1. By the impugned judgment and order, dated 27-8-2003, passed in Sessions Case No. 287(K) 01, the learned Sessions Judge No. 2 (ad-hoc), Kamrup, Guwahati, has convicted the two accused-appellants, namely, Moni Neog and Kanaya Hazarika, under Section 364 read with Section 34 of the Indian Penal Code and has sentenced them to suffer imprisonment for life and pay fine of Rs. 2,000/- each and, in default of payment of fine, to undergo rigorous imprisonment for a further period of six months.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated as follows:
(i) AVARD-NE, a non-Governmental organization, opened their office at Kamalabari of Majuli Sub-Division, in the district of Jorhat, in the year 1996, with Sanjoy Ghose as its General Secretary. The said non-Governmental organization (hereinafter referred to as the NGO') started working for the welfare of the people of Majuli, an Island, which was under threat of being eroded by the mighty river Brahamaputra. The organization took up accordingly a number of developmental works at the said instant; these works included the construction of embankment, distribution of hand pumps, distribution of essential commodities, etc. This NGO also used to publish a newsletter, in Assamese, called 'Deep Alok.' As the appreciation of the people of Majuli for the works undertaken and executed by Sanjoy Ghose started spreading far and wide, the members of the banned militant outfit, namely, United Liberation Front of Assam (in short, ULFA) started feeling unhappy, for, they started apprehending erosion in the peoples' faith in, and sympathy as well as support for the ULFA. The members of the ULFA suspected that Sanjoy Ghose was an agent of the Govt. of India and had been working for RAW (Research and Analysis Wing). The ULFA, thus, developed serious resentment and a sense of grave hostility towards AVARD-NE, in general, and Sanjoy Ghose, in particular. During the month of February-March, 1997, AVARD-NE, with the help of a large number of local people, constructed an embankment on the river-bed to protect Majuli from erosion. After completion of the project, some ULFA militants threatened the workers of AVARD-NE including Bhagirath Das (P.W. 28) and asked them to disassociate themselves from AVARD-NE. The editor of the newsletter 'Deep Alok' also received threats from the militants and some anonymous posters were found hanging at several places against AVARD-NE. The AVARD-NE, therefore, convened a public meeting to apprise the local people of the activities of their said non-Governmental organisation. In the meeting so held, and in the discussions, which followed, the public, at large, reposed confidence in AVARD-NE and asked the organizers to stay on at Majuli and continue their work for the good of the people of Majuli.
(ii) On 4-7-1997, at about 10.30 a.m. Sanjoy Ghose, accompanied by one Charidan Doley (P.W. 9), a worker of AVARD NE, left for Mekhiligaon. on their bicycles, to inspect a goat farm on the invitation of one Chandra Hazarika. They arrived at the house of Chandra Hazarika at about 11.30 a.m. and after inspecting the farm, when Sanjay Ghose, accompanied by Chandan Doley aforementioned, was coming back, they were intercepted by two ULFA militants, namely, accused-Siraj Bora and accused-Fatik Hatimota. These two militants asked Sanjoy Ghose and Chandan Doley to accompany them. Though Sanjoy and Chandan, initially, refused to accompany the militants, they, on persistent demand made by the militants, reluctantly followed the militants towards Meragarh Tin All (i.e. a tri-juncture), where they saw Dcbajit Bora (P.W. 10) and Ananta Bharall (P.W. 7). Debajit Bora was getting his scooter repaired at the garage of Ananta Bharali. From Meragarh Tin Ali. the ULFA militants took Sanjoy Ghose and Chandan Doley to the house of Ram Nath Saikia of Mudoigaon. In the house of Ram Nath Saikia, they were joined by another militant, Babu, who put some questions to Sanjoy and Chandah regarding their names, addresses, etc. The militants then, took Sanjoy and Chandan to the house of the Gaonburah (i.e., the head-man) at Meragarh, At the house of the Gaonburah, accused-Fatik Hatimota assaulted Sanjoy and Chandan, when these two persons tried to explain the genuineness of the activities of their said organisation. At the house of the said Gaonburah, another militant, Arup Barua, joined the said group of militants and he was followed by three more militants, namely, accused-Pradip Barua, accused-Amrit Dutta and accused-appellant-Moni Neog. On the same day, i.e., on 4 7-1997 at about 4 p.m., the militants took Sanjoy Ghose and Chandan Doley to Bhakatiduar in a boat and brought them to the house of one Ghent Ram Modi, where two more militants, namely, accused-Anjan Borthakur and accused-Mridul Hazarika joined them. The militants forced Sanjoy Ghose and Chandan Doley to accompany them and after covering a little distance from the house of Cheni Ram Modi, the militants separated Sanjoy Ghose and Chandan Doley and took them away in two different directions. The accused-appellant, Moni Neog, and accused-Anjan Borthakur took Chandan Doley towards Abhoyapuri village and the other accused, namely, Arup Barua, Amrit Duta, Pradip Barua and Mridul Hazarika took away Sanjoy Ghose with them. The militants were, at the relevant point of time, carrying arms with them. Chandan Doley was taken to the house of Jagat Rajkhowa (P.W. 1) at village Abhoyapuri, they stayed for the night at the house of Jagat Rajkhowa and in the following morning, Chandan Doley was brought back to Bhakatiduar Tinali, where he saw those militants, who had taken away Sanjoy Ghose on the previous evening; but he noticed that Sanjoy was not with them. On a query made, in this regard, by Chandari, accused-Arup Baruah told Chandan that Sanjoy Ghose had been kept at the house of the Mahashay (i.e. Sir) and he (Chandan) would be able to meet Sanjoy at about 3 p.m. Chandan was, thereafter, taken to the house of one Smt. Rinu Khound (P.W. 11) and from her house, Chandan was taken to the house of Rita Deuri (P.W. 12), where some more militants joined the group. From Rita Deuri's house, they took Chandan Doley to the house of Rita Bardeuri (P.W. 13) and after having their lunch there, accused Amrit Dutta and Pradip Barua brought Chandan Doley to Bakatidur Tin Ali, where the accused-appellant-Kanaya Hazarika, joined them. From the said Tin Ali (i.e., tri-junction), the militants, including Kanaya Hazarika, took Chandan Doley to Kathalkhowa Tiriali, where accused-Arup Barua rejoined the group. From Kathalkhowa Tinali, Chandan Doley was taken by the said militants, including the accused-appellant-Kanaya Hazarika, to Aphalamukh in a boat and they all reached Aphalamukh at about 10 a.m. As Chandan Doley had suspected that the intention of his abductors was not good and there was threat to his life, he, at Aphalamukh, jumped into the river Brahmaputra and swam to the other side of the river. On the following morning, Chandan went to a house located nearby and, with the help of Kanai Dutta (P.W. 15), owner of the said house, Chandan reached Nimatighat Police Out Post and narrated the entire occurrence to the police, whereupon police from Jorhat also came to Nirnatighat and took Chandan with them to Jorhat Police Station.
(iii) The other militants, namely, accused-Arup Barua, Pradip Barua, Amrit Dutta and Mridul Hazarika, after separating, as mentioned hereinabove, Sanjoy Ghose and Chandan Doley, took Sanjoy Ghose to the house of Dulu Singh Rajput (P.W. 2) at village Morangia and asked Dulu to take them to Rabi Chapori in a boat. Dulu accordingly took them to Rabi Chapori in a boat and after dropping them, when he reached back home and was preparing to go to bed, he heard the sound of gun shots being fired.
(iv) Abek Kutum (P.W. 6), a resident of Dhanai Chapori, situated near Rabi Chapori, too had heard, on 4-7-1997, sometime after Dulu (P.W. 2) had left Sanjoy Ghose and the said militants at Rabi Chapori, sound of shots fired from gun and, on the following morning, accused Mrinal Hazarika called him (P.W. 6) to Rabi Chapori. Accompanied by one Bharat Narah, P.W. 6 went, in his boat, from their island, Dhanai Chapori, to Rabi Chapori, and from Rabi Chapori, accused-Mridul Hazarika brought back Abek (P.W. 6) and the said Bharat Narah to Dhanai Chapori and after dropping them at Dhanai Chapori, accused Mridul Hazarika took away the said boat to Rabi Chapori. As Dhanai Chapori and Rabi Chapori are located nearby each other, Abek (P.W. 6) saw accused Mridul Hazarika, with the help of three other persons, lifting, at Rabi Chapori, a gunny bag and putting the same into the boat of P.W. 6 and taking the boat towards up stream and after sometime, they came to the house of P.W. 6, at Dhanai Chapori, and after taking milk in the house of P.W. 6, these militants left.
(v) On the following morning i.e. 5-7-97, Dulu (PW2), on his return from paddy field to his house, found accused Mridul Hazarika, Amrit Dutta, Arup Barua and Prodip Barua at his house and when he (PW2) asked these militants as to where the fifth person, whom he (PW2) had seen on the previous day ferried to Rabi Chapori, was, he was told that the said person (whom PW2 saw on the previous day) had gone to Sibsagar.
(vi) On 4-7-1997, as Sanjoy Ghose did not return home, his wife Sumita Ghose (PW-1) became worried and she gave an information to the police, at Majuli Police Station, regarding disappearance of her husband and, on the next day, i.e. 5-7-1997, she lodged a formal complaint, in writing, with the police and based on this written complaint, Majuli Police Station Case No. 14/97 under Sections 147/341/307 IPC, read with Section 25(1) of the Arms Act and Sections 10/13 of the Unlawful Activities (Prevention) Act, 1967, was registered.
(vii) as the whereabouts of Sanjoy Ghose could not be traced out, Sumita Ghose (PW-1) managed to contact Paresh Barua, Commander In Chief of the ULFA, over phone, with the help of Subir Bhowmik (PW-22), a B. B. C. correspondent, and her aunt, Arundhati Ghose (PW-7), to secure release of her husband. The person, who had identified himself as Paresh Barua, on the other side of the telephone line, informed Sumita Ghose that her husband was involved in anti ULFA activities and it was for this reason that he had been taken into custody by the ULFA. Paresh Barua also told Sumita Ghose, on telephone, that they would release Sanjoy Ghose on condition that AVARD-NE should leave Assam, Sanjoy Ghose would be released to a third party and the army operation should stop, PW-1 accepted the first two conditions and while she was staying in Calcutta and expecting the release of her husband, she came across a news item published in a news paper stating to the effect that an Army General had said that Sanjoy Ghose had died by falling from a cliff at Arunachal Pradesh and that the Army General had released this statement on the basis of the intercepted message of ULFA. The ULFA also claimed to have released a press statement to the effect that while they were going to release Sanjoy Ghose, they were chased by members of the security forces and in the process, Sanjoy Ghose fell from a cliff in Arunachal Pradesh and died.
(viii) Pursuant to the Central Govt. Notification, dated 10-10-1997, issued in response to the Govt. of Assam's Notification, the CBI, SCB, registered a case, on 15-10-1997, under Sections 365/34 IPC read with Sections 10-13 of the Unlawful Activities (Prevention) Act, 1967, and took up investigation. The Investigating Officer, viz. P. W. 13, who was then Dy. Superintendent of Police, Special Crime Branch, Calcutta, on completion of investigation, submitted charge sheet (Ext. 7) against accused Amrit Dutta alias Naresh, Moni Neog, Fatik Hatimota, Pradip Barua, Bhaskar Barua alias Mridul Hazarika, Babu Saikia, Anjan Borthakur, Kanaya Hazarika, Siraj Bora, Arup Barua and Paresh Barua under Sections 364 and 365 of the Indian Penal Code. However, accused Siraj Bora and Arup Barua were killed in a police encounter and, later on, accused Babu Saikia too was killed in a police encounter. In the charge sheet, accused Amrit Dutta, Pradip Barua, Fatik Hatimota, Paresh Barua, Mridul Hazarika and Anjan Borthakur were shown as absconders and it is, thus, accused Moni Neog and accused Kanaya Hazarika, who eventually faced the trial.
3. During trial, both the accused appellants pleaded not guilty to the charge framed against them under Section 364 read with Section 34 IPC. In support of their case, prosecution examined as many as 31 witnesses including the Investigating Officer. Both the accused appellants, Moni Neog and Kanaya Hazarika, were examined under Section 313 Cr. P. C. and in their examination aforementioned, they denied that they had committed the offence alleged to have been committed by them, the case of the defence being that of total denial. Accused Moni Neog even denied that he knew Chandan Doley and/or that he was associated with ULFA. Accused Kanaya Hazarika also denied that he was, in any way, involved in the alleged abduction or disappearance of Sanjoy Ghose and/or Chandan Doley and/or that he was a member of the said banned militant outfit. No evidence was, however, adduced by the defence. The learned trial Court found both the accused aforementioned guilty of the offence charged with, it convicted them accordingly and passed sentence against them as already mentioned hereinabove. Aggrieved by their conviction and also the sentence passed against them, the two accused have preferred the present appeal.
4. We have heard Mr. J.M. Choudhury, learned Sr. counsel, appearing on behalf of the accused appellants, and Mr. D.K. Das, learned Senior Counsel, appearing on behalf of the respondents.
5. As the evidence of PW9 (Chandan Doley) is the pivot around which resolves the entire case of the prosecution, appropriate it is that we, first, scan the evidence of PW-9 in the light of the other evidence on record.
6. Describing vividly the facts and circumstances, which formed the backdrop of the alleged abduction of Sanjoy Ghose, PW9 has deposed, we notice, that in the month of May, 1997, when Justice S.N. Bharghav of Human Rights Commission, Assam, visited Majuli and a meeting was held at Kamalabari, some people opposed the activities of AVARD accusing that AVARD was destroying the Assamese culture and that the persons, at the helm of affairs of AVARD, were agents of RAW (Research and Analysis Wing) and even when Justice Bharghav visited Garmur, some people there also expressed their opposition to the activities of AVARD. To remove such views, which some members of the public had entertained, AVARD held a public meeting at Kamalabari and in the said meeting, people supported AVARD and despite the fact that one Rajib Das of Bongaon tried to create division amongst the people by speaking ill against AVARD, the people, in general, expressed, in the said meeting, their satisfaction with the activities of the AVARD. It is also in the evidence of PW9 that it was on 2-6-1997 that he (PW9) joined, as a full time volunteer, AVARD-NE and about 15 days thereafter, in the absence of Sanjay Ghose, one Chandra Hazarika of Mekhiligaon came to the office of AVARD looking for Sanjoy Ghose and, on an enquiry made by him (PW9), Chandra Hazarika told him (PW9) that he wanted to talk to Sanjoy Ghose regarding a goat farm, which Chandra Hazarika wanted to open at Mekhiligaon. PW-9 has also deposed that after about 7 days, he saw Chandra Hazarika talking to Sanjoy Ghose in their office and on 3-7-1997, Sanjoy Ghose told him (PW9) that on the following day, they would visit the Goat Farm at Mekhiligaon and at that time, Sumita Ghose, wife of Sanjoy Ghose, was also present at their office. We have carefully scrutinized the cross-examination of PW9 at the hands of the defence; but we find that with regard to the evidence given by PW 9 as to how "Sanjoy Ghose had started the activities of AVARD-NE at Majuli, how people had reacted, how some people had attempted to instigate the local public against the activities of AVARD and how the people, in general, had expressed their satisfaction with, and appreciation for, the work, which AVARD-NE had been doing, has remained wholly undisputed.
7. In the above backdrop, we, now, turn to the events that took place on 4-7-1997 and, thereafter, leading to disappearance of Sanjoy Ghose. In this regard, it is worth noticing that according to PW9, on 4-7-1997, at about 10.30 a. m., he and Sanjoy Ghose proceeded towards Mekhiligaon in two bicycles to see the goat farm there. It is of immense importance to note that according to PW9, Sanjoy Ghose was wearing, at that time, a pair of blue jeans with T-Shirt, he had a cap on his head, power shoes on his feet and he was also carrying a bag. At about 11.30 a.m., they came to the house of Chandra Hazarika and, accompanied by him, went to the said goat farm and after some discussions there, they came back to Mekhiligaon on their bicycles and though Chandra Hazarika requested them to have tea at his house, they declined and started coming back towards Kamalabari. It is in the evidence of PW9 that at the time, when they were so returning to Kamalabari, two boys stopped them and one of the boys asked Sanjoy Ghose whether he could recognize him; Sanjoy Ghose shook hands with those boys as he had recognized them. What is also of some significance to note, at this stage, is that according to PW9, when they met the said two boys, two police vehicles came passing and on seeing the police vehicles, both the boys hid themselves and it was, at that point of time, that Sanjoy Ghose told PW9 that one of the boys was Siraj Bora and the other one was Fatik and that both these boys were not satisfied with the work of AVARD.
8. We may also mention that according to the evidence of PW9, when they proceeded further, they were, again stopped by the said two boys, namely, Siraj Bora and Fatik Hatimota and these two boys wanted Sanjoy Ghose and PW9 to follow them for some discussion and though, initially, Sanjoy Ghose and PW9 declined, yet on persistent demand made by the said two boys, Sanjoy and PW9 followed Siraj Bora and Fatik Hatimota. It is in the evidence of PW9 that when he (PW9) and Sanjoy Ghose, accompanied by Siraj and Fatik, reached Mergarh Tinali at about 1 p.m. they saw Debojit Bora (PW10), Debojit (PW10) talked to Sanjoy Ghose and, then, on being asked by accused Fatik, Sanjoy Ghose, Chandan (PW9), accused' Fatik and accused Siraj came to Mudoigaon, where Sanjoy Ghose and PW9 were taken to the house of one Ram Nath Saikia. It is also in the evidence of PW 9 that at the house of Ram Nath Saikia, they met Ram Nath Saikia's son, who told them that there was already an organization at Majuli and hence there was no necessity of any other organization. This part of the evidence of PW-9 has also gone unchallenged by the defence and this part of the evidence of PW9 gives clear glimpses of the hostility that AVARD-NE was facing at the hands of those, who, according to the evidence of PW9, had brought them to the house of Ram Nath Saikia. At this house, according to the evidence of PW9, Sanjoy Ghose told Ram Nath Saikia's son that AVARD was a voluntary organization serving the cause of, and working for welfare of, the people. To this house came, as PW9 deposes, another boy, whom Fatik called as Babu, and Babu, in turn, asked several questions from Sanjoy Ghose and PW9 including their names, residence, etc, and also checked the bag and other materials, which Sanjoy Ghose and PW9 were carrying and took away from Sanjoy's bag his personal diary, a laptop and a water bottle and a diary from the bag of PW9 and, then, took them to the house of Gaonbura (village Headman) at Merghar, where these boys, again, asked Sanjoy and PW9 about the activities of AVARD and threatened them and asked them to close their organization. In fact, according to PW9, when he (PW9) told those boys that they were working for the welfare of the people, accused Fatik assaulted PW 9 with the handle of hand-fan and when Sanjoy Ghose protested, accused Fatik slapped Sanjoy Ghose too and ill-treated Sanjoy and, at that point of time, another boy, who disclosed his name as Anup Barua, came into the said house and asked Fatik to stop the assault and, then, accused Arup Barua started questioning Sanjoy Ghose and PW9 and when these two persons were being so interrogated, another boy, whom PW9 came to know as Pradip Barua, joined the group carrying a Carbine in his hands and, sometime thereafter, one Amrit Dutta came with a gun in his hand followed by Moni Neog (i.e., the accused -appellant No. 1), who too was carrying a Carbine in his hand. Except offering some bald suggestions to PW9 as regards the evidence given by him describing the events leading to their arrival at the house of the Gaonbura at Meragarh and joining of the said group by, amongst others, accused Moni Neog, the defence has virtually not cross-examined this witness. The evidence of PW 9 has, thus remained wholly unshaken. In fact, the only material suggestion, offered to PW9 by the defence, is to the effect that the evidence given by him as against Moni Neog is false and under the influence of the police. PW9 has, of course, denied this suggestion too.
9. When we proceed further with the evidence of PW9, we notice that according to his evidence, at about 4 p.m., they were taken from the house of the said Gaonbura to a boat and were brought, sailing through the river water, to Bhakatiduar and on getting down at Bhakatiduar, those boys asked Sanjoy Ghose and PW 9 to come with them in bicycles, which Sanjoy Ghose and PW 9 were carrying, and while so asking Sanjoy and PW-9 to proceed on bicycles, those boys surrounded Sanjoy and PW9 in a manner, which prevented Sanjoy Ghose and PW 9 from making any attempt to run away. This part of the unassailed evidence of PW9 discloses that accused Amrit Dutta, Moni Neog and Pradip Barua were carrying fire-arms with them and Amrit Dutta was carrying the bags of Sanjoy Ghose and PW-9 and that the accused abovementioned ensured that no attempt be made by Sanjoy Ghose and PW 9 to escape.
10. PW9 has also deposed that those boys brought Sanjoy Ghose and PW9 to the house of one Cheni Ram Mudoi at Bhakatiduar and while bringing them to the house of Cheni Ram Mudoi, Amrit Dutta told PW9 that he would not leave Sanjoy Ghose on that day. At the house of Cheni Ram Mudoi, they found a man, who was being addressed as Masterji, and at the said house, they were given rice to eat and after some time, Amrit Dutta told them that those two boys would have discussions with Sanjoy Ghose and PW. 9 separately and despite the fact that PW-9 protested, Amrit Dutta asked Sanjoy Ghose and PW 9 to take their respective bags and brought them outside the house of Cheni Ram, two more persons joined them and after covering some distance. PW 9 and Sanjoy Ghose were separated and taken to two different directions, PW 9 being taken by the accused Moni Neog and Anjan Borthakur, who had joined the group later on, and Sanjoy Ghose was taken away by accused Arup Borthakur, Pradip Baruah, Amrit Dutta and another person, who had joined the group later on with a gun in his hand. In fact, it is in the evidence of PW9 that the person, who had so joined with a gun in his hand and whom PW 9 did not know, was the one, who had taken away Sanjoy Ghose. From this stage onward, PW 9 never met Sanjoy Ghose again.
11. We, now, turn to the evidence on record to determine as to what role, if any, accused Kanaya Hazarika played?
12. Our search for an answer to the question posed above brings us back to the evidence of PW 9. In this regard, it needs to be noted that accused Kanaya Hazarika appeared on the scene after Sanjay Ghose was separated from PW 9 as described herein-above. While dealing with this aspect of the matter, it also needs to be noted that the evidence of PW 9 is that accused Moni Neog and Anjan Borthakur brought PW9 to village Abhoyapuri, where they asked PW 9 to remove his clothes and made him put a Gamocha (i.e., country towel), accused Moni Neog interrogated PW 9 and also made enquiries about Sanjoy Ghose as well as about the activities of AVARD. It is in the evidence of PW 9 that it is accused Moni Neog, who told him (PW9) that Sanjoy Ghose had come to exploit the people of Assam and, then, accused Moni Neog pointed his gun at PW9 and threatened him also. In this house, according to the evidence of PW9, accused Moni Neog asked PW9 to sleep on a bed and it was in the same room that the accused Moni Neog and Anjan Borthakur slept at night after closing the door. In the morning, on the following day, according to the evidence of PW9, after giving tea to PW9, accused Moni Neog and Anjan Borthakur brought PW 9 on his bicycle to Bhakatiduar Tinali, where PW 9 saw the persons, who had taken away Sanjoy Ghose with them on the previous evening. On not seeing Sanjoy Ghose with those boys, when PW 9 asked accused Anup Baruah about Sanjoy Ghose, Anup Barua told PW 9 that they had kept Sanjoy with Mahasay (i.e., sir) and that PW-9 would be able to meet Sanjoy Ghose at about 3 p.m. It is the clear and undisputed evidence of PW 9 that he had noticed that clothes of the boys, who had taken away Sanjoy Ghose on the previous evening, were dirty and that there were particles of sand on their clothes.
13. Be that as it may, the evidence of PW-9 is that all those boys took him to Sriram Deuri village, where they put him in the house of Rita Deuri (PW 12), he was given rice at the house of Rita Deuri, those boys enquired from him about AVARD and asked him to either join ULFA or leave AVARD and, then, accused Amrit Dutta and Pradip Barua brought him (PW9) to Bhakatiduar Tinali, where they met accused Kanaya Hazarika (i.e., the accused appellant No. 2) and there accused Amrit, Dutta talked to Kanaya Hazarika and at the said Tinali (tri junction), he saw Arup Baruah, who asked him (PW-9) to show which one is Sanjoy's bicycle, and when PW-9 showed the bicycle, which Sanjoy Ghose had used, Arup Barua asked the shop-keeper to keep the said bicycle, PW-9 has deposed that those boys asked him (PW-9) to get up on the bicycle of accused Kanaya Hazarika and, then, those boys, including accused Kanaya Hazarika, took him to Kolonbari Satra near river Brahmaputra and these accused Kanaya Hazarika asked PW-9 to get into a boat. PW9 has also de posed that accused Kanaya Hazarika and Pradip Barua, then, took him (PW9) to Aphalamukh and it was at about 10 p. m. that they got down from the boat. It is in the evidence of PW9 that having doubts about the intention of those boys and to save his life, he jumped into the river at Aphalamukh, he removed his clothes under the water and swam down stream and that when he came out of the river, he kept himself hidden amongst bushes and in the morning, on the following day, when he saw a house, he went there and came to know that the said house was at village Dainigaon. In the said house, according to the evidence of PW 9, he met an old man, who took him to Nimatighat Outpost, where the police interrogated him, and it was at the said outpost that police came from Jorhat and took him to Jorhat Police Station. PW 9 has, in no uncertain words, deposed that he recognizes accused Kanaya Hazarika and accused Moni Neog very well by name and face. Except offering some suggestions, which were denied by this witness, the defence did really nothing to show, as we have already indicated herein-above, that any part of the evidence of this witness was false or untrue. The evidence given by PW 9 has, thus, remained, if we may reiterate, wholly unshaken. This apart, his evidence is simple in nature and being coherent and consistent, his evidence is convincing and inspires immense confidence. In short, the evidence given by PW9, in itself, is sufficient to hold that Sanjoy Ghose and PW 9 had been forcibly taken away by a group of people. Who this group of people were become transparent, when we proceed further with the evidence on record.
14. Close on the heels of the evidence of PW 9, PW23 (Kamal Hazarika) has corroborated the evidence of PW 9 regarding the visit of Sanjoy Ghose and PW 9 to the house of PW 23 and, then, their visit to the Goat Farm at Mekheligaon. It is also in the evidence of PW 23 that Sanjoy Ghose and PW 9 had come on two bicycles and after visiting the said farm, they came back to the house of PW 23. PW 23 has also deposed that he had seen accused Siraj Bora and Fatik Hatimota, on PWD road, talking to Sanjoy Ghose and when they were so talking to Sanjoy Ghose, a police vehicle happened to pass by and, on noticing the police vehicle, accused Siraj Bora and Fatik Hatimota left that place. PW 23 has further deposed that on that very day, at night, police came from Bongaon to his house and, then, he came to know that Sanjoy Ghose and Chandan Doley (PW-9) had not reached their houses. The defence declined to cross-examine PW 23. The evidence of PW-23 too, thus, remained wholly unchallenged and his evidence, which we do not find any reason to disbelieve, substantially corroborates the evidence of PW-9 to the said goat farm and, then, accused Straj and Fatik stopping Sanjoy Bhose and having words with him as well as the fact that Sanjoy Ghose and Chandan Doley did not reach back their respective houses on the day they had visited the said goat farm.
15. As far as PW 7 (Ananta Bharali) is concerned, he, admittedly, had a scooter garage at Meragarh Tinali and his undisputed evidence is that on 4-7-1997, at about 1 p. m. , when he was repairing the scooter of Debojit Bora (PW-10), accused Fatik Hatimota and Siraj Bora along with two other persons came in their bicycles, one of the persons, who came with accused Fatik and Siraj, had beard and was wearing a cap and that the person, wearing the cap, was known to PW 10 and from PW 10, he (PW7) came to learn that the man with beard and wearing the cap was Sanjoy Ghose of AVARD-NE. PW 7 has also deposed that after repairing the scooter, he (PW7) took a trial run of about half-a-kilometer and saw, once again, all the said four persons and, at this stage, showing him (PW-7) a revolver, accused Siraj Bora told him (PW7) that he (PW7) and Debojit Bora (PW 10) were in the hit list of ULFA. It is in the evidence of PW 7 that he knew accused Fatika Hatimota and Siraj Bora as members of ULFA and when he narrated to Debojit at his garage about the threats, which accused Siraj had given, both of them felt apprehensive about the safety of the persons, who were being taken by the said members of ULFA, and these two persons, therefore, followed (i.e. PW7 and PW 10), on their scooter, Siraj, Fatik, Sanjoy Ghose and PW 9. PW 7 has further deposed that when they were trying to gather information as to where those four persons had gone, accused Fatik Hatimota came out of the house of Ram Nath Saikia and rebuked them (PW7 and PW 10) by alleging that both of them were agents of RAW (Research & Analysis Wing) and were destroying the society and at that point of time, accused Siraj came out and wanted to assault PW 7 and PW 10 with bamboo stick. PW 7 has further deposed that Fatik and Siraj also wanted to take Debojit (PW 10) inside the said house and even threat end that they would cut him (PW 10) into pieces. On seeing such a situation, deposes PW 7, he and PW 10 came back to his garage on the scooter and, after about half an hour, accused Fatika Hatimota, again, came to his garage and told them not to disclose to anyone, in the administration, about what had happened. In fact, it is in the evidence of PW 7 that PW 10 fell on the feet of accused Fatik begging him to release Sanjoy Ghose; but accused Fatik refused to do so.
16. Closely lending support to the above evidence of PW 7, PW 10 (Debojit Bora) has deposed that he knew Sanjoy Ghose and Chandan Doley (PW-9). This witness (PW-10) also supports the evidence of PW 9 and PW 7 about the fact of accused Siraj Bora and accused Fatik Hatimota talking to Sanjoy Ghose and PW9 and, then, taking them away. PW 10 also supports the evidence of PW 7 that he (PW 10) had gone to the place, where Sanjoy Ghose and Chandan Doley (PW 9) had been taken to by accused Siraj and accused Fatik, and that accused Fatik had assaulted PW 10 with a hand-fan and that he (PW 10) was threatened that he would be cut into pieces.
17. The material aspects of the evidence of PW 7 and PW 9 as regard their coming to Meragarh Tinali and, then, Sanjoy and PW 9 being taken away by accused Siraj and accused Fatik, accused Fatik was armed with a revolver and the fact that Siraj and Fatik had refused to release Sanjoy Ghose stands clearly established from the evidence of PW 7, PW9 and PW 10. The fact that Siraj and Fatik were members of ULFA has not been disputed by the defence and also the fact that even when PW 10 begged of them to release Sanjoy Ghose, both the said ULFA militants refused to do so.
18. Coupled with the above, PW 5 (Atul Saikia) and PW 6 (Mridul Saikia) have given evidence that on 4-7-1997, at about 1.30 p.m., accused Siraj and accused Fatik, who were members of ULFA and known to them, came with Chandan Doley (PW9) and a bearded man, who was wearing blue sports shirt and jeans with a cap on his head, arid that these persons had soft drinks at their house and that an altercation had taken place between the said two members of ULFA and the bearded man and after some time, all the said 4 persons, namely, the said two ULFA militants, Chandari Doley and Sanjoy Ghose left. It is also present in the evidence of PW 5 and PW 6 that later on, they came to know from the photographs published in the news-papers that the said bearded man was actually Sanjoy Ghose.
19. Thus, the evidence of Chandan Doley (PW9) as regards the taking of Sanjoy Ghose and Chandan Doley to the house of Atul Saikia at Mudoigaon and heated altercation having taken place between the said two members of ULFA and Sanjoy Ghose stands established, particularly, when the defence declined to cross examine PW 5 and PW 6. The altercations, which took place between Sanjoy Ghose, on the one hand, and the said two members of ULFA, on the other, are sufficient indication of the hostility, which Sanjoy Ghose faced from ULFA. the hostility being so intense that the ULFA members had started threatening with dire consequences even those persons, who were in favour of Sanjoy Ghose or were working for AVARD-NE.
20. As has been correctly pointed out by the learned trial Court, there are several persons, who figure in the alleged occurrence of abduction of Sanjoy Ghose and Chandan Doley and in the ultimate disappearance of Sanjoy Ghose. Three of these persons have died in police encounters and some others have even been proclaimed as absconders. The two persons, who faced trial, are the present two accused appellants, namely, Moni Neog and Kanaya Hazarika. The role played by these two persons have been discussed by the learned trial Court and it is imperative that we also look into the roles, which these two accused persons had allegedly played.
21. From the evidence of PW 9, it is abundantly clear that accused Moni Neog joined the group of ULFA boys at the house of Gaonbura, at Meragarh, with a Carbine in his hand and from the house of Gaonbura, all the accused including Moni Neog took Sanjoy Ghose and PW 9 to Bhakatiduar. It has also clearly emerged from the evidence of PW 9 that besides accused Moni Neog even accused Amrit Dutta and Pradip Barua were carrying arms with them and they had kept Sanjoy Ghose and PW 9 so surrounded as to ensure that their captives do not escape. From the evidence of PW 9, it also emerges that Sanjoy Ghose and PW 9 were taken to the house of one Chent Rain Mudoi at Bhakatiduar and at a little distance away from the said house. Sanjoy Ghose and Chandan Doley (PW-9) were separated and taken to two different directions, whereafter PW 9 never, again, saw Sanjoy Ghose.
22. PW-8 (Munindra Mudoi), whose evidence has also remained unchallenged, supports the evidence of PW 9 as regards the fact that PW 9 and Sanjov Ghose had been brought to the house of PW 8 on 4-7-1997 at about 7.30 P. M. and that they were given rice there to eat. Though PW 8 did not know Sanjoy Ghose by name or face, when the latter was alive, he has clearly deposed that the bearded person who was brought to their house, turned out to be Sanjoy Ghose as per the photographs published in the news papers and that the person, accompanying him, was Chandan Doley (PW9). In short, from the evidence of PW 8, what clearly comes out is that accused Amrit Dutta, Mridul Hazarika, Anjan Borthakur and two others brought a bearded person, who was wearing jeans, accompanied by another person, to their house and took rice in their house and though at that time, PW 8 had no knowledge as to who the said bearded person was, he (PW8) came to know, later on, from the photographs published in the newspapers that the said person was Sanjoy Ghose.
23. The role played by accused Moni Neog becomes transparent, when we closely examine the evidence of PW 4(Raju Borua), for, the evidence of this witness is that though he works at the FCI's Office at Jorhat, he is a member of Lokseva Tadarak Parishad, which is a non Governmental organization, arid on 30-6-1997, he came to Jorhat along with his son, Nayanjyoti Bora, and at Salmoraghat, he (PW4) along with his said son was kidnapped by ULFA members, namely, accused Fatik Hatimota, Babu Saikia and Siraj Bora, they were taken to the house of a person at Sarmoraghat and though the said members of ULFA wanted to take PW 4 and his said son to some other place, many people assembled at the house, where PW 4 and his said son had been so brought, and, eventually, accused Babu Saikia agreed to release PW 4 and his son on condition that PW 4 would come back and meet the members of ULFA on 4-7-1997 and accordingly, on 4-7-1997, PW 4 went to Bongaon to meet the ULFA members and in the afternoon on that day, at Mekheligaon, he saw seven members of ULFA taking Sanjoy Ghose and Chandan Doley (PW-9) towards Bongaon. It is also in the evidence of PW 4 that ULFA member, Babu Saikia, told him (PW 4) that since they had abducted Sanjoy Ghose and Chandan Doley, they had no time to talk to PW 4 on that day. Among those seven persons; accused Mont Neog, according to the evidence of PW 4, was also present. Though the defence cross-examined PW 4, nothing specific could be elicited from his cross-examination to indicate that the evidence given by him (PW-4) is untrue or unreliable. The learned trial Court has believed the evidence of PW-4 and we see no reason to disbelieve his evidence. This witness's evidence also lends great support to the evidence, which we have already discussed above, indicating the role that the members of the ULFA, in general, and accused Moni Neog, in particular, played in the abduction of Sanjay Ghose and Chandan Doley (PW9).
24. PW 12 (Rita Deori) is yet another witness, whose evidence supports the evidence of PW 9. PW 12 has testified to the effect that on 5-7-1997 i.e., on the following day of the occurrence, some ULFA members, including accused Moni Neog, Amrit Dutta, Mridul Hazarika, Anjan Borthakur and Pradip Borua came to their house with PW-9 and after keeping PW-9 at their house and another person with PW 9 as his guard, the ULFA members left for the house of Rita Bordeori (PW-13) to have their lunch there. It is also in the evidence of PW-12 that all those ULFA members, again, came to their house to take Chandan Doley (PW-9). PW-12 has deposed that Chandan Doley told her that he had been kidnapped and gave his telephone number to them. PW 12 has also deposed that accused Moni Neog misbehaved with her, while he was in their house. It is the clear evidence of PW 12 that one of the persons with a gun at his hand had stood as a guard to Chandan Doley. In his cross-examination, PW 12 has clarified that accused Moni Neog had been known to her from before. This fact has not been disputed by the defence. Except offering some suggestions to this witness, defence did little to elicit anything, which could discredit this witness. This apart, she has no reason to falsely rope in the accused persons named by her, particularly, accused Moni Neog.
25. The above evidence of PW 12 has been corroborated by PW 13 (Rita Bordeori), whose evidence is that on 5-7-1997, when he returned home at about 1 P. M. from their paddy field, he was told by his .mother that some boys had come and asked for giving them. rice. It is in the evidence of PW 13 that he saw five persons in their house and out of these persons, he knew Anjan Borthakur and Mridul Dutta. It is in the evidence of PW 13 that his mother gave them rice and after taking rice, those boys left. It is also in the evidence of PW 13 that those boys were members of ULFA and had carried weapons with them. The evidence of PW 13 has remained wholly unchallenged.
26. The evidence of PW 14 (Pradip Barua) is also material inasmuch as he has deposed that on 5-7-1997, at about 8.30 P. M., five persons with their faces covered with black cloth came to their Satra (religious place) carrying arms and they asked for water and a boat; but when they refused to part with boat, these boys assaulted him and forcibly took away the boat, which, was kept anchored at the backside of his house and while one of the said boys kept him (PW 14) detained at the Satra, others left and at about midnight, three boys came back and informed him that they had kept the boat on the other side of the river and asked him (PW 14) not to disclose the incident to any one. It is in the evidence of PW-14 that out of the persons, who had come to Satra, four persons had kept their faces covered; but the lace of the fifth one was not covered and after about a week of the said occurrence, the police brought a man to him (PW 14) and, then, he (PW 14) carne to know that the said fifth person was Chandan Doley. The evidence of PW 14 has also gone unchallenged by the defence.
27. PW 21 (Jogat Rajkhowa) is the witness at whose house Chandan Doley had been kept by those persons, who had taken away Sanjoy Ghose and Chandan Doley. According to the evidence of PW 21, on 4-7-1997, at about 10 P. M., while he was asleep, accused Anjan Borthakur,, Moni Neog and PW 9 (Chandan Doley) came to his house, accused Moni Neog was carrying a gun and said that they wanted to stay there for the night; but when PW 21 did not agree to give them Shelter, those boys threatened him with guns and out of fear, he allowed them to stay in their house and in the morning, those boys left. This witness has asserted that he knew accused Moni Neog from before and that he came to know Chandan Doley by name, when police brought Chandan Doley to his house and could recongize that Chandan doley was the person, who had stayed in his house on that particular day. The cross examination by defence could not shake the evidence so given by PW 21. In fact nothing of significance was elicited by the defence, while cross-examining PW 21, to indicate that he is not a reliable witness.
28. Thus, the evidence given by Chandan Doley (PW 9), coupled with the remaining evidence on record, particularly, the evidence of PWs 4, 5,6, 7, 8, 10, 12, 13, 14, 21 and 23, clearly reveal that both the accused-appellants, namely, Moni Neog and Kanaya Hazarika formed an integral part of the group, which had forcibly taken away Sanjoy Ghose and Chandan Doley and kept them in confinement at several places in the manner as indicated hereinabove.
29. The next question, which poses itself for consideration is as to what happened to Sanjoy Ghose after he had been separated from PW9 (Chandan Doley) and taken away by four militants, namely, accused Amrit Dutta, Pradip Barua, Arup Barua and Mridul Hazarika.
30. While considering the above aspect of the case, it is worth noticing that the evidence of PW 2 (Dulu Singh Rajput) is of great importance in this regard, for, the undisputed evidence of this witness is that he knew accused Mridul Hazarika and Amrit Dutta by name and face from before and he has described them in his evidence as ULFA extremists. The fact that accused Mridul Hazarika and Amrit Dutta are members of ULFA has not been in dispute.
31. Bearing in mind the above aspects of the evidence of PW 2, when we go through the evidence of PW 2, what we notice is that according to this witness, sometime in the year 1997, one day at about 8 P.M., while he was asleep in his house, somebody called him from outside and when his mother opened the door, two ULFA extremists, viz., Mridul Hazarika and Amrit Dutta entered into their house and enquired about PW 2. To the enquiry so made, the mother of PW 2 replied by saying that PW 2 was not keeping well; but accused Mridul Hazarika carne to the bed of PW 2 and brought him to the courtyard of the house, where other members of the family of PW 2 also assembled with lamps, and, in the light of those lamps, PW 2 noticed that three more persons were present in the courtyard along with accused Mridul Hazarika and Amrit Dutta, one of the three persons had a beard and he was wearing jeans, sporting, a blue coloured Power shoes and was carrying a bag on his shoulder. PW 2 has deposed that he could not recognize the said bearded man and also the other two persons, who were accompanying accused Mridul and Amrit; but he did see a gunny bag and a dao in the hands of accused Mridul, who was also carrying a gun on his shoulder, accused Amrit was also carrying a gun with him and that one of the said 'remaining three persons was also carrying a gun with him. It is in the evidence of PW 2 that accused Mridul Hazarika asked him to ferry them to the other side of the river Brahmaputra, that is, to Rabi Chapori and though PW 2, initially, declined saying that he did not have any boat, the accused persons told him that they would arrange a boat and accordingly, the accused persons brought the boat belonging to Dharam Singh Doley and, thereafter, he (PW2) carried all the said five persons in the said boat to Rabi Chapori.
32. What: is, however, of great significance to note in the evidence of PW 2 is that when accused Amrit Dutta left the house of PW-2, Amrit Dutta left his shoes at the house of PW 2. It is also in the evidence of PW 2 that after dropping those five persons at Rabi Chapori, which is a small island and where there was no house, when he was preparing to go to sleep, he heard the sound of two gun shots being fired.
33. The further evidence of PW 2 is that on the following day at about 8.00 or 8.30 A.M., when he came back to his house from his paddy field, he found accused Mridul Hazarika and Amrit Dutta along with two of their other companions, whom PW 2 had seen on the previous night too, taking tea at the house of PW 2 and when he (PW2) made enquiry from them as to where the fifth person was, the accused told him that the said person had gone to Sibsagar; but what PW 2 noticed was that Amrit Dutta (who had left his shoes at the house of PW 2) was wearing a blue coloured Power shoes, which, PW 2 had noticed, in the previous evening, the said fifth bearded person wearing and about ten minutes, thereafter, the accused persons left the house of PW 2. What is also immensely important to note is that the undisputed evidence of PW 2 is that after about 6-7 days, he came to know from the newspapers that Sanjoy Ghose had been kidnapped and he could recognize from the photographs published in the newspapers that the fifth bearded man, whom he had dropped at Rabi Chapori, was Sanjoy Ghose. The material aspects of the evidence of PW 2 have remained unshaken and his evidence leaves no room for doubt that Sanjoy Ghose had been taken to Rabi Chapori by the said four accused persons after Sanjoy Ghose had been separated from the company of PW 9.
34. Taking of Sanjoy Ghose, in the dead of the night, during the flood season was sufficient indication that the militants had carried Sanjoy Ghose to Rabi Chapori with evil intention and they came back from there without Sanjoy Ghose; However, the question as to whether Sanjoy Ghose was killed or met with accidental death cannot be beyond dispute; but as accused Amrit Dutta was seen wearing the shoes, which in all probabilities, had been worn by Sanjoy Ghose the indications are that Sanjoy Ghose did not remain alive. The fact that P.W.2 also noticed, on the following day, that the accused had not been carrying dao or gunny bag in their hands further probabilises the prosecution's plea that the gunny bag and dao had been used in the act of causing disappearance of Sanjoy Ghose. Coupled with these aspects of the evidence on record, what is also of paramount importance to note is that the utterances of accused Amrit Dutta, during the period when Sanjoy Ghose and Chandan Doley were in the custody of these militants, that he (accused Amrit Dutta) would not leave Sanjoy Ghose on that day shows that the militants were not in a mood to spare the life of Sanjoy Ghose.
35. The evidence of P.W. 2 has received credible corroboration from the unshaken evidence of P.W. 16 (Abek Kutum), a resident of Dhanai Chapori, which is situated near Rabi Chapori. The evidence of P.W. 16 is that about 6 years back, one day at night, during the rainy season and when there was flood, he heard someone calling him, at about 11 O'clock at night, by shouting "O Ghatoi; O Ghatoi" (i.e. 'O Boatman'; 'O Boatman') from Rabi Chapori; but he did not respond and at about 1 A.M., he heard the sound of gun fire and at about 4 O'clock in the morning, when he came out of his house, he found accused Mridul Hazarika, at Rabi Chapori, calling him, whereupon he (PW16), accompanied by one Bharat Narah, went to Rabi Chapori by a boat, where accused Mridul Hazarika asked him (PW16) as to why he (PW16) had not responded when he was called at 11 O'clock at night, and P.W. 16 and Bharat Narah replied by saying that as they were asleep, they had not heard anyone calling them.
36. It is in the evidence of PW16 that accused Mridul Hazarika got into the boat of P. W. 16 and Bharat Narah and after dropping them at Dhanai Chapori, accused Mridul Hazarika took the boat, again, to Rabi Chapori and, then, they saw four persons, including accused Mridul Hazarika, lifting a gunny bag into boat and moving away towards the upstream; but after about one hour, those four persons brought back the said boat to Dhanai Chapori. It is in the evidence of P. W. 16 that Mridul Hazarika was accompanied by Amrit Dutta and two more persons. It is s also significant to note that the unchallenged evidence of P. W. 16 is that except the boat, which Mridul Hazarika used, Dhanai Chapori had no other boat.
37. When the evidence of P. W. 16 is considered, in the light of the evidence of PW 2, what emerges is that Sanjoy Ghose was taken, on the dead of night, to Rabi Chapori by four ULFA militants and, then, on that very night, Sanjoy Ghose disappeared. Before disappearance of Sanjoy Ghose, the accused persons were also seen carrying a gunny bag and the gunny bag was, then, lifted and carried, on the following day, into the boat and taken up-stream, which Is indicative of the fact that the gunny bag, which was being carried by the accused persons on the previous night, was, as correctly concluded by the learned trial Court, used for the purpose of carrying the dead body of Sanjoy Ghose.
38. Coupled with the above, it is imperative to note that P. W. 17 (Basudev Doley) is a boatman and carries passengers in boats from Morongia to Rabl Chapori, Rabi Chapori being located at a distance of about 100 metres from Morongia. According to this witness, in the year 1997, during the flood season, there were only two boats near Rabi Chapori and, in the year 1997, during rainy season, one day at about 7 a.m., he took his boat to Rabi Chapori for Moroniga and as soon as he got down at Rabl Chapori, four boys came into the boat and asked him to take them back to Morongia and he accordingly carried them and for carrying the boys, he was given by those boys four rupees as hire charges. What is of great importance to note in the evidence of PW 17 is that he noticed that those boys were carrying arms with them and that later on, he came to learn from P. W. 16 that two of the said four boys were accused Mridul Hazarika and Amrit Dutta, The fact that out of the said four boys, two boys were accused Mridul Hazarika and accused Amrit Dutta has not been disputed by the defence.
39. What, thus, a combined reading of the evidence of PW 2, PW 16 and PW 17 shows is that PW 2 dropped the four ULFA militants along with Sanjoy Ghose at Rabi Chapori at night and brought back his boat to Dhanai Chapori and on the following day, in the morning, the boat of P. W. 16 was taken by the said four ULFA militants to Rabi Chapori, the said militants lifted a gunny bag and carried the same to the boat and took the same away upstream and from Rabi Chapori, those four militants used the boat of PW 17 for coming to Morongia. When these disjointed pieces of the evidence on record are clubbed together, there remains no room for doubt that Sanjoy Ghose disappeared at Rabi Chapori, somewhere between the night, when he was brought to Rabi Chapori in the boat of PW 2, and the next day morning, when Sanjoy Ghose was no longer seen with the said four militants by PW 16. Coupled with these facts is the fact that a gunny bag was carried in the boat from Rabi Chapori to upstream by the said four militants and since then Sanjoy Ghose's whereabouts are not known.
40. Though during the course of investigation, accused Amrit Dutta was arrested and the evidence at the trial was adduced by PW 29, the then Sub-Divisional Police Officer (SDPO) Majuli, and PW 13 (Extra Assistant Commissioner), at Majuli, to show that accused Amrit Dutta had confessed before them that they had drowned Sanjoy's dead body in the river, this piece of evidence, which was not admissible in the evidence, has not rightly been taken into account by the learned trial Court. What is, however, Important is that accused Amrit Dutta has since been declared absconder.
41. What surfaces from the above discussion of the evidence on record is that accused Moni Neog and Kanaya Hazarika were members of the banned outfit, namely, ULFA, they were hostile towards Sanjoy Ghose and their hostility was so intense that they were not willing to release Sanjoy Ghose despite requests made, in this regard, by PW 9 and also by PW 10.
42. In fact, the accused Siraj Bora, showing a revolver to PW 7 had told him that the PW 7 and PW 10 were in the hit list of ULFA. This shows that the ULFA's hostility was not only confined to Sanjoy Ghose but also to all those who sympathize, support and appreciate the activity of Sanjay Ghose. When the accused Siraj Bora told PW 7 and PW 10 that those two persons (i.e. PW 7 and PW 10) were in the hit list of ULFA, meant that those two persons were targeted not only to assault but they were also likely to be killed at the hands of ULFA.
43. PW 26, (Niranjan Das), who is himself a surrendered ULFA, has deposed that he had joined the extremist outfit, ULFA, in the year 1994, but ceased to be a member thereof since 1999. It is in the evidence of PW26 that accused Moni Neog, Mridul Hazarika, Pradip Barua, Arup Barua, Siraj Bora, Amrit Dutta and Anjan Borthakur, all of Majuli, were members of ULFA. The fact that the persons, named by P. W. 26, were members of ULFA could not be shaken by the defence. It is in the evidence of P. W. 26 that on 4-7-1997, he happened to meet Amrit Dutta at Bhakatiduar. Tinali and on being asked by accused Amrit Dutta, he came to the house of Cheni Ram Mudoi, where he found, besides accused Amrit Dutta, accused Arup Barua, Anjan Borthakur, Pradip Barua and Dipak at the courtyard and when he asked accused Amrit Dutta about the two persons inside the house, accused Amrit Dutta told PW 26 that those two persons were Sanjoy Ghose and Chandan Doley and then, PW 26 left. It is also in the evidence of PW 26 that later on, on being asked by accused Amrit Dutta and others, he functioned as a guard to Chandan Doley at the house of Rita Deori (PW 12) and it was on that very day that Arup Barua took away Chandan Doley with them. Significant it is to note that on the following day i.e. 5-7-1997, PW26 saw accused Moni Neog with Anjan Borthakur near Bhakatiduar. This, in turn, indicates that accused of their intense disliking towards Sanjoy Ghose, the banned militant outfit, ULFA, was working as a cohesive body and accused Moni Neog and accused Kanaya Hazarika were integral part thereof.
44. It is, no doubt, true that no Test Identification Parade (in short TIP') was held for identifying accused Moni Neog and/or Kanaya Hazarika. However, when PW 9 had the occasion to see and talk to both these persons and deal with them in the manner as the evidence on record indicates, it clearly follows, in the absence of anything showing or probabilising otherwise, that the question of PW 9 wrongly identifying the two accused persons does not logically arise. This apart there is virtually no cross-examination of PW 9 by the defence with regard to his evidence identifying the accused-appellants except that some suggestions were offered to PW 9 to the effect that he had given evidence against the two accused-appellants under the influence of police. In short, though identification of the two accused-appellants, at the TIP, was desirable, the omission on the part of the investigating agency, to get these two accused identified by PW 9, at the TIP, cannot make the Court throw away the evidence on records as regards the involvement of accused, Moni Neog and Kanaya Hazarika in the entire episode of abduction of Sanjoy Ghose and Chandan Doley. The evidence on record clearly establishes that not only accused Moni Neog, but even accused Kanaya Hazarika took active part in the abduction of PW 9 and, in fact, he (accused Kanaya Hazarika) formed an integral and inseverable part of the entire activities of the said banned outfit leading to the abduction of Sanjoy Ghose and Chandan Doley (PW 9) and Sanjoy Ghose's disappearance from the scene and Chandan Doley's jumping into the river and release from the clutches of his captors. In fact, there is not even a whisper of suggestion to P. W. 9 that accused Kanaya Hazarika had not asked P. W. 9 to sit into the boat and/or the fact that in the said boat, accused Pradip Barua, Arup Barua and Kanaya Hazarika had not brought P. W. 9 to Apolamukh.
45. We have, with utmost care, examined the entire evidence of PW 9 and we find that he is a wholly reliable witness, for, the evidence given by him is consistent, coherent and simple in nature, the same has remained unshaken in cross-examination and he had no animus against any of the accused. The entire description of the occurrence from the beginning to end has been coherently described by PW 9 and the same stands fully corroborated, as already indicated above, by the remaining pieces of the evidence on record. We, therefore, see no reason to differ from the view taken by the learned trial Court that PW 9 is a wholly reliable witness.
46. When the evidence on record, as a whole, is taken into account, what clearly emerges is that both the accused-appellants, namely, Moni Neog and Kanaya Hazarika were members of the banned outfit, namely, ULFA, he said militant outfit had intense dislike for, and deep-seated hatred towards, Sanjay Ghose, for, the activities of AVARD, which Sanjoy Ghose was leading, had made the said NGO popular in the island of Majuli and his activities had the effect of eroding the support base of ULFA, at Majuli, inasmuch as people had started appreciating the activities of the said NGO as they had seen and experienced that even without resorting to arms and weapons, the living conditions of the people, in general, can be improved. Both Sanjoy Ghose and Chandan Doley were forced, as the evidence on record already discussed above disclosures, to go with the members of ULFA and knowing ULFA's resentment towards Sanjoy Ghose and his supporters, PW 7 and PW 10 became apprehensive about the safety and security of Sanjoy Ghose and it was this sense of apprehension, which forced them to follow the trail of the abductors of Sanjoy Ghose and Chandan Doley; but accused Siraj Bora did not like that the movement of the abductors of Sanjoy Ghose and Chandan Doley be followed and it was to desist PW 7 and PW10 from following the trail of the said abductors that accused Siraj Bora threatened PW 7 and PW 10 by warning them that they were on the hit list of ULFA, though both these prosecution witnesses had gone to the extent of begging before the militants, particularly, accused Siraj Bora to release Sanjoy Ghose. The fact that the abductors were armed with deadly weapons leaves no room for doubt that the purpose of having armed themselves was that they would not have let Sanjoy Ghose and Chandan Doley escape and if need be, they would not have hesitated to bring to end the lives of the said two victims. In other words, the fact that the abductors were armed is proof of the fact that the abductors were not willing to let the victims escape unhurt and if need be, they would have killed the victims. Similarly, possession of the arms by the abductors was an indirect announcement to everyone that the abductors would not permit any forcible attempt to obtain release of the two victims. In short, the object of being armed was two fold, namely, (i) not to let the victims escape and, if need be, kill them and (ii) at the same time, not to let anyone forcibly freeing the two victims and, if need be, kill not only the victims, but also the person, who might have attempted to obtain their release. Logically, therefore, had any of the victims attempted to escape or if anyone had made any attempt to free the victims, such a person would have faced danger to his life. If the chain of circumstances, which emerges from the evidence on record, is clubbed together, the conclusion, which is inescapable to draw, is that Sanjoy Ghose was abducted with the intention of being killed or, at least, with the knowledge that he might put to danger of being murdered.
47. In the face of the evidence on record as discussed above, the crucial question, which, now, falls for consideration is as to what offence, if any, the accused appellants can be said to have committed? The learned trial Court, as already indicated herein-above, has convicted the accused-appellants under Section 364 read with Section 34, I.P.C. Is this conviction sustainable? The answer to this question brings us to Section 364, I. P. C., which, we find, reads as follows:
364. Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
48. There are two illustrations appended to Section 364, I. P. C. These two illustrations are as follows --
(a) A kidnaps Z from India, intending or knowing it to be likely that Z may be sanctioned to an idol. A has committed the offence defined in this section.
(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined in this section.
49. A careful reading, as a whole, of Section 364, I. P. C. along with the illustrations appended thereto shows that kidnapping or abduction, which Section 364, I.P.C. envisages, may be not only with the intention to murder, but also with the knowledge that the person, kidnapped or abducted, would be put to danger of being murdered. Section 364, I.P.C., in fact, shows that if the kidnapping or abduction is with the intention that the person, kidnapped or abducted, be murdered or if the person is kidnapped or abducted with the knowledge that the victim is likely to be put to danger of being murdered, offence under Section 364, I. P. C. would be complete irrespective of the fact as to whether the victim is, eventually or actually, murdered or not. The illustration (a) to Section 364, I.P.C. clearly reveals that even when the abduction is with the knowledge that it is likely that the victim may be murdered, offence under Section 364, I. P. C. would be complete and it does not really matter whether the person, who is kidnapped or abducted, is actually murdered or not. To put it differently, if a person is abducted with the intention that he may be murdered or with the knowledge that he may be put to danger of being murdered, the offence under Section 364, I.P.C. would be complete even if the victim, eventually, escapes or is not murdered. Conversely, if the victim is not abducted with the intention of being murdered or with the knowledge that he is likely to be murdered, but if such a victim is, eventually, murdered, penal provisions of Section 364, I.P.C. would not be attracted to such a case, for the gravamen of the charge under Section 364, I.P.C. is that kidnapping or abduction has to be either with the intention to murder the victim or with the knowledge that the victim is likely to be murdered. Some glimpses of this proposition of law can be had from an analytical reading of the observations of the Apex Court in State of West Bengal v. Mir Mohammad Omar and Ors. , which was as follows:
13. Section 364, I.P.C. says, whoever abducts any person "in order that such person may be murdered or disposed of as to be put in danger of being murdered" he commits the offence punishable under the Section. So the important task of the prosecution was to demonstrate: that abduction of Mahesh was for murdering him. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364, I.P.C. would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed.
50. Bearing in mind the ingredients of Section 364, I.P.C., when we revert to the facts of the present case, what attracts our eyes, most prominently, is that in the case at hand, abductors of Sanjoy Ghose had abducted him with the object and/or with the intention that he may be murdered or, at least, with the knowledge that he may be murdered or he may be put to danger of being murdered. Whether, eventually, Sanjoy Ghose was murdered or not is, there fore, not really material; what is material is that, at no stage, the abductors, in the present case, gave indication that they would spare the life of Sanjoy Ghose by either letting him go or by allowing anyone to free him, for, at all relevant time, Sanjoy Ghose was kept surrounded by the abductors, who were armed with weapons, exhibiting potent threat to his life, and he, as the evidence on record indicates, made attempt to escape or had anyone made even a fragile, but forcible attempt to obtain his release from the clutches of his abductors. Similarly, as far as Chandan Doley is concerned, there is no direct evidence on record to indicate that the aim and object or intention of abduction of P. W. 9 was to murder him, yet the fact remains that the chain of circumstances, when considered dispassionately, leaves really no room for doubt that the abductors knew that P. W. 9 was likely to be murdered or put to danger of being murdered. If the intention or object of abducting Sanjoy Ghose and P. W. 9 was other than what has been indicated hereinbefore, the accused-appellants could have explained the reason(s) for the abduction, when they were under examination under Section 313, Cr. P. C. The accused-appellants, have, however, said nothing, in this regard, at any stage of the trial or at the time of the hearing of the present appeal, nor have they offered any explanation as to why Sanjoy Ghose and/or PW 9 had been abducted.
51. In the face of the proven facts on record as narrated above, the natural inference is that the abduction was with the intention that the two victims may be murdered or, at least, with the knowledge that: the victims were likely to be murdered. In the face of such evidence on record, the onus lied on the accused-appellants to show that notwithstanding the fact that the abductors were armed with sophisticated weapons, the intention of the abductors was not to commit murder or that the abductors did not abduct with the intention that the victims may be murdered or that the abductors did not know that the victims were likely to be murdered, for, it is within the special knowledge of the accused appellants as to why the victims were abducted. When the accused-appellant, Moni Neog, fails to explain as to why Sanjoy Ghose and Chandan Doley were abducted and the accused-appellant, Kanaya Hazarika, fails to offer any explanation as to why or with what object or with what intention or with what knowledge or for what reasons, Chandan Doley was forcibly taken away by him and brought, in the late hours of the night, at a deserted island, the natural inference, in the absence of any explanation discernible, in this regard, from the evidence on record, is that the abductors intended that the victims be murdered or they had, at least, the knowledge that the victims were likely to be murdered. In these circumstances, reliance placed by the learned trial Court on the law laid down in State of West Bengal v. Mir Mohammad Omar (supra) is not misplaced inasmuch as the Apex Court, in State of West Bengal v. Mira Mohammed 2000 Cri LJ 4047 (supra), has succinctly described the portion of law, in this regard, as follows :---
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody.
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.
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39. In the present case, the facts which prosecution proved including the proclaimed intention of the accused, when considered in the light of the proximity of time within which the victim sustained fatal injuries and the proximity of the place within which the dead body was found are enough to draw an inference that victims death was caused by the same abductors. If any deviation from the aforesaid course would have been factually correct only the abductors would know about it, because such deviation would have been especially within their knowledge. As they refused to state such facts the inference would stand undisturbed.
52. It needs to be borne in mind that when the prosecution succeeds in proving certain facts, the Court may presume the existence of certain other facts, which are likely to fellow, in normal circumstances, from the proven facts. Such a presumption is available to a Court in the light of the provisions of Section 114 of the Evidence Act. This Section (Section 114) empowers the Court to presume the existence of any fact, which it thinks likely to have happened on the basis of the fads, which are proved or established by the prosecution. In the process of drawing such presumption, the Court shall, of course, refer to common course of natural events, human conduct, etc., in relation to the facts of a given case. When a fact is especially or pre-eminently within the knowledge of an accused, the onus lies on him, in the light of the decision in Shambhu Nath Mehra v. State of Ajmer , to offer his explanation for his conduct if his
intention was contrary to, or inconsistent with, what his conduct indicated.
53. In the present case, when the facts, which the prosecution have proved, are considered dispassionately, there remains no room for doubt, in the absence of any explanation showing otherwise, that Sanjoy Ghose and Chandan Doley (P.W. 9) were abducted with at. least, the knowledge that they were likely to be murdered and that both the present accused-appellants shared this knowledge of the abductors.
54, In the case at hand, the prosecution has successfully proved beyond any pale of doubt that accused appellant, Moni Neog, abducted Sanjoy Ghose and Chandan Doley with the help of other members of their banned outfit. in the absence of any explanation offered by the accused-appellants under Section 313, Cr. P.C. in this regard and in the absence of any explanation discernible, in this regard, from the evidence on record, there remains no logical room for doubt that both the victims were abducted with, at least, the knowledge that they were likely to be murdered. Similarly, forcibly taking away of Chandan Doley by armed militants, headed by accused appellant, Kanaya Hazarika, in the absence of any explanation offered by this accused or discernible in this regard from the evidence on record, leave one with no reasonable option but to hold that the accused-appellant, Kanaya Hazarika, too abducted Chandan Doley with, at least, the knowledge that he was likely to be murdered. If the accused-appellants had any reasons other than what have been indicated hereinbefore, the onus rested on them to show those reasons. Having failed to offer any explanation in this regard and in the absence of any explanation, which ran be discerned, in this regard, from the evidence on record, the inference has to be, and we do hold, that prosecution have proved beyond doubt that the two accused-appellants abducted the victims aforementioned with, at least, the knowledge that the victims were likely to be murdered. Because of these proven facts, the conclusion, which is irresistible to draw, is that the two accused-appellants were guilty of the offence under Section 364 read with Section 34, I. P. C.
55. In the result and for the reasons discussed above, we uphold the conviction of the accused-appellants and, In the facts and attending circumstances of the present case, we see absolutely no reason to interfere with the sentence passed against them.
56. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed.
57. Send back the LCRs.