Gauhati High Court
Page No.# 1/53 vs The State Of Assam on 24 August, 2023
Page No.# 1/53
GAHC010183732019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./311/2019
SMT. DIPANJALI BORGOHAIN AND 2 ORS.
D/O- SHRI HEM CHANDRA GOHAIN, PERMANENT RESIDENT OF VILL.-
BHEHPARA, P.S. DHEMAJI, ASSAM.
2: SHRI LILA GOGOI
S/O- LATE MUKTANATH GOGOI
PERMANENT RESIDENT OF VILL.- HALMARI AHOMGAON
P.S. DHEMAJI
ASSAM.
3: SHRI JATIN DOWARI
S/O- SHRI TAPAN DOWARI
PERMANENT RESIDENT OF VILL.- BHEHPARA NAPAN
P.S. DHEMAJI
ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY P.P., ASSAM
For the appellants : Mr. A.K. Das .... Advocate.
For the respondent : Ms. S. Jahan .... Additional PP,
Assam.
Linked Case : Crl.A./305/2019
MUHI HANDIQUE
S/O- LATE PADMESHWAR HANDIQUE
R/O- VILL.- BHEHPARA
P.O. AND P.S. DHEMAJI
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DIST.- DHEMAJI
ASSAM
PIN- 787057.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY P.P.
ASSAM.
2:AHMED ALI
S/O- LATE NOOR HUSSAIN
R/O- JURIA
P.S. JURIA
DIST.- NAGAON
ASSAM.
For the appellant : Mr. D.K. Bhattacharyya .... Advocate.
For the respondent : Ms. S. Jahan .... Additional PP, Assam.
Linked Case : Crl.A./365/2019
SRI HEMEN GOGOI
S/O- LATE JURAM GOGOI
R/O- VILL.- BORMUR
P.O. KALAKATA
P.S. AND DIST.- DHEMAJI
ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY THE P.P.
ASSAM.
2:AHMED ALI
S.I. DHEMAJI POLICE STATION
DIST.- DHEMAJI
ASSAM.
For the appellant : Mr. A. Khanikar .... Advocate.
For the respondent : Ms. S. Jahan .... Additional PP, Assam
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BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
Date of hearing : 28.07.2023.
Date of judgment : 24.08.2023.
JUDGMENT AND ORDER (CAV)
(M. Zothankhuma, J)
Heard Mr. A.K. Das, learned counsel for the appellant in Criminal Appeal
No.311/2019; D.K. Bhattacharyya, learned counsel for the appellant in Criminal
Appeal No.305/2019 and Mr. A. Khanikar, learned counsel for the appellant in
Criminal Appeal No.365/2019. Also heard Ms. S. Jahan, learned Additional Public
Prosecutor for the respondents.
2. The appellants have filed the above three appeals under Section 374(2)
Cr.P.C. against the judgment dated 04.07.2019 passed by the learned Sessions
Judge, Dhemaji in Sessions Case No.127(DH)/2011 arising out of Dhemaji P.S.
Case No.202/2004. The appellants Smt. Dipanjali Borgohain, Shri Lila Gogoi and
Shri Jatin Dowari in Criminal Appeal No.311/2019 and appellant Muhi Handique
in Criminal Appeal No.305/2019 have been convicted and sentenced under :- (i)
Section 302 IPC read with Section 120B IPC; (ii) Section 323 IPC read with
Section 120B IPC; (iii) Sections 3(a) and 4(b)(i) of the Explosive Substances Act
read with Section 120B IPC and (iv)Section 10(b)(i) and 13(1)(a) of the
Unlawful Activities (Prevention ) Act, 1967 (hereinafter referred to as "the 1967
Act"). The appellant Hemen Gogoi in Criminal Appeal No.365/2019 has been
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convicted and sentenced under Section 10(a)(iv) and 13(2) of the 1967 Act.
3. The appellants have been convicted on the above charges in relation to a
bomb blast which occurred at 8:55 a.m. on 15.08.2004 in the Dhemaji College
Play Ground, where Independence Day celebrations were going on. The effect
of the bomb blast killed 13 persons including 10 children on the spot, while
grievously injuring 19 to 20 persons. It is the case of the State respondents that
the United Liberation Front of Assam (ULFA in short), a militant outfit banned by
the Government of India, had exploded a bomb in order to create an
atmosphere of terror, with an aim to create an independent nation by declaring
war against the State.
4. The prosecution case in brief is that an FIR dated 15.08.2004 was
submitted by S.I. Ahmed Ali, Dhemaji Police Station to the Officer-in-Charge,
Dhemaji Sadar Police Station, praying that an investigation should be conducted
due to the bomb blast that occurred on 15.08.2004 in the Dhemaji College Play
Ground, killing 13 persons and grievously injuring 19 to 20 person. In pursuant
to the FIR dated 15.08.2004, Dhemaji PS Case No.202/2004 under Section
120(B)/121/121(A)/122/302/326 IPC read with Section 3/4 of the Explosive
Substance Act, 1884 and Section 10/13 of the 1967 Act was registered.
5. During investigation, the Investigating Officer (I.O.) found sufficient
grounds to prosecute 15 persons, including the appellants, under the charges
stated in the foregoing paragraphs and accordingly requested the District
Magistrate, Dhemaji to grant prosecution sanction to prosecute the 15 accused
persons. After prosecution sanction was granted, charge-sheet was filed on
28.02.2011.
6. After charge-sheet was submitted, charge under Section
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12(B)/302/326/323 IPC, Section 3/4 Explosive Substance Act, 1884 and Section
10 & 13 of the 1967 Act were framed against the appellants (1) Jatin Dowari @
Rangman @ Mritunjoy Gohain, (2) Lila Gogoi @ Lila Khan, (3) Smti. Dipanjali
Borgohain @ Lipi (appellants in Criminal Appeal No.311/2019), (4) Muhi
Handique (appellant in Criminal Appeal No.305/2019) and (5) Hemen Gogoi
(appellant in Criminal Appeal No.365/2019).
7. During the trial, 58 prosecution witnesses and 2 defence witnesses were
examined by the learned Trial Court. After the deposition of the witnesses and
statements of the appellants were recorded under Section 313 Cr.P.C., the
learned Trial Court passed the impugned judgment dated 04.07.2019 in Sessions
Case No. No.127(DH)/2011. By the said impugned judgment, the learned Trial
Court convicted the four appellants in Criminal Appeal No.311/2019 and
Criminal Appeal No.305/2019 under:- (i) Section 302 IPC read with Section 120B
IPC; (ii) Section 323 IPC read with Section 120B IPC; (iii) Sections 3(a) and 4(b)
(i) of the Explosive Substances Act read with Section 120B IPC and (iv) Section
10(b)(i) and 13(1)(a) of the 1967 Act. They were accordingly sentenced to
undergo (a) R.I. for life and to pay a fine of Rs.10,000/- each, in default R.I. for
another 2 months each under Section 302 IPC (b) R.I for life each and to pay a
fine of Rs.10,000/- each, in default R.I. for another two months each under
Section 120B IPC (c) R.I for 1 year under Section 323 IPC. (d) R.I. for life each
and life and to pay a fine of Rs. Rs.10,000/- each, in default R.I. for another two
months under Section 10(b)(i) of the 1967 Act. (e) R.I. for five years each and
to pay a fine of Rs.2,000/- each, in default R.I. for 1 month each under Section
13(1)(a) of the 1967 Act. (f) R.I. for 10 years each and to pay a fine of
Rs.2,000/- each in default R.I. for one month each under Section 3(a) of the
Explosive Substances Act and (g) R.I. for 10 years each and to pay a fine of
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Rs.2,000/- each in default R.I. for one month each under Section 4(b)(i) of the
Explosive Substance Act, 1884 .
8. The appellant in Criminal Appeal No.365/2019, i.e. Hemen Gogoi was
convicted under Section 10(a)(iv) of the 1967 Act and under Section 13(2) of
the 1967 Act. He was accordingly sentenced to undergo R.I. for 2 years with a
fine of Rs.5,000/-, in default R.I. for 2 months under Section 10(a)(iv) of the
1967 Act. He was also sentenced to undergo R.I. for 4 years with a fine of
Rs.5,000/-, in default R.I. for 2 months under Section 13(2) of the 1967 Act.
9. Being aggrieved by the impugned judgment, the appellants have filed the
above three appeals.
10. Mr. A.K. Das, learned counsel for the appellants in Criminal Appeal
No.311/2019 and Mr. D.K. Bhattacharyya, counsel for the appellant in Criminal
Appeal No.305/2019 submit that except for the depositions of PW-55 & 56, the
evidence of the other witnesses do not have any relevance, with regard to the
question whether the appellants are guilty of having masterminded the bomb
blast that took away the lives of 13 persons and injured 19 to 20 persons. They
submit that the entire basis for convicting the appellants is the retracted
confessional statement of Jatin Dowari, the appellant no.3 in Criminal Appeal
No.311/2019, wherein he has made an exculpatory statement under Section
164 Cr.P.C. to the Magistrate, to the effect that ULFA cadres namely Lila Khan @
Lila Gogoi, Pintu Borah, Prafulla Bhuyan, Rashi Bharali and Neog came to his
house and took him out by threatening him at gunpoint. They took him to the
college gate through the front of the girls hostel and asked him to show them
the college field a few days before the incident. He showed them the college
field and thereafter the said persons sent him to Tiniali. After waiting for them
for some time as per their instructions, he was told to escort them to a safe
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passage which he did.
11. The counsels for the appellants submit that the confessional statement
made by Jatin Dowari was retracted during his examination under Section 313
Cr.P.C. and as such, the learned Trial Court could have only acted on the basis of
the retracted confessional statement, if there was some other corroborative
evidence. There being no other corroborative evidence to link Jatin Dowari or
the other appellants with the bomb blast, the learned Trial Court erred in
convicting the appellants, including Jatin Dowari
12. The learned counsels for the appellants submits that a bare perusal of the
impugned judgment of the learned Trial Court, goes to show that the finding of
guilt made by the learned Trial Court against the appellants, was based on the
statement of the witnesses under Section 164 Cr.P.C., as well as the retracted
confessional statement of the appellant Jatin Dowari under Section 164 Cr.P.C.
The learned Trial Court also held that the appellants had recreated the scene of
the crime during police investigation, which showed that the appellant Jatin
Dowari was a party to the conspiracy to commit the bomb blast. They submit
that the learned Trial Court had erroneously held that from the cumulative
evaluation of the evidence and materials on record, it transpired that ULFA
militants planned the bomb attack at Dhemaji College field and engaged it's
active members for carrying out the operation when there was no evidence to
that effect. PW-56 (I/O) had recovered a mobile handset with SIM card bearing
no. 9435088784 from the possession of accused Dipanjali Borgohain and Mobile
handset bearing No. 9435088773 from the possession of accused Muhi
Handique, with which the appellants were alleged to have used to make calls to
ULFA leaders Rashid Bharali and others. Also copy of daily call report of those
mobile phones had also been collected from BSNL. IO/PW-56 recovered and
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seized one Maroti Car bearing Registration No. AS-07-2399 from the possession
of accused Muhi Handique. The learned Trial Court, without coming to any
finding as to what was the contents of the conversation made by the appellants
Deepanjali Borgohain and Muhi Handique and without making any
connection/link with the above articles and the bomb blast, besides keeping in
view the retracted confession of the accused Jatin Dowari, held that there were
also other corroborating materials regarding involvement of accused Lila Khan
@ Lila Gogoi, Jatin Dowari, Muhi Handique and Dipanjali Borgohain in the bomb
blast.
13. The counsels for the appellants submit that the confessional statement of
Jatin Dowari was exculpatory in nature and the same having been retracted
during his examination under Section 313 Cr.P.C, the same could not have been
used as a basis for coming to a finding that the appellants were guilty. Further,
the retracted confessional statement of Jatin Dowari does not in any manner
implicate the maker or the other appellants with regard to the bomb blast which
occurred on 15.08.2004. Also there is nothing in the evidence to show that Jatin
Dowari had recreated the scene of the crime. They also submit that the
prosecution having failed to provide any certificate under Section 65B of the
Evidence Act, the alleged phone calls made from the recovered mobile handset
with SIM card bearing no. 9435088784 and Mobile handset bearing No.
9435088773 to the ULFA leader Rashid Bharali and others, does not in any way
connect the appellants with the bomb blast. No record of the conversation or
the contents of the conversation was ever produced in Court. The alleged
communication made through the above mobile handsets and SIM cards was
thus inadmissible as evidence. Further, there was no proof that the appellants
were members of ULFA. They also submit that while the learned Trial Court had
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come to a finding that Maruti Car bearing Registration No. AS-07-2399 had been
seized from the possession of the appellant Muhi Handique, the evidence of PW-
56, i.e. the I.O. of the case, is to the effect that the said Maruti Car had been
seized from Rubi Handique, wife of Muhi Handique, which had been alleged to
be used for committing the crime. They submit that no specifics have been
given as to how and when the Car had been used for committing the crime.
Whether the bomb was carried in the Car or whether the appellants used the
Car for the bomb blast. No details have been provided by the prosecution as to
how the said Car had been used for committing the crime i.e. the bomb blast.
They also submit that in the retracted confessional statement of Jatin Dowari,
no mention of the appellant Muhi Handique or the Car was made. Further, if the
Car had been used between 05.08.2004 and 15.08.2004 for carrying the bomb
or parts of it, the Car should have been sent to the FSL for examination, which
was not done. They also submit that there was nothing incriminating found in
the pocket diary seized from the possession of the Muhi Handique. They
accordingly submit that the entire case of the prosecution having been based on
the fabricated story made up by PW-56, who is the I.O. of the case, without
giving any details or making any attempt to connect the appellants with the
bomb blast, the conviction of the appellants by the learned Trial Court, in the
absence of evidence, is perverse. Accordingly, the conviction of the appellants in
Criminal Appeal No.311/2019 and Criminal Appeal No.305/2019 should be set
aside and the appellants should be acquitted of the charges framed against
them.
14. The counsel for the appellant Hemen Gogoi in Criminal Appeal
No.365/2019 submits that the appellant has been convicted and sentenced
under Section 10(a)(iv) and Section 13(2) of the 1967 Act, in view of some
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incriminating materials having been recovered from his house, i.e. a Gamocha
(a white rectangular piece of cloth with a red border) and Colgate toothpaste,
which did not belong to Hemen Gogoi or to his wife, Smt. Bhabani Gogoi (PW-
30). PW-30 in her evidence has stated that sometime in August, 2004 some 4/5
boys had gone to their house during the absence of her husband and had
threatened her that if food was not given to them they would face dire
consequences. Accordingly, food was served to them. A small bag containing a
Gamocha and Colgate, which did not belong to appellant Hemen Gogoi or PW-
30, but belonged to the group of boys was seized by the police. The learned
Counsel for Hemen Gogoi submits that there is nothing to link the appellant
Hemen Gogoi with the seized Gamocha and Colgate vis-à-vis the bomb blast,
inasmuch as, the 4/5 boys who had apparently eaten in his house would have to
be first linked to the bomb blast. The same not having been done, there was no
basis for the learned Trial Court to have convicted and sentenced the appellant
under the 1967 Act.
15. The learned counsels for the appellants submit that the prosecution
sanction order made under Section 45 of the 1967 Act had not been exhibited
before the learned Trial Court, thereby implying that no sanction for the same
had been issued. They also submit that while prosecution sanction under the
Explosive Substances Act had been given for prosecuting the appellants under
Section 3 & 4 of the Explosive Substances Act, the same had been exhibited as
Ext-64 by the I.O. and not by the District Magistrate, who had drafted the said
sanction order. They also submit that though the sanction order for prosecution
under the Explosive Substances Act had been made under Section 3 & 4, the
same can be read as an order made under Section 7 of the Explosive
Substances Act.
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16. The learned counsels for the appellants submit that in terms of the
evidence given by PW-57 (I.O), which is to the effect that he handed over the
Case Diary to his successor Lalit Buragohain, who thereafter collected the
prosecution sanction order under the Explosive Substances Act read with
Section 10 & 13 of the 1967 Act, there could not have been one prosecution
sanction under both the Acts. They submit that while prosecution sanction
under Explosive Substances Act would have to be given by the District
Magistrate, the prosecution sanction under Section 45 of the 1967 Act would
have to be given by the Central Government, or any other person authorized by
the Central Government. In this case, there is nothing to show that any
prosecution sanction had been issued under the 1967 Act. The appellants'
counsels also submit that the Police Officer Lalit Buragohain who had submitted
the charge-sheet was not examined as a prosecution witness in the learned Trial
Court. As such, the appellant's could not have been prosecuted or tried in the
absence of two different Prosecution Sanction orders
17. The learned counsels for the appellants further submit that the learned
Magistrate, who recorded the confessional statement of Jatin Dowari under
Section 164 Cr.P.C did not ask the appellant, Jatin Dowari, as to whether his
confession was being made voluntarily and as such, the learned Magistrate
could not have satisfied itself that the confession made by Jatin Dowari was
voluntary. As the alleged confession of the appellant, Jatin Dowari was not
voluntary and as it had been retracted during his examination under Section 313
Cr.P.C., the retracted confession had no value. In support of this submission, he
has relied upon the judgment of the Supreme Court the case of Kalawati &
Another vs The State of Himachal Pradesh, reported in AIR 1953 SC
131. They also submit that prior to making his confessional statement, Jatin
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Dowari had not been informed that he would not be remanded/sent back to
Police custody, even if he did not make a confession. In the absence of the
appellant Jatin Dowari being informed of the above, his retracted confessional
statement made under Section 164 Cr.PC could not have been said to be
freely/voluntarily made. In support of their submission, they have relied upon
the judgment of the Division Bench of this Court in the case of Abdul Subhan
-vs- State of Assam, reported in 2022 (4) GLT 679. They submit that the
said confessional statement, in any event, does not establish or prove any link
between the appellants and the bomb blast.
18. The learned counsels for the appellants submit that as there is no
prosecution sanction order exhibited in respect of the 1967 Act, no conviction of
the appellants could have been made in respect of the 1967 Act. That being the
case, evidence was to be led showing the involvement of the appellants in
respect of the charge under Section 302 IPC. However, there being no such
evidence on that issue, the appellants would have to be acquitted of the
charges framed against them.
19. Ms. S Jahan, learned Additional Public Prosecutor, on the other hand
submits that the appellants are members of ULFA and were responsible for the
blast in the Dhemaji College Field on 15.08.2004, wherein a number of children
were killed, besides many people being injured. She submits that PW-17, Smti.
Tilottama Chutia, during her re-examination before the Trial Court deposed that
she did not remember the contents of her statement made before the
Magistrate under Section 164 Cr.P.C. In her statement before the Magistrate
under Section 164 Cr.P.C., PW-17 had stated that her cousin Joya Chutia came
to her house on 14.08.2004 and told her that a member of a terrorist
organization, Shri Lila Gogoi @ Khan, who took refuge in Joya Chutia's house,
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had told Joya Chutia that there would be a bomb blast on 15 th August at
Dhemaji.
20. The Addl. Public Prosecutor also submits that the confession of the co-
accused/appellant Jatin Dowari lends support to the Prosecution case that the
appellants were guilty of blasting the bomb. In support of her submission that
the confessional statement of a co-accused can support the Prosecution case,
she has relied upon the judgment of the Supreme Court in Jamiluddin Nasir
Vs. State of West Bengal, reported in 2014 7 SCC 443.
21. The Addl. Public Prosecutor submits that PW-30 and 31, wives of two
brothers Chandra Nath Gogoi and wife of Hemen Gogoi respectively, stated in
their evidence that prior to the bomb blast, 4/5 boys, who were members of
ULFA, at the point of a gun took food and stayed at their place. A bag
containing a note book, a small dagger etc, was seized on 24.08.2004 from the
house of Hemen Gogoi, which was left by the 4/5 boys. The bag was recovered
from Hemen Gogoi's house, as stated in the evidence of PW-44, the Assistant
Sub-Inspector. However, Hemen Gogoi never reported the matter to the police
at any time. Further, Appellant No. 3 in Criminal Appeal No. 311/2019, i.e. Shri
Jatin Dowari, in his confession recorded under Section 164 Cr.P.C., confessed
that while he was in his house on 05.08.2004, members of a terrorist
organization/unlawful assembly, including Sri Lila Gogoi @ Khan made him show
them the college field and a safe route out of the field under threat, which he
accordingly did. Further, the Magistrate who recorded the confession of Sri Jatin
Dowari was examined as PW-55 and he deposed that he had followed all the
guidelines prescribed, prior to recording the confession under Section 164 Cr.P.C
22. The Addl. Public Prosecutor submits that PW-41, Sri Khagen Buragohain
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in his statement under Section 164 Cr.P.C., stated that one day he met one Mr.
Bharali, who is a member of ULFA, who told him to tell Sri Muhi Handique, to
get two forms for mobile connections and that Ext. No. 39 proved that the two
forms were issued.
23. The Addl. Public Prosecutor submists that PW-32, Sri Rebot Chutia in his
statement under Section 164 Cr.P.C., stated that one day his maternal aunt,
whose name was Lipi Gohain and who was a member of a terrorist organization
visited his house. The Additional Public Prosecutor submits that Smti. Dipanjali
Borgohain is also known as Lipi, as can be seen from the statement of Dipanjali
Borgohain recorded under Section 313 Cr.P.C, where she mentioned her name
as Dipanjali Borgohain @ Lipi. Mobile handsets belonging to Smti. Dipanjali
Borgohain and Muhi Handique were used to communicate with members of the
terrorist organization/ULFA, during the time of occurrence. Further, United
Liberation Front of Assam (ULFA) was declared as an Unlawful Assembly by the
Central Government under section 3 of the Unlawful Activities (Prevention) Act,
1967. She accordingly submits that the above evidences showed that the
appellants were guilty of having been involved and being instrumental in
blasting a bomb in the Dhemaji College Field on the fateful day, killing and
injuring a number of persons.
24. Ms. S. Jahan, learned Additional Public Prosecutor submits that there is no
infirmity in the District Magistrate not exhibiting the prosecution sanction order
made under the Explosive Substances Act, as the same had been exhibited by
the I.O, to whom the prosecution sanction had been given. In respect of non-
exhibiting the prosecution sanction under the 1967 Act, the learned Additional
Public Prosecutor submits that the charge-sheet having categorically stated that
two prosecution sanctions had been made, the non-exhibiting of the prosecution
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sanction order under the 1967 Act cannot be fatal to the prosecution case.
25. The learned Additional Public Prosecutor submits that in the Form for
recording a confessional statement under Section 164 Cr.P.C. made by the
Guwahati High Court, to be used uniformly throughout the jurisdiction of the
Guwahati High Court, there is a question which requires the person who is to
make a confessional statement to answer, i.e. that he would not be sent back to
police custody even if he did not confess. The Question No. (vii) that is a part of
the Form for recording confessional statement under Section 164 Cr.P.C., made
by the Guwahati High Court, is as follows :
"I assure you that you will not be remanded/sent back to police custody if
you do not confess. Are you clear about it ?
Ans : .........................."
Though the said question was not included in the Form used by the
Judicial Magistrate, who recorded the confession of Jatin Dowari, the Additional
Public Prosecutor submits that the confessional statement being voluntary, a
finding/decision can be made on the basis of the same.
26. The learned Additional Public Prosecutor submits that the voluntariness of
Jatin Dowari's confession having been proved by his statement in the
confessional form, where it was stated that it was made on his own volition, the
absence of giving any reassurance by the learned Magistrate to Jatin Dowari,
that he would not be sent to the police custody if he did not make any
confession, was redundant. In this respect, the learned Additional Public
Prosecutor has taken us through the confessional statement Form under Section
164 Cr.P.C., which had been used by the Magistrate for recording the
confessional statement of Jatin Dowari. She has specifically taken us to
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Question No.4 in the said form, which is to the following effect :
"Are you making confession on being tutored by somebody ?"
The answer to the above was as follows :
" No. I want to make confession on my own volition ."
The learned Additional Public Prosecutor submits that the above answer
given by Jatin Dowari clearly showed that the confession had been made
voluntarily.
27. The learned Additional Public Prosecutor has relied on a number of
judgments of the Hon'ble Supreme Court, in support of her submissions that the
appellants are guilty of the offence for which they have been convicted and
sentenced by the learned Trial Court. The same are as follows:-
(i) Dhanbal & Ors. vs. state of Tamil Nadu, reported in (1980) 2 SCC 84;
(ii) Tuku vs. State of Orissa, reported in MANU/OR/0026/2022;
(iii) K.I. Pavunny vs. Assistant Collector, reported in (1997) 3 SCC 721;
(iv) Trimukh Maroti Kirkan vs. State of Maharashtra, reported in (2006) 10
SCC 681;
(v) Keshoram Bora vs. State of Assam, reported in (1978) 2 SCC 407;
(vi) Kehar Singh & Ors. vs. State (Delhi Administration), reported in (1988)
3 SCC 609; and
(vii) Jamiluddin Nasir vs. State of West Bengal, reported in (2014) 7 SCC
443.
28. We have considered the submissions made by learned counsels for the
parties and have also gone through the materials available on record
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meticulously.
29. The basic issue is whether the prosecution was able to prove it's case
beyond any reasonable doubt against the appellants and whether the findings
and conviction of the appellants by the learned Trial Court was based on
evidence, connected to the bomb blast that occurred on 15.08.2004.
30. The evidence of PW-1 is to the effect that on 15.08.2004, she sent the
dead bodies of the victims of the bomb blast to Dhemaji Civil Hospital for
performing Post Mortem examination. The evidence of PW-2, who was the A.S.I.
of Police of Dhemaji Police Station is that he received information about the
bomb explosion at Dhemaji College field, in which 13 persons had died. The
evidence of PW-3 is that he carried the dead bodies to the hospital. The
evidence of PW-4 is that he was on duty at Dhemaji College field from
23.07.2004 to 03.08.2004 along with four other Home Guards. The evidence of
PW-5, who is the A.S.I. of Police is that he was on duty from the evening of
14.08.2004 till 8:00 a.m. of 15.08.2004 . After hoisting of the flag, he went to
the Police Reserve where he came to learn that a bomb blast had taken place.
PW-6 is the one who submitted the FIR on 15.08.2004 with regard to the bomb
blast.
31. PW-7 deposed that he was present in the Dhemaji College field when the
bomb blast took place. He sustained injury on his back and took treatment at
Dhemaji Civil Hospital. Though he did not know who caused the bomb
explosion, he heard that the bomb blast was caused by ULFA militants.
However, PW-7 does not say as to who had told him that the bomb blast was
caused by ULFA militants. PW-8 states that he did not have knowledge about
the occurrence of the bomb blast.
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32. PW-9, 10, 11, 12, 13, 14 and 15 deposed during recording of their
evidence that they were in the Dhemaji College field on 15.08.2004 and were
injured by the bomb blast, due to which they were given medical treatment.
33. The evidence of PW-16 is that he was in his house on 15.08.2004. At
about 7:30 a.m. he heard a loud sound and saw people running. He heard that
due to a bomb blast, a lot of people died and had sustained injuries. During
investigation, Police called him to the police station, wherein he saw the
appellant Jatin Dowari narrating to the police as to how the incident had
occurred. Further, video recording of Jatin Dowari giving his statement was also
being done. The police had also seized one mobile phone in connection with the
incident. In his cross-examination, PW-16 states that he did not remember the
things stated by the appellant Jatin Dowari before the police and he did not
know from whom the mobile phone was seized. However, PW-16 denied the
suggestion that Jatin Dowari had not narrated before the police as to how the
incident had occurred or that he had given false evidence.
34. PW-17 in her testimony states that she heard that there was a bomb blast
in the College field due, to which some persons died and a few were injured.
She also states that she did not know how the bomb blast took place. She
further states that she had given her statement before a Magistrate under
Section 164 Cr.P.C. which was exhibited as Ext.46. Ext.46 is to the effect that
PW-17's cousin Joya Chutia had told her that one ULFA member, Lila Khan had
taken refuge in their house for the night. Lila Khan told Joya Chutia that a bomb
would explode in Dhemaji on 15th August. As she did not trust the veracity of
the said information told to her, she did not divulge the same to anybody.
35. The evidence of PW-18, who was the Lot Gaonburah (Village Headman) is
Page No.# 19/53
to the effect that when she was called by the police to the Dhemaji police
station, she saw appellant Jatin Dowari and Dipanjali Borgohain making
statements before the Officer in Charge (O.C.) of the Police Station, with regard
to the bomb blast that had taken place in the Dhemaji College field. Their
statements were also video recorded in her presence. However, she did not
remember what had been stated by them in their statements, which were video
recorded. The video recording, which were made in four cassettes, was seized
in her presence. The seizure of the four video cassettes was made by a seizure
list, which was exhibited as Ext. 29 and she identified her signature on the
seizure list as Ext.29(1). PW-18 also denied the suggestion that Jatin Dowari
and Dipanjali Borgohain had been tutored to say what they were saying at the
time of the video recording. She also denied the suggestion that she was not
present when the video recording was being done. However, the video recording
stored in the four cassettes had not been produced and exhibited before the
learned Trial Court. In her evidence before the learned Trial Court, PW-18 has
not made any mention of the statement given by her to the Judicial Officer
under Section 164 Cr.PC and which had been exhibited as Ext. 58(1) by PW-55,
i.e., the retired Judicial Officer, who had allegedly recorded the statement.
Further the contents/details of the statement allegedly made by PW-18 under
Section 164 Cr.P.C does not find any mention in the evidence adduced by PW-18
before the learned Trial Court. As such, the details/contents of the statement
made by PW-18 under Section 164 Cr.P.C is not corroborated by any
independent evidence or evidence given by PW-18. As such, there is no proof of
the involvements of the above appellants in the bomb blast.
36. The evidence of PW-19, 20, 21, 22, 23, 24, 25, 26, 27, 28 & 29 is that
though they heard the bomb blast, they did not know who caused the bomb
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blast. Further, some of the witnesses amongst PW-19 to 29 got injured in the
bomb blast. There is no evidence by PW-19 to 29 as to who had caused the
bomb blast.
37. The evidence of PW-30, Smt. Bhabani Gogoi W/o Shri Chandra Nath Gogoi
and sister-in-law of Hemen Gogoi (the appellant in Criminal Appeal
No.305/2019), is to the effect that some 4/5 boys had come to her house at
about 10:30 p.m. sometime in August, 2004. As they threatened her that she
would face dire consequences if food was not given to them, she provided then
with food. She was in the house with her children and her husband was not
present at the relevant time. The police came the next day and questioned her.
The Police also found a small bag containing a Gamocha (towel-like-cloth) and
Colgate which they seized. The bag did not belong to PW-30 or her husband
and she did not know who was the owner of the seized bag. The incident
occurred before the bomb blast. In her cross-examination, PW-30 states that
the boys had showed her a gun and asked for food. She also states that she did
not know why the Police had seized the bag.
38. The evidence of PW-31, who is the wife of Hemen Gogoi (appellant in
Criminal Appeal No.305/2019) is to the effect that some boys had come to their
house and had forcefully stayed, after threatening them. Further, her signature
had been taken by the Police without knowing why the same had been taken.
PW-31 also stated that she did not know anything about the bomb blast.
39. The evidence of PW-32 and 33 is to the effect that they did not know the
appellants or Ahmed Ali. They also did not know anything about the Dhemaji
bomb blast. They further stated that the police had caught them and questioned
them, wherein they stated that they did not know anything.
Page No.# 21/53
40. The evidence of PW-34, who is a Police Constable is only to the effect that
he knew appellants Jatin Dowari and Dipanjali Borgohain. A video recording of
Dipanjali's house was done and 4 cassettes were seized by the Police.
41. The evidence of PW-35 is to the effect that the Police had taken him to
Court, wherein his statement was recorded by a Magistrate. He further states
that the Police told him what to say before the Magistrate. The statement
recorded by the Magistrate under Section 164 Cr.PC was thereafter exhibited as
Ext.30. He also states that the Police had threatened him that they would send
him to jail if he did not make the said statement. He also states that he did not
know any SI Ahmed Ali. Ext - 30 is the seizure list which shows the description
of the seized article, i.e., (1) One black bag with long black strap (2) One
"Gamosa" (bath towel) (3) One small dagger (4) One Note Book (Diary) and (5)
One small tube of Colgate toothpaste. However, as the police had told PW-35
what to say to the Magistrate during the recording of his statement under
Section 164 Cr.PC, the said statement is inadmissible as evidence, as the same
cannot be said to be a voluntary statement. In his Section 164 Cr.P.C.
statement, PW-35 had stated that the appellant Muhi Handique had introduced
him to one Mr. Bharali, who was stated to be a member of an organisation. Mr.
Bharali then asked PW-35 to talk with the Minister Bharati Narah to make the
terms of negotiation acceptable for surrender and that if Rani Narah gets
elected, she should raise a demand for plebiscite for Assam's independence.
Further the road from Kori Beel to Lalung Tiniali and from Butiker to Norsuwa
Than should be restored to a good condition. PW-35 in the Section 164 Cr.P.C.
statement further states that Narah had told him that Bharali had threatened
him. Later, he got to know from newspapers that Bharali had been involved in
the Dhemaji bomb blast. As stated earlier, the statement made by PW-35 under
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Section 164 Cr.P.C. has no value and cannot be considered as evidence, as the
same had been dictated to him by the Police.
42. The evidence of PW-36 is that he did not know any SI Ahmed Ali. He also
did not know anything about the blast. He was brought before the Magistrate by
the Police and had been tortured by the Police. The statement recorded under
Section 164 Cr.PC by the Magistrate was exhibited as Ext.31. In his cross
examination he stated that the statement given in Ext.31 was made as per what
the Police had told him to say. He also states that he did not know who actually
caused the bomb blast. In Ext- 31, which was recorded under Section 164 Cr.PC
by the Magistrate on 08.10.2004, PW-36 states that on the day of Biswa Karma
Puja of the last year, at about 5 - 5:30 am, one Rahul along with two others,
who identified themselves as Lila Gogoi and Popi entered his house and
introduced themselves as members of ULFA. They spent a day in his house. Lila
Gogoi had come back to his house some three months later with an unknown
youth, who identified himself as Chila Rai. They stayed in their house the whole
day and left in the evening. Again on 12.08.2004, only Lila Gogoi came at night
to his house and left on 13.08.2004 at 11 - 11:30 am. However, as stated
earlier, the police having told PW 36 what to say to the Magistrate under Section
164 Cr.P.C., the said statement is inadmissible as evidence. In any event, there
is nothing in the above statement (Ext.-31), to show that the visits made to the
house of PW-36 by Lila Gogoi, Popi and Chila Rai had any link/connection with
the bomb blast.
43. The evidence of PW-37 is that he knew SI Ahmed Ali and he had seen the
accused Lila Gogoi. He also stated that he did not know anything about the
bomb blast, except that the same had occurred. He had also signed as a seizure
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witness with respect to the seizure of some articles (mobile) by the
Investigating Officer (I.O.). He however stated in his cross-examination that he
did not know from whom the mobile was seized and why they took his signature
in the seizure list.
44. The evidence of PW-38 is that he did not know any SI Ahmed Ali and that
he had heard that a bomb blast had occurred.
45. The evidence of PW-39, who is the Senior Medical and Health Officer,
Dhemaji Civil Hospital, is to the effect that he had conducted the Post Mortem
examination on the bodies of the deceased victims of the bomb blast.
46. The evidence of PW-40 is that he did not know any SI Ahmed Ali and that
he learned from newspapers that ULFA had blasted a bomb.
The evidence of PW-41 is that he came to know that a bomb had exploded
in Dhemaji College field in the news broadcasted through TV.
The evidence of PW-42 and PW-43 is that they heard the sound of the bomb
blast and did not know who were responsible for the same.
47. The evidence of PW-44, who is the ASI of Police in Dhemaji Police Station
is that on 24.08.2004, he went to Bormer Village in search of militants. Upon
getting information that militants had been hiding in the house of Chandra Nath
Gogoi, PW-44 questioned Chandra Nath Gogoi's brother, Hemen Gogoi
(appellant in Criminal Appeal No. 365/2019). Hemen Gogoi then handed over
one bag left by the members of the militant outfit in their house, which was
seized by the Police. In the bag which was seized by the Police, which was
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exhibited as Ext.30, one small dagger, one diary and one small tube of Colgate
toothpaste was found inside the bag.
The evidence of PW-44 does not throw any light to how PW-44 could
assume that the members of the militant outfit had left behind the seized
articles, as there is no basis for assuming they were members of a militant
outfit.
48. The evidence of PW-45, who is the Minister of Water Resource
Department, Government of Assam is that he was informed that a bomb had
exploded at the place where the National Flag was to be hoisted.
The evidence of PW-46 & PW-47 is that they went to the Dhemaji College
field to watch the Flag hoisting Ceremony. They heard a loud sound which made
them fall down and that they sustained injuries on various parts of their bodies.
49. The evidence of PW-48, (who was the JTO, BSNL, Dhemaji,) PW-49, (who
was the Technical Assistant, BSNL, Dhemaji) and PW-50, (who was the Counter
Clerk, BSNL, Dhemaji) is that in the year 2004, Police seized documents in
connection with the issue of SIM Cards from their Department and prepared a
seizure list which they signed. In the cross examination of PW-49, he states that
he could not say the names of the persons, against whose names the SIM Cards
were issued or with regard to the documents seized by the Police. In his cross
examination, PW-50 states that he did not know what documents were seized
by the Police.
50. The deposition of PW-51 is that the Police had seized one Maruti car and
prepared a seizure list (Ext.41) and he had given his signature in the seizure list,
Page No.# 25/53
which was exhibited as Ext.41(1).
51. The deposition of PW-52 is that he had given his signature as a seizure
witness. He identified his signature as Ext.-42(1) in Ext.42 and Ext.43(1) in
Ext.43. He also stated that he did not know why the Police had taken his
signature. Ext. 42 is the seizure list made with respect to one small grey pocket
diary containing phone numbers and names of some persons. Ext. 43 is the
seizure list by which one Samsung mobile bearing No. 94350 88773 was seized.
52. The evidence of PW-53, who is a Constable, is that he knew the
complainant and the accused/appellants Muhi Handique, Mina Baruah, Dipanjali
Borgohain, Jatin Duari and Lila Gogoi. He states that Ext.44(1) was his signature
in Ext.44, which is the seizure list. He also states that the Police team inspected
the site of the bomb blast and collected splinters and other materials used in
the bomb blast and seized the same. Ext-44 is the seizure list of the below
stated articles:-
(1) Some pieces of articles that seemed to be made of Aluminium where
Black mark was present on one side of each of them, which were suspected to
be the pieces of blasted bomb.
(2) About 1 kg soil collected from the place where the bomb exploded.
53. The evidence of PW-54 is that he did not know the accused persons and
that he had sold his Motorcycle to one Shyamol Gogoi @ Ajan Neog about 15/16
years back. Further, he came to learn later that Shyamol Gogoi belonged to a
militant organization, namely ULFA. He further stated that Ext.45(1) was his
signature in the Section 164 Cr.PC statement made by him on 01.11.2004,
Page No.# 26/53
which was exhibited as Ext. 45. In his statement made under Section 164 Cr.PC,
PW-54 stated that he came to know that Shymal Gogoi had connections with
ULFA, which he was not aware of at the time of selling his bike in last February.
54. The evidence of PW-55 who is a retired Judicial Officer is to the effect that
on 12.10.2004, he was working as a Judicial Magistrate First Class in Dhemaji.
On the said date, he recorded the confessional statement of the appellant Jatin
Dowari, after giving him time for reflection and on being satisfied that the
appellant Jatin Dowari was going to make his statement voluntarily. He also
stated that he recorded the statements made under Section 164 Cr.PC of the
witness Khagen Bora Gohain on 05.10.2004, Simanta Chutia on 08.10.2004,
Keshab Dihingia on 11.10.2004, Smt. Tilottama Chutia on 11.10.2004,
Padmeswar Chutia on 11.10.2004 and Mrs. Bohagi Konwar on 11.10.2004. In
his cross examination, PW-55 states that before recording the statement, he did
not ask the accused Jatin Dowari as to why he wanted to make a confession. He
also did not ask the accused persons whether they were going to make the
statement for fear of police torture or under pressure. The above testimony of
PW-55 does not instil confidence in us that the statements were made
voluntarily.
55. The evidence of PW-56, who is the I/O, is to the effect that he made GD
Entry No. 719 on 15.08.2004 as he heard a huge sound, which seemed like a
bomb blast and on reaching the college field he saw a huge gathering of people,
wherein some persons were seriously injured. He found that 10 children and 3
women had died in the bomb blast. Dead bodies were sent to the hospital along
with the injured persons and an FIR was submitted by one S.I Ahmed Ali
whereupon Dhemaji PS Case No. 2002/2004 was registered. During
Page No.# 27/53
investigation, he recovered many incriminating documents and interrogated
many persons. He also seized many materials, such as Maruti car, phone call
details, mobiles etc. In his cross-examination, he stated that he did not know
the contents of the pocket diary. He also stated that security guards are
deployed 10 days before 15th August (Independence Day) to guard the field
chosen for 15th August programme.
56. PW-57, who was the O/C, Dhemaji P.S, in his evidence states that he
recorded statement of injured witnesses and arrested Lila Gogoi @ Lila Khan.
He also recorded the statement of other witnesses and concluded his part of the
investigation whereafter, he arrested 16 accused persons. On his transfer on
31.10.2010, he handed over his case diary to his successor i.e., Mr. Lalit
Borgohain. The I/O Lalit Borgohain thereafter obtained prosecution sanction and
filed chargesheet against the accused persons under Section
120B/120/121A/122/302/326 IPC read with Section 3/4 of the Explosive
Substances Act, read with Section 10/13 of the Unlawful Activities (Prevention)
Act, 1967.
57. The evidence of PW-58 who is a retired Senior Scientific Officer of the
Directorate of FSL, Kahilipara is to the effect that on examining the 850 grams
of soil and five numbers of silver coloured metallic pieces, he found traces of
RDX and PETN, (both high explosives).
58. The evidence of Defense Witness No. 1, Hemen Gogoi, who is a cultivator,
is to the effect that on 15.08.2004, he was busy in the construction of his elder
brother's house in Dhemaji, Jyoti Nagar. Police came to his house and called him
to the Police Station. After questioning him, he was arrested. DW-1 states that
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he was not involved in the alleged offense and that he knew nothing about the
alleged offense. Thus, he claimed that his arrest had been made without any
ground or reason.
59. The evidence of DW-2 i.e., Chandra Nath Gogoi, the brother of DW-1 and
who is a retired teacher, is that he was busy in the construction of his house at
Dhemaji, Jyoti Nagar and that he was arrested without any ground or reason.
He also states that he was not involved in the alleged offense and knew nothing
about the same.
60. In his examination under Section 313 Cr.PC, appellant Jatin Dowari stated
that he was a cultivator and that he was not involved in the alleged offense. The
answers given by all the other appellants in their examination under Section 313
Cr.PC was that they were not involved in the bomb blast.
61. The learned Trial Court on considering the evidence adduced by the
witnesses, came to a finding that the appellant Jatin Dowari had made a
confessional statement, which revealed that a conspiracy was hatched to blast a
bomb in Dhemaji College field on Independence Day. As such, Jatin Dowari had
played an active role in getting other ULFA members to the college field to plant
a bomb in the college field. The learned Trial Court also held that though the
appellant Jatin Dowari had made a confession implicating other persons with
regard to the bomb blast, the same could not absolve him, as he was found to
be actively involved in the said conspiracy, besides keeping in mind the fact that
he had recreated the scene of the crime during police investigation. The learned
Trial Court also held that though the confession was retracted, the same should
have been retracted earlier. The confessional statement of Jatin Dowari was
Page No.# 29/53
found to be voluntarily made by the learned Trial Court.
62. We are unable to understand how the learned Trial Court could have
come to a finding that Jatin Dowari was a party to a conspiracy to commit a
bomb blast on the basis of having allegedly recreated the scene of the crime,
when there is nothing to show in the evidence as to how the appellant had
recreated the scene of the crime. There is no video cassette produced to
substantiate the said allegation. Further, the statement made by the appellant
Jatin Dowari under Section 164 Cr.PC is exculpatory in nature, besides having
been retracted during his examination under Section 313 Cr.PC. The retracted
confessional statement made by the appellant Jatin Dowari does not in any way
implicate the maker of the same and in any event, a confessional statement can
be only be used for the purpose of corroboration and if it is to be used as the
basis for conviction, there has to be corroboration of the same from evidences
from other sources. The retracted confession of the appellant Jatin Dowari is
reproduced herein below as follows:-
"In the evening hours on 05-08-2004, while I was in home ULFA cadres,
namely, Lila Khan alias Lila Gogoi whom I know from before, Pintu Bora, Prafulla
Bhuyan, Rasid Bharali, and Ajan Neog came to my house and taking me out of the
house by threatening me at gunpoint, they took me to College gate through the front
of the girls hostel after crossing our village as well as Tongona Para. As they asked me
to show the college field, I showed them the college field and thereafter they sent me
to hostel Tiniali. As they had told me to wait there, I kept waiting there. As they had
threatened me not to leave my position till they allowed me to go, I kept waiting there
for a long time and when Lila Khan and Pintu Bora returned there at about 11:00 pm,
they threatened me to escort them through a safe passage whereupon I escorted
them through a safe passage whereupon I escorted them through a safe route and
stopped at the gate way of my house. Thereafter, they left. I have only this much to
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say. I was a member of ULFA earlier. I surrendered to the government in the year
1997. Pintu Bora's house is at Lakhimpur while Rasid Bharali's house is at Ghilamora."
The showing of the field by Jatin Dowari does not indicate that he had
any knowledge that a bomb was going to be planted in the field, though it can
be inferred that there could be a connection with the bomb blast. However, the
same does not take away the fact that the showing of the field proves that he
was involved in the bomb blast, however strong a suspicion may exist. Further,
the retracted confessional statement has not been corroborated by any evidence
to the effect that Jatin Dowari was involved in the bomb blast and as such, the
same cannot be the basis for conviction of the appellants.
63. In the case of Dhanabal and Others Vs. State of Tamil Nadu ,
reported in (1980) 2 SCC 84, the Apex Court has held that if a witness does
not resile from his statement under Section 164 CrPC while deposing during
trial, then that statement under Section 164 can be used for corroboration.
However, in the present case, the appellant Jatin Dowari not being a witness,
the above decision is not applicable to this case. There is nothing to show that
the appellant Jatin Dowari had been involved in the making, transportation,
planting or in the blasting of the bomb. It is again reiterated that there is
nothing to show in the evidence adduced by the prosecution witnesses, as to
how the appellant Jatin Dowari had recreated the scene of the crime. No
whisper of the same is made in the evidence adduced and no video
recording/cassette has been produced. No notes are shown and no evidence
has been led by any witness as to what the appellant had stated while allegedly
recreating the scene of the crime. As such, we are of the view that the finding
of the learned Trial Court with regard to appellant Jatin Dowari having any
Page No.# 31/53
involvement in the bomb blast is not supported by any of the evidence recorded
by the learned Trial Court. The law laid down by the Supreme Court in certain
cases with regard to a retracted confession, is that the same can form the basis
of a conviction of an accused, if it was found to be true and voluntarily made.
However, as a matter of caution and prudence, it should be ccorroborated by
evidence from some independent source.
64. In the case of Kashmira Singh Vs State of Madhya Pradesh ,
reported in 1952 SCR 526, the Supreme Court has held that the confession of
an accused person against a co-accused is not evidence in the ordinary sense of
the term and can only be used for corroboration. It cannot be the basis of a
conviction. There is no evidence against the other appellants except the
retracted confessional statement of Jatin Dowari, which in any event, only refers
to one appellant, i.e. Lila Khan @ Lila Gogoi.
The learned Trial Court has also found the accused appellants Dipanjali
Borgohain and Muhi Handique guilty of having a hand in the bomb blast, as
their mobile phones had been allegedly used for making calls to ULFA leaders
like Rashid Bharali and others. However, the prosecution has not adduced any
evidence with regard to the contents of the communication that had allegedly
taken place between the accused appellants Dipanjali Borgohain, Muhi Handique
and ULFA leaders, connecting them with the bomb blast. Also, no certificate
under Section 65B of the Evidence Act has been produced during evidence,
which proved that phone calls had been made from the mobile handsets of the
above 2 appellants to the ULFA leaders, which could show a connection with the
bomb blast that occurred at Dhemaji College field. In the absence of a
certificate under Section 65 of the Evidence Act, the appellants involvement with
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the ULFA leaders, in relation to the bomb blast that had occurred cannot be
proved and as such, the finding of the learned Trial Court on this ground cannot
withstand the scrutiny of law.
65. The learned Trial Court had also come to a finding that Muhi Handique
was guilty, on account of the seizure of a Maruti car bearing registration No. AS
07 2399 from the possession of Muhi Handique. However, the evidence of PW-
56, who is the I/O of the case, is to the effect that, the said Maruti car had been
seized from the wife of Muhi Handique i.e., Rubi Handique. No evidence has
been led by the prosecution with regard to whether the car was used for
committing the crime, i.e. the bomb blast. There is no evidence recorded to the
effect that the perpetrators of the crime had used the car or carried the bomb
or parts of it for the purpose of committing the bomb blast. As such, we fail to
understand as to how the seizure of a Maruti car, which has not been shown to
be connected with the bomb blast, could be the basis for coming to a finding
that the appellant Muhi Handique was guilty of having been involved with the
bomb blast. The evidence of the I/O (PW-56) is that the one pocket diary was
recovered from Muhi Handique. However, PW-56 (I/O) states in his cross
examination that he has no knowledge regarding the contents of the pocket
diary. As such, the basis for finding the appellant Muhi Handique guilty of being
involved in the bomb blast is absolutely absent in the evidence recorded by the
prosecution witnesses.
66. In the present case, statements have been made under Section 164 Cr.PC
by PW-16, 17, 18, 36, 41 and one Padmeshwar Chutia. Padmeshwar Chutia was
however never examined by the Trial Court. It may be noted here that the
makers of the statements under Section 164 Cr.PC, i.e., PW-16, PW-18 & PW-41
Page No.# 33/53
did not identify their signatures made in their statements. Only PW-17 & 36
identified their signatures in their statements made under Section 164 Cr.PC.
PW-16 in his statement under Section 164 Cr.PC states that he was the
Gaonburah of a single Lot covering three villages. On being called to the police
station, he went there and saw that the O/C was questioning the appellant
Dipanjali Borgohain in connection with the bomb blast. PW-16 states he heard
Dipanjali Borgohain telling the O/C of the Dhemaji Police Station that she had
links with the ULFA. Also, an ULFA member Rashi Bharali had informed Dipanjali
Borgohain over phone about the plan to blast a bomb on 15 th August. Further,
he also heard Dipanjali Borgohain telling the Police that the majority of her
mobile phone bills had been paid by Muhi Handique. Also, Pintu Borah, Lila
Khan, Ajan Neog and Rashi Bharali were involved in the bomb blast.
Interestingly, PW-16 does not make any mention of Dipanjali Borgohain in his
evidence before the Trial Court. He instead speaks of seeing the appellant Jatin
Dowari telling the police how the incident had happened. Further, PW-16 does
not make any mention of Jatin Dowari in his statement (Ext. 56) under Section
164 Cr.PC. The contradictions in the facts/occurrence of events made by PW-16
in his statement under Section 164 Cr.PC vis-a-vis his evidence before the
learned Trial Court, shows that PW-16 is not a reliable witness. His statement
under Section 164 Cr.P.C. and his testimony being at odds with another, it would
not be safe to rely on his evidence.
67. Ext. 46 is the statement given by PW-17 under Section 164 Cr.PC. PW-17
states in her Section 164 Cr.PC statement, that her cousin Joya Chutia had told
her, that one ULFA member Lila Khan had told Joya Chutia that there would be a
bomb blast in Dhemaji on 15th August. However, the statement given by PW-17
Page No.# 34/53
under Section 164 Cr.PC has not been reiterated in her evidence given before
the learned Trial Court. The only thing PW-17 has stated during recording of her
evidence is to say that she did not know how the bomb blast had taken place.
She does not mention Joya Chutia or Lila Khan in her evidence. Though her
Section 164 Cr.PC statement has been exhibited, the contents of the said
statement have not been proved. As such, the statement given by PW-17 under
164 Cr.PC cannot be said to be substantive evidence. Also the same has not
been corroborated. It may also be stated that Joya Chutia was acquitted by the
learned Trial Court on the ground that the evidence against her was in the
nature of hearsay evidence.
68. The statement given by PW-18 under Section 164 Cr.PC has been
exhibited by the Judicial Magistrate as Ext.58. In her statement, she has stated
that she is the Gaonburah of a single Lot covering three villages. On being
called by the O/C of Dhemaji Police Station on 10.10.2004, she saw and heard
Jatin Dowari telling the O/C of the Dhemaji Police Station that about 8 pm on
05.08.2004, two ULFA members entered his house and asked him at gun point
to show them the route to Dhemaji College field, by escorting them across the
village, with a threat that they would otherwise annihilate his entire family.
Being helpless, Jatin Dowari took the two ULFA members to Dhemaji, Chariali on
bicycle that night itself. They went across Tongonapara village and stopped in
front of the girls hostel. Thereafter, he took the two ULFA members inside the
college field. PW-18 also stated in his statement made under Section 164 Cr.P.C
that Jatin Dowari had mentioned the names of the ULFA members as Rashi
Bharali and Pintu Kalita. Jatin Dowari also stated that Pintu dug out soil and
planted the bomb. Jatin Dowari also stated that after completion of the task, he
took the ULFA members through a safe route. Thereafter, they reached Beohal
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where they met three other ULFA members Lila Khan, Bidur Bhuyan and Ajan
Neog, who had been waiting for them. After having a conversation, Rashi
Bharali gave the responsibility of exploding the bomb on 15 th August to the
other four ULFA members and left the scene. Thereafter, the other ULFA
members also left the scene. PW-18 further states in her statement under
Section 164 Cr.PC that Mrinal Hazarika, the Lieutenant Commander of ULFA had
issued an order to Rashi Bharali to plant the bomb in Dhemaji on 15 th August.
PW-18 states that she heard all the above being stated by Jatin Dowari to the
O/C, Dhemaji Police Station with her own ears.
The evidence of PW-18 before the learned Trial Court on the other hand, is
to the effect that she was called to Dhemaji Police Station and she saw the
appellant Jatin Dowari and the appellant Dipanjali Borgohain at the police
station. She saw that they were making statements to the O/C with regard to
the bomb blast in the Dhemaji College field. However, she did not remember
what statements they had made. Their statements were also video recorded.
The four cassettes, where the video recording was done were seized in her
presence. The seizure list was exhibited as Ext.29 and she identified her
signature as Ext.29(1). In her cross examination, PW-18 denies the suggestion
that the police tutored the appellant Jatin Dowari and Dipanjali Borgohain, with
regard to what they had stated before the Police and which was video recorded.
She also denies the suggestion that she was not at the police station when the
video recording was done.
69. The statement made by PW-18 under Section 164 Cr.PC which is Ext.
58(1), is a very detailed statement. However, there was no mention of Dipanjali
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Borgohain in the statement made under Section 164 Cr.PC. The above being
said, the detailed statement made by PW-18 under Section 164 Cr.PC does not
find mention in the evidence given by PW-18. The only evidence given by PW-
18 before the Trial Court is that the appellant Jatin Dowari and accused Dipanjali
Borgohain were in the Police Station and they were making statements to the
O/C, with regard to the bomb blast in the Dhemaji College field. Though she
had stated that video recording of the statements made by the two appellants
had been done in four cassettes and that she was a seizure witness to the
seizure of the video cassettes, the prosecution has not been able to produce the
video cassettes recordings in this Court or in the Trial Court. As such, there is a
doubt as to the reliability of the evidence of PW-18, as to whether she had
really witnessed and heard the appellants making statements, as described in
her statement made under Section 164 Cr.P.C. Besides PW-18 stated in her
evidence that she did not remember the statements made by the two appellants
Dipanjali Borgohain and Jatin Dowari. In any event, there are contradictions
and major inconsistencies in her statement made under Section 164 Cr.P.C and
her evidence, as there is no mention of any video recording being made, in her
statement made under Section 164 Cr.PC. It is also disturbing that the police are
unable to produce the alleged video recorded statements, if the same had really
been made.
70. The statement made under Section 164 Cr.PC by PW-36 has been
exhibited by the Magistrate who recorded the same as Ext.31. The said
statement is to the effect that three youths namely Rahul, Lila Gogoi and Popi
came to his house at around 5-5:30 a.m on the day of Biswa Karma Puja in the
year 2003. They introduced themselves as members belonging to ULFA and
spent the whole day in his house. Lila Gogoi was carrying a gun. Three months
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later, Lila Gogoi again came to his house with one Chila Rai. They stayed in the
house by threatening them, ate food and left in the evening. Lila Gogoi again
came to their house on 12.08.2004 and on 13.08.2004.
The evidence given by PW-36 in the Trial Court is to the effect that he does
not know the accused persons present in the Court, except for the accused Jiten
Chutia. He did not know anything about the bomb blast and police had taken
him to Court to have his statement recorded by a Magistrate. The Police had
tortured him and he did not remember what he had said in his statement. He
also exhibited his statement under Section 164 Cr.PC and his signature. In his
cross-examination, PW-36 states that the statement given in Exbt.-31 was as
per what the police had forced him to say. He again reiterates that he did not
know who caused the blast. It may also be stated here that the learned Trial
Court acquitted the accused Jiten Chutia.
71. The statement of PW-41 recorded under Section 164 Cr.PC has been
exhibited by the Magistrate as Ext.55. In the statement made under Section 141
Cr.PC, PW-41 states that he came across a youth who asked him whether he
could bring two mobile connection application forms. When PW-41 told him that
he would not be able to do so due to paucity of time, the said person asked him
whether PW-41 was the brother-in-law of Biplab Gohain, to which he replied in
the affirmative. When PW-41 asked the identity of the said person, he was told
to call him "Bharali". Bharali then asked him whether he knew Muhi Handique,
to which he replied in the affirmative. Bharali asked him to tell Muhi Handique to
make arrangements to bring two mobile application forms. Thereafter, PW-41
told his brother-in-law Biplab Gohain about the said Bharali. He also met Muhi
Handique's wife in the market and told her to tell her husband about the two
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forms that Bharali had asked for. Muhi Handique's wife thereafter acknowledged
the said information.
The evidence of PW-41 before the learned Trial Court is that he came to
know about the bomb blast from the news on TV. He does not make any
mention in his evidence, with regard to his statement under Section 164 Cr.PC
to the Magistrate and neither is his evidence in consonance with the alleged
statement made by him under Section 164 Cr.PC.
72. As stated earlier, statements made under Section 164 Cr.PC can only be
used for the purpose of corroboration and cannot be the sole basis for
conviction, unless the same is corroborated by evidence. The above being said,
the Magistrate while recording a statement under Section 164 Cr.PC has to be
satisfied that the statement is being voluntarily given. A bare perusal of the
Form used by the Magistrate for recording the statements made under Section
164 Cr.PC, appears to show that the satisfaction of the Magistrate is present.
Though the Form used by the Magistrate for recording the statements is in a
printed form, which contains the words 'I believe that this confession was
voluntarily made', the Form also contains a requirement for the Magistrate to
give a brief statement of reasons for believing that the statement was
voluntarily made. However, there is no brief statement of reasons given by the
Magistrate in the said Forms used by the Magistrate, for believing the
statements made were voluntarily made under Section 164 Cr.PC. As such, in
the present case, it cannot be said that the statements made under Section 164
Cr.PC were voluntarily made.
73. The only evidence adduced by the prosecution witnesses regarding the
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involvement of the appellant Lila Khan having any involvement with the bomb
blast, is the evidence provided by PW-17, who states in her re-examination in
the learned Trial Court on 11.04.2004 that she had given a statement before the
Magistrate under Section 164 Cr.PC, which had been exhibited as Ext. 46. In
Ext. 46, which is the statement made under Section 164 Cr.PC, PW -17 states
that her cousin i.e., Joya Chutia had told her a couple of days earlier that one
Lila Khan, ULFA member had taken shelter in their house for the night, who
informed her that there would be a bomb blast in Dhemaji on 15 August. Joya
Chutia, who was made an accused in the case was acquitted by the learned Trial
Court, as no involvement of Joya Chutia was found in the case. On the other
hand, the appellant Lila Khan's name has been mentioned in two documents
i.e., the statement made by PW-17 under Section 164 Cr.P.C and the retracted
confessional statement made by Jatin Dowari. The statement made by PW-17
under Section 164 Cr.P.C cannot be the basis for convicting Lila Khan, as there is
nothing stated in the evidence of PW-17 to the effect that Joya Chutia
implicated Lila Khan. The confessional statement made by PW-17 under Section
164 Cr.PC has not been corroborated by evidence from other sources. In the
absence of any evidence corroborating the retracted confession of Jatin Dowari
and in the absence of evidence showing the involvement of the appellant Lila
Khan in the bomb blast, the appellant Lila Khan cannot be held to be guilty with
respect to the bomb blast on the basis of a statement made under Section 164
Cr.P.C., which has not been corroborated by evidence.
74. In the case of Veera Ibrahim Vs. The State of Maharashtra ,
reported in (1976) 2 SCC 302, the Supreme Court has held that a statement
to amount to a confession, must either admit in terms the offence, or at any
rate substantially all the facts which constitute the offence. An admission of an
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incriminating fact, however grave, is not by itself a confession. It further held
that a statement which contains an exculpatory assertion of some fact, which if
true, would negative the offence alleged, cannot amount to a confession. In
the present case, there is no admission of any incriminating fact in the
retracted confession of the appellant Jatin Dowari. As such, the retracted
confession cannot in any event, be the basis for convicting Jatin Dowari, as the
same is not only exculpatory, but is also not corroborated by any evidence.
75. In the case of Paramananda Pegu Vs. The State of Assam, reported
in (2004) 7 SCC 779, the Supreme Court has, by referring to other judgments,
held that a retracted confession may form the basis of a conviction, if the Court
is satisfied that it was true and was voluntarily made. But it has been held that a
Court shall not base a conviction on such a confession without corroboration.
However, in the case of K.I. Pavunny (supra), the Supreme Court has held that
there is no prohibition under the Evidence Act to rely upon the retracted
confession to prove the prosecution case or to make the same the basis for
conviction of the accused. However, practice and prudence requires that the
Court could examine the evidence adduced by the prosecution, to find out
whether there are any other facts and circumstances to corroborate the
retracted confession. It is not necessary that there should be corroboration from
independent evidence adduced by the prosecution, to corroborate each detail
contained in the confessional statement. The Court is required to examine
whether the confessional statement is voluntary, in other words, whether it was
not obtained by threat, duress or promise. If the Court is satisfied from the
evidence that it was voluntary, then it is required to examine whether the
statement is true. If the Court on examination of the evidence finds that the
retracted confession is true, that part of the inculpatory portion could be relied
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upon to base conviction. However, prudence and practice requires that the Court
would seek assurance by getting corroboration from other evidence adduced by
the prosecution. The question to be decided in K.I. Pavunny (supra) was as to
whether the confessional statement made to a Custom Officer under Section
108 of the Customs Act, 1962, though retracted at a later stage, is admissible in
evidence and could form the basis for conviction and whether a retracted
confessional statement required corroboration on material particulars from
independent evidence. We have to bear in mind the fact that a statement made
under Section 108 of the Customs Act in any event is admissible in evidence,
while a statement under Section 164 Cr.P.C needs to be corroborated by
evidence. In Naresh J. Sukhwani Vs. Union of India, reported in 1995
Supl (4) SCC 663, the Supreme Court held that a statement recorded under
Section 108 of the Customs Act is substantive evidence. However, the
statements made in this case are under Section 164 Cr.PC and not under
Section 108 of the Customs Act. The Supreme Court in Keshoram Bora
(supra) has also held in the same lines. In the case of Kehar Singh (supra),
the Supreme Court has held that if the Magistrate considers the confession
voluntary, non-mentioning in the form is not fatal. In the present case, we are
of view that the statement made by the appellant Jatin Dowari is voluntary.
However, in the said confession of Jatin Dowari, he does not implicate himself
and as such, it cannot be said to be a confession in its true sense. It is
exculpatory in nature and as such, the learned Trial Court could not have made
the same the basis for coming to a finding that the said appellant was guilty of
the offense of being involved in the bomb blast. As stated earlier, the alleged
confession of the appellant Jatin Dowari was retracted and there was no
corroboration of the contents of the same from any independent evidence.
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76. In the case of Tuku Vs. State of Orissa (supra), the Supreme Court has
held that the statements of witnesses made under Section 164 Cr.PC can be
used for corroboration and contradiction.
77. In this case, the circumstantial evidence do not form an unbroken chain
that leads to the only possible inference that the appellants are guilty of the
crime. In fact, there is no evidence at all, except the statements made under
Section 164 Cr.PC, which are not supported/corroborated by evidence. Further,
the Judicial Officer recording the same, has not given reasons for believing the
same were made voluntary, as required in law. As can be seen from the Form
issued by the Gauhati High Court for recording confessional statements under
Section 164 Cr.P.C, the person who is going to make a confessional statement
has to be informed with regard to the fact that he/she will not remanded/sent
back to police custody, even if he/she does not confess.
78. In the case of Abdul Subhan (Supra), the Division Bench of this Court
has held that as the appellant did not get assurance from the Court that he was
free to confess his guilt, if any, voluntarily, without having any fear of going
back to the police custody, the confession recorded did not inspire confidence to
make it believe that the said confessional statement was freely/voluntary made
and without any influence or threat. In the case of Parmananda Pegu
(Supra), the Supreme Court held that before acting on a confession made in
terms of Section 164 Cr.P.C, the court must be satisfied first that the procedural
requirements laid down in sub-sections (2) to (4) are complied with. After this
first requirement of acting on a confession is satisfied, the endeavour of the
court should be to apply its mind to the question whether the accused was free
from threat, duress or inducement at the time of making the confession. In
doing so, the court should bear in mind that under Section 24 of the Evidence
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Act, a stringent rule of proof as to the existence of threat, duress or inducement
should not be applied and a prima facie opinion based on evidence and
circumstances may be adopted as the standard laid down. In view of the
decision of the Division Bench of this Court in Abdul Subhan (Supra), we are
of the view that the retracted confessional statement of Jatin Dowari was not
made freely/voluntary, as he was not informed that in the event of refusal to
make confessional statement, he would not be given to police custody again.
Besides the above, it is again reiterated that the retracted confessional
statement does not in any manner inculpate the appellant Jatin Dowari.
79. In the case of Pyare Lal Bhargava -vs- State of Rajeasthan ,
reported in 1963 Supl. 1 SCR 689, the four Judges Bench of the Supreme
Court held that a retracted confession may form the legal basis of a conviction,
if the court is satisfied that it was true and voluntarily made. But it has been
held that a Court shall not base it's conviction on such a confession without
corroboration. It is not a Rule of law, but is only a rule of prudence.
80. As stated in the foregoing paragraphs, as sufficient assurance was not
given to the appellant Jatin Dowari in terms of the Form made by the Gauhati
High Court for recording of a confessional statement made under Section 164
Cr.P.C, the retracted confessional statement of Jatin Dowari cannot be acted
upon. It is also not understood as to how the learned Trial Court had come to a
finding that the appellant Jatin Dowari had recreated the scene of the crime, as
there is no evidence to that effect recorded by the learned Trial Court. The
recreation of the scene of crime would must probably have been in the
recording done by the police in four video cassettes as has been stated in the
evidence of PW-16 and PW-18. However, as stated earlier, no video cassettes
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were produced by the prosecution during trial to show the appellant Jatin
Dowari recreating the scene of the crime. In view of the reasons stated above,
there was no evidence to prove the guilt of Jatin Dowari.
81. The learned Trial Court has found the appellants Lila Khan @ Lila Gogoi,
Jatin Dowari, Dipanjali Borgohain and Muhi Handique guilty of having hatched a
conspiracy to blast a bomb in Dhemaji College field and in the process, having
killed 13 persons and injuring several others. Though the learned Trial Court
found them to be ULFA members or/and active supporters of ULFA, the learned
Trial Court has not given the basis for coming to such a finding. There is nothing
in the evidence to show that there was any conspiracy made to do any illegal
act and there is nothing to prove that they are members of ULFA.
82. The learned Trial Court had convicted the appellant Dipanjali Borgohain
and Muhi Handique on the ground that the mobile hand sets that had been
seized had been used to make calls to ULFA leaders. However, as stated earlier,
the prosecution has not been able to show or prove what was the contents of
the communication between Dipanjali Borgohain and Muhi Handique and
whether it had anything to do with the bomb blast. Further, no certificate under
Section 65B of the Evidence Act having been produced by the prosecution, there
was no means to connect the alleged calls made by the above appellants with
ULFA leaders. Thus on this count also, the learned Trial Court has committed an
error in convicting the appellant Dipanjali Borgohain and Muhi Handique.
83. The learned Trial Court has also found Lila Khan @ Lila Gogoi, Jatin
Dowari, Dipanjali Borgohain and Muhi Handique to be ULFA members and
accordingly convicted them under Section 10(b)(i) amd 13(1)(a) of the 1967
Act. However, as rightly pointed out by the counsels for the appellants, no
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prosecution sanction order has been exhibited by the prosecution and as such,
their conviction under the above sections of law cannot withstand the scrutiny
of law, as their trial, sans the prosecution sanction, is vitiated.
84. The learned Trial Court has come to a finding that Hemen Gogoi had given
shelter to ULFA members in the house that he shared with this brother and their
wives. This was due to the fact that 4/5 boys had tea in their house and that
one bag containing 'Gamosa', one small note book and one colgate (toothpaste)
left behind by the 4/5 boys had been produced by him, which was seized by the
Police. Accordingly, the learned Trial Court came to a finding that Hemen Gogoi
was guilty of the offense under Section 10a(iv) and 13(2) of the UA (P) Act. It
baffles the mind as to how the above seized articles proves anything connecting
Hemen Gogoi with the bomb blast.
85. The evidence recorded by the learned Trial Court does not show that
Hemen Gogoi had voluntarily given shelter to any ULFA member in his house,
inasmuch as, the evidence of PW-30, who is the sister-in-law of Hemen Gogoi is
to the effect that some four or five boys had gone to their house and threatened
her that if food was not given to them, she would face consequences. Similar is
the story given by PW-31, who is the wife of Hemen Gogoi. As stated earlier,
PW-30 & 31 are living in the same house, as they are married to Hemen Gogoi
and Chandra Nath Gogoi, who are brothers. The above evidence does not prove
or indicate, in any manner, that the four or five boys who had gone to the house
of Hemen Gogoi were members of ULFA, though they might have been the
same. In any event, there is nothing to show that shelter had been given to the
four or five boys willingly or that food had been served to them willingly. There
is nothing in the evidence showing the names of the 4/5 boys or that they
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belonged to ULFA or had anything to do to with the bomb blast. In fact, the
evidence recorded by the learned Trial Court goes to show that the bag
containing 'Gamosa', one small note book and one tube of colgate had been
given to the police by Hemen Gogoi. There is nothing stated in the evidence
that the articles contained in the bag were in any way connected with the bomb
blast or that they proved that Hemen Gogoi was a member of the ULFA, which
warranted the attraction of the provisions of the UA(P) Act. Further, none of the
witnesses, including the Police witnesses, have stated as to what was the
contents of the Notebook and whether it had any relevance to the case in hand.
86. The appellant Hemen Gogoi has been found to give shelter to ULFA
members by the learned Trial Court. The evidence of the witnesses however
does not give any indication with regard to the identity or affiliation of the 4/5
boys who had taken food in the house of Hemen Gogoi during his absence and
who were given shelter by the appellant Hemen Gogoi's wife. There is no
evidence and no finding by the learned Trial Court that the 4/5 boys who took
food in the house of Hemen Gogoi were ULFA members. As such, it cannot be
said that the appellant Hemen Gogoi had given shelter to ULFA members
without the prosecution being able to prove that 4/5 boys were ULFA members.
87. In the case of Rabindra Kumar Dey Vs. State of Orissa, reported in
(1976) 4 SCC 233, the Supreme Court has held that three cardinal principles
of criminal jurisprudence are well-settled, namely:
(1) that the onus lies affirmatively on the prosecution to prove its case beyond
reasonable doubt and it cannot derive any benefit from the weakness or falsity
of the defence version while proving its case;
(2) that in a criminal trial the accused must be presumed to be innocent unless
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he is proved to be guilty; and
(3) that the onus of the prosecution never shifts.
In this particular case, the prosecution has failed to prove its case beyond
any reasonable doubt and that the evidence recorded shows that the findings of
the learned Trial Court has not been made on the basis of the evidence adduced
by the Prosecution witnesses.
88. In the case of Anvar P.V Vs. P.K. Basheer and Others reported in
(2014) 10 SCC 473, the Supreme Court has held that any documentary
evidence by way of electronic record under the Evidence Act, in view ofSections
59and65A, can be proved only in accordance with the procedure prescribed
underSection 65B. It thus held that the very admissibility of a electronic record
depends upon the satisfaction of the four conditions under Section 65-B(2) of
the Evidence Act, which are as follows:
(i) The electronic record containing the information should have been
produced by the computer during the period over which the same was regularly
used to store or process information for the purpose of any activity regularly
carried on over that period by the person having lawful control over the use of
that computer;
(ii) The information of the kind contained in electronic record or of the kind
from which the information is derived was regularly fed into the computer in the
ordinary course of the said activity;
(iii) During the material part of the said period, the computer was
operating properly and that even if it was not operating properly for some time,
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the break or breaks had not affected either the record or the accuracy of its
contents; and
(iv) The information contained in the record should be a reproduction or
derivation from the information fed into the computer in the ordinary course of
the said activity.
In the present case, there being no certificate with regard to the call records
allegedly made by the appellants with their mobile phones, there is no proof
with regard to who they had called and the CDR, if any, is accordingly
inadmissible in evidence. Further, there is nothing to show as to what they had
stated in their conversation, connecting them in any manner to the bomb blast
that had occurred. As there is no certificate in terms of Section 65-B, any
secondary evidence pertaining to the said electronic record is in-admissible in
evidence.
89. In the case of Sarwant Singh Ratan Singh Vs. State of Punjab ,
reported in AIR 1957 SC 637, the Supreme Court has held that though a
prosecution story may be considered to be true, there is inevitably a long
distance to travel and the whole of this distance must be covered by legal,
reliable and unimpeachable evidence before an accused can be convicted.
90. In case of Kali Ram Vs. State of Himachal Pradesh , reported in
(1973) 2 SCC 808, the Supreme Court has held that if two views are possible,
then the one favourable to the accused is to be adopted. It further held that if a
reasonable doubt arises regarding the guilt of the accused, the benefit of that
cannot be withheld from the accused. In para 26 of the said judgment, the
Supreme Court has held that the Courts would not be justified in withholding
that benefit because the acquittal might have an impact upon the law and order
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situation or create adverse reaction in society or amongst those members of the
society who believe the accused to be guilty. The guilt of the accused has to be
adjudged not by the fact that a vast number of people believe him to be guilty
but whether his guilt has been established by the evidence brought on record.
91. In the case of Juwarsingh, S/o Bheraji & Others vs. State of
Madhya Pradesh, reported in 1980 (Supp) SCC 417, the Supreme Court
has held that cross-examination is not the only method of discrediting a witness.
If the oral testimony of certain witnesses is contrary to proved facts, their
evidence might well be discarded on that ground. If their testimony is on the
face of it unacceptable, Courts are not bound to accept their testimony merely
because there was no cross-examination.
92. On a perusal of the impugned judgment, we find that the learned Trial
Court had found the appellant Jatin Dowari guilty in view of the confessional
statement made by him and the allegation that he had recreated the scene of
the crime during police investigation. The learned Trial Court had also stated
that though the appellant Jatin Dowari had retracted his confession at a later
stage of the trial, the same was an afterthought and the confession had been
made voluntarily. However, as stated in the earlier paragraphs, the retracted
confessional statement was exculpatory in nature and the video recording of
Jatin Dowai allegedly recreating the scene of the crime was never produced
during trial.
In the case of Krishan Kumar vs. Union of India, reported in AIR
1959 SC 1390, the Apex Court has held that it is not the law of this country
that the prosecution has to eliminate all possible defences or circumstances
which may exonerate an accused. If these facts are within the knowledge of the
accused then he has to prove them. However, the prosecution has to establish a
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prima facie case in the first instance. It is not enough to establish facts which
give rise to a suspicion and then by reason of Section 106 of the Evidence Act to
throw the onus on the accused to prove his innocence.
In the present case, the prosecution has not been able to establish a
prima facie case against the accused persons in the first instance and the
retracted confessional statement of Jatin Dowari only gives rise to a suspicion
and it is by no means an establishment of any fact pointing towards the guilt of
the accused Jatin Dowari having any knowledge that a bomb would have been
planted in the Dhemaji College field.
93. In the case of Trimukh Maroti Kirkan Vs. State of Maharashtra,
reported in (2006) 10 SCC 681, the matter pertained to the death of a wife
inside the privacy of a house. The Supreme Court held that in such
circumstances where the assailants have all the opportunity to plan and commit
the offence at the time and in circumstances of their choice, it would be
extremely difficult for the prosecution to lead evidence to establish the guilt of
the accused, if the strict principles of circumstantial evidence is insisted upon by
the Courts. It thus held that in such cases, the law does not enjoin a duty on
the prosecution to lead evidence of such character which is almost impossible to
be led or at any rate extremely difficult to be led. It also held that a judge does
not preside over a criminal trial merely to see that no innocent man is punished.
In our view, the judgment of the Supreme Court in Trimukh Maroti Kirkan
(supra) is not applicable to the facts of this case, as the bomb blast did not
occur within the privacy of a home, but in an open college field which was
guarded by police.
94. In the present case, the prosecution has not been able to conclusively
prove the guilt of the appellants, as there is no continuous chain of
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circumstantial evidence, with regard to the hypothesis that the appellants had
hatched a conspiracy and had blasted the bomb on the fateful day in the
Dhemaji College Field.
95. We find that the findings of the learned Trial Court have not been
supported by the evidence recorded by the prosecution witnesses. The Trial
Court cannot make findings on the basis of speculations or suspicion and the
same has to be based on evidence. It has been held by the Supreme Court that
Courts should be wary of the fact that it is human instinct to react adversely to
the commission of an offense and make an effort to see that such instinctive
reaction does not prejudice the accused in any way. While the offence
committed is a serious one and though conviction may be based solely on
circumstantial evidence, the prosecution must provide greater assistance to the
Court that its case has been proved beyond reasonable doubt. In essence, not
only has the Prosecution been unable to prove the foundational facts against
the appellants, but the learned Trial Court has come to a finding based on
suspicion and speculation, not supported by the evidence adduced by the
Prosecution witness.
96. The facts of the case show that the prosecution case is based entirely on
circumstantial evidence. In the case of Aftab Ahmad Anasari vs. State of
Uttaranchal, reported in (2010) 2 SCC 583, the Supreme Court held that in
cases where evidence is of a circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn should, in the first instance, be fully
established. Each fact must be proved individually and only thereafter the Court
should consider the total cumulative effect of all the proved facts, each one of
which reinforces the conclusion of the guilt. If the combined effect of all the
facts taken together is conclusive in establishing the guilt of the accused, the
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conviction would be justified even though it may be that one or more of these
facts, by itself/themselves, is/are not decisive. The circumstances proved should
be such as to exclude every hypothesis, except the one sought to be proved.
But this does not mean that before the prosecution case succeeds in a case of
circumstantial evidence alone, it must exclude each and every hypothesis
suggested by the accused, howsoever extravagant and fanciful it might be. It
should also be kept in mind that suspicion over strong evidence cannot take the
place of proof. The conviction cannot be based on speculation, conjunctures and
a broken chain of circumstantial evidence.
97. In the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra Vs.
State of Maharashtra, reported in 1984 (4) SCC 116, the Supreme Court has
held that the circumstances from which the conclusion of the guilt of an accused
is to be drawn should be fully established. As such, there cannot be any missing
links when considering the circumstantial evidence as a whole. Individual
circumstances considered in isolation, which does not support the over all
picture that is sought to be projected by the prosecution, cannot be forcefully
stitched together to paint the picture showing the appellant to be guilty, though
there may be suspicious circumstantial evidence. The prosecution cannot bring
home the guilt of an accused without providing evidence proving the case
beyond all reasonable doubt. The lack of evidence to bring home the guilt of the
appellants is clear from the testimony of some of the witnesses and the
statements given by them under Section 164 CrPC. It is the duty of the Court to
ensure that the evidence is legally admissible and on considering the evidence
adduced by the witnesses, we do not find any link to forge the chain of
circumstantial evidence together. Further, as per the law laid down by the
Supreme Court, when two views are possible, the view favourable to the
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accused has to be adopted. As such, we are of the view that the learned Trial
Court has convicted the appellants, without the prosecution being able to prove
the charges against them beyond all reasonable doubt. As such, we do not find
any alternative, but to interfere with the findings of the learned Trial Court and
the conviction of the appellants by the learned Trial Court.
98. In view of the reasons stated above, as the Prosecution has not been able
to prove the guilt of the appellants in respect of the charges framed against
them, they are acquitted of the charges framed against them, by giving them
the benefit of doubt. As we find the impugned judgment dated 04.07.2019,
passed by the learned Trial Court in Sessions Case No. 127(DH)/2011 is not
sustainable, the same is accordingly set aside. The State authorities are directed
to release the appellants from judicial custody immediately, if not wanted in
some other criminal case. Send back the LCR.
JUDGE JUDGE
Comparing Assistant
