Holding

The conviction and sentence under TADA (Sections 3(1) and 3(5)) are set aside, but the conviction under Section 365 IPC is upheld.

Summary

The appellant, Tarun Bora (alias Aloka Hazarika), was convicted under Section 365 of the Indian Penal Code for kidnapping and under Sections 3(1) and 3(5) of the Terrorist and Disruptive Activities (Prevention) Act (TADA) for alleged terrorist conduct. The offence occurred on 18 August 1991, whereas Section 3(5) of TADA was inserted by an amendment (Act 43 of 1993) that came into force on 23 May 1993. The Supreme Court examined whether the post‑hoc amendment could be applied, whether the factual matrix satisfied the ingredients of Section 3(1), and whether the IPC conviction could stand despite limited corroborative evidence. Relying on Kalpnath Rai v. State and Hitendra Vishnu Thakur v. State of Maharashtra, the Court held that the conviction under Section 3(5) was unsustainable and that the ingredients of Section 3(1) were absent. However, it found the testimony of the kidnapping victim credible and upheld the conviction under Section 365 IPC. The Court rejected the appellant’s plea for leniency on humanitarian grounds. Consequently, the TADA convictions were set aside while the IPC conviction was confirmed.

Issues considered

Whether a person can be convicted under Section 3(5) of TADA for an act committed before the amendment inserting that provision came into force.
Whether the factual circumstances of the case satisfy the ingredients of Section 3(1) of TADA.
Whether the conviction under Section 365 IPC for kidnapping is maintainable in the absence of extensive corroborative evidence.
Whether humanitarian considerations warrant a reduction in punishment.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Penal Code, 1860s. 365
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3(1), s. 3(2), s. 3(5)

Subjects

TADAKidnappingSection 365 IPCAmendment applicabilityCorroborative evidenceHumanitarian leniencyTerrorism conviction

Judgment

A T ARUN BORA @ ALO KA HAZARIKA
v.
ST A TE OF ASSAM

AUGUST 12, 2002

B [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
ofthe 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 ofprosecution 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, the kidnapping of
PWI cannot be said to be for a joy ride. The conduct of the appellant clearly
B falls within the mischief of Section 365 I.P.C. (466-C-El

4. It is quite but natural that in a prevalent situation, obtaining in the
area surcharged with insurgency activities, striking 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
C reluctant to come to the Court to depose or appear before the Investigating
Officer to give statement for fear of reprisal. 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 instant case, coupled with the credible and
trustworthy statement of PWl, the prosecution has established its case.
D (467-C-El

5. Human consideration is no ground for showing leniency to the
perpetrator of crime against organized civilized society, which is abhorrent
to the concept of rule of law. Offence of kidnapping in any form impinges
upon human rights and right to life enshrined in Article 21 of the Constitution.
E 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. In fact, the designated Court has awarded a lenient punishment
of 5 years R.I. and the same is confirmed. (467-F-H)

CRJMINAL APPELL.\ TE JURISDICTION : Criminal Appeal No. 343
F
of2002.

From the Judgment and Order dated 19.1.2002 of the Designated Court.
Assam in T.S.C. No. 113of1992.

P.K. Goswami and Rajiv Mehta for the Appellants.
G
Ms. Krishna Sarma and V.K. Siddharthan, for M/s. Corporate Law Group
for the Respondent.

The Judgment of the Court was delivered by

H SEMA, J. Aggrieved by the order dated 19th January, 2002 passed by
L
TARUN BORA@ALOKA HAZARIKA v. STATE OF ASSAM [H.K. SEMA, l.] 461
the Addi. Judge, Designated Court, Guwahati in TADA Sessions Case No. A
113 of 1992 convicting the appellant Tarun Bora @ Alok Hazarika under
Section 365 Indian Penal 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
l.P.C. and further R.I. for 5 years forthe offences under Section 3(1) and 3(5) B
of the Act, the present appeal has been preferred. The substantive sentences
were ordered to run concurrently.

An F.l.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.l), a C
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
rele>Sed by the abductor on 20.8.1991. Pursuant to the aforesaid F.l.R. the
Officer-in-charge ofBihpuria Police Station registered case No. 303/91 dated D
24.8.1991 under Sections 364/325/307/34 l.P.C. read with Section 3./4 TADA
(P) Act. However, on perusal of the material submitte.d before him, the Addi.
Judge, Designated Court framed a formal charge under Section 365 1.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 E
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.

The prosecution examined as many as six witnesses. The appellant
F
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. l)
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 G
aforesaid sections of law have been found well established against the
appellant. By the impugned order, the appellant was convicted and sentenced
as aforesaid.

We have heard Mr. P.K. Goswami, learned senior counsel for the appellant
and Ms. Krishna Sarrna, learned counsel for the respondent. H
462 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A 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
B 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. This point
had been set at rest by this Court in Kalpnath Rai v. State (Through CBI)
[1997] 8 sec 732 and batch of appeals, where a similar question was raised
before this Court. Justice K.T. Thomas (as his Lordship then was) speaking
C for the Bench, while considering the applicability of Section 3(5) of the Act,
in paragraph 35 of the judgment said:

"There arp two postulates in sub-section (5). First is that the accused
sh'ould have been a member of "a terrorist' gang" or "terrorists'
organisation" after 23.5.1993. Second is that the said gang or
D organisation should have involved in terrorist acts subsequent to
23.5.1993. Unless both postulates exist together Section 3(5) cannot
be used against any person."

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
E in law.

Mr. Goswami next contended that the ingredients of the offence 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.

F Section 2(l)(h) of the Act defines "terrorist act" as under:

"terrorist act' has the meaning assigned to it in sub-section (I) of
Section 3, and the expression "terrorist" shall be construed
accordingly;"

G Section 3 of the Act reads:

"3. Punishment for terrorist acts: - (I) 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
H sections of the people does any act or thing by using bombs,
TARUN BORA@ ALOKA HAZARIKA v. STATE OF ASSAM [H.K. SEMA, l.] 463

dynamite or other explosive substances or inflammable substances A
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
B
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.
(2) Whoever commits a terrorist act, shall, - c
(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;

(ii) in any other case, be punishable with imprisonment for a D
term which shall not be less than five years but which may
extend to imprisonment for life and shall also be liable to fine.

(3) Whoever conspires or attempts to commit, or advocates, abets,
advises or incites or knowingly facilitates the commission of, a
terrorist act or any act preparatory to a terrorist act, shall be E
punishable with imprisonment for a term which shall not be less
than five years but which may extend to imprisonment for life and
shall also be liable to fine.
(4) Whoever harbours or conceals, or attempts to harbour or conceal,
any terrorist shall be punishable with imprisonment for a term F
which shall not be less than five years but which may extend to
imprisonment for life and shall also be liable to fine.
(5) Any person who is a member ofa terrorist's gang or a terrorist's
organisation, which is involved in terrorist acts, shall be punishable
with imprisonment for a term which shall not be less than five G
years but which may extend to imprisonment for life and shall
also be liable to fine.
(6) Whoever holds any property derived or obtained from commission
of any terrorist act or has been acquired through terrorist funds
shall be punishable with imprisonment for a term which shall not H
464 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.
L

A be less than five years but which may extend to imprisonment for
life and shall also be liable to fine."

This Court in Hitendra Vishnu Thakur and Ors. v. State of Maharashtra
and Ors., [1994] 4 SCC 602 had occasion to interpret the ingredients as
visualized under Section 3( l) of the Act and held in para 5 of the judgment
B as under:

"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, does any act or things by using (a) bombs or
c dynamite, or (b) other explosive substances, or (c) inflammable
substances, or (d) firearms, or (e) other lethal weapons, or (t) 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
D
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."
E
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.

We shall now proceed to examine as to whether the conviction of the
F appellant under Section 365 of the Indian Penal Code is maintaina~le.

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 he could be
G examined.

P.W.-1-Bhola Kakati said that on 18.8.1991 he was invited to the
residence of Nandeswar Bora for settlement of some of his land disputes and
he reached his place at about 3.30 P.M. He stated that before the talk of
settlement started, the accused Tarun Bora appeared there and took him to
H an ambassador car standing on the road and the car was driven away by Rajib
TARUN BORA@ALOKA HAZARIKA'· STATE OF ASSAM [H.K. SEMA.J.I 465
Bhuyan (P.W.-4).He was taken blind-folded. After covering some distance, the A
car was stopped but again it was driven away and after covering about 7 kms.
the car was stopped and he was taken away from the car to the house of some
person and was kept there blind-folded for three days. On the first night of
confinement, he was assaulted by somebody but he did not know who the
assailant was as he remained blind folded.
B
The witness further stated that during the assault, the assailant accused
him of giving information to the army about the United Liberation Front of
Assam (ULFA). He fljlther stated that on the third night he was carried away
blind folded on a bicycle to a different place and when his eyes were unfolded,
he could see his younger brother Kumud Kakati (P.W.-2) and his wife Smt. C
Prema Kakati (P. W.-3). The place was Duliapather, which is about 6-7 kms.
away from his village Sakrahi. The witness identified the appellant Tarun Bora
and stated that it is he who took him in an ambassador car from the residence
of Nandeswar Bora on the date of the incident.

In cross-examination the witness stated as under: D
"Accused Tarun Bora did not blind my eyes nor he assaulted me."

This part of cross-examination is suggestive of the presence of accused
Tarun Bora in the whole episode. This will clearly suggest the presence of
the accused Tarun Bora as admitted. The only denial is the accused did not E
participate in blindfolding the eyes of the witness nor assaulted him.

P. W.-4-Rajib Bhuyan, who was alleged to have driven the offending
ambassador car bearing registration No. AMH-1872, at the time of incident
was declared hostile. However, his examination-in- chief is important which
~as~- F
"I know P.W.-IBhola Kakati and Nandeswar Bora. On 18.8.91 my
mother Smt. Bimala Bhuyan owned one ambassador car bearing
registration No. AMH 1872. On that day, the car was kept in our
original residence at Narayanpur. I used to attend my office at N.
Lakhimpur town from. Narayanpur. When I returned home from my G
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. 303191."

The witness was confronted with his statement recorded under Section H
466 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A 161 Cr.P.C.

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.

B 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 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, clearthat 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
C P.W.-1 could not have made mistake in naming P.W.-4 in his statement.

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
D 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
E 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 l.P.C.

Rajib Bhuyan (P.W.-4) was declared hostile. He has, however, clearly
F stated in his examination-in-chief that his mother had a car bearing registration
No. AMH 1872 and on the day of the incident, he was informed by his mother
Bimala Bhuyan that the said car had been taken away by two unknown
youths by force. It must be remembered that the said ambassador car was
brought by the appellant Tarun Bora to the house of Nandeswar Bora and
P.W.-1 was taken away in that vehicle.
G
We have already noticed that in cross-examination of P. W.-1 a suggestion
was put to him that the appellant Tarun Bora had neither participated in blind
folding him nor assaulted him. This is clearly indicative of the presence of the
appellant and participation in the kidnapping episode.

H Bimal Chand Deka (P.W.-6) is the 1.0. He stated that on 23.8.91 he was

J-
TARUN BORA @ALOKA HAZARIKA v. STATE OF ASSAM [H.K. SEMA.JJ 467

working as Incharge Narayanpur Police Out Post. He further stated that the A
F.I.R. Ext.-1 was lodged by him and O/C Bihpuria P.S. registered a case u/s
36413251307134 !PC r/w Sections 3 & 4 TADA (P) Act and entrusted him for
investigation. In course of investigation he has seized ambassador car No.
AMH 1872 belonging to Bimla Bhuyan vide seizure memo. No. 14/9! Ext.-4.
He further stated that the seized vehicle was given in zimma to the registered B
owner Bimla Bhuyan vide Ext.-5. He also stated that during the investigation
he had recorded statement of witnesses u/s l 61 Cr.P.C. and arrested the
appellant Tarun Bora and forwarded him to the Court and after completion of
investigation submitted the charge-sheet.

·' Counsel for the appellant submits that there is no sufficient corroborative C
evidence and material on record to sustain conviction of the appellant under
Section 365 of the l.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 D
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 E
facts and circumstances of the present case, as adumbrated above, coupled
with the credible and trustworthy statement of P.W.-1 Bhola Kakati, the
.4 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. F

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 G
consideration is no ground for showing leniency to the perpetrator of the
crime against organized civilized society, which is abhorrent to the concept
of rule oflaw. 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 H
468 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.
-. ..
A ' 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.

For the reasons above stated the conviction and sentence of the
appellant und"r TADA (P) Act is set aside. However, the conviction and
sentence awarded to the appellant for the offence under Section 365 l.P.C. is,
B hereby, confirmed. The appeal is disposed of accordingly.

S.K.S. Appeal partly allowed.