Ganesh Gogoi vs State Of Assam

1. This appeal has been filed under Section

19(1) of the Terrorist and Disruptive

Activities (Prevention) Act, 1987 (hereinafter

referred to as the `TADA(P) Act') impugning

the judgment dated 11.7.2007 passed by the

learned Designated Court, Assam, Guwahati in

Sessions Case No. 68 of 2001 whereby the

1 appellant has been convicted by the learned

Judge of the Designated Court under Section

3(2)(i) TADA(P) Act and was sentenced to

undergo imprisonment for life and to pay a

fine of Rs.2000/- in default further

imprisonment for six months.

2. On the benefit of doubt being extended, the

other accused, namely, Premodhar Gogoi was

acquitted.

3. The material facts of the case as alleged by

the prosecution are that on 2.9.1991 at about

7.30 a.m., Sub-Inspector B. Kalita, who was

in-charge of Naohalia Out Police Post informed

the Office-in-Charge of Bordubi Police Station

over telephone that on the previous day i.e.

on 1.9.1991 at about 7.30 p.m. one Dinanath

Agarwalla Naohalia was taken away in a Maruti

car by some unknown persons and this

information was entered vide General Diary

Entry No. 19 dated 2.9.1991.

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4. Thereafter, Prabhat Gogoi, Officer-in-Charge

along with his staff reached the place of

occurrence for investigation and subsequently

an FIR was lodged by him.

5. On conclusion of the investigation, charge-

sheet dated 25.9.2001 was filed under Sections

365/302/34 of the Indian Penal Code read with

Sections 3(2)(i) and 3(5) of the TADA (P)

Act against the appellant and Premodhar Gogoi.

6. Thereafter, on 10.1.2003, the learned

Designated Court, Assam framed charges against

the appellant under Section 302 of the Indian

Penal Code and Section 3(5) of the TADA(P)

Act. In the Trial evidence was adduced and the

appellant was examined under Section 313 of

the Code of Criminal Procedure and ultimately

by the impugned judgment dated 11.7.2007 the

appellant was convicted by the learned

Designated Court under Section 3(2)(i) of the

3 TADA(P) Act and was sentenced as stated

hereinabove.

7. Mr. P.K. Ghosh, learned senior counsel

appearing on behalf of the appellant while

assailing the judgment under appeal advanced

various submissions.

8. His first submission is that there is no

evidence which can connect the appellant with

the alleged incident and, therefore, the

judgment of the learned Judge of the

Designated Court is wholly unsustainable in

law. Learned Counsel further submitted that

apart from the aforesaid infirmity the

appellant has been convicted only under

Section 3(2)(i) of TADA(P) Act whereas he has

not been charged under that Section at all.

9. Learned Counsel submitted that in view of the

charge which has been framed, he could not

have been convicted under Section 3(5) of the

4 TADA(P) Act. He submitted that a charge under

Section 3(2)(i) and a charge under Section

3(5) of the TADA(P) Act are different charges

and one is not encompassed by the other. His

further submission is that admittedly Section

3(5) of the TADA(P) Act has been inserted in

the statute book in 1993 by Section 4 of Act

43 of 1993.

10. The incident, as alleged by the prosecution,

had taken place in September 1991. Therefore,

the appellant cannot be charged for having

committed an offence which was not in

existence on the day of alleged commission but

was brought into the statute much later.

11. This appeal has been filed before this Court

under Section 19(1) of the TADA(P) Act which

provides for an appeal both on facts and on

law and this Court being the First Appellate

Court is entitled to look into the evidence on

record. Section 19(1) reads as under:

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"19. Appeal - (1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law.

12. In this case from the impugned judgment it is

clear that there is no direct evidence but

there is only circumstantial evidence (see

para 20 of the impugned judgment).

13. From paragraph 3 of the impugned judgment, it

appears that the prosecution examined ten

witnesses.

14. P.W.1 - Dharam Chand Agarwalla is the brother

of the deceased. He is not an eye witness. He

was informed by his mother about the missing

of his elder brother Dinanath Agarwalla and

his evidence is that he does not know who

kidnapped Dinanath Agarwalla from their house

on the material day and killed him. Therefore,

6 the evidence of P.W.1 is that his elder

brother was kidnapped from their house.

15. But the evidence of the prosecution is that

Dinanath Agarwalla was kidnapped from the pan

shop of Narayan Dey (P.W.2).

16. P.W.2- Narayan Dey in his evidence stated that

police took his signatures on a prepared

statement to the effect that the deceased was

killed on the previous day though he had no

knowledge about the killing of Dinanath

Agarwalla. P.W.2 was declared hostile and was

cross-examined by the prosecution. In his

cross-examination also he stuck to his

evidence given in Examination-in-Chief. In

cross-examination he deposed that he did not

state before the I.O. that Dinanath came to

his shop for taking pan and one Maruti car

arrived near his shop and accused persons

while coming out of the car had some

7 discussion with Dinanath and he was taken in

the car which was driven towards Madhuting.

17. P.W.3- Sushil Mazumdar was also declared

hostile and he stated in Chief that Police did

not record any statement from him in regard to

the death of the deceased. He was similarly

cross-examined by the Police and in the cross-

examination also he stuck to his original

statement and made it very clear that he did

not see the appellant and the other accused

person kidnapping the deceased from the pan

shop of Narayan Dey.

18. P.W.4- Joyram Das is a police officer. He

deposed that on 17.8.1992 he was working as an

Office in-charge at Borubi Police Station. He

deposed that he took over the investigation

and arrested one of the accused persons and

from his interrogation came to know that on

the alleged date of occurrence Dinanath

Agarwalla was kidnapped by the present

8 appellant. In cross-examination P.W.4

admitted that he did not send Premodhar Gogoi

to any Magistrate for recording his statement.

It appears from the so called statement of

Premodhar Gogoi that the same is not at all

admissible having been made before a police

officer while in custody and in the course of

alleged interrogation. Therefore, it has been

rightly contended by the learned counsel for

the appellant that the deposition of P.W.4 is

not admissible in evidence.

19. P.W.5 is one Bibhusan Gogoi. He had merely

seen the dead body of victim fastened by rope

and he was informed by another person that the

name of the deceased is Dinanath Agarwalla.

He is not a material witness at all. He

categorically stated that he did not know who

had killed the Dinanath, the victim.

20. P.W.6-Suresh Kr. Agarwalla is also not a

material witness. He merely identified the

9 dead body of Dinanath and merely deposed that

the hands and feet of dead body were tied with

a rope and the rope was seized by the police

and he signed the said document of seizure.

21. P.W.7-Prabhat Gogoi is another police officer.

He initially took up the investigation and he

recorded the statements of witnesses Dharam

Chand Agarwalla and Sushil Mazumdar but they

have not been examined in Court. He claimed

to have filed the FIR. In cross-examination

P.W.7 deposed that in the FIR he has not

specifically mentioned the involvement of the

appellant in the aforesaid incident. He did

not mention anything about the statement of

witness Sushil Mazumdar. The FIR was recorded

by the P.W.7 in this case "during

investigation". However, in the course of his

evidence P.W.7 never stated anything about the

appellant being a member of the United

Liberation Front of Assam. In the FIR it has

clearly been stated "that investigation has

10 already been taken up by me. The certified

copy of G.D.E. No.19 is enclosed herewith."

22. It is clear from the aforesaid statement,

investigation in the case had already

commenced and once investigation commences the

FIR is hit by Section 162 Cr.P.C. and no value

can be attached to the same.

23. P.W.8- Satyaraj Hazarika merely deposed that

he submitted the prayer for accord of

necessary prosecution sanction to the then

D.G.P of Assam and he also filed certain other

documents. He is not a material witness at

all.

24. P.W.9 is Dr. N. Sonowal, who conducted

postmortem on the dead body of the victim.

25. P.W.10- Bipulananda Choudhury is another

police officer, who obtained sanction from

D.G.P Assam and submitted the charge sheet

11 against the accused persons. He is also not a

material witness.

26. From the above discussions, this Court finds

that there is no evidence to connect the

appellant with the alleged incident of killing

of the victim.

27. Apart from that this Court finds that in

Section 313 Cr.P.C. examination of the

accused-appellant, the Court has put a

question which is totally unfair. Three

questions were put to the appellant. The

second question is as follows:-

"Q. No.2 The witnesses deposed that you are a member of ULFA?"

28. It does not appear that any witness has

deposed that the appellant is a member of

ULFA. Therefore, it is a very unfair

question. This Court has allegedly convicted

the appellant under Section 3(2)(i) but the

12 ingredients of the Section 3(2)(i) were not

been put to him. Therefore, there has not

been a fair examination under Section 313 of

the Cr.P.C. at all. The provisions of Section

313 are for the benefit of the accused and are

there to give the accused an opportunity to

explain the "circumstances appearing in the

evidence against him". In Basavaraj R. Patil

& others Vs. State of Karnataka & others -

(2000) 8 SCC 740, this Court held that those

provisions are not meant to nail the accused

to his disadvantage but are meant for his

benefit. These provisions are based on the

salutary principles of natural justice and the

maxim `audi alteram partem' has been enshrined

in them. Therefore, the examination under

Section 313 has to be of utmost fairness. But

that has not been done here. This is also a

factor vitiating the trial.

29. It appears that in the instant case the charge

which was framed by the Court against the

13 appellant was under Section 3(5) of the said

Act. But such a charge could not have been

framed against him by the Court in as much as

on the alleged date of occurrence, i.e. in

September 1991, Section 3(5) of the Act was

not brought on the statute. The framing of

the charge was thus inherently defective.

However the appellant has been convicted only

under Section 3(2)(i). Section 3(2)(i) reads

as follows:-

"3(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."

30. On perusal of the provision of Section

3(2)(i), it is clear that Section 3(2)(i) has

to be read with Section 3(1). Section 3(1) is

set out herein below:-

"3. Punishment for terrorist acts. - (1) Whoever with intent to overawe the Government as by law established or to strike terror in 14 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."

31. The provision of Section 3(1) has been

construed by this Court in several cases and

reference in this connection may be made to

the decision of Hitendra Vishnu Thakur and

others Vs. State of Maharashtra and others -

(1994) 4 SCC 602, wherein learned judges

explained the ambit of a terrorist act which

has not been defined in detail under TADA(P)

Act. Sub-section (h) of Section 2 of the Act

defines `terrorist act' to mean the same thing

15 as assigned to it in sub-section (i) of

Section 3.

32. Section 3(1) of the said Act is therefore very

vital for understanding the true meaning and

purport of terrorist acts. In paragraph 5 of

Hitendra Vishnu Thakur (supra), at page 617 of

the report, Dr. Justice A.S. Anand (as His

Lordship then was) analysed Section 3 as

follows:-

"5. 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; or (iv) to adversely affect the harmony amongst different sections 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 (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."

16 33. It is clear from the perusal of Section 3 and

its interpretation in Hitendra Vishnu Thakur

(supra) that the requisite intention is the

sine qua non of terrorist activity. That

intention is totally missing in this case. It

is not there in the charge and it has also not

come in the evidence. Therefore, both the

framing of charges against the appellant under

Section 3(5) and his conviction under Section

3(2)(i) of the said Act are totally bad in

law.

34. In Hitendra Vishnu Thakur (supra) the Court

has made it clear that in many cases criminal

activities constituting the terrorist act may

also be an offence under the ordinary penal

law. Therefore before framing a charge under

the stringent provisions of TADA(P) Act the

Court has to be very careful. In view of

seriousness of the offence alleged under the

stringent provisions of the said Act, this

Court in Hitendra Vishnu Thakur (supra)

17 (paragraph 14 at page 623 of the report),

explained the Court's duty in very explicit

terms and which I quote:-

"14. ...An onerous duty is therefore cast on the Designated Courts to take extra care to scrutinise the material on the record and apply their mind to the evidence and documents available with the investigating agency before charge- sheeting an accused for an offence under TADA. The stringent provisions of the Act coupled with the enhanced punishment prescribed for the offences under the Act make the task of the Designated Court even more onerous, because the graver the offence, greater should be the care taken to see that the offence must strictly fall within the four corners of the Act before a charge is framed against an accused person. Where the Designated Court without as much as even finding a prima facie case on the basis of the material on the record, proceeds to charge-sheet an accused under any of the provisions of TADA, merely on the statement of the investigating agency, it acts merely as a post office of the investigating agency and does more harm to meet the challenge arising out of the `terrorist' activities rather than deterring terrorist activities. The remedy in such cases would be worse than the disease itself and the charge against the State of misusing the provisions of TADA would gain acceptability, which would be bad both for the criminal and the society. Therefore, it is the obligation of the investigating agency to satisfy the Designated Court from the material collected by it during the investigation, and not merely by the opinion formed by the investigating agency, that the activity of the `terrorist' falls strictly within the 18 parameters of the provisions of TADA before seeking to charge-sheet an accused under TADA. The Designated Court must record its satisfaction about the existence of a prima facie case on the basis of the material on the record before it proceeds to frame a charge-sheet against an accused for offences covered by TADA. Even after an accused has been charge-sheeted for an offence under TADA and the prosecution leads evidence in the case, it is an obligation of the Designated Court to take extra care to examine the evidence with a view to find out whether the provisions of the Act apply or not. The Designated Court is, therefore, expected to carefully examine the evidence and after analysing the same come to a firm conclusion that the evidence led by the prosecution has established that the case of the accused falls strictly within the four corners of the Act before recording a conviction against an accused under TADA."

35. In the instant case the Designated Court has

failed in its duty both in the matter of

application of mind to the materials on record

at the stage of framing of charge and also at

the time of convicting the appellant.

36. This Court is, therefore, of the clear opinion

that in the facts of the case no charge

against the accused under the said Act could

be framed, consequently he cannot be convicted

19 under the provisions of the said Act. In any

way in the instant case as discussed above,

there is no evidence to connect the appellant

with the alleged incident. Therefore, the

judgment and order of conviction is totally

unsustainable in law and is set aside. The

appeal succeeds and the appellant be set at

liberty forthwith if he is not wanted in

connection with any other case.

.......................J. (DALVEER BHANDARI)

.......................J. New Delhi (ASOK KUMAR GANGULY) July 7, 2009

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