IMPORTANT POINT
Appellant is not guilty of an offence under Sections 3(1), (5) of TADA (P) Act. But is liable under Section 365 IPC, 1860. The sentence of 5 years RI for offence under Section 3 does not call for any interference.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act-Section 3(5)-Punishment for Terrorist Acts-Offence under Section 3(5) made punishable on w.e.f. 23.5.93-Offence alleged to be committed on 18.8.91-Whether conviction under Section 3(5) of TADA (P) Act sustainable? (No)-1997(8) SCC 732 : Relied on.
       Held : 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. (Para 6)
       (ii) Terrorist and Disruptive Activities (Prevention) Act-Section 3(1)-Punishment for Terrorist Act-Kidnapping of PW1 being accused of giving information to the Army about (ULFA)-Whether conviction of appellant under Sections 3(1) or 3(2) TADA (P) Act sustainable? (No).
       Held : 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. (Para 10)
       (iii) Indian Penal Code, 1860-Section 365 r/w Section 3(1) and (5) of TADA (P) Act-Appellant kidnapping PW1 as he gave information about ULFA to army-Whether conviction of appellant u/s 365 IPC sustainable? (Yes)-Whether sentence of 5 years RI needs any leniency? (No)-Result-Appeal disposed of accordingly.
       Held : 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. (Paras 21 & 22)
       Held further : Counsel for the appellant submits that there is no sufficient 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. (Paras 26 & 27)
       Held in addition : 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 organised 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. (Para 28)
       Held finallly : For the reasons abovestated the conviction and sentence of the appellant under TADA (P) Act is set aside. However, the conviction and sentence awarded to the appellant for the offence under Section 365 I.P.C. is, hereby, confirmed. The appeal is disposed of accordingly. (Para 29)

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 Panel 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.

2. 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 Baro, 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.

3. 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 against the appellant. By the impugned order, the appellant was convicted and sentenced as aforesaid.

4. We have heard Mr. P.K. Goswami, learned senior counsel for the appellant and Ms. Krishna Sarma, learned counsel for the respondent.

5. 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. The 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 hav

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2002 Supreme(SC) 786

IMPORTANT POINTAppellant is not guilty of an offence under Sections 3(1), (5) of TADA (P) Act. But is liable under Section 365 IPC, 1860. The sentence of 5 years RI for offence under Section 3 does not call for any interference.

Cases Referred (2)

IMPORTANT POINT
Appellant is not guilty of an offence under Sections 3(1), (5) of TADA (P) Act. But is liable under Section 365 IPC, 1860. The sentence of 5 years RI for offence under Section 3 does not call for any interference.