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CASE NO.:

Appeal (crl.) 343 of 2002

PETITIONER:

TARUN BORA @ ALOK HAZARIKA

Vs.

RESPONDENT:

STATE OF ASSAM

DATE OF JUDGMENT: 12/08/2002

BENCH:

M.B. SHAH, BISHESHWAR PRASAD SINGH & H.K. SEMA.

JUDGMENT:

Sema, J.

Aggrieved by the order dated 19th January, 2002 passed by the Addl.

Judge, Designated Court, Guwahati in TADA Sessions Case No. 113 of

1992 convicting the appellant Tarun Bora @ Alok Hazarika under Section

365 Indian Penal Code read with Section 3(1)/3(5) of Terrorist and

Disruptive Activities (Prevention) Act (hereinafter referred to as `the Act')

and sentenced him to undergo RI for 5 years for the offence under Section

365 I.P.C. and further R.I. for 5 years for the offences under Section 3(1)

and 3(5) of the Act, the present appeal has been preferred. The substantive

sentences were ordered to run concurrently.

An F.I.R. was lodged on 23.8.1991 by P.W. 6 with the Officer-in-

charge of the Bihpuria Police Station preceded by G.D. entry No. 275 dated

19.8.1991 stating therein that on 18.8.1991 at about 3.45 P.M. Bhola Kakati

(P.W.1), a resident of Fakrahi Village, was taken away from the house of

Nandeswar Bora, a resident of the same village by ULFA extremist named

Tarun Bora @ Alok Hazarika (appellant) with the help of 3-4 members of

ULFA extremists by blind folding him in a white ambassador car. Bhola

Kakati (P.W.-1) was released by the abductor on 20.8.1991. Pursuant to the

aforesaid F.I.R. the Officer-in-charge of Bihpuria Police Station registered

case No. 303/91 dated 24.8.1991 under Sections 364/325/307/34 I.P.C. read

with Section 3 /4 TADA (P) Act. However, on perusal of the material

submitted before him, the Addl. Judge, Designated Court framed a formal

charge under Section 365 I.P.C. read with Sections 3(1) and 3(5) of TADA

(P) Act against the appellant. The charge-sheet was read and explained to

the appellant to which he pleaded not guilty and claimed to be tried. In the

course of the trial, the Designated Court by its order dated 22nd February,

2000, discharged the other accused, namely, Madhab Saikia @ Uttam Barua,

Prafulla Saikia @ Ruktim Choudhury, Bhaba Barua @ Manjil Phukan, Nitul

Saikia and Mala Bora @ Hiren Saikia, for want of sufficient materials

against them and proceeded the trial with the appellant.

The prosecution examined as many as six witnesses. The appellant

declined to adduce any defence witness and in his examination under

Section 313 Cr.P.C. he totally denied his involvement. The prosecution

could not examine one witness Nandeswar Bora from whose house Bhola

Kakati (P.W.1) was taken away as he had since died during the trial and

before he was examined by the prosecution. After conclusion of the trial,

charges under the aforesaid sections of law have been found well established

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against the appellant. By the impugned order, the appellant was convicted

and sentenced as aforesaid.

We have heard Mr. P.K. Goswami, learned senior counsel for the

appellant and Ms. Krishna Sarma, learned counsel for the respondent.

At this stage, let us go straight to one of the arguments advanced by

Mr. P K Goswami, learned senior counsel, which deserves consideration. It

is the submission of Mr. Goswami that the appellant is not liable to be

convicted for an offence under Section 3(5) of the Act as the alleged offence

had taken place on 18.8.1991 and sub-section 3(5) was inserted in TADA by

an Act 43 of 1993 which comes into force on 23.5.1993, subsequent to the

date of incident. Admittedly, the offence alleged to have been committed by

the appellant had taken place on 18.8.1991. This fact is uncontroverted.

This point had been set at rest by this Court in Kalpnath Rai v. State

(Through CBI) (1997) 8 SCC 732 and batch of appeals, where a similar

question was raised before this Court. Justice K.T.Thomas (as his Lordship

then was) speaking for the Bench, while considering the applicability of

Section 3(5) of the Act, in paragraph 35 of the judgment said:

"There are two postulates in sub-section (5). First

is that the accused should have been a member of

"a terrorist' gang" or "terrorists' organisation"

after 23.5.1993. Second is that the said gang or

organisation should have involved in terrorist acts

subsequent to 23.5.1993. Unless both postulates

exist together Section 3(5) cannot be used against

any person."

In view of the decision of this Court in Kalpnath Rai (supra), the

conviction of the appellant under Section 3(5) of the Act is not sustainable

in law.

Mr. Goswami next contended that the ingredients of the offence under

Section 3(1) of the Act are absent and therefore, no offence under said

section of the Act has been made out against the appellant.

Section 2(1)(h) of the Act defines "terrorist act" as under:

"`terrorist act' has the meaning assigned to it in

sub-section (1) of Section 3, and the expression

"terrorist" shall be construed accordingly;"

Section 3 of the Act reads:

"3. Punishment for terrorist acts: - (1)

Whoever with intent to overawe the Government

as by law established or to strike terror in the

people or any section of the people or to alienate

any section of the people or to adversely affect the

harmony amongst different sections of the people

does any act or thing by using bombs, dynamite or

other explosive substances or inflammable

substances or fire-arms or other lethal weapons or

poisons or noxious gases or other chemicals or by

any other substances (whether biological or

otherwise) of a hazardous nature in such a manner

as to cause, or as is likely to cause, death of, or

injuries to, any person or persons or loss of, or

damage to, or destruction of, property or disruption

of any supplies or services essential to the life of

the community, or detains any person and

threatens to kill or injure such person in order to

compel the Government or any other person to do

or abstain from doing any act, commits a terrorist

act.

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(2) Whoever commits a terrorist act, shall, -

(i) if such act has resulted in the death of any

person, be punishable with death or

imprisonment for life and shall also be liable

to fine;

(ii) in any other case, be punishable with

imprisonment for a term which shall not be

less than five years but which may extend to

imprisonment for life and shall also be liable

to fine.

(3) Whoever conspires or attempts to commit, or

advocates, abets, advises or incites or

knowingly facilitates the commission of, a

terrorist act or any act preparatory to a terrorist

act, shall be punishable with imprisonment for

a term which shall not be less than five years

but which may extend to imprisonment for life

and shall also be liable to fine.

(4) Whoever harbours or conceals, or attempts to

harbour or conceal, any terrorist shall be

punishable with imprisonment for a term

which shall not be less than five years but

which may extend to imprisonment for life and

shall also be liable to fine.

(5) Any person who is a member of a terrorist's

gang or a terrorist's organisation, which is

involved in terrorist acts, shall be punishable

with imprisonment for a term which shall not

be less than five years but which may extend

to imprisonment for life and shall also be

liable to fine.

(6) Whoever holds any property derived or

obtained from commission of any terrorist act

or has been acquired through terrorist funds

shall be punishable with imprisonment for a

term which shall not be less than five years but

which may extend to imprisonment for life and

shall also be liable to fine."

This Court in Hitendra Vishnu Thakur and Ors. vs. State of

Maharashtra and Ors. (1994) 4 SCC 602 had occasion to interpret the

ingredients as visualized under Section 3(1) of the Act and held in para 5 of

the judgment as under:

"Section 3 when analysed would show that

whoever with intent (i) to overawe the

Government as by law established; or (ii) to strike

terror in the people or any section of the people; or

(iii) to alienate any section of the people, does any

act or things by using (a) bombs or dynamite, or

(b) other explosive substances, or (c) inflammable

substances, or (d) firearms, or (e) other lethal

weapons, or (f) poisons or noxious gases or other

chemicals, or (g) any other substances (whether

biological or otherwise) of a hazardous nature in

such a manner as to cause or as is likely to cause

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(i) death, or (ii) injuries to any person or persons,

(iii) loss of or damage to or destruction of

property, or (iv) disruption of any supplies or

services essential to the life of the community, or

(v) detains any person and threatens to kill or

injure such person in order to compel the

Government or any other person to do or abstain

from doing any act, commits a `terrorist act'

punishable under section 3 of TADA."

In our view, the ingredients, as visualized under Section 3(1) of the

Act, are absent in the facts of the case at hand and the conviction of the

appellant under Sections 3(1) & (2) of the Act is also not tenable in law.

We shall now proceed to examine as to whether the conviction of the

appellant under Section 365 of the Indian Penal Code is maintainable.

As already said, the prosecution examined as many as six witnesses.

One Nandeswar Bora, from whose house P.W.-1 was taken away, could not

be examined because of his death during the trial and before he could be

examined.

P.W.-1 Bhola Kakati said that on 18.8.1991 he was invited to the

residence of Nandeswar Bora for settlement of some of his land disputes and

he reached his place at about 3.30 P.M. He stated that before the talk of

settlement started, the accused Tarun Bora appeared there and took him to

an ambassador car standing on the road and the car was driven away by

Rajib Bhuyan (P.W.-4). He was taken blind-folded. After covering some

distance, the car was stopped but again it was driven away and after

covering about 7 kms. the car was stopped and he was taken away from the

car to the house of some person and was kept there blind-folded for three

days. On the first night of confinement, he was assaulted by somebody but

he did not know who the assailant was as he remained blind folded.

The witness further stated that during the assault, the assailant

accused him of giving information to the army about the United Liberation

Front of Assam (ULFA). He further stated that on the third night he was

carried away blind folded on a bicycle to a different place and when his eyes

were unfolded, he could see his younger brother Kumud Kakati (P.W.-2)

and his wife Smt. Prema Kakati (P.W.-3). The place was Duliapather,

which is about 6-7 kms. away from his village Sakrahi. The witness

identified the appellant Tarun Bora and stated that it is he who took him in

an ambassador car from the residence of Nandeswar Bora on the date of the

incident.

In cross-examination the witness stated as under:

"Accused Tarun Bora did not blind my eyes

nor he assaulted me."

This part of cross-examination is suggestive of the presence of

accused Tarun Bora in the whole episode. This will clearly suggest the

presence of the accused Tarun Bora as admitted. The only denial is the

accused did not participate in blindfolding the eyes of the witness nor

assaulted him.

P.W.-4 Rajib Bhuyan, who was alleged to have driven the offending

ambassador car bearing registration No. AMH-1872, at the time of incident

was declared hostile. However, his examination-in- chief is important which

reads as under:-

"I know P.W.-1 Bhola Kakati and Nandeswar

Bora. On 18.8.91 my mother Smt. Bimala Bhuyan

owned one ambassador car bearing registration

No. AMH 1872. On that day, the car was kept in

our original residence at Narayanpur. I used to

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attend my office at N.Lakhimpur town from

Narayanpur. When I returned home from my

office in the evening on 18.8.91 my mother

informed me that her ambassador car was taken

away by two unknown youths by force. Police did

not take my statement in connection with Bhipuria

P.S. Case No. 303/91."

The witness was confronted with his statement recorded under

Section 161 Cr.P.C.

The statement of this witness in examination-in-chief shows that the

offending vehicle bearing registration No. AMH 1872 was taken away on

18.8.91 by two unknown youths by force.

The striking feature of the statement of this witness (P.W.-4) is that he

knew Bhola Kakati (P.W.-1). It must be noticed that P.W.-1 in his

deposition stated that the appellant had taken him away in an ambassador car

driven by P.W.-4 Rajib Bhuyan. It is, thus, clear that P.W.-1 and P.W.-4

knew each other from before. Therefore, P.W.-1 and P.W.-4 are not

strangers to each other and P.W.-1 could not have made mistake in naming

P.W.-4 in his statement.

The evidence of P.W.-1, reading in between the lines, will clearly

show that he had not gone to the ambassador car on his own will. He was

taken away in the ambassador car by the appellant and after that he was

immediately blind folded and taken to a house and confined for three nights.

On the first night he was assaulted. It has also come out clearly that the

motive behind kidnapping him was that he was being accused of giving

information to the army about the ULFA. Therefore, keeping this motive in

the background, the kidnapping of P.W.-1 cannot be said to be for a joy ride.

The motive of kidnapping Bhola Kakati (P.W.-1) was to confine him

wrongfully for passing information to the Army about the ULFA. In our

view, the conduct of the appellant clearly falls within the mischief of Section

365 of the I.P.C.

Rajib Bhuyan (P.W.-4) was declared hostile. He has, however,

clearly stated in his examination-in-chief that his mother had a car bearing

registration No. AMH 1872 and on the day of the incident, he was informed

by his mother Bimala Bhuyan that the said car had been taken away by

two unknown youths by force. It must be remembered that the said

ambassador car was brought by the appellant Tarun Bora to the house of

Nandeswar Bora and P.W.-1 was taken away in that vehicle.

We have already noticed that in cross-examination of P.W.-1 a

suggestion was put to him that the appellant Tarun Bora had neither

participated in blind folding him nor assaulted him. This is clearly

indicative of the presence of the appellant and participation in the

kidnapping episode.

Bimal Chand Deka (P.W.-6) is the I.O. He stated that on 23.8.91 he

was working as Incharge Narayanpur Police Out Post. He further stated that

the F.I.R. Ext.-1 was lodged by him and O/C Bihpuria P.S. registered a

case u/s 364/325/307/34 IPC r/w Sections 3 & 4 TADA (P) Act and

entrusted him for investigation. In course of investigation he has seized

ambassador car No. AMH 1872 belonging to Bimla Bhuyan vide seizure

memo. No. 14/91 Ext.-4. He further stated that the seized vehicle was

given in zimma to the registered owner Bimla Bhuyan vide Ext.-5. He

also stated that during the investigation he had recorded statement of

witnesses u/s 161 Cr.P.C. and arrested the appellant Tarun Bora and

forwarded him to the Court and after completion of investigation submitted

the charge-sheet.

Counsel for the appellant submits that there is no sufficient

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corroborative evidence and material on record to sustain conviction of the

appellant under Section 365 of the I.P.C. also. We are not at all convinced

by such submission.

It is quite but natural that in a prevalent situation, obtaining in the area

surcharged with the insurgency activities, striking a terror and fear

psychosis in the mind of the people, the Investigating Officer would

definitely find difficulties to collect sufficient corroborative evidence.

Witnesses will be reluctant to come to the Court to depose or appear before

the Investigating Officer to give statement for fear of reprisals. Rarely, one

comes across any corroborative evidence in such type of offence. This

would be no ground to throw away otherwise trust-worthy evidence of

prosecution witnesses. In the facts and circumstances of the present case,

as adumbrated above, coupled with the credible and trustworthy statement of

P.W.-1 Bhola Kakati, the prosecution has established its case. It must be

remembered that the statement in-chief of P.W.-1 remained unimpeached.

We have no reason to doubt the credit worthy evidence of Bhola Kakati -

P.W.4, apart from the other lending circumstances as discussed above.

Lastly, Mr. Goswami submits that the appellant has his mother, wife

and children to support and if this Court so decides to confirm the conviction

serious prejudice would be caused to his mother, wife and children and

pleads for leniency. We are not at all persuaded by this submission. Human

consideration is no ground for showing leniency to the perpetrator of the

crime against organized civilized society, which is abhorrent to the concept

of rule of law. In fact, this prayer has already been considered by the

designated court and lenient punishment of 5 years R.I. has been awarded.

We may say that offence of kidnapping in any form impinge upon human

rights and right to life enshrined in Article 21 of the Constitution. Such acts

not only strike a terror in the mind of the people but have deleterious effects

on the civilized society and have to be condemned by imposing deterrent

punishment.

For the reasons abovestated there is no merit in this appeal and the

same is dismissed.