transcript of the lawful interceptions of mobile phone conversations to

NIA, Guwahati. Ext 41 is the forwarding letter, by which PW19 forwarded

20 sheets of translation of the transcript of legal interceptions of mobile

phones Nos. 8752882490 along with one CD containing those

intercepted conversations used by NDFB(S) extremists NAIHAB and other

NDFB(S) cadres for the period from 23.12.2014 to 24.12.2014. These

intercepted conversations pertained to the killing of Adivasis by NDFB(S)

cadres.

For the purpose of identifying these 20 sheets, they are marked as “Mark-I

to Mark-XX". The transcript materials were retrieved from the Database by

her competent staff, Inspector, Bhaba Kumar Bora (PW20) , which was

subsequently translated into English by other skilled staff who are

conversant with the Bodo language as well as the English language.

XIX. PW-21, Shri Partha P D Sarma, Sr. Scientific Officer (Physics),

testified that on instruction and authorisation of the Director of Forensic

Science, Assam, he recorded the voice samples of the accused in

Central Jail along with the NIA team and two officers of Assam Civil

Service, who attended the proceeding as witnesses. He recorded the

voice samples of the accused Nitul and three others using scientific

methods and devices. He recorded the same in a sterile CD (Material

Exhibit-2), and NIA prepared Exhibit-36 voice recording Memo. He also

recorded the voice samples on three other sterile CDs, i.e., Material

Exhibits 3, 4 & 5. He identified the signatures of other witnesses in the

aforesaid exhibits. According to him, the accused persons voluntarily and

willingly provided their voice samples.

During cross-examination, he admitted that he recorded the voice

Page No.# 25/41

samples as per the direction of the concerned Director, and he was not

shown the Court’s order for the collection of voice samples of the

accused. He further admitted that he has not issued any certificate

under Section 65(B) of the Evidence Act, 1872, as regards the CDs. He

denied the suggestion that the accused did not give their voice sample

voluntarily and willingly, and he admitted that the machine by which the

voice was recorded was neither shown in the Court nor had he brought

the same.

XX. PW-32, Pronob Bora, a Scientific Asstt., Digital Forensic Unit, FSL,

Guwahati stated that on 19.06.2015, he was assigned task of recording

voice samples of some detainees of Central Jail, Guwahati and

accordingly recorded the voice sample of accused Bishnu Narzary @ N.

Berama, Sanju Bordoloi @ Sibigiri & Ajay Basumatary @ Buhum by using

linear PCM Voice Recorder, Model No. DDR 5300 by adopting scientific

methods in presence of witness. PW32 proved the willingness memo of

Bishnu Narzary @ N Berama as Ext. 60 and his signature as 60/1 and

signature of accused Bishnu Narzary @ N. Berama as Ext. 60/2. He also

proved the willingness memo of Sanju Bordoloi @ Sibigiri as Ext. 61, his

signature as 61/1 and signature of accused Sanju Bordoloi @ Sibigiri as

Ext. 61/2. He also proved the willingness memo of accused Ajay

Basumatary @ Buhum as Ext. 62, his signature as Ext. 62/1 and signature of

accused Ajay Basumatary @ Buhum as Ext. 62/2.

In cross-examination, PW32 testified that NIA recorded his statement and

he has not issued any certificate under Section 65(B) of the Indian

Evidence Act. PW32 further testified that he did not know the accused

persons personally who were identified to him by NIA. He also denied

that the signatures of all accused persons were obtained in a blank

paper.

XXI. PW44, Sh. Ramdhan Choudhury , Alternate Nodal Officer,

Page No.# 26/41

Reliance Communications Ltd. at Guwahati. In 2015, PW44 received a

requisition from NIA vide letter NO.RST CIO/RC-04/2014 to provide call

details of mobile No.6822591184 for the period 23.12.2014 to 24.12.2014

and the original copy of the customer application form of the said

mobile Number. Accordingly, by letter dated 10.06.2015, he had

provided the said request.

In cross-examination, PW44 stated that he did not mention the specific

words, "to the best of my knowledge and belief in Ext.85." PW44 admitted

that he followed the conditions mentioned in Ext.85 as provided by their

Corporate office and that he personally had not gone through the

prescribed provisions of Sec 65B of Indian Evidence Act while preparing

Ext.85. PW44 also admitted that the call data information received by a

designated company server/hard disc, is situated at Mumbai. As per DOT

Rule, CDRs are stored for 1 year. PW44 also admitted that during the

investigation, NIA seized only the original CAF. There is no record in their

office to show that the computer or server/hard disc, from which the

CDR was extracted, was in good condition, and it is true that there is no

mention at Ext.61, on which date the CDRs were extracted from the

system.

XXII. PW45, Sh. Pankaj Kumar Borah, Nodal Officer for Aircel Dishnet

Wireless Ltd., testified that the CDRs he had forwarded are from the

period 19.12.2014 to 25.12.2014, as per the available electronic records.

Along with the said CDRS, he had also annexed a certificate U/S 65 B of

the Indian Evidence Act. On perusal of Ext.87, PW45 could say that there

were several columns in the CDR and that, on closely examining the

CDR, PW45 can say that on different dates there were phone calls

between the phones mentioned therein.

In cross-examination, PW45 stated that before issuing a certificate U/S 65

B of the Indian Evidence Act, he had not gone through the entire

Page No.# 27/41

provisions of Section 65 B of the Indian Evidence Act; however, he knew

the stipulated provisions of Section 65 B of the Indian Evidence Act for

providing CDR. PW 45 admitted that he followed the conditions

mentioned in Ext.92, 93 & 94, provided by their Corporate office. Format

provided by the corporate office U/S 65 B of the Indian Evidence Act at

Ext.92, 93 & 94 did not mention the specific word "best of my belief. PW

45 also admitted that he did not mention in Ex.92, 93 & 94, the period

during which the computer was used regularly to store or process

information for mobile communication. PW45 also admitted that the

server or CDR module from which the call details are extracted is located

at their Delhi Corporate office.

In further cross-examination, PW45 admitted that in Ext.86 & 88 there is no

mention of case Numbers under investigation. Further, it stated that he

had not seen the NIA request letter for providing CDR and CAF covering

the period of 19.12.2014 to 25.12.2014 about Mobile Nos.98548-17353,

95776-97355 & 87528-82490. On further cross-examination, PW45 stated

that the concerned agency did not ask him to examine the CDRs of the

Mobile Nos. 98548-17353, 95776-97355 & 87528-82490, and he did not

submit any analysis of CDR report about the aforesaid Mobile Nos and

also admitted that vide Ext.87 shown in the column 14, the visited

location mentioned is "nil".

29. In the backdrop of the evidence above led by prosecution, what is

gathered is that the prosecution seeks to establish the culpability of the

accused primarily through four interlinked circumstances, namely: (i) eye

witness and identification evidence; (ii) recoveries of arms and ammunitions

allegedly pursuant to disclosure statements; (iii) electronic evidence comprising

intercepted telephone conversations, voice sample and call details records;

(iv) recovery of writing pad, cadre lists, etc, of NDFB(S) and (v) overarching

allegation of criminal conspiracy.

Page No.# 28/41

30. In our opinion, each of these circumstances must independently satisfy the

test of legal admissibility and probative value, and cumulatively form an

unbroken chain pointing only to the guilt of the accused.

31. In the aforesaid backdrop, this Court now proceeds to scrutinize the

evidence led by the prosecution and determine whether the prosecution has

succeeded in establishing the charges brought against the accused persons

beyond a reasonable doubt.

32. Let us first scrutinize the eyewitness testimony and other villagers' testimony,

together with the evidence relating to photo and dock identification of the

accused persons.

33. PW-3, PW-4, PW-39, PW-40, PW-53, PW-57, PW-58 and PW-59 uniformly

support the occurrence of the brutal killing of six innocent Adivasi villagers of

Hatijuli village and causing injuries to two others on the fateful day, i.e. on

23.12.2014, between 04:00 PM and 05:00 PM.

34. Admittedly, none of the eyewitnesses, except PW-4 and PW-53, identified

the assailants.

35. PW-4, who was about 13 years of age at the time of the incident, deposed

that he had seen one assailant and could identify him. He identified the

accused, Ajay Basumutary, in the dock. During his cross-examination, he stated

that he was seated on the last bench in the courtroom, where several other

persons were also present. He further admitted that he had not furnished any

physical description of the assailant to the police during the investigation.

36. PW-53, the other eyewitness who was about 10 years old at the time of the

incident, testified that he could identify the terrorist, who had fired and killed his

mother. He further deposed that upon being summoned, he appeared before

the Investigating agency and identified two photographs of terrorists (allegedly

of accused Bishnu) who had killed his mother, and also identified his signature

on those photographs (M. Ext. 9 and M. Ext. 10). He also identified accused

Bishnu Narzary in the dock. However, during cross-examination, PW-53 stated

Page No.# 29/41

that some of them were wearing black clothes and had covered their faces.

He further admitted that at the time of the occurrence, the sunlight was

fading. Significantly, he acknowledged that he did not know the contents of

Ext. 101 (the memorandum of photo identification parade) and that the

witnesses to Ext. 101 had not signed the same in his presence. He further stated

that before identifying the accused in the photographs, he had not disclosed

the accused's physical features to any authority.

37. Thus, though these two eye witnesses claimed the ability to identify the

assailants, none of the witnesses had furnished any physical description to the

police before identification in the Dock/in photographs, inasmuch as these two

witnesses were minors at the time of the occurrence under fading daylight. It is

significant that the identification was made on a distant date from the date of

the incident. The occurrence took place on 23.12.2014, accused Bishnu Narzary

and Ajay Basumatary were arrested on 13.02.2015, 20.02.2015 respectively and

the photo identification and dock identification was done on 12.06.2015 and

19.08.2017, respectively. Such a delay becomes significant when both the

eyewitnesses were minors.

38. It is also important to note that no test identification parade was conducted,

even though all the accused persons had been arrested and were in police

custody. No explanation had been offered by the prosecution for the failure to

hold an identification parade, particularly when the materials on record clearly

establish that the assailants were not previously known to the eyewitnesses.

39. Another significant aspect is that PW-53 was not even cited as a prosecution

witness on the charge sheet, despite his alleged participation in the photo

identification process.

40. In the opinion of this Court, where the assailants were not previously known

to the witnesses, the failure to conduct a test identification parade assumes

critical significance. It renders the subsequent dock identification inherently

weak and unsafe to rely upon as substantive evidence.

Page No.# 30/41

41. Turning to the photo identification conducted on 12.06.2015, PW-17

deposed that he usually collects photographs of terrorists from various sources

and that he had handed over 11 photographs of NDFB cadres to PW-63 vide

Exhibit-35. According to him, out of those 11 photographs, M.Ext. 9 and M.Ext.

10 were photographs of the accused persons. However, in his Cross-

examination, this witness admitted that his statement was not recorded by NIA

during the investigation, that Ext. 35 does not disclose the source of the

photographs, that no witness was present at the time of handing over the

photographs to NIA and that the source from which the photos were collected

had not supplied any negatives, memory cards or other primary materials

relating to the photographs.

42. PW-49, who participated in the photo identification process as a witness,

stated that 11 photographs were laid out and PW-53 identified Ext. 9 and Ext.

10, and that she put her signature on the memorandum of photo identification.

In her cross-examination, she admitted that no negatives of the photographs

were shown to her. She stated that she did not know whether the photographs

were manipulated prior to the identification process.

43. The law has been consistently expounded by the Hon’ble Apex Court so far

as identification evidence is concerned, whether by way of a test identification

parade, photo identification, identification in Court, or even dog-tracking

evidence. Identification for the first time in court, without a prior test

identification parade, is a weak piece of evidence, particularly where the

accused was not previously known to the witness. Photo identification, though

not per se inadmissible, is merely an investigative aid and cannot ordinarily

substitute a properly conducted test identification parade. The evidentiary

value of such identification must be assessed in the backdrop of the facts of

each case. In this context, we can gainfully place reliance on George and

others -Vs- State of Kerala, (1998) 4 SCC 605; State (NCT of Delhi) -Vs- Navjot

Sandhu @ Afshan Guru, (2005) 11 SCC 600; Siddharth Vashisht @ Manu Sharma

-Vs- State (NCT of Delhi), (2010) 6 SCC 1; Ravinder Kumar Pal @ Dara Singh -Vs-

Page No.# 31/41

Republic of India, (2011) 2 SCC 490; and Raja -Vs- State by the Inspector of

Police, (2020) 15 SCC 562.

44. In the backdrop of the aforesaid evidence and settled propositions of law,

in the opinion of this Court, the photo identification process conducted on

12.06.2015 is fraught with infirmities. The sources of the photo were not brought

on record; no primary materials, such as negatives or digital originals, were

produced; no contemporaneous independent corroboration exists; and the

witnesses to the process admitted a lack of knowledge regarding possible

manipulation.

45. Therefore, the evidentiary value of such photo identification, in the absence

of a prior identification parade, is minimal and cannot form the foundation of a

conviction.

46. To summarise, when it comes to the crucial question of the identity of

assailants, the evidence assumes a distinctly fragile character. The absence of

a test identification parade also assumes critical significance in the present

case, since the identification of the accused was for the first time in the Court

after a long gap by a child witness, particularly where the witness had no prior

acquaintance. Such evidence constitutes weak form of evidence and cannot,

by itself, sustain a conviction. The photo identification test process relied upon

by the prosecution also fails to inspire confidence. As recorded hereinabove,

the process lacked the minimum safeguards to rule out the possibility of

suggestion or manipulation. Although photo identification is not, per se,

inadmissible, in the absence of corroboration, it cannot be treated as

substantive evidence of identity.

47. The Court now turns to the next link sought to be established by the

prosecution, namely, the seizure of arms and ammunition, allegedly led by the

accused Ajay and Bishnu and Nitul.

48. The prosecution relies heavily upon multiple seizure lists and alleged

recoveries of arms and ammunition to connect the accused with the crime.

Page No.# 32/41

49. There are four seizure lists on record. The first is Exhibit 68, dated 12.01.2015,

prepared by PW-37 in connection with BNC Police Station Case No. 15/2015 at

about 11:30 PM from the Library centre under Dhekiajuli Police Station.

50. Although three constables were listed as seizure witnesses, none were

examined by the prosecution. The Seizure lists records indicate that recovery

was made while being led by accused Bishnu; however, there is no disclosure

statement or recovery memo in this regard, as required under law.

51. It is relevant to note that the accused, Bishnu, was apprehended in a joint

operation on 11.01.2015. As per Material ext. 17, one M-22 rifle bearing No.

N0032008, without a magazine, was recovered and said Mat. Exhibit was

handed over to NIA vide Exhibit-75 on 25.03.2015. Although two witnesses were

shown to have been present at the time of the handover, they were not

examined. PW-37, in his cross-examination, admitted that he had not seen any

disclosure statement in Court as referred to in Exhibit-68 (Seizure list) and further

admitted that he had neither sealed nor packed the seized arms.

52. The second seizure list is Exhibit 71, dated 28.01.2015, prepared by PW-37 in

connection with BNC PS Case No. 23/2015, which was allegedly recovered

from Hugrajuli Pathar. Three constables were shown as seizure witnesses;

however, none were examined. The seizure list indicates recovery of arms from

the arrested accused person, but does not specify from whose conscious

possession the recovery was made. Although the names of three accused

persons, including accused Nitul, are mentioned, the seizure lacks clarity as to

the possession. The seizure so made, under M. Ext. 11 to M.Ext. 11/7, was

handed over to NIA by Exhibit 46. Two independent witnesses were shown to

be present during the handing over of such arms and ammunition; they were

not examined. PW-37 admitted in his cross-examination that there was

voluntary disclosure by the accused regarding the arms and ammunition that

he had not seen any disclosure statement referred to in Exhibit-71, that the

seizure list did not specify conscious possession, and that the arms were neither

Page No.# 33/41

sealed nor packed.

53. The third seizure list is Exhibit 72, dated 30.01.2015, prepared by PW-38 at

Adabari Library Centre in connection with BNC PS Case No. 23/2015. Two

independent seizure witnesses were there as per Exhibit 72; however, none

were examined. The seizure list states that the recovery was made after

accused Nitul led and shown the arms and ammunition. Still, again, there is no

disclosure statement or recovery memo in this regard as required under Section

27 of the Evidence Act. Beyond that, PW-38 admitted in cross-examination that

he had not seen any disclosure statement in Court and that he had not

mentioned the brand, year of manufacture or country of origin of the seized

arms.

54. The fourth seizure list is Exhibit 73, dated 03.02.2015, also prepared by PW-38

at the same location. Although two independent witnesses were shown to be

present, none were examined. The seizure was again stated to have been

made on being led and shown by accused Nitul, but without a disclosure

statement and a recovery memo, as required under Section 27 of the Evidence

Act. PW-38 admitted that he had not seen the disclosure statement referred to

in Exhibit 73 in the Court.

55. With regard to seizure of mobile phones, SIM cards and memory cards from

accused Nitul, as well as his arrest, PW-9 and PW-51 gave differing versions.

56. PW-9 stated that accused Nitul was brought to the Police Station by him on

the request of family members of accused Nitul and that accused Nitul

handed over the mobile phone to him, to be given to his family member, which

was later taken by NIA.

57. PW-51 stated that he brought Nitul to the Police Station for surrender, and

Nitul handed over a mobile phone to him, which was later seized by NIA vide

Exhibit 104 dated 17.03.2015; however, as recorded hereinabove, in BNC PS

Case No. 23/2015, it is shown that Nitul was apprehended in a joint operation

on 27.01.2015. Thus, three conflicting versions emerges as regards arrest and

Page No.# 34/41

seizure of mobile phone, SIM Cards etc., from Nitul. The prosecution cannot at

the same time, through their witnesses project that Nitul was arrested in a joint

operation and that he surrendered before Police. Either of one is possible and

not both together.

58. The Court now considers the disclosure statement attributed to accused

Bishnu. He was apprehended on 11.01.2015 in connection with BNC PS Case

No. 15/2015 during a joint operation by the 18th Maratha Light Infantry Division

and Dhemaji Police. The FIR, Exhibit-67, records that he was apprehended

without any weapon. The FIR does not mention any disclosure regarding the

killing of Adivasi villagers on 23.12.2014 (Dhekiajuli PS Case No. 738/2014).

However, Exhibit-68 indicates a seizure on 12.01.2015 at 11:30 PM, allegedly on

being led by accused Bishnu. Subsequently, a disclosure statement dated

16.02.2015 (Exhibit-109), recovery memo dated 16.02.2015 (Exhibit 110) and

seizure list dated 07.02.2015 were prepared. Although two independent

witnesses were shown to have signed these documents, none were examined.

PW-41, who allegedly recorded the disclosure statement and prepared the

recovery and seizure memos, did not depose about these exhibits.

59. PW-62 claimed to be present during disclosure and recovery, yet his

signature does not appear on Exhibit 109 or Exhibit 110. Even the documents do

not bear the signature or seal of NIA officials. The witnesses to the seizures,

though, put their signatures on the seizure memo on 19.05.2015, though such

seizures were carried out on 17.02.2015.

60. Thus, the non-examination or withdrawal of these witnesses has critical

significance and bearing. A careful scrutiny of Exhibits 68, 71, 72 and Exhibit 73

reveals a consistent pattern of procedural non-compliance. In none of the

recoveries are there legally proved disclosure statements satisfying the

requirement of Section 27 of the Evidence Act. The alleged disclosures were

not proved through the examination of witnesses.

61. The alleged disclosure recovery and seizure pertaining to accused Bishnu

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suffers from an even graver deficiency. The subsequent disclosure memo,

recovery memo, and seizure list were prepared while he was in custody and

are unsupported by examined witnesses. Vital witnesses present were not even

examined. Exhibits bear inconsistent dates and timings and lack the signatures

of responsible officers. PW-41, who allegedly recorded this document, did not

testify regarding the same. Therefore, such recoveries cannot be held to be

voluntary, reliable or legally admissible.

62. In totality, the recovery projected by the prosecution failed to meet the

statutory threshold of Section 27 of the Evidence Act and remains under a

cloud of serious doubt.

63. The arrest of the accused occurred in a staggered manner between

January and March 2015, mostly during joint Army operations in different PS

station jurisdictions, resulting in multiple local police cases. Arms, ammunition

and explosives were seized in these independence cases and later handed

over to the NIA. This aspect is important to the noted. The prosecution has

attempted to treat this seizure as incriminating discoveries in the present case.

However, the evidence shows that many of these arms and explosives were

seized prior to, or independent of, any disclosure made in connection with the

present offence

64. The principle underlying Section 27 of the Evidence Act is that “the fact

discovered” is not synonymous with the “object produced”. This position has

been authoritatively laid down in Pulukuri Kattaya and others -Vs- Emperor, AIR

1947 PC 67; Mohd. Inayatullah -Vs- State of Maharashtra (1976) 1 SCC 828,

Bobby -Vs- State of Kerala, (2023) 15 SCC 760; and Subramanya -Vs- State of

Karnataka (2023) 11 SCC 255.

65. The scope of admissibility of Recoveries under Section 27 of the Indian

Evidence Act, 1872, is limited strictly to that portion of the information given by

the accused which distinctly relates to the fact thereby discovered. What is

admissible is the information leading to discovery, and not any opinion or

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inference drawn by the investigating agency. Mere recovery of an object does

not ipso facto establish the guilt of the accused, unless the recovery is proved

to be a direct consequence of voluntary disclosure and is corroborated by

other reliable evidence, which is lacking in the present case as discussed and

recorded hereinabove.

66. The prosecution has further sought to establish involvement of the accused

through intercepted telephone conversations, call detail records, voice

samples and recovery of the cadre list of the NDFB (S) militants and their cash

receipt records.

67. Now, let us scrutinize such projection of the prosecution.

68. PW-19 deposed regarding lawful interceptions under the Telegraph Act and

the production of a transcript and a stored compact disk. However, she

admitted that she did not intercept the call herself; that original CDs were not

shown to her in the Court; and that she was not acquainted with the Bodo

language.

69. PW-20, who retrieved the data from the database, admitted that he did not

perform the interception, and he retrieved the data under the direction of PW-

19.

70. The person who actually intercepted and stored the conversations was not

examined nor was any appropriate certificate under Section 65B produced to

authenticate the database/CD.

71. The person who transcribed the intercepted conversations was also not

examined.

72. The NDBF (S) cadre list and the cash register were seized from an Army

official who earlier recovered those in connection with some other operations

carried out by the Army against NDFB(S) extremists. The authenticity of such

documents was neither proved, nor was the said Army official, from whom such

seizure was made, examined.

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73. Thus, though the prosecution relied on these materials to establish

conspiracy and to prove that accused are members of NDFB(S), the

authenticity of the compact disk, translated transcript and cadre list, etc., have

not been duly proved, as neither the translators, nor the person who made

such interception, nor the person from whom such cadre list , etc., was

recovered were examined. The certificate under section 65B was also

defective in the absence of a declaration of the same being “true to the

knowledge and belief” of the issuing authority.

74. Coming to the call details record, Exhibits 84 and 87 are CDRs produced by

Reliance Telecom Limited and Aircel Distant Wireless Limited, respectively.

Exhibits 83, 89, 90, and 91 are customer application forms. These Exhibits go to

show that the mobile phones were in the names of three different persons but

not of the accused. However, the owners of mobile phones were not

examined. The certificates issued vide Exhibits 85 and 87 are also defective,

inasmuch as the requirement that they be based on the knowledge and belief

of the person who proved them was not disclosed.

75. Thus, the call details record and customer application forms suffer from

defective certifications and the absence of examination of registered

subscribers or retailers. The chain of custody and the ownership of the mobile

connections remain unproven.

76. Voice samples of the accused were recorded pursuant to judicial orders;

however, voice compilation presupposes admissible primary electronic

evidence. Where the intercepted conversations themselves are inadmissible,

voice sample evidence becomes inconsequential. The superstructure cannot

survive the collapse of the foundation.

77. The prosecution further seeks to establish conspiracy and extremist

membership by recovering letter pads, cadre lists, and organisational

documents. The law is well settled that mere possession of a document or

association is insufficient. What is required is proof of active involvement and

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meeting of the minds. The documents relied upon were not proved to have

been authored by the accused, nor seized from their possession, nor linked to

planning the execution of the present offence; instead, they were recovered in

other cases from other persons, who are not accused in the present case. The

person who recovered such material was not even examined. The

prosecution's evidence in this regard, even when taken at its highest,

establishes suspicion but not proof.

78. Thus, to summarise the evidence relating to intercepted conversions/call

records suffers from foundational defects. The person who actually intercepted

and stored the conversations was not examined. The database from which the

conversations were retrieved was not authenticated. The person who prepared

the translated transcripts was not examined as a witness. PW-19 herself

admitted unfamiliarity with the language of the conversation and the absence

of original media during her testimony. Above that, no proper certificate under

Section 65B of the Evidence Act was produced to authenticate the database.

79. It is important to record here that Section 10 of the Evidence Act, and its

interplay with conspiracy related offences, is well settled that acts, statements,

or writings, of a conspirator are admissible against co-conspirator, however, as

recorded hereinabove, in the case in hand, when the intercepted telephone

conversations/ translated transcript suffers from foundational defect, such

materials cannot be used as evidence against the accused appellants.

80. Thus, although the prosecution has sought to establish conspiracy through

intercepted telephone conversations, call detail records, and voice samples,

the electronic evidence placed on record is replete with legal infirmities, as set

forth hereinabove.

81. The voice samples were without proper certification, and the expert opinion

merely states that the voices are “possible”, which is far from conclusive. These

lapses strike at the root of the admissibility and reliability of the electronic

evidence.

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82. When these evidentiary shortcomings are examined in the backdrop of the

law relating to criminal conspiracy, the prosecution case falls substantially short

of the required standards.

83. Undoubtedly, a conspiracy is rarely proved by direct evidence and may be

inferred from circumstances. However, the circumstances must be firmly

established and must form a complete chain pointing unerringly to the guilt of

the accused. Suspicion, however strong, cannot replace place proof.

84. In the present case, the evidence on record, far from establishing a meeting

of minds, is fragmented, procedurally fraught and incapable of sustaining the

interference of a criminal conspiracy beyond a reasonable doubt.

85. The earliest link relied upon is the intelligence input received on 2.10.2013 by

PW34, leading to Jagirod PS case No. 223/2013. That information pertains to the

presence of NDFB cadre allegedly taking shelter in the house of one Rinku

Patar. These are prior to the incident on 23.12.2014 by more than a year, and

the prosecution has failed to bring on record any direct nexus between the

said episode and the offence in question. Intelligence inputs, by their very

nature, are not substantive evidence and can only trigger and aid the

investigation. They do not establish culpability without independent

corroboration. In the present case, the prosecution must bridge this temporal

and evidentiary gap.

86. Applying the settled principle governing child witness, identification

evidence, recoveries under Section 27 of the Evidence Act, electronic

evidence under Section 65 B and the law of conspiracy under Section 120B

IPC read with Section 10 of Evidence Act, we are constrained to hold that the

prosecution has failed to prove the involvement of the appellants in the

commission of the crime in the manner required by law.

87. The foundational evidence necessary to link the appellants to the

commission of the offence is conspicuously absent, and vital links in the chain

of circumstances remain unproven..

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88. So far as the charges under the Arms Act are concerned, the prosecution

was required to prove conscious and exclusive possession of arms by the

appellants, duly recovered in accordance with law, and further to establish a

nexus between such recovery and the commission of the offence. In the

present case, the recoveries relied upon are vitiated by serious procedural and

evidentiary lapses. Independent seizure witnesses were not examined; the

seized arms were not sealed or packed at the place of recovery; the seizure list

does not consistently disclose from whom they were recovered. In several

instances, the witnesses themselves admitted that no voluntary disclosure

preceded the alleged recovery. In the absence of reliable proof of conscious

possession and lawful recovery, the foundational requirement for sustaining a

conviction under the Arms Act remains unfulfilled.

89. Turning into the charges under the UA(P)A, the prosecution was required to

establish either that the appellants were active members of a banned terrorist

organisation or that they had participated in, abetted, or facilitated terrorist

acts. Mere possession of arms or documents or alleged ideological affiliation is

insufficient. The Hon’ble Supreme Court, on many occasions, held that passive

and nominal association does not attract penal liability under the UA(P)A unless

accompanied by proven active involvement or incitement of violence. In the

present case, the alleged recovery of letter pads, cadre lists, and documents

has not been proved in accordance with the law; their authorship, authenticity,

and conscious possession remain un-established.

90. The voice sample, even if assumed to have been properly recorded, is

merely corroborative and cannot substitute for substantive proof in the

absence of admissible electronic evidence, reliable recoveries, or credible

identification. The essential ingredients of offences of conspiracy and under the

UA(P)A are not established.

91. The prosecution has thus failed to prove beyond a reasonable doubt the

culpability of the appellant under the Arms Act or the UA(P)A. Therefore, the

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benefit of doubt must necessarily follow.

92. In the ultimate analysis, while the occurrence of a heinous crime stands

established, the evidence on record does not meet the threshold to prove

beyond a reasonable doubt that the appellants are the perpetrators of the

crime and thereby, to sustain the conviction of the appellants.

93. The appellants are, therefore, entitled to the benefit of doubt.

94. Accordingly, for the reasons recorded hereinabove, the judgment dated

29.08.2018 and Order of sentence dated 15.09.2018 passed by the learned

Special Judge, NIA, Assam, Guwahati in Special NIA Case No. 04/2015, stands

set aside and the appellants are acquitted of the charges leveled against

them.

95. Because we have acquitted the accused, we need not go into the

aggravating and mitigating circumstances noted by the Trial Court for the

appellant. i.e. accused No. 2, Bishnu Narzary, and accused No. 3, Ajoy

Basumatary, while imposing the Death Sentence.

96. Accordingly, the Death Sentence Reference is also dismissed.

97. The accused are directed to be set at liberty forthwith, unless detained in

any other case.

98. The TCR to be returned to the Trial Court forthwith.

99. Registry to forward a copy of this judgment and order to the concerned

Superintendent of District Jail, for compliance and record.

JUDGE CHIEF JUSTICE

Comparing Assistant