IMPORTANT POINT
First appellate court hearing an appeal on fact as well on law is entitled to look into the evidence on record.
Deposition made before a police officer while in custody and in course of alleged interrogation is not admissible in evidence.
FIR registered after commencement of investigation would be hit by section 162, Cr PC and no value can be attached to it.
Section 313 is not meant to nail the accused to his disadvantage. It is meant for his benefit.
Intention of terrorist activity is the sine qua non of section 3(1).

Judgment :-

Ganguly, J.

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 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.

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 TADA(P) Act ad was sentenced as stated hereinabove.

1. 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 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:

."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