Gauhati High Court
Page No.# 1/198 vs The Central Bureau Of Investigation on 27 September, 2022
Author: Suman Shyam
Bench: Suman Shyam, Malasri Nandi
Page No.# 1/198
GAHC010062362019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./195/2019
RANJAN DAIMARI @ D.R. NABLA @ LASDUM @ LOUDUM AND 9 ORS
S/O- LATE STEPHEN DAIMARI, R/O- VILL.- ADALA KAHIBARI, P.S.
HARISINGA, DIST.- UDALGURI, ASSAM, PIN- 784510.
2: GEORGE BORO @ JOHN @ JWANKHANG
S/O- SHRI JOGENDRA NATH BORO
R/O- MISSION ROAD
DOWN TOWN
P.S. BARPETA ROAD
DIST.- BARPETA
ASSAM
PIN- 781301.
3: AJAY BASUMATARY @ B. AOGAI
S/O- LATE SWAUN BASUMATARY
R/O- VILL.- DILAGIMITHIFANG
P.S. DIPHU
DIST.- KARBI ANGLONG
ASSAM
PIN- 782460.
4: KHGARGESWAR BASUMATARY @ RAHUL BRAHMA @ KHARAMSWAR
S/O- SRI KHAGEN BASUMATARY
R/O- VILL.- PUB NAOKATA (KHAIRAJHAR)
P.S. GORESWAR
DIST.- BAKSA
ASSAM
PIN- 781366.
5: RAJENDRA GOYARI @ RAJEN @ RIFIKHANG
S/O- SRI KANTESWAR GOYARI
R/O- VILL.- KHAGRABARI
P.S. GOBARDHANA
DIST.- BAKSA
Page No.# 2/198
ASSAM
PIN- 781315.
6: ONSAI BORO @ AJIT BORO
S/O- SRI GANGADHAR BORO
R/O- VILL.- SHANTIPUR
SALBARI
P.S. SALBARI
DIST.- BAKSA
ASSAM
PIN- 781372.
7: INDRA BRAHMA
S/O- LATE SAILENDRA BRAHMA
R/O- VILL.- PADMAPUR
P.S. SIDLI
DIST.- CHIRANG
ASSAM
PIN- 783373.
8: BAISAGI BASUMATARY @ B. BITHURAI
D/O- LATE GAOJAO BASUMATARY
R/O- VILL.- SONSALI
P.S. BARBORI
DIST.- BAKSA
ASSAM
PIN- 781318.
9: LOKHRA BASUMATARY @ LOBO
S/O- SRI MAGUR BASUMATARY
R/O- VILL.- KAMARPARA
P.S. KACHUGAON
DIST.- KOKRAJHAR
ASSAM
PIN- 783350.
10: RAJU SARKAR
S/O- LATE SUNIL SARKAR
R/O- VILL.- TANGLA
PASCHIM NALBARI
P.S. TANGLA
DIST.- UDALGURI
ASSAM
PIN- 784521
VERSUS
THE CENTRAL BUREAU OF INVESTIGATION
Page No.# 3/198
REP. BY THE STATNDING COUNSEL, CBI.
Advocate for the Petitioner : MR. A K BHATTACHARYYA
Advocate for the Respondent : SC, CBI
Linked Case : Crl.A./154/2019
MATHU RAM BRAHMA @ MUDAI AND 3 ORS.
S/O- SRI RASAMA BRAHMA
R/O- VILL.- BIGSHIJORA
P.S. BOGRIBARI
DIST.- KOKRAJHAR
ASSAM
PIN- 783370.
2: PRABHAT BORO @ TEPA
S/O- LATE GANGADHAR BORO
R/O- VILL.- PASCHIM KHARUA
P.S. BARAMA
DIST.- BAKSA
ASSAM
PIN- 781346.
3: JAYANTI BRAHMA JUGAMI
D/O- SHRI HOLIRAM BRAHMA
R/O- VILL.- CHANGBANDHA
P.S. BOGRIBARI
DIST.- KOKRAJHAR
ASSAM
PIN- 783370.
4: NILIM DAIMARY @ D. NIZWMSA
S/O- POWAL CHANDRA DAIMARY
R/O- VILL.- KALIBARI
P.O. ROWTA CHARIALI
DIST.- UDALGURI
Page No.# 4/198
ASSAM
PIN- 784509.
VERSUS
THE CENTRAL BUREAU OF INVESTIGATION
REP. BY THE STANDING COUNSEL
CBI.
------------
Advocate for : MR. M SARANIA Advocate for : SC CBI appearing for THE CENTRAL BUREAU OF INVESTIGATION BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MRS. JUSTICE MALASRI NANDI JUDGMENT & ORDER (CAV) Date : 27-09-2022 (Suman Shyam, J) Both these appeals arise out of the common judgment dated 28.01.2019 passed by the learned Special Judge in connection with Sessions Case No.59(K) of 2011, Kamrup (Metro), Guwahati. Criminal Appeal No.195/2019 has been preferred by 10 appellants viz., 1) Ranjan Daimari @ D. R. Nabla @ Lasdum @ Loudum, 2) George Boro @ John @ Jwankhang, 3) Ajay Basumatary @ B. Aogai, 4) Khargeswar Basumatary @ Rahul Brahma @ Kharamswar, 5) Rajendra Goyari @ Rajen @ Rifikhang,
6) Onsai Boro @ Ajit Boro, 7) Indra Brahma, 8) Baisagi Basumatary @ B. Bithurai, 9) Lokhra Basumatary @ Lobo and 10) Raju Sarkar whereas, Criminal Appeal No.154/2019 has been preferred by the four appellants viz. 1) Mathu Ram Brhama @ Mudai, 2) Prabaht Boro @ Tepa, 3) Jayanti Brahma @ Jugami and 4) Nilim Daimari @ D. Nizwmsa.
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2. By the impugned judgment dated 28.01.2019 the appellants have been convicted under Sections 120-B, 121, 121-A, 122, 123, 302, 324, 326, 307, 427 of the Indian Penal Code (IPC) read with Sections 3 & 4 of the Explosive Substances Act, 1908 and Sections 10, 13, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 and sentenced in the manner indicated herein below:-
1) For the offences punishable under Sections 120-B and 302 IPC, Section 3(b) of the Explosive Substances Act, 1908 and Sections 10(b)(i) and 16(1)(a) of the Unlawful Activities (Prevention) Act, 1967 the accused/appellants Ranjan Daimari @ D. R. Nabla @ Lasdum @ Loudum, George Boro @ John @ B. Jwankhang, Ajay Basumatary @ B. Aogi, Khargeswar Basumatary @ Rahul Brahma @ Khararmswar, Rajendra Gayari @ Rajen @ Rifikhang and Onsai Boro @ Ajit Boro were sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-
each, on each count, with default stipulations.
2) For the offence punishable under Section 326 IPC the accused/ appellants Ranjan Daimari @ D. R. Nabla @ Lasdum @ Loudum, George Boro @ John @ B. Jwankhang, Ajay Basumatary @ B. Aogi, Khargeswar Basumatary @ Rahul Brahma @ Khararmswar, Rajendra Gayari @ Rajen @ Rifikhang and Onsai Boro @ Ajit Boro were sentenced to undergo rigorous imprisonment for seven years each and fine with default stipulation.
3) For the offence punishable under Section 324 IPC the accused/ appellants Ranjan Daimari @ D. R. Nabla @ Lasdum @ Loudum, George Page No.# 6/198 Boro @ John @ B. Jwankhang, Ajay Basumatary @ B. Aogi, Khargeswar Basumatary @ Rahul Brahma @ Khararmswar, Rajendra Gayari @ Rajen @ Rifikhang and Onsai Boro @ Ajit Boro were sentenced to undergo rigorous imprisonment for one year each and fine with default stipulation.
4) For the offence punishable under Section 4(a)(b)(ii) of the Explosive Substances Act, 1908 the accused/ appellants Ranjan Daimari @ D. R. Nabla @ Lasdum @ Loudum, George Boro @ John @ B. Jwankhang, Ajay Basumatary @ B. Aogi, Khargeswar Basumatary @ Rahul Brahma @ Khararmswar, Rajendra Gayari @ Rajen @ Rifikhang and Onsai Boro @ Ajit Boro were sentenced to undergo rigorous imprisonment for three years each and fine with default stipulation.
5) For the offence punishable under Sections 13 and 20 of Unlawful Activities (Prevention) Act, 1967 the accused/ appellants Ranjan Daimari @ D. R. Nabla @ Lasdum @ Loudum, George Boro @ John @ B. Jwankhang, Ajay Basumatary @ B. Aogi, Khargeswar Basumatary @ Rahul Brahma @ Kharmeswar, Rajendra Gayari @ Rajen @ Rifikhang and Onsai Boro @ Ajit Boro were sentenced to undergo rigorous imprisonment for three years each and fine with default stipulation.
6) For the offence punishable under Sections 10, 13, 16 and 20 of the Unlawful Activities (Prevention) Act, 1967 the accused/ appellant Jayanta Brahma @ Jugmai, Mathu Ram Brahma @ Mudai and Prabhat Boro @ Tepa were sentenced to undergo rigorous imprisonment for five Page No.# 7/198 years each and fine with default stipulation.
7) For the offences punishable under Sections 326, 324, 435 IPC, Sections 3(b) and 4(a)(b)(ii) of the Explosive Substances Act, 1908 and 10, 13, 16 and 20 of the Unlawful Activities (Prevention) Act, 1967 the accused/appellants Lokhra Basumatary @ Lobo, Indra Brahma, Baishagi Basumatary @ B. Bithurai were sentenced to undergo rigorous imprisonment for different terms with fine under the aforesaid sections including the sentence to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- each, under Section 3(b) of the Explosive Substances Act, 1908, with default stipulations.
8) For the offence punishable under Section 3(b) of the Explosive Substances Act, 1908 the accused/appellant Raju Sarkar was sentenced inter-alia, to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- with default stipulation.
3. We have heard Mr. A. K. Bhattacharyya, learned senior counsel assisted by Mr. M. Sarania and Mr. D. K. Bhattacharyya, learned counsel appearing for the appellants in both the appeals. We have also heard Mr. S. C. Keyal, learned Special Public Prosecutor, CBI, appearing for the respondent.
4. The facts and circumstances of the case are briefly narrated hereunder. On 30.10.2008, as many as 9 powerful bombs exploded in various parts of Assam viz., Kamrup (Metro), Barpeta, Bongaigaon and Kokrajhar in between 11:20 a.m. to 11:30 a.m. The bombs exploded in the following locations :-
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(i) Under the Flyover at Ganeshguri, Dispur, Guwahati.
(ii) CJM Court Complex, Kamrup(M) at Guwahati.
(iii) Baptist Church Complex, Panbazar, Guwahati.
(iv) Vegetable Market, Kokrajhar Town, Kokrajhar.
(v) Railway Crossing, Kokrajhar Town, Kokrajhar.
(vi) Fish Market, Kokrajhar Town, Kokrajhar.
(vii) Choudhury Shopping Complex, Barpeta Road.
(viii) Wholesale Vegetable Market, Barpeta Road.
(ix) Old Paglasthan Bus Stand, Bongaigaon.
5. In the bomb blasts carried out in aforesaid nine different places, as many as 88 (Eighty Eight) persons had lost their lives and around 540 ( Five Hundred and Forty ) persons were critically injured. The blasts had also caused extensive damages to movable and immovable properties.
6. In the wake of the serial bomb blasts, many F.I.Rs. were lodged on 30.10.2008 in the different Police Stations in Assam. Based on such FIRs, cases were registered involving sections 120B/121/121-A/122/ 123/302/326/307/427 of the IPC read with Sections 3 & 4 of the Explosive Substances Act, 1908 and Sections 10 & 13 of the Unlawful Activities (Prevention) Act, 1967. On the basis of the FIRs lodged at the Dispur Police Station, Dispur P.S Case No 1825/2008 and Dispur P.S. Case No.1419/2008 were registered. The two FIRs lodged at the Panbazar Police Station lead to registration of Panbazar P.S. Case No 398/2008 and 399/2008, under Sections 121/121- A/302/326/427 of the IPC read with Section 3 of the Explosive Substances Act, 1908 and Sections 10/13 of the Unlawful Activities (Prevention) Act, 1967. In the Kokrajhar Page No.# 9/198 Police Station, 3 F.I.Rs. bearing Nos.371/08, 372/08 and 373/08 were registered under Sections 120-B/121/121-A/302/323/324/326/307/427 of the IPC read with Section 3 of the Explosive Substances Act, 1908. F.I.R. Nos.261/08 and 262/08 were lodged at Barpeta Road Police Station based on which Barpeta Road P.S. Case Nos. 261/2008 and 262/2008 were registered under Sections 120-B/121-A/126/153(A)(2)/153- B/302/326 of the IPC read with Section 3 of the Explosive Substance Act, 1908. F.I.R. No.451/08 of Bongaigaon Police Station was registered under Sections 120-B/121/121- A/324/326/307 of the IPC read with Section 3 of the Explosive Substances Act, 1908 and Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967 based on which Barpeta Road P.S. Cases Nos. 261/2008 and 262/ 2008 were registered.
7. Initially, the responsibility of carrying out investigation in all these cases were taken up by the CID, Assam Police. However, subsequently, with the consent of the Government of Assam, the Department of Personnel and Training, New Delhi had issued Notification No.228/100/2008-AVD.II dated 18.12.2008 transferring the investigation of all the nine cases to the Central Bureau of Investigation (CBI). Consequently, the Central Bureau of Investigation, Delhi Special Police Establishment, Special Task Force, had re-registered the nine cases being RC/DST/2008/S/S0003 to S0011. The investigation in connection with all the nine cases was thereafter carried out by the CBI.
8. Records reveal that a number of Officers of the CBI had taken part in the investigation of the nine serial blast cases. They have also been examined as witnesses. Amongst those officers were Sri. N.S. Yadav (PW-464), Sri N.S. Kharayat (PW-
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641), Sri N.K. Pathak (PW-642) Sri A.S. Tariyal (PW-624), Sri D. Ghosh (PW-631), Sri H.C. Sharma (PW-647) and Sri Sunil Singh Rawat (PW-625). It appears from the materials available on record that investigation conducted in the aforementioned cases had revealed that all the nine bomb explosions were carried out by the members of the proscribed terrorist organization i.e. National Democratic Front of Bodoland (in short "NDFB") which was formed on 03.12.1986 under the chairmanship of its supreme leader Ranjan Daimari.
9. During investigation it was found that the aforesaid nine bomb blasts were the outcome of a conspiracy hatched and carried out by the members of the banned NDFB. In the investigation carried out spread over a number of years the investigating agency could record the statements of various witnesses and collect materials including documentary evidence and material exhibits in support of the charges brought against the accused persons. On the basis of such materials collected by the CBI, a consolidated charge-sheet, covering all the nine F.I.Rs, was submitted against the accused persons viz., 1. Ranjan Daimari @ D.R. Nabla @ Lasdum @ Loudum, 2. Arun Borgoyary @ Dinthilang @ Kaobn Borgoyary, 3. Nilim Daimari @ D. Nizwmsa, 4. George Boro @ John @ B. Jwangkhang, 5. Miss Jayanti Brahma @ Jugmai, 6. Ajoy Basumatary @ B. Aogai, 7. Jitu Daimari, 8. Tarun Swargiary, 9. Khargeswar Basumatary @ Rahul Brahma @ Kharamswar, 10. Tensu Narzary @ Thungri Boro @ Thungri Narzary @ Thulunga, 11. Dinesh Boro @ Bholaram Boro, 12. Prabhat Boro @ Tepa, 13. Raju Sarkar,
14. Uttam Swargiary @ S. Ulafat, 15. Rajen Goyari @ Rifikhang. 16. Miss B. Thorai @ Bwisagi, 17. Bishnu Goyari @ Bidai @ Haranga, 18. Mudai and 19. Mridul Goyari for commission of offences punishable under Sections 120-B, 121, 121-A, 122, 123, 302, Page No.# 11/198 324, 326, 307, 427 of the Indian Penal Code read with Sections 3 & 4 of the Explosive Substances Act, 1908 and Sections 10, 13, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967, in the Court of the learned Special Judge, Assam, Guwahati.
10. It further appears from the materials available on record that the necessary sanctions under Section 196 Cr.P.C. was obtained from the competent authority for prosecuting the accused persons under Sections 121, 121-A, 122 and 123 of the IPC. Likewise, sanction under Section 45 of the U.A.(P) Act of 1967 was also obtained for prosecuting the accused persons for committing the offences under the Act of 1967. Consent to prosecute the accused persons for committing offences under Sections 3 & 4 of the Explosive Substances Act, 1908 was also obtained under Section 7 of the Act from the concerned authority.
11. Initially, 15 out of the 19 charge-sheeted accused persons were found to be absconding by the investigating agency. However, the Investigating Officers had eventually succeeded in arresting accused persons Ranjan Daimari on 16.052010. Accused Onsai Boro, Indra Bramha and Kahrgeswar Basumatary were arrested on 27.05.2010. Khargeswar Basumatary was arrested on 29.05.2010. Ajay Basumatary was arrested on 26.12.2008 and Raju Sarkar on 28.02.2009. Accused Mathuram Brahma was arrested on 25.02.2011. However, some of the accused persons including Ulafat @Uttam Swargiary were found to be absconding.
12. Based on the statement of accused Ranjan Daimari recorded during his custodial interrogation, the I.O. was able to access his e-mail account and download materials therefrom in presence of independent witnesses. The e-mails downloaded Page No.# 12/198 from the account of accused/appellant Ranjan Daimari had projected him as the President of the NDFB and there were photographs available in the e-mail account of Ranjan Daimari along with some of the armed cadres of the NDFB, who were wielding sophisticated weapons. The interrogation of the arrested accused person further revealed that logistic arrangements leading to the explosions were made under the supervision of accused Arun Borgoyary @ Dinthilang, the army chief of the NDFB with the help of other cadres and the decision to carry out the blasts was also taken in a meeting held in the residence of Dinthilang. Investigation further revealed that accused Rifikhang and John had gone to Bangladesh in the month of November/ December, 2008 and apprised Ranjan Daimari about the details pertaining to the execution of the bomb blasts. Apart from the above, the I.O. could also gather other evidence including the statement of accused Rahul Brahma which revealed that he had planted the bomb at Panbazar, Guwahati. Accused Rahul Brahma had apparently stated that the blasts were caused as per the direction of accused Ranjan Daimari.
13. In view of the above disclosures the I.O. had submitted a supplementary charge-sheet for committing offences under Sections 120-B, 121, 121-A, 122, 123, 302, 324, 326, 307, 427 of the I.P.C. read with Sections 3 /4 of the Explosive Substances Act, 1908 and Sections 10, 13, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 against the accused George Boro @ John @ B. Jwankhang, Mathuram Brahma @ Mudai and others. George Boro was arrested on 08.01.2011.
14. After the arrest of accused Onsai Boro @ Ajit Boro, Lokhra Basumatary @ Lobo Page No.# 13/198 and Indra Brahma on 27.05.2010, their statements were recorded under Section 161 Cr.P.C. From the statement of Sun Wary and Dashrath Basumatary it could be found that motorcycle bearing Registration No.AS-25-G-7034 was used in the Bongaigaon Blast and the same was purchased with the help of accused Lokhra Basumatary and Indra Brahma for an amount of Rs.15,000/- around the 3 rd/ last week of October, 2008.
15. It further appears from the materials on record that the two accused viz., Hemraj Mushahary and Dasarath Basumatary had admitted their involvement in the case before the Chief Judicial Magistrate, Bongaigaon and made a prayer to permit them to adduce evidence in support of the prosecution case thereby agreeing to become approvers. Accordingly, the Investigating Officer had made a prayer under Section 306 of the Cr.P.C. for declaring those two accused persons as approvers. Taking note of such a prayer, the learned Chief Judicial Magistrate, Bongaigaon had recorded the statements of Hemraj Mushahary and Dasharath Basumatary treating them as approvers. It also appears from the materials available on record that accused Anup Kumar Boro @ Nala was also made an approver vide order dated 22.11.2008 passed by the learned Chief Judicial Magistrate, Barpeta.
16. Based on the charge-sheet submitted by the Investigating Agency, charges were framed against the accused persons under Sections 120-B/121/121- A/122/123/302/326/307/324/427 IPC read with Sections 3 /4 of the Explosive Substances Act, 1908 and Sections 10/13/16/18/20 of the Unlawful Activities (Prevention) Act, 1967, the same were read over and explained to the accused Page No.# 14/198 persons but they had pleaded not guilty and claimed to be tried. As such, the matter went up for trial. During trial the absconding accused Baishagi Basumatary @ B. Bithurai was also arrested by the I.O. and produced before the learned Sessions Judge, Kamrup(M) at Guwahati. Accordingly, charge was framed against the said accused person by order dated 06.10.2015. This accused had also pleaded not guilty and claimed to be tried.
17. There were altogether 871 witnesses whose statements were recorded during investigation. The trial initially commenced in the Court of learned Sessions Judge, Kamrup(M), Guwahati but subsequently, the same was transferred to the Special Court constituted for the purpose of speedy disposal of the case.
18. During trial, the prosecution side had examined as many as 650 witnesses. The remaining witnesses could not be examined as some of them had, in the meantime, expired or went traceless. Upon recording of evidence of the prosecution side, the statement of the accused persons were recorded under Section 313 Cr.P.C. wherein, they had denied the incriminating materials brought against them by the prosecution. The defense side however, did not adduce any evidence.
19. On conclusion of trial and after analyzing the evidence available on record, the learned Special Judge had passed the impugned order dated 28.01.2019 in connection with Sessions Case No.59(K) of 2011, Kamrup(Metro), Guwahati convicting the accused/ appellants Ranjan Daimari, George Boro, Ajay Basumatari, Khargeswar Basumatari, Rajendra Gayari and Onsai Boro under Sections 120- B/302/326/324/435/436 of the Indian Penal Code (IPC) read with Sections 3(b) and Page No.# 15/198 4(a)(b)(ii) of the Explosive Substances Act, 1908 and Sections 10(b)(i)/13/16(1)(a)/20 of the Unlawful Activities (Prevention) Act, 1967. Accused/appellants Lakhara Basumatari, Indra Brahma and Bhaisagi Basumatari were convicted under Sections 326, 324, 345 IPC read with Sections 3(b) and 4(a)(b)(ii) of the Explosive Substances Act, 1908 read with Sections 10, 13, 16, 20 of the Unlawful Activities (Prevention) Act, 1967. Accused/appellant Raju Sarkar was convicted under Sections 302, 326, 324, 435 and 436 of the IPC read with Sections 3(b) and 4(a)(b)(ii) of the Explosive Substances Act, 1908. Accused/appellants Jayanti Brahma @ Jugami, Mathuram Brahma @ Mudai and Prabhat Boro @ Tepa have been convicted under Sections 10, 13, 16, 20 of the Unlawful Activities (Prevention) Act, 1967. Accused Nilim Daimari @ D. Nizwmsa was convicted under Sections 10(a) and 13(1)(a)(b) of the Unlawful Activities (Prevention) Act, 1967. Accused Mridul Gayari was, however, acquitted by the learned trial Court by giving him the benefit of doubt.
20. By referring to the materials available on record, Mr. A. K. Bhattacharyya, learned senior counsel, leading the arguments on behalf of the appellants, has submitted that there is no evidence available on record to prove that the serial bomb blasts were the outcome of a conspiracy involving his clients. According to the learned senior counsel, the prosecution has failed to lead evidence so as to connect the appellants with the occurrence.
21. Mr. Bhattacharyya has also argued that in the present case, charges were framed against the accused persons on as many as three occasions and the accused persons were made to face trial without giving them a proper opportunity Page No.# 16/198 to know as to what exactly was the nature of charge brought against them. Since the framing of charge in this case, according to Mr. Bhattacharyya, was not in accordance with the provisions of Sections 221, 222 and 223 of the Cr.P.C., this is a clear case of denial of fair trial to the accused persons.
22. By referring to the materials available on record Mr. Bhattacharyya has further argued that the Gazette notifications dated 23.11.2006 (Ext-656) and 23.11.2008 (Ext-
314) were not proved by the prosecution as per the requirement of the Evidence Act, 1872 in as much as copies of the notifications were exhibited by PW- 457 and PW-464 who were not competent to prove those documents. As such, submits Mr. Bhattacharyya, there is no evidence to prove that the National Democratic Front of Bodoland (NDFB) was a banned organization within the meaning of Unlawful Activities (Prevention) Act, 1967.
23. In so far as the evidence relied upon by the prosecution to establish the conspiracy theory is concerned, Mr. Bhattacharyya has argued that the basic document relied upon by the prosecution is Ext-42, which is a letter allegedly written to the accused/appellant Ranjan Daimari addressing as "To Respected Sir". However, the original of Ext-42 is not available on record. The translated version of the said document was exhibited by PW-29 (Dr. Upen Narzary), who had merely translated the Ext-42 from Bodo language to English. Although he has been examined as a witness, yet his testimony, submits Mr. Bhattacharyya, could at best relate to the work of translation carried out by him but the same cannot, according to learned senior counsel, substitute the original document, which was never Page No.# 17/198 produced before the learned trial court by the prosecution side. Contending that the learned trial court had illegally relied upon Ext-42 as the foundation of the conspiracy theory and convicted the appellants on the basis of a non-existent material, Mr. Bhattacharyya submits that the impugned judgment of the trial court holding the appellants/accused persons guilty of hatching a conspiracy is liable to be set aside on such count alone. Contending that the original of Ext-42 was never seized by the prosecution in connection with the present proceeding, Mr. Bhattacharyya has further argued that the so called letter dated 04.09.2008 was seized in connection with another case being Tura P.S. Case No.156(G)/08 registered under Section 121 of the IPC read with Sections 6 and 20 of the Unlawful Activities (Prevention) Act and therefore, a copy of the said document cannot be treated as evidence against the appellants/accused persons in the present case.
24. In so far as the statements of the approvers is concerned, the learned senior counsel has argued that the conditions laid down in Section 306 of the Cr.P.C. has not been fulfilled while turning an accused into an approver in this case. Continuing his submissions in the above line Mr. Bhattacharyya has further argued that although Dasarath Basumatari (PW-488) and Sri Anup Kumar Boro (PW-615) were shown as approvers, yet, no pardon had been granted to them nor did they make any application before the learned trial court for considering them as approvers. According to Mr. Bhattacharyya, PWs-488 and 615 were not approvers within the meaning of Section 306 of the Cr.P.C. Notwithstanding the same, the aforesaid accused persons have been arbitrarily released and they are moving around as free citizens although no proper procedure for their release as prescribed by the Cr.P.C.
Page No.# 18/198 has been followed in this case. The learned senior counsel for the appellants has further argued that even while recording the statement of the accused persons under Section 313 of the Cr.P.C proper procedure has not been followed as a result of which, the trial stood vitiated. To sum up his arguments Mr. Bhattacharyya has taken us through the materials available on record to contend that there was unusual delay in completing the investigation and the trial in this case leading to serious prejudice to the interest of his clients. He has also argued that sufficient time was not given to the defense counsel to argue the case and that the judgments and citations relied upon by the defense side before the learned trial court was neither discussed nor considered in the proper perspective before rendering the impugned judgment.
25. Referring to the alleged confessions of Sri Ajay Basumatari (Ext-379), Sri Anup Kumar Boro (approver) (Ext-461) and Sri. Onsai Boro (Ext-489) relied upon by the prosecution, Mr. Bhattacharyya has argued that none of those confessions were recorded by following the due procedure laid down in Section 164 of the Cr.P.C. Moreover, the alleged confessions, according to Mr. Bhattacharyya, do not in any way advance the prosecution case and therefore, reliance placed on those confessions were uncalled for. In support of his above argument, Mr. Bhattacharyya has relied upon and referred to the decision of the Supreme Court in the case of Rabindra Kumar Dey Vs. State of Orissa reported in (1976) 4 SCC 233, to submit that the burden to prove the case is entirely upon the prosecution and once there is reasonable and plausible explanation from the accused, it must be held that the prosecution has failed to prove the case. According to Mr. Bhattacahrjee, the explanation furnished by the accused is liable to be accepted. Mr. Bhattacharyya Page No.# 19/198 further submits that the fouler the crime, stricter is the proof and, therefore, unless the prosecution succeeds in proving the charge beyond reasonable doubt, the accused persons are liable to be acquitted. In support of the above argument the learned counsel has relied upon Lakshmi Singh Vs. State of Bihar reported in (1976) 4 SCC 394.
26. By referring to the decision in the case of Vadivelu Thewar Vs. State of Madras reported in AIR 1957 SC 614 as well as in the case of Harbans Singh Bhan Vs. The State of Punjab reported in AIR 1957 SC 637 and Nachhhattar Singh and others Vs. State of Punjab reported in (1976) 1 SCC 750, the learned senior counsel for the appellants has argued that the prosecution case must be proved and it cannot be "may be true or probably true", if the witnesses relied upon by the prosecution is found to be unreliable, wholly unreliable or neither wholly reliable nor unreliable for prosecuting the accused persons. By referring to the decision of Devi Lal and another Vs. State of Rajasthan and others reported in (1971) 3 SCC 471 as well as Mohinder Singh Vs. State reported in AIR 1953 SC 415, Mr. Bhattacharyya has argued that the prosecution must have a definite and positive case and the same must be proved in terms of the allegations brought against the accused. He submits that it is the cardinal principle of criminal jurisprudence that the prosecution not only has a definite and positive case but it succeeds in proving the entire case. By relying upon the decision of Ganga Sahai and others Vs. State of U.P. reported in (1974) 4 SCC 186, the learned senior counsel has further argued that in a criminal case, the fate of the proceedings cannot be left at the hands of the parties alone.
27. Contending that holding a witness "implicitly reliable" leads to denial of justice Page No.# 20/198 leading to infirmities in the prosecution case, Mr. Bhattacharyya has also referred to the decision in the case of Hallu and others Vs. The State of Madhya Pradesh and others reported in (1974) 4 SCC 300 as well as Kailash Gour and others Vs. State of Assam reported in (2012) 2 SCC 34, to submit that charge brought against the accused in a criminal case must be established by leading evidence that is acceptable by the standards of criminal jurisprudence.
28. In so far the e-mails of the accused appellant Ranjan Daimari is concerned, Mr. Bhattacharyya has argued that the e-mails exhibited by PW-499 and PW-502 numbering 64 in total as Exts-417(i) to Exts-417(xxiii) and Ext-427 were inadmissible in evidence since those were not accompanied by a certificate issued under Section 65(B) of the Indian Evidence Act, 1872. Moreover, submits Mr. Bhattacharyya, such electronic evidences have also not been put to the accused persons while recording their statements under Sections 313 Cr.P.C. In support of his above argument, Mr. Bhattacharyya has referred to and relied upon the decision of the Supreme Court in the case of Anvar P.V. Vs. P.K. Basheer and others reported in (2014) 10 SCC 473.
29. By referring to the decision in the case of Kali Ram Vs. State of Himachal Pradesh reported in (1973) 2 SCC 808, Chandigarh Administration Vs. Dharma Singh reported in (1985) Suppl. SCC 266, Anil Kumar Singh Vs. State of Bihar reported in (2003) 9 SCC 67 and State of Uttar Pradesh Vs. Wasif Haider reported in (2019) 2 SCC 303, the learned senior counsel has further submitted that on the basis of evidence available on record, if two views are possible, than the one favourable to the accused persons is required to be adopted by the court and the accused persons Page No.# 21/198 must be acquitted by giving them the benefit of doubt. In a criminal case, submits Mr. Bhattacharyya, mere suspicion or moral conviction cannot take the place of proof.
30. By referring to the impugned judgement passed by the learned Special Judge, Mr. Bhattacharyya has argued that the learned Court below has failed to correctly appreciate the evidence adduced by the prosecution in holding that the charge of criminal conspiracy under Section 120B of the IPC read with Section 18 of the Unlawful Activities (Prevention) Act has been proved by failing to consider that there is no evidence to connect the accused with the alleged conspiracy theory. In support of his above argument, Mr. Bhattacharyya has relied upon and referred to the decision of the Supreme Court rendered in the case of Tapan Das Vs. State of Bombay, reported in AIR 1956 SC 33 and Jetsur Surangabhai Vs. State of Gujarat reported in (1984) Suppl SCC 207 as well as Paramhans Yadav and another Vs. State of Bihar and others reported in (1987) 2 SCC 197 and B.H. Narasimha Rao vs. Government of A.P. reported in (1995) Suppl. 4 SCC 704.
31. Contending that the statement of the witnesses recorded under Section 164 of the Cr.P.C. is not a substantive piece of evidence and, therefore, the trial Court could not have relied upon the same so as to convict the accused persons, Mr. Bhattacharyya has vociferously argued that the conviction of the accused persons is substantially based on the statement of the witnesses recorded under Section 164 Cr.P.C. In order to drive home the above arguments, the learned senior counsel for the appellants has relied upon the law laid down in the following decisions:-
(i) Mamand and others Vs. The Emperor reported in Air 1946 SC 45.
Page No.# 22/198
(ii) Ram Kishan Singh Vs. Harmit Kaur reported in (1972( 3 SCC 280.
(iii) Utpal Das Vs. State of West Bengal reported in (2010) 6 SCC 493.
(iv) Baij Nath Vs. State of Bihar reported in (2010) 6 SCC 736.
(v) R. Shaji Vs. State of Kerala reported in (2013) 14 SCC 266.
(vi) Bisheswar Baori Vs. State of Assam reported in 2002 (2) GLT 395.
32. In so far as the confessional statement of the accused persons relied upon in this case is concerned, Mr. Bhattacharyya submits that proper procedure was not followed while recording their confession and at-least 24 hours time for reflection was not given to the accused persons before recording their statements. Contending that confession of co-accused is a weak piece of evidence and, therefore, cannot be wholly relied upon for conviction of the accused, Mr. Bhattacharyya has referred to the law laid down in the case of Sarwan Singh Rattan Singh Vs. State of Punjab reported in AIR 1957 SC 637 and Haricharan Kurmi Vs. State of Bihar reported in AIR 1964 SC 1184. He submits that when confession is the whole basis of conviction, the truthfulness or otherwise of the confession must be ascertained by an independent investigation and based on cogent evidence. In support of the above argument, Mr. Bhattacharyya has relied upon the decision in the case of Padmeshwar Phukan Vs. State of Assam reported in 1971 Cri. L.J. 1595.
33. By relying upon the decision in the case of Kalawati and another Vs. State of H.P. reported in AIR 1953 SC 131 as well as Aloke Nath Dutta and another Vs. State of Page No.# 23/198 West Bengal reported in (2007) 12 SCC 230, Ram Chandra and another Vs. State of U.P. reported in AIR 1957 SC 381, Dhanajaya Reddy Vs. State of Karnataka reported in (2001) 4 SCC 9 and Kehar Singh & others Vs. State [Delhi Administration] reported in (1988) 3 SCC 609, the learned senior counsel for the appellant has argued that any confession in order to be relied upon by the trial Court, ought to be voluntary and truthful. Such confession must also be recorded by following the due procedure laid down in Section 164/281 of the Cr.P.C. unless the aforesaid process is followed, the confession of the accused persons cannot be relied upon for conviction. Mr. Bhattacharyya has added that in any event, a retracted confession cannot form the basis of conviction.
34. Referring to the discovery statements relied upon by the prosecution, Mr. Bhattacharyya has argued that the statement of the accused must lead to discovery of facts and not vice-versa. Mr. Bhattacharyya has argued that none of the disclosure statements relied upon by the prosecution side meets the requirement of Section 27 of the Evidence Act. Even the pointing out memos relied upon by the prosecution, according to the learned counsel for the appellant, are of no evidentiary value in this case since the alleged discoveries made by the I.O. on the basis of such disclosure statement and pointing out memos were made subsequently i.e. after the prosecution became aware of the existence of such facts from some other sources. Contending that statements of the witnesses recorded under Section 164 Cr.P.C. cannot be used as substantive evidence for conviction of accused, Mr. Bhattacharyya has argued that those statements could at best, have been used for corroboration and contradiction of the witnesses but not as substantive evidence.
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35. In support of the above argument, Mr. Bhattacharyya has relied upon the decisions rendered in the case of Mohd. Inayatullah Vs. State of Maharastra reported in (1976) 1 SCC 828, Wakkar Vs. State of Uttar Pradesh reported in (2011) 3 SCC 306 and Vijay Kumar Vs. State of Rajasthan reported in (2014) 3 SCC 412.
36. Assailing the findings of the learned trial Court to the effect that the accused appellant Ranjan Daimari has himself admitted in an application filed before this Court that he was the Chairman of NDFB and, therefore, the said fact stood established by the own showing of the appellant, Mr. Bhattacharyya submits that pleadings made on behalf of the accused would not be binding upon him and the prosecution would be obliged to prove each and every fact by leading proper evidence.
37. Mr. Bhattacharyya, learned senior counsel for the appellant has also referred to the decision of the Supreme Court rendered in the case of Pratap Mishra Vs. State of Orissa reported in (1977) 3 SCC 739 to contend that the learned trial Court has committed manifest illegality in relying upon the pleadings contained in the Interlocutory Application (IA) filed by the accused to hold that the appellant Ranjan Daimari would be bound by the said pleadings. It is also the contention of Mr. Bhattacharyya that refusal to answer any question posed to the accused while recording the statement under Section 313 of the Cr.P.C. would not amount to admission of guilt. Mr. Bhattacharyya has referred to the decision in the case of Nagaraj Vs. State reported in (2015) 4 SCC 739 to contend that merely because the accused appellant Ranjan Daimari had given an unsatisfactory answer to the queries Page No.# 25/198 put to him during his examination under Section 313 Cr.P.C., the same would not justify the Court to return a finding of guilt against him.
38. Mr. Bhattacharyya has further argued that there was no valid prosecution sanction obtained in this case as per the requirement of Section 45 of the UA(P) Act as well as Section 120B of the IPC, inasmuch as, there was complete non-application of mind to the facts of this case by the sanctioning authority. Moreover, no proper satisfaction of facts was recorded before granting such sanction. By relying upon the decision of the Supreme Court rendered in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh reported in (1979) 4 SCC 172, Mr. Bhattacharyya has argued that it is incumbent upon the prosecution to prove that a valid sanction has been granted by the competent authority on reaching a satisfaction that a case for granting sanction has been made out constituting the offence alleged.
39. To sum up his arguments, Mr. Bhattacharyya, learned senior counsel appearing for the appellants has argued that although the occurrence of the serial bomb blasts in various parts of Assam on 30/10/2008 is not in dispute, yet, the prosecution has completely failed to prove the charges brought against the appellants by adducing proper evidence. It is also the submission of Mr. Bhattacharyya that the conspiracy theory does not find any material support from the evidence brought on record.
40. In response to the above arguments, Mr. Keyal learned Special Public Page No.# 26/198 Prosecutor appearing for the CBI submits that charge was framed against as many as 16 accused persons out of which one accused, viz. Mridul Goyari has been acquitted by the learned trial court but with regard to the other fifteen accused persons, the trial court has found sufficient evidence to convict them. It is the submission of Mr. Keyal that the prosecution has adduced evidence of a large number of witnesses which includes relatives and friends of the deceased persons, injured victims, relatives friends and associates of injured persons and those whose properties were destroyed in the blasts. Besides the above, a number of medical officers who had rendered treatment to the injured, Investigating Officers (I/O) as well as official witness were examined by the prosecution so as to establish the charge brought against the accused persons. By referring to the statement of the approvers Mr. Keyal has argued that Anup Kr. Boro (PW-615) was made an approver on the basis of order passed by the Magistrate (PW-513), based on an application filed by Inspector of Police Abdul Hamid (PW-486) with a request to make the said accused an approver. The accused persons who made disclosure statements were all examined as witnesses and the pointing out memos were also duly exhibited during trial. The confessional statement of Ajay Basumatary (Exhibit- 379) and Onsai Boro (Exhibit- 489), according to Mr. Keyal, has been recorded by following the due process of law and the same clearly brings into light the conspiracy theory. Contending that the prosecution has examined seizure witnesses, vehicle owners, CBI officials, Ballistic Experts, CFSL experts, prosecution sanctioning authority and judicial officers, apart from other witness numbering 650 in total, Mr. keyal submits that the evidence adduced by the prosecution was sufficient to establish the charge brought against the accused Page No.# 27/198 persons beyond reasonable doubt.
41. Insofar as the arguments advanced by the appellants' counsel regarding non- furnishing of certificates under Section 65B of the Indian Evidence Act, Mr. Keyal has submitted that the e-mails were downloaded in presence of accused/ appellant Ranjan Daimari and independent witnesses after the password was furnished by the accused Ranjan Daimari himself. He has argued that the disclosure statement of Ranjan Daimari would clearly go to show that there is no dispute about the fact that the emails were downloaded from his account. Since those emails clearly depicted that the accused/ appellant Ranjan Daimari was connected with the NDFB and was in fact the chief of the said organization, submits Mr. Keyal, the learned trial court has rightly convicted him as the kingpin of the conspiracy.
42. Mr. Keyal has also submitted that the conviction of the accused is based on the evidence adduced by the prosecution witnesses but not the statements of the witnesses recorded under Section 164 Cr.P.C. as has been alleged. Those statements, however, had been referred to only to corroborate the testimony of the witnesses.
43. In the above context, Mr. Keyal further submits that the fact that the accused No. 1 Ranjan Daimari was the Chairman of a banned organization was not only established from the testimony of PW-646 but also from the application filed by him before the High Court praying for grant of bail wherein, it has been clearly projected that he is the chairman of the NDFB. Mr. Keyal further submits that the notification dated 23-11-2006 issued by the Govt. of India, Ministry of Home Affairs (Exhibit- 656) as well as the schedule of UAP Act, 1967 would leave no room for doubt that the NDFB is Page No.# 28/198 a terrorist organization and the accused No. 1 Ranjan Daimari was its chairman. The said fact, according to Mr. Keyal, also finds due support from the evidence of PW-302 Manjit Basumatary wherein, there was no cross-examination in respect of the evidence adduced by the said witnesses on the above aspect. Mr. Keyal has also argued that although specific questions, in the form of question Nos. 1, 6, 7 and 8 was put to the accused No. 1 Ranjan Daimari while recording his statement under Section 313 Cr.P.C., he has not denied the suggestions made to the effect that he was the chairman of the NDFB. Under the circumstances, submits Mr. Keyal there is no scope for this Court to interfere with the conclusion drawn by the learned Special Judge to the effect that accused No. 1 Ranjan Daimari was in fact the chairman of the banned outfit NDFB on the date on which the incident had occurred.
44. In support of his above arguments Mr. Keyal has relied upon and referred to the following decisions:-
Dhal Singh Dewangan Vs. State of Chhattisgarh reported in 2016 (16) SCC 701 paragraph 24, Ramnaresh Vs. State of Chhattisgarh reported in 2012 (4) SCC 257 paragraphs 21, 49, 50, 51, 52, Rafiq Ahmed Vs. State of U.P. reported in 2011 (8) SCC 300, State of U.P. Vs. Lakshmi reported in 1998 (4) SCC 336, paragraphs 8, 9, 10, 11, Joseph S/o Kooveli Poulo reported in 2000 (5) SCC 197 paragraph 14, Shankaria Vs. State of Rajasthan reported in AIR 1978 SC 1248, paragraphs 37, 42, 49, 51, 52, Rameshbhai Mohanbhai Koli & Ors. Vs. State of Gujarat reported in 2011 (11) SCC 111, paragraphs 16, 17, 18; Attar Singh Vs. State of Maharashtra reported in 2013 (11) SCC 719, paragraphs 14 - 17; State of Page No.# 29/198 Himachal Pradesh Vs. Jeet Singh reported in 1999 (4) SCC 370 paragraphs 25, 26, 27, 28; Jaffar Hussain Dastagir Vs. State of Maharashtra reported in 1969 (2) SCC 872 paragraphs 4, 5, 7, 8; Balbir Singh Vs. State of Punjab reported in AIR 1957 SC 216 paragraph 15; Pyarelal Bhargava Vs. The State of Rajasthan reported in AIR 1963 SC 1094 paragraph 7, Pakkirsamy Vs. State of Tamil Nadu reported in 1997 (8) SCC 158 paragraph 12; Haricharan Kurmi Vs. State of Bihar reported in AIR 1964 SC 1184 paragraph 11; Yash Pal Mittal Vs. State of Punjab reported in 1977 (4) SCC 540 paragraphs 8, 9; State of Tamil Nadu Vs. Suresh Rajan reported in 2014 (11) SCC 709 paragraph 32; Earabhadrappa @ Krishnappa Vs. State of Karnataka reported in 1983 (2) SCC 330 paragraphs 7, 8; Rao Shiv Bahadur Singh & Anr. State of Vindh-P reported in AIR 1954 SC 322 paragraph 25, Shyamal Ghosh Vs. State of West Bengal reported in 2012 (7) SCC 646 paragraph 45 (Hostile Witness), paragraphs 50, 57 (Delay in examination of witnesses), paragraph 58 (Defective or illegal confession), paragraphs 60, 61, 65 (Absconding), paragraphs 66 - 71 (Omission), paragraphs 84 - 88 (circumstantial evidence) and State of H.P. Vs. Lekh Raj & Anr. reported in 2000 (1) SCC 247 paragraph 10.
45. We have bestowed our anxious considerations to the rival submissions made at the Bar and have also carefully gone through the materials available on record. We now propose to deal with the contentious issues raised in these appeals as here- under.
Page No.# 30/198 A) Objections raised by the appellants' counsel on the ground of multiple framing of charge against the accused persons :-
46. In order to examine the above plea raised by the learned senior counsel for the appellants, we have examined the Lower Court Record (LCR) and find that the matter was committed for trial to the Court of learned Sessions Judge, Kamrup (Metro) by order dated 28/02/2011 passed by the learned Special Judicial Magistrate, Assam. On 14/03/2011, the matter was fixed for consideration of charge but it appears that on that day, charge could not be framed by the learned Judge. On 29/08/2011, charge was framed against 14 accused persons, viz. (1) Sri Ranjan Daimari @ D.R. Nabala @Lasdum @ Loudum, (2) Sri Nilim Daimari @ D. Nizwmsa, (3) Sri George Boro @ John @ B. Jwangkhang, (4) Smt. Jayanti Brahma @ Jugami, (5) Sri Ajoy Basumatary @ B. Aogai, (6) Sri Khargeswar Basumatary @ Rahul Brahma @ Kharamswar, (7) Sri Prabhat Bora @ Tepa, (8) Sri Raju Sarkar, (9) Sri Rajendra Gayari @ Rajen @ Rifikhang, (10) Sri Mudai, (11) Sri Mridul Gayari, (12) Sri Onsai Boro @ Ajit Boro, (13) Sri Lokra Basumatary @ Lobo and (14) Sri Indra Brahma. As many as 17 distinct and different charges were framed against these 14 accused persons. Thereafter, on 06/10/2015, charge was framed against the 15 th accused person, viz. Ms. Baishagi Basumatary @ B. Bithurai. On the basis of these 17 charges framed by the learned trial Court, the 15 accused person were made to face trial.
47. We also find from the record that the Additional Sessions Judge, Kamrup, Guwahati Ms. M. Rongpi had earlier prepared a draft of the 17 charges proposed against the accused persons but the same does not bear the seal and signature of the learned Judge. Therefore, it cannot be said that charge was framed against the Page No.# 31/198 accused persons on that occasion. It also appears from the record that the trial against the accused persons was conducted based on the 17 charges framed against the 15 accused persons by order dated 29/08/2011 and 06/10/2015 respectively. The lower court records do not contain charge framed against the above noted fifteen accused persons on any other date.
48. We also find from the materials available on record that at no point of time the appellants had made any complaint before the learned trial Court with regard to multiple framing of charge against them nor had the appellants pointed out as to in what manner prejudice has been caused to them due to the orders dated 29/08/2011 and 06/10/2015 passed by the learned trial Court framing charge against the accused persons. Mr. Bhattacharyya has also submitted that such a plea is being raised on behalf of the appellants for the first time before the appellate Court. Situated thus and having regard to the peculiar facts and circumstances of this case, we do not find any good ground to hold that the accused persons had suffered any prejudice due to multiple framing of charge against them. The learned senior counsel for the appellants has also submitted in his usual fairness that even if the said contention of the appellants is accepted by this Court, it would not be possible nor practicable to go for re-trial.
B) Objection as to delay in investigation and conclusion of trial :-
49. As noticed above, the prosecution case is that the accused persons being members of the banned organization had carried out the serial bomb blasts in nine different locations in the State of Assam pursuant to a conspiracy. Initially, Page No.# 32/198 investigation in the connected cases were taken up by the Assam Police but later on, fresh cases were registered by the CBI and thereafter, CBI took over the investigation. During the course of investigation, the CBI had to follow multiple leads, visit a number of places, record the statements of 871 witnesses beside collecting voluminous documentary and material evidence including the opinions of FSL experts on the various seized articles. From the materials available on record, it is discernable that in their effort to conduct investigation for collecting evidence pertaining to crimes of this nature the CBI had to undertake a gigantic exercise which would undoubtedly be a time consuming affair. Being conscious of the delay that had already taken place in the matter, all the cases were clubbed together for trial and transferred to the court of learned Special Judge for expediting the trial. Although it is desirable that trial in such cases be concluded as expeditiously as possible, yet, in a criminal trial involving such large number of witnesses, some amount of delay was inevitable. We agree with Mr. Bhattacharyya that the prosecution has needlessly examined a large number of witnesses more particularly those witnesses who have suffered losses due to damage of their properties as well as in some other categories but what has to be borne in mind that it is always a matter of discretion of the prosecuting agency to decide on the quality and quantity of evidence it choses to adduce in a particular case so as to establish the charge brought against the accused. Even assuming that examination of some of the witnesses was avoidable, yet, those would be views in hindsight and hence, cannot afford a justifiable ground for to the court to presume that a number of witnesses were examined only to delay the trial.
50. It also appears from the impugned judgment and order passed by the Page No.# 33/198 learned Special Judge that during trial, as many as 5 Public Prosecutors were engaged by the CBI but due to language problem, some of the Public Prosecutors had to be changed, which had also contributed to the delay in concluding the trial. From the above, it is evident that some delay has been caused in concluding the trial but the same was on account of factors that were apparently beyond the control of the prosecution. Our attention has not been invited to any instance of deliberate delay during investigation or trial which can be specifically said to have caused prejudice to the appellants/ accused persons. Therefore, having regard to the peculiar facts and circumstances of this case, we are of the view that the said aspect of the matter need not detain this court.
C) Whether the prosecution has succeeded in proving that NDFB was banned organization and an unlawful association :-
51. Coming to the arguments advanced by the appellants counsel that the prosecution has not been able to prove that NDFB was a terrorist organisation and an unlawful association we deem it appropriate to refer to the relevant provisions of the statute dealing with the aforesaid aspects.
52. Section 2(m) of The Unlawful Activities (Prevention) Act, 1967 (for short "Act of 1967") defines terrorist organization which reads as follows :-
"Section 2(m) - "terrorist organisation" means an organisation listed in the Schedule or an organisation operating under the same name as an organisation so listed;"
53. An "Unlawful association" has been defined in Section 2(p) which is Page No.# 34/198 reproduced herein below :-
"Section 2 (p) - "unlawful association" means any association,--
(i) which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity; or
(ii) which has for its object any activity which is punishable under Section 153A or section 153B of the Indian Penal Code (45 of 1860), or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity: Provided that nothing contained in sub-clause (ii) shall apply to the State of Jammu and Kashmir;"
54. According to Mr. Bhattacharyya, although there is a gazette notification issued by the Central Government on 23/11/2006 declaring that the NDFB is a banned organisation under the provisions of sub-section 3 of section 3 of Unlawful Activities (Prevention) Act, 1967, yet, the said notification has not been adduced in evidence by the prosecution in accordance with the requirement of section 81 of the evidence Act. In order to appreciate the said argument, it would be necessary for us to refer to the provisions of section 81 of the Evidence Act, 1872, which is reproduced herein below :-
81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents.--The Court shall presume the genuineness of every document purporting to be the London Gazette, or any Official Gazette, or the Government Gazette of any colony, dependency of possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament of the United Kingdom printed by Page No.# 35/198 the Queen's Printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
55. There is no doubt or dispute about the fact that by issuing the gazette notification (Ext- 314) dated 23/11/2008, the Central Government had extended the ban imposed on the NDFB . The said document has been brought on record by the prosecution witness. We find from the record that Ext- 314 was brought on record by Sri Supriyo Kumar Roy (PW- 457) who was serving as the Joint Secretary to the Government of Assam, Home Department. The Gazette Notification dated 23.11.2006 (Ext-656) has been exhibited by the I.O. Sri N. S. Yadav i.e. PW-646.
56. A perusal of the notification dated 23.11.2006 goes to show that the Bodo Security Force, which was rechristened as National Democratic Front of Bodoland (NDFB), had its professed aim of liberation of Bodoland through the process of secession of the aforesaid areas from India. The notification further takes note of the fact that the NDFB has been working in alliance with other armed secessionist organizations of the North East region so as to carry on with the struggle for national liberation of the Indo- Burma region in alliance with likeminded organizations of that region. In view of the above activities of NDFB the Central Government was of the opinion that the NDFB, having agreed to abjure violence, has continued to indulge in illegal and violent activities intended to disrupt the sovereignty and territorial integrity of India and also to align itself with other unlawful associations like United Liberation Front of Assam etc. In the notification dated 23.11.2006 the nature of activities Page No.# 36/198 indulged in by the NDFB have been laid down which are reproduced herein below for ready reference :-
"AND WHEREAS, the Central Government is of the opinion that the NDFB having agreed to adjure violence has continued to -
(i) Indulge in illegal and violent activities intended to disrupt or which disrupt the sovereignty and territorial integrity of India in furtherance of its objective of achieving a separate Bodoland;
(ii) aligned itself with other unlawful associations like the United Liberation Front of Asom and outfits like the National Socialist Council of Nagaland (Isac-Muivah) to create a separate Bodoland;
(iii) in pursuance of its aims and objective, engaged in unlawful and violent activities thereby undermining the authority of the Government and spreading terror and panic among the people;
(iv) indulge in extortions of money from businessmen, Government officials and other civilians in addition to acts of kidnapping for ransom with a view to finance and execute plans for creation of a separate Bodoland;
(v) embark on a systematic drive for recruitment of fresh cadres with a view to continuing its terrorist and insurgency activities;
(vi) create carnage and ethnic violence resulting in killings, destruction of property and exodus of thousands of non-Bodos inhabiting in Bodo Page No.# 37/198 dominated areas in Assam with a view to spread panic and insecurity among non-Bodos and forcing them to migrate from Bodo areas;
(vii) establish camps and hideouts across the Country's border to carry out its secessionist activities;
(viii) obtain assistance from, anti-India forces in other countries to procure arms and other assistance in their struggle for creation of a separate Bodoland;
And Whereas the Central Government is further of the opinion that the violent activities include -
(i) 58 violent incidents in 2004, killing 60 persons including one personnel of security forces;
(ii) 21 violent activities in 2005, killing 4 persons;
(iii) 15 violent incidents in 2006 (upto 31st August, 2006), killing 9
persons including 5 personnel of security forces."
57. Taking note of the activities indulged in by the NDFB, the Government of India, in exercise of powers conferred by sub-section (1) of section 3 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) had declared the National Democratic Front of Bodoland as an unlawful association.
58. It would be pertinent to note herein that Section 35 of the Act of 1967 lays down the provision for amendment of the schedule, etc of the Act. According to Section 35(1), the Central Government may by notification in official gazette, add an Page No.# 38/198 organization in the 1st schedule or the name of an individual in the 4 th schedule. A perusal of the 1st schedule of the Act of 1967 (as amended), clearly goes to show that the name of NDFB has been included in the list of terrorist organization in entry no. 12. From the First Schedule of the Act of 1967, it is clear that NDFB has been declared to be a terrorist organization and the said declaration was not only made by a gazette notification but it has also been incorporated in the schedule of the Act by a statutory amendment of the First Schedule of the Act of 1967. Therefore, it is not a case where the prosecution has merely relied upon a gazette notification to prove that the NDFB was a terrorist organization and an unlawful association but the said stand is based on statutory provision as well.
59. The basic objection of the appellants is on account of the fact that those two gazette notifications, even though admissible in evidence, have not been proved in accordance with law. In other words, the objection is to the mode of proof of those documents. However, Ext-314 was produced by PW-457 who was a responsible official from the Home Department of the Government of Assam. There is nothing to establish that the said document was not produced from proper custody. Moreover, it also appears that the defense counsel did not raise any objection when Exts 314 and 656 were being exhibited by the prosecution witnesses nor have the witnesses been cross-examined on the above points. Therefore, the question that would arise for consideration of this court is as to whether, objection as to the mode of proof of those documents would be maintainable at this point of time.
60. Dealing with an issue of similar nature the Hon'ble Supreme Court has Page No.# 39/198 expounded the law in the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesarswami & V.P. Temple and another reported in (2003) 8 SCC 752. The observations made in paragraph 20 would be relevant and therefore, are being reproduced herein below :-
"20. The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above-said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object Page No.# 40/198 allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court ."
61. Again in the case of Muddasani Venkata Narsaiah (Dead) through L.R.s v Muddasani Saroja reported in (2016) 12 SCC 288, the apex court has observed that the rule of putting ones version during cross-examination is not merely a technical one but is one of essential justice. In case of failure of a party to put his case during cross-examination, the court would presume that the witness account has been accepted.
62. Applying the law laid down in the cases of R.V.E. Venkatachala Gounder (supra) and Muddasani Venkata Narsaiah (Dead) through L.R.s(supra), this court is of the opinion that the objection raised by the appellants as regards the mode of proof of the two gazette notifications viz. Exts 314 and 656 cannot be entertained at this stage.
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63. In the above context it would be worth noting here that section 57 of the Indian Evidence Act, 1872 enjoins a duty upon the court to take judicial notice of all laws in force in the territory of India as well as all public Acts passed by the Parliament. In view of the foregoing discussions, we are of the view that there were cogent materials available on record including statutory provision for the learned trial court to arrive at a conclusion that at the time of the occurrence, NDFB was a banned terrorist organization and an unlawful association within the meaning of the Act of 1967.
D) Objection as to the procedure followed in declaration of Approvers :-
64. According to the case projected by the prosecution, accused persons Anup Kumar Boro, Hemraj Mushahary and Dasharath Basumatary were declared as approvers and accordingly, their statements were recorded by the learned Magistrate. The learned senior counsel for the appellants has argued that none of those accused persons were granted pardon by the court and therefore, they could not have been treated as approvers. Notwithstanding the same these accused persons had been un-conditionally released.
65. We find from the perusal of the impugned judgement of the learned trial court that by order dated 22-11-2008 passed by the learned Chief Judicial magistrate, Barpeta, accused Anup Kumar Boro @ Nala was made an approver. Likewise, it appears that the learned Chief Judicial magistrate, Bongaigaon had recorded the statements of accused Hemraj Mushahary and Dasharath Basumatary on being Page No.# 42/198 produced by the Investigating Officer with a request to make them as approver on the ground that those accused persons have confessed before him that they were involved in the bomb blast case. However, the orders passed by the learned Chief Judicial Magistrates, Barpeta and Bongaigaon, as referred to above, are not available in the records. Be that as it may, there is no dispute between the parties about the fact that none of those accused persons were tendered pardon by the court. It appears that accused Hemraraj Mushahary had died in an accident during trial. However, evidence of accused Anup Kumar Boro (PW-615) and Dasharath Basumatary (PW-488) have been recorded.
66. Section 306 CrPC provides that the court may tender pardon to accomplice on condition of making full and true disclosure of the whole circumstances within his knowledge related to the offence. However, as noted above, none of those accused persons had been tendered pardon by the court. Rather, it appears that the Investigating Officer had made a prayer before the court to make them approver merely because they had made confession before the I.O. In other words, although the expression approver has been used by the prosecution, yet, in reality, it appears the statement of these accused persons were recorded presuming those to be their confession. We,therefore, find ourselves in agreement with Mr. Bhattacharyya, learned senior counsel for the appellants that there is no approver in this case. The said position has also been fairly accepted by Mr. Keyal. E) Evidence adduced by the prosecution not sufficient to prove the charge brought against the accused persons :-
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67. The prosecution has examined a number of witnesses to prove and establish that the bombs had exploded in nine different location on 30-10-2008 in between 11:20 am to 11:30 am. These witnesses can be broadly categories into four groups 1) Witnesses who had seen the dead bodies and lost their near relatives, acquaintances in the blasts, 2) Injured victims 3) witnesses whose properties had been destroyed and 4) the Medical Officers. Since the occurrence of the bomb blasts on 30-10-2008 at nine different places in Assam as well as the large scale destruction caused to human lives and properties is not in dispute, hence, we do not consider it necessary to burden this judgment by discussing the testimonies of all the witnesses of these four categories. However, evidence of some of the witnesses of these categories, considered by the learned court below, is being referred to here-in-below for the purpose of projecting the intensity of the blasts and the damages caused thereunder.
F) Witnesses who have seen the dead bodies and lost their near relatives and acquaintances -
68. PW-3 Makibul Haque has stated in his deposition that he is a practicing lawyer and has deposed that on 30.10.2008, at around 10:00 A.M., he had reached the C.J.M. court, Guwahati and parked his motorcycle in the parking place inside the court campus. While he was sitting in the office of the Bar Association, at around 11:10 A.M., he had heard a loud sound and the intensity of the sound shook the Bar Association building. The articles on the table fell down and the windows also broke. Then he went out and saw that a huge fire had broken out. The fire had burned the Page No.# 44/198 vehicles parked in the parking area. He shifted his motor cycle to a safe place and went towards the nearby Forest Department's Office. For a few minutes, he could not hear anything and when he became normal, he had enquired with his colleagues. He saw some persons lying injured and there were some dead bodies lying scattered. Later on, he came to know that the blast had killed one lady advocate, namely Dipamoni Saikia, an Advocate's clerk and some other persons.
69. PW- 12, Sri Dipak Kr. Das has stated in his deposition that at the relevant time, he was the General Secretary of Lawyers' Association, Guwahati. On, 30.10.2008, at around 11:20 A.M., while he was present in the Lawyers' Association office, he had heard a loud sound coming from the courtyard of the C.J.M. court complex. The blast shook the Lawyers Association building and broke the window panes. Immediately, he went to the courtyard of the C.J.M. court complex and saw black smoke in the sky. He also saw that four-wheeler and two wheelers were burning and some dead bodies were lying on the ground. Limbs of human were lying scattered. This witness has further deposed that Shri Aswini Mahanta, an employee of the Lawyers' Association and several advocates had sustained injuries. He and the other Bar Association members had sent the injured victims to the MMC and GMC hospitals for treatment. The blast had killed three Advocates namely, Dipamoni Saikia, Bipul Nath and Anup Kumar Bhuyan and one employee of Lawyers' Association Mahesh Saud. The blast also killed an advocate's clerk namely, Rana @ Abdul Kalam. Many litigants had also sustained injuries. The blast had caused damage to 24 four-wheelers and 52 two-wheelers. The blast had also damaged the Lawyers' Association's building and the C.J.M. court building. One Judicial Magistrate namely, Mr. Darak Ullah, had also Page No.# 45/198 sustained injuries. On 06.11.2008, he lodged an FIR reporting the incident to the Panbazar police Station.
70. PW-32 Dr. Hiteswar Dev Sarma has deposed that late Sunanda Talukdar was his brother-in-law and late Pranita Devi Talukdar was the wife of late Sunanda Talukdar. On 30.10.2008, at around 11:00 A.M., they had been to Ganeshguri for marketing. After parking their Maruti van bearing registration No. AS-01-F-6971 under the Ganeshguri Flyover, they went for marketing and when they returned to the parking place, a bomb had exploded under the Ganeshguri flyover. Sunanda Talukdar died on the spot and Pranita Devi Talukdar sustained grievous injuries. Their vehicle was also totally damaged. Pranita Devi Talukdar was shifted to the Gauhati Medical College and Hospital (GMCH), Guwahati for treatment. But, as her condition was serious, she was shifted to the GNRC Hospital, Guwahati. From there, she was shifted to the Apollo Hospital, New Delhi but, she had succumbed to her injuries on 13.10.2008.
71. PW-108 Pranjit Kumar Bhuyan has deposed that late Anup Kumar Bhuyan was his elder brother. Anup Kumar Bhuyan was an Advocate. On 30- 10-2008, at around 11:30 AM, while his elder brother Anup Kumar Bhuyan was present in the court complex of Chief Judicial Magistrate, Kamrup (M), Guwahati, a bomb had exploded and he died on the spot. The State Government paid them compensation of Rs. 3,00,000/- (Rupees three lakh) only, for the death of his elder brother Anup Kumar Bhuyan. Later on, he came to know from the electronic and print media that the NDFB had caused the bomb blast. He had read in the news paper that the accused Page No.# 46/198 Ranjan Daimari had confessed about the same.
72. PW-201 Islamuddin has deposed that about eight / ten years ago, his cousin brother Hussain Ali died in a bomb blast that had occurred at Barpeta Road wholesale vegetable market. The dead body of Hussain Ali was taken to the Barpeta Civil Hospital for postmortem examination. He had identified the dead body before the doctor.
73. PW-212 Hasmat Ali has deposed that in the year 2008, on a Thursday, while his father Abdul Rahman had been to the Barpeta Road wholesale vegetable market, a bomb had exploded in the market and his father died in that blast. Having learnt about the death of his father, he went to the Barpeta Road police station and found the dead body of his father. He and his elder brother Hussain Ali had identified the dead body.
74. PW-213 Sahjahan Ali has deposed that late Saiful Islam was his younger brother. About nine / ten years ago, one day, Saiful Islam had been to Barpeta Road and while he was returning from the market, a bomb exploded at Choudhury Market, Barpeta Road and Saiful Islam died in the blast. Having learnt about the blast, he went to the Barpeta Road police station and the police told him that they had sent Saiful Islam to the Barpeta Civil Hospital. He then went to the Barpeta Civil Hospital and found the dead body of Saiful Islam there.
75. The other witnesses of this category whose evidence is available on record are - P.W.-87 Kabin Chandra Kalita, PW-93 Shri Deba Kumar Saloi, PW-96 Shri Shantanu Bhattacharya, PW-98 Shri Gupi Kanta Medhi, PW-102 Mrs. Minoti Saikia, PW-107 Shri Page No.# 47/198 Mobaraque Hussain, PW-113 Shri Dipjyoti Medhi, PW-116 Shri Dipjyoti Deka, PW-120 Shri Ajmal Haque, PW-126 Shri Purandar Talukdar, PW-135 Smt. Jonaki Kalita Pathak, PW- 139 Shri Sanjitb Kumar Das, PW-146 Shri Arup Hazarika, PW-150 Shri Jagat Kalita, PW- 154 Smt. Pompa Chakravarty, PW-156 Shri Himangshu Das, PW-157 Shri Niipul Das, PW- 159 Shri Mohan Chandra Das, PW-167 Shri Arup Deka, PW-169 Shri Niren Barman, PW- 170 Shri Kamleswar Teron, PW-177 Smt. Padmini Kumari, PW-180 Shri Kailash Das, PW- 186 Shri Minar Ali, PW-188 Shri Ajahar Ali, PW-190 Smt. Roushanara Khatun, PW-221 Shri Nurul Islam, PW-230 Shri Sujoy Das, PW-373 Shri Aswini Mahanta, PW-363 Smt. Sewlali Deka, PW-381 Ramesh Deb Sharma, PW-382 Shri Ashim Boro, PW-392 Shri Rama Kanta Das, PW-393 Smt. Labanya Das, PW-395 Shri Tapan Das, PW-396, PW-403 Shri Ajit Baishya, PW-410 Shri Narayan Nath, PW-411 Shri Alimuddin Ahmed , PW-412 Shri Biren Haloi, PW-415, Smt. Arati Aich, PW-417 Shri Jiten Kalita, PW-429 Shri Mirzan Ali, PW-433 Shri Neel Kamal Das, PW-434 Smt. Jinnatun Nessa, PW-444 Shri Sorhab Ali, PW-461 Shri Debesh Chandra Deka, PW-463 Shri Hemen Chandra Kalita, PW-464 Shri Kandarpa Das,PW-517 Shri M. Talimoa, PW-521 Shri Dilip Mandal, PW-539 Shri Nayanmoni Bharali and PW-542 Shri Nabin Chandra Nath.
G) Injured victims -
76. PW-5 Riajul Hussain Ahmed has stated in his deposition that he is a practicing advocate and has deposed that on 30.10.2008, at around 10:00 A.M., he had reached the C.J.M. Court and after parking his motorcycle in the parking place, went to the Lawyers' Association office. After some time, while he was climbing the stairs to go to the first floor of the C.J.M. court building, he heard a loud sound of explosion Page No.# 48/198 and saw that the windows of the court building were broken. Some broken pieces of glass had hit him and he had sustained cut injury on the left side of his face. The people shouted that a bomb had exploded. He then went out and saw that two- wheelers and other vehicles parked in the parking area were burning. Thereafter, along with the injured advocate Mantu Das, he went to the MMC Hospital, Panbazar and availed medical treatment.
77. PW-332 Narayan Saha has deposed that he used to work at the Angashree Clothes Store at Choudhury Shopping Complex, Barpeta Road. On 30.10.2008, at around 11:20 AM, when he was present in the said shop, he had heard a loud sound and fell down and sustained injuries on his right leg. He was shifted to the Barpeta Road Civil Hospital for treatment. From there, he was shifted to the Barpeta Civil Hospital.
78. PW-226 Hridoijit Barman has deposed that on 30.10.2008, he was posted as the Additional Superintendent of Police (Headquarters) at Bongaigaon. On that day, at around 08:15 AM, he had received information from S.I. Rustom Brahma that a motorcycle was lying abandoned in front of the petrol pump near the Mayapuri flyover, Bongaigaon and there was an ammunition box in the tool box of the motorcycle. Suspecting the ammunition box to be a bomb, they brought a crane and shifted the motorcycle to a field below the flyover. Thereafter, he brought a non linear junction detector from the Police Reserve and checked the ammunition box. During checking, a red light blinked from which, they could know that there was a circuit. Then they brought a bomb blanket from the Police Reserve and covered the Page No.# 49/198 ammunition box with the bomb blanket. They had also dispersed the crowd that had gathered there. Thereafter, they informed the bomb defusal squad of the Army stationed at Panbari. But, while they were leaving that area, the bomb exploded and he and a captain of the Army present there, namely Barun Rai, were thrown away. Splinters of the bomb hit his leg and chest wall and he and the Army captain Barun Rai were shifted to the Lower Assam Hospital, Bongaigaon.
79. PW-260, Smti. Arati Sarkar has deposed that she was a vegetable vendor. On the day of the occurrence, while she was selling vegetables at the Kokrajhar vegetable Market, a bomb had exploded in the market and splinters of the bomb hit on her head, right hand and other parts of the body and she became unconscious. She was shifted to the Kokrajhar Civil Hospital for treatment. She has not yet fully recovered from the injuries sustained in the blast.
80. PW-266, Lawjeng Basumatary has deposed that on 30.10.2008, at around 11:30 AM, while he had been to the Barabazar, Kokrajhar, a bomb had exploded in the market and splinters of the bomb hit his right leg and left hand. He was shifted to the Kokrajhar Civil Hospital for treatment.
81. PW-298, Vijay Kumar Pal has deposed that he had a temporary cosmetics shop at Barabazar, Kokrajhar. On 30.10.2008, at around 11:30 AM, while he was present in his said shop, a bomb exploded near the Kali Mandir and splinters of the bomb hit his forehead. He was shifted to the Kokrajhar Civil Hospital for treatment.
82. PW-203, Gopal Saha has deposed that in the year 2008, he had a Sweet stall at the Barpeta Road wholesale vegetable market. On 30-10- 2008, at around 11:20 Page No.# 50/198 am, while he was proceeding to a nearby tea stall, a bomb exploded and he had sustained severe injuries on the left hand and became unconscious. He was shifted to the Barpeta Road Hospital.
83. PW-421 Abdul Kuddus has deposed that he was a vegetable vendor. On 30- 10-2008, he had been to the Kokrajhar Vegetable market for purchasing vegetables. At around 11:30 AM, while he was purchasing vegetables, a bomb exploded near him and splinters of the bomb hit his right leg, as a result of which, he had sustained grievous injuries. He was shifted to the Kokrajhar Civil Hospital for treatment and was admitted therein. He was discharged after six/seven days.
84. Other witnesses of this category whose evidence is available on record are - PW-88 Shri Lohit Kumar, PW-107 Shri Mobaraque Hussain, PW-114 Shri Jame Das, PW115 Shri Bishwa Das, PW-118 Shri Debabrata Goswami, PW-119 Shri Tailendra Nath Das, PW-120 Shri Ajmal Haque, PW-127 Shri Jiten Haloi, 135 Smt. JonakiKalita Pathak, PW-137 Mrs. JonaliTamuli, PW-138 Ms. Chandamita Das, PW-147 Shri Anil Jaiswal, PW- 149 Shri Har Kumar Sharma, PW-150 Shri Jagat Kalita, PW151 Shri Ranjit Kalita, PW-153 Shri Sahidul Islam,PW-163 Shri Kishore Baishya, PW-164 Shri Pradip Deka, PW-165 Shri Hiteshar Kalita, PW-166 Shri Shankar Bezbaruah, , PW-174 Shri Dinesh Choudhury, PW 178 Shri Montu Deka, PW-186, Shri Minar Ali, PW-187, Shri Jaynal Abedin, PW-189, Shri Dilip Basak, PW-191- Shri Rajab Ali, PW-192- Shri Abdul Majid, PW-193- Shri Hatem Ali, PW 194- Shri Mohammad Ali, PW -195 Shri Anowar Ali, PW- 196 Shri Arup Choudhury, PW-197, Shri Shiv Shankar Saha, PW- 198, Shri Abdul Kalam Azad, PW- 199, Shri Taleb Ali, PW-202, Shri Taser Ali Ahmed, PW-204- Shri Amir Hussain, PW-205, Shri Jyoti Kumar Page No.# 51/198 Das, PW-206, Shri Maibul Islam, PW-207, Shri Rakibul Hussain, PW-208, Shri Abdus Salam, PW-209, Sahjamal Mia, PW-210, Shri Prakash Mandal, PW-211, Shri Harunal, PW - 230, Shri Sujoy Das, PW-231, Md. Sumad Ali Akand, PW-232, Md. Mumtaj Paramanik, PW- 233, Shri Manser Ali, PW-234, Shri Kartik Saha, PW- 236, Shri Ram Niwas Prasad Gupta, PW - 237, Shri Tapan Pal, PW-238, Shri Badal Barman, PW-239, Smt. Jironi Basumatary, PW- 240, Shri Shankar Das, PW-241, Shri Bijoy Kumar Dutta,PW-242, Shri Anil Dutta, PW- 243, Shri Mamo Narzary, PW-244, Smt. Gesao Basumatary, PW - 245, Smt. Rahima Bibi, PW-246, Smt. Hasiton Bibi, PW-300, Shri Swapan Kumar Saha, PW-303, Smt. Momi Biswas, PW-304, Smt. Sangita Roy PW- 305, Shri Biswadeep Barman, PW306, Shri Nazir Qureshi, PW-307, Shri Suman Sarkar, PW-308, Shri Arjun Shah, PW- 309, Shri Fazar Ali, PW-310, Shri Santosh Roy, PW - 311, Shri Shanti Ranjan Dutta, PW-312, Shri Bipul Dutta, PW-313, Shri AnsulaDaimari, PW- 314, Shri Dev Chand Chauhan, PW-315, Shri Arun Debnath, PW-317, Shri Mamindra Das, PW-318, Shri Bikramjit Pal, PW- 319, Shri Samir Das, PW-320, Shri Ramananda Pathak, PW-321, Smt. Ranjana Pathak, PW-322, Shri Jugal Pathak, PW- 323 Shri Tapas Kumar Saha,PW-324, Shri Pradeep Pal, PW - 325, Shri Ashish Sarkar, PW -326, Shri Biplob Kumar Saha, PW-327, Shri Dhiren Das, PW 328 Shri Santosh Barman, PW 330 Shri Bipul Saha, PW 337 Amalesh Saha, PW 339 Shri Sanjiv Kumar Roy, PW 340 Shri Biswajit Chakravarty, PW 341 Shri Pradeep Chandra Gope, PW 342 Shri Chandi Arya, PW 343 Shri Gopal Karmakar, PW - 344, Shri Fanindra Barman, PW-346, Shri Dipankar Sutradhar, PW - 353 Shri Pradeep Saha, PW- 362 Shri Uttam Kakati, PW- 273 (373) Shri Aswini Mahanta, PW- 384 Shri Lal Mohan Boro, PW- 394 Shri Jayanta Das, PW- 395 Shri Tapan Das, PW- 403 Shri Ajit Baishya, PW- 406 Shri Samsul Hoque, PW - 407 Shri Dhrubajyoti Dutta,PW- 416, Shri Vicky Saha, PW- 417 Shri Page No.# 52/198 JitenKalita, PW- 421 Abdul Kuddus, PW- 422 Shri Ajay Kumar Moulik, PW- 425 Shri Ramjan Ali, PW- 426 Shri Maniruddin, PW- 427 Shri Abdul Barek , PW- 428 Shri Mannan Sarkar, PW- 430 Shri Kurban Ali, PW- 431 Shri Abdul Salam, PW- 432 Shri Abdul Mannaf, PW- 435 Shri Amir Ali, PW- 436 Shri Bulbul Hussain, PW- 437 Shri Anisur Rahman, PW- 438 Shri Dilowar Hussain, PW- 439 Shri Sadhan Mahanta, PW- 441 Shri Tafizuddin, PW- 447 Shri Binod Sharma, PW- 448 Shri BishnupadaSaha, PW- 460 Shri Satyajit Bora , PW- 464 Shri Kandarpa Das, PW- 507, Shri Akkash Ali, PW- 509 Shri Prasanta Dutta, PW- 543 Smt. Rohini Musahary, PW- 544 Smt. Basimoni Karketa, PW- 538 Abul Kalam Azad, PW- 549 Md. Sayed Ahmed, PW- 550 Shri Bipul Dey, PW- 563 Shri Biswajit Saha, PW- 566 Shri Satyaranjan Mitra. PW-86 Miss Sara Francis, PW- 100 Dr. Anjan Jyoti Bhuyan, PW-106 Shri Montu Kumar das, PW-107 Shri Mobaraque Hussain, PW-112 Shri Dilip Medhi, PW- 121 Shri Aftab Ali, PW-122 Md. Ashan Ali, PW-124 Smt. GolapiTumung, PW-126 Shri Purandar Talukdar, PW-131 Shri Ram Deb Shah, PW-140 Shri Manbir Sinha, PW-142 Shri Prabhunath Prasad, PW-145 Shri Keke Bania, PW-155 Shri Chandan Kumar Bhowmik,PW-234, Shri Kartik Saha, PW-297, Shri Abhijit Sikder, PW 329 Shri Prabin Ch. Das, PW 338 Gopal Acharjee, PW-345 Shri Makbul Hussain, PW- 392 Shri Rama Kanta Das, PW- 394 Shri Jayanta Das, PW- 395 Shri Tapan Das, PW- 408 Shri Hiranya Kumar Laskar, PW- 521 Shri Dilip Mandal.
H) Witnesses whose properties were destroyed in the blasts:
85. PW-81 Smti. Jeoti Kalita Barman has deposed that on 30.10.2008, at around 11:30/ 11:45 A.M., while she was entering into the CJM Court building after parking her Wagon R vehicle bearing registration No. As-01-B9285 inside the CJM court Page No.# 53/198 complex, a bomb exploded outside the court building and black smoke covered the entire area. They then fled. After sometime, when she came back to the place of occurrence, she saw that her Wagonr car was completely gutted in fire. Other vehicles parked there were also damaged. The blast killed Advocates Dipamoni Saikia, Anup Bhuyan and Bipul Nath. Advocate's clerk Rana and security-guard Mahesh Saud had also died in the explosion. Later on, she had lodged a claim with the insurer of her car and received compensation of Rs. 1,90,000/-.
86. PW-123 Sri Simanta Deka has stated in his deposition that he is a practicing advocate and has deposed that on 30-10-2008, at around 11:20 AM, while he was sitting in the Bar room, he had heard a loud sound and saw that a Maruti car was blown away about 30 feet above the ground. The vibration of the fire and sound destroyed four / five nearby trees and caused damage to the court premises. The blast also caused damage to the Bar building and the office building of the Deputy Commissioner, Kamrup (M) Guwahati. The blast occurred in front of his Maruti Wagon R car bearing registration No. AS-01-AB-6138 and his said car was burned in the fire.
When he went near his car, he saw limbs of human beings lying scattered. The blast had killed three advocates, namely Dipamoni Saikia, Bipul Nath and Anup Bhuyan. The blast also killed an advocates' clerk, namely Rana and an employee of the Bar Association, namely Mahesh Saud. The blast also killed some other persons but, their identities could not be confirmed as their bodies were burned beyond recognition. The blast had also burned about ten/ twelve vehicles, partially damaged about twenty vehicles and destroyed about sixty / seventy motorcycles. As his vehicle was insured, the insurance company had indemnified his loss.
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87. PW-394 Sri Jayanta Das has deposed that on 30-10-2008, accompanied by his mother Smt. Labanya Das, eldest sister Smt. Padmini Kumar, youngest sister Smt. Mamoni Saloi and youngest brother Shri Tapan Das, he had gone to Panbazar, Guwahati for purchasing clothes for his marriage. At Panbazar, he parked his Alto car bearing registration No. AS - 01-AB-0983 near the Church and entered into a clothe store. At around 11:30 AM, when they came out from the clothe store, a bomb exploded in front of the shop. The blast killed his youngest sister Mamoni Saloi and seriously injured his elder sister Smt. Padmini Kumar and mother Smt. Labanya Das. He and his brother Shri Tapan Das had sustained injuries. He saw many dead bodies near the blast site. His Alto car was badly damaged.
88. PW-28 Prahlad Kundu has deposed that he had a clothes store, under the name and style "Hangsha Bahini", at Ganeshguri. On 30.10.2008, a bomb exploded under the Ganeshguri flyover, near his said shop. The impact of the blast destroyed the front glasses of his shop. His employee Arup Talukdar sustained injuries in the blast and somebody shifted him to the GNRC Hospital. Next day, they found the dead body of Arup Talukdar in the GNRC Hospital. Arup Talukdar died due to the injuries sustained in the blast.
89. PW-112, Dilip Medhi has deposed that he has a grocery shop at the Bee Kay Tower, Ganeshguri. About nine years ago, one day, at around 11:00 AM, while he was present in his shop, suddenly he heard a loud sound. The impact of the sound threw away the articles of his shop. He then went out and saw that nearby shopkeeper, namely Mr. Das, was lying unconscious and another shopkeeper, Page No.# 55/198 namely Pabitra Deka was hit by a piece of tin. They shifted them to the GNRC Hospital, Guwahati. Many persons died in the blast. He sustained minor injuries. Many vehicles were burnt by the fire of the explosion.
90. PW-141 Mukunda Thakuria has deposed that he had a vegetable stall at Ganeshguri. On 30-10-2008, at around 11:00 am, while he was present in his vegetable stall, a bomb exploded under the Ganeshguri flyover. The blast killed some persons and destroyed the nearby shops. The blast also caused damage to his vegetable stall. The splinter of the bomb hit the vegetable vendor Pabitra Deka and he sustained injury on the chest. They shifted him to the Gauhati Medical College and Hospital and from there, to the GNRC Hospital. But, after two days, he succumbed to the injuries.
91. PW-168 Sundar Deka has deposed that he has a hotel at Ganeshguri. On 30- 10-2008, at around 11:20 am, while he was proceeding towards his hotel, a bomb exploded under the Ganeshguri flyover, in front of his hotel. The bomb was planted in a Maruti car type vehicle and the blast burned the said vehicle. The blast killed many persons and injured many others. The dead bodies and the injured persons were lying at the blast site and they sent the injured persons to the hospitals. The blast had also damaged the hotel building.
92. The other witnesses of this category whose evidence is available on record are
- PW-86 Miss Sara Francis, PW-87 Kabin Chandra Kalita,PW-95 Shri Sushanta Rudra, PW- 96 Shri Shantanu Bhattacharya, PW-97 Shri Pradip Kumar Konwar, PW-98 Shri Gupi Kanta Medhi, PW-101 Shri Prasanna Deorah, PW-102 Mrs. Minoti Saikia, PW-103 Shri Page No.# 56/198 Manas Garodia, PW-104 Smti. Ranjita Phukan, PW- 105 Mrs. Mintu Kalita, PW 109 Shri Kamal Barman, PW-112 Shri Dilip Medhi, PW-116 Shri Dipjyoti Deka, PW-118 Shri Debabrata Goswami, PW-121 Shri Aftab Ali, PW-125 Shri Gunajyoti Boro, PW-126 Shri Purandar Talukdar, PW-131 Shri Ram Deb Shah, PW- 132 Shri Ram Ghulam Shah, PW- 134 Shri Dulu Kumar Khaund, PW-136 Shri Mahendra Nath Deka, PW-140 Shri Manbir Sinha, PW-141 Shri Mukunda Thakuria, PW-142 Shri Prabhunath Prasad, PW-148- Shri Himangshu Sharma, PW-149 Shri Har Kumar Sharma, PW-150 Shri Jagat Kalita, PW-152 Shri Umesh Barman, PW-155 Shri Chandan Kumar Bhowmik, PW-156 Shri Himangshu Das, PW-157 Shri Niipul Das, PW-159 Shri Mohan Chandra Das, PW-161 Shri Mon Chandra Das, PW-162 Shri Shankar Baishya, PW-166 Shri Shankar Bezbaruah, PW-167 Shri Arup Deka, PW-172 Shri Manendra Deka, PW-173 Shri Kartik Paul, PW-174 Shri Dinesh Choudhury, PW-175 Shri Subhash Sharma, PW 179 Shri Pawan Kumar Agarwal, PW 180 Shri Kailash Das, PW 181 Shri Moinul Ali, PW- 196 Shri Arup Choudhury, PW- 200 Shri Rupam Prasad Barua, PW - 311, Shri Shanti Ranjan Dutta, PW-318, Shri Bikramjit Pal, PW-348, Shri Radha Kanta Roy, PW- 361 Shri Kamal Barua, PW- 391 Smt. Erra Hazarika, PW- 392 Shri Rama Kanta Das, PW- 404 Shri Debajyoti Dutta, PW- 405 Shri Nitai Boro, PW-407 Shri Dhrubajyoti Dutta, PW- 461 Shri Debesh Chandra Deka, PW- 467 Shri Maneswar Das, PW--476, Shri Shantanu Dey, PW- 501 Shri Thaneshwar Sharma, PW- 525 Shri Dhruba Jyoti Bora, PW- 537 Shri Nila Pankaj Baishya, PW-564 Shri Lal Babu Sah, PW- 565 Shri Shrabin Sah, PW- 581 Shri Atul Boro.
I) Medical Officers:
93. PW-33, Dr. Pradip Thakuria has stated in his deposition that he is Assistant Page No.# 57/198 Professor, Forensic Medicine, Gauhati Medical College and Hospital, Guwahati. He has deposed that on 31.10.2008, he had conducted postmortem examinations on the dead bodies of, (1) Yedukondalu (2) Sujit Acharjee and (3) Rohit Das in connection with the Dispur P.S. Case No. 1825/2008. In his opinion, the deceased died due to shock and hemorrhage as a result of the injuries sustained. All the injuries were anti-mortem in nature and consistent with the bomb blast incident.
94. PW-34 Dr. R. Chaliha has stated in his deposition that he is Professor & Head of the Department of Forensic Medicine, Gauhati Medical College & Hospital, Guwahati, who had conducted postmortem examinations on the dead bodies of the following blast victims, namely Yazul Haque, Nekib Ali, Hari Prasad Sarkar and Musaraf Ali. He has deposed that, in his opinion, the deceased died as a result of the injuries described in the postmortem reports. All the injuries were anti-mortem in nature and were caused by blunt force impact and consistent with the blasting effect of explosive substances. This witness has also proved the postmortem examination reports prepared by some other doctors of the Department of Forensic Medicine, Gauhati Medical College & Hospital and has deposed that the said doctors have also opined that the deceased had died due to the injuries sustained in the aforesaid bomb blast. PW 34 has proved that all the deceased died due to the injuries sustained in the aforesaid bomb blast.
95. PW-144 Dr. Kaustav Kumar Das has deposed that on 04.08.2008, Nilim Daimari was admitted in the Dispur Polyclinic and Nursing Home and was discharged on 07.08.2008. Ext. 173 (v) and Ext. 173 (xxi) are prescriptions relating to the treatment of Page No.# 58/198 Nilim Daimari written by him.
96. PW-89 Dr. Dipak Kumar Das had conducted postmortem examinations on the dead bodies of the deceased victims, viz. 1. Mahesh Chandra Saud, 2. Noor Hussain,
3. Ajit Nath, 4. Pitalu T-Yeptho, 5. Dometrvst, 6. Syntem, 7. Rajesh Choudhury and 8. Swadhin Das. This witness has deposed that in his opinion, all the deceased had died due to the injuries caused by blunt force impact, which were consistent with the bomb blasts incident.
97. PW-100 Dr. Anjan Jyoti Bhuyan has deposed that on 30.10.2008, he was working at the Dispur Polyclinic as a consultant ENT Surgeon. On that day, he had examined one Manoj Sharma who had suffered multiple lacerated injuries over face, neck and anterior chest wall. The injuries were caused by splinters of bomb blast. The injuries were grievous in nature. Ext. 177 is the injury report prepared by his assistant doctor, namely Dr. Bhupen Basumatary. Ext. 177 (1) is the signature of Dr. Bhupen Basumatary which he can identify. He has further deposed that on the same day, he had examined one Mrs. Nabalakhshmi Tahbildar, who had sustained injuries on the medial cantus of the right eye and eye-ball, multiple lacerated injuries over right and left upper arms, multiple abrasions over anterior chest wall and abdominal wall, injuries in the face, neck and anterior chest wall. The injuries were caused by splinters of bomb blast. The injuries were grievous in nature. Ext. 178 is the injury report prepared by his assistant doctor, namely Dr. Bhupen Basumatary. Ext. 178 (1) is the signature of Dr. Bhupen Basumatary, which he can identify.
98. The evidence of other witnesses of this category available on record are - PW-
Page No.# 59/198 99, Dr. Walliul Islam, PW-117 Dr. Santanu Sharma, PW-128 Dr. Dhiraj Purkasthya, PW- 129 Dr. Atanu Borthakur, PW-130 Dr. Gunajit Talukdar, PW-133 Dr. Ramananda Das, PW-143 Shri Nipanka Goswami, PW-214, Dr. Paresh Kalita, PW-216 Dr. Gunajit Patowary, PW- 227 Dr. Ilias Ali, PW-235 Dr. Kaushik Das, PW-354, Dr. Mantu Kumar Das, PW-355, Dr. Binay Kumar Das, PW-380 Dr. Kanak Chandra Das, PW-449 Dr. Shalini Bhasin Baruah, PW-450 Dr. Dewan Matiwur Rahman, PW-462 Dr. Himangshu Das, PW- 472 Shri Siddharth Phukan, PW-480 Dr. Parbati Kumar Doley, PW-481 Dr. Bimal Chandra Medhi, PW-482 Dr. Nihar Ranjan Biswas, PW- 519 Dr. Phaltanga Kungur Brahma, PW- 541 Smt. Reecha Pandey, PW- 546 Dr. Putul Mahanta, PW- 569 Dr. Madhurja Bhattacharyya, PW- 573 Dr. Bhaskar Borkotoky, PW-574 Dr. Asiruddin Ahmed, PW-576 Dr. Nitu Kumar Gogoi, PW-580 Dr. Iran Bharali, PW-603 Dr. Rishav Kumar Baruah.
99. Over and above the witnesses belonging to the four categories as mentioned above, the evidence of following Government Officials would have an important bearing in this appeal and therefore, are being discussed here-in-below.
J) Evidence of Officials :
100. PW-629, Khagen Chandra Das has deposed that on 30.10.2008, he was posted at the Dispur Police Station as an attached officer. On that day, at around 11:30 AM, a bomb exploded under the Ganeshguri flyover. The Officer-in-Charge of the Dispur Police Station lodged an FIR of the incident, registered the same as FIR No. 1419/08 and entrusted him to investigate the case. Accordingly, he had investigated the case. During the course of investigation, he found one completely damaged Maruti 800 car at the blast site and came to know that the bomb was planted in the said Page No.# 60/198 Maruti 800 car. He had verified the engine number of the said Maruti 800 car with the office of the District Transport Officer, Guwahati and the District Transport Officer, had informed him that the registration number of the said Maruti 800 car was AS-01-F-7747. The engine of the said car was sent to the FSL, Kahilipara, Guwahati for examination.
101. PW-222 Rajiv Kumar Bora, Commissioner & Secretary to the Govt. of Assam, Home & Political Department has deposed that on 25.05.2009, he had granted sanction to prosecute the accused Nilim Daimari and nineteen others for commission of offenses punishable under sections 10, 13, 16, 18 and 20 of the Unlawful Activities Prevention Act. The Ext. 216 is the order and Ext. 216 (i) is his signature in the last page. Ext. 216 (ii) to (vi) are his initials in the first six pages of the order. This witness has deposed that he had also granted sanction to prosecute the accused Nilim Daimari and nineteen others for commission of offenses punishable under Sections 121, 121A, 122 and 123 IPC. Ext. 217 is the order and Ext. 216 (i) is his signature in the last page and Ext. 217 (ii) to (vi) are his initials in the first six pages of the order.
102. PW-223, Prateek Hajela has deposed that on 20.05.2009, he had granted sanction to prosecute the accused Nilim Daimari and nineteen others for commission of offenses punishable under sections 3 and 4 of the Explosive Substances Act, 1908. Ext. 218 is the said sanction order and Ext. 218 (i) is his signature in the last page of the sanction order.
103. PW-225, Carol Narzary, Sanctioning Authority has deposed that after perusing the documents placed before them and applying their mind, they granted sanction to prosecute the accused persons.
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104. PW-612, Jishnu Barua, Sanctioning Authority has deposed that after perusing the documents placed before them and applying their mind, they had granted sanction to prosecute the accused persons.
105. PW-648, Utpalananda Sarma, Sanctioning Authority has deposed that after perusing the documents placed before them and applying their mind, they had granted sanction to prosecute the accused persons.
106. PW-635, Madhusudhan Thapa, the Second Officer-in-Charge of the Tura Police Station, West Garo Hills, Meghalaya has deposed that in the early morning of 04.09.2008, they had received secret information that some NDFB cadres were trying to cross over to Bangladesh and their intelligence team found that one suspected NDFB cadre was trying to go to Bangladesh from Akhongri bus station to Nokchi. He then went to Akhongri bus station and found that the accused Nilim Daimari @ D. Nizwamsa was the said suspected NDFB cadre. He then interrogated the accused Nilim Daimari @ D. Nizwamsa but, he could not give proper answers to his queries. Thereafter, he searched the accused Nilim Daimari @ D. Nizwamsa and recovered one pen drive, one mobile handset having Bangladeshi SIM card and one hand written letter in Bodo language addressed to "Hon'ble Sir" by one B. Jwngkhang, dated 02.09.2008. He then took the accused Nilim Daimari @ D. Nizwamsa to the Tura police station and registered Tura Police Station Case No. 156(9)/2008, under Section 121 IPC, r/w Section 6 and 20 of the Unlawful Activities (Prevention) Act, 1967, arrested Nilim Daimari on 04.09.2008 and got him remanded to judicial custody through the learned ADM, Tura Court. Ext. 313 is the seizure memo and Ext. 313 (2) is Page No.# 62/198 his signature therein. Ext. 616 is a certified true copy of the arrest memo and Ext. 616 (1) is his signature therein. Ext. 617 is a certified extract copy of the case diary. Ext. 617 (1) is his signature therein. Later on, Inspector Rathore of CBI approached the Tura court and filed a petition seeking possession of the seized articles. The petition was allowed.
107. In connection with Bongaigaon P.S. Case No.451 / 08, he had examined 65 grams soil marked as Ext.-A, one torn piece of cloth marked as Ext.-B and five pieces of iron marked as Ext.-C. After conducting proper chemical and analytical examination of the exhibits, he had arrived at the following conclusions: - Ext.-A, Ext.- B and Ext.-C contained TNT (Tri Nitro Toluene) which is a high explosive. He could not ,however, ascertain whether the Ext.-C was part of an exploded bomb or not. Ext. 491 is the report prepared by him and Ext. 491 (i) is his signature therein.
108. In connection with Barpeta Road P.S. Case No.262 / 2008, he had examined 20 grams of debris marked as Ext.-A and 3 broken pieces of iron marked as Ex- B. After conducting proper chemical and analytical examination of the exhibits, he had arrived at the conclusions that Ext.-A and Ext.-B contained traces of high explosive (RDX). Ext. 492 is the report prepared by him and Ext. 492 (i) is his signature therein.
109. In connection with Barpeta Road P.S. Case No.261 / 2008, he had examined 18 grams debris marked by them as Ext.- A and 3 pieces of iron marked by them as Ext.- B. After conducting proper chemical and analytical examination of the exhibits, he had arrived at the following conclusions: 1. Ext.-A and Ext.-B contained traces of RDX, which is a high explosive. 2. Nature of timing device used could not be determined Page No.# 63/198 from the Ext.-A and Ext.-B. Ext. 493 is the report prepared by him and Ext. 493 (i) is his signature therein.
110. In connection with Dispur P.S. Case No.1419 / 08, he had examined one damaged part of an engine marked as Ext.- A and 256 grams of debris, mixed with soil, marked as Ext.-B. After conducting proper chemical and analytical examination of the exhibits, he had arrived at the conclusions that Ext.-A was the damaged engine of a Maruti-800 car (Engine No. F8B IN 3043461). The engine was damaged due to an explosion taking place inside the car. Ext.-B contained Ammonium Nitrate and RDX. The serial No. of the front tyres attached were: (i) JK TYRE- ULTIMA XP- JK 7 B017401 DEC. 02 (Left hand side), (ii) MRF ZIGMA-VT-60005417277 (Right hand side). Ext. 494 is the report prepared by him and Ext. 494 (i) is his signature therein.
111. In connection with Panbazar P.S. Case No.398/08, he had examined one damaged part of an engine marked as Ex- A and 520 grams of soil marked as Ext.-B. After conducting chemical and analytical examination of the exhibits, he had arrived at the conclusions that Ext.-A was the part of a damaged engine of a Maruti-800 car (Engine No. F8DN 1074626). Ext.-A was damaged due to explosion taking place inside the car. Ext-B contained Ammonium Nitrate and RDX. Ext. 495 is the report prepared by him and Ext. 495 (i) is his signature therein.
112. In connection with Panbazar P.S. Case No.399 / 08, he had examined one part of a damaged engine marked as Ext.- A and 490 grams of soil marked as Ex-B. After conducting proper chemical and analytical examination of the exhibits, he had arrived at the conclusions that Ext.-A was a damaged part of a Maruti car (Engine Page No.# 64/198 No. F8B IN 303447). Ammonium Nitrate and RDX had been found in Ext.-B. The serial No. of the tyre attached to the engine was : (i) MRF-ZIGMA CC- RADIAL- 70- 60375376469. Ext. 496 is the report prepared by him and Ext. 496 (i) is his signature therein. Material Ext. XI is the Engine No. F8B-IN 3043461 of the above mentioned Maruti-800 car. Material Ext. XII is the Engine No. F8DN-1074626 of the above mentioned Maruti-800 car. Material Ext. XIII is the Engine No. F8B-IN-303447 of the above mentioned Maruti-800 car.
113. PW-606 Ravi Kumar Srivastava, Principal Scientific Officer, CFSL, New Delhi had examined the Pen Drive seized from the possession of the accused Nilim Daimari. He has deposed that the Pen Drive was of Transcend make, 512 MB capacity, Black/Orange color having black cap. He has computed the Hash value of the pen drive in write protection mode, using Encase software (v.4) and the Hash value was C05DBC91EB8F631A04F8CE027D4AD227. No errors were reported during the hashing process. The Pen Drive appeared to be undamaged with no loose parts or objects. He had retrieved all live as well as deleted data from the Pen Drive marked as "P1". He had also determined the information relating to the memory capacity and memory utilized in respect of the Pen Drive. After examination, he found that the Pen Drive was fully functional and undamaged. Ext. 526 (three sheets) is his report and Exts. 526 (i), 526 (ii) and 526 (iii) are his signatures therein. Material Ext. VI is the sealed cloth parcel bearing details of the case No. and the Exhibit bearing his initial with date. He had retrieved all the live as well as deleted data from the pen drive and prepared a copy in one CD. PW-606 has exhibited the parcel containing the articles seized from the possession of the accused Nilim Daimari by the PW-635 Madhusudhan Page No.# 65/198 Thapa vide Ext. 313 seizure list as Material Ext. VI. The Material Ext. VII is the office copy of the CD. He had prepared the copies of CDs on 16.04.2009 and fully burnt the same so that no data could be added later in the CDs at any stage. The Pen Drive seized from the possession of the accused Nilim Daimari contains articles regarding manufacturing of explosive devices, writings about NDFB, writings regarding how to establish as a self-sustainable Boro nation, etc.
114. PW-649 Dr. Sudhir Kumar Shukla has deposed that from 01.07.2009 to 31.01.2013, he was working as the Director, C.F.S.L., Chandigarh. In the year 2010, his Deputy Director namely, D. K. Kaushik had conducted examination of the exhibits received in connection with the cases. He had forwarded the reports prepared by D. K. Kaushik. Ext. 658 to Ext. 666 (nine reports) are the reports prepared D. K. Kaushik. He had forwarded the said reports to the concerned officials. Ext. 667, Ext. 668, Ext. 669, Ext. 670, Ext. 671, Ext. 672, Ext. 673, Ext. 674 and Ext. 675 are forwarding letters of the reports and Ext. 667(1), Ext. 668(1), Ext. 669(1), Ext. 670(1), Ext. 671(1), Ext. 672(1), Ext. 673(1), Ext. 674(1) and Ext. 675(1) are his signatures therein. D. K. Kaushik expired in the year 2013. This witness has deposed that he could identify the signatures of D. K. Kaushik. As per Exts. 658 to 666, the reports were prepared by D. K. Kaushik and he found Tri Nitrotoluene (TNT), Cyclotrimethylene Tri Nitramine (RDX) and Ammonium Nitrate in the exhibits that he had examined. Those are high explosives.
K) Evidence of Relatives of accused persons:-
115. PW-388, Babul Chandra Daimari has deposed that the accused Nilim Daimari is his younger brother. About ten years ago, the accused Nilim Daimari left home and Page No.# 66/198 thereafter, he never returned. The accused Nilim Daimari told the members of his family that he will go to Delhi for working in a company. But, later on, they came to know from newspaper reports that while trying to cross the Indo-Bangla border in Meghalaya, he was arrested by the police. Later on, he came to know that the accused Nilim Daimari was staying in Guwahati along with his friends Jinku and Raju.
116. PW-389, Powal Chandra Daimari has stated that he is the father of the accused Nilim Daimari. He has deposed that Nilim Daimari was staying in Ganeshguri and was studying computer technology. He has further deposed that the accused Nilim Daimari went missing and later on they came to know from the newspaper reports that while trying to cross the Indo-Bangla border in Meghalaya, he was arrested by the police.
117. We now turn to the evidence adduced by the prosecution side so as to establish the charge framed against each of the accused persons :-
L) Evidence against accused No.1/Ranjan Daimari
118. Sri Manjit Basumatary who is a registered contractor under the Government Department was examined as PW-302. This witness has deposed before the Court that since last 20 years he has been executing constructions works. He knows about the organization called National Democratic Front of Bodoland (NDFB). PW-302 has also stated that he is involved in the ongoing peace process between the NDFB and the Government of India and the Government of Assam. NDFB had entered into a cease-fire agreement with the Government and Sri Ranjan Daimari was its Chairman. This witness has further stated that Sri Govinda Basumatary was the Joint Secretary Page No.# 67/198 and Sri Dhiren Boro, the Vice President of NDFB. In the year 2009, Sri Dhiren Boro was the Chairman of NDFB. Ulafat was a member of the NDFB cadre. He has already expired. Sri Dhilthilang was the Army Chief of NDFB. He did not know the mobile numbers of Ulafat and Dhilthilang. During cross-examination PW-302 has maintained that he knew Ranjan Daimari, Govinda Basumatary, Dhiren Boro, Ulafat and Dhilthilang since he was involved in the ongoing peace process.
119. Sri Ismail Ali was examined as PW-499. This witness has deposed that in the year 2008 he was posted at the Dispur Branch of the State Bank of India as the Relationship Manager, Personal Banking. On 22.05.2010 he was directed by the Bank to go to the office of Special Branch of Assam Police at Kahilipara and report to Sri N. S. Yadav, Additional S.P., CBI. Accordingly, he went there and met Sri N. S. Yadav. Sri Ranjan Daimari, Sri Diganta Barman, Technical Director, NIC and 2/3 other persons were present there at that time. Sri Yadav took him to a computer room and asked him to sit there. Thereafter, N. S. Yadav had directed Ranjan Daimari to open his e-mail account and accordingly, he did so as has been mentioned in the disclosure statement Ext-415. This witness had identified his signature in Ext-415. He further deposed that thereafter, N. S. Yadav took computer printouts of the e-mails from the account of Ranjan Daimari. Ext-416 was the memo of the proceedings of opening of the e-mail accounts and Ext-416(i) was his signature. PW-499 has further deposed that Ext-417(i) to 417(xxiii) (23 sheets) were the printouts taken from the inbox of the e-mail account of Ranjan Daimari taken in his presence. This witness has further deposed that Exts-417(xxiv) to Ext-417(xlvi) were his initials therein. PW-499 has further stated that N. S. Yadav, Additional S.P., CBI took out computer printouts of the sent items of e-
Page No.# 68/198 mails from the e-mail account of Ranjan Daimari. Ext-418(i) to 418(xxiii) were the 33 printouts of "sent mails" from the e-mail account of Ranjan Daimari which was taken in his presence. Exts-418 (xxxiv) to 418 (LXvi) are his signatures therein. The witness has further stated that Ranjan Daimari had also opened two other e-mail accounts and Sri N. S. Yadav took out computer printouts of 8 e-mails from the said e-mail accounts of Ranjan Daimari. Ext-419 is the disclosure statement of Ranjan Daimari. Ext-419(i) was his signature therein. Exts-420, 421, 422, 423, 424, 425, 426 and 427 were the computer printouts of the said 8 e-mails. Ext-420(i) to (v), Ext-421(i) to (iv), Ext-422, Ext-423(i) to (iii), Ext-424(i) to (ii), Ext-425(i) to (iii), Ext-426(i) and Ext-427(i) were his signatures in those documents. According to this witness, Sri N. S. Yadav had asked them to change the passwords of the e-mail account of Ranjan Daimari and he and the Technical Director, NIC Sri Diganta Barman had changed the passwords and created a new password. This witness has also stated that he had typed one-half of the password whereas Sri Diganta Barman (PW-502) had typed the other half of the password. Then they handed over the password to Sri N. S. Yadav, Addl. SP, CBI in a sealed cover. Sri N. S. Yadav also took specimen handwritings of Ranjan Daimari in their presence. Exts- 428, 429, 430, 431, 432, 433, 434, 435, 436, 437 and 438 were those specimen handwritings of Ranjan Daimari and Ext-428(i) , Ext-429(i), Ext-430(i), Ext-431(i), Ext- 432(i), Ext-433(i), Ext-434(i), Ext-435(i), Ext-436(i), Ext-437(i) and Ext-438(i) were his signatures therein. In his cross-examination PW-499 has stated that he is not a computer expert and he did not know Ranjan Daimari from before. He has read the disclosure statement and put his signature as a witness. This witness has denied the suggestion that he was not directed by the Bank to be a witness in the above Page No.# 69/198 procedure.
120. PW-502, Sri Diganta Barman is an Officer serving under the National Informatics Center (NIC). This witness has deposed that he was posted as the Technical Director, NIC, Assam in the year 2010. On 22.05.2010 he was instructed by the State Informatics Officer Sri Dipak Goswami to go to the office of the Special Branch of Assam Police Department, Kahilipara and report to the CBI Officer. Accordingly, he went to the Special Branch of Assam Police, Kahilipara and met CBI Officer Sri N. S. Yadav. PW- 502 has also stated that he had met Sri Ismail Ali (PW-499) of the State Bank of India and then he and Sri Ali were taken together to a computer room where they had seen Ranjan Daimari. They were introduced to Sri Ranjan Daimari. The CBI Officer had then requested Sri Ranjan Daimari to open his e-mail account and accordingly, he had opened the same. The CBI officer present there had taken some printouts and he and Ismail Ali had signed therein. This witness had stated that Sri Ranjan Daimari had also put his signature in those documents. Thereafter, the CBI Officer had asked him and Ismail Ali (PW-499) to change the password of the e-mail account of Sri Ranjan Daimari. Accordingly, he and Ismail Ali (PW-499) had changed the password. This witness had stated that he had put four characters and Ismail Ali had put four characters. They had also changed the security question and answer of the same. They had reduced the passwords and security questions into writing; put the same in an envelope, sealed it and handed over the same to the CBI Officer. Ext-415 is the disclosure statement of Ranjan Daimari and Ext-415 (ii) was his signature on the said document. Ext-416 is the memo of proceeding of opening of the e-mail account of Ranjan Daimari and Ext-416(ii) was his signature put therein. Ext-417(i) to 417(xxiii) (23 Page No.# 70/198 sheets) are the printouts of the e-mails of Ranjan Daimari taken in his presence. Ext- 417 (xlvii) to Ext-417(lxix) (in all 23 sheets) were his signatures put in those documents. The witness has further stated that the CBI Officer took out computer printouts of some more e-mails from the account of Sri Ranjan Daimari. Ext-418(i) to 418(xxxiii) (33 sheets) were the said printouts taken in his presence. Ext-418 (67) to 418(99) (in all 33 sheets) were his signatures therein. On 23.05.2010, the CBI officer again asked him to go to the office of the Special Branch of Assam Police at Kahilipara and accordingly, he went there. On that day, Sri Ranjan Daimari had opened two other e-mail accounts and few e-mails were downloaded therefrom by the CBI Officer. He and Ismail Ali (PW-499) had signed those documents and photographs. Sri Ranjan Daimari had also signed the said documents. Thereafter, the CBI Officer had asked him and Ismail Ali to change the password of the e-mail account of Sri Ranjan Daimari and accordingly they had changed the password. This witness has further deposed that he had put four characters and Ismail Ali (PW-499) had put four characters. They had also changed the security question and answer of the same. Thereafter, they had reduced the passwords and security questions into writing and put the same in an envelope, sealed it and handed over the same to the CBI Officer. Ext-419 was the disclosure statement of Sri Ranjan Daimari and Ext-419(ii) was his signature put therein.
121. Ext-420 (5 sheets) and Ext-421 (4 sheets), Ext-422, Ext-423 (3 sheets), Ext-429 (2 sheets), Ext-425 (3 sheets), Ext-426 and Ext-427 are the computer printouts. Ext-420 (vi) to (x), Ext-421 (v to viii), Ext-422(i), Ext-423 (iv) to (vii), Ext-424 (iii) to (iv), Ext-425 (iv) to
(vi), Ext-426(ii) and Ext-427 (ii) were his signatures put therein. This witness has also Page No.# 71/198 stated that the CBI Officer took his specimen signature and handwritings of Sri Ranjan Daimari in their presence. Ext-428, Ext-429, Ext-430, Ext-431, Ext-432, Ext-433, Ext-434, Ext-435, Ext-436, Ext-437 and Ext-438 were the signatures and handwritings of Sri Ranjan Daimari. Ext-428(ii), Ext-429(ii), Ext-430(ii), Ext-431(ii), Ext-432(ii), Ext-433(ii), Ext-434(ii), Ext-435(ii), Ext-436(ii), Ext-437(ii) and Ext-438(ii) were his signatures therein.
122. During his cross-examination PW-502 has stated that he had not read the disclosure statements before putting his signature nor does he remember whether the CBI Officer had told Ranjan Daimari that he was not bound to make the disclosure statements. He has also replied that the CBI personnel did not seize the computer from which the aforesaid printouts were taken. This witness has stated that on that day he had met Ranjan Daimari physically for the first time and has denied the suggestion made to the effect that the person shown as Ranjan Daimari was actually not Ranjan Daimari. This witness further stated that along with them there were two other persons present in the computer room on that day. At that time neither any member of the family of Sri Ranjan Daimari nor his friend or Advocate was present there. Sri Ranjan Daimari had opened the abovementioned e-mail accounts at the instruction of the CBI Officer.
123. Sri Ujjal Goswami was posted as the Assistant Jailor in the Special Jail at Nagaon in the year 2010. He was examined as PW-503. This witness has deposed that at that point of time Smt. Bina Rajkhowa was posted as the Jailor. At that time, accused Ranjan Daimari was lodged in the Special Jail at Nagaon. On 25.08.2010, a CBI Officer came to the Jail with an order of the Court to collect specimen signature Page No.# 72/198 of accused Ranjan Daimari. The Jailor then called accused Ranjan Daimari to her office and then specimen signature of accused Ranjan Daimari was collected by the CBI Officer in his presence. Ext-439(i) to 439(x) were the specimen signatures of accused Ranjan Daimari. Ext-439(xi) to 439(xx) were his signatures therein. In his cross- examination this witness has stated that he had not seen the court order allowing the CBI Officer to collect the specimen signature of accused Ranjan Daimari in the Court that day.
124. The Jailor posed at the Special Jail Nagaon in the year 2010 i.e. Smt. Bina Rajkhowa was examined as PW-504. She has corroborated the version of PW-503 by stating that on 25.08.2010 a CBI Officer came to the Jail with an order from the court to collect specimen signatures of accused Ranjan Daimari. She then called accused Ranjan Daimari to her office. The CBI Officer then collected the specimen signatures of accused Ranjan Daimari in her presence. Exts-439(i) to 439(x) were the specimen signatures of accused Ranjan Daimari. Ext-439(xi) to 439(xii) were her signatures put therein.
125. Smt. Banya Gogoi (PW-506) was posted in the office of S.B. Headquarters, Kahilipara as Superintendent of Police during the year 2009. She has deposed that on 04.02.2009 the CBI had asked for providing some information regarding the National Democratic Front of Bodoland organization. Accordingly, she had provided them with the information vide Ext-440 (two sheets) along with certified true copies of the constitution of the National Democratic Front of Bodoland (ten sheets), two sets of agreed ground rules for suspension of operations (SoO) between the Government of Page No.# 73/198 India, Government of Assam and the National Democratic Front of Bodoland (NDFB) (four sheets), the photocopies in respect of which were exhibited as Ext-440 (under objection). Ext-440(i) was her signature therein. PW-506 has also stated that she had provided to the CBI, particulars regarding NDFB cadres as sought for. Ext-441 was the forwarding letter of the same along with an Annexure (3 sheets) of the particulars of the NDFB cadres. Ext-441(i) was her signature therein. This witness has further deposed that she had also provided the CBI with an enquiry report regarding four NDFB Activists and Ext-442 was the said enquiry report. Ext-442(i) was her signature therein. The witness has, however, clarified that she had not signed in the Annexure (three sheets) containing the particulars of the NDFB cadres as enclosed to the letter (Ext-
441).
126. Sri Padmadhar Chetia (PW-529) was posted as the Officer-in-Charge of the Goalpara Police Station in the year 2009. He has deposed that Inspector S. Mukherjee of the CBI had sought for the seizure-lists of Goalpara Police Station Case No.366/08 and accordingly, he gave the certified copies of four seizure-lists of the case. Ext-480 is the seizure memo and Exts-481, 482, 483 and 484 were the certified copies of the seizure-lists. This witness has also stated that Exts-480(i) and 480(ii) were his signatures put therein. Exts-481(i), 482(i), 483(i) and 484(i) are his signatures in the seizure-lists.
127. PW-536, Sri Arabinda Kalita is an IPS Officer and was posted as Superintendent of Police, Kokrajhar during the period from 2008 till the month of March, 2009. He has deposed that on 05.02.2009 he gave copy of 1) the manifesto of National Democratic Front of Bodoland (18 sheets), 2) the ceasefire agreement entered into Page No.# 74/198 between the Government of India and the National Democratic Front of Bodoland (3 sheets), 3) Information that 532 cadres of the National Democratic Front of Bodoland were staying in the designated camp at Kumguri under Serfanguri P.S. of Kokrajhar District and 10 cadres of National Democratic Front of Bodoland were staying in the Liasioning office at Habrubari in Kokrajhar Town, 4) A list of office bearers of the Cease-fire team of NDFB along with their available phone numbers to Sri N. S. Yadav, CBI, Special Task Force, New Delhi, Camp (Circuit House). Ext-486 (23 sheets) was the forwarding letter along with the aforesaid documents and Ext-486(i) was his signature in the forwarding letter. PW-536 has further deposed that after the Government of Assam had handed over the bomb blast case to the CBI, the CBI personnel had visited the blast site at Vivekananda Road, near Railway Crossing in Kokrajhar Town and collected and seized some samples in his presence. Ext-487 is the seizure memo in respect thereof which bears his signature as a witness. The CBI personnel had also visited the blast site at the Fish Market, Kokrajhar and thereafter, collected and seized some more samples from the debris collected from the blast site and stored them at the Municipal godown in his presence. Ext-488 was the seizure-memo and Ext-488(i) was his signature. During his cross-examination PW-536 had stated that he had handed over photostat copies of the manifesto of National Democratic Front of Bodoland and the copy of the Ceasefire agreement entered in between the Government of India and the National Democratic Front of Bodoland. He had not seen the materials seized vide Ext-487 and Ext-488.
128. PW-590, Sri Gopal Rabha has stated that he knows accused Nilim Daimari. One day he had come to his house and told that accused Ranjan Daimari had sent him Page No.# 75/198 to his house so as to help them by providing financial assistance as he had been suffering from some ailments. At that, he told him that he did not have much money and gave Rs.5000/- for his treatment.
129. We also find from the materials available on record that the accused Ranjan Daimari had filed application before the learned trial Court seeking bail. In the said application he had projected himself as the Chairman of the NDFB. The Bail order dated 11.04.2013 passed by the learned Sessions Judge, Kamrup(M) in connection with the above proceedings has also taken note of the fact that accused Ranjan Daimari, who was one of the accused persons charge-sheeted in the proceeding was the Chairman of the NDFB faction which was led by him and currently discussions were going on between him and the Government of India through Sri P. C. Haldar, former Home Secretary to the Government of India, who was appointed as an Interlocutor by the Central Government with a view to amicably resolve the issue relating to Bodo people. The accused Ranjan Daimari was also granted bail by the trial court on executing a bond of Rs.3 lakhs with two sureties of like amount. Although the learned senior counsel for the appellants by placing reliance on the decision of the Supreme Court rendered in the case of Pratap Mishra (Supra) has argued that the pleadings in the application filed by the accused would not be binding upon him, yet the question here is not as regards the pleading but the order passed by this Court which clearly reflects the fact that accused Ranjan Daimari was the Chairman of the NDFB. The aforesaid factual position has not been challenged by the appellant at any stage, not even during the examination of the accused Ranjan Daimari under Section 313 of the Cr.P.C. If that be so, there cannot be any doubt about the fact Page No.# 76/198 that the aforesaid material available on record would have an important bearing in deciding the question as to whether accused Ranjan Daimari was, in fact, a member of the NDFB.
130. During his examination under section 313 CrPC the notifications dated 23-11- 2006 (Ext-656) and 23-11-2008 (Ext-314) along with evidence adduced on record by the prosecution indicating that he was the Chairman of the NDFB since inception till now and the organization had been declared as an unlawfull association by the Government of India was put to the accused Ranjan Daimari but he had refused to make any comment on the same.
131. Mr. Bhattacharyya is no doubt correct in urging that the accused has a right to remain silent during trial and such silence of the accused cannot be considered as admission of any fact. However, what would be note worthy here-in is that whether the accused Ranjan Daimari was the Chairman of the NDFB and if so, whether the organization has been declared as unlawful association by the Government of India are matters that would be within the special knowledge of the accused. Ranjan Daimari had also remained silent when the Order dated 11-04-2013 passed by the Sessions Judge, Kamrup(M), Guwahati allowing the accused to go on bail was put to him. The order dated 11-04-2013 clearly mentioned that accused Ranjan Daimari had sought bail as Chairman of the NDFB to participate in the discussions to be held with the Government of India through Sri. P.C Haldar, former Home Secretary, who was appointed as an interlocutor. The order dated 11-04-2013 also mentions about the fact that in view of the dialogue initiated by the Government of India and the State Page No.# 77/198 Government, the NDFB had declared unilateral ceasefire. The fact that the bail order dated 11-04-2013 was passed by the learned Sessions Judge on an application filed by accused Ranjan Daimari is not in dispute. Therefore, the correctness of the statements made in the bail application were within the special knowledge of the accused. Once the prosecution had adduced cogent materials on record to prima facie establish the fact that NDFB was a banned organization and accused Ranjan Daimari was the Chairman of the said organization, it was incumbent on the accused to disclose the facts that were within his special knowledge which he had evidently failed to do. Failure on the part of the accused Ranjan Daimari to disclose facts within his special knowledge, in the opinion of this court, would be liable to be treated as an additional link in the chain of circumstances proved against the accused. Although Mr. Bhattacharyya has argued that the accused was not bound by the pleadings and therefore, did not have any duty to disclose, we are unable to agree with such submission of the learned senior counsel for the following reasons. Firstly, it was not the pleading but the order of the court which was put to the accused during his examination under section 313 CrPC. Secondly, regardless of the pleadings, the accused was under a duty to disclose special facts with in his knowledge. It is not in dispute that Ranjan Daimari had in fact applied for bail. Therefore, he ought to have disclosed or atleast clarified, the facts leading to the filing of the bail application. In view of the provision of section 106 of the Indian Evidence Act,1872, the question of exercise of right of silence would not extend to the accused in such a situation.
132. Mr. Bhattacharyya has also argued that the electronic evidence allegedly downloaded by the Investigating Officer from the e-mail account of the accused Page No.# 78/198 was not properly put to the accused during his examination under section 313 CrPC but such materials have been relied upon by the learned trial court for conviction of the accused person. However, from a perusal of the statements of the accused recorded under section 313 CrPC, we find that the evidence adduced by PWs 499 and 502 deposing that the accused had given the password of his e-mail account based on which the e-mail was opened and print-outs were taken thereform; that Ext-418-V was one such printout; that he had sent e-mail as D.R. Nabala, President NDFB as well as the Press Release dated 18-11-09, were all put to the accused while recording his statement under section 313 of CrPC but he had refused to comment on any of those incriminating evidence adduced on record by the prosecution side. What would be noteworthy here-in is the fact that the accused Ranjan Daimari has not denied his involvement in the matter but has merely refused to comment. Under the circumstances it cannot be said that any prejudice had been caused to the accused due to failure to put all the incriminating materials to him during his examination under section313 CrPC.
M) Objection as to non-compliance of section 65-B of the Evidence Act :-
133. It is clear from a plain reading of section 65-B of the Evidence Act that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by the computer shall be deemed to also be a document if the conditions mentioned in the section are satisfied in relation to the information and computer in question and shall be admissible in a proceeding without further proof or production of the original, as Page No.# 79/198 evidence of any contents of the original or of any fact stated therein with direct evidence would be admissible. However, when secondary evidence of such electronic record is sought to be adduced, the same would have to mandatorily be accompanied by a certificate as specified in Section 65-B(4). The aforesaid aspect of the matter was elaborately dealt with by the Hon'ble Supreme Court in Anvar P. V. vs. P. K. Basheer and others reported in (2014) 10 SCC 473 (supra) wherein the following observations have been made in paragraphs 14, 15 and 16 :-
"14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(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;
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(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, 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.
15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is Page No.# 81/198 produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice ."
134. What would be significant to note herein is that PW-502, Diganta Barman, who was an Officer serving under the National Informatics Center (NIC) is an expert in the field of computers. In his deposition, this witness has not only elaborately stated about the print outs taken from the e-mail account of accused Ranjan Daimari but has also exhibited the documents, the printout of which were produced before the court. This witness has also identified his signature in those documents viz., Exts- 415, 416, 417, 418, 419, 420, 421, 322, 423, 424, 425, 426, 427, 429, 430, 431, 432, 433, 434, 435, 436 and 437. Therefore, this Court is of the opinion that there has been substantive compliance of the requirement of Section 65-B(4) of the Evidence Act in this case. Moreover, the oral evidence of PWs-502 finds due corroboration from the evidence of PW-499 which categorically goes to show that the I.O. had not only got access to the e-mail account of accused Ranjan Daimari, the password of which was provided by the accused himself, but on accessing the account all those documents were downloaded from the e-mail account of the accused in presence of independent witnesses including PWs-495 and 502. Therefore, we are of the considered opinion that the conditions laid down in the case of Anvar P. V.(supra) has been squarely met in this case. As such, we are of the opinion that the Exts- 415, 416, 417, 418, 419, 420, 421, 322, 423, 424, 425, 426, 427, 429, 430, 431, 432, 433, 434, 435, 436 and 437 were not hit by section 65-B(4) of the Evidence Act but were admissible in evidence.
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N) Evidence against Accused No.2, George Boro :
135. PW-15, Dr. Tarun Talukdar was a private practitioner. This witness has deposed that he had a two storied building in Lakhimi Nagar, Hatigaon, Guwahati. On 26.10.2007 he had rented out the 3 rd part of the ground floor of the house to accused George Boro. George Boro was staying there with a girl and a man named Jitu. George Boro told him that he was an MA in English from Pune and was searching for a job in Guwahati. Occasionally, Boro youths used to come to meet George Boro and sometimes Ajay Basumatary also came to meet him. He has identified the accused Ajay Basumatary as the person who used to meet George Boro in his house. He has deposed that Mat. Ext-9 is the photograph of Jitu Boro, who used to drive the Indica Car bearing Registration No.AS-01AE-3826 and was staying with accused George Boro. In the morning of the day of Bomb blast, while he was sitting in the balcony of his house, he saw accused George Boro and 4/5 boys going out in a vehicle like Tata Sumo. While he was getting ready to go to his chamber, just before 11:00 a.m. he saw that the said vehicle had returned and he saw George Boro and few boys entering into the rented house. Thereafter, he proceeded towards his chamber at Bhangagarh and later learnt about the bomb explosions. When he returned to his house in the evening, he saw that the room that he had let out to George Boro was under lock and key and that, Boro did not return for months together. He further stated that one day, his wife received a call from George Boro who told his wife that he will come after some time as at that time Boro boys were being arrested. After 15/20 days, George Boro again called his wife over phone and Page No.# 83/198 told her that he will send the key of the room and the rent through someone and also requested her to keep his belongings in some other place and to let out the room to other persons but George Boro never came back. PW-15 deposed that when he came to know from TV news and newspaper that George Boro was involved in the Bomb blast, he informed the Dispur Police Station about George Boro staying in his house. Later, police came and broke the lock of the room and took away the accused George Boro's belongings. Thereafter, he had again rented out the room after informing the police. He has further deposed that the accused George Boro rang his wife from No.9957067127 and that he rang from the said number twice.
136. In his cross-examination, PW-15 has stated that occasionally some friends of George Boro used to visit him and he was in talking terms with them. He has further stated that he had identified the person, who used to visit George Boro, in the dock. He did not know his name when he pointed at the person in the dock and came to know his name when it was asked by the court. He stated that he did not enter into any rent agreement with George Boro and never issued any receipt after receiving rent. He has also denied the suggestion that George Boro never stayed in his house.
137. PW-16, Golap Medhi has stated that he was residing in the house of Dr. Tarun Talukdar (PW-15) since 2001 and was working as a Security Guard. This witness has deposed that 10 days prior to 26.10.2007 George Boro, driver Jitu and one lady came to the house of Dr. Tarun Talukdar searching for a room. They selected the room and as Dr. Talukdar was not present, he told them to come after a few days. Accordingly, they came on 26.10.2007 and took the room on rent. He has identified the accused Page No.# 84/198 George Boro who had taken the room on rent. This witness has deposed that on the day of the Bomb blast i.e. 30.10.2008, George Boro had called him in between 12:00 noon to 1:00 p.m. from his mobile number 9957067127 and enquired whether, any bomb blast had taken place in Guwahati. He told George Boro that there were some bomb blasts and George Boro told him that he was in Barpeta. George Boro again called him after 15/20 days from a different number and told him that he was going out and will return to Guwahati after some time. George Boro also told him that his belongings may be taken out from the room and the room may be given to others. He then told George Boro to call Dr. Tarun Talukdar and inform about the same. PW- 16 has identified that Mat. Ext-9 is the photograph of the person who was working as a driver of an Indica car used by George Boro and his team and that the name of the driver was Jitu. In his cross-examination he has stated that he was working in AIR CELL tower as a guard and also used to do marketing for Dr. Tarun Talukdar. He has denied the defence suggestion that the Mat. Ext-9 photograph is not the photograph of Jitu Daimari. He also denied the suggestion that on the day of the incident, Geroge Boro did not ring him to enquire about bomb the blast in Guwahati. He has also denied the suggestion that he never met Geroge Boro earlier.
138. PW-17, Sri Jatandra Nath Pathak has stated that he had been in Guwahati since 15.12.2010 as EAC. On 13.01.2011 while he was working in the said capacity in Guwahati, he went to S.B. Headquarter where accused Geroge Boro was produced before him. On that day, accused Geroge Boro was interrogated before him by the CBI officials and Geroge Boro made his statement where, he had admitted his involvement in the Bomb blast case of 30.10.2008. Ext-26 is the disclosure statement of Page No.# 85/198 Geroge Boro made before him and Ext-26(1) is the relevant part. Ext-26(2) was the signature of PW-17. He further deposed that after making the disclosure accused Geroge Boro volunteered to take them to the places where he brought the bomb in a Maruti vehicle and after that, how he parked the vehicle under the Ganeshguri Flyover on 30.10.2008 and after parking the vehicle, how he and accused Aogai and Jeetu Daimari drove away in a parked Tata Sumo vehicle. Ext-27 is the pointing out memo prepared on the basis of statement and disclosure made by the accused Geroge Boro and Ext-27(1) and 27(2) were his signatures. This witness has stated that he has prepared a rough sketch of road and places from where accused Geroge Boro started and took out the bomb laden car and parked it under Ganeshguri Flyover. Ext-28 is the said sketch map and Ext-28(1) was his signature. PW-17 has stated that in Exts-26, 27 and 28 accused Geroge Boro had put his signature in his presence and that Ext-26(3), Ext-27(3) and Ext-28(4) and 28(2) were the signatures of Geroge Boro which were put in his presence.
139. He has further deposed that on 28.02.2011 accused Mathuram Brahma @ Mudoi made a disclosure statement before him where he had disclosed that he brought 50 kg of TNT Explosives from the house of Arun Gorguary along with Jeetu Daimari in an Indica car and kept the same near the house of Rifikha. PW-17 has further stated that accused Mathuram Brahma @ Mudoi had stated that he filled the empty gas cylinder used in Ganeshguri Flyover blast with the above TNT explosives and also filled up two pressure cooker used in Barpeta Road/Choudhury Complex and Sabji Market bomb blasts. Ext-29 was the said disclosure statement of Mathuram Brahma @ Mudoi and Ext-29(1) was his signature and Ext-29(2) was the signature of Page No.# 86/198 accused Mathuram Brahma put in his presence.
140. PW-29, Dr. Bhupen Narzary was an Associate Professor, Department of Bodo of Gauhati University. He stated that he was an MA in Assamese and had done PH.D in MIL Department (Modern Indian Language). He had joined service on 30.03.1988 as Lecturer of Modern Indian Language on Bodo language, which was upgraded to Bodo Independent Department. This witness has deposed that by letter dated 09.03.2009, DSP, CBI, STF, New Delhi had requested him to translate a letter which was in Bodo language containing two pages. Ext-41 (sic) was the said letter. He stated that on receipt of the said letter (Ext-42), he had translated the same into English, Ext- 43 was the translated version and Ext-43(1) was his signature. In his cross-examination, this witness has stated that he had no certificate regarding expertise in Bodo Language as there was Bodo education system during his studies. As per his knowledge, Ext-43 was the exact translation of Ext-42. He has denied the suggestion that he had not correctly translated Ext-42 to Ext-43.
141. PW-30, Nikunja Borah has deposed that he resided at Lakhimi Nagar, Guwahati and had a shop where he used to sell mobile recharge cards. This witness had identified accused John @ George Boro in the dock and further stated that the accused used to visit his shop for purchasing cold drinks and re-charge cards. He knew that the accused George Boro resided in that area but he did not know the house where he was residing. The accused John used to visit his shop as a customer for around 6 months in the year 2008. This witness has stated that accused John had a AIRCEL mobile connection and on 30.10.2008, he had rang him and asked him to Page No.# 87/198 recharge his Aircel mobile for Rs.75/-. Accordingly, he did so but he did not receive the Rs.75/- from the accused John as thereafter, he never came to his shop. In his cross-examination, PW-30 has stated that he knew accused John only as a customer by face and that he did not know his address.
142. PW-49, Sri Nirod Barman has deposed that in the year 2008 he was doing business having one PCO under the name and style of M/S N. B. Magazine Center and PCO situated near the Ganeshguri Flyover. This witness has stated that he had two landline connections in the PCO and the said numbers were 2611548 and 2611644. He has stated that on 10.10.2009 the CBI officials seized the bills and CDR from him. Ext-103 is the seizure memo by which the CDR along with bills were seized by the CBI. Ext-103(1) and 103(2) were his signatures. Ext-104 was the computer generated bill along with the CDR totaling 11 pages and Ext-104(1) to 104(11) were the signatures on the back side of the pages. Ext-105 was another computer generated bill along with CDR totaling 13 pages and 105(1) to 105(13) were the signatures on the back side of the pages. This witness has stated that he was shown page No.8 of the Ext-105 wherein on 13.10.2008 at around 12:45 p.m., a call was made from his PCO No.2611644 to 9957067127 for about 38 minutes and Ext-105(14) was the said entry. This witness has stated that he was also interrogated by the CBI. In his cross-examination, PW-49 has stated that CDR of PCO phone bearing No.2611644 and 2611548 was for the month of October, 2008 commencing from 10.10./2008 to 15.10.2008 and another CDR of Phone No.2611644 commencing from 10.10.2008 to 15.10.2008. He further stated that at the request of CBI, he had procured the CDR of his two phone numbers commencing from 10.10.2008 to 15.10.2008. He has further Page No.# 88/198 stated that he could not identify as to who made the call from the relevant number and to whom.
143. PW-50, Sri Rajib Talukdar has deposed that in the year 2008 he was working with his cousin brother Sri Nirod Barman (PW-49) in the PCO namely N. B. Magazine Center and PCO at Ganeshguri. This witness has stated that the CBI enquired from them and asked for the CDR and accordingly, they collected bills with CDR. He stated that his brother Nirod Barman (PW-49) had handed over the bills and the CDR to the CBI. Ext-104 and 105 were the computer generated bills along with the CDRs. Ext-104 is in 11 sheets and 105 is in 13 sheets. He stated that on 13.10.2008 he was in the PCO. This witness has stated that he was shown the CDR Ext-105 on the date of his deposition wherein it was mentioned that from the PCO No.2611644 one call was made to phone no.9957167127 at around 12:45 p.m. for duration of 38 minutes. Ext- 105(14) was the said entry of the call. He was also interrogated by the CBI.
144. PW-367, Sri Bhargab Brahma has deposed that he knows one Jimi Boro who studied with him in the St. Mary's High School, Barpeta Road and was one year junior to him. He stated that a few years ago Jimi Boro had asked him to obtain a Mobile SIM Card for him and then he applied for a mobile connection from the AIRTEL Company. He stated that he collected the SIM Card and gave it to Jimi Boro but he had forgotten the number of the SIM card. He further deposed that he knew accused George Boro and that he was the elder brother of Jimi Boro. He stated that the accused George Boro studied in Pune and he heard that George Boro had joined NDFB organization. In his cross-examination he stated that he was interrogated Page No.# 89/198 by the CBI. He stated that he had heard that George Boro had joined the NDFB organization, but he had no personal knowledge about the same. He further stated that he did not know whether the said SIM card was activated or not.
145. PW-371, Smt. Haina Basumatary has stated that in the year 2009 she was studying at B. H. College, Howly and at that time she was staying in the house of her aunty viz. Nilima Boro, situated at Borpeta Road. This witness has stated that her aunty Nilima Boro had two sons, namely, Jimy Boro and George Boro and one daughter, namely, Hema Basumatary. PW-371 has stated that during her stay in the house of her aunty Nilima Boro, her son George Boro was not staying with her and that he never visited the house. She also stated that she did not know where George Boro was staying or what he was doing at that time.
146. PW-512, Sri Songthu Songneijir Aimol has deposed that from December, 2008 to 2013 he was working as the Circle Nodal Officer in the Bharti Airtel Ltd., Guwahati. He has stated that in connection with this case the CBI personnel had examined him and he had furnished to the CBI, scanned copies of Airtel Pre-paid Enrolment Form pertaining to the Mobile Nos.9954986477 and 9954961800. Ext-449 was the forwarding letter of the same and Ext-449(i) was his signature. Ext-450 (three sheets) were the certified true copies of the Airtel Prepaid Enrollment Form pertaining to the Mobile No. 9954961800 and Ext-450(i) was his signature therein. Ext-451 (two sheets) were the certified true copies of the Airtel Prepaid Enrolment Form pertaining to the Mobile No.9954986477 and Ext-451(i) was his signature therein. On 02.01.2009 vide Ext-452 seizure memo, the CBI officials seized five Airtel Prepaid Enrollment Forms from him Page No.# 90/198 and Ext-452(i) was his signature therein. Ext-453 (three sheets), Ext-454 (two sheets), Ext-455 (three sheets), Ext-456 (two sheets) and Ext-457 (four sheets) were the said seized five Airtel Prepaid Enrollment Forms. This witness has stated that he had provided the Call Details (8 sheets) vide Ext-458 letter of Mobile No.9957067127 of Sri Bhargav Barma to the CBI and Ext-451(i) was his signature therein. Ext-459 (i) to Ext- 459(viii) were the said call details (8 sheets) and Ext-459 (ix) to Ext-459 (xvi) were his signatures therein. He further stated that vide Ext-460 letter, he had provided the C.D. containing the Call Details of 8 mobile numbers to the CBI. Ext-460(i) was his signature therein and Mat. Ext-II was the said C.D. where he had written the mobile numbers in his own handwriting. He had also provided one C.D. of CELL ID (Tower Details) of Airtel to the CBI and Mat. Ext-III was the said C.D. where he had written the words "CELL ID" in his own handwriting. This witness has deposed that vide Ext-460 letter, he had also provided call details of mobile No.9954986477 (four sheets). Ext-460(ii) to Ext- 460(v) were the said call details and Ext-460(vi) to Ext-460(ix) were his signatures therein. This witness has stated that as per Ext-460(ii) call details sheets, on 30.10.2008 at 8:09 a.m. the location of the mobile number 9954986477 was at Tower No.13083, Station Road, Bongaigaon and Ext-460(iii)(i) was the said entry. He stated that on 30.10.2008, at 6:07 a.m. the first call was made from the mobile No.9954986477, from Bengtal. Ext-460(iii)(ii) was the said entry. On 30.10.2008 at 9:11 p.m., the last call was made from the mobile No.9954986477, from Serfanguri and Ext-460(iv)(i) was the said entry. In cross-examination, this witness has stated that he had issued Ext-449 letter at the request of the CBI and have mentioned the same in the letter as the Subject. This witness has stated that as per Ext-460(iii) call details sheets, on 30.10.2008 at 8:09 a.m. Page No.# 91/198 the location of the mobile number 9954986477 was at Tower No.13083, Station Road, Bongaigaon but, the Bongaigaon was not mentioned in the exhibited document.
147. PW-578, Ms. Janifreza Basumatary has deposed that in the year 2006 she was working as a part-time Anchor at the Guwahati Doordarshan Kenddra. Thereafter, in the year 2008, she joined DY-365 TV Channel as a Programme Producer and at that time she was staying at Survey, Ajanta path, Guwahati in a rented house along with her brother Jefri John Basumatary and sisters Jaya Melody Basumatary and Bardwisona Basumatary. This witness has stated that in the year 2007 she met the accused George Basumatary in the memorial service of her maternal grandmother at village Odlakhasibari, Harisinga and thereafter, they became friends. On 30.10.2008 she was present in the office of the DY 365 and that she did not meet the accused George Basumatary after the bomb blast of 30.10.2008. The cross- examination of this witness was declined.
148. PW-579, Sri Jefril John Basumatary has stated that in the year 2008 he was staying in a rented house at Hatigaon, Guwahati with his sisters Jaya Melody Basumatary and Bardwisona Basumatary. He stated that he did not remember where his other elder sister Janifreza Basumatary was staying at that time and that in the year 2008 his elder sister Janifreza Basumatary was working with the DY365. This witness has further deposed that he knew the accused George Basumatary who was present in the court on that day. The cross-examination of this witness was declined.
149. Sri Purna Chandra Baruah was a retired police officer. He was examined as PW-
610. This witness has deposed that on 28.10.2008 he was posted at the Barpeta Road Page No.# 92/198 Police Station as the Officer-in-Charge. He stated that in the night of that day around 8:00 pm, accompanied by some police personnel, he went to Govardhana area under his Police Station for patrolling duty. While he was checking vehicles on the Barpeta-Basbari Road, he saw Maruti car coming from Barpeta side and proceeding towards Basbari side. He stopped the Maruti car and found two persons inside the vehicle and on asking their name the person who was sitting on the rear seat told that his name was George Boro and the driver told that his name was Tarun. This witness has further stated George Boro also told him that he was a member of the Ceasefire group of the NDFB. His driver Saikia also knew the driver Tarun of the Maruti car. When he asked them, they told him that they were going to Khagrabari to meet their leaders. The Registration number of the car was something with 7747 and that he did not find any illegal things inside their car and allowed them to go. This witness further stated that on 30.10.2008 at around 10:00/10:30 a.m. while he was present at the Barpeta Road Police Station, he heard two sounds of blasts and then accompanied by his staff, he went to the blast site at Choudhury Complex and sent the injured victims to the Barpeta Road Civil Hospital. Later on, he also sent the deceased victims to hospital for post-mortem examination. Thereafter, he went to the next blast site, i.e. vegetable market and there also he sent the injured victims to the Barpeta Road Civil Hospital and the deceased victims to the hospital for post-mortem examination. This witness has stated that thereafter, he returned to the Barpeta Road Police Station and lodged two separate First Information Report of the aforesaid two blasts. Ext-527 is the FIR of the blast of vegetable market and Ext-527(1) was his signature therein. He registered the said FIR as No.262/0-8 for offices under Sections Page No.# 93/198 120B/121-A/126/153B/302/326 IPC read with Section 3 of the E.S. Act. Ext-528 was the FIR of the blast of the Choudhury Complex and Ext-528(1) was his signature therein.
He had registered the said FIR as No.261/08 for offences 120B/121A/126/153B/153A(2)/302/326 IPC read with Section 3 of the E.S. Act. He further deposed that after 6/7 days, he came to know from wireless message that the vehicle bearing registration No.7747, in which George Boro and Tarun were travelling on the night of 28.10.2008, was the vehicle used in the bomb blast at Ganeshguri Flyover and that he searched George Boro and Tarun but did not find them. In his cross-examination he stated that he did not record in his note book about intercepting the Maruti car bearing registration No.7747 with George Boro and Tarun in the night of 28.10.2008 at Govardhana. This witness has denied that he did not intercept the Maruti car bearing registration No.7747 with George Boro and Tarun in the night of 28.10.2008 at Govardhana.
150. PW-616, Sri Jimi Boro has deposed that accused George Boro is his elder brother. He also stated that he knew Bhargav Brahma and that he was his classmate. His statement was recorded by the Magistrate and Ext-533 was his statement and Ext- 533(1), (2), (3) and (4) were his signatures therein. This witness has deposed that he told the Magistrate that in the year 2005 his elder brother George Boro had joined the NDFB. He also told the Magistrate that his elder brother George Boro rarely came to their house and in the year 2006, he had met him at the Barpeta Road vegetable market. At that time, his elder brother George Boro requested him to procure a mobile phone SIM card for him and as he did not have a driving licence, he requested his classmate Bhargav Brahma to procure a mobile phone SIM card. He Page No.# 94/198 has stated that Bhargav Brahma then procured an Airtel mobile phone SIM card in his name and gave the same to him. PW-616 has further stated that he delivered the said Airtel Mobile phone SIM card to his mother Nilima Boro and thereafter, he went to Guwahati for his studies. Later on, he came to know that his elder brother George Boro had collected the said Mobile phone SIM card from his mother. This witness has further stated that he told the Magistrate that he could identify the handwritings of his elder brother George Boro. The CBI personnel showed him the Ext-41 and Ext-42 letters and he told the CBI personnel that the said letters were written by his elder brother George Boro. He told the Magistrate that the CBI personnel seized one notebook and some documents belonging to his elder brother George Boro from him. In his cross- examination he has stated that the police had visited his house many times searching for him and the police directed his mother to produce him before them. He stated that from the month of February, 2008 to 2011 he was studying at Alpine College, Shillong, Meghalaya and that he never met his elder brother George Boro in the year 2008. He stated that CBI Inspector Mr. Yadav had called him to the Barpeta Circuit House and he met him there many times and also met him at Guwahati as per his direction. The witness has stated that the CBI Inspector convinced him to give statement before the Magistrate and hence, he gave the aforesaid statement. He, however, stated that the aforesaid statement was made under the pressure of the police as they threatened him that otherwise, they would make him an accused in the case.
O) Evidence against Khargeswar Basumatary @ Rahul Brahma @ Kharmswar:
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151. PW-22, Sri Chinmoy Prakash Phukan has deposed that in the year 2010 till July, 2010 he was posted as EAC under the Deputy Commissioner, Kamrup (Metro). On 04.06.2010 the then District Magistrate had directed him to proceed to Panbazar Police Station to assist the CBI team. Accordingly, he met the CBI team at Agriculture Guest House where the CBI had its camp. At that time they had in their custody, accused Khargeswar Basumatary @ Rahul Brahma. The CBI team wanted to have the accused's disclosure statement in his presence and accordingly, he identified himself to Khargeswar Basumatary as Executive Magistrate and requested him to give his statement without any fear. Khargeswar Basumatary gave his statement and disclosed in his statement that on 29.10.2008, at around 3:00 p.m. he had gone near the ABSU office located at Bathupuri near Gorchuk and according to him, he had come from Rangia by a private bus. The accused had further stated that Raju Sarkar and Prabhat Boro alias Tepak had already arrived at Guwahati in a Maruti car bearing registration No.AS-01-E/9226. Prabhat Boro @ Tepak had waited to meet him near the said ABSU office along with the said car and that another person namely, Thungly Narzary and he (Khargeswar Basumatary) had loaded one LPG cylinder filled with explosives and fitted with timer in the said vehicle. According to the accused, he and Prabhat Boro @ Tepak had driven the said Maruti car towards Nohagaon adjacent to Ahomgaon of Gorchuk. The accused further informed that on that day another person Raju Sarkar was picked up in the said vehicle and it was also disclosed by him that the said Maruti car was parked on the foot hill of Nohagaon adjacent to Ahomgaon of Gorchuk and they had discovered the residence of Sri Ranjit Boro located at the nearby hill top. The accused further disclosed that he had Page No.# 96/198 directed Prabhat Boro @ Tepak and Raju Sarkar to spend the night i.e. on 29.10.2008 in the said Maruti car and he spent the night in the residence of Sri Ranjit Boro. On 30.10.2008 at around 7:00 a.m. the accused along with Prabhat Boro @ Tepak and Raju Sarkar had left the said location in the Maruti car. According to his statement they came to main Gorchuk Chariali and from there he sat in a Maruti Alto driven by one Sri Babul Boro which was hired by him and then they moved towards Jalukbari and asked Prabhat Boro @ Tepak and Raju Sarkar to follow him. From Jalukbari they moved towards Panbazar, crossing the Panbazar Water Tank, they moved towards Fancy Bazar via MMC Hospital and Panbazar P.S. Prabhat Boro @ Tepak and Raju Sarkar followed the accused in the said Maruti car loaded with explosives. The accused stated that on entering Fancy Bazar area, he had seen police checking and immediately informed Prabhat Boro @ Tepa about the same and asked him to park the vehicle immediately near the Baptist Church at Panbazar. Thereafter, he along with Babul Boro went to Bharalumukh in the Maruti Alto car and waited for Prabhat Boro and Raju Sarkar. The accused finally disclosed that he could identify the places where the said vehicle was parked on 29.10.2008 and 30.10.2008 and could also identify the route taken by the vehicle on 29.10.2008 and 30.10.2008. PW-22 has further deposed that the disclosure statement was taken in his presence and Ext-33 is the said disclosure statement and Ext-33(1) and Ext-33(2) were his signatures. Ext-33(3) and Ext-33(4) were the signatures of Khargeswar Basumatary. The witness has further stated that the accused Khargeswar Basumatary was present in the Court and he could identify him. PW-22 has deposed that after the disclosure statement of Khargeswar Basumatary was recorded, a sketch map of the route was prepared on Page No.# 97/198 being pointed out by the accused. Ext-34 was the "Pointing out memo" prepared on the spot after identification made by Khargeswar Basumatary. Ext-34(1) and 34(2) were his signatures and Ext-34(3) and Ext-34(4) were the signature of Khargeswar Basumatary. Exts-35 and 36 were the rough sketch maps showing the routes and Ext- 35(1), Ext-36(1) were his signatures. Ext-35(2) and Ext-36(2) were the signatures of Khargeswar Basumatary.
152. This witness (PW-22) has further deposed that on 27.01.2009 he was directed by the then District Magistrate to go to Panbazar P.S. to meet the CBI team and accordingly, he went there. At that time, CBI had in their custody accused Prabhat Boro @ Tepak. The CBI wanted to have the disclosure statement of accused Prabhat Boro @ Tepak in his presence and accordingly, he identified himself to Prabhat Boro as Executive Magistrate and requested him to give the statement without any fear and pressure. In his statement, the accused Prabhat Boro @ Tepak disclosed how the Maruti car bearing registration No.AS-01E-9226 was loaded with explosives on 29.10.2008 and how the said vehicle was parked near the Baptist Church near Panbazar on 30.10.2008. Ext-37 was the disclosure statement of Prabhat Boro @ Tepak. Ext-37(1) was the signature of PW-22 and Ext-37(2) was the signature of Prabhat Boro. In the disclosure statement, the accused had stated that he could identify the locations as stated by him in his disclosure statement and accordingly a "pointing out memo" was drawn up pointing out the different places. Ext-38 was the said pointing out memo and Ext-38(1) was his signature and Ext-38(2) was the signature of Prabhat Boro. This witness has also stated that accused Prabhat Boro was present in the court and he could identify him.
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153. This witness (PW-22) has further stated that on 09.03.2009 he was directed by the then District Magistrate to go to Panbazar P.S. to meet the CBI team and accordingly he went there and met them. The accused Raju Sarkar was in the custody of the CBI team at that time and the CBI team wanted to have his statement in his presence. Accordingly he identified himself to Raju Sarkar and requested him to give his statement without any fear and pressure. Raju Sarkar in his disclosure statement disclosed that he knew Khargeswar Basumatary @ Rahul Brahma since 2005 and he also informed that on 24.08.2008, an old Maruti 800 car was purchased in his name. Then the accused Raju Sarkar narrated the sequences of events that took place on 29.10.2008 and 30.10.2008, right from loading of explosives in the said Maruti car till parking of the vehicle near the Baptist Church, Panbazar on 30.10.2008. The accused further stated that he could identify the locations as mentioned in his disclosure statement and accordingly one "pointing out memo" was drawn up. Ext-39 was the said disclosure statement of Raju Sarkar, Ext-39(1) was the signature of PW-22 and Ext-39(2) and Ext-39(3) were the signatures of Raju Sarkar. Ext-40 was the pointing out memo, Ext-40(1) was the signature of PW-22 and Ext-40(2) and Ext-40(3) were the signatures of Raju Sarkar. This witness has further stated that the statements were prepared in his presence and the accused persons had put their signatures in his presence. He has also stated that accused Raju Sarkar was not present in the court but he could identify him.
154. In his cross-examination, PW-22 has further stated that he was verbally instructed by the District Magistrate to proceed to Panbazar P.S. to assist the CBI on 04.06.2010 and accordingly, he met the person who was supposed to make the Page No.# 99/198 disclosure statement in the CBI custody in the Panbazar P.S. He stated that he was not sure whether the accused person was handcuffed or not and that the CBI personnel identified the accused person as Khargeswar Basumatary @ Rahul Brahma. He stated that he had not put any question to him except the question of his identity and his name. Ext-33 was the exact statement made by the accused Khargeswar Basumatary in his disclosure and he denied that Ext-33 was recorded on 04.06.2008. He has stated that it was recorded on 04.06.2010 and that he had put his signature on it on 04.06.2010. He further stated that it took about an hour to record the disclosure statement of the accused Khargeswar Basumatary and during that period, the accused also made one pointing out memo. Ext-9 was the said memo. The accused made the disclosure statement and pointing out memo mostly in Assamese language. He further stated that though there were two CBI officials, he did not know exactly who wrote the documents (Ext-33 and 34) and that in the footnote of Ext-33 and 34, there was signature of N. S. Yadav, Addl. S.P., CBI. PW-22 has denied the suggestion that the disclosure statement and the pointing out memos were not given by the accused Khargeswar Basumatary and that he had assaulted accused Khargeswar Basumatary at Panbazar Police Station as well as at Agriculture Guest House. He has further denied the suggestion that after assaulting Rahul Brahma, he had threatened him to make the statement recorded in Exts-33 and 34 and forced him to put his signature on the disclosure statement and the pointing out memos. PW- 22 has, however, admitted that in Exts-33 and 34, there is no statement to show that the statements were read over to the accused.
155. In his further cross-examination by the defence on 14.09.2012, PW-22 has Page No.# 100/198 stated that the disclosure statement Ext-37 of Prabhat Boro was written by N. K. Pathak in English language. He denied the suggestion that Ext-37 was not the voluntary statement of accused Prabhat Boro and that they had obtained Ext-12 by threatening and assaulting the accused Prabhat Boro. He has further denied the suggestion that they had not read out the Ext-37 to the accused Prabhat Boro. PW-22 denied the suggestion that the pointing out memo was not prepared on the spot and that they had prepared the pointing out memo by sitting somewhere else and obtained the signature of the accused thereon forcefully. He denied the suggestion that they had visited the places on their own and at the behest of the local police but not as shown by the accused. This witness has stated that there was no mention of the names of the public in the pointing out memo as witnesses as a proof of their visit to the points. He further stated that at the time of visiting the points and at the time of giving the voluntary statement, there was no family member of the accused present.
156. In the cross-examination of this witness by accused Raju Sarkar, PW-22 has stated that on 09.03.2009, he was directed by the then District Magistrate to proceed to Panbazar Police Station to meet the CBI team who wanted to obtain the disclosure statement of accused Raju Sarkar. At that time, Raju Sarkar was in the CBI custody. He could not remember whether the accused was handcuffed or not and he had not seen any relative of the accused inside the room. This witness has stated that the conversation between the CBI and the accused was mostly in Assamese and Hindi language. He denied the suggestion that Ext-39 was not the disclosure statement of the accused Raju Sarkar and that they had not read out the disclosure Page No.# 101/198 statement (Ext-39) to the accused in his language. He has further stated that in Ext-40 (pointing out memo) there was no signature of any local person as witnesses, although local people were present on the spots. This witness has, however, denied the suggestion that they had not visited any place as mentioned in Ext-15 and that accused Raju Sarkar had not led them to any place.
157. PW-58, Sri Bhubaneswar Bora has deposed that in the year 2008 he was working as Principal of Pandu College, Guwahati. On 17.11.2008, he had received a letter from S.I. Suresh Ch. Das of Panbazar Police Station seeking the detail particulars of one Khargeswar Basumatary, a student of their college, in connection with Panbazar P.S. Case No.398/2008. Ext-108 was the said letter and Ext-108(1) was his signature with office seal acknowledging the receipt of the same. This witness has stated that he had verified the Admission Forms containing the photograph and other details of the student concerned and provided the photocopy to Panbazar P.S. Ext-109 is the said photocopy of the admission form. In his cross-examination, this witness has stated that the College authority maintained the admission forms of the students permanently and that there was no rule regarding destruction of the forms. On the date of admission of the student Khargeswar Basumatary i.e. on 29.07.2004, he was working in the capacity of a Professor of the said College and that he was promoted to the post of Principal in the year 2007. This witness has, however, admitted that he did not certify the photocopy of the form to the effect that it was compared with the original by him. He denied the suggestion that the copy of the admission form which he furnished to the authority as per requisition was not the admission form duly filled by the said student.
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158. PW-59, Sri Kumud Chandra Boro has deposed that he was working as an employee of N.F. Railways, Maligaon, Guwahati and posted as Chief Office Superintendent in the office of CCM (FM). He has stated that his father-in-law was Late Hari Charan Sargyary, who had four sons and two daughters. This witness has deposed that he knew Khargeswar Sargyary, a resident of village Naokata, Baksa, who was present in the dock. PW-59 has stated that he had heard that his sister-in-law Lina Sargyary got married to Khargeswar Basumatary but he had no contact with the accused Khargeswar Basumatary. The cross-examination of this witness was declined.
159. PW-64, Sri Dilip Kr. Agarwal has deposed that he had been dealing with an Automobile Spare Parts shop in the name style "Car Concern", situated at Adabari, Guwahati. He used to receive orders for making number plates of cars and delivered the same to the customers. That he used to maintain a "customer order book" at his shop. Ext-108 was the customer order book and Ext-108(1) and Ext-108(2) were the relevant pages of the order book covering the year 2008. He has stated that on 20.10.2008, he had received two orders for making number plates as AS-12-B-8335 and AS-12-N-1025 from the customers and delivered the same accordingly. PW-64, however, stated that he could not remember the customers concerned. One Dhan was shown to him during investigation whom he identified as most likely to resemble one of the customers of the aforesaid cars. Ext-109 was the said photograph and Ext- 109(1) was his handwriting with signature. Ext-110 was the seizure-list wherein Ext- 110(1) was his signature. His statement was recorded under Section 164 Cr.P.C., Ext- 111 was his statement given before the Magistrate wherein Ext-111(1) was his signature. In his cross-examination, he has admitted that his signature was not there in Page No.# 103/198 the order book Ext-108 and that in Ext-108 order book, there was no provision for recording the particulars of a customer. He has further stated that in Ext-108(1) and Ext-108(2) there was no mention of customer's name and there was no signature of the customer and that there was no mention of the delivery date therein. This witness has also stated that he could not remember whether he had recorded any statement before the Magistrate as per the instruction of the Police Officer. He has further stated that he gave his statement before the Magistrate as per his own version.
160. PW-67, Sri Bipin Ch. Rajbongshi has deposed that he was working as an Assistant Teacher in Govt. school since 1993. He had purchased one Maruti Car bearing registration No.AS-01-E-9226 from Ikhtaruddin Talukdar. He had sold the said car to one Raju Sarkar. One Kartik Mondal, mechanic used to service his car and he had arranged the purchaser Raju Sarkar. Ext-114 was the copy of the sale and purchase document in non-judicial stamp paper wherein Ext-114(1) and Ext-114(2) were his signatures and Ext-114(3) was the signature of Kartik Mondal. He had issued one receipt, Ext-115 was the said receipt wherein Ext-115(1) was his signature. Ext-116 was the copy of the transfer form and Ext-116(1) and Ext-116(2) were his signatures therein. Ext-116(3) was the signature of Kartik Mondal. This witness has further stated that he had handed over the documents to the CBI which were seized vide Ext-117, Ext-117(1) and Ext-117(2) were his signatures. Ext-118 is the photo identification memo of Rahul Brahma and Ext-118(1) was his signature and Ext-118(2) was the signature of Kartik Mondal. This witness has further stated that accused Raju Sarkar and Rahul Brahma were present in the dock. In his cross-examination this witness has stated that Page No.# 104/198 the registration of the vehicle is not mentioned in Ext-116. He has, however, denied the suggestion that Ext-116 is a doctored document.
161. PW-68, Kartik Mandal has deposed that he was working as car mechanic. He knew Bipin Ch. Rajbongshi, who own a Maruti 800 car and he used to service that car. He has further stated that he knew accused Raju Sarkar, who used to visit his garage for some repairing works. This witness has stated that Bipin Rajbangshi wanted to sell his vehicle bering registration No.AS-01-E-9226 and asked him to arrange for a purchaser. Accordingly, he had arranged Raju Sarkar and Bipin Rajbongshi sold his car to Raju Sarkar by executing certain documents; he had put his signatures in Ext- 114 and Ext-116. Exts-114(3) and 116(3) were his signatures therein. PW-68 has further stated that during the transfer and taking over the said vehicle, one person was present and on being shown him the photograph of the said person, he had identified the photograph vide photocopy identification memo Ext-118 wherein Ext- 118(2) was his signature. He has stated that the accused Raju Sarkar was present in the dock and another accused whose photograph was attached with Ext-118 was also present in the dock. He has stated that he did not remember the phone number, but he remembered last three digit number were "593". During his cross-examination, this witness has denied the suggestion that there was business rivalry between himself and Raju Sarkar; that both of them had a garage and that he had deposed falsely.
162. PW-553, Sri Krishna Kanta Swargiary has deposed before the court that he knew the accused Khargeswar Basumatary, who was present in the court. He has stated that the accused Khargeswar Basumatary is the grandson of the elder sister of his Page No.# 105/198 father. The accused Khargeswar Basumatary studied from their house at village Naokata and completed his graduation and thereafter, he had married his sister Rameshwari Swargiary. This witness has further stated that later on, he came to know that the accused Khargeswar Basumatary had connection with the National Democratic Front of Bodoland (NDFB). The Goreswar police came to his house and recorded his statement. At that time, his sister Rameshwari Swargiary was present in their house and the police interrogated her as well. He has stated that he did not remember the mobile numbers of the accused Khargeswar Basumatary. In his cross- examination he stated that the CBI officials did not interrogate him.
163. PW-587, Sri Rabindra Boro has deposed that he had been working as an Assistant Teacher at the Goreswar Higher Secondary School. He has stated that during the serial bomb blasts that occurred in the year 2008 in Assam, he was present in the school. This witness has stated that he knew Sri Ganesh Basumatary who was his father-in-law but he did not know Babul Boro. The CBI officials called his father-in-law Sri Ganesh Basumatary to the Panbazar Police Station and he accompanied him. The CBI officials had interrogated him as well as his father-in-law by asking them if they knew anything about the bomb blasts. He has deposed that he did not see the accused Raju Sarkar and the accused Khargeswar Basumatary at the Panbazar Police Station. The accused Khargeswar Basumatary was present in the dock. He has stated that he did not know the accused Raju Sarkar. At this stage, this witness was declared hostile. During his cross-examination by the prosecution, PW-587 has denied that he told the Investigating Officer of the case that the accused Raju Sarkar had told him that the accused Khargeswar Basumatary had directed him (Raju Sarkar) to Page No.# 106/198 park the car with the bomb in the Panbazar area and he complied with the said direction on 30.10.2008. This witness has further denied having told the I.O. of the case that on 29.10.2008, he had been to the house of one Smt. Basanti with the accused Khargeswar Basumatary in a vehicle driven by the accused Prabhat Boro alias Tepa and stayed for the night there and that he told the I.O. of the case that the accused Khargeswar Basumatary had directed the accused Raju Sarkar and Prabhat Boro alias Tepa to spend the night in the car. He has further denied that he told the I.O. that he knew accused Raju Sarkar and that he used to work as a mechanic at the M/S B. D. Motors, Murara, Rangia. This witness has also denied having told the I.O. that in the month of August, 2008 the accused Khargeswar Basumatary had purchased a car in the name of accused Raju Sarkar. He has stated that the house of the accused Khargeswar Basumatary was situated at a distance of about seven kilometers away from his house. In his cross-examination by the defence, PW-587 has stated that he did not see how the CBI officials had written his statement as they did not show him the same.
164. PW-617 Syed Zarir Hussain has deposed that in the year 2010 he was working as the Managing Editor of the Newslive T.V. Channel, Guwahati. This witness has stated that in the year 2010 they had telecast a news item regarding October, 30, 2008 serial Bomb Blasts case of Assam relating to the accused Rahul Brahma. The CBI had arrested the accused Rahul Brhma from Arunachal Pradesh and had brought him to Lakhimpur, Assam. He has stated that their Reporter Jitu Moni Neog (PW-618) had managed to talk to the accused Rahul Brahma on camera and recorded his interview. They had telecast the interview of the accused Rahul Brahma as the first Page No.# 107/198 confessional statement of the accused of the October 30, 2008 serial bomb blast case. Three blasts were carried out in Guwahati and the accused Rahul Brahma told Jitu Moni Neog that he was travelling in the Maruti car driven by one Raju Sarkar with an LPG cylinder filled with TNT explosives and parked the car at Panbazar and left the scene. This witness has further stated that the accused Rahul Brahma told Jitu Moni Neog that when they reached Bharalumukh, the blast took place at Panbazar and that after the blast, he first went to Rangia and from there, to Chimen Chapori or Shimalu Chapori of District Dhemaji. PW-617 has stated that in the interview, their reporter Jitu Moni Neog had twice asked the accused Rahul Brahma as to under whose direction they carried out the blasts and the accused had replied that they had carried out the blasts as per the order of Ranjan Daimari. This witness has further deposed that when their reporter Jitu Moni Neog had asked the accused Rahul Brahma as to who had planted the bombs in the court of Chief Judicial Magistrate, Kamrup (Metro) and at Ganeshguri, the accused replied that Thungri Narzary had planted the bombs at the court of Chief Judicial Magistrate, Kamrup(M) and at Ganeshguri some Jhankhang had done so. After the telecast of the interview, the CBI personnel met him and asked for the telecast interview and also the translated version of the same. Since the accused Rahul Brahma gave the interview in Assamese language therefore, he translated the same into English language and delivered the same to the CBI personnel. Ext-534 is the forwarding letter written by him to the CBI and Ext-534(1) was his signature. Ext-535 was the translated version of the interview and Ext-535(1) was his signature. This witness has further stated that he had also delivered the CD of the telecast (interview) to the CBI personnel. Mat. Ext-VIII was Page No.# 108/198 the copy of the CD of the telecast interview. In his cross-examination this witness has stated that they had received the interview of the accused Rahul Brahma from Lakhimpur via their Digital Satellite News Gathering Van stationed at Lakhimpur. He had denied the suggestion that Mat. Ext-VIII office copy of the CD was not a genuine copy and was manufactured for this case.
165. PW-618, Sri Jitu Moni Neog has deposed that he was a journalist and since 2008 he had been working as the Lakhimpur Bureau Chief of the Newslive T.V. Channel, Guwahati. He has stated that on 29.05.2010, he had interviewed one Rahul Brahma at Lakhimpur Police Reserve and that Rahul Brahma had told him that he had carried out the blast at Panbazar, Guwahati. This witness has stated that when he asked the accused Rahul Brahma as to how he had carried out the blasts, he told him that they had carried an LPG cylinder filled with TNT explosives in a Maruti car driven by Raju Sarkar and parked the car at Panbazar and left the scene. The accused Rahul Brahma further told him that when they reached Bharalumukh, the blast took place at Panbazar and that after the blast he went to Rangia and from there, to Chimen Chapori, Dhemaji. PW-618 has further stated that the accused Rahul Brahma had also told him that one B. Jangkhai and another some Narzary had planted the bombs in the court premises of the Chief Judicial Magistrate, Kamrup(M), Guwahati and at Ganeshguri. He has further stated that he had interviewed Rahul Brahma about eight years ago and hence, would not be able to recognize him. In his cross-examination this witness has denied that he had recorded the interview as per the direction of the police and that Rahul Brahma gave the interview as per the direction of the police. He also denied the suggestion that he did not interview Rahul Brahma and that he Page No.# 109/198 had deposed falsely.
P) Evidence against accused Raju Sarkar :-
166. PW-61, Sri Divyajyoti Choudhury has deposed that in the year 1993 he was working in Mohanbari Tea Estate at Baihata Chariali. This witness has stated that Sri Om Prakash Borak @ Raja Babu, supplier of the Tea Estate had requested him to arrange for one second hand car from Delhi and accordingly, after 3/4 months of the same year, he had arranged one Maruti 800 car, bearing registration No.DBG-5540 belonging to one Multan of Delhi. He has stated that he purchased the vehicle at a price of Rs.1,10,000/- and accordingly Raja Babu transferred the registration of the said car in his name through the office of the DTO, Nalbari. He has further stated that in the year 1996, he had sold his car to Sayada Kaiser, a resident of Bhangagarh, Guwahati at a price of Rs.1,00,000/- and transferred the registration in her name. In his cross-examination this witness has stated that he had just sold the car and nothing beyond that.
167. PW-62, Sayed Mustafa Kaisher (Haider) has deposed that in the year 1996 he had purchased one second-hand Maruti 800 car from one Divyajyoti Choudhury (PW-
61) of Guwahati in the name of his wife Sayeda Sabita Kaisher and registered the car accordingly. The registration no. of the said car was DVG-540 and the car was registered in the office of the DTO, Kamrup, Guwahati and it was re-numbered as No.AS-01-E-9226. He has further stated that after some days of purchase of the car, it was sold to one Pradip Hazarika, of Bhangagarh, Guwahati in the year 1997. In his cross-examination this witness has stated that he had not seen the registration Page No.# 110/198 certificate of the said Maruti 800 car bearing registration No.AS-01-E-9226.
168. PW-182, Smt. Basanti Boro, was a resident of Gorchuk, Noagaon, Guwahati. This witness has deposed that one day, the police came to her house and asked her as to whether some persons had come to her house or not. She told the police that three persons came to her house on the previous night and one of them spent the night in their house and the other two stayed in a different house. She has stated that the police apprehended one of the other two persons, brought him to her house and asked her whether he was one of the said persons to which she replied in the affirmative. She has further stated that the said person was present in the court and she had identified the accused Raju Sarkar as the said person and also stated that he came to her house in a vehicle. In her cross-examination this witness has stated that except Assamese language she did not understand any other language. She has further stated that she did not know the accused Raju Sarkar before the said incident.
169. PW-387, Sri Om Prakash Borar has deposed that Sri Multan Chand Jain was his brother-in-law, who resides in New Delhi and had a white coloured Maruti 800 car, the registration no. of the car being DBG-5540. He has further stated that he had purchased the said car from Multan Chand Jain and brought the car to his residence at Monabari Tea Estate. This witness has stated that after driving the car for about two years, he had sold the car to Sri Dibyajyoti Choudhury (PW-61), the then Manager of the Adabari Tea Estate, Balipara, Sonitpur.
170. PW-398, Sri Harendra Kalita has deposed that the CBI officer interrogated him and asked him whether he knew Raju Sarkar or not. He told the CBI officer that Raju Page No.# 111/198 Sarkar was working as a mechanic under the dealer of Yamaha at Murara Chowk, Rangia. The witness had indicated towards accused Raju Sarkar who was present in the court. PW-398 has further stated that accused Raju Sarkar had purchased a Maruti 800 car from Bipin Rajbongshi of Mdhukuchi, Rangia on 24.08.2008 vide Ext-114 sale letter in his presence and he had signed the Ext-114 as a witness. Ext-114(iv) was his signature therein and that the original copy the Ext-114 sale letter was with the accused Raju Sarkar. He has stated that the registration number of the said Maruti 800 car was AS-01-E-9226. In his cross-examination he has stated that he did not know Bipin Rajbongshi and that he had signed in the Ext-114 sale letter at the request of accused Raju Sarkar as he was his friend. He has further stated that Raju Sarkar had purchased the said car at Rs.47,000/-.
171. PW-399, Sri Rajiv Lahary has deposed that the CBI personnel had once called him to the Panbazar Police Station and asked him whether he knew Raju Sarkar. He told the CBI personnel that his brother-in-law Jayanta Boro used to work under Raju Sarkar as a motorcycle mechanic and because of that he knew Raju Sarkar. This witness has stated that along with his brother-in-law Jayanta Boro and one Nabin Boro, he went to the Panbazar Police Station and indentified Raju Sarkar. Cross- examination of this witness was declined.
172. PW-400, Sri Nabin Boro has deposed that once Jayanta Boro and Rajiv Lahary were called to the Panbazar Police Station and he accompanied them. He has stated that when they reached Panbazar P.S., the police took Jayanta Boro and Rajiv Lahary to a room. He was also taken along with them. This witness has stated that one Page No.# 112/198 Bengali boy was present in the room and the police asked Jayanta Boro and Rajiv Lahary whether they knew the boy to which they replied in the affirmative. The police had asked him as to what he does and he replied that he was a school teacher and accompanied Jayanta Boro and Rajiv Lahary at their request. Cross-examination of this witness was declined.
173. PW-466, Sri Chandra Deep Sharma has deposed that in the year 2009 he was posted in the Vigilance Department of the Maruti Suzuki India Limited, Gurgaon, Haryana, as a senior Executive. On 04.02.2009, the CBI officer had approached him seeking some information regarding a Maruti car and accordingly, he had checked the official records and furnished the information to the CBI officer. The information sought for was regarding Maruti 800 car bearing Chassis No.223480 and Engine No.303447. The said car was dispatched to M/s Ganga Automobiles Ltd., Green Park, New Delhi. Ext-334 was the said information that he had furnished to the CBI officer and Ext-334(i) was his signature therein with the office seal.
174. PW-475, Sri Shankar Deka has deposed that he was a sub-dealer of the Yamaha Motorcycle and had a showroom at Murara Chowck, Rangia. He stated that he knew accused Raju Sarkar and that when he started his showroom, the accused Raju Sarkar was working as the only mechanic. The accused Raju Sarkar had worked for about 3/4 years in his show room and thereafter, he had opened a motorcycle repairing shop near his showroom. He has further stated that after some time, the accused Raju Sarkar wanted to again work under him, but he did not reappoint him. PW-475 has further stated that in the year 2008, the accused Raju Page No.# 113/198 Sarkar had purchased a Maruti car from one Bipin Rajbongshi of village Madhukuchi. He has also stated that the accused Raju Sarkar was present in the court. During his cross-examination, this witness has stated that he could not say as to when Raju Sarkar had purchased the said Maruti car and that later on, he came to know that the accused Raju Sarkar had purchased the Maruti car from Bipin Rajbongshi of village Madhukuchi. He has further stated that personally he did not know Bipin Rajbongshi.
175. PW-489, Sri Pancham Lal has deposed before the Court that he was a retired Head Clerk of the General Administration Department, Government of NCT, New Delhi. In the year 2009 he was posted as an Upper Division Clerk in the office of the R.T.O., South-West Division, Sheikh Sharai, New Delhi. On 03.02.2009, he was verbally directed by the Motor Vehicle Licencing Officer to hand over the record of the Maruti 800 car bearing registration No.DBG-5540 to the CBI officials and accordingly, he had handed over the same to the CBI officials. The CBI officials had seized the said file vide Ext-410 seizure memo. Ext-410(i) was his signature therein. Ext-411 (18 sheets) was the seized file containing registration records of the Maruti 800 car No.DBG-5540. He has further stated that as per Ext-411, the original registered owner of the Maruti 800 car No.DBG-5540 was M/S Swastik Enterprises and later on, the ownership was transferred to Sri Multan Chand Jain. The cross-examination of this witness was declined.
176. PW-547, Sri Upen Bora has deposed that on 01.12.2008 he was posted as the Deputy Director, Explosive Division, F.S.L., Assam, Guwahati. In connection with Page No.# 114/198 Kokrajhar P.S. Case No.371/2008, the then Director, FSL, Assam, Guwahati gave him one cartoon box, which was properly sealed and covered with clothes and asked him to examine the articles inside the box. Accordingly, he had opened the box and found 1) some broken pieces of bicycle marked as Ex-A, 2) one torn piece of a plastic bag marked as Ex-B and 3) 2.4 kg. soil marked as Ex-C. This witness has stated that after conducting proper chemical and analytical examination of the exhibits he had found the following :-
"1. Ex-A damaged due to an explosion, using high explosives. The name of the manufacturing company of the damaged bicycle could not be recovered, however, the serial No. of the bicycle was 0297322.
2. Ex-A, Ex-B and Ex-C contained TNT (Tri Nitro Toluene) which is a high explosive.
Ex-B and Ex-C were destroyed during examination."
This witness has further stated that they returned the Ext-A to the Deputy Superintendent of Police, Kokrajhar. Ext-490 was the report prepared by him and Ext- 490(i) was his signature therein. Mat. Ext-IV was the portion of the damaged bicycle which he had examined. The serial number of the bicycle was 0297322.
177. PW-547 has further deposed that in connection with Bongaigaon P.S. Case No.451/08 as instructed by the Director, FSL, Assam, Guwahati he had examined the following articles: 1. 65 grams soil marked as Ex-A, 2. One torn piece of cloth marked as Ext-B and 3. Five pieces of irons marked as Ex-C. After conducting proper chemical and analytical examination of the exhibits he had arrived at the following conclusions Page No.# 115/198 :-
"1. Ex-A, Ex-B and Ex-C contained TNT (Tri Nitro Toluene) which is a high explosive.
2. I could not ascertain whether the Ex-C were parts of an exploded bomb or not.
All the exhibits were destroyed during examination."
Ext-491 was the report prepared by him and Ext-491(i) was his signature therein. PW-547 has further deposed that as instructed by the Director, FSL, Assam, Guwahati he had examined the following articles in connection with Barpeta Road P.S. Case No.262/2008:- 1) 20 grams debris marked as Ex-A, 2) 3 broken pieces of irons marked as Ex-B. After conducting proper chemical and analytical examination of the exhibits he had arrived at the following conclusions :-
"1. Ex-A and Ex-B contained traces of high explosive (RDX)"
This witness stated that all these exhibits were destroyed during examination. Ext-492 was the report prepared by him and Ext-492(i) was his signature therein.
178. In connection with Barpeta Road P.S. Case No.261/08, PW-547 had examined the following articles: 1) 18 grams debris marked as Ex-A, 2) 3 pieces of iron marked as Ex-B. After conducting proper chemical and analytical examination of the exhibits he had arrived at the following conclusions :-
"1. Ex-A and Ex-B contained traces of RDX which is a high explosive.
2. Nature of timing device used could not be determined from the Ex-A and Ex-B."
Page No.# 116/198 Ex-A and Ex-B were destroyed during examination. Ext-493 was the report prepared by him and Ext-493(i) was his signature therein.
179. PW-547 has further stated that in connection with Dispur P.S. Case No.1419/08, he had examined the following articles: 1) One part of a damaged engine of a vehicle marked as Ex-A, 2) 256 grams of debris mixed with soil marked as Ex-B. After conducting proper chemical and analytical examination of the exhibits he had arrived at the following conclusions :-
"1. Ex-A was a damaged engine of a Maruti 800 car (Engine No.F8B IN 3043461). The engine was damaged due to an explosion taking place inside the car.
2. Ex-B contained Ammonium Nitrate and RDX.
3. The serial No. of the front tyres found attached to the damaged engine were : (i) JK TYRE ULTIMA XP- JK 7 B017401 DEC. 02 (Left hand side), (ii) MRF ZIGMA-VT-60005417277 (Right hand side)."
Ext-B was destroyed during examination. Ext-494 was the report prepared by him and Ext-494(i) was his signature therein.
180. PW-547 has further stated that in connection with Panbazar P.S. Case No.398/08, he had examined the following articles: 1) One part of a damaged engine of a vehicle marked as Ex-A, 2) 520 grams of soil marked as Ex-B. After conducting proper chemical and analytical examination of the exhibits he had arrived at the following conclusions :-
Page No.# 117/198 "1. Ex-A was a damaged part of an engine of a Maruti 800 car (Engine No.F8DN 1074626). Ex-A was damaged due to an explosion taking place inside the car.
2. Ex-B contained Ammonium Nitrate and RDX."
Ex-B was destroyed during examination. Ext-495 was the report prepared by him and Ext-495(i) was his signature therein.
181. In connection with Panbazar P.S. Case No.399/08, PW-547 had examined the following articles: 1) one damaged part of an engine of a vehicle marked as Ex-A, 2) 490 grams of soil marked as Ex-B. After conducting proper chemical and analytical examination of the exhibits he had arrived at the following conclusions :-
"1. Ex-A was a damaged part of Maruti car (Engine No.F8B IN 303447).
2. Ammonium Nitrate and RDX has been found in Ex-B.
3. The serial No. of the tyre attached to the engine was (i) MRF- ZIGMA CC-
RADIAL - 70- 60375376469."
Ext-B was destroyed during examination. Ext-496 was the report prepared by him and Ext-496(i) was his signature therein.
182. PW-547 was further examined by the learned trial court on 15.11.2018. In course of his further examination, PW-547 has stated that Material Ext-XI was the Engine No.F8B-IN 3043461 of the above mentioned Maruti-800 car, Material Ext-XII was the Engine No.F8DN-1074626 of the above mentioned Maruti-800 car and Material Ext-XIII was the Engine No.F8B-IN-303447 of the above mentioned Maruti 800 car.
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183. In his cross-examination, PW-547 has stated that on the day of the incident itself, they went to the place of occurrence and suspecting that the above mentioned material exhibits/engines were used in the blast, they marked the said engines, which were later on sent to their laboratory and found the aforesaid numbers therein. He has, however, admitted that he did not take the photographs of the engine numbers. He has denied the suggestion that the engines he had examined were not the engines produced in the Court and that he did not find any evidence of explosive substance in the aforesaid engines.
184. PW-582, Sri Kushal Chandra Talukdar has stated that he was working as an LICI Agent and that he knew Sri Bipin Chandra Rajbongshi who was his client. This witness has further stated that Bipin Chandra Rajbongshi had a Maruti 800 car and he sold the car to the accused Raju Sarkar, who was present in the dock. Cross-examination of this witness was declined.
185. PW-584, Sri Ganesh Basumatary has deposed that he worked in the Irrigation Department and was posted as the Accountant in the office of the Irrigation Department at Tangla, Udalguri. He has stated that he knew accused Ajay Boro, who was his neighbour. He also knew Sri Babul Boro, who was a professional driver and used to drive a Maruti Alto car. This witness has stated that once he had hired the vehicle of Sri Babul Boro. The said vehicle belonged to ex-serviceman Ghanakanta Rabha and he did not know where he resides. This witness has stated that he knew accused Raju Sarkar and that he was a motorcycle mechanic but he did not know Khargeswar Basumatary. Cross-examination of this witness was declined.
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186. PW-585, Sri Jayanta Boro has deposed that he was working as an employee of the Indian Railways. Before joining the Railways, he was working in an auto rickshaw garage as a mechanic. He knows accused Raju Sarkar. At that time, Raju Sarkar was working under a motorcycle dealer as a mechanic and he was also learning the work of mechanic under him. This witness has stated that accused Raju Sarkar had purchased a Maruti car. However, after the bomb blasts that occurred in various places in the State of Assam, he did not meet Raju Sarkar nor does he remember the mobile number of Raju Sarkar. Cross-examination of this witness was declined.
187. PW-586, Sri Ranjit Boro has deposed that he knows accused Raju Sarkar. He had met accused Raju Sarkar at the Panbazar Police Station. Since his uncle Ganesh Basumatary was also taken to the Panbazar Police Station, he went to the Panbazar Police Station to meet him and then he found Raju Sarkar and he told him that they had committed a mistake. This witness has, however, stated that he did not remember what else Raju Sarkar told him. During his cross-examination PW-586 had stated that he saw Raju Sarkar inside the lock up at Panbazar Police Station and there were many police personnel near the lock up. He had seen accused Raju Sarkar from a distance of about 50 ft. He was not allowed to talk to accused Raju. As there were many people around, he could not clearly hear what accused Raju Sarkar had said. He has further deposed that the Bodo people of the locality did not like Raju Sarkar as he had married a Boro girl while he was having another wife who was alive.
188. PW-587, Rabindra Boro was working as an Assistant Teacher at the Goreswar Higher Secondary School. He has deposed that on the day on which the bomb blasts Page No.# 120/198 had occurred, he was present in his school. He knows Sri Ganesh Basumatary, who was his father-in-law. CBI officials had called his father-in-law Ganesh Basumatary to Panbazar Police Station and he had accompanied him. The CBI officials interrogated his father-in-law and he was accompanying them. The CBI had also asked him whether he knew anything about the bomb blasts. This witness has, however, stated that he did not see accused Raju Sarkar and Khargeswar Basumatary at the Panbazar Police Station. PW-587 has also stated that accused Raju Sarkar did not tell him that accused Khargeswar Basumatary had directed him to park the car with bomb in Panbazar area and he complied with the said direction on 30.10.2008. At this stage, this witness was declared as a hostile witness. During his cross-examination by the prosecution side PW-587 had denied having stated before the I.O. of the case that accused Raju Sarkar had told him that accused Khargeswar Basumatary had directed him to park the car with bomb in Panbazar area and he complied with the said direction on 30.10.2008. He has also denied of having said before the I.O.that on 29.10.2008, he had been to the house of Smti. Basanti alongwith accused Khargeswar Basumatary in a vehicle driven by the accused Prabhat Boro alias Tepa and stayed there overnight. As a matter of fact, this witness has denied having stated before the I.O. as regards the involvement of accused Raju Sarkar as well as Khargeswar Basumatary relating to purchase of a car in the name of accused Raju Sarkar.
189. PW-621, Suresh Chandra Das was serving as an Officer under the Assam Police. This witness has deposed that he was posted at the Panbazar Police Station as a Sub- Inspector in the month of October, 2008. On 30.10.20098, at around 11:30 a.m. while he was present in the Panbazar Police Station, he heard a loud sound outside the Page No.# 121/198 police station. Immediately, he and other police personnel from the Panbazar Police Station came out and saw that black smoke had engulfed the entire area near the Panbazar Baptist Church and the people around were running away from the place. He had heard that a bomb had exploded and found many injured persons lying on the ground. Immediately he had shifted the injured persons to the MMC Hospital, Panbazar. PW-621 has further stated that he had also found some dead bodies lying at the blast site and shifted them to the MMC Hospital, Panbazar. The then Officer-in- Charge of Panbazar Police Station, viz., Sri Sisir Kumar Boro had lodged an F.I.R. reporting the blast based on which a police case was registered and he was asked to investigate the matter. During the course of investigation, he had visited the blast site, examined some witnesses, seized damaged parts of cars and motorcycles from the blast site. He had also seized the damaged goods of the shops situated near the blast site. This witness has deposed that he had seized one number plate of a vehicle bearing No.AS-12-D-8335 and an Engine of a Maruti vehicle bearing No.F8F IN 303447 from the blast site. He had also seized about 1100 grams of soil and 16 damaged vehicles from the blast site. Ext-538 is the said seizure memo and Ext-538(1) was his signature therein. He had seized the damaged goods of 7 shops situated near the blast site. Ext-539 to Ext-545 were the seizure-lists and Exts-539(1), Ext-540(1), Ext-541(1), Ext-542(1), Ext-543(1), Ext-544(1) and Ext-545(1) were his signatures in those seizure lists.
190. PW-621 has further deposed that during investigation he had found that seized number plate bearing registration No.AS-12-D-8335 was that of a motorcycle and the owner of the motorcycle was a resident of village Odali under Lanka Police Station. He had called the owner to Panbazar Police Station and interrogated him. After Page No.# 122/198 carrying out investigation, he had found that the motor-cycle bearing registration No.AS-12-D-8335 was not used in the aforesaid blast and hence, he had released the owner of the motorcycle. He has also found that Maruti car bearing engine No.58B IN 303447 seized from the blast site was used in the blast with a fake number plate. On the same day i.e. on 30.10.2008, another bomb had exploded in the compound of the court complex of the Chief Judicial Magistrate, Kamrup(M), Guwahati. The Investigating Officer of the said blast case had also seized a number plate bearing No.AS-12-N-1025. On the basis of the investigation they came to the conclusion that the blasts were carried out with the help of used Maruti vehicles having fake number plates. After enquiry, they came to know that the miscreants had procured the aforesaid fake number plates from a shop situated at Adabari Bus stand, Guwahati. The name of the shop was "Car Concern" and the name of the owner was Dilip Kumar Agarwal. He had seized the Order Book of the shop in which somebody had ordered for preparing the aforesaid fake number plates vide Ext-110 seizure list. He had also recorded the statement of the owner Dilip Kumar Agarwal and got his statement recorded by the Magistrate under Section 164 Cr.P.C. He then sent the seized soil of the blast site to the FSL, Kahilipara, Guwahati for examination. During investigation, he had searched the house of Sri Khargeswar Basumatary and seized one mobile phone and one diary with the photographs of Khargeswar Basumatary vide seizure memo Ext-521. This witness has further deposed that while conducting investigation he also came to know that the banned terrorist organization NDFB was involved in the bomb blasts. From secret sources, he came to know that one driver by the name Babul Boro of village Bangaon, Rangia knew about the persons involved in Page No.# 123/198 the blasts. Then he called Babul Boro to the Panbazar Police Station and interrogated him. Babul Boro told him that on 30.10.2008, at around 6:30 a.m. he had brought three Bodo youths by his Alto car to Guwahati. He interrogated many other persons but could not find out the NDFB cadres who had caused the aforesaid blasts. In the meantime, the case was transferred to the CBI for investigation and he had handed over the Case Diary to the Officer-in-Charge of the Panbazar Police Station for handing over the same to the CBI.
191. During cross-examination, PW-621 has replied that he had seized the engine of the Maruti car from the blast site. The engine number was there in the engine which was not damaged in the blast. He did not find other parts of the vehicle along with the engine as those were lying scattered. He has denied the suggestion that he did not receive any information from any secret source that the banned terrorist organization NDFB was involved in the serial bomb blasts.
Q) Evidence against accused Prabhat Boro @ Tepa :
192. PW-46, Smt. Nirmali Sarma has stated in her evidence that she had purchased one Indica car bearing registration No.AS-01W-6864 in the year 2007 and had engaged a driver on salary. Initially, the car was driven by one Munna and thereafter, she had engaged one Prabhat Boro alias Tepa in the year 2007. Prabhat Boro was irregular and finally his services were terminated in the month of October, 2008. CBI had interrogated her and showed her the photograph of Prabhat Boro (Mat. Ext-9) which she identified. In her cross-examination this witness has stated that Prabhat was working as a driver in her house for the period from November, 2007 to October, 2008 Page No.# 124/198 but thereafter, she did not maintain any contact with Prabhat.
193. Sri Nirpad Choudhury was examined as PW-47. This witness has stated that on being summoned by the CBI in connection with the investigation carried out on the incident of Guwahati Bomb blasts he went to the Circuit House along with Rabiram Boro who had identified the photograph (Mat. Ext-9) of his nephew Tepa alias Prabhat by putting his signature in the photograph.
194. Rabiram Boro, while deposing as PW-51, has confirmed that Prabhat Boro alias Tepa was his nephew and that he was working as a driver of private vehicles during the year 2007-2008. On 30.10.2008, Tepa rang him up at about 10/11 a.m. and informed him that he was going to his native place at Barama. Since 30.10.2008 Tepa has not contacted him. Mat. Ext-9 is the photograph of his nephew Tepa alias Prabhat Boro. During his cross-examination, PW-51 has deposed that Tepa is his nephew and also his neighbour.
195. PW-57, Nakul Boro is also a professional driver and he used to reside in a rented house situated at Sarumotoria under Dispur Police Station, in the year 2008. This witness has confirmed that Prabhat Boro alias Tepa and two others were residing with him in the same rented house and Prabhat was also driving vehicles. He has deposed that he used to have frequent telephonic conversations with Tepa but since the bomb blasts that took place at Ganeshguri, he had lost contact with accused Prabhat Boro. Cross-examination of this witness was declined.
196. PW-176, Sri Anowar Hussain is the son of the owner of a pharmacy located in the Guwahati Medical College and Hospital complex at Bhangagarh in the name Page No.# 125/198 and style "Rumi Medical". This witness has deposed that Sri Pranab Boro used to work in his pharmacy as a salesman. In the year 2009, the CBI personnel came to his shop and asked if Pranab Boro works in his pharmacy and he had answered them in the affirmative. Rabiram Boro was accompanying the CBI personnel. When he answered that he knew Pranab Boro, the CBI personnel showed him some photographs of Pranab Boro and obtained his signatures. The CBI personnel also asked Rabiram Boro whether he knew Prabhat Boro and he replied that Prabhat Boro was his nephew. During his cross-examination this witness has deposed that Rabiram Boro used to work in a pharmacy near his pharmacy.
197. PW-382, Sri Ashim Boro is another professional driver who was driving a Bolero vehicle during the year 2008. He has deposed that he was staying in a rented house near Sarumotoria along with Tepa and one Nakul Boro. On the day of the bomb blasts i.e. 30.10.2008 Tepa was not present in the rented house. He had identified Tepa before the CBI by pointing out at the accused Prabhat Boro present in the court.
198. PW-386, Sri Pranab Boro is the elder brother of accused Prabhat Boro and he has confirmed that his youngest brother Prabhat was a professional driver and that he used to reside with his friends near Ganeshguri.
199. PW-638, Pranab Das was working with the CBI since the year 2003. He has deposed that in the month of January, 2009 while he was working as a Sub-Inspector in the CBI, ACB, Kolkata, West Bengal, he was directed to assist the IOs of the Assam Bomb Blasts case. Accordingly, he had assisted the Investigating Officers viz., Sri N. S. Page No.# 126/198 Kharayat and Sri N. K. Pathak. This witness has deposed that during the course of investigation he had seized two subscriber enrollment forms vide Ext-620, seizure memo. He was present at the time of recording the disclosure statement and preparing the pointing out memo of the accused Prabhat Boro by the Investigating Officer Sri N. K. Pathak. Ext-12 was the disclosure statement of accused Prabhat Boro and Ext-12(3) was his signature. During his cross-examination this witness has stated that Prabhat Boro communicated with them in Hindi and Assamese language. The contents of Ext-12 disclosure statement and Ext-13 pointing out memo were read over and explained to the accused Prabhat Boro by himself and the Investigating Officer Sri N. K. Pathak.
R) Evidence against accused Mathuram Brahma -
200. PW-17 Sri Jatindra Nath Pathak was serving as Extra Assistant Commissioner (EAC) posted at Guwahati since 15-12-2010. He has deposed that on 13-01-2011, while he was working in his capacity as EAC, he went to S.B. Headquarter and met accused George Boro who was produced before him. On that day, George Boro was interrogated before him by the CBI officials and he made his statement wherein he had admitted his involvement in the bomb blast that took place on 30-10-2008. Exhibit- 26 is the disclosure statement of George Boro made before him. Exhibit- 26(2) was his signature. This witness has stated that after making the disclosure statement, the accused George Boro volunteered to take them to the places where he had brought the bomb in a maruti vehicle and how he had parked the vehicle under the Ganeshguri flyover on 30-10-2008. After parking the vehicle how he and accused Page No.# 127/198 Aogai and Jeetu Daimari drove away in a parked TATA Sumo vehicle. Exhibit- 27 was the pointing out memo prepared on the basis of statements and disclosures made by accused George Boro, which bears his signature. PW-17 has further stated that based on the statement of accused George Boro, rough sketches of the roads and places from where the accused had started with the bomb laden car were drawn up. Exhibit- 28 is the said sketch map which bears his signature. Exhibits- 26, 27 and 28 were signed by George Boro in his presence. Exhibits- 26(3), 27(3) and 28(4) as well as 28(2) are the signatures of George Boro which were put in his presence. On 28-02- 2011 the accused Mathuram Brahma @ Mudoi had made a disclosure statement before him wherein he had stated that he bought 50 kgs. of TNT explosive from the house of Arun Borgoyari along with Jeetu Daimari in an Indica car and kept the same near the house of Rifikha. He had also stated that he filled up empty gas cylinder used in the Ganeshguri flyover blast with the above TNT explosives and had also filled up 2(two) pressure cookers used in Barpeta Road/ Choudhury Complex and Sabzi market, Barpeta Road bomb blast. Exhibit- 29 is the disclosure statement of Mathuram Brahma which bears his signature. This witness has further stated that the accused had voluntarily disclosed the above facts without there being any force or coercion on him.
201. PW-20 Bipul Saikia was posted as Circle Officer-cum-Executive Magistrate, Kokrajhar during the year 2011. This witness has deposed before the court that he recognises accused Mathuram Brahma who is on the dock. On 28-02-2011, the CBI personnel along with Mathuram Brahma, went to Jaraguri to show the house of Arun Borgoyari @ Tinthilong from where, accused Mathuram Brahma had received the TNT Page No.# 128/198 explosive. He was also present there along with CBI personnel. According to the pointing out memo prepared, the accused had shown the place and taken the team there. Exhibit- 30 is the pointing out memo which bears his signature as Exhibit- 30(1). This witness has also stated that accused Mathuram Brahma had also put his signature (Exhibit- 5) which he could identify.
202. PW-21 Debeswar Bora was another Circle Officer-cum-Executive Magistrate who was posted at Boranagar Revenue Circle during the year 2011. This witness has deposed that on 01-03-2011 the District Magistrate, Barpeta had directed him to accompany the CBI official and accused Mathuram Brahma to the places where he took him. Mathuram was present in the court on that day. PW-21 has further stated that he came to the Barpeta Road Police Station at around 01:30 p.m. and from there, went to Khoygrabari to the house of one Rifikham on his own vehicle. The accused Mathuram also went there with the CBI officials. There, accused Mathuram Brahma had shown as to how he had kept the TNT explosive in gas cylinders and pressure cookers and how he had kept them in bamboo bushes concealing the same from others. He also took them to the bamboo bushes where he (accused) had concealed those cylinders and pressure cookers. From there, he had taken the explosives to Barpeta Road Sabzi market and Choudhury complex. PW-21 has further stated that the accused had made a statement in his presence which was written down by CBI officials. Exhibit- 31 was the said statement of Mathuram Brahma which bears his signature. Exhibit- 31(2) is the signature of Mathuram Brahma. The witness has further stated that Exhibit- 32 is another statement made by Mathuram Brahma in his presence by which he had pointed out that he had carried the bomb to Choudhury Page No.# 129/198 complex and kept the same in a motorcycle on 30-10-2008. Exhibit-32(1) was his signature and Exhibit- 32(2) was the signature of Mathuram Brahma. During his cross- examination, this witness has stated that on reaching Khoygrabari, when he had asked an old man as to whose house is this, he had told him that it was the house of Rifikhang. He has further stated that pointing out statement was made in his presence and he had put his signature therein. PW-21 has further stated that they had reached the Choudhury complex at about 04:30 p.m. and saw that there was a gathering over there but he could not identify any person. This witness has stated that he had put his signature with date and designation as 1/2/11 on Exhibit- 31 by mistake which he had discovered later on and informed the CBI officials telephonically but no letter was sent by him for rectification of the defect.
203. PW-646 Narayan Singh Yadav was one of the Investigating Officers. He has deposed before the court that from 2004 to 2008 he was posted as the Dy. Superintendent of Police, Special Task Force (STF), CBI, New Delhi. On 19-12-2008 and 20-12-2008 nine bomb blast cases were handed over which were registered by the CBI and he was entrusted to carry out investigation in respect of three blast cases of Kokrajhar district by the Superintendent of Police, Special Task Force (STF), CBI. Accordingly, he had investigated the case. PW-646 had stated that during the course of investigation, on 04-01-2009, he had arrested the accused Jayanti Brahma @ Jugami. He took her into custody and on the same day the accused Ajay Basumatary @ B. Aogi was arrested by Superintendent of Police, CBI, STF Sri N.S. Kherayat. Thereafter, they went back to Kokrajhar along with accused Jayanti Basumatary and interrogated her. Accused Ajay Basumatary was interrogated by I/O Page No.# 130/198 in connection with one of the blast cases, viz. N.K. Pathak. Accused Jayanti Brahma @ Jugami had disclosed that in the month of August, 2008, she had brought some packets of detonators from Bangladesh. When he discussed the matter with the S.P., CBI, STF Sri N.S. Kharayat, he told him that the accused Ajay Basumatary @ B. Aogi had disclosed about all the nine blast cases on 30-10-2008. This witness has also stated that during investigation, he had found that NDFB had started armed rebellion against the Armed Forces and the civilian and had killed innocent people by forming their own army. As the NDFB were indulging in extremist activities, the Govt. of India had called them for talks and a tripartite ceasefire agreement was signed in the year 2005. However, accused Ranjan Daimari was not happy with the tripartite ceasefire agreement as he felt that Govt. of India was not coming forward for negotiation for settlement of their demand. Therefore, the NDFB continued its extremist activities. This witness has further deposed that earlier, in pursuance of the aforesaid conspiracy, in the month of August, 2008, the NDFB cadre Nilim Daimari was sent to Assam from Bangladesh to arrange explosives to carry out the blasts with the help of the NDFB cadres working in Assam. Mr. Nilim Daimari contacted the NDFB cadres Mr. John, Mr. Rifikhang, Mr. Rahul Brahma, Mr. Guthal and others for arranging the explosives as per the direction of Mr. Ranjan Daimari @ D.R. Nabla @ Lasdum, Chairman of the NDFB. At that time, Mr. Ranjan Daimari @ D.R. Nabla @ Lasdum, was running the NDFB from Dhaka, Bangladesh. After meeting the above mentioned NDFB cadres, while Mr. Nilim Daimari was going back to Dhaka via Tura, Meghalaya, he was arrested by the Tura police on 04.09.2008. A letter written by the accused John in Bodo language and one pen drive was recovered from his possession. He has stated that our officer Page No.# 131/198 had collected the letter along with the pen drive from the Tura police and got the letter translated into English. The letter was preface to the conspiracy to cause the aforesaid nine blasts.
204. Thereafter, on 13.10.2008, the accused Ajay Basumatary came from Bangladesh to Guwahati and went to the residence of the accused John, situated at 123 Lakhiminagar, Hatigaon, Guwahati and they decided to hold a meeting with Mr. Dinthilang, an absconding accused of this case and the self-styled army chief of the NDFB. At that time, the absconding accused Mr. Dinthilang was staying at village Jharaguri, Kokrajhar. The accused namely, Ajay Basumatary, John, Rahul Brahma, Rifikhang and Ulafat had assembled in the residence of the absconding accused Mr. Dinthilang on 19.10.2008 and participated in the meeting.
205. In the meantime, the accused Onsai Boro was sent to Bangladesh by the accused Ulafat and Dinthilang to contact the accused Ranjan Daimari, the chairman of the NDFB and gave him Rs. 30,000/- for his expenses. Accordingly, in the month of August, 2008, the accused Onsai Boro went to Bangladesh and met the accused Ranjan Daimari at his residence in Dhaka. The accused Ranjan Daimari told him that the government was not listening to their demands and their people were killed even though they were in the peace process. Therefore, he told the accused Onsai Boro that they cannot remain idle. The accused Ranjan Daimari further told the accused Onsai Boro that he has given instructions to the accused Dinthilang and he should go back and meet the accused Dinthilang and follow his orders. Thereafter, the accused Onsai Boro returned to Assam after some time as he fell sick. After Page No.# 132/198 reaching Assam, the accused Onsai Boro contacted the accused Dinthilang and Ulafat. They told him to attend the meeting of 19.10.2008 but, he refused. The accused Dinthilang and Ulafat then told him, if he cannot attend the meeting, he should arrange for a motorcycle for the Bongaigaon blast. Accordingly, the accused Onsai Boro arranged a red-coloured Pulsar motorcycle, the number being AS-25-G- 7034, through the accused Indra Brahma and Lokra Basumatary and paid Rs. 15,000/- to them which he had saved from the aforesaid Rs. 30,000/-. The said motorcycle was used in the Bongaigaon blast. The meeting on 19.10.2008 was held in presence of the accused NDFB cadres namely, Ajay Basumatary, John, Rahul Brahma, Rifikhang, Dinthilang and Ulafat. The meeting was chaired by the accused Dinthilang. The accused Dinthilang told that the accused Ranjan Daimari has given instruction to carry out nine bomb blasts on 30.10.2008 in Assam to pressurize the governments to succumb to their demands. It was decided in the said meeting that the accused Ulafat will arrange man and material for carrying out three blasts in Kokrajhar and one in Bongaigaon, the accused Rifikhang will arrange man and material for carrying out two blasts in Barpeta Road, the accused Ajay Basumatary, John will arrange man and material for carrying out the blast at Ganeshguri flyover, Guwahati , the accused Rahul Brahma will arrange man and material for carrying out the blast in the Chief Judicial Magistrate court complex, Guwahati and Panbazar, Guwahati. The time of the blast was decided to be at 11:30 am. The accused Dinthilang told that the blasts are being carried out as per the instruction and command of the accused Ranjan Daimari. The meeting ended with the above decisions and all the accused went to their respective places for carrying out the blasts. In pursuance of the said Page No.# 133/198 conspiracy, the aforesaid nine blasts were caused.
206. He has further deposed that in the blasts of Ganeshguri flyover, Chief Judicial Magistrate court complex, Kamrup, Guwahati and Panbazar, Guwahati fifty three people had died. RDX and Ammonium nitrate was used as explosives in the said blasts. In the blasts at Choudhury Complex, Barpeta Road, seven people died and at vegetable market, Barpeta Road eight people died. RDX was used as explosives in the said blasts. In the blasts at Kokrajhar vegetable market, ten people died, at Railway crossing, Kokrajhar two people died and at Kokrajhar fish market eight people died. TNT was used as explosive in the said blasts. In the blast at Bongaigaon, eleven persons were injured. TNT was used as explosive in the said blast. Altogether, 88 (Eighty eight) people died and 540 (Five hundred forty) people were injured in the aforesaid nine bomb blasts. The blast had also damaged vehicles and business establishments worth Rs. 29,000,000/- (Two crore ninety lakh). The Government of Assam paid about Rupess five crore as compensation to the relatives of the deceased and injured victims of the bomb blasts. The blast at Ganeshguri was caused by the accused John, Ajay Basumatary, Jitu Daimari and Tarun Boro. The explosive laden cylinder for the blast was arranged by the accused Baishagi Basumatary @ B. Bithurai and given to the accused in the aforesaid residence of the accused John on 29.10.2008. The Maruti car No. AS-01-E-7747 used in the Ganeshguri flyover blast was arranged by the absconding accused Jitu Daimari and Tarun Swargiary @ Boro. This witness has stated that accused Ajay Basumatary was an expert in handling explosive devices with timer and he fixed the time device in the explosive-laden cylinder, along with the detonators, in the residence of the accused Page No.# 134/198 John at Hatigaon in the morning of 30.10.2008. The accused Jitu Daimari kept the explosive-laden cylinder in the dickey of the above car and along with the accused John and Ajay Basumatary, parked the car under the Ganeshguri flyover, towards Dispur side, at around 09:00 am of 30.10.2008. After parking the explosive-laden car, they walked about hundred meters and went to Dhubri by the Tata Sumo vehicle driven by the accused Tarun Swargiary @ Boro and from there, they went to different places. The blast in the Chief Judicial Magistrate court complex and at Panbazar, Guwahati were arranged by the accused Rahul Brahma with the help of the accused Prabhat Boro and Raju Sarkar. The car No. AS-01-E-9226 used in the Panbazar blast was purchased by the accused Rahul Brahma, in the name of the accused Raju Sarkar, from one Bipin Rajbangshi. The said car was driven by the accused Prabhat Boro and the accused Raju Sarkar was accompanying him. The car No. AS-01-M-0327 used in the blast in the Chief Judicial Magistrate court complex in Guwahati was purchased by the accused Dinesh Boro from one Kunal Bhuyan in the month of August, 2008. The said car, along with the cylinder-bomb, was driven by the accused Dinesh Boro and the accused Thungri Boro was accompanying him. After parking the car in the Chief Judicial Magistrate court complex, the accused Dinesh Boro, Thungri Boro and Prabhat Boro @ Tepa went to Phukan park where the accused Rahul Brahma was waiting for them in the Maruti car No. AS-01-AE-9726 driven by one Babul Boro and went to Rangia. The accused Raju Sarkar went by bus to his native place Udalguri. At Choudhury Complex, Barpeta Road, the bomb was kept in the TVS motorcycle bearing No. AS-15-A-6007. At the vegetable market, Barpeta Road, the bomb was kept in a Hero brand lady bicycle. The bombs used in the said blasts were Page No.# 135/198 arranged in the house of the accused Rifikhang by the accused Mathuram Basumatary @ Mwdai. At Bongaigaon, the bomb was kept in the red-coloured Pulsar motorcycle No. AS-25-G-7034 by the accused Indra Brahma and Lokra Basumatary. The motorcycle was arranged by the Onsai Boro.
207. PW-646 has further deposed that the red-coloured Pulsar motorcycle was arranged by the accused Onsai Boro, through the accused Indra Brahma and Lokra Basumatary. The accused Indra Brahma and Lokra Basumatary gave the said motorcycle to one Uma Raza as per the instruction of the accused Onsai Boro. Thereafter, Uma Raza expired. The said motorcycle was used in the Bongaigaon blast. He has also deposed that the letter recovered from the accused Nilim Daimari was addressed to the chairman of the NDFB namely, Ranjan Daimari @ D.R. Nabla @ Lasdum for necessary action. After recording the statements of the witnesses and obtaining the expert's opinion and collecting the records, he had filed the initial charge-sheet on 25-05-2009 against nineteen accused persons named therein. Five of the charge-sheeted accused namely, Ajay Basumatary, Nilim Daimari, Jayanti Brahma, Prabhat Boro @ Tepa and Raju Sarkar were in judicial custody. The other charge-sheeted accused were absconding and hence, they were shown as absconders in the charge-sheet. Thereafter, on 27.05.2010, he had arrested the accused Onsai Boro, Indra Brahma and Lokra Basumatary and interrogated them. The disclosure statement of the accused Onsai Boro was recorded by the S.P., CBI, STF, Shri N.S. Kharayat and later on, his confessional statement was recorded by the Judicial Magistrate. He had recorded the disclosure statements of the accused Indra Brahma and Lokra Basumatary. He had also prepared the pointing out memos of the Page No.# 136/198 places where they had purchased the motorcycle bearing registration No. AS-25-G- 7034 and from where, they had started on 30.10.2008 for parking the bomb-laden motorcycle at AOC Road, Bongaigaon. The disclosure statements and pointing out memos were prepared in presence of witnesses. This witness has stated that Ext. 676 is the disclosure statement of the accused Indra Brahma and Ext. 676(1) is his signature therein. Ext. 676(2) is the signature of the witness. Ext. 676(3) is the signature of the accused Indra Brahma. Ext. 677, Ext. 678 and Ext. 679 are the pointing out memos of the places shown by the accused Indra Brahma. Ext. 677(1), Ext. 678(1) and Ext. 679(1) are his signatures therein. Ext. 677(2), Ext. 678(2) and Ext. 679(2) are the signatures of the witnesses. Ext. 677(3), Ext. 678(3) and Ext. 679(3) are the signatures of the accused Indra Brahma. Ext. 680 is the disclosure statement of the accused Lokra Basumatary, Ext. 680(1) is his signatures therein. Ext. 680(2) is the signature of witness. Ext. 680(3) is the signature of the accused Lokra Basumatary. Ext. 681, Ext. 682 and Ext. 683 are the pointing out memos of the places shown by the accused Lokra Basumatary. Ext. 681(1), Ext. 682(1) and Ext. 683(1) are his signatures therein. Ext. 681(2), Ext. 682(2) and Ext. 683(2) are the signatures of the witness. Ext. 681(3), Ext. 682(3) and Ext. 683(3) are the signatures of the accused Lokra Basumatary. He has also deposed that the accused Rahul Brahma was arrested from the District-Ziro, Arunachal Pradesh by the CBI Inspector Mr. Tariyal and was brought to Guwahati. During his journey from Zero to Guwahati, he gave his statement to the News Live TV channel and a CD of his statement was prepared. In his statement, Rahul Brahma has admitted that he had arranged the car and cylinder-bomb and kept the bomb at Panbazar, near Baptist Church through Prabhat Boro and Raju Sarkar, in the morning Page No.# 137/198 of 30.10.2008. Material Ext. XIV is the said CD prepared by the News Live TV channel containing the confessional statement of the accused Rahul Brahma. This witness has further stated that in Guwahati, he had recorded the disclosure statement of the accused Rahul Brahma in presence of witnesses. He had also prepared a pointing out memo regarding the places from where they had started in the morning of 30.10.2008 for parking the bomb-laden car at Panbazar, near the Baptist Church, Guwahati with the assistance of Prabhat Boro and Raju Sarkar. He has further stated that the after parking the bomb-laden car at Panbazar, near the Baptist Church, Guwahati and another car at Chief Judicial Magistrate court by Thungri Boro and Dinesh Boro, they went to Rangia in the car of Babul Boro. Ext. 8 is the disclosure statement of the accused Khargeswar Basumatary @ Rahul Brahma. Ext. 8(5) and 8(6) are his signature therein. Ext. 9 is the pointing out memos of the places shown by the accused Rahul Brahma about how they had started their activities in the night of 29.10.2008 and in the morning of 30.10.2008. Ext. 9(5) and Ext. 9(6) are his signatures therein. The witness has further stated that he had also prepared rough sketches regarding movement of the accused Rahul Brahma in the night of 29.10.2008 and in the morning of 30.10.2008. Ext. 10 and Ext. 11 are the said rough sketches and Ext. 10(3) and Ext. 11(3) are his signatures therein. Thereafter, he had filed a supplementary charge-sheet on 20.11.2010 against the accused Onsai Boro, Indra Brahma and Lokra Basumatary. During examination of PW-646 Shri Narayan Singh Yadav, recorded on 27.11.2018 he has deposed that he had arrested the accused Mathuram Brahma @ Mudai on 25.02.2011. He had also arrested the accused Mridul Gayari on 06.11.2009. He had arrested the accused Rifikhang on 04.06.2011 and the Page No.# 138/198 accused George Boro @ John on 08.01.2011. The accused Ranjan Daimari was arrested on 16.05.2010. During interrogation of the accused Mathuram Brahma @ Mudai, his disclosure statement was recorded in presence of witnesses. Pointing out memorandums regarding the places he had visited for arrangement of logistic support for the bomb blast on 30.10.2008 were also prepared in presence of witnesses. Ext. 4 is the disclosure statement (under objection) of the accused Mathuram Brahma @ Mudai, Ext. 4(3) is his signature therein. Exts. 5, 6, 7 are the pointing out memorandums (under objection) of the places pointed out by the accused Mathuram Brahma @ Mudai. Exts. 5(3), 6(3) and 7(3) are his signatures therein. Disclosure statement (under objection) of the accused George Boro @ John was also recorded in presence of witnesses. A pointing out memorandum (under objection) along with rough sketch of the places he had visited in the morning of 30.10.2008 was also prepared. Ext. 1 is the disclosure statement (under objection) of the accused George Boro @ John. Ext. 1(4) is his signature therein. Ext, 2 is the pointing out memo (under objection) of the places pointed out by the accused George Boro @ John. Ext. 2(5) is his signature therein. Ext. 3 is the rough sketch of the places (under objection) shown by the accused George Boro @ John. Ext. 3(3) is his signature therein. Ext. 684 (four sheets) is the report of the Government Examiner of Questioned Document, Kolkata, along with the envelope recovered from the accused Nilim Daimari on 04.09.2008 by the Tura police. Ext. 685 is the said envelope. Ext. 686 is the note book (under objection) of the accused George Boro @ John containing his admitted handwritings. This witness has also deposed that during interrogation, the accused Ranjan Daimari had disclosed that all the above mentioned nine serial Page No.# 139/198 blasts were carried out as per his direction (under objection). After recording statements of the witnesses, collecting the relevant documents and expert opinion, he had submitted another supplementary charge-sheet on 25.03.2011.
208. During his cross-examination PW-646 has stated that he had directly joined the CBI as a sub-inspector of police in the year 1980. He has produced the relevant documents collected by the Assam Police during initial investigation of the nine blast cases. Initially, he had investigated the Kokrajhar and Bongaigaon blast cases. The two bomb blast cases of Barpeta Road were investigated by Mr. A.S. Tariyal. The Ganesguri flyover bomb blast case was initially investigated by Mr. D.C. Ghose, the Chief Judicial Magistrate Court blast case was investigated by Mr. H.C. Sharma and the Panbazar blast case was investigated by Mr. N.K. Pathak, under the supervision of Mr. N.S. Kharayat, the then S.P., CBI, STF, New Delhi. He took the help of the Assam Police whenever necessary. Except Mr. Tariyal, the other investigating officers were Deputy Superintendent of Police. He did not remember based on what document he has stated about the contents of the four and five paragraph of his deposition. During investigation, he came to know that even after the tripartite cease fire agreement, the NDFB was resorting to terrorist activities. During investigation, he also came to know that the NDFB cadres were arranging explosives at the instance of the accused Ranjan Daimari @ D.R. Nabla, who was running the NDFB from Dhaka, Bangladesh. But he did not remember whether any witnesses had told him the same. The case diaries contained printed page numbers but sometimes, the page numbers are not continuous as different investigating officers were assisting him and they were using CD booklet for writing their supplementary case diaries. Further, they were Page No.# 140/198 investigating the cases from the camp office and hence, were not having the exact bundles of hundred sheets of case diary. The other investigating officers returned the supplementary case diaries to him. But he had not amalgamated the supplementary case diaries with his case diary as the same were in different files. He has stated that they follow the CBI manual for investigation and also follow the State Police manual if required. This witness has also stated that he had read the English translation of the letter written in Bodo language which was recovered from the possession of the accused Nilim Daimari. The seizure list and the letter written in Bodo language are part of his case diary. He had collected oral and documentary evidence regarding his following statement, "In the meantime, the accused Onsai Boro was sent to Bangladesh by the accused Ulafat and Dinthilang to contact the accused Ranjan Daimari, the chairman of the NDFB and gave him Rs. 30,000/- for his expenses. Accordingly, in the month of August, 2008, the accused Onsai Boro went to Bangladesh and met the accused Ranjan Daimari at his residence at Dhaka. The accused Ranjan Daimari told him that the government was not listening to their demands and their people were killed even though they were in the peace process. Therefore, he told the accused Onsai Boro that they cannot remain idle. The accused Ranjan Daimari further told the accused Onsai Boro that he has given instructions to the accused Dinthilang and he should go back and meet the accused Dinthilang and follow his orders. Thereafter, the accused Onsai Boro returned to Assam after some time as he fell sick. After reaching Assam, the accused Onsai Boro contacted the accused Dinthilang and Ulafat. They told him to attend the meeting of 19.10.2008 but, he refused. The accused Dinthilang and Ulafat then told him if he cannot attend Page No.# 141/198 the meeting, he should arrange a motorcycle for the Bongaigaon blast. Accordingly, the accused Onsai Boro arranged a red-coloured Pulsar motorcycle, the number being AS-25-G-7034, through the accused Indra Brahma and Lokra Basumatary and paid Rs. 15,000/- to them which he had saved from the aforesaid Rs. 30,000/-. The said motorcycle was used in the Bongaigaon blast. The meeting on 19.10.2008 was held in presence of the accused NDFB cadres namely, Ajay Basumatary, John, Rahul Brahma, Rifikhang, Dinthilang and Ulafat. The meeting was chaired by the accused Dinthilang. The accused Dinthilang told that the accused Ranjan Daimari has given instruction to carry out nine bomb blasts on 30.10.2008 in Assam to pressurize the governments to succumb to their demands. It was decided in the said meeting that the accused Ulafat will arrange man and material for carrying out three blasts in Kokrajhar and one in Bongaigaon, the accused Rifikhang will arrange man and material for carrying out two blasts in Barpeta Road, the accused Ajay Basumatary, John will arrange man and material for carrying out the blast at Ganeshguri flyover, Guwahati , the accused Rahul Brahma will arrange man and material for carrying out the blast in the Chief Judicial Magistrate court complex, Guwahati and Panbazar, Guwahati. The time of the blast was decided to be at 11:30 am. The accused Dinthilang told that the blasts are being carried out as per the instruction and command of the accused Ranjan Daimari. The meeting ended with the above decisions and all the accused went to their respective places for carrying out the blasts. In pursuance of the said conspiracy, the aforesaid nine blasts were caused. From the confessional statement of the accused Onsai Boro he has deposed that "The accused Dinthilang told that the accused Ranjan Daimari has given instruction Page No.# 142/198 to carry out nine bomb blasts on 30.10.2008 in Assam to pressurize the government to succumb to their demands." Later on, this witness had said that he came to know the same from the confessional statement of the accused Ajay Basumatary. The concerned investigating officers have mentioned in the case diaries about recording the confessional statement of the accused Ajay Basumatary and Onsai Boro. Ext. 313 is a certified Photostat copy of the seizure list by means of which one pen drive, one mobile phone and one hand-written letter in Bodo language was seized from the possession of the accused Nilim Daimari @ D. Nizwsmsa. But he did not produce the Ext. 313 seizure list before the court.
209. During further cross-examination of PW-646 recorded on 06/12/2018, he has stated that accused Ajay Basumatary told in his statement that the accused Dinthilang told him that the accused Ranjan Daimari had given instructions to carry out the serial blasts. The said statement was the confessional statement of the accused Ajay Basumatary. He had investigated about the said meeting examining different witnesses. The accused told him about the said meeting. He did not remember the name of any other independent witness. He had recorded the disclosure statements of the accused Mathuram Brahma @ Mudwai, George Boro @ John, Rahul Brahma, Lokra Basumatary and Indra Brahma. They talked to him in mixed English, Hindi and Assamese. This witness has also stated that investigating officers having knowledge of Assamese language were assisting him. Inspector Pranab Das was one such investigating officer but he did not remember the names of the other investigating officers having knowledge of Assamese language. PW-646 has also stated that in Ext-1 disclosure statement, Executive Magistrate was present as Page No.# 143/198 an independent witness. There was no other independent witness. He had recorded Ext. 1 disclosure statement in the Guwahati camp office but he has not mentioned the same in the Ext. 1. Ext-1 was a typed copy and he had read over the statement to the accused and he accepted the same to be correct but he had not written it in the Ext-1. He had prepared the Ext. 3 rough sketch of the places pointed out by the accused George Boro regarding his movements on 30.10.2008. But he has not mentioned about the preparing of the rough sketch in the case diary. He showed the sketch map to the accused George Boro and took his signature therein but has not mentioned about the same in the case diary or in the Ext. 3 that he showed the sketch map to the accused George Boro. This witness has, however, confirmed that Exts. 8, 9, 10, 11, 12, 13, 14, 15, 106 and 107 do not show that they were read out and admitted to be correct by the accused persons. Other than the Executive Magistrate and police officers, no independent witness was present at the time of preparing the Exts. 8, 9, 10, 11, 12, 13, 14, 15, 106 and 107.
210. PW-646 has also admitted that he could not collect any document regarding the meeting held on 19.10.2008. The accused Ajay Basumatary had confessed about holding the meeting on 19.10.2008 and decided about causing the serial blasts. After conclusion of investigation, he found that pursuant to the conspiracy hatched on 19.10.2008, the serial blasts were carried out. RDX, Ammonium Nitrate and TNT were used in the aforesaid blasts were confirmed by the Forensic experts. At Choudhury Shopping Complex, Barpeta Road, use of RDX was confirmed by the Forensic experts. At Kokrajhar vegetable market, use of TNT was confirmed by the Forensic experts. Except for experts evidence, he did not have any other evidence to prove that RDX Page No.# 144/198 Ammonium Nitrate and TNT were used in the aforesaid blasts. This witness has further stated that from the confessional statement of the accused Ajay Basumatary and disclosure statement of the accused John, he came to know that in the blast at Ganeshguri, the explosive-laden cylinder was arranged by the accused Baishagi Basumatary and given to the accused John. From the confessional statement of the accused Ajay Basumatary, he came to know that he was expert in handling explosive devices with timer and he fixed the time device in the explosive-laden cylinder along with the detonators in the residence of the accused John at Hatigaon in the morning of 30.10.2008. From the confessional statement of the accused Ajay Basumatary and disclosure statement of accused George Boro @ John, he came to know that, "the accused Jitu Daimari kept the explosive-laden cylinder in the dickey of the above car under Ganeshguri flyover, towards Dispur side, at around 09:00 am of 30.10.2008. After parking the explosive-laden car, they walked about hundred meters and went to Dhubri by the Tata Sumo vehicle driven by the accused Tarun Swargiary @ Boro and from there, they went to different places. The accused Ajay Basumatary was an expert in handling explosive devices with timer and he fixed the time device in the explosive-laden cylinder, along with the detonators, in the aforesaid residence of the accused John at Hatigaon in the morning of 30.10.2008. The accused Jitu Daimari kept the explosive-laden cylinder in the dickey of the above care and along with the accused John and Ajay Basumatary, parked the car under Ganeshguri flyover, towards Dispur side, at around 09:00 am of 30.10.2008. After parking the explosive-laden car, they walked about hundred meters and went to Dhubri by the Tata Sumo vehicle driven by the accused Tarun Swargiary @ Boro and Page No.# 145/198 from there, they went to different places. The blast in the Chief Judicial Magistrate court complex and at Panbazar, Guwahati were arranged by the accused Rahul Brahma with the help of the accused Prabhat Boro and Raju Sarkar. The car No. AS- 01-E-9226 used in the Panbazar blast was purchased by the accused Rahul Brahma, in the name of the accused Raju Sarkar, from one Bipin Rajbangshi. The said car was driven by the accused Prabhat Boro and the accused Raju Sarkar was accompanying him. The car No. AS-01-M-0327 used in the blast in the Chief Judicial Magistrate court complex in Guwahati was purchased by the accused Dinesh Boro from one Kunal Bhuyan in the month of August, 2008. The said car, along with the cylinder-bomb, was driven by the accused Dinesh Boro and the accused Thungri Boro was accompanying him. After parking the car in the Chief Judicial Magistrate court complex, the accused Dinesh Boro, Thungri Boro and Prabhat Boro @ Tepa went to Phukan park where the accused Rahul Brahma was waiting for them in the Maruti car No. AS-01-AE-9726 driven by one Babul Boro and went to Rangia. The accused Raju Sarkar went by bus to his native place Udalguri. At Choudhury complex, Barpeta Road, the bomb was kept in the TVS motorcycle No. AS-15-A-6007. At vegetable market, Barpeta Road, the bomb was kept in a Hero brand lady bicycle. The bombs used in the said blasts were arranged in the house of the accused Rifikhang by the accused Mathuram Basumatary @ Mwdai. At Bongaigaon, the bomb was kept in the red-coloured Pulsar motorcycle No. AS-25-G-7034 by the accused Indra Brahma and Lokra Basumatary. The motorcycle was arranged by the Onsai Boro. This witness has stated that he tried to confirm the disclosure statements and confessional statements but did not find any other independent Page No.# 146/198 witness to prove the same. He had submitted the charge-sheet relying on the confessional statements, disclosure statements, pointing out memos, sketch map and expert evidence etc. PW-646 has denied the suggestion put to him that he did not investigate the case in accordance with the law.
211. PW-641 Sri Narendra Singh Kharayat has deposed that on 30/10/2008, nine serial blasts took place in four districts of Assam, viz. Kokrajhar, Bongaigaon, Barpeta and Kamrup. The blasts had killed many and injured many others. By the notification dated 16/12/2008 issued by the Government of India, investigation in connection with the 9(nine) serial bomb blast cases were entrusted to the Central Bureau of Investigation (CBI). During the course of investigation, he had arrested accused Ajoy Basumatary and Jayanti Brahma from Goalpara and took them to Police custody for 12 days. Later on, accused Ajoy Basumatary had confessed his guilt. The confessional statement of Ajoy Basumatary was recorded by the Magistrate under Section 164 Cr.P.C. This witness has also stated that accused Ajoy Basumatary was produced from judicial custody for recording his confessional statement on the basis of an application filed by him with a prayer to record the confessional statement of the accused.
212. PW-624 Sri Ashok Singh Tariyal has deposed that in the year 2008, he was posted as the Inspector, CBI, STF, New Delhi. The SP, CBI, Mr. N.S. Kharayat had entrusted him to investigate the case pertaining to the Barpeta Road bomb blast. Sri N.P. Mishra, Inspector, CBI had assisted him in the investigation. He had conducted investigation pertaining to the Choudhury complex bomb blast and Vegetable Page No.# 147/198 Market bomb blast, which had taken place at Barpeta Road. This witness has also deposed that accused Anup Boro was in judicial custody and he had got the custody extended. He had also filed application before the Court for adding sections 10 and 13 of the Unlawful Activities (Prevention) Act 1967. Since, cases coming under Unlawful Activities (Prevention) Act, 1967 are required to be investigated by Officers not below the rank of Deputy Superintendent of Police (Dy. SP), the case was handed over to Sri Nalini Kanta Pathak, Dy.SP.
213. PW-642 Sri Nalini Kanta Pathak has deposed that in the year 2008, he was working as the Dy. SP, CBI, MDMA, New Delhi attached to the CBI, STF, New Delhi. In the month of December, 2008, he was sent to Assam to assist the investigation in the serial bomb blast case conducted by Sri N.S. Kharayat (PW-641). During the course of investigation, he had arrested accused Prabhat Boro @ Tepa on 22/01/2009 and accused Raju Sarkar on 28/02/2009 in connection with the Panbazar blast case. He had recorded the disclosure statement of accused Prabhat Boro @ Tepa given on 27/01/2009. Ext. 12 is the said Disclosure Statement which bears his signature. Thereafter, accused Prabhat Boro @ Tepa had led them to Panbazar and showed the place where he had parked the Maruti Car along with the Bomb. Thereafter, accused Prabhat Boro @ Tepa led them to Phukan Park, Bharalumukh, where accused Rahul Brahma was waiting for them in a blue coloured Maruti Alto Car. The accused Prabhat Boro @ Tepa told that from that place he had gone to Amingaon Tiniali along with Rahul Brahma in a blue coloured Maruti Alto Car. Thereafter, the accused Prabhat Boro @ Tepa had led them to Gorchuk Chariali and told them that in the early morning of 30-10-2008 along with the accused Raju Sarkar and Rahul Page No.# 148/198 Brahma, he went to Gorchuk Chariali and there the accused Rahul Brahma got down from his car and boarded the Maruti Alto Car. Prabhat Boro had also told them that accused Rahul Brahma and Raju Sarkar took dinner in the house of the sister of Rahul Brahma and thereafter, Rahul Brahma had spent the night in the house of his sister. Prabhat Boro had also told that in the morning of 30-10-2008, he along with accused Rahul Brahma and Raju Sarkar went to Gorchuk Chariali. There they had changed the vehicle. The accused Prabhat Boro told him that at Gorchuk Chariali, the accused Rahul Brahma had told that he would travel in a Maruti Alto Car and directed them to follow him. On the way, accused Rahul Brahma had told them to park the bomb laden car at Panbazar. This witness has further deposed that he had prepared a Pointing Out Memo of the places shown by Prabhat Boro @ Tepa and Ext. 13 is the said Pointing Out Memo, which bears his signature.
214. PW-642 has further deposed that he had also recorded the disclosure statement of accused Raju Sarkar and Ext. 14 is the said statement which bears his signature. He has also prepared a Pointing Out Memo of the places pointed out by accused Raju Sarkar and Ext. 15 is the said Pointing Out Memo, which bears his signature. PW-642 has further stated that he had succeeded in tracing out the original registration number of the Maruti Car used in the Panbazar blast from the Office of the District Transport Officer, Betkuchi, Kamrup. He had collected the driving license of accused Prabhat Boro. During investigation, he had seized one Nokia Mobile Handset Model 1200 belonging to accused Prabhat Boro from his elder brother Pranab Boro vide seizure list Ext. 642. He had also seized one complaint dated 29/01/2009 lodged by one Sanjay Chakravarty with the Jalukbari Police Station Page No.# 149/198 regarding theft of Mobile SIM card by one Sachindra Boro.
215. Sri Debashish Ghosh (PW-631) was working on deputation in the CBI, ACB, Kolkata as Dy.SP in the year 2009, had also joined the investigating team. He has deposed that during the course of investigation, he had visited about 25 places and recorded the statement of injured victims and family members of the deceased persons. During the course of investigation, he could also get hold of a letter written in Bodo language connected with the blasts. The letter was translated into English by Head of Department of Bodo Language, Gauhati University, viz. Dr. Bhupen Narzary. He had recorded the statement of Dr. Bhupen Narzary.
216. Sri Sunil Singh Rawat (PW-625) was posted at Inspector, CBI, STF, New Delhi in the year 2008. He has deposed that after the transfer of the cases pertaining to the series of bomb explosions which took place on 30/10/2008, the CBI took over the investigation in connection with these cases. The investigation of the 3 blast cases of Kokrajhar was carried out by Sri N. S. Yadav, Dy. SP, CBI, who was the Chief Investigating Officer and he was entrusted with the job of assisting him in the investigation. Accordingly, he had assisted PW-646. This witness has deposed that during investigation, he had examined Duke-Bon Basumatary and Binisha Brahma with regard to one Mobile Phone No. 9435483441. The aforesaid number was issued by the BSNL in the name of Duke-Bon Basumatary but the same was reportedly being used by the accused Arun Borgayari @ Dinthilang. This witness has further deposed that he along with the Chief Investigating Officer Sri N.S. Yadav had arrested accused Jayanti Brahma. During investigation, Jayanti Brahma had disclosed that when he Page No.# 150/198 came from Bangladesh to India before 30-10-2008, she had brought a packet containing timers etc. and handed over the same to accused Uttam Swargiary @ Ulafat at Sherfanguri. Her disclosure statement was recorded and a Pointing Out Memo was also prepared. Ext-584 is the Disclosure Statement and Ext. 585 is the Pointing Out Memo, which bears his signature. During cross examination, this witness has confirmed that Sri N.S. Yadav had arrested the accused Jayanti Brahma in connection with Kokrajhar blasts case. Disclosure Statement of Jayanti Brahma was recorded in the Kokrajhar Circuit House.
217. Sri Harish Chandra Sharma, another Dy.SP, CBI posted at ACB, Shillong, who had also joined the investigation was examined as PW-647. This witness has deposed that on being directed by his DIG to join the Investigating team of the CBI in connection with the 9(nine) bomb blast cases of Assam, he had reported to Sri N.S. Kharayat and took part in the investigation. During investigation, he could trace out the Maruti Car sold by one Kunal Bhuyan to Sri Dinesh Boro, which car was used in explosion. Sri Thungri Boro had signed as a witness in the sale deed and the transfer documents of the Maruti car bearing Registration No. AS-01-M-0327.
R) Evidence against accused Indra Brahma :
218. PW-488, Dashrath Basumatary has deposed that he is a student of H.S. 2 nd year in U. N. Brahma Junior College, Kajolgaon, Chirang. He knows Hemraj Mushahary. Hemraj Mushahary hails from his village. According to PW-488, Hemraj Mushahary was dealing in stolen motorcycles. This witness has further stated that he knows Ranjit Mushahary. Sunwary Boro was his friend. Accused Indra Brahma was also his friend. In Page No.# 151/198 the month of October, 2008, one day, Hemraj Mushahary had requested him to sell a red coloured Bajaj Pulsar motorcycle. Raja Boro, whom he knows, had given the said motorcycle to Hemraj Mushahary, who had kept the same in his house for one day. The registration number of the said motorcycle was AS-25G-7034. Sunwary Boro came to his house and they talked with Hemraj Mushahary who told them that they should pay him 10/12 thousand rupees and sell the motorcycle. Sunwary Boro then told that he will enquire and accordingly called Indra Brahma and told him about the motorcycle. Indra Brahma replied that he will inform the latter. After sometime, Sunwary Boro had told him that someone will purchase the motorcycle. He and Sunwary Boro then went to Bengtal with the motorcycle and met Indra Brahma. After some time, a healthy person came there and took away the motorcycle by paying Rs.10 or 12 thousand. Later on, he came to know that the motorcycle was used in the bomb blast that took place at Paglasthan, Bongaigaon. Ext-409 was his statement recorded by the Magistrate which bears his signature.
219. Sunwary Boro was examined as PW-493. He has deposed before the Court to the effect that he had two brothers, viz., Anupam Wary @ Bogla Wary and Mikhim Wary and had also three sisters. His brother Anupam Wary was a member of the National Democratic Front of Bodoland. He knows Indra Brahma. He was the classmate of Dasrath Basumatary of their village and used to come to their village frequently. He also knew Hemraj Mushahary who was his relative. Hemraj died in a motorcycle accident. Dashrath Brahma and Hemraj Mushahary used to sell motorcycle. Hemraj once asked him to look for a customer for selling one Bajaj Pulsar motorcycle. He spoke to Indra Brahma over phone enquiring as to whether anybody Page No.# 152/198 would purchase the said motorcycle and after 20 minutes Indra Brahma told that a person was there to purchase the motorcycle. Then he and Dashrath took the motorcycle to Bengtal. After sometime, Indra Brahma arrived there and thereafter an aged but stout person arrived there, paid the price of the motorcycle and took away the same. Later on, he saw in the T.V. news that there were bomb blasts. Police arrested him and Dasharath. During interrogation police had shown him the aforesaid motorcycle. 5 photographs (Ext-221) of the motorcycle was shown. This witness had stated that they had received Rs.12,000/- for selling the motor cycle and he had earned Rs.1000/- as commission and Dasarath earned Rs.1000/- as commission. However, he did not tell the CBI that Indra Brahma was a member of the NDFB. This witness was later declared as a hostile witness.
220. PW-495, Rhindao Basumatary has merely deposed before the court that he knew accused Indra Brahma who used to call him in his mobile phone bearing No.9954664787 belonging to his father. Later on, he came to know that Indra Brahma had joined the National Democratic Front of Bodoland.
S) Evidence against accused Lokhra Basumatary @ Lobo :
221. It is to be noted herein that PW-493, Sunwary Boro, who was declared as a hostile witness has denied during his cross-examination by the prosecution side that it is not a fact that accused Lokhra used to come to his house or that he had told the CBI that Lokhra had purchased the said motorcycle and paid the price. We do not find any other evidence against accused Lokhra Basumatary. T) Evidence against accused Rajendra Goyari @ Rajen@ Rifikang :
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222. In his confessional statement accused Ajay Basumatary has clearly implicated this accused by ascribing specific role to him in the bomb blast episode. PW-615, Anup Kumar Boro has also stated that Rajendra Goyari, was a member of the ceasefire faction of the NDFB.
U) Confessional Statements of accused Ajay Basumatary and Onsai Boro :-
223. The Confessional statements of two accused persons, viz. Ajay Basumatary and Onsai Boro was recorded under Section 164 Cr.P.C. The confessional statement of Ajay Basumatary was recorded by the Judicial Magistrate, 1 st Class, Guwahati, Kamrup, viz., Sri A.M. Md. Mahir Uddin. The confessional statement of Ajay Basumatary along with the statements put to the accused before recording his statement is reproduced herein below for ready reference :-
"The accused, namely Ajay Basumatary is brought before me on (date) 03/02/09 by Jail Authority at (place) Guwahati at about (time) 2.00 p.m. to have his confessional statement recorded. I have ascertained that the alleged offence punishable under Section 121/121(A)/122/123/302/306/307/427 IPC r/w Section 3/4 E.S. Act and Sec. 10/13 UA(P) Act was committed at (place) Ganeshguri on (date) 30/10/08 at about (time) 11.30 A.M. I have asked the accused in detail relating to his detention after arrest and he stated that he was arrested at (place) Solmari, Goalpara at about (time) 6.45 p.m. and detained at (Place of detention) Goalpara P.S., District Jail at Goalpara and Guwahati for about .xxx from 26/12/08 to 03/02/09 before being brought to Court.
The accused should be asked whether he has got any injury or mark of violence on his body. If the Magistrate notices or is reported about the injury(s) on the person of the accused, a brief, but clear description of the nature and gravity of the injury(s) be mentioned here.
No injury mark is shown by the accused.
In case, injuries are noticed, the accused be enquired as to how he has Page No.# 154/198 sustained the above injury(s) and whether any medical treatment is required:
No injury mark is being noticed.
To normalise the accused and find out the truth I have inquired the following:-
A. What is your age?
Ans:- I am 24 years old.
B. Whether you are married and have got children?
Ans:- I am not married.
C. What is your occupation and what is your monthly income?
Ans:- I am a cultivator. I do not earn month wise.
D. Whether your monthly income is sufficient to maintain your family?
Ans:- It is insufficient.
E. For how many hours you were with the police and whether police
threatened or applied force upon you.
Ans: I was with police from 26/12/08 to 04/01/09. Police did not assault me.
I have explained to the accused the gist of the provisions of Section 164 Cr.P.C. coupled with Section 281 Cr.P.C. and Sections 24 to 30 of the Indian Evidence Act in details, particularly the following :-
i. Do you know that I am not an officer of police but a
Magistrate?
Ans:- I know.
ii. Whether any influence, promise, force or threatening was made
to you by police or any other person for making the confession?
Ans:- Police did not assault, threaten or coax me.
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iii. Do you know that you are not bound to make confession?
Ans:- Yes, I know that.
iv. Do you know that if you confess the accusation, it may be used as
evidence against you?
Ans:- Yes, I know.
v. Why you want to confess?
Ans:- I am repentant of my misdeed and I think that it was my mistake to join the organisation. Therefore I would like to confess. vi. Do you know that you should say nothing which is untrue and that you should not say anything because others have told you to say it but is at liberty to say whatever really you desire to say?
Ans:- Yes, I shall state whatever I know with complete truthfulness. vii. Do you know that there is no Police Officer associated with the investigation in the vicinity and you are completely under the supervision of the Court and you need not be afraid of the Police?
Ans:- Yes, I know that and I am not afraid.
viii. Whether the police promised or assured you that you will be made an approver?
Ans:- Police didn't say anything like that to me.
ix. Do you know that you be may be convicted on your own confession? Ans:- Yes, I know. x. I assure you that you will not be remanded/send back to the police even if you do not confess. Are you clear about it? Ans:- Yes, I know.
I have placed the accused under the supervision of my office Page No.# 156/198 peon Baharul Islam Bora for reflection from 2.00 p.m. to3.00 p.m. which is equal to or more than the period for which he was in police custody and ascertained that the investigating agency did not have any touch with the accused during this period.
The accused is again brought before me on (date) 03/02/09 at about (time) 3.00 p.m. at (place) Guwahati and once again, he has been explained the particulars of Section 164 Cr.P.C., particularly those mentioned above, and on being satisfied that he is in a fit state of mind and prepared to make the confessional statement voluntarily his statement is recorded which is as follows :-
Statement Name of the accused : Ajay Basumatary, aged about 24 years.
Father's name - Lt. Swaun Basumatary, Resident of - Dilaji Mithi Faug, Vill. Diphu.
P.S. - Diphu.
District - Karbi Anglong.
By Caste - S T. By profession - Cultivator.
(No oath of affirmation shall be administered) (THE BACKSIDE OF THE PAGE MAY BE USED FOR RECORDING STATEMENT) I joined NDFB in the month of August, 2005. Gaukhreep, the Commander of Karbi Anglong, enrolled me in the group. One person by the name Jhon took me from our camp at Karbi Anglong to our camp located at Khagrachari district of Bangladesh,. When I arrived there, only 4/5 persons were there in the camp. There, one instructor by the name Suglai, trained me for about 2 ½ months. I was given different trainings on arms. When I was there, in the month of April/May, 2006, the army of Bangladesh attacked us and about 10 of our members including the Page No.# 157/198 instructor had died then. After that, assuming the role of instructor, I imparted training to different members. In the year 2007, I trained about 25/30 members. Later, in 2007, one instructor by the name Borsha imparted me training on time device setting. In the year 2008, one training session was conducted in which I acted as instructor.
At noon on 13/10/2008, I entered Guwahati from Bangladesh via Shillong. Arriving at Guwahati, I met John again at Ganeshguri. From there, we went to the rented house of John at Hatigaon. I spent three days and three nights there. From there, on 17/10/08, I went to the house of our NDFB member Rifikhang located at Barpeta Road. Having stayed there one night, I went to the house of our NDFB Army Chief Giuthilaug located Jharaguri, Kokrajhar. I stayed one night in his house. On the following day a meeting was held there. John, Rifikhang, Kharaw Sir, Ulafat, Army Chief and I were present in that meeting.
In that meeting we are told that the Army Chief was ordered by the higher authority to carry out bomb blast at Guwahati and at different places of Assam and we should take responsibility to do that. There we fixed the date as 30-10-08 and the time as 11.30 a.m. The responsibilities to plant bombs and to explode the same were divided - John and I at Ganeshguri, Kharau Sir at Panbazar and at Court, Rifikhang at Barpeta Road and Ulafat at Bongaigaon and Kokrajhar. After the meeting was over, I spent the night there and thereafter, left for Dhubri. On 24-10-08, I returned from Dhurbi to Hatigaon.
On 27/10/08, one female member of NDFB by the name Bithora brought a L.P.G. cylinder for us to John's room. One boy by the name Jitu was with her as driver. The cylinder was filled with some gunpowder like substance from before. I saw Detonator, 9V battery and one alarm clock in the house of John, which I had kept there earlier. On 28-10-08, I inserted the detonator in the cylinder. On 29-10-08, we remained idle.
Page No.# 158/198 John had selected the spot from before.
Around 9.30 a.m. on 30-10-08, I connected the time device with the cylinder. Around 9.30 a.m. , John along with a boy by the name Jitu brought a Maruti -800 car. I forgot the number of the vehicle. Around 6 a.m. on that day itself, two boys by the names Jitu and Tarun had brought a Tata Sumo Vehicle. Taking our bags and cloths, Tarun was waiting for us in the Tata Sumo near the Ganesh Mandir. John, Jitu and I loaded the cylinder in the Maruti car and brought it to Ganeshguri. Jitu was driving the car. Thereafter, parking the Maruti car under the Ganeshguri Flyover towards Dispur, we got down from the vehicle, locked it and went towards Ganesh Mandir. We boarded the Tata Sumo vehicle parked there and around 10.10 a.m. we left for Dhubri via Hatigaon.
Later, at 11.30 a.m., we received information regarding bomb blasts at Ganeshguri and at different parts of Assam.
In last November, I accompanied Rifikhang to Dhaka and returned in December. After returning in the month of December, I was in Dhubri. From there, I came to Goalpara on 26-12-08. Goalpara police apprehended me there itself.
224. The confessional statement of accused Onsai Boro, recorded by Magistrate Sri. Neel Kamal Das, JMFC, Kamrup, Guwahati along with the questions put to the accused before recording his statement, are reproduced herein below for ready reference :-
"The accused, namely Onsai Boro @ Ajit Boro was brought before me on (date) 31/05/2010 by CBI personal at (place) my Court at Guwahati at about (time) 4.15 p.m. to have his confessional statement recorded. I have Page No.# 159/198 ascertained that the alleged offence punishable under Section 120B, 121, 121(A), 122, 123, 302, 324, 326, 307, 427 IPC r/w Section 3/4 Explosive Substances Act and U/S. 10, 13, 16, 18 & 20 of the UA(P) Act was committed at (place) Bongaigaon on (date) 30/10/08 at about (time) 11.30 A.M. I have asked the accused in detail relating to his detention after arrest and he/she stated that he/she was arrested at (place) Guwahati at about (time) 8/8.30 p.m. and detained at (Place of detention) Panbazar Police Station for about 92 hours from 8.00 p.m., 27/10/2010 to 4.p.m. 31/05/2010 before being brought to Court.
The accused should be asked whether he/she has got any injury or mark of violence on his/her body. If the Magistrate notices or is reported about the injury(s) on the person of the accused, a brief, but clear description of the nature and gravity of the injury(s) be mentioned here.
On being asked he stated that he has no injury on his peson. Injury is also not noticed anywhere in the body (exposed part) of the accused.
In case, injuries are noticed, the accused be enquired as to how he has sustained the above injury(s) and whether any medical treatment is required:
To normalise the accused and find out the truth I have inquired the following:-
A. What is your age?
Ans:- I am 30 years.
B. Whether you are married and have got children?
Ans:- Married/ No children.
C. What is your occupation and what is your monthly income?
Ans:- Nil.
D. Whether your monthly income is sufficient to maintain your family?
Ans:- My wife is a teacher. Family is surviving somehow.
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E. For how many hours you were with the police and whether police
threatened or applied force upon you.
Ans: I was with police since 8 p.m. of 27-5-2010 (Thursday). Police did
not apply force on me.
I have explained to the accused the gist of the provisions of Section 164 Cr.P.C. coupled with Section 281 Cr.P.C. and Sections 24 to 30 of the Indian Evidence Act in details, particularly the following :-
ii. Do you know that I am not an officer of police but a
Magistrate?
Ans:- Yes Sir, I know.
ii. Whether any influence, promise, force or threatening was made
to you by police or any other person for making the confession?
Ans:- Nobody said anything to me, threatened or coerced me. Nobody tried to influence me or coax me to confess by promising to return the favour.
iii. Do you know that you are not bound to make confession? Ans:- Yes Sir, I know. I have come here of my own volition. iv. Do you know that if you confess the accusation, it may be used as evidence against you? Ans:- I know. v. Why you want to confess?
Ans:- Sir, I am not involved in this case. I have come here to confess the fact of purchasing the bike only.
vi. Do you know that you should say nothing which is untrue and that you should not say anything because others have told you to say it but is at liberty to say whatever really you desire to say?
Page No.# 161/198 Ans:- Yes Sir, I know..
vii. Do you know that there is no Police Officer associated with the investigation in the vicinity and you are completely under the supervision of the Court and you need not be afraid of the Police?
Ans:- Yes Sir, I know.
viii. Whether the police promised or assured you that you will be made an approver?
Ans:- Police didn't say anything like that to me.
ix. Do you know that you be may be convicted on your own
confession?
Ans:- Yes Sir..
x. I assure you that you will not be remanded/send back to the
police even if you do not confess. Are you clear about it?
Ans:- Sir, I shall only speak what I did. Sir, I shall speak how I was being used by someone else.
I have placed the accused under supervision of officer-in-charge, Central Jail, Kamrup at Guwahati for reflection from 31/05/2010 to 01/06/2010 which is not equal to or more than the period for which he was in police custody and ascertained that the investigating agency did not have any touch with the accused during this period.
The accused is again brought before me on (date) 01/06/2010 at about (time) 4.00 p.m. at (place) My Court at Guwahati and once again, he has been explained the particulars of Section 164 Cr.P.C., particularly those mentioned above, and on being satisfied that he is in a fit state of mind and Page No.# 162/198 prepared to make the confessional statement voluntarily his statement is recorded which is as follows :-
Statement Name of the accused : Onsai Boro @ Ajit Boro, aged about 30 years.
Father's name - Sri Gangadhar Boro, Resident of - Vill. Shantipur.
P.S. - Salbari.
District - Baksa.
By Caste - Tribal. By profession - Nil.
(No oath of affirmation shall be administered) (THE BACKSIDE OF THE PAGE MAY BE USED FOR RECORDING STATEMENT) I joined NDFB in 1998. After that, from April 1998 to August 1998, I took training at Namlang in Bhutan. From the time after my training till the time of Ceasefire in 2004, I was either visiting Assam from Bhutan or Bhutan from Assam on and off. After the Ceasefire in 2004, I started to stay either in the designated camp or in a rented house with my wife. In July 2008, Dinthilang and Ulafat called me and told me that Ranjan Daimari had called me and therefore I was required to go to Bangladesh. Dinthilang and Ulafat gave Rs. 30,000/- (Thirty thousand) to me.
Q. What you did you do after that ? Ans : Dinthilang and Ulafat gave me the (contact) number of a boy of Garo
community and after contacting him, I directly went to Dhaka. Arriving at Dhaka, I spent one night in the flat of Dan Sirang. On the following day, Ranjan Page No.# 163/198 Daimari came to talk with me. Ranjan Daimari asked my identity and when I gave my identity, he asked about the situation. After that Ranjan Daimari told me that command had already been given to Dinthilang and asked me to follow the commands from Dinthilang. Ranjan Daimari further told me that we should not sit idle. In spite of being in ceasefire, they killed our boys and our memorandum had failed.
Q. What Memorandum? Ans : The memorandum submitted to the government by NDFB. Q. What happened after that ? Ans: After explaining to me for about 10 minutes, Ranjan Daimari left. After
that, as I suffered from Diarrhoea, I stayed there for a week and returned to Assam thereafter. After returning, I informed Dinthilang and Ulafat and asked them as to why they had sent me to Bangladesh without any reason. I picked up a sort of quarrel with Ulafat. Thereafter, on 18 th October (later says 19th Octobe), Ulafat and others convened a secret meeting and called me. Then Ulafat told me, "If you are not coming, purchase us a bike". Thereafer, I asked Indra and Lokhra to search a bike. They brought a bike. I gave Lokhra Rs. 15000/- (Fifteen Thousand) out of the total money of Rs. 30000/- (Thirty Thousand Rupees) which had been given to me earlier. Thereafter Ulafat told me to give the bike to Uma Raja. Then I gave the bike to Lokhra to hand over it to Uma Raja.
Q. What was that bike?
Ans: Red Pulsar.
Q. Do you remember the number ?
Ans: No, sir.
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Q. Will you say anything else?
Ans: I do not know what Uma Raja did after that. I have to say this much
only."
225. PW-478 Abdul Mojid Md. Mohi Uddin had recorded the confessional statement of accused Ajay Basumatary. This witness has deposed that on 03.02.2009 accused Ajay Basumatary was produced before him for recording his confessional statement.
After giving him sufficient caution as required under Section 164 Cr.P.C. and giving him couple of hours for reflection, the confessional statement of accused Ajay Basumatary was recorded after ascertaining that the same was being given voluntarily. After recording the confessional statement accused Ajay Basumatary was sent back to judicial custody. The confessional statement of Ajay Basumatary was marked as Ext-379 which bears his signature. During cross-examination PW-478 has, however, admitted that he did not mention as to who had identified accused Ajay Basumatary before him and except the signature of the accused there is nothing else available on record to connect the accused Ajay Basumatary with the confession. Although Mr. Bhattacharyya has argued that this accused was not properly identified before recording his confessional statement, yet, we find from the record that PW- 641, who had taken this accused for recording his confessional statement, had clearly identified him. Moreover, complete particulars of this accused has been recorded by the learned Magistrate before recording his statement and correctness of such entries made in respect of this accused persons has also not been disputed before us.
Page No.# 165/198
226. Sri Neel Kamal Das (PW-545) was the Judicial Magistrate who had recorded the confessional statement of accused Onsai Boro. PW-545 has deposed that on 31.05.2010 when he was posted as Judicial Magistrate First Class, Kamrup(M) at Guwahati, on that day accused Onsai Boro alias Ajit Boro was produced before him by the CBI personnel for recording his confessional statement. After giving the mandatory warnings to the accused, he was sent back to judicial custody for one day with a direction to the Jail authority that the accused should not be allowed to mingle with the other detainees. The next day the accused was produced before him. On such production he had once again warned the accused regarding his confessional statement and on being satisfied about the voluntariness of the accused to record his confession he went on to record the confessional statement of the accused. PW-545 has deposed that Ext-489 (6 sheets) was the confessional statement of accused Onsai Boro alias Ajit Boro which bears his signature. During the cross- examination of WP-545, nothing could be brought out to suggest that the confessional statement of accused Onsai Boro was not recorded by following proper procedure and after observing the mandatory requirement prescribed by law.
227. We also find from the record that confessional statement of accused Anup Kumar Boro was recorded under section 164 Cr.P.C. by Sri Rajnish Bora, Judicial Magistrate, 1st Class, Barpeta. Sri Rajneesh Bora was examined as PW-513. In his deposition, this witness has stated that he was posted as Judicial Magistrate First Class at Barpeta on the day on which accused Anup Kumar Boro was produced before him for recording his confessional statement. During cross-examination, PW-513 has Page No.# 166/198 admitted that after recording the confessional statement of Anup Kumar Boro he had remanded the accused back to the police custody.
228. According to the prosecution, Anup Kumar Boro was made an approver. However, as has been observed here-in above, there is no material on record to hold that Anup Kumar Boro was an approver in this case. His confessional statement was also recorded by treating him as an accused. However, the accused was sent back to police custody after recording his confessional statement. After careful scrutiny of the records, a serious doubt arises as to the procedure followed and the circumstances under which the statement of this accused was recorded. As such, we are of the opinion that the statement of Anup Kumar Boro recorded under section 164 CrPC cannot be relied upon as his confessional statement and therefore, we refrain from referring to his statement.
229. In so far as the confessional statement of accused Onsai Boro @ Ajit Boro and Ajay Basumatary is concerned the learned senior counsel for the appellants has argued that conviction of the accused persons based on such retracted confession would not be permissible in law. From a careful reading of the statement of accused Onsai Boro, we find that in his statement recorded under section 313 of the CrPC this accused has stated that he had not made any confessional statement. From an analysis of his statement we find that his statement recorded under section 164 CrPC is exculpatory in nature. He had not confessed about his involvement in the conspiracy or in the commission of any crime. Although this accused has admitted to have met Ranjan Daimari at Bangaladesh but he has also stated that he had picked Page No.# 167/198 up a quarrel with Dinthilang for calling him to Bangladesh without any reason. He has admitted his role in the purchase of a motorbike but in his statement, there is nothing to indicate that he had any knowledge about the fact that the motor cycle was meant to be used in bomb blasts. Therefore, we are unable to agree with the learned trial court that accused Onsai Boro had made any confession. The same is, however, not true for accused Ajay Basumatary.
230. In his confessional statement, accused Ajay Basumatary has categorically admitted that he was an active member of the NDFB and the fact that he had undergone arms training at Bangladesh. He has confessed about his role in the bomb blasts by narrating in details, the manner in which the blasts were executed. Therefore, the confessional statement of this accused is inculpatory in nature. Accused Ajay Basumatary has clearly implicated accused Ranjan Daimari @ D.R. Nabala, Jhon@ George Boro, Rifikhang@Rajendra Goyari, Kahraw@Kahrgeswar, Ulafat, Bithora@ Baisagi Basumatary. Although this accused had retracted his confession on 12.12.2018 during his examination under section 313 CrPC by stating that he had not made any confession, yet, the confessional statement of this accused person has been duly proved by the prosecution. From the evidence of PW-641 it is apparent that this accused was produced from judicial custody for recording his confessional statement and the same was also recorded after giving the accused, time for reflection, which in the facts and circumstances of the case, appears to be sufficient.
231. In the case of Rabindra Kumar Pal @ Dara Singh (supra) the Supreme Court has Page No.# 168/198 laid down certain principles to be followed while recording the statement of the accused under section 164 CrPC. It has been inter-alia held that the maker should be granted sufficient time for reflection. In the case of Swaran Singh Rattan Singh (supra) it has been held that although it would be prudent to allow the accused at least 24 hours time for reflection, yet, it would be difficult to lay down any hard and fast rule as to the time which should be allowed to the accused for reflection. From the above, it is apparent that permitting 24 hours time for reflection, though desirable, failure to do so will not render the confession liable to be discarded if the same appears to have been recorded by following due procedure prescribed under the law.
232. On the question of probative value of a retracted confession, it has been held in the case of Puran Singh vs State of Punjab reported in AIR 1953 SC 459, in case of retracted confession, corroboration in material particulars would be necessary. Therefore, merely because this accused had retracted his confession several years after making it, the same cannot by itself be a ground to discard his confession if there are other evidence available on record to lend assurance to the truthfulness of his confession.
233. The confessional statement of this accused person appears to be truthful and voluntary. It also appears that the procedure prescribed under section 164 CrPC has also been properly followed by the Magistrate while recording the confessional statement of this accused. The confession of accused Ajay Basumatary not only appears to have a logical sequence but we find that the same was also spontaneous. The confession of this accused also finds due corroboration from the Page No.# 169/198 other evidence available on record and there is no non-corroborative factor on record. Therefore, we are of the opinion that there is no valid ground to discard the confessional statement of accused Ajay Basumatary merely because he had subsequently retracted his confession.
234. It is also to be noted here-in that accused Ajay Basumatary @ B. Aogai was a co-accused who was tried along with the other accused persons for the same offences. This accused was also charged as a co-conspirator. Therefore, as per section 10 of the Indian Evidence Act, 1872, the statement of co-accused Ajay Basumatary will be relevant fact. Since the prosecution has proved the confession of accused Ajay Basumatary as per section 30 of the Evidence Act, his confession can be relied upon by the court for conviction of the co-conspirators.
235. In the case of Govt. of NCT of Delhi vs. Jaspal Singh reported in (2003)10 SCC 586 the Supreme Court has held that law is well settled that confession of a co- accused cannot be treated as substantive evidence to convict, other than the maker of it, on the evidentiary value of it alone. But it has often been reiterated that if on the basis of the consideration of other evidence on record the Court is inclined to accept the other evidence, but not prepared to act on such evidence alone, the confession of a co-accused can be pressed into service to fortify its belief on it also.
236. While interpreting Sections 10 and 30 of the Evidence Act, 1872 in the context of evidentiary value of confession of a co-accused recorded under Section 164 Cr.P.C. the Supreme Court has observed, in the case of Mohd. Jamiluddin Nasir vs. State of West Bengal reported in (2014)7 SCC 443, that although confession of a co-
Page No.# 170/198 accused is not substantive evidence, yet, the same could be relied upon for conviction of other accused if the same is found to be voluntary, properly recorded with no non-corroborative factors and the confession is sufficiently supported by the prosecution case.
V) Objection as regards non-availability of original of Ext-42 :
237. As noticed herein before, Ext-42 was the letter written in Bodo language addressed to "Honourable Sir". According to the prosecution, seizure of the aforesaid letter Ext-42 was one of the key events during investigation in the serial bomb blasts case which had depicted the conspiracy angle involving the members of the NDFB headed by accused/appellant Ranjan Daimari and its active members. The learned trial court had also referred to Ext-42 but during hearing of these appeals, original of Ext-42 letter could not be traced out in the Lower Court record. Considering the significance of the document this Court had passed order dated 13.05.2022 directing the Registrar Vigilance to conduct an enquiry so as to trace out the original of Ext-42 and submit a report. Accordingly, the aforesaid exercise was carried out whereafter, the Registry had submitted a report stating that the original of Ext-42 which was exhibited before the learned trial court was not available in record. In other words, the document marked as Ext-42 with the original signature of the Presiding Officer could not be traced out in the Lower Court record. However, photocopy of Ext-42, which was available on record was available and hence, flagged with the report. The Registry has also confirmed that Ext-42 was translated from Bodo language to English by PW-29 and was exhibited before the learned trial court as Ext-43. Therefore, Page No.# 171/198 it is evident that original of Ext-42, for whatever be the reason, is not available on record but the translated version of Ext-42 is available as Ext-43 which has also been duly proved by its translator PW-29. Further, PW-631 has deposed that PW-29, Dr. Bhupen Narzary had translated the letter written in Bodo language (Ext-42) to English. He was Head of the Department of Bodo Language of Gauhati University. During the cross-examination of PW-631, this witness could not be shaken.
238. As noted above, in his deposition PW-635 Sri Madhusudan Thapa has narrated in details the circumstances under which the handwritten letter in Bodo language (Ext-42), addressed to "Honourable Sir", was seized from accused Nilim Daimari along with one Pendrive, one Mobile Handset having Bangladeshi SIM card on 02.09.2008. The accused was arrested by the PW-635 and taken to Tura Police Station whereafter, Tura Police Station Case No.156(9)/2008 was registered under Section 121 IPC r/w Sections 6 and 20 of the Act of 1967. This witness has also exhibited the seizure memo Ext-313 as well as the true copy of arrest memo of Nilim Daimari Ext-616 besides exhibiting certified extract copy of the Case Diary Ext-617. The witness has also categorically deposed that accused Nilim Daimari was the suspected NDFB cadre whom he had arrested. During the cross-examination of PW-635 this witness could not be shaken.
239. The seizure of Ext-42 from an NDFB cadre and the use of the expression "Hounourable Sir" in that letter, according to the prosecution had clearly indicated that the letter was addressed to the Chief of NDFB. This letter was therefore, treated as the basis of the conspiracy theory. Having regard to the facts and circumstances Page No.# 172/198 of the case and the bulk of other evidence available on record, we are of the considered opinion that Ext-42 having been seized from an NDFB cadre and in view of the contents of that letter, it was apparent that there was a conspiracy involving the Chief of the NDFB or atleast some higher level functionary of that organisation. Therefore, merely because the original copy of Ext-42 is not available on record that by itself, will not cause any dent in the prosecution case in so far as the conspiracy theory is concerned, more so in view of the evidence of PW-29, who had remained unshaken during his cross-examination.
W) Objection as regards failure to accord proper prosecution sanction :-
240. We have already observed herein above that PW-222, who was serving as the Commissioner & Secretary to the Government of Assam, Home and Political Department, had accorded sanction for prosecution of the accused persons under the provisions of Sections 10, 13, 16, 18 and 20 of the Act of 1967. This witness has also exhibited the relevant orders granting such sanction. Likewise, PW-223 had accorded sanction to prosecute the accused persons under Sections 3 and 4 of the Explosive Substances Act, 1908 and exhibited the sanction orders bearing his signature. PWs- 225 and 226 were the other sanctioning authorities who have deposed before the Court confirming that prosecution sanction was granted against all the accused persons. During their cross-examination, nothing could be brought out so as to raise a doubt in the mind of this Court that proper prosecution sanction had not been accorded in this case. Therefore, we are unable to agree with the submission of Mr. Bhattacharyya that there is any defect in according prosecution sanction against the Page No.# 173/198 accused persons in this case.
X) Objection as regards admissibility of disclosure statements and pointing out memos under Section 27 of the Evidence Act :
241. It is the established principle of law that statements made by the accused persons including the information given to police while in police custody cannot be proved against the accused due to the bar created by Sections 25 and 26 of the Evidence Act. However, Section 27 of Evidence Act is an exception to the above rule which provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of police officer, so much of such information, as relates distinctly to the fact thereby discovered, may be proved. In order to examine the submission of the learned senior counsel appearing for the appellants that all facts allegedly discovered by the I.O.
based on disclosure statements of the accused persons were already known to them, we have meticulously gone through the record and find that as per deposition of PW- 646, Ext-676 is the disclosure statement of accused/appellant Indra Brahma and Exts- 677, 678 and 679 are the pointing out memos. Accused/appellant Indra Brahma had apparently furnished information in his disclosure which had led to discovery of some facts which have been elaborately discussed in the evidence adduced by PW-646. Likewise, Ext-680 i.e. the disclosure statement of accused/appellant Lokhra Basumatary and Exts-681, 682 and 683 being the pointing out memos also led to discovery of new facts which were in the knowledge of that accused. The evidence of PW-646 further goes to show that the discovery statement of accused/appellant Page No.# 174/198 Khargeswar Basumatary alias Rahul Brahma (Ext-8) and the pointing out memo Ext-9, the discovery statement of accused/appellant Mathuram Brahma alias Mudai (Ext-4) and the pointing out memos (Exts-5, 6 and 7), the discovery statement of accused/appellant George Boro (Ext-1) and the pointing out memo (Ext-2) have all led to discovery of new facts which were within the exclusive knowledge of the accused persons. It is no doubt correct that soon after the blasts took place, the locations of the bomb blast, the fact that cars and motorbikes were used to carry out those blast became known to all. However, there is nothing on record to show that the specific information derived by the investigating agency from the disclosure statement of the accused persons, referred to above, were already within the knowledge of the CBI. The information derived from the disclosure statement of accused/appellant George Boro (Ext-26) and the pointing out memo (Ext-27) as well as the disclosure statement of accused/appellant Mathuram Brahma (Ext-29) as appearing from the evidence of PW-17 do not appear to be facts already within the knowledge of the CBI. We also find similar disclosure statements from the evidence of PWs-20, 21 and 22 which are also to similar effect. In that view of the matter, we are unable to agree with the submission of the learned senior counsel for the appellants that the disclosure statements of the accused persons relied upon by the prosecution were inadmissible in evidence.
242. In the back drop of the evidence brought on record, as discussed above, this court is called upon to consider as to whether the prosecution has succeeded in proving the charges brought against all the accused persons beyond reasonable doubt.
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243. Section 10 of the Act of 1967 makes it a penal offence for any person to be a member of an unlawful assembly.
244. Section 15 of the Act of 1967 defines terrorist act which reads as follows:-
"Section 15 - Terrorist act. --Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause-
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life
of the community in India or in any foreign country; or
(iv) damage or destruction of any property in India or in a
foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or Page No.# 176/198
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act."
245. As per section 16 of the Act of 1967, whoever commits a terrorist act if such act has resulted in the death of any person, shall be punished with death or imprisonment for life and shall also be liable for fine.
246. Section 18 of the Act of 1967 prescribed the punishment or conspiracy which is reproduced herein below :-
"Section 18 - Punishment for conspiracy, etc.--Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine."
247. Sections 3 and 4 of the Explosive Substances Act, 1908 read as follows :-
"3. Punishment for causing explosion likely to endanger life or property.-- Any person who unlawfully and maliciously causes by--
(a) any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with imprisonment for life, or with rigorous imprisonment of either description which shall not be less than (ten Page No.# 177/198 years, and shall also be liable to fine;
(b) any special category explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with death, or rigorous imprisonment for life, and shall also be liable to fine.
4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property.--Any person who unlawfully and maliciously--
(a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires lo cause by an explosive substance or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; or
(b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished,--
(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
(ii) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous Page No.# 178/198 imprisonment for a term which may extend to ten years, and shall also be liable to fine."
248. As noticed above, the prosecution case is to the effect that the accused persons had conspired to execute the serial bomb blasts in Assam, which was executed in a pre-planned manner. In order to prove the charges brought against the accused persons the prosecution has relied upon the evidence brought on record besides the confessional statements of the accused persons. In Mohd. Khalid vs. State of West Bengal reported in (2002) 7 SCC 334,it has been observed that in a case of criminal conspiracy, where trust worthy evidence establishing all links of circumstantial evidence is available, the confession of a co-accused as to conspiracy, even without corroborative evidence, can be taken into consideration. In some cases it can be inferred from the acts and conduct of the parties. .
249. In the case of Firozuddin Basheeruddin &Others vs State of Kerala reported in (2001) 7 SCC 596 the Supreme Court has held that in case of conspiracy trial, loosened standard regarding admissibility of evidence will prevail. In case of conspiracy prosecution any declaration by one conspirator made in furtherance of a conspiracy and during its pendency would be admissible against each conspirator. Despite the un-reliability of hearsay evidence, it is admissible in conspiracy prosecution. Conspirators are liable on an agency theory for statement of co- conspirator, just as there are for the overt acts and crimes committed by their confreres.
250. In the case of Yakub Abdul Rezak Memon vs. State of Maharashtra reported in (2013)13 SCC 1 the Hon'ble Supreme Court had the occasion to further expound the Page No.# 179/198 law pertaining to theory of agency and conspiracy. After taking note of several previous decision of the apex on the issue, it has been held that all the conspirators are liable for the act of each other in respect of crime or crimes which have been committed as a result of conspiracy. Each conspirator can be attributed with the other's action in a conspiracy so as to bring home the charge of conspiracy within the ambit of Section 120-B IPC. It would be necessary to establish that there was an agreement between the parties for doing an unlawful act. However, it is difficult to establish conspiracy by direct evidence since conspiracy is hatched in secrecy. In the above context, the observations made in paragraphs 136 to 144 would be relevant and therefore, the same are reproduced herein below for ready reference:-
"136) For an offence under Section 120-B IPC, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. It is not necessary that each member of the conspiracy must know all the details of the conspiracy. The offence can be proved largely from the inferences drawn from the acts or illegal omission committed by the conspirators in pursuance of a common design. Being a continuing offence, if any acts or omissions which constitute an offence are done in India or outside its territory, the conspirators continuing to be the parties to the conspiracy and since part of the acts were done in India, they would obviate the need to obtain the sanction of the Central Government. All of them need not be present in India nor continue to remain in India. The entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve. (Vide: R.K. Dalmia vs. Delhi Administration, AIR 1962 SC 1821; Lennart Schussler & Anr. vs. Director of Enforcement & Anr., (1970) 1 SCC 152; Shivanarayan Page No.# 180/198 Laxminarayan Joshi vs. State of Maharashtra, (1980) 2 SCC 465 and Mohammad Usman Mohammad Hussain Maniyar and Another vs. State of Maharashtra, AIR 1981 SC 1062)
137) In Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra, (2008) 10 SCC 394, this Court held:
"25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement."
138) In Nirmal Singh Kahlon vs. State of Punjab, AIR 2009 SC 984, this Court following Ram Lal Narang vs. State (Delhi Admn.), AIR 1979 SC 1791, held that a conspiracy may be a general one and a separate one, meaning thereby, a larger conspiracy and a smaller one which may develop in successive stages.
139) In K.R. Purushothaman vs. State of Kerala, (2005) 12 SCC 631, this Court held:
"11. Section 120-A IPC defines 'criminal conspiracy'. According to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. ....
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13. ......The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy."
140) In State of Maharashtra vs. Som Nath Thapa, AIR 1996 SC 1744, this Court held :
"24. ......to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended......The ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
141) In State through Superintendent of Police, CBI/SIT vs. Nalini & Ors., (1999) 5 SCC 253, this Court held:
"583......(1) ....... Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.
Page No.# 182/198
... ...... .....
(6) It is not necessary that all conspirators should agree to the
common purpose at the same time. They may join with other
conspirators at any time before the consummation of the intended objective, and all are equally responsible.....
(7) .... Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused......There has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy.......
(8) ...... it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
* * *
663. The agreement, sine qua non of conspiracy, may be proved either by direct evidence which is rarely available in such cases or it may be inferred from utterances, writings, acts, omissions and conduct of the parties to the conspiracy which is Page No.# 183/198 usually done. In view of Section 10 of the Evidence Act anything said, done or written by those who enlist their support to the object of conspiracy and those who join later or make their exit before completion of the object in furtherance of their common intention will be relevant facts to prove that each one of them can justifiably be treated as a conspirator."
(See Also: Kehar Singh & Ors. vs. State (Delhi Admn.), AIR 1988 SC 1883)
142) In Firozuddin Basheeruddin & Ors. vs. State of Kerala, (2001) 7 SCC 596, this Court held:
"23. Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state.....The law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offence, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators.
25. Conspiracy is not only a substantive crime, it also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial Page No.# 184/198 relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime was performed as a part of a larger division of labour to which the accused had also contributed his efforts.
26. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co- conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions.........
27. Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres."
(See also: State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005) 11 scc 600)
143) In Ram Narayan Popli vs. Central Bureau of Investigation, (2003) 3 SCC 641, this Court held:
"342.........The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons Page No.# 185/198 whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design."
144) In Mohd. Khalid vs. State of West Bengal, (2002) 7 SCC 334, this Court held:
"27. Where trustworthy evidence establishing all links of circumstantial evidence is available the confession of a co- accused as to conspiracy even without corroborative evidence can be taken into consideration."
251. Yakub Abdul Razak Memon (supra) relates to the Bombay blasts of 1993. The charges in that case was framed against the main accused persons under the TADA Page No.# 186/198 read with sections 120-B, 302, 307, 326 324, 427 435, 436, 201 of the IPC read with section 3 and 4 of the Explosive substances Act,1908 read with section 3,7 25 (1-A) and 25(1-B)(a) of the Arms Act 1959 r/w section 16(a)/17 to 20 and 23 of the UAPA r/w section 4,5 and 6 of Prevention of Damage to Public Property Act,1984 r/w section 10 and 30 of the Indian Evidence Act.
252. From a careful analysis of the evidence available on record, we find that the fact that the NDFB was a banned organization and an unlawful association has been cogently established from the testimonies of PWs-457 and 646 as well as the Exts-314 and 656. Moreover, the first schedule of the Act of 1967 also lends support to the said position. The fact that NDFB was indulging in terrorist activities also stands established from the above evidence adduced by the prosecution.
253. PW-302 has deposed that he knew Ranjan Daimari who was the Chairman of NDFB. His testimony on the above count has remained un-rebutted.
254. PWs 499 and 502 have deposed as the regards the manner in which the e- mails of Ranjan Daimari was opened and materials showing his links to NDFB and the active armed rebellion, were retrieved therefrom. PW-502 has exhibited the print outs from the e-mail account of Ranjan Daimari. The testimonies of PWs 499 and 502 have also remained un-impeached.
255. As noted above, the occurrence of the bomb blasts on 30.10.2008 is not in Page No.# 187/198 dispute. The fact that all the nine bomb blasts took place in a short span of about ten minutes time causing large scale devastation to human lives and properties has been cogently established from the evidence of the relatives of the victims, injured witnesses, persons who had suffered losses and from the evidence of the medical officers. From the evidence of ballistic experts PWs-547 and 620, the nature of the blasts have been established. The manner in which the serial blasts took off at different places in the State of Assam leaves no room for doubt that the same was the handiwork of the some person(s) or organization. Unless there was a concerted effort on the part of a number of persons, blasts of this intensity, in multiple locations would not be possible. As such, the fact that the bomb blasts were the outcome of a criminal conspiracy is self evident and the prosecution has also adduced sufficient evidence to establish the said fact. From the materials available on record, there can be no element of doubt about the fact that the sole purpose behind the blasts was to cause terror and thereby challenge the sovereignty, unity and integrity of the country.
256. From the testimony of the FSL experts more particularly PWs- 547, 567, 606, 649 and 650 it has been established that deadly explosive substances such as Tri Notrotoluene (TNT), Cyclotrimethelyn Tri Nitramine (RDX) and Ammonium Nitrate were used in the blasts. These explosive substances are not available openly and only the members of a banned terrorist organization such as the NDFB could have procured those explosive substances with foreign help.
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257. It has come out from the evidence of PW-646 that the blasts were orchestrated by accused Ranjan Daimari and the explosives were obtained from Bangladesh. Instructions to carry out the blasts was sent by Ranjan Daimari. A cadre of NDFB Nilim Daimari was arrested by the Tura Police from Meghalaya along with a letter written by John in Bodo language along with a pen drive. PW-635 had arrested Nilim Daimari along with the letter and a pen drive. The said letter was later translated from Bodo language to English by PW-29 wherefrom it transpired that the same was addressed to a high functionary in the NDFB. Going by the language employed in the letter, it is believed that the same was addressed to Ranjan Daimari. In any event, terrorist activities of such scale and intensity could not have been given effect to in a pre- planned manner by the members of the NDFB without the active support and connivance of the Chief of the organization. PW-606 had examined the pen drive seized from Nilim Daimari. He has deposed that the pen drive contained materials regarding manufacture of explosive devices, writings about NDFB and how to establish a self sustainable Bodo Nation.
258. PW-646 has deposed that investigation had revealed that a meeting of NDFB cadres was held on 19.10.2008 in presence of Ajay Basumatary, John, Rahul Brahma, Rifikhang, Dinthilang and Ulafat wherein it was told that accused Ranjan Daimari had given instruction to carry out nine bomb blast on 30.10.2008. The above testimony of PW-646 finds due corroboration from the confessional statement of accused Ajay Basumatary. PW-646 has also deposed in details about the manner in which the Page No.# 189/198 explosions were executed with the help of the active NDFB cadres.
259. The prosecution has also examined the vehicle owners, more particularly PWs- 61, 62, 67 and 387 to prove that a number of vehicles were used in the blasts. The evidence of these witnesses, read with the testimonies of PWs- 82, 94, 357, 358, 468, 473, 474, 483, 486 throw sufficient light on the conspiracy theory involving the NDFB cadres.
260. The evidence of the other prosecution witnesses read in conjunction with the testimonies of the CBI Officials viz., PWs 624,641,642,631, along with the testimonies of PWs-302, 499, 502, 503, 504, 506, 536, 590 and 646 have clearly established the fact that the nine bomb blasts were executed on 30.08.2008 by the NDFB cadres under the instructions of its Chairman Ranjan Daimari.
261. The evidence adduced by PWs-15, 16, 17, 29, 30, 49, 50, 367, 371, 512, 578, 579, 610 and 616 have also implicated accused/appellant George Boro. A careful analysis of the evidence adduced by these witnesses leave no room for doubt that he was an active member of the NDFB and one of the key facilitators of the bomb blasts that took place on 30.10.2008. It has also been established beyond doubt from the evidence brought on record that accused George Boro had a decisive role in the execution of the blasts. Therefore, we are of the opinion that the charges brought against the accused/appellant George Boro have also been established by the prosecution beyond reasonable doubt.
262. In so far as the accused/appellant Khargeswar Basumatary alias Rahul Brahma is concerned, we find that PWs-22, 58, 59, 64, 67, 68, 533, 587, 617 and 618 have Page No.# 190/198 implicated this accused by ascribing specific role to him. Likewise, PWs-61,62, 67, 68, 182, 387, 398, 399, 400, 466, 475, 489, 547, 582, 584, 585, 586, 587 and 621 have implicated accused/appellant Raju Sarkar. From an analysis of the evidence brought on record, it is clearly established that appellant Raju Sarkar was working as a mechanic in a garage and he had purchased the Maruti Suzuki car from PW-67 Bipin Chandra Rajbongshi on 24.08.2008 i.e. just a few days before the blast. The Maruti Suzuki car was used in the bomb blast with a fake number plate. From the evidence available on record, it is established beyond doubt that the accused /appellant Khargeswar Basumatary alias Rahul Brahma and Raju Sarkar had played an active role in facilitating the bomb blasts with full knowledge and understanding that the acts undertaken by them were unlawful. Therefore, we are of the opinion that charges brought against these accused persons had been proved beyond reasonable doubt.
263. In so far as accused/appellant Prabhat Boro alias Tepa is concerned, the evidence adduced by PWs-46, 47, 51, 57, 176, 382, 386 and 683, as discussed herein above, read with the other evidence brought on record have clearly established the charges brought against this accused person beyond reasonable doubt. Likewise, the charge brought against accused/appellant Mathuram Brahma has also been established from the evidence of PWs-17, 20, 21 and 646. We are also of the opinion that the charge brought against accused/appellant Rajendra Goyari alias Rifikhang and accused/appellant Ajay Basumatary has been not only been established by the evidence adduced by the prosecution witnesses but the confessional statement of these accused Ajay Basumatary also lends assurance to such evidence brought on Page No.# 191/198 record by the prosecution. We, therefore, hold that the confessional statement of Ajay Basumatary is duly corroborated by the other evidence brought on record. Ajay Basumatary being a co-accused and a co-conspirator, his statement had been rightly relied upon by the learned trial court.
264. In his confessional statement, Ajay Basumatary has stated that on 27.10.2008, Baisagi Basumatary @ Bithurai, a female member of the NDFB had brought a L.P.G cylinder to John's room. The cylinder was filled with some gunpowder like substance. The evidence available on record goes to show that the L.P.G cylinder was used in the blast. From the above, it is apparent that appellant Baisagi was an active member of the NDFB and was a part of the conspiracy. On the basis of his investigation, PW-646 has also deposed that the explosive laden cylinder used for carrying out the blast was given to John on 29.10.2008 by Baisagi Basumatary @ Bithurai. In view of the law laid down in the case of Mohd. Khalid vs State (supra), on the face of the bulk of trustworthy evidence brought on record by the prosecution to establish the conspiracy theory leading to the serial bomb blasts, we are of the view that the confessional statement of Ajay Basumatary would be sufficient to convict Baisagi Basumatary even without any other corroborative evidence.
265. Having regard to the bulk of evidence brought on record, we are of the considered opinion that the prosecution has succeeded in establishing each link in the chain of circumstances to prove that the nine bomb blast that took place on 30.10.2008 was the outcome of the conspiracy hatched by the appellants Ranjan Daimari, George Boro @ Jhon, Ajay Basumatary, Rahul Brahma, Rajendra Goyari, Page No.# 192/198 Raju Sarkar, Mathuram Brahma, Baisagi Basumatary, Prabhat Boro and Nilim Daimari. We find that there is cogent evidence available on record to show that above named appellant/accused persons were in a conspiratorial relationship and have acted in a concerted manner to execute the nine bomb blasts leading to the carnage. There is trustworthy evidence available on record to establish all the links in the chain of circumstances to prove the charge brought against each of those appellant/ accused persons beyond reasonable doubt. Therefore, by applying the ratio laid down in the case Yakub Abdul Rezak Memon(supra), we are of the opinion that the conviction and sentences awarded by the learned trial court to the above named appellants/ accused persons do not call for any interference from this court. However, in so far as the accused/appellants Onsai Boro @ Ajit Boro, Lokhra Basumatary @ Lobo, Indra Bhramha and Jayanti Brahma @ Jugami are concerned, after scanning the evidence, we find that evidence on record is insufficient to conclude that the charges brought against them have also been proved beyond reasonable doubt.
266. In so far as accused Onsai Boro alias Ajit Boro is concerned, we have already held that his statement recorded under Section 164 Cr.P.C. cannot be held to be a confessional statement in as much as accused Onsai Boro has merely admitted to have met Ranjan Daimari and thereafter, asked Indra Brahma and Lokhra Basumatary to search for a bike. From his statement under Section 164 Cr.P.C. it is evident that after the ceasefire in the year 2004, Onsai Basumatary had started to live in the designated camp or in rented house with his wife thereby signifying that he was no longer an active member of the NDFB. This accused has also stated that he was Page No.# 193/198 unhappy with the fact that he was called to Dhaka. From the statement of Onsai Boro recorded under Section 164 Cr.P.C (Ext- 489 ) we do not find anything to indicate that he was aware of the design of the NDFB to execute the bomb blast with the help of the motor cycle. There is no other evidence available on record to establish that Onsai Boro was a part of the conspiracy.
267. From a reading of the impugned judgment of the trial court, we find that the learned court below has taken note of confessional statement of Onsai Boro as well as the evidence of Dashrath Basumatary (PW-488), Sunwary Boro (PW-493) and Kamal Kumar Banthia (PW-645) to hold that the charge brought against the accused Onsai Boro alias Ajit Boro has been established beyond reasonable doubt. However, on a careful reading of the testimonies of PWs-488, 493 and 645 we do not find any incriminating materials so as to establish that Onsai Boro had committed an offence punishable under Sections 120-B and 302 of the IPC, Section 3(b) of the Explosive Substances Act, 1908 and Sections 10(b)(i) and 16(1)(a) of the Act of 1967.
268. Likewise, we find that except the statement of accused Onsai Boro recorded under section 164 CrPC, there is nothing to implicate the appellant Lokhra Basumartary alias Lobo. Accused Onsai Boro had merely referred to Lokhra Basumatary as one of the persons whom he had asked for help in the purchase of a motorcycle. Finding a motor cycle, by itself, would not amount to any unlawful activity. There is nothing on record to show that appellant Lokhra Basumatary had, in the process of purchase of the motor cycle, agreed to facilitate the bomb blasts or indulged in any unlawful activity. There is no evidence to prove the knowledge and Page No.# 194/198 intent on the part of this appellant to commit an offence punishable under the law. The learned trial court has convicted accused Lokhra Basumatary merely by taking note of the fact that this accused went absconding after the bomb blasts. However, there is no substantive evidence available on record permitting the court to come to a conclusion that Lokhra Basumatary was guilty of any of the offences alleged to have been committed by him. Merely because the accused was absconding after the bomb blasts, the same, in our, opinion, cannot be a valid ground to convict this accused for the charges brought against him. We are, therefore, of the opinion that the evidence on record is insufficient to prove the charge brought against this appellant of having committed offences punishable under Sections 326, 324, 435 IPC, Sections 3(b) and 4(a)(b)(ii) of the Explosive Substances Act, 1908 and 10, 13, 16 and 20 of the Unlawful Activities (Prevention) Act, 1967.
269. In so far as accused/appellant Indra Brahma is concerned, here also we find that the conviction of the appellant is based on testimonies of PWs-488, 493, 495 and
645. However, as noted above, from the testimony of PW-488 we find that Sunwary Boro (PW-493) had merely asked accused/ appellant Indra Brahma to look for a customer to purchase the motorcycle and accordingly this accused had informed Sunwary Boro that a person will purchase the motor cycle. After some time, a healthy person arrived there and took way the motorcycle by paying some money. Sunwary Boro (PW-493) has also corroborated the said fact by deposing that he had asked accused Indra Brahma over mobile phone as to whether anybody would purchase the motorcycle. He has also deposed that Indra Brahma had arranged for a customer who took away the motorcycle. . The evidence of PWs-495 and 645 does Page No.# 195/198 not in any way implicate accused/appellant Indra Brahma in commission of an offence punishable under the law. The identity of the 'healthy person' has not been established. If that be so, merely on the basis of testimonies of PWs-488 and 493, this accused cannot be convicted for facilitating the serial bomb blasts. We are, therefore, of the view that the evidence on record is insufficient to prove the charge brought against this appellant of having committed offences punishable under Sections 326, 324, 435 IPC, Sections 3(b) and 4(a)(b)(ii) of the Explosive Substances Act, 1908 and 10, 13, 16 and 20 of the Unlawful Activities (Prevention) Act, 1967.
270. After examining the evidence brought on record we find that the prosecution has failed to establish the conspiratorial relationship between the accused/ appellant Onsai Boro, Lokhra Basumatary and Indra Brahma either amongst themselves or between any of them and the co-conspirators or even the fact that they were active members of the NDFB at the relevant point of time. These appellants had evidently played a role in the sale/purchase of the motor cycle used in the blast, and to that extent, their disclosure statements pertaining the manner in which the transaction was carried out may be relevant. However, in the absence of any evidence to establish the role of these persons in the conspiracy leading to the serial bomb blasts, they cannot be convicted merely on the basis of disclosure statements and pointing out memos even if it is held that they had a role to play in the purchase/ sale of a motor cycle which was used in the blast. On the contrary, there is reasonable doubt as to their involvement in the conspiracy.
271. In so far as accused Jayanti Brahma alias Jugami is concerned, here also we Page No.# 196/198 find that she was convicted by the learned trial court merely on the ground that she was absconding after the bomb blasts and later arrested during the course of investigation. The learned trial court has also taken note of the fact that the name of Jugami was mentioned in the letter written by George Boro "Ext-42" wherein, it was reflected that she was staying with "Ulafat Sir". Save and except the above, there is no other material available on record to prove that accused Jyanti Brahma alias Jugami was guilty of the offences with which she had been charged. Ajay Basumatary or Onsai Boro have also not mentioned about her in their statements. Under the circumstances, even assuming that the name of Jayanti Brahma alias Jugami finds mention in the letter "Ext-42" even then, in the absence of any other evidence available on record to indicate that this appellant was an active member of the NDFB at the relevant point of time and that she did play the role of a facilitator in execution of the bomb blasts, her conviction for committing such serious offence, merely because she went absconding after the bomb blast , in our view, would not be sustainable in the eye of law.
272. We are conscious of the fact that the prosecution has alleged conspiracy on the part of the chief of NDFB Ranjan Daimary and its active members in execution of the blasts and to that extent, it may not be possible to find direct evidence to establish the charge brought under section 120-B of the IPC. However, it is the salutary principle of law that in a criminal trial, the prosecution must succeed in establishing the charge brought against the accused persons beyond reasonable doubt by leading cogent evidence.
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273. Mr. Bhattacharyya, learned senior counsel for the appellants, has relied upon several decisions of the Supreme Court, as noticed above, in support of his argument that there is no evidence brought on record to prove the charges against any of the appellants; that proper procedure was not followed while recording the confessional statement of the accused persons; that the accused is not bound by its pleadings; that the disclosure statement and the pointing out memos exhibited by the prosecution do not have any evidentiary value, that the conviction is based on statement of the witnesses recorded under section 164 CrPC, yet, for the reasons mentioned herein above and having regard to the facts and circumstances of this case, we are unable to agree with such submission of Mr. Bhattacharyya. As such, we are of the considered opinion that the decisions relied upon by the learned senior counsel for the appellants in support of his above arguments would not have any bearing in the facts and circumstances of the present case.
274. In the result, the Criminal Appeal Nos.195/2019 and 154/2019 are allowed in part. The conviction of accused/appellant Onsai Boro, accused/appellant Lokhra Basumatary, accused/appellant Indra Brahma and accused/appellant Jayanti Brahma as well as the sentences awarded to them by the learned trial court are hereby set aside by giving them the benefit of doubt. We, however, uphold and confirm the conviction and sentence awarded by the learned trail court to the remaining appellants/ accused persons.
275. Since appellants Raju Sarkar and Baisagi Basumatary are out on bail, they are directed to surrender before the learned trial court within 10 (ten) days from today. In Page No.# 198/198 so far as appellants Onsai Boro, Indra Brahma and Lokhra Basumatary are concerned, their bail bonds would stand discharged.
273. Appellant Jayanti Brahma@ Jugami is in jail, therefore, she be forthwith released if her custodial detention is not deemed to be necessary in connection with any other proceeding.
Registry to send back the LCR.
JUDGE JUDGE T U Choudhury/ Sr. PS Comparing Assistant