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TMI Blog2002 (8) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Section 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, (sic) Saikia and Mala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 bomb, 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) or 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pons, 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. 9. 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 connection of the appellant under Sections 3(1) (2) of the Act is also not tenable in law. 10. We shall now proceed to examine as to whether the conviction of the appellant under Section 365 of the Indian Penal Code is maintainable. 11. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end 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. 17. 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. 18. 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(sic) 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. 19. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction of the appellant under Section 365 of the I.P.C. also. We are not at all convinced by such submission. 25. 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. 26. Lastly, Mr. Goswami submits that the appellant has his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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