The charge sheet proceeds that the accused are ULFA outfit members.
According to him, on 08.12.1993, after attending a kirtan party, he returned home at 10 p.m. His wife told him that two guests have companye and they are sleeping after taking food.
Brief facts, in a nutshell, are as follows On the night of 08.12.1993, on secret information, the police party under the leadership of S.P. Sonitpur and S.D.P.O., Bishwanath Chariali raided the house of Uday Chetry.
Being aggrieved by the said judgment, the appellants preferred separate appeals before this Court.
1 of 1996 whereby the Designated Judge companyvicted Pulin Das Panna Koch appellant in Criminal Appeal No.706 of 2007 and Mahendra Saikia Dilip Saikia appellant in Criminal Appeal No.
Thereafter the outfit members 1 Pulin Das Panna Koch, 2 Mohendra Saikia Dilip Saikia were arrested.
The prosecution examined nine witnesses in support of its case and exhibited the seizure list Ex.1 , the FIR Ex.2 , the sketch map Ex.3 , the expert report Ex.4 , prosecution sanction Ex.5 and the charge sheet Ex.6 and also exhibited the seized arms and ammunitions Mat.
From their possession, one revolver, one 303 rifle, one stand gun and some cartridges were recovered.
836 of 2007 for offences under Section 3 2 ii of the TADA Act and sentenced them to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/ , in default further R.I. for another six months.
deposed that he lives with his brother Uday Chetry, and is residing in the same house.
On the other hand, he fairly admitted that he did number know whether the arrested accused persons belonged to any banned organization.
P.W.1 Abdul Rahman, a Constable, who proceeded along with the other members of the police party to Christianbasti has number stated anything about the accused particularly their activities.
P.W.6, Om Chetry, who is numbere else than the brother of W.5.
He also admitted that he did number know whether any arms and ammunitions or any other articles were seized from the accused persons.
However, the Designated Court acquitted the accused persons under Section 5 of the TADA Act as there was numberevidence available for possession of unauthorized arms and ammunition.
He also returned to bed after food.
In the cross examination, he stated that 6/7 empty cartridges were seized from the place of occurrence.
A.No.706 of 2007 and Mahendra Saikia Dilip Saikia appellant in Crl.
According to him, he did number know who fired from inside the house.
He further deposed that there were five or six persons inside the house where the accused persons were arrested and there were also women in that house.
Though he furnished more details about the occurrence particularly gun shot from the house, over powering by the police personnel, entering the house, apprehending the two accused and seizing arms and ammunitions and also identified both the accused in the companyrt when he was examined, he also did number say anything about either banned organization ULFA or the accused and their activities.
Nandaraj Sharma, one of the police personnel, who visited the house of P.W. 5 was examined as P.W.2.
In the cross examination, he admitted that he was away from the house and did number see who made the firing and he did number know whether any gun was fired or number.
In other words, even the prime witness of prosecution did number whisper anything about the banned organization ULFA their companynection and unlawful activities.
He merely stated that police arrested two inmates of that house and seized some arms and ammunitions.
He also deposed that from police we came to know that both the guests are members of ULFA.
His entire evidence is available from pages 39 41 of the paper book.
One Durga Mohan Brahma, Inspector of Police, has been examined as P.W.7.
He was, at the relevant time, working as D.S.P. H.Q. at Tezpur.
He mainly referred about possession of arms and ammunitions in the residence where the accused were apprehended.
Another police personnel by name Phuleswar Konwer was examined as P.W.3.
836 OF 2007 Mahendra Saikia Dilip Saikia Appellant s Versus State of Assam Respondent s Sathasivam, J. These appeals, under Section 19 of the Terrorist and Disruptive Activities Prevention Act, 1987 hereinafter referred to as the TADA Act are directed against the companymon judgment dated 19.04.2007 of the Designated Judge at Assam, Gauhati in TADA Sessions Case No.
Except the above statement, he did number say anything about the accused persons and their activities.
A. No.836 of 2007 were apprehended and arms and ammunitions were recovered from their possession.
The following statement made by him before Court is relevant and the same is reproduced hereunder At about 12.30 A.M. midnight, I heard the sound of firing in the house.
Shri Uday Chetry, resident of the house in question was examined as P.W.5.
706 OF 2007 WITH CRIMINAL APPEAL NO.
We scanned the same.
Apart from the above witnesses, the prosecution has examined two more witnesses in support of their case.
Next witness one Phuleswar Das who is also one of the police personnel was examined as P.W.4.
It is clear that they heard the above information about the accused persons from the police.
As rightly pointed out by learned companynsel appearing for the appellants accused though the prosecution has claimed that P.W.5 and P.W.6 were important witnesses, their evidence clearly show that they did number know about the activities of the accused persons particularly whether they are members of ULFA.
Like P.W.5, he also deposed that at mid night, he heard the sound of firing, woke up and both of them were called by the police.
He also did number whisper a word about the character and activities of the accused.
Out of fear we did number go out.
Accordingly, a case under Sections 3, 4 and 5 of TADA Act was registered and started investigation.
Thereafter police called us.
Ex.1 4 .
CRIMINAL APPEAL NO.
Though he mentioned that he heard some firing at the place of occurrence, he did number say anything about the accused and their activities.
In such situation and particularly in the light of the charge against the accused, it is but proper on the part of the prosecution to put forth reliable and acceptable evidence material to show that the accused were members of ULFA which is a banned organization.
It is the bounden duty of the prosecution to examine highest police officer of the district, namely, Superintendent of Police or equivalent officer about the above mentioned relevant materials.
The following materials available under clause 7 of the charge sheet read thus The fact of the case is that on 8.12.93 on secret information, it is known that some ULFA outfit members have taken shelter in the house of Uday Chetry situated at Christian Pura under Dhekiajuli P.S. Accordingly, the said house was gheroed by the outfit members.
Both of them have stated that from the police only they came to know that both are members of ULFA.
In order to prove the charge against the accused persons, the prosecution has examined as many as nine witnesses.
The Designated Court, Assam, Gauhati companyvicted the appellants herein under Section 3 2 ii of TADA and sentenced each of them to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/ , in default further rigorous imprisonment for another six months.
It was alleged that the extremist fired upon the police party and the police party also fired in self defence and as such there was exchange of fire from both sides and thereafter Pulin Das Panna Koch appellant in Crl.
