LexTARUN BORA @ ALOKA HAZARIKA versus STATE OF ASSAM
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A B T ARUN BORA @ ALO KA HAZARIKA v. ST A TE OF ASSAM AUGUST 12, 2002 [M.B. SHAH, BISHESHWAR PRASAD SINGH AND H.K. SEMA, JJ.] Terrorist and Disruptive Activities [Prevention) Act, 1987:· Sections 3(J)m 3(2) and 3(5): C Charges under TADA-Conviction under Section 3 (5)-Va/idity of- Held, since Section 3(5) was inserted in TADA subsequent to the commission of the offence, the convict·ion under the said Section of TADA is not sustainable in law. D Punishment for terrorist acts-Absence of ingredients-Conviction- Validity of-Held, the conviction is not tenable in law. Penal Code; Section 365: Conviction without sufficient corroborative evidence-Validity of-Held, E in the area surcharged with insurgency activities witnesses are reluctant to join investigation for fear of reprisal, rendering it difficult to collect sufficient corroborative evidence-Under the circumstances, this would be no good ground to throw awey otherwise trustworthy evidence of prosecution witnesses. Sentencing-Plea for leniency-Held, Human consideration is no ground p for showing leniency to the perpetrator of organised crime against civilized society which is abhorrent to the concept of rule of law. According to the prosecution, a villager was abducted by accused, an ULFA extremist and 3-4 members of the said Organisation by blindfolding PWl in a car. He was released by the abductor after 3 days. PW6 lodged an G FIR. Designated TADA Court framed charge under Section 365, IPC read with Sections 3(1) and 3(5) of TADA Act against the accused-appellant and convicted him but discharged other accusert for want of sufficient materials against them. Hence this appeal. It was contended for the appellant that he was not liable to be convicted H 458 TARUNBORA@ALOKA HAZARIKA v. STATE OF ASSAM 459 for an offence under Section 3(5) of the TADA Act, as the alleged offence was A committed prior to insertion of the said provision in TADA Act; that ingredients of Section 3(1) were absent, therefore, appellant could not be held guilty of the offence under this Section; and that in the absence of sufficient corroborative evidence, conviction under Section 365 IPC could not be sustained. B Partly allowing the appeal, the Court HELD: I. Sub-section 3(5) was inserted in TADA by an Act 43of1993 which came into force subsequent to the date of incident. This fact is uncontroverted. In view of the decision of this Court in Kalpnath Rai the conviction of the appellant under Section 3(5) of the Act is not sustainable in C law. [462-B-C; El Kalpnath Rai v. State, (Through CBI) [19971 8 SCC 732, relied on. 2. The ingredients, as visualized under Section 3(1) of the Act, are absent in the facts of the instant case, and thus the conviction of the appellant D under Sections 3(1) and (2) of the Act is not tenable in law. [464-El Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors., [19941 4 sec 602, relied on. 3.1. In cross-examination, PW! stated that the accused neither blind- E folded his eyes nor assaulted him. This would clearly suggest the presence of the accused, as admitted. The only denial is that accused did not participate in blindfolding the eyes of PW! nor assaulted him. [465-D, El 3.2 PW4, driver of the offending ambassador car at the time of incident F was declared hostile. The statement of this witness in examination-in-chief shows that the offending vehicle was taken away on the fateful day by two unknown youths by force. The striking feature of the statement of this witness (P.W.4) is that he knew PW!. It must be noticed that PW! in his deposition stated that the appellant had taken him away in an ambassador car driven by PW4. It is, thus, clear that PW! and PW4 knew each other from before. G Therefore, PW! and PW4 are not strangers to each other and PW! could not have made mistake in naming PW4 in his statement. [465-E-F; 466-A-B] 3.3. The evidence of PW!, reading in between the lines, would 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 H 460 SUPREME COURT REPORTS (2002] SUPP. I s.c:R. A 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 his kidnapping was that he was giving information 4 to the Army about ULFA. Therefore, keeping this motive in the background, th
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