Gogoi Vs. State of Assam  INSC 1156 (7 July 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1018
OF 2007 Ganesh Gogoi .....Appellant(s) - Versus - State of Assam
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.
On the benefit of doubt being extended, the other accused, namely,
Premodhar Gogoi was acquitted.
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.
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.
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.
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.
Mr. P.K. Ghosh, learned senior counsel appearing on behalf of the
appellant while assailing the judgment under appeal advanced various
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.
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.
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.
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:
"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.
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).
From paragraph 3 of the impugned judgment, it appears that the
prosecution examined ten witnesses.
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.
But the evidence of the prosecution is that Dinanath Agarwalla was
kidnapped from the pan shop of Narayan Dey (P.W.2).
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
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.
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.
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.
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.
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.
P.W.7-Prabhat Gogoi is another police officer.
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."
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.
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.
P.W.9 is Dr. N. Sonowal, who conducted postmortem on the dead body
of the victim.
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.
From the above discussions, this Court finds that there is no
evidence to connect the appellant with the alleged incident of killing of the
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
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 (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.
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
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."
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."
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 (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.
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
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.
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."
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.
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)
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