The Gauhati High Court has delivered a landmark ruling affirming that convictions in terror cases cannot rest on fragmented, procedurally defective evidence - even when the underlying crime is heinous. The acquittal of four accused in a mass killing case underscores that the burden of proving guilt beyond reasonable doubt remains unyielding, particularly when key evidence suffers from foundational legal infirmities.
Background & Facts
The Dispute
On 23 December 2014, six Adivasi villagers were killed and two injured in an attack by suspected NDFB(S) militants in Dhekiajuli, Assam. The Assam Police registered an FIR, which was later transferred to the National Investigation Agency (NIA). Four individuals - Sanju Bordoloi, Bishnu Narzary, Ajoy Basumatary, and Nitul Daimary - were charged under multiple statutes including Section 302 IPC, Section 25(1A) Arms Act, Section 5 Explosive Substances Act, and Section 16(1)(a)/18/20 of the Unlawful Activities (Prevention) Act, 1967. The trial court convicted all four and sentenced three to death or life imprisonment.
Procedural History
- 23.12.2014: Mass killing occurred; FIR registered by Dhekiajuli Police
- 06.01.2015: Case transferred to NIA; investigation continued
- 29.08.2018: Special NIA Judge convicted accused and imposed death sentences on two
- 30.01.2026: Gauhati High Court heard appeals and acquitted all accused
Relief Sought
The appellants sought acquittal on grounds of: (1) defective sanction under UA(P)A; (2) unreliable eyewitness and photo identification; (3) non-compliance with Section 27 of the Evidence Act regarding recoveries; (4) inadmissible electronic evidence under Section 65B; and (5) failure to prove criminal conspiracy or active membership in a banned organisation.
The Legal Issue
The central question was whether conviction under the Unlawful Activities (Prevention) Act and Arms Act can be sustained when the prosecution relies on: (i) dock and photo identification without prior test identification parades; (ii) recoveries without legally valid disclosure statements; and (iii) electronic evidence lacking proper certification under Section 65B of the Evidence Act.
Arguments Presented
For the Appellant
Senior Advocate A.K. Bhattacharyya argued that: (1) the photo identification process was tainted - no negatives or source materials were produced, and witnesses admitted ignorance of possible manipulation; (2) no test identification parade was conducted despite accused being in custody, rendering dock identification inherently unreliable; (3) seizure lists lacked signatures of independent witnesses, and no disclosure statements were proved; (4) intercepted call transcripts and CDRs were not authenticated under Section 65B, as the certifying officer did not declare the records true to their knowledge and belief; (5) cadre lists and cash registers were seized from third parties, not the accused, and their authenticity was unproven; and (6) the prosecution failed to establish active participation in terrorism, mere association being insufficient under UA(P)A.
For the Respondent
The NIA and State, through Public Prosecutor K. Gogoi, contended that: (1) sanction under UA(P)A was valid and raised belatedly; (2) dock identification by child witnesses is admissible if trustworthy, citing Dhanaj Adab alias Zahu; (3) photo identification is a recognised mode under Lakshmira Shetty v. Tamil Nadu; (4) non-examination of independent witnesses is not fatal, relying on Rizwan Khan v. State of Chhattisgarh; and (5) electronic evidence was sufficiently authenticated through certificates and internal procedures.
The Court's Analysis
The Court undertook a meticulous review of each strand of evidence, applying settled principles of criminal law and evidentiary standards. It held that identification evidence, particularly from child witnesses after a prolonged delay and without a test identification parade, is inherently weak and cannot form the sole basis of conviction. The Court cited George v. State of Kerala, Navjot Sandhu, and Raja v. Inspector of Police to affirm that dock identification without prior parade is inadmissible as substantive evidence.
"The absence of a test identification parade assumes critical significance in the present case, since the identification of the accused was for the first time in the Court after a long gap by a child witness, particularly where the witness had no prior acquaintance. Such evidence constitutes weak form of evidence and cannot, by itself, sustain a conviction."
Regarding recoveries under Section 27, the Court emphasized that mere recovery of arms does not equate to voluntary disclosure. The prosecution failed to produce any legally proved disclosure statement, and the seizure lists were devoid of signatures of independent witnesses. Crucially, PW-37, PW-38, and PW-41 admitted they had never seen the disclosure statements referenced in the seizure memos. The Court relied on Pulukuri Kattaya and Mohd. Inayatullah to hold that only the portion of the statement leading to discovery is admissible, and not the recovery itself.
On electronic evidence, the Court found fatal defects under Section 65B. The CDs of intercepted conversations were not authenticated by the person who stored or retrieved them. The translator of Bodo-language conversations was not examined. The certifying officers for CDRs (PW-44, PW-45) admitted they had not verified compliance with Section 65B, and none declared the records true to their knowledge and belief. The Court cited Anwar P.V. v. P.K. Basir and Arjun Panditrao v. Kailash Kusandrao to hold that non-compliance with Section 65B renders electronic evidence inadmissible.
The Court further held that conspiracy cannot be inferred from unproven electronic intercepts or possession of documents. The cadre lists and cash registers were recovered from an Army official unrelated to the accused, and their authenticity was never established. The prosecution failed to prove a meeting of minds or active involvement in the crime.
The Verdict
The appellants won. The Gauhati High Court held that the prosecution failed to prove guilt beyond reasonable doubt due to systemic failures in identification, recovery, and electronic evidence. All convictions under IPC, Arms Act, and UA(P)A were set aside. The death sentences were quashed, and the accused were acquitted and directed to be set at liberty immediately.
What This Means For Similar Cases
Identification Evidence Cannot Substitute for Procedural Safeguards
- Practitioners must insist on test identification parades in all cases involving unfamiliar witnesses, especially minors
- Dock identification without prior parade is inadmissible as substantive proof - only corroborative value may be considered
- Photo identification without source verification, negatives, or independent witnesses is legally untenable
Section 27 Recoveries Require Provable Disclosure
- Seizure lists alone are insufficient; a legally recorded disclosure statement must be proved through examination of the recording officer
- Recovery without disclosure, or with unexamined witnesses, renders the entire chain suspect
- Seizure of arms from third parties, unrelated to the accused, cannot be linked to the offence
Electronic Evidence Demands Strict Section 65B Compliance
- Certificates under Section 65B must explicitly state that records are true to the knowledge and belief of the certifying officer
- Translators, data extractors, and system administrators must be examined as witnesses
- CDRs and intercepted audio must be traced to the original source device; corporate certificates without personal attestation are invalid
- Voice samples are only as strong as the underlying electronic evidence - without admissible intercepts, they are meaningless
