TADA JUDGEMENTS

1999-(SC2)-GJX -0682 -SC
Prasad Ramakant Khade, Appellant V. State Of Maharashtra, Respondent.
DATE : 12-10-1999
EQUIVALENT CITATION(S) :

1999-(008)-SCC -0493 -SC
2000-(087)-AIR -0138 -SC
CATCHNOTE :
INDIAN EVIDENCE ACT SECS.24 & 25 -- Confession -- Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3(3), 5 and 6 - Arms Act, 1959 - Sections 7 and 25(I-A) - Explosive Substances Act, 1908 - Sections 4 and 5 - Confessional statement made in presence of two panch witnesses - Omission to examine second panch witness - Effect - Examination of the second panch witness is not a must - If the appellant wanted to cross-examine the second panch witness, nothing prevented him from making a proper application to the Trial Court during trial for producing the said panch witness for cross- examination - Nothing has been done - Evidence panch witness finds corroboration from the evidence of Investigating Officer - Confessional statement of the appellant alleged to have been recorded vide memorandum is not false and the same could be said to have been duly proved even though non-examination of the second panch witness in Court
HEADNOTE :
Evidence Act, 1872 - Sections 24 and 25 - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3(3), 5 and 6 - Arms Act, 1959 - Sections 7 and 25(I-A) - Explosive Substances Act, 1908 - Sections 4 and 5 - Confessional statement made in presence of two panch witnesses - Omission to examine second panch witness - Effect - Examination of the second panch witness is not a must - If the appellant wanted to cross-examine the second panch witness, nothing prevented him from making a proper application to the Trial Court during trial for producing the said panch witness for cross- examination - Nothing has been done - Evidence panch witness finds corroboration from the evidence of Investigating Officer - Confessional statement of the appellant alleged to have been recorded vide memorandum is not false and the same could be said to have been duly proved even though non-examination of the second panch witness in Court
Conclusion
The confessional statement of the appellant alleged to have been recorded vide memorandum is not false and the same could be said to have been duly proved even though non-examination of the second panch witness in Court.
Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 5 and 6 - Criminal Procedure Code, 1973 - Sections 100 and 172 - Applicability of ss. 5 and 6 - Appellants accused who went to the house of P and kept the said weapon at his residence for safe custody - The appellant was having the control over the said weapon and other incriminating articles and none else - In the circumstances, the accused-appellant was having control over the said arms and ammunition for the purpose of conviction u/ss. 5 and 6
Conclusion
The appellants accused who went to the house of P and kept the said weapon at his residence for safe custody. The appellant was having the control over the said weapon and other incriminating articles and none else. Though the weapon and other articles were recovered from the house of P, the accused can be convicted u/ss. 5 and 6 of the Act.
Evidence Act, 1872 - Sections 27, 25 and 26 - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3(3), 5 and 6 - Arms Act, 1959 - Sections 7 and 25(1-A) - Explosive Substances Act, 1908 - Sections 4 and 5 - Appreciation of evidence - Pursuant to his confessional statement the accused leading the investigating party and the panch witnesses point out the place where he had kept the incriminating articles - It was the appellant who asked P when he opened the door, to hand over the incriminating articles to the investigating officer - In such circumstances, accused's contention that the incriminating articles seized vide seizure memo were handed over to the investigating officer by P and, therefore, it could not be said that the said seizure was at the instance of the appellant, rejected
Conclusion
On the facts and circumstances of the case, accused's contention that the incriminating articles seized vide seizure memo were handed over to the investigating officer by P and, therefore, it could not be said that the said seizure was at the instance of the appellant, rejected.
Legislation referred to
Evidence Act, 1872, ss. 24, 25, 26 & 27 Terrorist and Disruptive Activities (Prevention) Act, 1987, ss. 3(3), 5 & 6 Arms Act, 1959, ss. 7 & 25(I-A) Explosive Substances Act, 1908, ss. 4 & 5 Criminal Procedure Code, 1973, ss. 100 & 172
Counsel
Sushil Karanjkar & Ms Asha Gopalan Nair for the appellant. S.S Shinde & Gopal Balwant Sathe for the respondent.
JUDGE(S) :

G B Pattanaik
K T Thomas
S P Kurdukar
TEXT :

PRASAD RAMAKANT KHADE, APPELLANT v. STATE OF MAHARASHTRA, RESPONDENT.
Criminal Appeal No. 544 of 1999 (From the Judgment and Order dated 29/30-1-1991 of the Designated Court at Bombay in SC No. 9 of 1995), decided on October 12, 1999.
SUPREME COURT CASES
Advocates who appeared in this case :
Sushil Karanjkar and Smt. Asha Gopalan Nair, Advocates, for the Appellant;
S. S. Shinde and Gopal Balwant Sathe, Advocate, for the Respondent.
JUDGMENT
The Judgment of the Court was delivered by
S. P. KURDUKAR, J. - The appellant along with Pravin Krishna Gawand (since deceased) and Sunil Dattaram Sawant (since absconding) were put up for trial for the offences punishable under Sections 3(3), 5 and 6 of the TADA (P) Act, 1987, under Section 7 read with Section 25(1-A) of the Arms Act and Sections 4 and 5 of the Explosive Substances Act, 1908. The Designated Court, Greater Bombay under the TADA (P) Act, 1987, by its judgment and order dated 30-1-1999 found the appellant guilty of the aforesaid offences and convicted him under Section 5 of the TADA (P) Act, 1987 (hereinafter referred to as "the Act") and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs 1000 and in default of payment of fine to undergo further rigorous imprisonment for six months. The appellant, although convicted on other counts no separate sentences were awarded to him for those offences. It is against this judgment and order passed by the Designated Court, Greater Bombay, the appellant has filed this appeal under Section 19 of the Act.
2. Briefly stated the prosecution case is as under :
Several criminal gangs were operating in Mumbai and they indulged in organised crimes like extortion of money, murders, landgrabbing and threats to civilians. At times, these gangs also involved in showing their muscle power to establish their supremacy over the other gang and in that process, they were involved in killing the members of rival gangs. It is alleged by the prosecution that there existed a rivalry between two gangs, one led by Arun Gawli and the other by Dawood Ibrahim. Ibrahim Parakar, the husband of the sister of Dawood Ibrahim was shot dead at his residence on 26-7-1992 by the criminals allegedly belonging to the Arun Gawli gang. Shailesh Haldankar and, Bipin Shere who were allegedly belonging to the gang of Arun Gawli were said to be suspects in the murder of Ibrahim Parakar. They were chased and beaten by the mob when they were trying to escape. They came to be arrested on 2-9-1992. As both these suspects sustained the injuries, they were admitted in J. J. Hospital, Mumbai for treatment. Two armed police constables were also kept at J.J. Hospital for necessary protection. During the night between 11-9-1992 and 12-9-1992, some members of the Dawood Ibrahim gang armed with weapons stormed J.J. Hospital with a view to take revenge and in that process they pumped bullets in the body of Shailesh Haldankar who died in the ward itself. In that firing, two policemen who were on guard duty also sustained bullet injuries and ultimately died. A crime in that behalf came to be registered and the trial is said to be pending. This trial is commonly known as "J.J. Hospital shoot-out case".
3. The appellant and Pravin Krishna Gawand came to be arrested on 7-6-1993. Pravin Krishna Gawand, however, died later on. The third suspect Bhopla @ Bhupinder is still absconding. The appellant who was remanded to the police custody, during his interrogation on 16-6-1993 at about 10.30 a.m. expressed his desire to make a voluntary statement regarding the concealment of arms and ammunition. PI Raje Bhosale (PW 7) who was investigating the crime in question arranged for two panch witnesses, of which PW 2 is examined. In the presence of the panch witnesses, the appellant made a statement which came to be recorded vide Ex. 10 (memorandum) and the free admitted translation thereof is as under :
"In the last week of January 1993, I had given one AK 56 rifle and two loaded magazines and in the first week of February one pouch containing 3 hand grenades and two detonators to Pravin Gawand at his residence at 50, Tenement Building, 3rd Floor, Ambedkar Road, Parel, Mumbai for keeping with him. I will point out the said place and the said person, accompany me."
Thereafter, the appellant, two panch witnesses, PI Raje Bhosale (PW 7) and API Ghule (PW 1) along with other staff members went in one Ambassador car and a taxi. The driver drove the Ambassador car under the instructions of the appellant and when the vehicle reached near Hafkin Institute, Mumbai, the appellant asked the driver to stop the car. All the occupants from the Ambassador car as well as from the taxi got down and the appellant led the panchas and the police party to the third floor of the building called 50, Tenement Building, Ambedkar Road, Parel, Mumbai, and pointed out the eastern-side corner room. The door of the room was closed from inside. The appellant knocked at the door and a person by the name of Pravin Krishna Gawand opened it. The appellant identified him to be the very same person to whom he had handed over one AK 56 rifle, two magazines loaded with cartridges and a pouch containing three hand grenades and two detonators. When the investigating officer questioned Pravin Krishna Gawand about these articles, he admitted to have received these articles and explosives from the appellant and thereafter took out one gunny bag which was kept concealed under the cot behind one suitcase. When the gunny bag (Article 10) was opened, it was found to contain one AK 56 assault rifle (Article 1), two magazines (Articles 2 and 3) loaded with 11 and 5 live cartridges respectively and wrapped together with the rifle; one leather multicoloured pouch (Article 12) containing three hand grenades (Articles 5, 6 and 7) and two detonators (Articles 8 and 9); one assault rifle was wrapped in dark blue-coloured school uniform together with two loaded magazines (Article 11). PSI Kadam of the Bomb Detection and Disposal Squad was called to defuse the detonators which he did and confirmed that the hand grenades were not loaded with detonators. All these articles were seized under the seizure panchnama (Ex. 10-A). Pravin Gawand was also then put under arrest. The seized articles were then forwarded on 24-6-1993 to the Forensic Sciences Laboratory but the same could not be accepted by the Forensic Sciences Laboratory on that day for want of time and later on on 28-6-1993, they came to be forwarded. All these articles were then sent to the chemical analyser (CA) for necessary examination. The investigating officer thereafter obtained the necessary permission from the Commissioner of Police, Greater Bombay to invoke provisions of TADA. The District Magistrate also accorded sanction for prosecution of offences under the Arms Act and the Explosives Substance Act. After completing the investigation, a charge-sheet came to be filed against the appellant for the offences mentioned hereinabove.
4. The Designated Court framed the charges against the appellant under Sections 3, 5 and 6 of the Act as also under Section 7 read with Section 25(1-A) of the Arms Act and under Sections 4 and 5 of the Explosive Substances Act, 1908.
5. The appellant denied the charges. According to him, he never made any statement as contained in Ex. 10 nor was any recovery made as reflected in Ex. 10-A. According to him, he was not in possession of any of these incriminating articles nor were they seized from his residence or at his instance. He is innocent and he be acquitted.
6. The prosecution case entirely rests upon the disclosure statement recorded vide memorandum (Ex. 10), the genuineness, correctness and proof of Ex. 10 and Ex. 10-A read with the report of the Forensic Sciences Laboratory and the C4 report. In support of its case, the prosecution examined API Ghule (PW 1) who lodged the FIR, PI Raje Bhosale (PW 7) and PW 2 who is the panch witness to Exs. 10 and 10-A. In addition to that, the prosecution also examined some more witnesses whose evidence was not seriously challenged in this criminal appeal.
7. As stated earlier, the Designated Court found that the evidence of panch witness PW 2, PI Raje Bhosale (PW 7), the memorandum (Ex. 10) and the seizure panchnama (Ex. 10-A) are free from any infirmity. The certificates of the Forensic Sciences Laboratory and the chemical analyser unmistakably prove that the AK 47 was in working condition and the number mentioned in Ex. 10-A tallied with the number engraved on the weapon. The Designated Court also accepted the report of the chemical analyser in regard to the explosive substance, which was seized under the seizure panchnama (Ex. 10-A). The Designated Court resultantly convicted the appellant under Section 3 read with Sections 5 and 6 of the Act and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs 1000 and in default of payment of fine to undergo further rigorous imprisonment for six months. The Designated Court, although found the appellant guilty on other counts, but did not award any separate sentence thereon. It is this order which is the subject-matter of challenge in this criminal appeal.
8. The learned advocate for the appellant assailed the judgment of the Designated Court on various grounds. Firstly, he urged that the confessional statement of the appellant alleged to have been recorded vide memorandum (Ex. 10) on 16-6-1993 is false and at any rate, the same could not be said to have been duly proved due to non-examination of the second panch witness in court. He, therefore, urged that if the memorandum (Ex. 10) is rejected, the alleged seizure panchnama (Ex. 10-A) must fail. 'There is no other evidence to connect the appellant with the crime. We see no substance in this contention for two reasons : (a) the prosecution has examined PW 2 who acted as panch witness to the memorandum (Ex. 10) and the seizure memo (Ex. 10-A). PW 2 in his evidence has very succinctly described how the confessional statement of the appellant was recorded and pursuant thereto how various incriminating articles came to be seized vide seizure memo (Ex. 10-A). The witness has firmly asserted the contents of these two documents and there is no material on record to discredit his evidence, and (b) the examination of the second panch witness is not a must. If the appellant wanted to cross-examine the second panch witness, nothing prevented him from making a proper application to the trial court during trial for producing the said panch witness for cross-examination. Nothing has been done. The evidence of PW 2 finds corroboration from the evidence of Investigating Officer PI Raje Bhosale (PW 7). After going through the evidence of these two witnesses and on a perusal of the confessional statement (Ex. 10) and the seizure panchnama (Ex. 10-A), we are satisfied that there is no infirmity whatsoever to discard this evidence.
9. It was then contended on behalf of the appellant that the recovery of AK 56 rifle must stand disproved because the certificate of the ballistic expert refers to AK 47. Therefore, the seized weapon cannot be connected with the present crime. This argument at the first blush appears to us attractive but on a close scrutiny of the description of the weapon, the said argument loses its charm. The number given on the weapon tallies with the number given in the memorandum (Ex. 10) and the seizure panchnama (Ex. 10-A). It was the appellant who made a statement that he had handed over the weapon AK 56 to Pravin Krishna Gawand for keeping in his house. Obviously, the same description is found in the seizure memo (Ex. 10-A). It is the ballistic expert who gave the correct description of the weapon. Once, the number on the weapon tallies with the number mentioned in the memorandum (Ex. 10) and the seizure memo (Ex. 10-A), the contention carries no force and, therefore, has to be rejected.
10. It was then contended on behalf of the appellant that actual possession of the weapon is the criterion for convicting the person in possession thereof under Sections 5 and 6 of the Act. Learned counsel urged that the weapon and other articles were recovered from the house of Pravin Krishna Gawand and, therefore, he cannot be convicted under Sections 5 and 6 of the Act. This argument overlooks the material part in the confessional statement (Ex. 10) which reads thus:
"In the last week of January 1993, I had given one AK 56 rifle and two loaded magazines and in the first week of February, one pouch containing three hand grenades and two detonators to Pravin Gawand at his residence at 50, Tenement Building, 3rd Floor, Ambedkar Road, Parel, Mumbai, for keeping with him."
The crux of the statement is that it is the appellant who went to the house of Pravin Gawand and kept the said weapon at his residence for safe custody. In view of this statement, it must follow that the appellant was having the control over the said weapon and other incriminating articles and none else. This submission, therefore, must be rejected.
11. It was then contended that the incriminating articles seized vide seizure memo (Ex. 10-A) were handed over to the investigating officer by Pravin Gawand and, therefore, it could not be said that the said seizure was at the instance of the appellant. This submission has again no substance because it is the appellant who pursuant to his confessional statement (Ex. 10) led the investigating party and the panch witnesses pointing out the place where he had kept the incriminating articles. It was the appellant who asked Pravin Gawand, when he opened the door, to hand over the incriminating articles to the investigating officer. In view of this positive evidence on record, it would be a futile attempt on the part of the learned advocate for the appellant to contend that the weapon and other articles were not seized at his instance.
It was then contended on behalf of the appellant that the FIR (Ex. 6) is a fabricated document because the date mentioned therein is as "between January 1992 and 16-6-1993". It was explained in the evidence by API Ghule (PW 1) that it was a typing error and in fact, it has to be read "between January 1993 and 16-6-1993". The learned trial Judge has accepted the explanation given by PI Ghule (PW 1) and we concur with the said finding.
13. It was then contended that no independent witness from the locality was examined when admittedly the premises in question is a big chawl where so many families reside. The panch witnesses were procured from the area near the Crawford Market and, therefore, it must cast a grave suspicion on the genuineness of the same. According to learned counsel, the memorandum (Ex. 10) and the seizure memo (Ex. 10-A) were fabricated in the office of the DCP (CID) and, therefore, this evidence be rejected. We see no substance in this contention because the evidence of PW 2, the panch witness is very categorical and the defence could not discredit this witness on this count.
14. After a careful perusal of the material on record, we are satisfied that the impugned judgment suffers from no infirmity and the appellant has been rightly convicted for the aforesaid offences. In the result, this criminal appeal to stand dismissed.
BACKWARD REFERENCE :
FORWARD REFERENCE :
REFERENCES :
ACTS & SECTIONS REFERENCE :
NOTIFICATIONS REFERENCE :

1999-(SC2)-GJX -0680 -SC
Sheelam Ramesh And Another, Appellants V. State Of A. P., Respondent.
DATE : 12-10-1999
EQUIVALENT CITATION(S) :

1999-(008)-SCC -0369 -SC
2000-(087)-AIR -0118 -SC
CATCHNOTE :
SECS.302 & 34 -- Murder -- Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3(2)(i) & (ii) and 5 - Arms Act, 1959 - Section 27 - Delay in filing FIR - Members of Peoples' War Group armed with pistol and tamanchas (country-made guns) came and fired at one of the three ex-members of the Group - PW 1 came to the police station on the date of occurrence at 8.00 p.m., gave an oral statement which was recorded and treated as the FIR - Delay explained by informant witness - There was no delay of one hour in filing the first information report though the police station was at a distance of 200 ft from the place of occurrence
HEADNOTE :
Penal Code, 1860 - Sections 302 and 34 - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3(2)(i) & (ii) and 5 - Arms Act, 1959 - Section 27 - Delay in filing FIR - Members of Peoples' War Group armed with pistol and tamanchas (country-made guns) came and fired at one of the three ex-members of the Group - PW 1 came to the police station on the date of occurrence at 8.00 p.m., gave an oral statement which was recorded and treated as the FIR - Delay explained by informant witness - There was no delay of one hour in filing the first information report though the police station was at a distance of 200 ft from the place of occurrence
Conclusion
On the facts and circumstances of the case, there was no delay of one hour in filing the first information report though the police station was at a distance of 200 ft from the place of occurrence.
Penal Code, 1860 - Sections 302 and 34 - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3(2)(i) & (ii) and 5 - Arms Act, 1959 - Section 27 - Criminal Procedure Code, 1973 - Section 161 - Identification of accused - Members of Peoples' War Group firing at one of the three ex-members of the Group - Ex-members were members of PWG and therefore, the accused persons were known to them - One of the ex-members deposing that he could identify the accused due to the street light and light coming from the neighbouring shops and other one (PW 2) deposing that he knew the accused even before the incident and he was able to identify them in the lights of the area - Partners of the hair-cutting saloon clearly deposing before the Court that they could identify the accused persons as the street lights and the lights in the shops were burning - Though fact was not stated by PW 2 in his statement u/s. 161 CrPC but only because of this omission, the identification cannot be discarded in view of the clear evidence of PW 1 - Hence the contention that there was no sufficient light for identification of the accused, rejected
Conclusion
One of the ex-members deposing that he could identify the accused due to the street light and light coming from the neighbouring shops and other one (PW 2) deposing that he knew the accused even before the incident and he was able to identify them in the lights of the area. Partners of the hair-cutting saloon have clearly deposed before the Court that they could identify the accused persons as the street lights and the lights in the shops were burning. Though fact was not stated by PW 2 in his statement u/s. 161 CrPC but only because of this omission, the identification cannot be discarded in view of the clear evidence of PW 1.
Penal Code, 1860 - Sections 302 and 34 - Conviction - The accused persons came together armed with firearms and fired from the pistol and the country made gun - Very fact that the accused persons came together to the place of occurrence with firearms would prove that there was a pre-arranged plan amongst them to cause death - As there was participation of the accused persons in furtherance of the common intention of causing death, conviction u/s. 302 IPC r/w s. 34 IPC can be sustained
Conclusion
Very fact that the accused persons came together to the place of occurrence with firearms would prove that there was a pre-arranged plan amongst them to cause death. As there was participation of the accused persons in furtherance of the common intention of causing death, conviction u/s. 302 IPC r/w s. 34 IPC can be sustained.
Penal Code, 1860 - Sections 302 and 34 - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3(2)(i) and (ii) and 5 - Arms Act, 1959 - Section 27 - Evidence Act, 1872 - Section 134 - Though 10-15 persons were in the vicinity at the time of occurrence, no independent witness was examined by the prosecution - There is nothing on evidence to show that there was any other eyewitness to the occurrence - Having examined all the eyewitnesses even if other persons present nearby were not examined, the evidence of the eyewitnesses cannot be discarded - Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence
Conclusion
Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence.
Legislation referred to Penal Code, 1860, ss. 302 & 34 Terrorist and Disruptive Activities (Prevention) Act, 1987, ss. 3(2)(i) & (ii) & 5 Arms Act, 1959, s. 27 Criminal Procedure Code, 1973, s. 161 Evidence Act, 1872, s. 134
Counsel
S.R. Bhat for the appellants. G. Prabhakar for the respondent.
JUDGE(S) :

G T Nanavati
S N Phukan
TEXT :

SHEELAM RAMESH AND ANOTHER, APPELLANTS v. STATE OF A. P., RESPONDENT.
Criminal Appeal No. 685 of 1999 (From the Judgment and Order dated 15-11-1995 of the Designated Court, Karimnagar in Andhra Pradesh in Sessions Case No. 90 of 1994), decided on October 12, 1999.
SUPREME COURT CASES
Advocates who appeared in this case :
S. R. Bhat, Advocate, for the Appellants;
G. Prabhakar, Advocate, for the Respondent.
JUDGMENT
The Judgment of the Court was delivered by
PHUKAN, J. - This appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1989 (for short "TADA") is against the judgment and order of the learned Sessions Judge (Designated Court), Karimnagar, Andhra Pradesh. By the impugned judgment and order the accused appellants Sheelam Ramesh (A-2) and Samudrala @ Kummari Mallesham @ Rajanna (A-3) were convicted under Section 302 IPC read with Section 34 IPC, Section 27 of the Arms Act, 1959 and Sections 3(2)(i) and (ii) and 5 of TADA.
2. A-2, A-3 and another Bheemanna @ Bairi Ramchander (A-1) are members of CPI (ML) Peoples' War Group (in short "PWG"). Deceased Ramtenki Chandraiah, Manchikatla Shankar (PW 1) and Thota Paul (PW 2) were members of the said PWG but they severed their connections with the group since four years prior to the occurrence and they were residing at Jagtial for their safety and security, away from their villages.
3. On 30-1-1993 at about 7.00 p.m. the deceased and PWs 1 and 2 were sitting as usual in front of Shri Venkateshwara Hair-cutting Saloon near the bus-stand of Jagtial. Suddenly A-1 to A-3 armed with pistol and tamanchas (country-made guns) came and fired at the deceased. PW 1 escaped and ran to Jagtial Police Station. Deceased Ramtenki Chandraiah was hit by gunfire and was injured. He was taken to Government Hospital, Jagtial where he succumbed to the injuries. Thereafter, the accused went away from the place of occurrence on their cycles. PW 2 went towards another side. Subsequently, A-2 and A-3 were apprehended. After investigation, charge-sheet was submitted under Sections 302, 307 read with Section 34 IPC, Section 7 of the Arms Act, 1959 and Sections 3 and 4 of TADA. The case of A-1 was separated as he was absconding. Eleven witnesses were examined on behalf of the prosecution. Seized articles were produced and the Court below found both the accused appellants guilty under the aforesaid section except Section 307 IPC and convicted them accordingly.
4. The trial court believed the evidence of eyewitnesses PW 1 to PW 4 and came to the finding that PW 1 and PW 2 severed their connection with PWG about 4 years prior to the occurrence and they were on the hit list of the above group and this was the motive for causing death of the deceased. The trial court also accepted the prosecution version of the story that PWs 1, 2 and the deceased who were on the hit list of PWG were residing by the side of the house of the Deputy Superintendent of Police at Jagtial for their safety. Accepting the evidence of the prosecution, the trial court came to the finding that PW 1, PW 2 and the deceased were in the habit of sitting at Shri Venkateshwara Hair-cutting Saloon. PWs 1 to 4 categorically deposed that all the three accused persons came and fired at the deceased and that evidence of PW 1 to PW 4 could not be shattered in cross-examination. Accepting the above evidence for the prosecution, the trial court came to the finding that the prosecution could prove the charge under Section 302 read with Section 34 IPC against A-2 and A-3.
5. In view of the clear evidence of PW 1 to PW 4 that the accused were in possession of firearms and had fired at the deceased, the Court held that the charge under Section 27 of the Arms Act has also been proved.
6. The evidence of PW 1 to PW 4 that the accused persons were armed with firearms and caused death of the deceased was sufficient to come to the conclusion that they did so to strike terror in the people of the area. Accordingly, the Court held that charge under Section 3(2)(i) and (ii) and Section 5 of TADA was proved by the prosecution.
7. Regarding the charge under Section 307 read with Section 34 IPC, the trial court held that in the absence of statements by PW 1 or PW 2 or any other eyewitnesses that there was an attempt to cause death of PW 1 and PW 2, the charge could not be proved by the prosecution and accordingly acquitted the accused.
8. The first contention raised by the counsel for the accused appellants was that there was delay of one hour in filing the first information report though the police station was at a distance of 200 ft from the place of occurrence. We find from the evidence that the offence took place at 7.00 p.m. and PW 1 rushed to the police station and came back to the place of occurrence with the police. The deceased was taken in a rickshaw to the hospital. PW 1 also went there. PW 2 has also deposed that after the incident, he came back to the place of occurrence and he, along with the police and PW 1, took the deceased to the hospital.
9. Dr. Rao, PW 6 has deposed that on the date of occurrence, he examined the deceased at 7.45 p.m. PW 6 has clearly deposed that he found several injuries on the deceased and death was caused due to haemorrhage and shock from these injuries caused by firearms. According to PW 6, these injuries were sufficient to cause death in the ordinary course of nature.
10. From the evidence of M. Maruthi, PW 8, the Head Constable, we find that PW 1 came to the police station on the date of occurrence at 8.00 p.m., gave an oral statement which Was recorded and treated as the FIR (Ex. P-1).
11. It was natural human conduct for the informant PW 1 (who was on the hit list) to run towards the police station as the deceased was hit by gunshots and suffered injuries. His first duty, in addition to his safety, was to bring the police to the place of occurrence and to ensure that medical help be given to the deceased. He came back to the place of occurrence with the police and the deceased was taken to the hospital where he succumbed to the injuries at 7.55 p.m. Immediately thereafter, PW 1 returned to the police station and lodged the formal FIR. The doctor PW 6 has deposed that the deceased died at 7.55 p.m. From the above evidence, we hold that there was no delay in filing the FIR.
12. The next contention is that there was no sufficient light for identification of the accused by PW 1 and PW 2. PW 1 and PW 2 were members of PWG and therefore, the accused persons were known to them. In cross-examination of PW 1, it was brought out that he could identify the accused due to the street light and light coming from the neighbouring shops. PW 2 has deposed that he knew the accused even before the incident and he was able to identify them in the lights of the area. It is true that this fact was not stated by PW 2 in his statement under Section 161 CrPC but only because of this omission, the identification cannot be discarded in view of the clear evidence of PW 1. Rachakonda Rakaiah, PW 3 and Kandi Lakshman, PW 4 who are partners of the hair-cutting saloon have clearly deposed before the Court that they could identify the accused persons as the street lights and the lights in the shops were burning. These two witnesses also identified A-2 and A-3 in the Court. Therefore, this submission of learned counsel for the appellant has no force.
13. The next point urged is that in view of the contradictions in the evidence of PW 1 and PW 2 regarding the part played by accused A-2 and A-3, conviction is not sustainable. It is true that there are some contradictions regarding the part played by the accused A-2 and A-3.
14. PW 1 and PW 2 have deposed before the Court that all the accused persons came holding firearms. According to PW 1, accused A-1 was holding a pistol, A-2 a country-made gun and A-3 a bag and they fired from both the pistol and the country-made gun at the deceased. In cross-examination, it has been brought out that according to these witnesses, A-1 placed his pistol on the chest of the deceased and fired it and A-2 fired from the country-made gun. According to PW 2, A-1 came inside and fired at the deceased and subsequently, A-3 came and fired at the deceased with the country-made gun. PW 3, owner of the hair-cutting saloon deposed before the Court that three people came on the cycle with firearms and fired at the deceased and went away. PW 4 deposed that two or three people came and fired at the deceased.
15. The accused persons have been charged under Section 302 IPC read with Section 34 IPC. From the evidence on record, it is established that they came together armed with firearms and A-1 fired from the pistol and A-2 from the country-made gun. From the seizure memo, we find that from the place of occurrence, two 9 mm empty cartridges and one .12 bore empty cartridge were recovered. From the evidence on record, we find that A-1 was holding a pistol and other accused were carrying country-made gun. Both the pistol and the country-made gun were used and this fact is established from the empty cartridges recovered from the place of occurrence.
16. The very fact that the accused A-1 to A-3 came together to the place of occurrence with firearms would prove that there was a prearranged plan amongst them to cause death. As there was participation of A-2 and A-3 in furtherance of the common intention of causing death, conviction under Section 302 IPC read with Section 34 IPC can be sustained. Therefore, the contention of the learned counsel for the appellants has no force.
17. Another fact to which our attention has been drawn is the recovery of the material objects from the place of occurrence after 12 hours though the distance from the police station was 200 ft. From the evidence of the Investigating Officer, Shri Reddy, PW 7, we find that after arranging an escort to guard the dead body of the deceased and the scene of occurrence, he went in search of the accused along with his staff in and around Jagtial town for the whole night and next morning at 6.00 a.m., he went to the hospital and till 8.00 a.m., he was there. Thereafter, he came to the place of occurrence and collected the material objects. It is quite natural for the police officer to go in search of the accused person. In addition, he took the precaution of keeping a guard at the place of occurrence. So, this delay has been duly explained and adequate measures were taken so that the place of occurrence could not be disturbed. Therefore, the prosecution cannot be faulted and the contention of the learned counsel is rejected.
18. According to learned counsel for the accused appellants, though PW 3 has deposed that 10-15 persons were in the vicinity at the time of occurrence, no independent witness was examined by the prosecution. There is nothing on evidence to show that there was any other eyewitness to the occurrence. Having examined all the eyewitnesses even if other persons present nearby were not examined, the evidence of the eyewitnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence.
19. From the reasons stated above, we find no merit in this appeal and accordingly it is dismissed.
BACKWARD REFERENCE :
FORWARD REFERENCE :
REFERENCES :
ACTS & SECTIONS REFERENCE :
INDIAN PENAL CODE
Section 34
Section 302
Section 307
CRIMINAL PROCEDURE CODE
1999-(SC2)-GJX -0625 -SC
Gurdeep Singh Alias Deep, Appellant V. State (Delhi Admn.), Respondent.
DATE : 17-09-1999
EQUIVALENT CITATION(S) :

2000-(001)-SCC -0498 -SC
CATCHNOTE :
Sec. 15 -- Confession -- A confessional statement by an accused is admissible even when made to a police officer not below the rank of Superintendent of Police - Confession has to be voluntary - Whenever an accused challenges that his confessional statement is not voluntary, the initial burden is on the prosecution for it has to prove that all requirements u/s. 15 and r. 15 under the TADA Act and Rules have been complied with - Once this is done the prosecution discharges its initial burden and then the burden shifts on the accused person
HEADNOTE :
Terrorist and Disruptive Activities (Prevention) act, 1987 - Section 15 - Confession made under - A confessional statement by an accused is admissible even when made to a police officer not below the rank of Superintendent of Police - Confession has to be voluntary - Whenever an accused challenges that his confessional statement is not voluntary, the initial burden is on the prosecution for it has to prove that all requirements u/s. 15 and r. 15 under the TADA Act and Rules have been complied with - Once this is done the prosecution discharges its initial burden and then the burden shifts on the accused person
Held
The legislature has conferred a different standard of admissibility of a confessional statement made by an accused under the TADA Act, from those made in other criminal proceedings. While u/s. 15 of the TADA Act a confessional statement by an accused is admissible even when made to a police officer not below the rank of Superintendent of Police, in other criminal proceedings it is not admissible unless made to a Magistrate. Section 25 of the Indian Evidence Act debars from evidence a confession of an accused to a police officer, except what is permitted u/s. 27. There is one common feature, both in s. 15 of the TADA Act and s. 24 of the Indian Evidence Act that the confession has to be voluntary. Section 24 of the Evidence Act interdicts a confession, if it appears to the Court to be the result of any inducement, threat or promise in certain conditions. The principle therein is that confession must be voluntary. Section 15 of the TADA Act also requires the confession to be voluntary. Voluntary means that one who makes it out of his own free will inspired by the sound of his own conscience to speak nothing but the truth. So the crux of making a statement voluntarily is, what is intentional, intended, unimpelled by other influences, acting on one's own will, through his own conscience. Such confessional statements are made mostly out of a thirst to speak the truth which at a given time predominates in the heart of the confessor which impels him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally emerges when one is in despondency or in a perilous situation when he wants to shed his cloak of guilt and nothing but disclosing the truth would dawn on him. It sometimes becomes so powerful that he is ready to face all consequences for clearing his heart. Whenever an accused challenges that his confessional statement is not voluntary, the initial burden is on the prosecution for it has to prove that all requirements u/s. 15 and r. 15 under the TADA Act and Rules have been complied with. Once this is done the prosecution discharges its initial burden and then the burden shifts on the accused person. Then it is for him to prove through facts that the confessional statement was not made voluntarily. If such fact was pleaded and brought on record during trial the Court must test its veracity, whether such fact constitutes to be such as to make his confessional statement not voluntarily made. While a confession recorded under the TADA Act before a police officer not below the rank of Superintendent of Police even under police custody is admissible but not under other criminal trials. Keeping an accused under police custody in what manner with what precautions is a matter for the police administration to decide. It is for them to decide what essential measures are to be taken in a given case for the purpose of security. What security, in which manner are all in the realm of administrative exigencies and would depend on the class of accused, his antecedents and other information etc. The security is also necessary for the police personnel keeping him in custody or other personnel of the police administration including the public at large. Thus what measure has to be taken is for the police administration to decide and if they feel greater security is required in a case of trial under the TADA Act, it is for them to decide accordingly. The Preamble of the TADA Act itself reveals that this Act makes special provisions for the prevention of and for coping with terrorists and disruptive activities. In fact the earlier TADA Act of 1985 was repealed to bring in the present Act to strengthen the prosecution to bring to book those involved under it without their filtering out, by bringing in more stringent measures under it.
Conclusion
Whenever an accused challenges that his confessional statement is not voluntary, the initial burden is on the prosecution for it has to prove that all requirements u/s. 15 and r. 15 under the TADA Act and Rules have been complied with. Once this is done the prosecution discharges its initial burden and then the burden shifts on the accused person.
Terrorist and Disruptive Activities (Prevention) Act, 1987 - Preamble - Preamble of the TADA Act itself reveals that this Act makes special provisions for the prevention of and for coping with terrorists and disruptive activities
Held
Preamble of the TADA Act itself reveals that this Act makes special provisions for the prevention of and for coping with terrorists and disruptive activities. In fact the earlier TADA Act of 1985 was repealed to bring in the present Act to strengthen the prosecution to bring to book those involved under it without their filtering out, by bringing in more stringent measures under it.
Conclusion
Preamble of the TADA Act itself reveals that this Act makes special provisions for the prevention of and for coping with terrorists and disruptive activities.
Legislation referred to
Terrorist & Disruptive Activities (Prevention) Act, 1987, s. 15
Counsel
P.P. Singh for the appellant. V.N. Saraf for the respondent.
JUDGE(S) :

A P Misra
K T Thomas
TEXT :

GURDEEP SINGH ALIAS DEEP, APPELLANT v. STATE (DELHI ADMN.), RESPONDENT.
Criminal Appeal No. 604 of 1997 (From the Judgment and Order dated 22-7-1996 of the Designated Court No. III, Karkardooma Court, Delhi in FIR No. 451 of 1990), decided on September 17, 1999.
SUPREME COURT CASES
Advocates who appeared in this case :
P. P. Singh (Amicus Curiae), Advocate, for the Appellant;
V. N. Saraf, Senior Advocate (A. S. Rawat and Ms Sushma Suri, Advocates, with him) for the Respondent.
JUDGMENT
The Judgment of the Court was delivered by
(As corrected by Corrigendum No. F.3/EX-B.J./90/99 dated 10-12-1999)
MISRA, J. - The appellant convict has filed this appeal against his conviction under Sections 302, 324 of the Indian Penal Code and Section 5(a)(b) (sic) of the Explosives Act by the Designated Court No. III, Karkardooma Courts, Delhi which really is under Section 5 of the Explosive Substances Act, 1908. He has been sentenced under Section 302 to undergo life imprisonment and to pay a fine of Rs. 3 lakhs, out of which one lakh each is to be paid to the nearest relatives of the three deceased persons. In the case of default of this non-payment, he shall also undergo rigorous imprisonment (RI) for a further period of three years. He is also sentenced to RI for a period of three years under Section 324 IPC with a fine of Rs. 20,000, out of which Rs. 10,000 each is to be paid to the two injured persons. In the case of default he has further to undergo RI for a period of 6 months. He is also sentenced to undergo RI for two years under Section 9(b)(2) (sic) of the Explosive Substances Act, 1908 which really is under the Indian Explosives Act, 1884 with a fine of Rs. 5000. In the case of default of this non-payment, he shall further undergo RI for two months.
2. In order to appreciate the issues in the appeal we are hereby giving a short matrix of facts :
According to the prosecution case on 6-10-1990 at about 6.10 p.m. a bomb exploded near Chilla Engulator 'T' Point killing three persons and injuring two persons at Noida Road near Samachar Apartments. The deceased persons were Prit Pal Singh, Jaspal Singh and Satish Bajaj. The information about the bomb explosion soon thereafter was given by a passer-by who informed the nearest police control room van and from where the message was flashed to the police control room. Om Pal Tanwar, PW 3, received the said message on the said date at 6.07 p.m. Thereafter, Inspector Jeet Singh Joon, PW 15, proceeded to the spot. He found two dead bodies lying on the spot. These bodies were split into pieces lying on the road and one three-wheeler scooter (TSR) was found badly mutilated. One cycle was also found similarly. There were three injured persons lying near the said spot. They were removed to JPN Hospital. One of the injured, namely, Satish Bajaj succumbed to his injuries in the hospital. One of the deceased, namely, Prit Pal Singh was identified with the help of his driving licence which was in his pocket. Since the driving licence was having his photograph and address, the investigating officer was able to contact his relative, namely, Pragat Singh, who is one of the accused in this case. After recording the statement of Pragat Singh and getting the identification of the deceased persons the aforesaid three dead bodies were sent for postmortem. It is through Pragat Singh that the police was able to know the involvement of Gurdeep Singh, the present appellant. It is significant that out of the three deceased two, namely, Prit Pal Singh and Jaspal Singh were closely related to the accused Pragat Singh and his wife Balbir Kaur who was also accused. The deceased Prit Pal Singh was the adopted son of the accused Pragat Singh and Balbir Kaur, while deceased Jaspal Singh was the nephew of the accused Pragat Singh.
3. From the investigation of the police and the evidence led by the prosecution, it was revealed that the present appellant used to go and stay with Pragat Singh and his wife Balbir Kaur on a number of occasions. Immediately preceding the incident the appellant again went to live with the family of Pragat Singh since 4-10-1990. The bomb which exploded was carried by the two deceased, namely, Prit Pal Singh and Jaspal Singh who were destinate to go to Noida. This bomb was meant for explosion in a bus and as per, the planning also to kill Prit Pal Singh about which the said two deceased were not aware. This was done in conspiracy with Balbir Kaur, wife of Pragat Singh and hence she was also arrested on her return from Jullundhar on 8-10-1990. The appellant was a terrorist who masterminded a few earlier explosions and the present explosion. It is at the instance of Pragat Singh that the present appellant was arrested from House No. K-40, Sector 12, Noida.
4. The significant part in the present case is, when the present appellant was under police custody, the police of Beether (Karnataka) sought his custody for investigation in another case where he was also involved in a bomb explosion in a cinema hall at Beether in Karnataka. He was interrogated at Beether by the Superintendent of Police, Beether, PW 13, where he made his confessional statement under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, hereinafter referred to as "the TADA Act". Therein he admitted his complicity and involvement in the bomb explosion which was carried by him in Delhi at Noida Road killing both Prit Pal Singh and Jaspal Singh. Finally, a challan was filed against the three accused, namely, the present appellant, Pragat Singh and his wife Balbir Kaur. The present appellant was charged under Sections 302, 326, 324 IPC and Section 5 of the Explosive Substances Act. Similarly, charges were also framed against the said two accused. The said Designated Court finally acquitted Balbir Kaur but convicted the present appellant and Pragat Singh. The present appeal is only by the appellant Gurdeep Singh and hence we are not concerned in this appeal with the other accused, namely, Pragat Singh. The third deceased person, viz., Satish Bajaj was only a passer-by who became a victim by chance of this bomb explosion. It was also not disputed that there was no eyewitness in the present case. Thus the prosecution case is based on circumstantial evidence including the confession made by the appellant.
5. According to Inspector Jeet sings Joon, PW 15, the Investigating Officer, he found two dead bodies of Prit Pal Singh and Jaspal Singh split into pieces which could have happened if these two persons were carrying the bomb which exploded. Smt. Kusam, PW 14, is the wife of the deceased Prit Pal Singh. According to her statement, her husband was driving a three-wheeler and they were living at a different place but during some time in September 1990 they shifted to the house of accused Pragat Singh and Balbir Kaur who were her father-in-law and mother-in-law respectively. As per her deposition both deceased persons, Prit Pal Singh and Jaspal Singh left the house of accused Pragat Singh 15 to 20 minutes before the said explosion took place. Pragat Singh her father-in-law was also driving a three-wheeler. He had three daughters. Though earlier those three daughters gave statements which were recorded under Section 164 CrPC in which they had stated that the appellant used to visit their house, they turned hostile when examined in court. This left the prosecution to strongly rely on the deposition of Kusam, PW 14. She deposed that she saw the appellant coming to their house and he was then a cleanshaved person. Her husband always objected to Smt. Balbir Kaur of his coming to her house since her young daughters were living in the house. In spite of all this, she deposed, the appellant used to stay in their house and was coming and going. The appellant again came back on 4-10-1990. He continued to stay there for the next three days, i.e., till the day of the incident and till a few minutes before the said explosion. She also told her father-in-law earlier that the appellant be asked to go away from here. On 5-10-1990 Smt Kusam, PW 14, was to go to the hospital, her father-in-law took her there and on the way, at Bangala Sahib Gurudwara he purchased two plastic cans. It is alleged that they were used in preparation of the bomb which exploded. On her return by night time, she found that the appellant was still in the house and he stayed overnight and even the next day. On the fateful day, i.e., the next day she saw at about 5.30 p.m., the appellant brought drinks and was drinking liquor with, her husband, father-in-law, deceased Jaspal Singh and one Kale (cousin of deceased Prit Pal Singh). It was at this point that she went to take her bath and on her return she found that all of them left the house and thereafter, within fifteen to twenty minutes the bomb explosion took place in which her husband died. She also deposed that when the appellant came to their house he was carrying a coloured striped bag which later is said to have been given by the appellant to and which was carried by the deceased Prit Pal Singh when the explosion took place.
6. The prosecution in order to establish the antecedents of the appellant as a terrorist, examined witnesses to show how he worked as a Granthi (who reads religious books) and became a terrorist. Avtar Singh, PW 20, stated that the appellant was working as a Granthi in South Anarkali Gurudwara in 1983 and he continued to be such for two to three years. Similarly, Kuldeep Kaur, PW 12, also deposed that he was serving as a Granthi in 1984. She was his landlady as he was in her tenancy prior to the year 1984. At that time the appellant was keeping a beard. The evidence of this witness that he was having a beard and the testimony of Kusam, PW 14, that when she saw him in September 1990 as a cleanshaved person shows how the appellant brought a change in his appearance along with the change from Granthi to a terrorist. This part of the prosecution evidence is used as corroborative of the confessional statement made by the appellant.
7. Strong reliance is placed by the prosecution on the testimony of Raj Shekhar Shetty, PW 13, Superintendent of Police, Core of Detectives Karnataka. His testimony reveals that the appellant was produced before him and he recorded his confessional statement in another case being Crime No. 177 of 1990, Police Station New Town Beether, Karnataka under Section 15 of the TADA Act. Before recording this confessional statement he deposed to have complied with all the requirements under law. This witness asked the appellant before recording the confession, whether he was giving his confessional statement voluntarily, without any pressure from anybody, to which the appellant replied in the affirmative and further said that he wanted to give his statement voluntarily. He was also forewarned that such statement might be used against him and he was not bound to make a confessional statement. But in spite of all such warnings the appellant insisted on giving his confessional statement. Even thereafter PW 13 gave the appellant time for reflection. The appellant was thereafter brought back before PW 13. The appellant was again asked whether he was still willing to make a confessional statement and again he replied in the affirmative. Thereafter, the confessional statement was recorded (in Hindi) by PW 13 himself. Then it was read over to him and he admitted it to be correct and he signed below it. This witness then gave his endorsement and also gave his certificate on the last page of the statement as required under law. A comprehensive statement so recorded was sent in a cover to the Deputy Commissioner of Police of the sessions case with the directions that statement be deposited with the Court. The original statement recorded was placed in the Sessions Court at Beether, the copy of which is filed in the present case and is proved by this witness. The confessional statement of the appellant is Ex. PZ. But on account of erratic supply of electricity the video recording could not be properly done.
8. In his confessional statement, on which strong reliance is placed by the prosecution, the appellant admitted that he worked as a Granthi in Gurudwaras from 1981 to 1984. In 1983 he developed friendship with one Kashmira Singh. In the months of February and March 1983, one Parkash Kaur, friend of Smt Balbir Kaur got performed Akhand Path at her residence with the intention to get her brother Ranjit Singh released who was jailed for the murder of Baba Nirankari. He performed the same. Later he at Baba Bakala Gurudwara came into contact with AISSF leader Sukhwant Singh Atwal and he joined his group and offered himself to do any work for the sake of the panth. However, later he was arrested and detained under NSA for two years. Thereafter, he met one Bhai Manjeet Singh who appointed him as his bodyguard. Then he again met Parkash Kaur and asked her to find some place for his hideout in Delhi. She introduced him to Balbir Kaur and since thereafter he used to go to her house as a hideout in Delhi. He also stated how he made attempts to come in close contact with hard-core terrorists which is not necessary for us to give in detail for the purpose of disposal of this case. In the confessional statement the accused also disclosed that on 6-10-1990, the day of the incident, he handed over a bomb to Prit Pal Singh in a bag and told him to reach it at Noida by a bus. He said he quietly switched on a plastic switch of the bomb so that the bomb should explode in the bus after some time. However, both deceased Prit Pal Singh and Jaspal Singh went by scooter instead by bus. It is also clear that neither Prit Pal Singh nor Jaspal Singh were aware of the switch on of the bomb made by the appellant. The relevant portion of his confession is reproduced below :
"On 23-7-1990 I reached Delhi by train and went to Balbir Kaur's house. I called Parkash Kaur there. Parkash Kaur got annoyed with me after seeing me clean shaven. Then I told her about the bomb blast in Bidar and only then she was pacified. Next day I went to Rayya and met with Fauji and narrated about the bomb blast in Bidar. In the month of October on 6th day there was a bomb blast in a TSR on Delhi-Noida Road which was also caused by me. In this explosion Prit Pal Singh @ Bitto and Jaspal Singh @ Kala died. They were directed to carry the bomb by bus to Noida so that the bomb may be exploded but before handing the bomb to them I secretly switched on the bomb and it was done on the advice of Smt Balbir Kaur. Balbir Kaur had illicit relations with Prit Pal Singh but Prit Pal Singh developed sexual relations with her younger daughter due to which she got pregnant so she planned to take revenge with my connivance. I while giving bomb to Prit Pal Singh @ Bitto and directing him to reach Noida by bus wanted to kill two birds with one stone with the connivance of Pargat Singh and his wife. But Jaspal Singh @ Kala got down from Pargat Singh's auto and accompanied him. For reaching Noida early both hired a TSR and thus the bomb exploded on the way as the time had already been fixed fifteen minutes for explosion and they expired in this blast. Thereafter, I was arrested by Delhi Police and I disclosed the incident of Bidar."
9. The prosecution, based on the aforesaid evidence and the confessional statement made by the appellant, strongly defended the conviction passed by the Designated Court. Learned counsel for the respondent, Mr. V. N. Saraf submits, the confessional statement by itself under Section 15 of the TADA Act is sufficient and the appellant was rightly convicted by the Designated Court. He also supported the findings of the Designated Court that the circumstantial evidence proves to the hilt that the appellant had committed the offence. He further submits that the prosecution witnesses corroborated the confessional statement of the appellant.
10. On the other hand, learned counsel for the appellant, Mr. P. P. Singh, appearing as amicus curiae submits that there is no corroboration of the prosecution story from the prosecution witnesses. Some of the witnesses turned hostile. The only evidence on which strong reliance is placed by the prosecution i.e. the testimony of Smt Kusam, PW 14, the wife of the deceased Prit Pal Singh, is neither useful for any corroboration of the prosecution story on the material particulars nor does it add to the chain of circumstances, to prove the guilt of the appellant. Hence in a case of circumstantial evidence, unless the prosecution establishes the chain of circumstances beyond all reasonable doubt no conviction can be made. The prosecution has failed to provide this in the present case according to the counsel. With reference to the confessional statement the submission is that it was not voluntary as it was made under threat. To substantiate this he refers to the facts that his confession was recorded by SP Raj Shekhar Shetty, PW 13, when he was in handcuffs. There was another policeman in the same room holding the chain of his handcuffs, and even outside the room, in which his confession was recorded, there were armed guards. Such set-up reveals by itself that threat perception existed which was hanging over his head, thus such confession cannot be construed to be voluntary under Section 15 of the TADA Act, contended the counsel.
11. This takes us to the question whether the confession made by the appellant under Section 15 of the TADA Act was voluntary. It is not in dispute that a confession was made by the appellant before PW 13 Raj Shekhar Shetty, Superintendent of Police (COD), Core of Detectives, Karnataka in Crime No. 177 of 1990 of Police Station New Town Beether, Karnataka. It is also not in dispute that he followed the procedure prescribed under the TADA Act and Rules before recording the confession. He, before recording the confession, explained to the appellant that he was not bound to make a confession and if he would make, it could be used against him.
12. Rule 15 of the TADA Rules, 1987 laid down the modalities as to how a confession is to be recorded. Sub-rule (1) of this rule requires the confession invariably to be recorded in the language in which it is made and if it is not practical, in the language used by such officer for official purpose or in the language of the Designated Court. Sub-rule (2) requires that such recorded confession should be shown, read or played back to such accused who made the confession, as the case may be, and in case he does not understand the language in which it is recorded, it has to be interpreted to him in the language which he understands and thereafter such accused has the liberty to add to such confession or to explain any part of it. Sub-rule (3) says that when the confession is recorded in writing it shall be signed by the person making the confession and there has to be certification by the police officer before whom such confession is made that such confession was recorded in his presence and recorded by him and it contains full and true account of the confession. The said police officer has to make a memorandum at the end of the confession as provided therein. Under sub-rule (4), when the confession is recorded on any mechanical device, the memorandum referred to in sub-rule (3) insofar as it is applicable has to be recorded by such police officer at the end of the confession in the mechanical device. In the present case, as we have pointed out, the confessional statement was made in writing though during the investigation in another case. But a copy of it was brought as evidence in the case and proved through PW 13 and is exhibited as Ex. PZ. It is not the case of the appellant that any procedure as required under Rule 15, as aforesaid, or what is contained in Section 15 of the TADA Act was not followed. The limited area of challenge to the said confessional statement is that the same was not made voluntarily as required under Section 15(2) of the TADA Act. For ready reference Section 15 is quoted hereunder :
"15. Certain confessions made to police officers to be taken into consideration. - (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or soundtracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or rules made thereunder.
(2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily."
13. It is also not in dispute nor was there any contention that the disclosure therein does not make out all the essential ingredients of the offence for which he is convicted. So the confession reveals the planning and the subsequent handing over of the bomb etc. by the appellant in the commission of the said offence. It is also not in dispute that PW 13 who recorded the confession was then a Superintend of Police and he recorded it in his own handwriting.
14. It was contended before us that PW 13 should not have recorded the confession as it was not, voluntary. Before we enter into this sphere of controversy to adjudicate on this issue, we may point out that PW 13 has not recorded anywhere that it was not being made voluntarily, the officer could only record such confession when he has reasons to believe that it is being made voluntarily. In other words, it puts an obligation on such officer, who on questioning felt that he was not going to give the confession voluntarily, not to record such confession. But when he recorded the confession the presumption is he was satisfied that the accused was going to make his confession voluntarily.
15. The legislature has conferred a different standard of admissibility of a confessional statement made by an accused under the TADA Act, from those made in other criminal proceedings. While under Section 15 of the TADA Act a confessional statement by an accused is admissible even when made to a police officer not below the rank of Superintendent of Police, in other criminal proceedings it is not admissible unless made to a Magistrate. Section 25 of the Indian Evidence Act debars from evidence a confession of an accused to a police officer, except what is permitted under Section 27.
16. In Sahib Singh v. State of Haryana ((1997) 7 SCC 231 : 1997 SCC (Cri) 1049) this Court while dealing with the TADA Act held that the meaning of confession as under the Indian Evidence Act shall also apply to a confession made under the TADA Act : (SCC pp. 242-43, paras 46-47)
"46. The Act, like the Evidence Act, does not define 'confession' and, therefore, the principles enunciated by this Court with regard to the meaning of 'confession' under the Evidence Act shall also apply to a 'confession' made under this Act. Under this Act also, 'confession' has either to be an express acknowledgment of guilt of the offence charged or it must admit substantially all the facts which constitute the offence. Conviction on 'confession' is based on the maxim 'habemus optimum testem, confitentem reum' which means that confession of an accused is the best evidence against him. The rationale behind this rule is that an ordinary, normal and sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience.
47. Under this Act, although a confession recorded by a police officer, not below the rank of Superintendent of Police, is admissible in evidence, such confessional statement, if challenged, has to be shown, before a conviction can be based upon it, to have been made voluntarily and that it was truthful."
17. In other words, there is one common feature, both in Section 15 of the TADA Act and Section 24 of the Indian Evidence Act that the confession has to be voluntary. Section 24 of the Evidence Act interdicts a confession, if it appears to the court to be the result of any inducement, threat or promise in certain conditions. The principle therein is that confession must be voluntary. Section 15 of the TADA Act also requires the confession to be voluntary. Volantary means that one who makes it out of his own free will inspired by the sound of his own conscience to speak nothing but the truth. As per Stroud's Judicial Dictionary, 5th Edn., at p. 2633, threat means :
"It is the essence of a threat that it be made for the purpose of 'intimidating, or overcoming, the will of the person to whom it is addressed (per Lush, J., Wood v. Bowron ((1866) 2 QB 21) cited Intimidate)."
18. Words and Phrases, Permanent Edition, Vol. 44, p. 622, defines voluntary as :
" 'Voluntary' means a statement made of the free will and accord of accused, without coercion, whether from fear of any threat of harm, promise, or inducement or any hope of reward - State v. Mullin (85 NW 2d 598, 600, 249 lown 10)."
At p. 629 "confession" is defined as :
where used in connection with statements by accused, words voluntary' and 'involuntary' import statements made without constraint or compulsion by others and the contrary. Commonwealth v. Chill kee (186 NE 253, 260, 283 Mass 248)."
19. In Words and Phrases by John B. Saunders, 3rd Edn., Vol. 4, p. 401, "voluntary" is defined as :
" '... The classic statement of the principle is that Lord Sumner in Ibrahim v. Regem (1914 AC 599 : 111 LT 20) (AC at p. 609) where he said, "It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale". However, in five of the eleven textbooks cited to us ... support is to be found for a narrow and rather technical meaning of the word "voluntary" 'According to this view "voluntary" means merely that the statement has not been made in consequence of (i) some promise of advantage or some threat (ii) of a temporal character (iii) held out or made by a person in authority, and (iv) relating to the charge in the sense that it implies that the accused's position in the contemplated proceedings will or may be better or worse according to whether or not the statement is made.' R. v. Harz, R. v. Power ((1966) 3 All ER 433, 454, 455) (All ER at pp. 454, 455) per Cantley, V."
20. So the crux of making a statement voluntarily is, what is intentional intended, unimpelled by other influences, acting on one's own will, through his own conscience. Such confessional statements are made mostly out of a thirst to speak the truth which at a given time predominates in the heart of the confessor which impels him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally emerges when one is in despondency or in a perilous situation when he wants to shed his cloak of guilt and nothing but disclosing the truth would dawn on him. It sometimes becomes so powerful that he is ready to face all consequences for clearing his heart.
21. Thus from the aforesaid premise it has to be seen whether on the facts and circumstances of this case the appellant's confession was voluntary or not. Learned counsel for the appellant has submitted the following three reasons for holding the same to be not voluntary :
(a) the confessional statement was made when the appellant was in handcuffs;
(b) while recording the confession another policeman in the room at some distance was present who was holding the chain of his handcuffs; and
(c) outside the room where his confession was recorded he was surrounded by armed guards.
22. No other, as a fact, threat, inducement or promise by any other word or deed is said to have been made to the appellant, in any other form nor was it contended at any stage of the proceedings culminating in his conviction. The only ground that the confessional statement was not voluntary are the three factual situations, as aforesaid.
23. Whenever an accused challenges that his confessional statement is not voluntary, the initial burden is on the prosecution for it has to prove that all requirements under Section 15 and Rule 15 under the TADA Act and Rules have been complied with. Once this is done the prosecution discharges its initial burden and then the burden shifts on the accused person. Then it is for him to prove through facts that the confessional statement was not made voluntarily. If such fact was pleaded and brought on record during trial the court must test its veracity, whether such fact constitutes to be such as to make his confessional statement not voluntarily made. Returning to the facts of the present case the prosecution has proved to the hilt the initial burden of compliance of both Section 15 and Rule 15 under the TADA Act and Rules. We may at the Outset record that it is also not in dispute that the appellant was handcuffed while the confessional statement was recorded and there was another policeman with the chain of his handcuffs at some distance in the room and there were armed guards outside the room, where the confessional statement was recorded. This leaves us to consider the question whether this set of situation could be construed to be such as to infer that the confessional statement recorded was not voluntary. In considering this we have to keep in mind, the distinction between the TADA Act and the other criminal trial. While a confession recorded under the TADA Act before a police officer not below the rank of Superintendent of Police even under police custody is admissible but not under other criminal trials. Keeping an accused under police custody in what manner with what precautions is a matter for the police administration to decide. It is for them to decide what essential measures are to be taken in a given case for the purpose of security. What security, in which manner are all in the realm of administrative exigencies and would depend on the class of accused, his antecedents and other information etc. The security is also necessary for the police personnel keeping him in custody or other personnel of the police administration including the public at large. Thus what measure has to be taken is for the police administration to decide and if they feel greater security is required in a case of trial under the TADA Act, it is for them to decide accordingly. The Preamble of the TADA Act itself reveals that this Act makes special for the provisions prevention of and for coping with terrorists and disruptive activities. In fact the earlier TADA Act of 1985 was repealed to bring in the present Act to strengthen the prosecution to bring to book those involved under it without their filtering out, by bringing in more stringent measures under it. In this background, we do not find the handcuffing of the appellant or another policeman being present in the room with the chain of his handcuffs or armed guards present outside the room to be such as to constitute (sic conclude) that the appellant's confessional statement was not made voluntarily. It has to be kept in mind that Section 15 and Rule 15 of the TADA Act and the Rule have taken full precaution to see that confessional statement is only recorded when one makes it voluntarily. First, confession could only be recorded by a police officer of the rank of Superintendent of Police or above. Such police officer has to record in his own handwriting, he has to clearly tell such accused person that such confession made by him shall be used against him and if such police officer after questioning comes to the conclusion that it is not going to be voluntarily he shall not record the same. Keeping this in the background which is complied with in the present case and keeping the administrative exigencies under which an accused is kept under handcuffs with armed guards etc. which may be for the antecedent activities of the appellant as a terrorist, for the purpose of security, then this could in no way be constituted to be a threat or coercion to the accused for making his confessional statement. The policeman holding the chain of his handcuffs was only a constable and the person recording his confession was of the rank of Superintendent of Police. The 'Superintendent of Police conveyed confidence to the appellant and made it clear to the appellant as aforesaid. After all this, if the appellant was still ready and made his confessional statement, then merely the presence of a constable, a subordinate of the Superintendent of Police, who was holding the chain cannot be constituted to be such a threat which could induce him not to make any voluntary statement. Hence, we have no hesitation to hold that the presence of a constable in a room could not in fact or law be constituted to be such to hold that such confessional statement was not made voluntarily. Mere handcuffing and the presence of a policeman we fail to understand in what way could it be said to be a threat to the accused appellant. It is not the case that before making confessional statement any inducement, threat or promise by any other word or deed was made to him by any person which resulted in his making the said confessional statement. Firstly, we find a total absence of inducement, threat or promise in the present case as against the appellant and as we have said handcuffing, the presence of a policeman holding the chain of the handcuffs or even keeping armed guards outside the room which being parts of the security measure by itself cannot penetrate into the realm as to make a confessional statement not to be voluntarily made.
24. For the aforesaid reasons and on the facts and circumstances of this case, we have no hesitation to hold that the confessional statement of the appellant is not only admissible but was voluntarily and truthfully made by him on which the prosecution could rely for his conviction. Such confessional statement does not require any further corroboration. Before reliance could be placed on such confessional statement, even though voluntarily made, it has to be seen by the court whether it is truthfully made or not. However, in the present case we are not called upon nor is it challenged that the confessional statement was not made truthfully. So for all these reasons we hold that the impugned judgment passed by the Designated Court was just and proper which does not require any interference by this Court. We confirm the conviction and sentence. The appeal is accordingly dismissed.
25. Before concluding we would like to record our conscientious feeling for the consideration by the legislature, if it deem fit and proper. Punishment to an accused in criminal jurisprudence is not merely to punish the wrongdoer but also to strike a warning to those who are in the same sphere of crime or to those intending to join in such crime. This punishment is also to reform such wrongdoers not to commit such offence in future. The long procedure and the arduous journey of the prosecution to find the whole truth is achieved sometimes by turning on the accused as approvers. This is by giving incentive to an accused to speak the truth without fear of conviction. Now turning to the confessional statement, since it comes from the core of the heart through repentance, where such accused is even ready to undertake the consequential punishment under the law, it is this area which needs some encouragement to such an accused through some respite may be by reducing the period of punishment, such incentive would transform more such incoming accused to confess and speak the truth. This may help to transform an accused, to reach the truth and bring to an end successfully the prosecution of the case.
26. In view of the finding, as aforesaid, we uphold the judgment and order passed by the Designated Court No. III and uphold the conviction of the appellant under the aforesaid sections. The appeal is accordingly dismissed.

BACKWARD REFERENCE :
FORWARD REFERENCE :
REFERENCES :
ACTS & SECTIONS REFERENCE :
INDIAN PENAL CODE
Section 302
Section 324
Section 326
CRIMINAL PROCEDURE CODE
Section 164
INDIAN EVIDENCE ACT
Section 24
Section 25
NOTIFICATIONS REFERENCE :

1999-(SC2)-GJX -0387 -SC
State Through Superintendent Of Police, Cbi/sit, Appellant V. Nalini And Others, Respondents. (Death Reference Case No. 1 Of 1998 (@ D. No. 1151 Of 1998) With T. Suthendraraja Alias Santhan And Others, Appellants V. State By D. S. P., Cbi, Sit, Chenn
DATE : 11-05-1999
EQUIVALENT CITATION(S) :

1999-(005)-SCC -0253 -SC
CATCHNOTE :
SECS.120-B & 302 -- Rajiv Gandhi assassination case -- Spouses or relatives of conspirators providing food, shelter, medicine or transport are not guilty of criminal conspiracy - Merely because a person is shown to be an active worker of LTTE that by itself would not catapult him into the orbit of the conspiracy mesh to murder Rajiv Gandhi
HEADNOTE :
JUDGE(S) :

D P Wadhwa
K T Thomas
S S Mohammed Quadri
TEXT :

STATE THROUGH SUPERINTENDENT OF POLICE, CBI/SIT, APPELLANT v. NALINI AND OTHERS, RESPONDENTS. (DEATH REFERENCE CASE NO. 1 OF 1998 (@ D. NO. 1151 OF 1998) WITH T. SUTHENDRARAJA ALIAS SANTHAN AND OTHERS, APPELLANTS v. STATE BY D. S. P., CBI, SIT, CHENNAI, RESPONDENTS. (CRIMINAL APPEAL NO. 321 OF 1998) AND P. RAVICHANDRAN AND OTHERS, APPELLANTS v. STATE BY D. S. P., CBI, SIT, CHENNAI, RESPONDENTS. (CRIMINAL APPEAL NO. 322 OF 1998) AND ROBERT PAYAS AND OTHERS, APPELLANTS v. STATE BY D. S. P., CBI, SIT, CHENNAI, RESPONDENTS. (CRIMINAL APPEAL NO. 323 OF 1998) AND S. SHANMUGAVADIVELU, APPELLANT v. STATE OF D. S. P., CBI, SIT, CHENNAI, RESPONDENTS. (CRIMINAL APPEAL NO. 324 OF 1998) AND S. NALINI AND OTHERS, APPELLANTS v. STATE BY D. S. P., CBI, SIT, CHENNAI, RESPONDENTS. (CRIMINAL APPEAL NO. 325 OF 1998)
Death Reference Case No. 1 of 1998 (@ D. No. 1151 of 1998) (Under Section 366 Criminal Procedure Code) with Criminal Appeals No. 321 of 1998 with No. 322 of 1998 with No. 323 of 1998 with No. 324 of 1998 with No. 325 of 1998, decided on May 11, 1999.
JUDGMENT
The Judgment of the Court were delivered by
THOMAS, J. - Rajiv Gandhi, a former Prime Minister of India was assassinated on 21-5-1991 at a place called Sriperumbudur in Tamil Nadu. The assassin was an adolescent girl named Dhanu who was made into a human bomb and she got herself exploded at 10.19 p.m. at a very close proximity to the visiting former Prime Minister. In a trice the life of Rajiv Gandhi was snuffed out and his body was smashed into smithereens. As for the assassin, nothing except a few pieces of charred limbs and her sundered head were left behind. In the explosion lives of 18 others also got extinguished. Investigation pointed to a minutely orchestrated cabal, masterminded by some conspirators to extirpate the former Prime Minister from this terrestrial terrain. In the final charge-sheet made by the Central Bureau of Investigation (CBI) all the 26 appellants now before us were arraigned as members of the conspiracy which targeted, inter alia, Rajiv Gandhi. The Special Judge who tried the case found all the 26 appellants guilty of various offences charged, the gravamen of them being Section 302 read with Section 120-B IPC. All of them were hence convicted of those offences and all of them were sentenced to death.
2. These appeals by right are under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA for short). The Special Judge submitted the records to this Court for confirmation of the death sentence. We heard all the above matters together at great length, perhaps the longest heard criminal appeal in this country. Shri Altaf Ahmed, Additional Solicitor General who was assisted by a team of advocates argued the prosecution side adroitly and with great dedication. The accused's side was represented by Shri N. Natarajan, Senior Counsel who was assisted by an array of counsel with meticulous preparation and admirable resourcefulness.
3. We were verily benefited by the remarkable contribution made by the counsel for both sides. We record our uninhibited thanks to them.
4. We may narrate, as briefly as possible, the events which preceded and succeeded the assassination as they would unfurl the conspectus of the case. The genesis can be traced to a movement which burgeoned in Sri Lanka for ventilating the grievances of the people of Tamil origin and for making certain demands for the Tamil-speaking people of the island. Under the leadership of one Veluppillai Prabhakaran, a militant Organisation called "Liberation Tigers of Tamil Eelam" (hereinafter referred to as 'LTTE' as the abbreviation) came into existence in the island. When the movement became belligerent, the Government of Sri Lanka adopted sterner measures to curb their activities. Eventually a series of confrontations took place between the Government of Sri Lanka and the activists of LTTE.
5. When the Sri Lankan Government found it difficult to meet the situation by themselves, it sought assistance from the Government of India for tackling the problem. This was reciprocated by the Government of India. Some parleys took place between the diplomats of both the nations in 1987. The President of Sri Lanka (Mr. Jayawardane) and the Prime Minister of India (Shri Rajiv Gandhi) met together at New Delhi and Veluppillai Prabhakaran was also invited to be involved. An accord was signed by the aforesaid three persons by which the Indian Government agreed, inter alia, to form a cadre called Indian Peace-Keeping Force (IPKF for short). One of the tasks assigned to the Force was to disarm LTTE militants. Pursuant to the terms of the accord the Government of India despatched a large number of IPKF personnel to Sri Lanka. While discharging their duties, IPKF committed many excesses which became an inhuman conduct towards the followers of LTTE. Consequently hostility developed in the minds of LTTE cadre towards IPK Force. To register their protest against such excesses one of the LTTE hard-core activists by name Dileepan undertook a fast and he succumbed to it after a few days.
6. Skirmishes became rampant between the members of IPK Force and LTTE activists. In October 1987, a vessel carrying 17 LTTE functionaries was intercepted by the Sri Lankan navy while patrolling on the high seas and the passengers were held captives. Leaders of LTTE made a bid to save them by appealing to the Indian Government to intervene, but there was no response. 12 out of 17 captives committed suicide by consuming potassium cyanide. There was a counter-attack on IPK Force when LTTE commandos captured a ship carrying provisions for the army, and in the encounter which ensued, 11 Indian soldiers were killed.
7. In the meanwhile one Varadaraja Perumal who was an accredited leader of a rival organisation called Eelam Peoples' Revolutionary Liberation Front (EPRLF) got elected from the Northern Zone as a follow-up step of the terms of the Sri Lanka-India Accord to which reference was made above. Later the Indian Government under the leadership of Rajiv Gandhi agreed for making a gradual deinduction of IPK Force from Sri Lanka.
8. In the general elections which were held in 1989, a new Government headed by Shri V. P. Singh as the Prime Minister came to power in India. The new Government accelerated the process of deinduction of IPK Force. However, the said Government did not last long and another Government with Shri K. Chandrashekhar as the Prime Minister assumed office. That Government too did not last long and the political changes in India reached a stage when the Lok Sabha was dissolved and the President of India issued a notification for fresh elections. Rajiv Gandhi started campaigning for the Congress (I) Party. He made his views public when a correspondent of Amrita Bazar Patrika interviewed him which was published in the Sunday Magazine of the newspaper on 12-8-1990 and 19-8-1990. The pith of the interview, concerning Sri Lankan policy, was that Rajiv Gandhi did not favour withdrawal of IPK Force from Sri Lanka and he was critical of the approach made by the V. P. Singh Government towards Sri Lanka.
9. In the election manifesto published by Congress (I) for the ensuing general elections, the party reiterated its commitment to the India-Sri Lanka Agreement of July 1987 as the basis for the settlement of outstanding issues relating to the Tamil population of Sri Lanka and assured to ensure the territorial integrity of Sri Lanka.
10. The events which took place subsequent thereto were so intertwined with the above-narrated political developments that this case cannot be understood without etching the afore-presented backdrop. We may now proceed to describe the prosecution case.
11. A criminal conspiracy was hatched and developed by the hard-core LTTE cadre which spread over a long period of 6 years commencing from 6-7-1987 and stretching over till May 1992. The main objects of the conspiracy were : (1) to carry out acts of terrorism and disruptive activities in Tamil Nadu and other places in India during the course of which to assassinate Rajiv Gandhi and others, (2) to cause disappearance of evidence thereof, (3) to harbour all the conspirators-living in India, and (4) to escape from being apprehended and to screen all those who were involved in the conspiracy from legal consequences.
12. As a follow-up step of the conspiracy during the first half of its period LTTE commandos arrived on the Indian shore in different batches. The first batch arrived on 12-9-1990 which consisted of Perumal Vijayan (12th accused) and his wife Selvaluxmi (13th accused) and Bhaskaran (14th accused). They were seen off at Jaffna in Sri Lanka by one of the top-ranking hard-core LTTE leaders by the name of Sivarasan.
13. It is appropriate to mention now itself that the said Sivarasan would have been one of the most seriously involved accused in this case, but he is not alive now as he abruptly ended his life when he was sure of being nabbed by the police. Among the conspirators nobody else seems to have played a greater role on the Indian soil than what Sivarasan had played. Sivarasan reached India sometime in December 1990 and in collaboration with those who arrived in the first batch he managed to secure a house building in a locality called Kodungaiyur at Madras.
14. The next batch consisted of Robert Payas (9th accused), his wife and sisters and Jayakumar (10th accused) together with his wife Shanthi (11th accused). They arrived in India in September 1990. They took another house on rent at a more secluded locality in Kodungaiyur as suggested by Sivarasan who too started residing therein. The third batch consisting of Ravichandran (16th accused) and Suseendran (17th accused) came to India on 17-12-1990. Murugan (3rd accused) reached India in January 1991 and Radhayya (7th accused) and Chandralekha @ Athirai @ Gauri (8th accused) reached India in April 1991. In the meantime two persons, Arivu (18th accused) and Irumborai (19th accused) went back to Sri Lanka in the company of another important LTTE activist called Baby Subramaniam. They collected instructions from Veluppillai Prabhakaran. Sivarasan was shuttling between India and Sri Lanka quite often during the above-mentioned period.
15. The final arrivals were the most dedicated hard-core LTTE commandos who were brought on the Indian soil by Sivarasan on 1-5-1991. That batch consisted of the girl Dhanu (who offered herself to become the human bomb) and her close friend Suba besides Santhan (2nd accused), Shankar (4th accused), Vijayanandan (5th accused) and Sivaruban @ Ruban (6th accused). They were seen off at Sri Lanka by a man called Pottu Omman (who was described as the Chief of the Intelligence Wing of LTTE).
16. The targets of the conspiracy, according to the prosecution, were Fort St. George at Madras (which houses the Government Secretariat of Tamil Nadu and a lot of other important State Government buildings), Tamil Nadu Police Headquarters and other police stations, Vellore Fort (in which the Central Jail is situate), Krishna Raja Sagar Dam (Karnataka) and Vidhan Soudha at Bangalore. Among the persons the targets were Rajiv Gandhi, Varadaraja Perumal and certain other unspecified but identified personage.
17. Pursuant to the scheme of the conspirators, photos of Fort St. George, Madras Police Headquarters and a few other police stations were taken and forwarded to the top leaders of LTTE at Sri Lanka. A sketch of Vellore Fort was drawn up which too was despatched to the island.
18. Sivarasan sheltered Suba and Dhanu for a few days in the house of Jayakumar (A-10) and shifted them to the house of Vijayan (A-12). As instructed by Sivarasan a wireless set was installed in the house of Vijayan (A-12) and fitted with operational facilities as Station No. 910. Another wireless set was installed in the house of Robert Payas (A-9). In October 1990, a house was taken on rent by Nalini (A-1) at High Court Colony, Villiwakkam, Madras. Murugan (A-3), Suba and Dhanu used to see Nalini and Sivarasan. In March 1991, another house was taken on rent by Rangan (A-24) at Park Avenue, Madras and one more house was taken by him at Bangalore. Both houses were taken on rent as per the instructions given by Sivarasan.
19. When information reached that Rajiv Gandhi was addressing a meeting at Marina Beach, Madras on 18-4-1991 four persons - Nalini (A-1), Murugan (A-3), Subha Sundaram (A-22) and one Haribabu went to the meeting place. The conspirators thought of conducting a trial for the purpose of assassinating Rajiv Gandhi. When they got information that V. P. Singh, a former Prime Minister, was addressing a meeting at Madras on 7-5-1991 Sivarasan took Suba and Dhanu to that place (Nandanam in Madras). Nalini (A-1), Murugan (A-3), Arivu (Perarivalan) and Haribabu also accompanied them. The idea was to give advance training to Suba and Dhanu as to how to go near the former Prime Minister. V. P. Singh arrived at the meeting place only during the wee hours of 8-5-1991. Before V. P. Singh could address the gathering, Nalini (A-1), Dhanu and Suba made a bid to garland the visiting former Prime Minister on the rostrum of the meeting. The success of the aforesaid trial emboldened Suba and Dhanu and they on 9-5-1991 conveyed their confidence in achieving the target to Akila who was the Deputy Chief of the Intelligence Wing of LTTE. (Akila was also put in charge of the Women Wing of the organisation).
20. With the success they felt achieved in the trial run the main conspirators started acting swiftly. On 11-5-1991, Nalini (A-1) took Suba and Dhanu to a tailoring shop and purchased some clothes including a salwar-kameez. On 17-5-1991, Sivarasan and Santhan (A-2) sent Sivaruban (A-6) to Jaipur to find out a hideout for the conspirators and to take the same on rent under a pseudonymous name.
21. The tour programme of Rajiv Gandhi was published in the local newspapers on 19-5-1991 and then Sivarasan came to know that Rajiv Gandhi would address a meeting at Sriperumbudur on 21-5-1991. Sivarasan was determined not to miss that opportunity. He ascertained all about Sriperumbudur from Nalini (A-1) and then he told Nalini that the target was only Rajiv Gandhi.
22. On 20-5-1991, Arivu (A-18) purchased a 9-watt golden-power battery from a shop. Sivarasan deputed Kanagasabapathy (A-7) to go to Delhi to fix up a house as a hideout to be used during the days after accomplishing the target. Sivarasan confabulated with Nalini (A-1), Murugan (A-3), Arivu (A-18) and Haribabu at the house of Jayakumar (A-10). Sivarasan instructed Nalini to take half day's leave under some pretext or the other. Arivu (A-18) and Bhagyanathan (A-20) procured a Kodak film and supplied it to Haribabu who was a freelance photographer.
23. On 21-5-1991, Haribabu bought a garland made of sandalwood presumably for using it as a camouflage (for murdering Rajiv Gandhi). He also secured a camera. Nalini (A-1) wangled leave from her immediate boss (she was working in a company as PA to the Managing Director) under the pretext that she wanted to go to Kanchipuram for buying a saree. Instead she went to her mother's place. Padma (A-21) is her mother. Murugan (A-3) was waiting for her and on his instruction Nalini rushed to her house at Villiwakkam (Madras). Sivarasan reached the house of Jayakumar (A-10) and he got armed himself with a pistol and then he proceeded to the house of Vijayan (A-12).
24. Sivarasan directed Suba and Dhanu to get themselves ready for the final event. Suba and Dhanu entered into an inner room. Dhanu was fitted with a bomb on her person together with a battery and switch. The loosely stitched salwar-kameez which was purchased earlier was worn by Dhanu and it helped her to conceal the bomb and the other accessories thereto. Sivarasan asked Vijayan (A-12) to fetch an auto-rickshaw.
25. The auto-rickshaw which Vijayan (A-12) brought was not taken close to his house as Sivarasan had cautioned him in advance. He took Suba and Dhanu in the auto-rickshaw and dropped them at the house of Nalini (A-1). Suba, expressed gratitude of herself and her colleagues to Nalini (A-1) for the wholehearted participation made by her in the mission they had undertaken. She then told Nalini that Dhanu was going to create history by murdering Rajiv Gandhi. The three women went with Sivarasan to a nearby temple where Dhanu offered her last prayers. They then went to "Parry's Corner" (which is a starting place of many bus services at Madras). Haribabu was waiting there with the camera and garland.
26. All the 5 proceeded to Sriperumbudur by bus. After reaching there they waited for the arrival of Rajiv Gandhi. Sivarasan instructed Nalini (A-1) to provide necessary cover to Suba and Dhanu so that their identity as Sri Lankan girls would not be disclosed due to linguistic accent. Sivarasan further instructed her to be with Suba and to escort her after the assassination to the spot where Indira Gandhi's statue is situate and to wait there for 10 minutes for Sivarasan to reach.
27. Nalini (A-1), Suba and Dhanu first sat in the enclosure earmarked for ladies at the meeting place at Sriperumbudur. As the time of arrival of Rajiv Gandhi was nearing Sivarasan took Dhanu alone from that place. He collected the garland from Suba and escorted Dhanu to go near the rostrum. Dhanu could reach near the red carpet where a little girl (Kokila) and her mother (Latha Kannan) were waiting to present a poem written by Kokila on Rajiv Gandhi.
28. When Rajiv Gandhi arrived at the meeting place Nalini (A-1) and Suba got out of the enclosure and moved away. Rajiv Gandhi went near the little girl Kokila. He would have either received the poem or was about to receive the same, and at that moment the hideous battery switch was clawed by the assassin herself. Suddenly the pawn bomb got herself blown up as the incendiary device exploded with a deadening sound. All human lives within a certain radius were smashed to shreds. The head of a female, without its torso, was seen flinging up in the air and rolling down. In a twinkle, 18 human lives were turned into fragments of flesh among which was included the former Prime Minister of India Rajiv Gandhi and his personal security men, besides Dhanu and Haribabu. Many others who sustained injuries in the explosion, however, survived.
29. Thus the conspirators perpetrated their prime target achievement at 10.19 p.m. on 21-5-1991 at Sriperumbudur in Tamil Nadu.
30. After hearing the sound of explosion Nalini (A-1) and Suba ran across and reached the statue of Indira Gandhi. Sivarasan joined them without delay. He confirmed to them that Rajiv Gandhi was killed and conveyed that their comrade Haribabu was also killed in the blast. Then they proceeded to a nearby house, took water therefrom and then escaped in an auto-rickshaw. They reached the house of Jayakumar (A-10).
31. Sivarasan transmitted wireless message to the LTTE supremo in Sri Lanka regarding the killing of Rajiv Gandhi. Pottu Omman, the Chief of Intelligence of LTTE confirmed receipt of the message and in reply sent certain queries.
32. The next phase of activities of the conspirators consisted of attempts to abscond, to screen the offenders and to destroy the evidence regarding the conspiracy.
33. On 24-5-1991 the newspapers published a photograph of Dhanu holding a garland in her hand at Sriperumbudur in the company of a few other females waiting for the arrival of Rajiv Gandhi. On seeing it Pottu Omman sent a wireless query to Sivarasan whether Dhanu was identifiable in the photo. Sivarasan, Suba, Nalini (A-1), her husband Murugan (A-3) and her mother Padma (A-21) proceeded to Tirupathi to offer thanksgiving worship to the Lord, and they returned to Madras on the next day. Sivarasan thereafter moved from place to place and Suba was shifted to different houses.
34. In the first week of June 1991, Sivarasan felt that he was within the penumbra of suspicion of the police. Thereupon he entrusted the remaining work to be carried out to Murugan (A-3). Though Sivarasan advised Nalini to escape to Sri Lanka she did not do so for practical reasons known to her. She and her husband Murugan (A-3) again proceeded to Tirupati on 9-6-1991 incognito. Murugan got his head tonsured by way of redeeming a vow.
35. By the middle of June, photographs of Nalini (A-1) and Suba appeared in the newspapers. Sivarasan kept Pottu Omman informed of the developments in India through wireless transmissions.
36. On 11-6-1991 Bhagyanathan (A-20) and Padma (A-21) were arrested by the police. Three days later Nalini (A-1) and Murugan (A-3) were arrested. The said development was communicated by Sivarasan to LTTE Headquarters at Sri Lanka and thereafter he, in the company of Suba and Dhanasekaran (A-23), Rangan (A-24) and Vicky (A-25) and one LTTE activist by the name of Nehru skulked to Bangalore and concealed themselves in a house at Indira Nagar. Irumborai (A-19) was already accommodated in that house. On 16-8-1991 they shifted to another house situated at Konanakunte in Bangalore.
37. The police got some scent regarding the above hideout and they rushed to that place. But by the time the police could trace them out, Sivarasan, Suba, Nehru and Amman and the other LTTE activists, who too were hiding in the same house, ended their lives by committing suicide. The remaining accused were arrested on different days at different places.
38. On completion of the investigation the CBI laid charge-sheets against all the 26 appellants besides Veluppillai Prabhakaran (the supremo of LTTE), Pottu Omman (the Chief of Intelligence Wing of LTTE) and Akila (Deputy Chief of Intelligence) for various offences including the main offence under Section 302 read with Section 120-B and Sections 3 and 4 of TADA. In the charge-sheet names of 12 other persons were also mentioned as co-conspirators. Among them two had died on the spot (Dhanu and Haribabu) and the remaining 10 persons died subsequently. Their names are :

(1) Sivarasan @ Raghuvaran (2) Suba @ Nitya @ Mallika (3) Nehru @ Nero (4) Suresh Master (5) Amman @ Gangai Kumar (6) Driver Anna @ Keerthy (7) Jamuna @ Jamila (8) Shanmugham (9) Trichy Santhan @ Gundu Santhan (10) Dixon.

39. All steps taken to apprehend three of the main accused (1) Veluppillai Prabhakaran, (2) Pottu Omman, and (3) Akila did not succeed and hence they were proclaimed as absconding offenders. The remaining 26 persons (who are appellants before us) were charged for offences under Section 302 and Sections 326, 201, 212 and 316 read with Section 120-B of IPC; Section 3 sub-section either (2) or (3) or (4) of TADA. Ravichandran (A-16) and Suseendran (A-17) were, in addition, charged under Section 5 of TADA. Less serious offences under certain provisions of the Explosive Substances Act, 1908, Arms Act, 1959, Passport Act, 1967, Foreigners Act, 1946 and Wireless Telegraphy Act, 1933 were indicted on a few accused. (It is not necessary to pinpoint the different offences mentioned in the charge-sheet against each accused as the same shall be referred to when we consider the liability of each accused.)
40. The Special Judge, after a marathon trial, convicted all the 26 accused of all the main offences charged against each of them. He sentenced all of them to the extreme penalty under law (i.e. death) for the principal offence under Section 302 read with Section 120-B IPC. In addition thereto A-1 was again sentenced to death under Section 3(1)(ii) of TADA. Ravichandran (A-16) and Suseendran (A-17) were further convicted under Section 5 of TADA and were sentenced to imprisonment for life. For other offences of which the accused were convicted the trial court awarded sentences of lesser terms of imprisonment.
41. Before we proceed to discuss the evidence relating to the main offence under Section 302 read with Section 120-B of IPC it would be advantageous to consider whether prosecution could sustain offences under TADA (except the offence under Section 5 thereof which was fastened only against Ravichandran (A-16) and Suseendran (A-17) as that can be dealt with separately].
42. To constitute any offence under sub-section (2) or sub-section (3) of Section 3 of TADA the accused should have either committed a terrorist act or have done something concerning a terrorist act which is the sine qua non for convicting the accused under either of the sub-sections. If terrorist act is absent in the perpetration of any crime it may still amount to certain offences under the ordinary law for which there is procedure and penalty already prescribed by law. But if any such crime should be dealt with under TADA it must be interlinked with "terrorist act" as defined thereunder.
43. "Terrorist act" is defined in Section 2(1)(h) of TADA by giving "the meaning assigned to it in sub-section (1) of Section 3" and the expression "terrorist" is mandated to be construed accordingly. It is therefore necessary to look at Section 3(1) more closely. We may extract the first three sub-sections of Section 3 :
"3. (1) Whoever with intent to overawe the Government as by law established or to strike terror in people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.
(2) Whoever commits a terrorist act, shall, -
(i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine;
(ii) in any other case, 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.
(3) 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 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."
44. A reading of the first sub-section shows that the person who does any act by using any of the substances enumerated in the sub-section in any such manner as are specified in the sub-section, cannot be said to commit a terrorist act unless the act is done "with intent" to do any of the four things :
(1) to overawe the Government as by law established; or
(2) to strike terror in people or any section of the people; or
(3) to alienate any section of the people; or
(4) to adversely affect the harmony amongst different sections of the people.
45. When the law requires that the act should have been done "with intent" to cause any of the above four effects such requirement would be satisfied only if the dominant intention of the doer is to cause the aforesaid effect. It is not enough that the act resulted in any of the four consequences.
46. It must be recapitulated now that the constitutional validity of Section 3 of TADA was challenged in this Court and a five-Judge Bench has upheld the provisions in Kartar Singh v. State of Punjab ((1994) 3 SCC 569 : 1994 SCC (Cri) 899) by striking a note of caution that since the provisions of TADA tend to be very harsh and drastic containing stringent provisions they must be strictly construed. The Bench approved the observations made by Ahmadi, J. (as the learned Chief Justice then was) in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya ((1990) 4 SCC 76 : 1991 SCC (Cri) 47) : (SCC p. 86, para 8)
"Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law."
47. Dealing with the facts of that case where the accused was alleged to have killed one Raju and another Keshav for gaining supremacy in the underworld this Court has stated (at SCC p. 88, para 10) that
"a mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under Section 3(1) of the Act".
and then observed thus : (SCC p. 88, para 10)
"The consequence of such violence is bound to cause panic and fear but the intention of committing the crime cannot be said to be to strike terror in the people or any section of the people."
48. A two-Judge Bench of this Court has considered the distinction between the act done with the requisite intent and another act which had only ensued such consequences. In Hitendra Vishnu Thakur v. State of Maharashtra ((1994) 4 SCC 602 : 1994 SCC (Cri) 1087) Dr. Anand, J. (as the learned Chief Justice then was) has stated thus : (SCC p. 621, para 11)
"Thus, unless the act complained of falls strictly within the letter and spirit of Section 3(1) of TADA and is committed with the intention as envisaged by that section by means of the weapons etc. as are enumerated therein with the motive as postulated thereby, an accused cannot be tried or convicted for an offence under Section 3(1) of TADA."
The further reasoning contained in the judgment is the following : (SCC p. 621, para 11)
"Likewise, if it is only as a consequence of the criminal act that fear, terror or/and panic is caused but the intention of committing the particular crime cannot be said to be the one strictly envisaged by Section 3(1), it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create that result, would attract the provisions of Section 3(1) of TADA. Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the section, the offence would not attract Section 3(1) of TADA."
The Bench on the aforesaid reasoning concluded thus : (SCC pp. 623-24, para 15)
"15. Thus, the true ambit and scope of Section 3(1) is that no conviction under Section 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by Section 3(1) by means of the weapons etc. as enumerated in the section and was committed with the motive as postulated by the said section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by Section 3(1) to achieve the objective as envisaged by the section, an accused should not be convicted for an offence under Section 3(1) of TADA."
49. Two other decisions rendered by a two-Judge Bench of this Court were cited before us. In Girdhari Parmanand Vadhava v. State of Maharashtra ((1996) 11 SCC 179 : 1996 SCC (Cri) 159) it has been pointed out that the intention of the wrongdoer can be inferred from the circumstances. After referring to the case-law i.e. Hitendra Vishnu Thakur (Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087) the Bench had held that : (SCC p. 194, para 39)
"Terrorist activity is not confined to unlawful activity or crime committed against an individual or individuals but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and tranquillity, social and communal harmony, disturbing or destabilising public administration and threatening security and integrity of the country. In the instant case, the intention to strike terror in the minds of the people can be reasonably inferred because Birju declared such intention in no uncertain terms by indicating that Vaibhav should be killed in order to send the message to the people in the locality that if the demand of Birju and his associates was not met, extreme consequence of killing of an innocent person would be resorted to."
50. In Mohd. Iqbal M. Shaikh v. State of Maharashtra ((1998) 4 SCC 494 : 1998 SCC (Cri) 1064) the same combination of learned Judges reiterated the principle by reference to Hitendra Vishnu Thakur (Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087) and inferred from the facts of the case that the offence fell under Section 3 of TADA.
51. Thus the legal position remains unaltered that the crucial postulate for judging whether the offence is a terrorist act failing under TADA or not is whether it was done with the intent to overawe the Government as by law established or to strike terror in the people etc.
52. Learned Additional Solicitor General endeavoured to show that the intention of the conspirators was to overawe the Government of India. His contention was that the assassination of Rajiv Gandhi was a follow-up action for restraining the Government from proceeding with the implementation of the India-Sri Lanka Accord. In other words, the focus of the conspirators was the Government of India and Rajiv Gandhi was targeted to deter that focal point, according to learned Additional Solicitor General. This contention can be examined by a reference to the evidence in this case.
53. It is true, LTTE leaders were bitterly critical of "the India-Sri Lanka Accord" which was signed on 22-7-1987. Anyone who criticised the policy of a Government could not be dubbed as a terrorist unless he had done any of the acts enumerated with the object of deterring the Government from doing anything or to refrain from doing anything.
54. Veluppillai Prabhakaran addressed a meeting on 4-8-1987; the text of the speech was published which is marked in this case as Ext. 354. In the said speech he used strong language to criticise "the India-Sri Lanka Accord" and the manner in which it was made. But no word of hatred was expressed towards the Government of India though he aired his opposition towards the Sri Lankan Government which he described as "Sinhala racist Government". He also spoke bitterly against the Sri Lankan Tamil leaders who supported the Accord. About the Indian Government and its Prime Minister, the LTTE supremo said the following :
"The Indian Prime Minister offered me certain assurances. He offered a guarantee for the safety and protection of our people. I do have faith in the straightforwardness of the Indian Prime Minister and I do have faith in his assurances. We do believe that India will not allow the racist Sri Lankan State to take once again to the road of genocide against the Tamils. It is only out of this faith that we decided to hand over our weapons to the Indian Peace-Keeping Force."
55. It must be remembered that political changes which occurred in India thereafter had brought a new Government under the leadership of V. P. Singh as the Prime Minister in 1989. IPKF inducted into Sri Lanka was gradually withdrawn in a phased manner, which process was commenced during the Nine Ministership of Rajiv Gandhi himself and continued during the Prime Ministership of V. P. Singh. The attitude of LTTE towards the Government of India, during the aforesaid period, can be seen from what their own official publication Voice of Tigers had declared in its editorial column in the issue of the said journal dated 19-1-1990 (which is marked as Ext. 362). The editorial reads as follows :
"In the meantime, the defeat of Rajiv's Congress Party and the assumption to power of the National Front alliance under Vishwanath Pratap Singh has given rise to a sense of relief and hope to the people of Tamil Eelam. LTTE has already indicated to the new Indian Government its desire to improve and consolidate friendly ties with India. The new Indian leadership responded positively according to Mr Karunanidhi, the Tamil Nadu Chief Minister, the role and responsibility of mediating with the Tamil Tigers. LTTE representatives who had four rounds of talks with the Tamil Nadu Chief Minister in Madras are firmly convinced that the Tamil Nadu Government and the new Indian administration are favourably disposed to them and the V. P. Singh Government will act in the interests of the Tamil-speaking people by creating appropriate conditions for LTTE to come to political power in the North-Eastern Province."
56. The above editorial is a strong piece of material for showing that LTTE till then did not contemplate any action to overawe the Government of India. Of course the top layer of LTTE did not conceal their ire against Rajiv Gandhi who was then out of power.
57. In this context it is important to point out what Veluppillai Prabhakaran, who went underground in Sri Lanka and resurfaced on 1-4-1990 after a period of 32 months of disappearance, had said. (The news about his re-emergence was published in the newspaper - a copy of which has been marked as Ext. 363.) The LTTE supremo had told the newsmen then as follows :
"We are not against India or the Indian people but against the former leadership in India who is against the Tamil liberation struggle and LTTE."
58. Nothing else is proved in the case either from the utterances of the top brass of LTTE or from any writings edited by them that any one of them wanted to strike fear in the Government either of the Centre or of any State.
59. From the aforesaid circumstances it is difficult for us to conclude that the conspirators intended, at any time, to overawe the Government of India as by law established. Nor can we hold that the conspirators ever entertained an intention to strike terror in the people or any section thereof. The mere fact that their action resulted in the killing of 18 persons which would have struck great terror in the people of India has been projected as evidence that they intended to strike terror in the people. We have no doubt that the aftermath of the carnage at Sriperumbudur had bubbled up waves of shock and terror throughout India. But there is absolutely no evidence that any one of the conspirators ever desired the death of any Indian other than Rajiv Gandhi. Among the series of confessions made by a record number of accused in any single case, as in this case, not even one of them has stated that anybody had the desire or intention to murder one more person along with Rajiv Gandhi except perhaps the murderer herself. Of course they should have anticipated that in such a dastardly action more lives would be vulnerable to peril. But that is a different matter and we cannot attribute an intention to the conspirators to kill anyone other than Rajiv Gandhi and the contemporaneous destruction of the killer also.
60. Alternatively, even if Sivarasan and the top brass of LTTE knew that there was likelihood of more casualties that cannot be equated to a situation that they did it with an intention to strike terror in any section of the people.
61. In view of the paucity of materials to prove that the conspirators intended to overawe the Government of India or to strike terror in the people of India we are unable to sustain the conviction of offences under Section 3 of TADA.
62. The next endeavour is to see whether the conspirators did any "disruptive activities" so as to be caught in the dragnet of Section 4(1) of TADA. The sub-section reads thus :-
"4. (1) Whoever commits or conspires or attempts to commit or abets, advocates, advises, or knowingly facilitates the commission of, any disruptive activity or any act preparatory to a disruptive activity 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."
63. "Disruptive activity" is defined in sub-section (2). It is extracted below :
"4. (2) For the purposes of sub-section (1), 'disruptive activity' means any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, -
(i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or
(ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union."
64. An attempt was made to bring the case within the ambit of sub-section (3) of Section 4 of TADA on the strength of the assassination of Rajiv Gandhi and also on the strength of death of a number of police personnel at Sriperumbudur on the fateful night. Sub-section (3) reads thus :
"4. (3) Without prejudice to the generality of the provisions of sub-section (2), it is hereby declared that any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, which -
(a) advocates, advises, suggests or incites; or
(b) predicts, prophesies or pronounces or otherwise expresses, in such manner as to incite, advise, suggest or prompt,
the killing or the destruction of any person bound by oath under the Constitution to uphold the sovereignty and integrity of India or any public servant shall be deemed to be a disruptive activity within the meaning of this section."
65. The killing of a public servant or killing of any other person bound by oath would be an offence under the Indian Penal Code. But it must be noted that such killing, as such, is not a disruptive activity. Certain type of actions which preceded such killing alone is regarded as a disruptive activity through the legal fiction created by sub-section (3). Such actions include advocating, advising, suggesting, inciting, predicting, prophesying, pronouncing or prompting the killing of such persons.
66. In other words, all the preceding actions directed positively towards killing of such persons would amount to disruptive activity, but not the final result namely, the act of killing of such persons.
67. If there is any evidence, in this case, to show that any such preceding act was perpetrated by any of the appellants towards killing of any police officer who was killed at the place of occurrence, it would, no doubt, amount to disruptive activity. But there is no such evidence that any such activity was done for the purpose of killing any police personnel.
68. However, there is a plethora of evidence for establishing that all such preceding activities were done by many among the accused arrayed, for killing Rajiv Gandhi. But unfortunately Rajiv Gandhi was not then "a person bound by oath under the Constitution to uphold the sovereignty and integrity of India". Even the Lok Sabha stood dissolved months prior to this incident and hence it cannot be found that he was under an oath as a Member of Parliament.
69. The inevitable fallout of the above situation is that none of the conspirators can be caught in the dragnet of sub-section (3) of Section 4 of TADA.
70. What remains to be considered for Section 4(1) of TADA is whether any disruptive activity falling within the ambit of the definition in sub-section (2) has been established. The attempt which the prosecution has made in that regard is to show that the conspirators intended to disrupt the sovereignty of India. To support the said contention, our attention was drawn to the confessional statement of A-3 (Murugan), A-18 (Arivu) and the photographs proved as MOs 256 to 259 which were seized from the bag of A-3 (Murugan). The said items of evidence show that photos of Fort St. George, Madras (which houses the Government Secretariat of Tamil Nadu and the Legislative Assembly and Legislative Council), Police Headquarters, Central Jail within Vellore Fort etc. had been taken and despatched to the LTTE top brass of Sri Lanka.
71. It is too much a strain to enter a finding, on such evidence, that the above activities were unmistakably aimed at disrupting the sovereignty of India. The sketch of Vellore Fort (which houses the Central Jail) was drawn up, most probably, for planning some operation to rescue the prisoners (belonging to LTTE who had been interned therein). That of course would be an offence but not an activity which falls within the purview of Section 4 of TADA.
72. We are, therefore, unable to sustain the conviction of the appellants for offences under Section 3 or Section 4 of TADA.
73. Now we have to proceed to consider whether the prosecution has succeeded in establishing the remaining offences found against the appellants.
74. We may put on record the following concessions made by the learned counsel for all the appellants at the Bar :
(I) Prosecution has successfully established that Rajiv Gandhi was assassinated at 10.19 p.m. on 21-5-1991 at Sriperumbudur by a girl named Dhanu who became a human bomb and got herself exploded in the same event; and that altogether 18 persons, including the above two, died in the said explosion.
(II) There is an overwhelming evidence to show that the assassination of Rajiv Gandhi resulted from a conspiracy to finish him.
(III) It is also established by the prosecution beyond doubt that Sivarasan @ Raghuvaran who was a top brass of LTTE was one of the kingpins of the said conspiracy.
75. We may also record at this stage that the two points which are seriously disputed by the learned counsel for the appellants are the following :
(1) Assassination of Rajiv Gandhi was not the only focal point of the conspiracy.
(2) Appellants were participants in the conspiracy.
76. In other words, the defence contended that the conspiracy was made only to assassinate Rajiv Gandhi and that none of the appellants had participated in the conspiracy.
77. For deciding the aforesaid major area of dispute, the prosecution heavily relied on the statements allegedly made by a number of appellants and recorded purportedly under Section 15 of TADA. (Such statements will, hereinafter, be referred to, for convenience, as confessional statements of the accused.) Such confessional statements were recorded by the Superintendent of Police, CBI/SPG who was deputed in the Special Team of Investigation. Every one of such confessional statements has been signed by the person who is shown as the maker thereof. Such confessional statements consist of inculpatory admissions, narrations which are neither inculpatory nor exculpatory, and incriminating roles attributed to other co-accused. It was not disputed before us that all such confessional statements, if duly recorded, are admissible in evidence in view of Section 15 of TADA. It is necessary to extract that section which reads thus :
"15. Certain confessions made to police officers to be taken into consideration. - (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or soundtracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person (or co-accused, abettor or conspirator) for an offence under this Act or rules made thereunder.
(Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.)
(2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily."
78. Learned counsel for the defence made a bid to exclude the confessional statements from the purview of admissibility in this case on the premise that no offence under TADA could be found against any of the accused and hence the confessional statements would wiggle into the can (sic ken) of inadmissibility and consequently it cannot be used for offences outside TADA. To buttress up the said contention, learned counsel invited our attention to the following observations made by a two-Judge Bench of this Court in Bilal Ahmed Kaloo v. State of A.P. ((1997) 7 SCC 431 : 1997 SCC (Cri) 1094) : (SCC p. 434, para 5)
"5. While dealing with the offences of which the appellant was convicted there is no question of looking into the confessional statement attributed to him, much less relying on it since he was acquitted of all offences under TADA. Any confession made to a police officer is inadmissible in evidence as for these offences and hence it is fairly conceded that the said ban would not wane off in respect of offences under the Penal Code merely because the trial was held by the Designated Court for offences under TADA as well. Hence the case against him would stand or fall depending on the other evidence."
79. Shri Altaf Ahmed, learned Additional Solicitor General submitted that the above observations do not lay down the correct proposition of law and it requires reconsideration, more so because the two-Judge Bench did not advert to Section 12 of TADA. That apart, the Bench adopted that view partly because the counsel for the respondents in that case had conceded to the said position. We are inclined to consider the position afresh.
80. Section 12 of TADA enables the Designated Court to jointly try, at the same trial, any offence under TADA together with any other offence "with which the accused may be charged" as per the Code of Criminal Procedure. Sub-section (2) thereof empowers the Designated Court to convict the accused, in such a trial, of any offence "under any other law" if it is found by such Designated Court in such trial that the accused is found guilty of such offence. If the accused is acquitted of the offences under TADA in such a trial, but convicted of the offence under any other law, it does not mean that there was only a trial for such other offence under any other law.
81. Section 15 of TADA enables the confessional statement of an accused made to a police officer specified therein to become admissible "in the trial of such a person". It means, if there was a trial of any offence under TADA together with any other offence under any other law, the admissibility of the confessional statement would continue to hold good even if the accused is acquitted under TADA offences.
82. The aforesaid implications of Section 12 vis-a-vis Section 15 of TADA have not been adverted to in Bilal Ahmed case (Bilal Ahmed Kaloo v. State of A.P. (1997) 7 SCC 431 : 1997 SCC (Cri) 1094). Hence the observations therein (at SCC p. 434, para 5) that
"while dealing with the offences of which the appellant was convicted there is no question of looking into the confessional statement attributed to him, much less relying on it since he was acquitted of all offences under TADA"
cannot be followed by us. The correct position is that the confessional statement duly recorded under Section 15 of TADA would continue to remain admissible as for the other offences under any other law which too were tried along with TADA offences, no matter that the accused was acquitted of offences under TADA in that trial.
83. While it is not disputed that a duly recorded confessional statement is substantive evidence in a trial of offences under TADA as against the maker thereof, learned counsel for the defence contended that its use against the co-accused (who was tried in the same case) is only for a limited purpose, i.e., to be used for corroborating other evidence. In support of this contention, learned counsel relied on the decision of a two-Judge Bench of this Court in Kalpnath Rai v. State (Through CBI) ((1997) 8 SCC 732). The ratio of that decision, on this point, is that : (SCC p. 754, para 75)
"75. A confession made admissible under Section 15 of TADA can be used as against a co-accused only in the same manner and subject to the same conditions as stipulated in Section 30 of the Evidence Act."
84. Shri Altaf Ahmed, learned Additional Solicitor General pleaded for reconsideration of the aforesaid legal position adumbrated in the said decision and contended that the non obstante limb in Section 15(1) of TADA ("notwithstanding anything in the Code or the Indian Evidence Act") is a clear legislative indicator to permit a confession made by an accused against a co-accused to be used with the same force as it can be used against the confessor himself. He further contended that the position became clearer after the sub-section was amended by Act 43 of 1993.
85. We shall first examine whether the amendment as per Act 43 of 1993 has improved the position from the pre-amendment position. Before the amendment sub-section (1) of Section 15 read thus :
"15. Certain confessions made to police officers to be taken into consideration. - (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or soundtracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or rules made thereunder."
After the amendment in 1993 the sub-section reads in the present form (which has been extracted supra). The main changes in the sub-section, after the amendment, are addition of the words "or co-accused, abettor or conspirator", and insertion of a new proviso to the sub-section as :
"Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused."
86. In this case we may refer to another provision in TADA (Section 21) which also underwent much changes as per the same amending Act. That provision has a perceptible bearing on Section 15(1) of TADA. That provision, in specific terms, empowered the Designated Court to draw certain presumptions. Section 21(1), as it stood before the 1993 amendment, read thus :
"21. Presumption as to offences under Section 3. - (1) In a prosecution for an offence under sub-section (1) of Section 3, if it is proved -
(a) that the arms or explosives or any other substances specified in Section 3 were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature, were used in the commission of such offence; or
(b) that by the evidence of an expert the fingerprints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence; or
(c) that a confession has been made by a co-accused that the accused had committed the offence; or
(d) that the accused had made a confession of the offence to any person other than a police officer,
the Designated Court shall presume, unless the contrary is proved, that the accused had committed such offence."
87. Act 43 of 1993 has snipped out clause (c) which contained the words "that a confession has been made by a co-accused that the accused had committed the offence" and clause (d) which contained the words "that the accused had made a confession of the offence to any person other than a police officer" of Section 21(1).
88. No doubt, the amendment carried out in Section 15(1) and in Section 21(1) was in one package. It was done with a definite purpose. Before the amendment the Designated Court had a duty to presume that an accused had committed the offence if his co-accused had, in a confession, involved the former. The words "shall presume" in Section 21(1) denoted that it was the duty of the court to draw such presumption. (See Section 4 of the Evidence Act.)
89. This means the court should have treated the confession of one accused as against a co-accused to be substantive evidence against the latter, and in the absence of proof to the contrary, the Designated Court would have full power to base a conviction of the co-accused upon the confession made by another accused.
90. But the amendment of 1993 has completely wiped out the said presumption against a co-accused from the statute-book. In other words, after the amendment a Designated Court could not do what it could have done before the amendment with the confession of one accused against a co-accused. Parliament has taken away such empowerment. Then what is it that Parliament did by adding the words in Section 15(1) and by inserting the proviso ? After the amendment the Designated Court could use the confession of one accused against another accused only if two conditions are fulfilled :
(1) The co-accused should have been charged in the same case along with the confessor.
(2) He should have been tried together with the confessor in the same case.
Before amendment the Designated Court had no such restriction as the confession of an accused could have been used against a co-accused whether or not the latter was charged or tried together with the confessor.
91. Thus the amendment in 1993 was a clear climbing down from a draconian legislative fiat which was in the field of operation prior to the amendment insofar as the use of one confession against another accused was concerned. The contention that the amendment in 1993 was intended to make the position more rigorous as for a co-accused is, therefore, untenable.
92. While considering the effect of the non obstante limb we can see that Section 15(1) of TADA was given protection from any contrary provision in the Evidence Act, 1872. But what is it that Parliament did through Section 15(1) regarding a confession made to a police officer ? It has only made such confession "admissible" in the trial of such person or the co-accused etc.
93. There are provisions in the Indian Evidence Act which prohibited admissibility of certain confessions, e.g. Section 25 of the Evidence Act prohibited proving any confession made by an accused to a police officer. Section 26 prohibited proving any confession made by an accused to any person while that accused was in the custody of police. Section 27 permitted only a very limited part of the information supplied by the accused to a police officer, whether it amounts to a confession or not.
94. What Section 15(1) of TADA has done was to remove the said ban against admissibility of confessions made to a police officer and bring it on a par with any other admissible confessions under the Evidence Act. A confession made to a magistrate is admissible under the Evidence Act, and a confession made by an accused to any person other than a police officer, if the accused was not in police custody, is also admissible under the Evidence Act.
95. The upshot of the above discussion is that the effect of the non obstante clause, when read with the words "shall be admissible in the trial of such person or a co-accused or abettor or conspirator" would only mean that the confession made to a police officer under Section 15(1) shall also become a confession like other admissible confessions under the Evidence Act. But it was not even in the legislative contemplation of Parliament to elevate a confession made to a police officer to a status even higher than a judicial confession recorded by a magistrate.
96. What is the evidentiary value of a confession made by one accused as against another accused apart from Section 30 of the Evidence Act ? While considering that aspect we have to bear in mind that any confession, when it is sought to be used against another, has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used.
97. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a co-accused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because. Section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only Section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by another statute. So, if Section 30 of the Evidence Act is also to be excluded by virtue of the non obstante clause contained in Section 15(1) of TADA, under what provision can a confession of one accused be used against another co-accused at all ? It must be remembered that Section 15(1) of TADA does not say that a confession can be used against a co-accused. It only says that a confession would be admissible in a trial of not only the maker thereof but a co-accused, abettor or conspirator tried in the same case.
98. Sir John Beaumont speaking for five Law Lords of the Privy Council in Bhuboni Sahu v. R. (AIR 1949 PC 257 : 50 Cri LJ 872) had made the following observations :
"Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of 'evidence' contained in Section 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence."
99. The above observations had since been treated as the approved and established position regarding confession vis-a-vis another co-accused. Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P. (AIR 1952 SC 159 : 1952 SCR 526) had reiterated the same principle after quoting the aforesaid observations. A Constitution Bench of this Court has followed it in Haricharan Kurmi v. State of Bihar (AIR 1964 SC 1184 : (1964) 6 SCR 623). Gajendragadkar, J. (as he then was) has stated the legal principle thus :
"The point of significance is that when the court deals with the evidence by an accomplice, the court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under Section 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars.
The statements contained in the confessions of the co-accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused person, the court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. The difference in the approach which the court has to adopt in dealing with these two types of evidence is thus clear, well understood and well established."
Thus the established position which gained ground for a very long time is that while a confession is substantive evidence against its maker it cannot be used as substantive evidence against another person even if the latter is a co-accused, but it can be used as a piece of corroborative material to support other substantive evidence. The non obstante words in Section 15(1) of TADA are not intended to make it substantive evidence against the non-maker, particularly after amendments were brought about in the sub-section through Act 43 of 1993.
100. Having set the legal position thus, we have now to consider the legal evidence to see whether prosecution has proved the disputed points.
101. The prime aim of the conspiracy, in this case, was to assassinate Rajiv Gandhi. The stand of the prosecution is that the Sri Lanka-India Accord (signed on 22-7-1987) was resented against by the LTTE top brass for reasons more than one. The acrimony was further fomented up with the LTTE repressives heaped up by IPKF. The editorials published in the Voice of Tigers (the main publication of LTTE) and the articles reproduced in the compilation made under the nomenclature Satanic Force were replete with vituperative epithets expressed by LTTE activists against the said Accord and the actions which IPKF did against them. Rajiv Gandhi was not spared from the vitriolic onslaughts made through such publications. PW 75 (Basant Kumar) said that he was assigned with the work of preparing Satanic Force by LTTE top brass Veluppillai Prabhakaran, Pottu Omman and another person called Balasingam, containing strong criticism against IPKF and Rajiv Gandhi. PW 75 (Basant Kumar) accepted the work on a payment of Rs. 2000 per month.
102. We have pointed out earlier that LTTE was very much concerned about the general elections to the Lok Sabha in the year 1991. They felt that if Rajiv Gandhi came back to power, IPKF would again go to Sri Lanka which meant lot more atrocities being heaped upon LTTEs and the goal "Tamil Eelam" would again elude them like a mirage.
103. In all probabilities a criminal intent to kill Rajiv Gandhi would have sprouted in the minds of LTTE top brass at the aforementioned stage. There is not even a speck of doubt in our minds that the criminal conspiracy to murder Rajiv Gandhi was hatched by at least 4 persons comprising of Veluppillai Prabhakaran, Pottu Omman, Sivarasan and Akila. It could have been the scheme of the conspirators to enlist more persons in the field for the successful implementation of their targets.
104. We have no doubt from the circumstantial evidence in this case that Dhanu, the girl who transformed herself into a human bomb, and her friend Suba were unflinchingly committed commandos of LTTE and they were also brought into the conspiracy ring by the top brass of LTTE. Circumstances proved in this case regarding the aforesaid core points are too many. However, we are spared from the task of enumerating all such circumstances as learned counsel for the accused have fairly conceded about the sufficiency of circumstances which have been proved in this case to establish the aforesaid points.
105. Learned counsel for the appellants have focussed their attack on the indictment against individual accused. They endeavoured to show that none of the appellants was involved in the criminal conspiracy to assassinate Rajiv Gandhi. Hence that is the most disputed point in this case.
106. Before proceeding to discuss the evidence, we have to deal with yet another legal point canvassed by Shri Altaf Ahmed, learned Additional Solicitor General regarding the amplitude of Section 10 of the Evidence Act. Such a decision is necessary to decide what exactly is the evidence of conspiracy. Learned Additional Solicitor General contended that the width of the provision is so large as to render any statement made by a conspirator as substantive evidence if it has succeeded in conforming with the other conditions of the section. Such a contention became necessary for him to bring the confessional statement of one conspirator against another conspirator as substantive evidence if there is any legal hurdle in doing so under Section 15 of TADA, as we have already found that confession of one accused is not substantive evidence against another though it can be used for corroborative value. Section 10 of the Evidence Act can, in this context, be extracted below :
"10. Things said or done by conspirator in reference to common design. - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
107. The first condition which is almost the opening lock of that provision is the existence of "reasonable ground to believe" that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "in reference to their common intention". Under the corresponding provision in the English law the expression used is "in furtherance of the common object". No doubt, the words "in reference to their common intention" are wider than the words used in English law (vide Sardar Sardul Singh Caveeshar v. State of Maharashtra (AIR 1965 SC 682 : (1964) 2 SCR 378 sub nom Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra).
108. But the contention that any statement of a conspirator, whatever be the extent of time, would gain admissibility under Section 10 if it was made "in reference" to the common intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlies in Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10.
109. Way back in 1940, the Privy Council had considered this aspect and Lord Wright, speaking for Viscount Maugham and Sir George Rankin in Mirza Akbar v. King-Emperor (AIR 1940 PC 176 : 41 Cri LJ 871) had stated the legal position thus : (AIR Headnote)
"The words 'common intention' signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party."
110. In Sardul Singh Caveeshar v. State of Bombay (AIR 1957 SC 747 : 1958 SCR 161) a three-Judge Bench has reiterated that the rule of agency is the founding principle of Section 10 of the Evidence Act. A two-Judge Bench of this Court in State of Gujarat v. Mohd. Atik ((1998) 4 SCC 351 : 1998 SCC (Cri) 936) has followed the said position and held thus : (SCC p. 356, para 14)
"It is well-nigh settled that Section 10 of the Evidence Act is founded on the principle of law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so, once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made 'in reference to their common intention'."
111. Whether a particular accused had ceased to be a conspirator or not, at any point of time, is a matter which can be decided on the facts of that particular case. Normally a conspirator's connection with the conspiracy would get snapped after he is nabbed by the police and kept in their custody because he would thereby cease to be the agent of the other conspirators. Of course we are not unmindful of rare cases in which a conspirator would continue to confabulate with the other conspirators and persist with the conspiracy even after his arrest. That is precisely the reason why we said that it may not be possible to lay down a proposition of law that one conspirator's connection with the conspiracy would necessarily be cut off with his arrest.
112. In this case, prosecution could not establish that the accused who were arrested continued to conspire with those conspirators remaining outside. Prosecution cannot contend that the confession made by one accused in this case can be substantive evidence against another accused under Section 10 of the Evidence Act. At any rate we cannot uphold the contention that confessions made by an accused can be used as substantive evidence against another co-accused on the principle enunciated in Section 10 of the Evidence Act.
113. The conclusion on the above score is that confessional statement made by an accused after his arrest, if admissible and reliable, can be used against a confessor as substantive evidence, but its use against the other co-accused would be limited only for the purpose of corroboration of other evidence.
The case against A-1 (Nalini)
114. A-1 (Nalini) is the sole surviving conspirator who participated in the assassination, if the prosecution case is correct. The principal item of evidence available in this case is her own confessional statement (Ext. P-77) recorded on 9-8-1991. (She was arrested on 14-6-1991). She was aged 27 during the relevant period and has passed MA degree. She is the daughter of another co-accused (A-21 Padma) and sister of yet another co-accused (A-20 Bhagyanathan). She had fallen in love with one Murugan (who is Accused 3) during the period of conspiracy and it is claimed that their marriage was solemnised on 21-4-1991 (within 9 months thereof she gave birth to a female child). She was working as Private Secretary to the Managing Director of a private company - M/s. Anabante Silicons.
115. The evidence in this case shows that A-1 (Nalini), much before her marriage, quarrelled with her mother and brother and shifted her residence to No. 11, High Court Colony, Villiwakkam, Madras. It was during the said time that A-3 (Murugan) got acquainted with her and gradually the familiarity grew into a love affair between them. A-3 (Murugan) was a committed LTTE member. In April 1991, A-1 (Nalini) came into contact with Sivarasan.
116. Ext. P-77 confessional statement contains the following facts as to have been stated by A-1 (Nalini) : when she was contemplating the idea of vacating the house at Villiwakkam she was dissuaded from doing so by A-3 (Murugan) as Sivarasan was expected to bring two girls from Sri Lanka. On 2-5-1991 Sivarasan brought those two girls (Suba and Dhanu) to her house. Her mind-changing process started thereafter as Murugan, Suba and Dhanu narrated various acts of atrocities which IPKF heaped on LTTE followers in Sri Lanka. Suba told Nalini of a horrendous story of how 7 little girls were raped and killed by the soldiers of IPKF. She was made to believe that Rajiv Gandhi was the person responsible for all such atrocities. She developed a vengeful attitude towards Rajiv Gandhi and she too agreed to retaliate. She realised that the two girls were brought for the purpose of carrying out a very dangerous retaliatory step. Sivarasan had told Nalini to play the role of a chaperone to Suba and Dhanu wherever they went.
117. In Ext. P-77, A-1 (Nalini) is alleged to have further stated that on 7-5-1991 she took Suba and Dhanu under the instructions of Sivarasan to Nandanam (Madras) where V. P. Singh (a former Prime Minister) was addressing a meeting. Suba and Dhanu tried to garland V. P. Singh. Later Sivarasan scolded A-1 (Nalini) for not taking the girls to the rostrum. It was then that Nalini realised as to how the murder was planned to be perpetrated.
118. In the confessional statement A-1 (Nalini) is alleged to have stated that on 11-5-1991 she chaperoned Suba and Dhanu to a ready-made garments' shop at Puruswakkom (Madras) and bought a chooridar suit (orange and green coloured) and a dupatta. On 17-5-1991, Sivarasan told her of Rajiv Gandhi's Tamil Nadu programme and asked her to attend one of the meetings. She confessed in her statement (Ext. P-77) that by then it was certain for her that Rajiv Gandhi was going to be killed. Sivarasan collected the details of the topography of Sriperumbudur from her and warned her not to divulge the contents of that conversation to anyone else. She was instructed to take leave from her office on 21-5-1991 under some false pretext.
119. She had narrated in the confessional statement the events which happened on the day of the assassination and also on its preceding day. According to her, Sivarasan met her on 20-5-1991 at 6.00 p.m. and told her that the venue of the meeting was at Sriperumbudur and she should take half day's casual leave and not more and that she should make herself available in the house at 3.00 p.m. on the next day for being picked up for escorting Suba and Dhanu. On 21-5-1991 Nalini took half day's leave and she went to her mother's house at Royapettah (Madras) where A-3 (Murugan) was waiting who told her to hurry up test Sivarasan would be annoyed. So she reached her house at about 3.00 p.m. A little while thereafter Sivarasan reached the same house with Suba and Dhanu. According to her, Dhanu was then wearing an orange and green coloured chooridar and was hiding something in her dress. Suba told Nalini that Dhanu was going to create history by murdering Rajiv Gandhi. At 4.00 p.m. Nalini took Suba and Dhanu to the bus-stop. On the way Haribabu also joined them. He had a garland with him.
120. It is further stated in Ext. P-77 that A-1 (Nalini) along with Suba, Dhanu, Haribabu and Sivarasan reached the place of occurrence at 7.30 p.m. They stopped at the spot where there was a statue of Indira Gandhi. Sivarasan gave instructions to A-1 (Nalini) about the role to be performed by her just before and after the murder, if successful. Following the said instructions, she along with Suba ran across Indira Gandhi's statue and waited for Sivarasan. Within a few minutes Sivarasan rushed to them and said that Rajiv Gandhi and Dhanu had died and Haribabu had also died. Sivarasan gave Nalini a pistol which she handed over to Suba. They hurriedly left the place and on the way got some water to drink from a roadside house and then they went in an auto-rickshaw and reached Kodungaiyur at 1.30 a.m. in the night.
121. The rest of the confessional statement (in Ext. P-77) relates to the hectic movements made by her in association with the other accused. It is further recorded therein that on 13-6-1991, A-1 (Nalini) and A-3 (Murugan) went to Davangere (in Karnataka) and stayed in the house of Shashikala (PW 132). A-1 (Nalini) told Shashikala of what all happened regarding Rajiv Gandhi's assassination.
122. The above were the statements said to have been made by A-1 (Nalini) in Ext. P-77. The Designated Court acted on the said confessional statement as valid and proved and reliable.
123. A threefold attack was made against Ext. P-77 by Shri N. Natarajan, learned Senior Counsel for the accused. First is that the confession was not signed as provided in Rule 15 of the TADA Rules, 1987. Second is that it was not certified as required by the rules. Third is that the confession was extracted by coercive methods and is therefore unreliable.
124. Rule 15(3) says that the confession shall be signed by its maker and also the police officer who recorded it. Further, the police officer shall
"certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person".
125. Ext. P-77 was recorded in as many as 18 pages. All the first 16 pages contain the signatures of A-1 (Nalini) but the last two pages don't have the signatures. The requirement that a confessional statement shall be signed by the maker has been substantially complied with despite the slip in obtaining the signatures in the last two pages. According to PW 52 - the Superintendent of Police who recorded it - the said slip was an inadvertent omission. But that omission does not mean that the confession was not signed by her at all. The certificate which is required by Rule 15(3) has also been made at the foot of Ext. P-77, but that happened to be made on one of the two pages where the signature of A-1 is absent.
126. On the facts we are not persuaded to uphold the contention that Rule 15(3) has not been complied with. That apart, even if there was such an omission the question is whether it would have injured the accused in her defence. Section 463 of the Code permits such an approach to be made in regard to the omissions in recording the confession under Section 164 of the Code. That approach can be adopted in respect of the confession recorded under Section 15 of TADA as well. The resultant position is that the said omission need not be countenanced since it was not shown that the omission has caused any harm to the accused.
127. The contention that the confession was extracted by coercive methods is not supported by any material. We may point out that when A-1 (Nalini) was produced before the Judicial Magistrate soon after recording the confession she did not even express any complaint regarding the conduct of any personnel of the Special Investigation Team. Ext. P-77 had, in fact, reached the Judicial Magistrate on the next day itself and thereafter it was kept under sealed cover.
128. The confessional statement of A-1 (Nalini) in Ext. P-77, according to Shri Altaf Ahmed, learned Additional Solicitor General is corroborated by other substantive evidence and also by the confessional statements made by a number of other accused in this case. PW 132 (Shashikala) who is a teacher said that she got acquainted with A-1 in 1990 and A-1 visited her in the school when she was teaching, on 13-6-1991. Then A-3 (Murugan) was also with her. A-1 (Nalini) introduced A-3 (Murugan) as her brother by the name of Das. PW 132 further stated that when they (three persons) went to her house A-1 told her that her husband, a Sri Lankan citizen, had brought two girls to Madras. PW 132 has also stated in her evidence that Nalini told her that it was she who took those girls to the meeting place at Sriperumbudur where Rajiv Gandhi came and in the incident which happened there, one of the girls died. PW 132, on hearing the said news, became frightened. Then both A-1 and A-3 implored her not to disclose it to anybody else.
129. The aforesaid evidence of PW 132 - a teacher, was fully believed by the trial Judge. We have no reason to take a different view on that evidence. Its corroborative value is unassailable because A-1 herself admitted in her confessional statement that she made such a disclosure to PW 132.
130. Another item of corroborative evidence is MO 144 video cassette. (It was viewed on video in the trial court as well as by us in the Supreme Court.) It was the video cassette of the meeting held at Nandanam (Madras) in the early hours of 18-5-1991 which was addressed by V. P. Singh. PW 93 (Suyambu) said in his evidence that he attended the said meeting. When he was shown the video cassette replayed in the Court he identified Sivarasan who was sitting at the meeting place, just left to the said witness. It was videographed by PW 81 (Manivanam) as instructed by PW 77 (Ganani). PW 77 also identified Sivarasan in the video. We have noticed the presence of A-1 (Nalini) in the meeting when MO 144 was displayed in this Court, with the help of a photograph in which A-1's figure could be discerned by us and admitted by the defence counsel to be correct.
131. On the next day of the said meeting i.e. 9-5-1991, two letters were sent by Suba and Dhanu jointly to Sri Lanka, one to Pottu Omman and the other to Akila. They are Ext. P-96 and Ext. P-95 respectively. Prosecution has proved that they were the letters written by the aforesaid two girls. We do not deem it necessary to refer to all the materials made available to prove the authorship of those letters because they are no more.
132. In Ext. P-96, the girls wrote to Pottu Omman
"we are confident that we would be successful in completing the job for which we came as we expect a similar opportunity ....".
In Ext. P-95 they wrote to Akila like this :
"We are confident that the work for which we came would be finished promptly as we are expecting another appropriate opportunity ... It would be implemented during this month itself .... Every word which you (Akila) had said to us would remain in our mind till the last."
133. The aforesaid telling circumstances confirm the truth of what A-1 has divulged in Ext. P-77.
134. PW 179 (Gunathilal Soni) said in his evidence that he was the manager of a retail textile shop called "Queen Corner" at Puruswakkom and that on 11-5-1991, a chooridar (in orange and green colour) was sold to three ladies one of whom was A-1 (Nalini). From the photograph shown to the witness he identified the other lady as Dhanu. The cash book which he maintained was marked as Ext. P-899 and the copy of the bill for the said chooridar was marked as Ext. P-900.
135. It could be argued that it was not possible for any textile retail seller to identify the person who had purchased the goods only once. That may be so. But here PW 179 gave one reason for remembering A-1 (Nalini) and the girls - that they insisted on quick delivery of the stitched goods on the same day itself and then PW 179 took measurements of Dhanu. Within a few days the witness saw the photograph of Dhanu in newspapers wearing the chooridar of that colour. That apart, the investigating officer could trace out PW 179 only because A-1 (Nalini) told him of the place wherefrom the chooridar was purchased. That portion was admitted in evidence under Section 27 of the Evidence Act. The cumulative effect is that the testimony of PW 179 can be treated as true evidence. It is a highly corroborating material.
136. PW 96 (Sujaya Narayan) was an officer in M/s. Anabante Silicons Private Ltd. where A-1 (Nalini) was working as a Private Secretary to the Managing Director. He gave evidence that A-1 (Nalini) took half day's leave on 21-5-1991 saying that she wanted to go to Kanchipuram to purchase sarees and left office by 12 noon.
137. One of the most striking corroborative evidence for A-1's confession regarding her participation in the assassination scene of Rajiv Gandhi is the testimony of PW 32 (Anusuya). She is a woman Sub-Inspector who was deputed to do duty at the venue of the meeting to be addressed by Rajiv Gandhi at Sriperumbudur. She was one of the injured in the bomb blast. Nobody can dispute that she was on duty because she had come in the photo MO 33. It was taken just before the occurrence. Pointing out Dhanu in the photograph PW 32 (Anusuya) said in her evidence that she was found moving with two male persons at the scene of occurrence before the arrival of Rajiv Gandhi. One of them, on being questioned by PW 32, claimed to be a press photographer (it is with reference to Haribabu). The witness identified the other person as Sivarasan. PW 32 identified A-1 Nalini (who was present in the trial court) as one of the ladies who attended the meeting place. She identified A-1 from the photograph when MO 32 photograph was shown to her. There was no dispute about the genuineness of the abovesaid photograph. We have absolutely no reason to doubt the correctness of MO 32.
138. PW 215 (Samundeeswari) said in her evidence that she is a resident at Sriperumbudur and that on 21-5-1991, while she was standing outside her house at about 10.45 p.m. waiting for her son to return, she found two ladies and one male getting into her house and they asked for water to drink. She gave them water. The witness identified A-1 as one of the ladies and identified Sivarasan and Suba with the help of MO 105 photograph. The witness said that she had a dialogue with those visitors. After giving them water she asked them about Rajiv Gandhi's arrival and they replied to her that Rajiv Gandhi died even before reaching 7 feet away from the meeting place. The witness said that after drinking water the said three persons went towards Madras side. The significance of the evidence of PW 215 is that the investigating officer succeeded in discovering her house on the information supplied by A-1 (Nalini).
139. PW 183 is an equally important witness. He is an auto-rickshaw driver at Thiruvallur. He said in his evidence that he took some persons in his auto-rickshaw and dropped them at the place of the meeting to be addressed by Rajiv Gandhi. As he parked the vehicle a little away he overheard the announcement through a loudspeaker that Rajiv Gandhi was arriving, but within a short while a bomb blast took place and all were found running helter-skelter. He also escaped from the place riding his auto-rickshaw. According to him, on the way two ladies and one male got into his auto-rickshaw and he took them right up to Madras and dropped them at Teynampet. The witness identified A-1 (Nalini) as one of the ladies and the male who travelled in his auto-rickshaw as Sivarasan and the other lady as Suba. MO 183 and MO 105 photographs were shown to the witness to help him identify Sivarasan and Suba. He had sufficient opportunity to identify them as all of them were talking about many things in their long distant drive in the auto-rickshaw.
140. It is unnecessary to refer to the remaining evidence which the prosecution pointed out as further corroborating the confessional statements of A-1 (Nalini) in Ext. P-77, as we think that in view of the already large number of items of evidence the truth of the confession stands established.
141. From the above, we come to the conclusion that prosecution has succeeded in proving, beyond reasonable doubt, that A-1 (Nalini) was one of the conspirators and she participated in the act of assassination of Rajiv Gandhi by playing a very active role.
A-2 Santhan @ Raviraj
142. Santhan (A-2) is a Sri Lankan citizen. He was aged 22 during the relevant time. The evidence shows that he was a card-holder of the Intelligence Wing of LTTE. He studied up to 5th standard in a school at Jaffna. He came in contact with Sivarasan and they eventually became close to each other. In February 1988, Sivarasan suggested to him to continue his studies at Madras and LTTE would meet his expenses. Pursuant thereto he came to India in February 1990 and secured admission at Madras Institute of Engineering Technology. His educational expenses were met by LTTE. He was arrested in connection with Rajiv Gandhi murder case on 22-7-1991. His confessional statement was recorded on 17-9-1991 by the Superintendent of Police as per Section 15 of TADA. It is marked as Ext. P-104. The incriminating admissions contained in Ext. P-104 are the following :
Sivarasan persuaded A-2 (Santhan) to join him for liquidating one Padmnabha who was the leader of EPRLF which was considered to be a rival Organisation of Sri Lankan Tamils. A-2 (Santhan) accepted the assignment and began closely following the movements of Padmnabha and transmitted the information from time to time to Sivarasan. With the help of such information Sivarasan succeeded in getting Padmnabha gunned down on 19-6-1990 through some assassins. On the next day Sivarasan and A-2 (Santhan) left India and on arrival at Sri Lanka A-2 (Santhan) was profusely praised by Pottu Omman and Veluppillai Prabhakaran for the role he played in achieving the target of finishing Padmnabha.
143. By the last week of April 1991 Pottu Omman gave a directive to A-2 (Santhan) to proceed to Tamil Nadu in the group led by Sivarasan. On 1-5-1991 the group reached Kodingyoor in India. The said group consisted of Sivarasan, Suba, Dhanu, A-6 (Sivaruban) and Nehru etc. besides A-2 himself.
144. On the evening of 9-5-1991, Sivarasan took A-2 (Santhan) to Marina Beach, Madras and introduced him to photographer Haribabu (who died in the bomb explosion at Sriperumbudur), A-3 (Murugan) and A-18 (Arivu). In the night he was taken to the residence of A-10 (Jayakumar). On the next day he was taken to the house of photographer Haribabu where he (A-2) stayed for about a week. During this period Sivarasan gave Rs. 1000 to him for buying clothes.
145. On 15-5-1991, A-2 (Santhan) met a top LTTE leader called Kanthan and handed over to him a letter sent by Sivarasan. Kanthan entrusted A-2 with a sum of Rs. 5 lakhs to be handed over to Sivarasan. A-2 handed over the amount to Sivarasan in instalments as and when the latter asked for it. It was on 16-5-1991 that Sivarasan divulged to A-2 (Santhan) that Veluppillai Prabhakaran had great confidence in A-2 (Santhan) particularly after his performance in the murder of Padmnabha. Sivarasan also disclosed to him that Suba and Dhanu were brought for the purpose of assassinating Rajiv Gandhi.
146. Next day Sivarasan collected Rs. 10,000 from A-2 (Santhan) and on the succeeding day Sivarasan again collected another Rs. 10,000 out of the balance amount. Under Sivarasan's instructions A-2 (Santhan) gave Rs. 4000 to A-6 (Sivaruban). Next evening A-2 (Santhan) took A-6 (Sivaruban) to Marina Beach where Sivarasan was waiting.
147. On 21-5-1991, which was the day of the assassination of Rajiv Gandhi, A-2 (Santhan) met Sivarasan and saw the latter preparing himself. A pistol was concealed by him beneath his kurta and Sivarasan checked up with A-2 (Santhan) whether it was visible from outside. A-2 gave a nod that nothing was visible and then Sivarasan left the place. It was on the said night that Sivarasan told him that Rajiv Gandhi was murdered. He also said that Dhanu too had died. It was only on the next day that Sivarasan revealed to A-2 (Santhan) that Haribabu had also died. On 27-5-1991 Sivarasan moved to Madras and instructed A-2 (Santhan) to hand over Rs. 5000 to A-10 (Jayakumar). A-2 (Santhan) was moving from place to place thereafter and finally on 30-5-1991 he went to Sundara Lodge. PW 111 (Vijayendran) conveyed to A-2 a message from Sivarasan that the latter should meet him. Pursuant to that, A-2 (Santhan) met Sivarasan on the next day. By that time Sivarasan had removed his moustache.
148. Sivarasan told A-2 (Santhan) that thenceforth it was A-3 (Murugan) who would look after the work which Sivarasan was to continue in India. A-2 booked three bus tickets to Coimbatore in pseudonymous names.
149. On 7-6-1991 Sivarasan and Suba met A-2 (Santhan) and asked him to hand over a cover to A-3 (Murugan). A-2 (Santhan) learnt from A-3 (Murugan) that Sivarasan had instructed A-3 to murder one Chandrahasan. When A-3 (Murugan) asked A-2 (Santhan) as to the cause for which Chandrahasan was to be murdered A-2 (Santhan) replied that such a murder was planned for diverting the attention of CBI.
150. In the further portion of the confessional statement Ext. P-104, A-2 (Santhan) has narrated those occasions when he and Sivarasan met. Among them an important meeting was on 11-5-1991 at 7.00 p.m. They met at the house of A-5 (Vijayanandan).
151. Sivarasan wanted A-2 to keep his two bags and conceal the same at Kollivakkom. It was done so on the succeeding day itself. On 28-6-1991, Suresh Master (an LTTE leader) directed A-2 (Santhan) to shift A-8 (Athirai) to some other place to escape from the hands of the police. Pursuant thereto A-2 (Santhan) took A-8 (Athirai) to a house at Pammal and stayed there for a night. Next day A-2 (Santhan) handed over the wireless set to Suresh Master at the house of Vijayanandan.
152. The aforesaid are the prominent incriminating circumstances narrated in Ext. P-104. If the aforesaid confession is true it would be a justifiable inference that A-2 (Santhan) was very much involved in the conspiracy. The vivid details which Ext. P-104 contains would, in all probabilities, have been supplied by A-2 (Santhan) himself because he alone knew what all he did and where all he went and whom all he met.
153. Regarding the truth of the contents of Ext. P-104 we may verify whether it is corroborated by other evidence.
154. PW 120 (Sundarmani) is the father of photographer Haribabu. He said in his evidence that on 6-5-1991 his son Haribabu brought A-2 (Santhan) to his house and he stayed there for one week, for which Haribabu had to implore his mother because there was lack of space in the house and other female members of the family were also residing there. PW 111 (Vijayendran) is a cinema actor. He has a Doctorate from a US university. He deposed that Sivarasan came into contact with him pretending to be his admirer and on 8-5-1991 visited him along with A-2 (Santhan). Those items of evidence can be seen as details mentioned by A-2 (Santhan) in his confessional statement.
155. PW 285 (R. Sivaji) was a Superintendent of Police who arrested A-2 (Santhan). In his evidence it has come out that when A-2 (Santhan) was questioned, the police officer got the information regarding the place where 3 plastic bags and one cloth bag were kept. The particular portion of the statement, it was admitted in evidence, has been marked as P-1396. Those bags were actually given to A-2 (Santhan) by Sivarasan after returning from Tirupathi. Those articles were seized pursuant to the information for which Ext. P-1397 mahassar was drawn up. MO 1083 is a bag which was identified as containing the clothes and cosmetics and other materials belonging to Suba. MO 1129 is a bag which contained articles of Sivarasan including a diary maintained by him.
156. PW 62 (Vimla), a teacher by profession, narrated how she and her daughters were duped by Sivarasan when he brought Athirai (A-8) to their house under some false pretext without knowing that they were the persons involved in the assassination of Rajiv Gandhi. PW 62 (Vimla) was closely associated with A-8 (Athirai). PW 62 in her evidence said that A-2 (Santhan) was visiting A-8 (Athirai) and that once A-2 (Santhan) told the witness that CBI might perhaps search her house also. A-2 (Santhan) took A-8 (Athirai) away from the house of PW 62 (Vimla) on the direction of Sivarasan. We have absolutely no reason to disbelieve the evidence of PW 62. She said that the moment she came to know that those persons were suspected by the police in the Rajiv Gandhi murder case she screamed and implored to spare her and her daughters.
157. From the above corroborative items of evidence we are assured of the truth of the confession made by A-2 (Santhan) as recorded in Ext. P-104. We are hence of the view that prosecution has succeeded in proving that A-2 (Santhan) was also one of the conspirators in the Rajiv Gandhi assassination conspiracy.
A-3 Murugan @ Das 158.
Murugan was aged 21 at the time of the occurrence in this case. He belongs to Sri Lanka. He was a committed LTTE follower. After working for his organisation at Jaffna for a considerable period he was deputed by the LTTE top brass to India for carrying out "an important mission". He was arrested in connection with the Rajiv Gandhi murder case on 14-6-1991. Prosecution relies on the confessional statement said to have been given by him on 9-8-1991 to the Superintendent of Police. It is marked in this case as Ext. P-81.
159. In that confessional statement it is said that he joined the "Suicide Squad" of LTTE and came to India in January 1991. He was received by Sivarasan at Kodiakkarai. He got sketches of Fort St. George, Madras and Vellore Fort prepared under the instructions of his bosses in Sri Lanka. Photographer Haribabu went with him to Vellore Fort for that purpose and he got it photographed. Besides that, certain other government buildings were also photographed by the said Haribabu. It was A-3 (Murugan), according to his own confession, who persuaded A-1 (Nalini) to associate with LTTE work by giving her repeated narrations of atrocities committed by IPKF soldiers on LTTE members. He made Nalini become revengeful towards Rajiv Gandhi. He said that he had knowledge that Sivarasan and other top brass of LTTE were planning to murder an important personage of India. He knew it from the conversation he had had with Sivarasan.
160. In Ext. P-81, A-3 (Murugan) has further stated that Sivarasan told him to find a girt from India for garlanding Rajiv Gandhi at a public meeting. This happened during the last week of March 1991. Then he realised that Rajiv Gandhi was the target. He believed that Rajiv Gandhi was responsible for all the atrocities which IPKF committed in Sri Lanka. He said that it was in April 1991 that Sivarasan brought Suba and Dhanu to India. Then A-3 suggested that services of Nalini could be utilized for concealing the Sri Lankan identity of the girls. He further confessed that on 18-4-1991, he along with Nalini and Haribabu attended the public meeting which Rajiv Gandhi addressed at Marina Beach, Madras during which Haribabu took photos of Rajiv Gandhi and supplied the photos to him and Sivarasan.
161. He also confessed in Ext. P-81 that on 7-5-1991 he attended the public meeting at Madras addressed by V. P. Singh and that A-1 (Nalini), the two girls (Dhanu and Suba), Sivarasan and Haribabu were also with him then. He further confessed that the said function was attended by them for the purpose of conducting a trial as to how far the two girls would be able to go near the rostrum and garland the former Prime Minister. He mentioned in Ext. P-81 that Sivarasan scolded them for the failure to click the camera when the former Prime Minister was garlanded.
162. In Ext. P-81 he also referred to a letter written by Baby Subramaniam to Bhagyanathan (A-20) and two other letters written by Dhanu and Suba to Pottu Omman and Akfla (Ext. P-95 and Ext. P-96). A-3 (Murugan) further confessed in Ext. P-81 that on 20-5-1991 Sivarasan visited him and alerted him to be ready for the meeting to be addressed by Rajiv Gandhi the next day. On 21-5-1991, A-3 (Murugan) alerted A-1 (Nalini) to move fast and reminded her that Sivarasan, Suba and Dhanu might be waiting for her.
163. In the further portion of the confessional statement A-3 (Murugan) stated that Sivarasan expressed to him that he had accomplished his work though Haribabu and Dhanu had died in it. He stated further that on 25-5-1991 he along with A-1 (Nalini) and Suba accompanied Sivarasan to Tirupathi to visit the Temple of Lord Venkateshwara. During that trip Sivarasan told him that it was with the help of a belt bomb connected to two switches that Dhanu could explode the bomb and that it was Veluppillai Prabhakaran's decision to utilise the girls to retaliate against Rajiv Gandhi because IPKF atrocities were done mostly on women. He also confessed that on 7-6-1991 he himself, Sivarasan, Suba and A-2 (Santhan) met together at Astataka Temple and took a decision to go back to Sri Lanka.
164. In substance A-3 (Murugan) has admitted in Ext. P-81 that he rendered a lot of help in carrying out the target of conspiracy i.e. the assassination of Rajiv Gandhi, though he did not go to Sriperumbudur. Except for the general criticism made against the prosecution case that all confessions were extracted by coercive methods no specific criticism has been raised as against Ext. P-81. We have no reason to think that Ext. P-81 is tainted due to any reason whatsoever.
165. Nonetheless, we can act on Ext. P-81 only if we are assured by other corroborative evidence. Prosecution has placed reliance on the confession of A-1 (Nalini) to be used as a corroborative version. Learned counsel for the defence cautioned us that the version of one accomplice should not be used to corroborate the version of another accomplice. Be that as it may, we have come across several other items of evidence which are of great corroborative value.
166. PW 120 (Sundarmani) who is the father of photographer Haribabu, said in his evidence that on 20-5-1991 A-3 (Murugan) went to his house in search of Haribabu and as the latter was not available A-3 (Murugan) instructed the witness to inform Haribabu about the visit, and that no sooner than Haribabu was told about it he left the house.
167. Ext. P-521 is a forged press accreditation card in the name of A-3 (Murugan) containing his photo also. This was seized from the house which A-3 (Murugan) had taken on rent. Evidently it was a preparation to attend public meetings addressed by persons like the Prime Minister or a former Prime Minister.
168. After the arrest of A-3 (Murugan) PW 282 (Inspector of CBI) seized six baggages which were buried in a pit. The baggage contained, among other things, Ext. P-95 and Ext. P-96 (letters written by Suba and Dhanu to Pottu Omman and Akila after attending the meeting addressed by V. P. Singh on 17-5-1991). PW 86 (Mariappan) said in his evidence that he was staying in the house of one Shanmugham at Kodiakkarai opposite to which some Sri Lankan people were staying and A-3 (Murugan) was one among them. PW 86 stated that one day A-3 (Murugan) told him to hand over a box to the witness and asked him to keep it till he returned from Madras. After A-3 (Murugan) left he was asked by his master (Shanmugham's brother) to bury the box. It contained six items. He collected those six items and tied them together in a plastic bag and buried them. It must be remembered that PW 86 was pointed out by A-3 when the CBI Inspector (PW 282) questioned him after the arrest.
169. PW 233 (Bharathi) said that she was staying at Royapettah, Madras and in the same house another family consisting of A-20 (Bhagyanathan) and his mother A-21 (Padma) were residing. She said about the number of occasions when Sivarasan and A-3 (Murugan) frequented the house. She further said that she saw A-3 (Murugan), A-18 (Arivu) and A-20 (Bhagyanathan) in association with photographer Haribabu visiting the house and food was prepared for them. Sivarasan was also seen visiting them.
170. There is much evidence to prove that A-3 (Murugan) went to Tirupathi in the company of Sivarasan, Suba and Nalini on 25-5-1991. In this context we took into consideration that confession made by A-I (Nalini) in which she has narrated her association with A-3 (Murugan) and the places which they visited together. We have dealt with those aspects earlier.
171. With the above corroborative items of evidence we are confident in relying on the confessional statement of A-3 (Murugan), as recorded in Ext. P-81, to be a true version. The active and positive involvement of A-3 (Murugan) in the conspiracy for assassinating Rajiv Gandhi looms large in the said confession. We have therefore no doubt that A-3 was also one of the conspirators.
172. A-4 to A-8 can be considered at a stretch, among them A-7 and A-8 can be considered together. Unlike the earlier considered accused, A-4 to A-7 did not give any confessional statement to any person. Though A-8 gave a confessional statement his involvement, if at all any, in the conspiracy, cannot be seen different from that of A-7. So the first effort is to find out whether there is any circumstance or other evidence to prove the complicity of any one of those accused. Of course the trial court found all of them to be members of the conspiracy and convicted them of it.
A-4 Shankar
173. A-4 (Shankar) has two other names, one is Koneswaran and the other is Russo. The circumstances unfurled in evidence as against him are these :
(1) He was a full-fledged LTTE member and came to India on 1-5-1991 in the group of 9 persons including Sivarasan, Suba and Dhanu.
(2) Ext. P-1062 (a sheet of paper) shows that A-4 (Shankar) would have met A-3 (Murugan) at Kodiakkarai and then the phone number of A-I (Nalini) would have been supplied to him.
(3) On 21-5-1991 he was staying at Esware Lodge which was a place frequented by Sivarasan.
(4) In Ext. P-401 (a wireless message sent by Sivarasan to Pottu Omman on 9-6-1991) it was mentioned :
"I got news that one of my associates was caught at Nagapattinam and he has told all the news about me."
(5) When the news of the arrest of A-4 was published Sivarasan communicated that fact to Pottu Omman.
(6) In Ext. P-1253, a diary, Sivarasan has mentioned having paid a sum of Rs. 10,000 to A-4.
(7) In Ext. P-439, Sivarasan has mentioned payment of Rs. 5000 to A-4 (Shankar).
174. The Special Judge of the Designated Court reached a conclusion on the strength of the above-narrated circumstances that A-4 (Shankar) was a member of the conspiracy. It was contended by the learned counsel for the defence that the above circumstances may, at the most, show that A-4 (Shankar) was actively involved in LTTE work because there is nothing to suggest that he ever knew that Rajiv Gandhi was going to be murdered. Of course the first among those circumstances has a strong tendency to create suspicion in our minds against A-4 (Shankar) but in the total absence of anything to show that the 9 passengers in the boat had talked about the assassination programme of Rajiv Gandhi or at least that Sivarasan or Suba or Dhanu would have divulged it to others, there is great practical difficulty to fix up a premise that all of them shared any intention to murder Rajiv Gandhi when they set out on voyage from that island to India. It must be remembered that LTTE had several activities, even apart from murdering Rajiv Gandhi. So merely because a person is shown to be an active worker of LTTE that by itself would not catapult him into the orbit of the conspiracy mesh to murder Rajiv Gandhi. It cannot be forgotten that a conspiracy for that purpose would be strictly confined to a limited number of persons, lest any tiny leakage is enough to explode the entire bubble of the cabal.
175. At any rate, we find it difficult to concur with the conclusion reached by the Special Judge that the aforesaid circumstances would unerringly point to the involvement of A-4 (Shankar) as a conspirator to assassinate Rajiv Gandhi. The worst that could be concluded from the aforementioned circumstances, assuming that they are all proved by the prosecution in this case, is that A-4 (Shankar) was also an ardent LTTE votary having close acquaintance with Sivarasan. But from that step of conclusion it is not legally permissible to ascend on to the highest tier and reach the final conclusion that he too was in the conspiracy to murder Rajiv Gandhi.
A-5 Vijayanandan
176. As against A-5 (Vijayanandan) the circumstances established are the following :
(1) He too was in the 9-member group which clandestinely came to India on 1-5-1991. He had only a forged passport.
(2) He stayed in Komala Vilas Lodge, Madras on 8-5-1991 and 9-5-1991 by showing a false address and also on a false pretext "to attend a marriage".
(3) PW 75 said that A-5 stayed in his house and since then he was fuming with acerbity towards Rajiv Gandhi.
(4) In a diary of Sivarasan (MO 180) there is an entry showing that an amount of Rs. 50,000 was given to "Hari Ayyah" on 8-5-1991.
177. In the first place we may point out that there is no substantive evidence in this case to show that A-5 (Vijayanandan) had another alias name as Hari Ayyah. Of course it is seen stated so by A-2 (Santhan) in the confessional statement but it has not been put to A-5 (Vijayanandan) when he was questioned under Section 313 of the Code. Even if it was put it is doubtful whether the said entry in the diary could have been used against A-5. However, the trial court upon the said circumstances reached the conclusion that he too was a member of the conspiracy.
178. It must be borne in mind that LTTE was a proscribed Organisation in Sri Lanka and its members were indulging in secret activities for attaining a goal of an independent Tamil Eelam in Sri Lanka. There were many, who were members of LTTE, living in India without exposing themselves lest they would be caught by the Sri Lankan authorities. Even prosecution has no case that all those who were members of LTTE were also members of the conspiracy to murder Rajiv Gandhi. So the mere fact that someone was shown to be an LTTE votary and acquainted with the other accused persons in this case by itself would not entangle him in the cobweb of the conspiracy to murder Rajiv Gandhi.
179. As in the case of A-4 (Shankar) the circumstances arrayed by the prosecution against A-5 (Vijayanandan) may, at the worst, show him to be an active LTTE votary. But beyond that stage the circumstances would not push him into the dragnet of the conspiracy.
A-6 Sivaruban
180. A-6 (Sivaruban) was a boy in his teens when the incident took place. He also belongs to Sri Lanka. His left leg was amputated. Nevertheless he was an active LTTE member. The circumstances pitted against him by the prosecution are the following :
(1) He was one among the 9 persons who arrived in India from Sri Lanka on 1-5-1991 in the company of Sivarasan. It was a clandestine voyage.
(2) He was sent to Jaipur on 19-5-1991 by Sivarasan at the expense of LTTE. Though it was ostensibly for fixing up an artificial leg for him there is no evidence to show that the leg was fixed at Jaipur.
(3) He stayed in Golden Hotel, Jaipur from 19-5-1991 to 23-5-1991 and then he shifted to Vikram Hotel, Jaipur.
(4) MO 667 series which were seized from the house occupied by A-3 (Murugan) on 15-6-1991 contained a folio showing the telephone number and the address of A-6 (Sivaruban) at Jaipur. In a search conducted by the Inspector of CBI, Jaipur at Vikram Hotel on 20-6-1991 telephone numbers of A-15 (Thambi Anna) as well as A-9 (Robert Payas) were found out among the materials seized therefrom.
(5) Ext. P-1200 is a letter which A-2 (Santhan) had written to A-6 (Sivaruban) dated 18-6-1991 in which A-6 was asked to shift from Vikram Hotel immediately.
181. The Special Judge of the Designated Court highlighted two features. First is, why should A-6, who is not a senior leader of LTTE be sent to Jaipur when artificial leg could have been fixed at places like Madras and Bangalore. Second is, during the long period when he was in Jaipur he could not get the artificial leg fixed. Learned Special Judge took into account those features along with the circumstances enumerated above and came to the conclusion that there is force in the prosecution contention that A-6 (Sivaruban) was deputed to Jaipur for finding out a hideout for Sivarasan and Suba to escape after assassination of Rajiv Gandhi.
182. There is no justification for reaching such a rash inference on the said evidence. If A-6 (Sivaruban) required an artificial leg is it not a proper query - why he could not have got it fixed at an other place ? (It is an admitted fact that the institute at Jaipur for providing artificial legs is a very renowned one.) Why one is preferring a particular centre to a less renowned place for such reparative devices, is too difficult a question for another person to answer. That apart, we do not know whether a period of one month is too long for completing the process of artificial leg attachment or whether any work was in progress at the centre. At any rate no material has been placed in regard to those aspects.
183. A circumstance which created suspicion in the mind of the investigating agency was that A-6 (Sivaruban) also came to India along with the other 8 persons on 1-5-1991. That might be the reason why the associates of A-6 cautioned him that he too would be caught by the police and advised him to shift to another place. No doubt that is an incriminating circumstance against A-6 (Sivaruban). But it is too much a strain to jump to the conclusion, with the help of the aforesaid circumstance, that A-6 (Sivaruban) was also a conspirator for assassinating Rajiv Gandhi.
A-7 Kanagasabapathy and A-8 Athirai
184. While considering the involvement of A-7 (Kanagasabapathy) it would be expedient to consider the case of A-8 Athirai @ Sonia (also called Gauri). Such a course was adopted by the trial court and we too feel that such a course would be advantageous. In fact the learned counsel for the defence addressed arguments as for A-7 and A-8 together.
185. It must first be pointed out that no confessional statement was recorded by any person from A-7. A confessional statement attributed to A-8 is marked as Ext. P-97. We will refer to the said confessional statement before proceeding to other evidence concerning the said two accused.
186. A-8 is a girl hailing from Sri Lanka. She was in her teens during the days of the conspiracy. Two of her sisters are now in Switzerland living with their husbands. A-8 (Athirai) had a love affair with a boy named Anand, but he died in a raid conducted by IPKF during 1989. She was recruited in LTTE at the age of 16 and she was given a training in shooting. It was from her confessional statement that we got the idea of placement of Dhanu and Suba in LTTE ranking. The former was a member of "Black Women Tiger" and the latter was a member of the An-ny Branch of LTTE. The following facts are also mentioned in Ext. P-97 :
When she was studying in 6th standard LTTE people visited her school and started the campaign for enlisting support from school children. She was then aged only 13. After reading a lot of literature on freedom struggle, Tamil culture etc. she decided to join LTTE when she was aged 16. She was christened by Veluppillai Prabhakaran. She learnt shooting with AK-47. She was made to believe that IPKF, instead of protecting the Tamils was fighting against them and committing all sorts of atrocities on the innocent Tamilians of Sri Lanka.
187. In March 1991, Pottu Omman told her that if she would go to India LTTE would meet all her expenses. She was introduced to A-7 (Kanagasabapathy). She understood that her work in India was to collect information about certain marked places in Delhi for facilitating the work of LTTE. She and A-7 (Kanagasabapathy) together left Sri Lanka and they reached India by boat in April 1991 and they stayed together in the house of a relative of A-7. Sivarasan helped her with money. After the murder of Rajiv Gandhi Sivarasan told her that thenceforth she would be looked after by A-2 (Santhan) as Sivarasan was apprehending arrest.
188. We have not found out any material whatsoever from the aforesaid confessional statement regarding her involvement in the conspiracy for Rajiv Gandhi's murder. That young girl could not be attributed with even any knowledge that Rajiv Gandhi would be murdered. The worst that could be found against her is that her young mind was transformed into a stormy petrel of LTTE through brainwashing. That does not mean that she should necessarily have been cobbled into the conspiracy.
189. Over and above the circumstances pitted against A-7 on a par with A-8 (Athirai) it is proved that A-7 had gone to Delhi on 20-5-1991 with the money supplied by Sivarasan. He was accompanied by a person called Vanan and they both stayed in Delhi till 30-5-1991. The trial court drew an inference that Sivarasan would have sent A-7 (Kanagasabapathy) to New Delhi for fixing up a hideout. Even if it was so, where is the evidence to show that A-7 was ever conspired with for the murder of Rajiv Gandhi ?
190. In this connection reference has to be made to the testimony of two witnesses. PW 109 (Jai Kumari) is the niece of A-7 (Kanagasabapathy). She has stated in court that she has seen her uncle A-7 in the company of A-8 (Athirai) visiting "Higginbothams" (the famous bookseller) at Mount Road, Madras. They bought a map of Delhi and they were found enquiring for a book containing the addresses of VIPs. On 2-5-1991 Sivarasan was found talking with them and a few days thereafter they went away with Sivarasan, though A-7 used to visit her again infrequently. The witness said that when she saw the photo of Sivarasan connecting him with the murder of Rajiv Gandhi she asked her uncle about it. Then A-7 answered thus :
"You are simply imagining many things. For Heaven's sake don't entertain any bad things about me and A-8. Otherwise you have to face God's punishment."
191. The Special Judge of the Designated Court drew an inference from the above talk of A-7 that he would have had the knowledge of the object of conspiracy. The above words said to have been used by A-7 to his niece could as well have been said as he was certain that he was not involved in the murder of Rajiv Gandhi. But the trial court took it the other way round.
192. PW 62 (Vimla) who is a teacher has stated in her evidence that it was Sivarasan who brought A-8 (Athirai) to her house and requested for accommodating her also in the house. (The witness has narrated how she came into acquaintance with Sivarasan.) PW 62 further said that Sivarasan visited her house a couple of days after Rajiv Gandhi was killed and he talked with A-8 (Athirai). But later when the witness happened to see the photo of Sivarasan in the newspapers connecting him with the murder of Rajiv Gandhi she asked A-8 (Athirai) whether there was any truth in the news. A-8 strongly repudiated it and said that Sivarasan was a press reporter and he would have gone there to make a report of the function. Sivarasan visited A-8 in the same afternoon and then PW 62 (Vimla) requested Sivarasan to take A-8 away from that house. Sivarasan then said that he would not visit that house again. At the same time he warned the witness like this :
"If anybody would identify him and give information about him he would meet the same fate as Padmnabha had."
Thereafter Sivarasan did not visit PW 62 at all. It was A-2 (Santhan) who later took A-8 "Athirai) away from that house.
193. We have no reason to disbelieve the testimony of PW 62 or that of PW 109. We have no doubt from the aforesaid evidence that A-7 and A-8 were very close to Sivarasan who had taken much interest in them. But the question is, will that alone lead us to the conclusion that A-7 and A-8 were also associated with Sivarasan in the conspiracy to murder Rajiv Gandhi ? In this connection it is well to remember that all those who worked for the LTTE cause were familiar with Sivarasan. It is true that all the conspirators had worked in unison with Sivarasan and they were all ardent LTTE personnel. But the converse cannot be a necessary inference i.e. all those LTTE personnel who associated with Sivarasan should have been brought within the radius of the conspiracy to murder Rajiv Gandhi as participants thereof.
194. We entertain genuine doubt, in spite of the association that A-7 and A-8 had with the LTTE movement and also with Sivarasan, whether those two accused would have conspired with others in murdering Rajiv Gandhi.
A-9 Robert Payas
195. Robert Payas was aged 25 during the relevant period. While he was in Sri Lanka he associated himself with LTTE work. He arrived in India on 20-9-1990. He was arrested in connection with Rajiv Gandhi murder case on 18-6-1991. Ext. P-85 is said to be the confessional statement given by him to, the Superintendent of Police on 15-8-1991.
196. It has been narrated in Ext. P-85 that IPKF caught A-9 (Robert Payas) and detained him for 15 days along with some others, and during that time the army men committed a lot of atrocities in the houses of the detained persons. A suckling child of A-9 died in the army action. A-9 and his colleagues developed bitter hatred towards IPKF and the other rival organisations headed by Padmnabha.
197. The incriminating statements in Ext. P-85 are the following :
A-9 was in close contact with Kanthan (a senior LTTE leader) and Sivarasan, who came to India for carrying out a certain dreaded act. LTTE was bearing all the expenses of A-9 and his family and Sivarasan used to visit him frequently. In February 1991, Sivarasan and A-3 (Murugan) went to the house of A-9 and stayed there for a couple of days. A-2 (Santhan), Sivarasan and Kanthan used to chalk out plans for their movements while staying in the house of A-9. In the beginning of May 1991, Sivarasan brought Santhan to the house of A-9. On 5-5-1991 Sivarasan and A-2 (Santhan) had a talk with Haribabu, A-3 (Murugan), A-18 (Arivu) and A-9 (Robert Payas) at Marina Beach, Madras. Between 15-5-1991 and 20-5-1991, Kanthan, A-2 (Santhan) and two other persons of LTTE used to meet each other in the house of A-9 and while they were in dialogue Sivarasan was keeping them in close contact through phone.
198. It is further stated in Ext. P-85 that A-9 remained in his house on 21-5-1991 from the afternoon till next day expecting some message from Sivarasan. On 24-5-1991 Sivarasan went to the house of A-9 riding a motorcycle but he felt that he could not see Kanthan in A-9's house. A-9 told that fact to Kanthan on the next day. On 27-5-1991, A-9 and A-2 (Santhan) decided between themselves to escape from the police. So he with his wife and sisters proceeded to Thiruchandur and from there they moved to other places incognito.
199. From the above confessional statement recorded in Ext. P-85 it can be seen that A-9 had a serious involvement in the conspiracy with Sivarasan and others for assassinating Rajiv Gandhi. But the question is whether Ext. P-85 can be treated as a reliable evidence. So our next effort is to find, out whether there is other corroborating evidence.
200. Prosecution relied on the evidence of PW 197 (Dr Claud Fernandez) who is a Dental Surgeon. He said in his evidence that he was residing just in front of the building where A-9 was residing. According to him, on the next day of the assassination of Rajiv Gandhi crackers were exploded in the house of A-9. The witness well remembers that A-9 and A-3 together visited his clinic. The aforesaid evidence of PW 197 has some corroborative value. There is no contention that the witness is speaking falsehood.
201. PW 59 (Raghu) has a photo studio at St. Thomas Mount, Madras. He said that A-9 and Sivarasan went to his studio on 15-9-1990 and got two photographs taken. Sivarasan then wrote his name and address in the records of the studio as follows :

"R. Subarai, 85, Gangai Amman Street, Kodambakkam (Madras)"

His version is supported by documentary evidence such as Exts. P-176 to P-184 (all are records kept in the studio).
202. In MO 180 diary, which is proved to be the diary of Sivarasan, there are umpteen entries showing various amounts paid to A-9. It is not disputed that the said diary belonged to Sivarasan and the entries were made at his instance.
203. In Ext. P-81 confessional statement, A-3 (Murugan) stated that a wireless set was installed in the house of A-9 at Porur by LTTE militant Kanthan. It was from that wireless set Sivarasan used to contact Pottu Omman at Sri Lanka.
204. The aforesaid items of evidence proved in this case have rendered the confessional statement made by A-9 in Ext. P-85 as wholly true. We therefore concur with the finding of the Special Judge that A-9 (Robert Payas) was very much involved in the conspiracy to assassinate Rajiv Gandhi.
A-10 Jayakumar
205. Jayakumar is the brother-in-law of A-9 (Robert Payas). (His sister Prema is A-9's wife.) A-10 was lead into the LTTE movement. He was sent to India in September 1990. He was arrested in connection with the Rajiv Gandhi murder case on 26-6-1991. A confessional statement which is marked as Ext. P-91 is attributed to A-9. The incriminating statements in it are the following :
As IPKF committed lots of atrocities on LTTE people A-10 (Jayakumar) along with others felt very much annoyed. (A-9's little child died in one such IPKF action.) So LTTE had decided to teach the leaders concerned a lesson. On 20-9-1990 A-10 reached India and met a hard-core LTTE personnel Nishananthan (who was also called Nixon). A house was arranged at a place called Porur for which an amount of Rs. 5000 was paid to the owner. Kanthan (another top-ranking LTTE leader) used to supply money to A-10 and also to his brother-in-law A-9. A wireless set was installed by Kanthan inside the house of A-10 in order to facilitate the hard-core LTTE personnel to contact their Sri Lankan counterparts. Once he was told by Kanthan that a high-ranking LTTE leader (Sivarasan) would be arriving in India for carrying out a dangerous plot. A similar information was passed on to him by his brother-in-law Robert Payas also. As Kanthan told him that a house was to be arranged for Sivarasan it was so arranged at Kodungaiyur. In December 1990, Sivarasan was brought to A-10's house by his brother-in-law. He was directed to render all help to Sivarasan and he knew very well that the mission of Sivaram was to execute a dangerous plot. Sivarasan used to supply enough money to A-10 (Jayakumar). Once Sivarasan brought a suitcase consisting of his diary, dress, a pistol and one AK-47 gun besides plenty of bullets. The pistol was concealed in a book in which a cavity was made out for containing the firearm. Sivarasan used to carry the suitcase wherever he went. Once he went to Sri Lanka and on his return he brought Suba and Dhanu. This was on 2-5-1991. A-10 knew that Sivarasan brought those two girls for accomplishing the retaliatory plot. A-10 understood that Rajiv Gandhi was the focus of their hatred. He asked his wife to stitch a cloth cover for keeping the pistol of Sivarasan.
206. Regarding the activities on 21-5-1991, A-10 (Jayakumar) is said to have confessed in Ext. P-91 that he saw Sivarasan keeping the pistol concealed and setting out for the public meeting at Sriperumbudur. By midnight Sivarasan returned with Suba and Nalini and it was confirmed that Rajiv Gandhi was killed by Dhanu. He saw Sivarasan going upstairs to talk with Santhan.
207. The further incriminating portions in Ext. P-91 are :
On 22-5-1991 A-10 prepared meals for Sivarasan, Suba and Nalini and it was only on 23-5-1991 that Sivarasan left the house. Before leaving Sivarasan kept all his things in the suitcase, (except the pistol) and entrusted the pistol to A-10. The suitcase was put in a pit dug by A-10. As instructed by Sivarasan the pit was closed with a concrete slab and a painting was given on its surface.
208. The above is the substance of the confession contained in Ext. P-91. If that statement can be accepted as reliable we have no doubt that it would afford enough material for concluding that A-10 (Jayakumar) was actively involved in the conspiracy to assassinate Rajiv Gandhi. In order to verify the truth of it we have to turn to other evidence which prosecution has adduced for corroboration purposes.
209. The first corroborative material pressed into service by the prosecution is the confessional statement made by his brother-in-law Robert
Payas (A-9) in Ext. P-85. We have earlier found it acceptable and hence it can be regarded as a material to ensure confidence about the truth of the statement contained in Ext. P-91. Another item of evidence is the testimony of PW 63 (Smt. Kottammal). She is an employee of the Tamil Nadu State Electricity Board. She said that when she completed the construction of the house at Kodungaiyur it was rented out to A-10 (Jayakumar) and his wife Shanthi. Ext. P-217 is the rent agreement executed for the said purpose. PW 85 (Swaminathan) who is a nearby resident has stated that by the third week of December 1990 he saw A-10 and his wife occupying the new house of Kottammal. He also said that Sivarasan used to visit that house frequently and A-2 (Santhan) was also staying in that house from 6-5-1990 onwards. The witness remembers that Sivarasan started staying in that house from 22-5-1991 onwards. He remembers the date because he knew that Rajiv Gandhi was murdered on the previous day. Nalini and Suba were also with Sivarasan. PW 85 further said that he noticed distribution of sweets in the house of A-10 by noon on 22-5-1991.
210. PW 200 (Smt Meera) who is another neighbouring resident gave evidence almost in the same manner as PW 85. What she further said was that Sivarasan was a regular visitor to the house of A-10 from January 1990 onwards and the witness noted Sivarasan bringing two girls in the first week of May 1991.
211. Testimony of those witnesses was believed by the trial court and we have no reason to take a different view. It is clear that the aforesaid items of evidence are of much corroborative value.
212. There is yet another circumstance which gives assurance about the involvement of A-10 with the conspiracy. When he was arrested and interrogated by PW 288 (Raghauthamam - one of the chief investigating officers) the accused gave the information that he had buried the suitcase and on the strength of the said statement the suitcase was unearthed. Ext. P-437 is the mahassar which was prepared for it. (The statement which A-10 made pursuant to which the suitcase was unearthed was separately marked as Ext. P-1436.) The articles contained were the diaries of Sivarasan, the Sri Lankan passport of A-2 (Santhan) besides some live cartridges and MO 157 (which is a Tamil dictionary in which a cavity was carved out for keeping a pistol). PW 85 is a witness to the unearthing of the suitcase. He has stated that fact in his evidence.
213. Over and above the afore-narrated corroborative pieces of evidence, prosecution has produced still further items of evidence. But we do not think it necessary to refer to all of them since we are fully satisfied even with the evidence already discussed above that the confessional statement contained in Ext. P-91 was made by A-10 and it is a true confession. We therefore conclude without hesitation that prosecution has succeeded in proving that A-10 (Jayakumar) was an active participant in the conspiracy for the assassination of Rajiv Gandhi.
A-II Shanthi 214. She is the wife of A-10 (Jayakumar). Except the fact that she accompanied her husband from Sri Lanka in September 1990 and continued to live with him in India we are unable to find any involvement of her in the conspiracy to murder Rajiv Gandhi. Learned Special Judge has considered her case, tagging it with her husband's case. We may point out in this context that no confession could be recorded from her under Section 15 of TADA. We have not come across any material, apart from her living with her husband A-10 (Jayakumar), to suggest that she had any role in the conspiracy. It is very unfortunate that for the role played by her husband she has been sentenced to death under Section 302 read with Section 120-B of the Indian Penal Code.
A-12 Vijayan @ Perumal Vijayan
215. Vijayan was arrested on 8-7-1991 in connection with the Rajiv Gandhi murder case. Ext. P-101 is a confessional statement said to have been recorded from him on 3-9-1991 by the Superintendent of Police as per Section 15 of TADA. We will first refer to the following incriminating passages in Ext. P-101 :
A-12 (Vijayan) was conducting a workshop in Sri Lanka, but with the commencement of IPKF operation in the island the workshop ran into doldrums. That was a time when his wife was pregnant. He therefore thought of going to India for availing themselves of medical facilities, but then he found a hurdle that every Sri Lankan Tamil citizen wanting to leave the island had to pay Rs. 1500 and two gold sovereigns to the LTTE movement. As A-12 (Vijayan) was in penury he approached LTTE leaders for exonerating him from the financial liability in crossing over to India.
216. He was then introduced to Sivarasan by a close relative. Sivarasan offered to meet all his expenses of going to India on a condition that he should work for LTTE. A-12 accepted the condition. On 12-9-1990, he, his wife (A-13) and his father-in-law (A-14) reached Rameshwaram. After getting themselves registered as Sri Lankan refugees they moved to Tuticorin.
217. In December 1990, Sivarasan visited them at Tuticorin and persuaded A-12 to shift his residence to Madras and take a house on rent so that the new arrivals of LTTE could also be accommodated therein. Sivarasan paid him Rs. 10,000. So he and his family shifted to Madras.
218. On 2-5-1991 Sivarasan brought a suitcase containing a wireless set and wanted A-12 (Vijayan) to keep it in his house. One person by the name of Nehru was also present along with Sivarasan. Sivarasan told A-12 that two girls would be brought from Sri Lanka for an important work and requested to keep that information secret. Sivarasan paid him Rs. 10,000 again.
219. After 3 days, Sivarasan brought Suba and Dhanu to the house of A-12. He directed A-12 to dig a pit for keeping the wireless set as well as some guns. A-12 obeyed and he was helped by Nehru in digging the pit. On 21-5-1991 Sivarasan visited A-12's house at 12.30 noon and asked Dhanu and Suba to get ready. Then the two girls went inside a room and after about an hour came out dressed up for going out. Sivarasan took the girls in an auto-rickshaw and left. On the next day Sivarasan reached A-12's house and disclosed to him that Rajiv Gandhi was murdered. He asked Nehru to transmit the message to Sri Lanka.
220. The remaining part of the confessional statement in Ext. P-101 contains the directives which Sivarasan gave to A-12 (Vijayan) which the latter had obeyed. But there is nothing in Ext. P-101 to show that A-12 ever knew before 22-5-1991 that Rajiv Gandhi would be murdered. Of course, he could have inferred that the important work which Sivarasan suggested would be some criminal activity but that does not mean he should necessarily have inferred that Sivarasan was targeting Rajiv Gandhi and was contemplating his assassination.
221. No doubt A-12 was very much used by Sivarasan without letting him know of his plan to murder Rajiv Gandhi. Nor did anyone else tell A-12 about it. Even from among the articles which PW 281 a police officer recovered from his house (as per Ext. P-1359 mahassar) nothing could be attributed to A-12 regarding his knowledge that Sivarasan was planning to murder Rajiv Gandhi.
222. But after the murder of Rajiv Gandhi A-12 (Vijayan) had helped Sivarasan very much to escape from being caught. In that endeavour he helped Suba also. It might be that Sivarasan could secure such assistance from A-12 on the strength of the financial assistance which he lavishly gave to A-12 and his family at the time of need. But we are unable to stretch the inference further backward to think that A-12 played any part in the conspiracy to murder Rajiv Gandhi.
A-13 Selvaluxmi
223. Selvaluxmi is the wife of A-12 (Vijayan). Except that she was living with her husband she had no other role apart from what her husband did. She was arrested on 16-5-1992. The trial court dealt with the case of A-13 in conjunction with that of her husband A-12 (Vijayan). We note that the investigating agency could not elicit any confession from her. The result is that there is practically nil evidence to show that A-13 was ever involved in the conspiracy to assassinate Rajiv Gandhi.
A-14 Bhaskaran
224. Bhaskaran is the father-in-law of A-12 (Vijayan) and father of A-13 (Selvaluxmi). His involvement in the conspiracy was considered by the trial court conjointly with the discussion pertaining to A-12 and A-13. As from him also the investigating agency could not elicit any confession under Section 15 of TADA.
225. Though there is no evidence to show that he had any prior knowledge of the plan to murder Rajiv Gandhi there is evidence to show that after A-14 (Bhaskaran) came to know of the assassination he tried to protect Sivarasan and others from being caught or detected.
226. PW 97 (Chokkanathan) is the brother-in-law of A-14 (Bhaskaran). That witness has said in his evidence that on 21-6-1991 his brother-in-law (A-14) expressed a desire to have a larger house on rent by saying that such a house was necessary to accommodate certain important persons. A-14 (Bhaskaran) initially hesitated to divulge the identity of those important persons to PW 97, but later he disclosed that the house was meant for Sivarasan and Suba who were involved in the Rajiv Gandhi murder case. PW 97 said that on hearing the said information he refused to help his brother-in-law, but his brother-in-law became very angry and gave a threat that if the information is divulged to the police he (PW 97) might have to meet his end. Next morning A-14 left the house of PW 97.
227. Shri Altaf Ahmed, learned Additional Solicitor General contended that the aforesaid conduct of A-14 is enough to draw the inference that A-14 was also privy to the conspiracy. But we are unable to stretch the inference to such a farthest extent. The evidence of PW 97 would certainly indicate that A-14 was interested in securing a safe place for Sivarasan and Suba to escape from police detection and also to save them from being caught by the police. It is quite possible that he would have been persuaded to help Sivarasan and Suba on the strength of the help which Sivarasan rendered to the family. It may be possible to go one more step further that perhaps Sivarasan would have disclosed to A-14 that Rajiv Gandhi was murdered at his behest and sought the help of A-14 to escape from police detection.
228. We can only conclude that A-14 would have harboured Sivarasan and Suba and also tried to screen them from being caught by the police.
A-15 Shanmugavadivelu @ Thambi Anna
229. He was arrested on 16-5-1992. The Superintendent of Police recorded a statement on 17-5-1992. Claiming that it is a confessional statement it was marked by the prosecution as Ext. P-139. But its admissibility was resisted on the ground that it does not contain any passage which incriminates him. We will just reproduce the contents of what he said in Ext. P-139.
230. In the year 1987, he and his wife with two children and his nephew left Sri Lanka and reached India. He had to get permission from LTTE for leaving Sri Lanka and Kittoo (LTTE leader) helped him in that regard. In the first week of May 1991, Sivarasan and A-2 (Santhan) sought his help to get an introduction to PW 62 (Vimla) - a teacher. He obliged them. Later A-2 met him and requested him to keep some good amount in safe custody. As he agreed to do so A-2 (Santhan) gave him Rs. 1.25 lakhs on one occasion (which was about a week prior to the murder of Rajiv Gandhi) and on a subsequent occasion A-2 (Santhan) entrusted Rs. 3.20 lakhs to him. About 4 days prior to Rajiv Gandhi's murder A-2 (Santhan) collected Rs. 70,000 from him and a week after the assassination A-2 collected Rs. 3.12 lakhs from him and after some days the balance amount was also collected. A couple of days later A-8 Athirai visited him, by which time the photo of Sivarasan appeared in newspapers as being involved in the Rajiv Gandhi murder case. Thereupon A-15's wife resented any LTTE people visiting the house. A-15, in fact, asked A-2 (Santhan) as to why the photo of Sivarasan appeared in newspapers as being involved in the Rajiv Gandhi murder case. A-2 explained that there is nothing to worry about it.
231. The above are the important contents in Ext. P-139. It is needless to point out that the said statement is lacking any inculpative admissions. On the contrary, it is mostly exculpative. Even apart from that, prosecution could not adduce any tangible evidence against A-15 (Shanmugavadivelu), not even to doubt that he had any involvement in the conspiracy to murder Rajiv Gandhi. Of course, the conspirators would have found A-15 as a reliable person for keeping their money. We must not forget the fact that A-15 hailed from Sri Lanka and he got some help from the LTTE people for going away from the island to India. The mere fact that A-2 (Santhan) had chosen A-15 as a safe person to keep money is hardly sufficient to conclude that he was involved in the Rajiv Gandhi murder conspiracy.
A-16 Ravichandran and A-17 Suseendran
232. In dealing with the case against the above two accused we have necessarily to delink the offences under Sections 3(3), 3(4) and 5 of TADA and Section 5 of the Explosive Substances Act and Section 3(1) of the Arms Act for a certain obvious reason. It is an admitted fact that A-16 and A-17 were tried in another criminal case for the aforesaid offences read with Section 120-B of the Indian Penal Code, inter alia, certain other counts of offences. A-16 and A-17 and a host of some other persons were arrayed in CC-7 of 1992 before a Designated Court, Poonamallai, Chennai (Madras). As per judgment dated 23-1-1998 they were convicted of those offences and sentenced to varying terms of imprisonment. It is also an admitted fact that the said judgment has become final and the convicted persons involved therein have undergone the punishment period.
233. Shri N. Natarajan, learned Senior Counsel for A-16 and A-17 contended that those accused are not liable to be tried again for the said offences since the facts now stated by the prosecution were substantially the same as were involved in CC-7 of 1992. Shri Altaf Ahmed, learned Additional Solicitor General made a strong bid to show that as the said trial was not in connection with the assassination of Rajiv Gandhi the facts cannot be regarded as the same. We have no doubt that A-16 and A-17 cannot use the judgment in CC-7 of 1992 as a shield agains the charge under Section 302 read with Section 109-B and under Section 212 of IPC. But the other offences found against them were based on the same facts for which they were tried for such offences in CC-7 of 1992. This can be discerned from the narration of facts in the aforesaid case.
234. Learned counsel for the accused had produced a certified copy of the judgment in CC-7 of 1992. A-16 (Ravichandran) in this case was arrayed as A-2 in that case and A-17 (Suseendran @ Mahesh) in this case was arrayed as A-3 in that case. Relevant portion showing the facts in that case appearing in para 2 of the judgment is extracted here :
"A-1 to A-32 together and in separate groups at various places such as Palaly, Jaffna in Sri Lanka, Coimbatore, Udumalpet, Pollachi, Madras, Vaniyambadi, Palani, Kaniyur, Dindigul and Pudukkottai conspired together and agreed to do illegal acts by illegal means like forming an armed force by name 'Tamil National Retrieval Troop' with an intention to overawe the Government established by law, cessation of Tamil Nadu from Indian Union and to strike terror in people and to exhort members of TNRT to indulge in disruptive activities and make preparations for the same to fulfil their object, to achieve their object by procuring arms, ammunition, bombs, wireless sets and other explosive substances, to loot police armouries in Tamil Nadu for the said purpose, to aid, abet, advise and knowingly render assistance for acts preparatory to terrorist and disruptive activities and to harbour terrorists and disruptionists and persons who conspire or attempt to commit or advocate, abet, advise or incite or knowingly facilitate the commission of a terrorist or disruptive activity. Everyone did their best at different stages to achieve their common design."
235. The period of the aforesaid activities, as involved in that case, covered the period from 1987 to end of 1991. Section 300(1) of the Code of Criminal Procedure contains the ban against a second trial of the same offence against the same person. Sub-section (1) reads thus :
"300. (1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof."
236. The well-known maxim "nemo debet bis vexari pro eadem causa" (no person should be twice vexed for the same offence) embodies the well-established common law rule that no one should be put to peril twice for the same offence. The principle which is sought to be incorporated into Section 300 of the Criminal Procedure Code is that no man should be vexed with more than one trial for offences arising out of identical acts committed by him. When an offence has already been the subject of judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts.
237. Though Article 20(2) of the Constitution of India embodies a protection against a second trial after a conviction of the same offence, the ambit of the clause is narrower than the protection afforded by Section 300 of the Criminal Procedure Code. It was held by this Court in Manipur Admn. v. Thokchom Bira Singh AIR 1965 SC 87 : (1965) 1 Cri LJ 120) that "if there is no punishment for the offence as a result of the prosecution, Article 20(2) has no application". While the clause embodies the principle of autrefois convict Section 300 of the Criminal Procedure Code combines both autrefois convict and autrefois acquit.
238. Section 300 has further widened the protective wings by debarring a second trial against the same accused on the same facts even for a different offence if a different charge against him for such offence could have been made under Section 221(1) of the Code, or he could have been convicted for such other offence under Section 221(2) of the Code. In this context it is useful to extract Section 221 of the Criminal Procedure Code :
"221. Where it is doubtful what offence has been committed. - (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it."
239. As the contours of the prohibition are so widely enlarged it cannot be contended that the second trial can escape therefrom on the mere premise that some more allegations were not made in the first trial. We have absolutely no doubt that the offences which we have indicated above were fully covered by the trial in CC-7 of 1992, and therefore the prosecution is debarred in this case from proceeding against A-16 and A-17 for the aforesaid offences. Consequently the conviction and sentence passed by the Designated Court as per the impugned judgment for offences under Sections 3(3), 3(4) and 5 of TADA and also Section 5 of the Explosive Substances Act as well as Section 3(1) of the Arms Act on A-16 and A-17 are hereby set aside.
240. Now we have to consider the case of A-16 (Ravichandran) for the offences under Section 302 read with Section 120-B of IPC as a member of the criminal conspiracy to assassinate Rajiv Gandhi.
241. A-16 (Ravichandran) is a Sri Lankan citizen. He was arrested on 20-10-1991 in connection with the Rajiv Gandhi murder case. The Superintendent of Police (CBI) has recorded a statement which is said to contain the confession made by A-16 on 14-2-1992. It is marked in this case as Ext. P-121. The incriminating statements, as for this case contained in Ext. P-121, can be extracted after excluding the facts which were the subject-matter of CC-7 of 1992.
242. A-16 (Ravichandran) and his companion A-17 (Suseendran) reached India in December 1990. He met Sivarasan as instructed by him near Devi Theatre. A few days hence Sivarasan handed over to A-16 a sum of Rs. 1.5 lakhs for buying any kind of vehicle for the use of the LTTE movement. Sivarasan gave A-16 a contact number (2343402) for any urgent need which might arise. A-16 went to the house of A-10 Jayakumar at Kodungaiyur along with Sivarasan and on his instructions went to the airport at Madras to know how security arrangements were in force when a VIP arrived. A-16 reported to Sivarasan that the first gate of the old airport could be used for sneaking in. A-16 reminded Sivarasan that three months had already elapsed since they reached India but still A-16 did not know of the target. Sivarasan then replied : "We need not go in search of the target but the target would come in search of us." Sivarasan further assured A-16 that the crucial situation would arrive very soon.
243. The further incriminating statements in Ext. P-121 are the following :
Sivarasan asked A-16 to start a make-believe travel agency at Delhi. A-16 collected Rs. 2 lakhs from Sivarasan and a few days later collected a further sum of Rs. 5 lakhs for the said purpose. However, Sivarasan cautioned him to start the travel agency only after getting definite instructions from him. Pottu Omman (one of the topmost LTTE hard core) supplied a particular code number to A-16 for transmitting wireless messages. They are : No. A-9 for A-17 and No. PO 91 for Pottu Omman. On 1-5-1991 or 2-5-1991, A-16 met Sivarasan near Shanti Theatre (Madras) as directed in a letter which he got from his aunt (Lokmatha). On 13-5-1991 or 14-5-1991, A-3 (Murugan) reached the same place with a suitcase. In the presence of A-16 one of the LTTE petrel "Sokkan" asked A-3 (Murugan) why the work of Sivarasan has not yet reached the target ?" and A-3 gave the following reply : "Why worry, it would take place and it must happen." Thereafter A-16 kept silence without putting further questions.
244. On 20-5-1991, A-16 was in the house opposite to Shanmugham's house. At 12.30 in the night the news that Rajiv Gandhi was killed was communicated to them. Then he and others left the place. Sokkan later told A-16 that death of Rajiv Gandhi was advantageous for the LTTE movement.
245. The remaining portion of the confession in Ext. P-121 relates to the joint activities of himself, Sivarasan, Suba and A-17. When much later he heard that Sivarasan and Suba died by consuming capsules he felt very sad. The rest of the statement relates to his continued contacts with Pottu Omman and other leaders of LTTE.
246. If the aforesaid confession is true and reliable it can be treated as a safe foundation for resting a finding that A-16 was involved in the conspiracy to murder Rajiv Gandhi. True, A-16 did not divulge in so many words in that confession about the identity of the target of Sivarasan. But it is very clear from Ext. P-121 that A-16 knew about it. In December 1990, he was deputed to India to carry out the execution of an "important mission" and he was instructed to obey the direction of Sivarasan for that purpose. When he knew that Rajiv Gandhi was the target he wanted to get that confirmed from Sivarasan and that is why he asked Sivarasan in plain language - whether it was Rajiv Gandhi. The silence adopted by Sivarasan helped him to confirm it. All the activities done by him thereafter were in a facilitation of the aforesaid common design. It has now to be considered whether the confessional statement made by A-16 has been corroborated in material particulars.
247. PW 206 (Lokmatha), the aunt of A-16 has said in her evidence that Sivarasan was found contacting A-16 in March 1991, and on another occasion Sivarasan entrusted one letter to her for handing over to A-16. The witness said that when the letter was given to A-16 he read it and immediately went out of the house. On 23-5-1991 Sivarasan again visited her house, but when he found that A-16 was absent he gave one more letter to the witness to be handed over to A-16. A couple of days thereafter PW 206 handed over that letter to A-16. He left the house and from the next day she found Sivarasan and A-16 in her house and both of them left together.
248. PW 217 is the husband of PW 206 and gave evidence substantially in tune with the version of his wife.
249. PW 133 (Karpagam) and her husband Shanmugham Sundaram (PW 208) said in their evidence that A-17 (Suseendran) visited them on 28-5-1991 along with Suba, and A-17 introduced her as his wife by the name of Mallagi whom he recently married. Both the witnesses believed that representation to be true and thought that a wedding gift should be presented to them. They purchased a wristwatch and gave it to A-17 as a wedding present. Later A-17 and Suba paid Rs. 1000 as price of the wristwatch saying that they were in need of it. They stayed in the house of those witnesses. In their evidence they said that on 2-6-1991 Sivarasan together with A-16 visited A-17. Later the witness saw the photo of Suba in the newspaper connecting her with the Rajiv Gandhi murder. When A-17 was asked about it he first denied it and later admitted it and said that her name was Suba. However, A-17 gave a warning to both the witnesses not to disclose such things to anyone else.
250. Ext. P-149 is the diary of Sivarasan in which there is an entry showing that Sivarasan met A-16 near Devi Theatre. PW 56 (Utham Singh) said that he was running a grocery shop under the name "Ebenezer Stores" at Porur. The telephone number of his shop is 2343402. The witness said that some Sri Lankans who were residing nearby were availing themselves of the said telephone facility for calling outside. He mentioned Sivarasan, A-2 (Santhan), Kanthan etc. among those who used the telephone. It was the said number which Sivarasan had supplied to A-16 as a contact number.
251. Ext. P-411 dated 16-6-1991, Ext. P-417 dated 19-6-1991, Ext. P-419 dated 20-6-1991 and Ext. P-423 dated 21-6-1991 are all wireless messages sent by Pottu Omman. Those messages contain exhortations that A-16 should help Sivarasan to escape to Sri Lanka.
252. The above items of evidence which corroborate the confessional statement of A-16 give us confidence to believe that Ext. P-121 is a true version of A-16's involvement in Rajiv Gandhi's murder. So it can safely be concluded that A-16 was also a member of the criminal conspiracy.
253. As for A-17 a confessional statement is attributed to him claiming that it was recorded under Section 15 of TADA (Ext. P-123). Here also we have to exclude those portions which relate to the offences covered by CC-7 of 1992. The remaining incriminating statements in Ext. P-123 are the following :
In December 1990, he met Sivarasan. Pottu Omman asked him to go to Tamil Nadu. He went to Madras and met A-16 at Marina Beach (Madras) and A-16 asked him to recruit more people to LTTE. He then set out on a tour to Pollachi, Coimbatore, Palani, and reached Madras on 26-5-1991. He met A-16 at Madras. When he met Sivarasan at Thiruvallur Bus-Stand (Madras), Suba was introduced to him. They all went to Trichi.
254. A-17 has further said that he went with A-16 and Suba to Pollachi where he and Suba stayed in the house of PW 208 by pretending that Suba was his wife called Mallagi and Sivarasan was her brother.
255. It is not necessary to reproduce the further portion of the confessional statements as they relate to the efforts to save Sivarasan and Suba. We have no doubt that A-17 would have got information as to how Rajiv Gandhi was murdered at least when he met Suba and Sivarasan. But there is nothing in the confessional statement to indicate that he knew it at any time before the assassination. Nor is there any material which points to A-17's knowledge prior to 21-5-1991 about Sivarasan's target. Of course Ext. P-121 and the evidence of PW 206, PW 217, PW 133, PW 208 and PW 181 as also the recovery of the walkie-talkie as per Ext. 1172 would show that A-17 was actively helping Sivarasan and Suba to escape from the clutches of law. But that is not enough to credit him with the advance knowledge of Rajiv Gandhi's murder. It is equally possible that he, on coming to know of the predicament of LTTE personnel like Sivarasan and Suba, would have developed a desire to help them. But that is not enough to conclude that he had prior knowledge that Rajiv Gandhi would be murdered.
A-18 Perarivalan @ Arivu
256. He was aged 20 during the relevant period. He is the son of a Tamil poet called "Kuyildasan". He was arrested on 18-6-1991 in connection with the murder of Rajiv Gandhi. PW 52 (Superintendent of Police, CBI) has recorded a confessional statement attributed to him. It is marked as Ext. P-87.
257. The following inculpatory passages in Ext. P-87 are said to be the confessions made by him. He had close association with LTTE people from 1989 onwards. He was selling = publications such as Tamil Eelam and Urumal. While he was in Sri Lanka he had an opportunity to meet Veluppillai Prabhakaran and other leaders of LTTE. The former sought A-18's help for LTTE services. It excited him. When he learnt that Tamil people in Sri Lanka were suffering a lot due to the atrocities committed by IPKF he developed a vengeful attitude towards Rajiv Gandhi. In the second week of October 1990 he and A-19 (Irumborai) reached India by boat along with some other LTTE people. From February 1991 onwards he was residing with A-20 (Bhagyanathan) in a house at Royapettah, Madras. A-3 (Murugan) was also staying there. In March 1991, A-18 accompanied A-3 (Murugan) to Vellore for preparing a sketch of the Fort because LTTE prisoners were interned there. Blasting of Vellore, Fort for rescuing LTTE prisoners was one of the programmes of LTTE in India.
258. In the further portion of Ext. P-87 it is stated that Kanthan, Sivarasan and Nixon were visiting A-3 (Murugan) occasionally and from their conversation A-18 understood that they were planning to carry out a very dangerous task. A-18 had his own reasons to think that the target of the said dangerous task was Rajiv Gandhi. In fact, Sivarasan asked him in April 1991 whether A-18 could work in unison with him and then A-18 agreed to do so. After this Sivarasan went to Sri Lanka.
259. After Sivarasan came back from Sri Lanka he asked A-18 to get a large-sized car battery and some clips etc. A-18 bought a battery from a shop near LIC building at Madras by giving a false name "Rajan" and a false address. He bought some wires and other accessories from another shop near Midland Theatre. A-18 took Sivarasan to a motor shop on 4-5-1991 and bought a motorcycle in his own name but giving a wrong address. He also bought two batteries (9-volt Golden Power battery) and handed them over to Sivarasan for using to blast the bomb.
260. On 7-5-1991 he attended the public meeting addressed by V. P. Singh at Madras along with Suba, Dhanu, A-3 (Murugan) and A-1 - (Nalini). He bought a multimeter from a shop at Richie Street, Mount Road, Madras as Sivarasan wanted it.
261. He further confessed that on 20-5-1991, he went to A-20 Bhagyanathan's house. There he found Sivarasan, A-1 (Nalini), A-3 (Murugan) and Haribabu. Sivarasan divulged to them about the public meeting which Rajiv Gandhi might address on the next day. A-18 @ (Arivu) thereupon gave a colour film (Kodak) to Haribabu.
262. On 21-5-1991, A-18 (Arivu) and A-20 (Bhagyanathan) went to see a film at 9.30 p.m. While returning he came to know that Rajiv Gandhi was murdered. So on the next day he packed up his things including the TV and VCR and kept them in the house of a friend of his. On 23-5-1991, Sivaram met him and gave full details of the incident in which Rajiv Gandhi died. Sivarasan conveyed to them that Haribabu also died in the bomb blast. Sivarasan then asked A-18 (Arivu) to make all efforts to retrieve the dead body of Haribabu.
263. As days passed A-18 (Arivu) felt that he would be caught by the police. He therefore left his friends and stayed with his parents at Jolarpet. It was during the said period that Sivarasan's photo was published in the newspapers connecting him with Rajiv Gandhi's murder.
264. If the above incriminating portions in Ext. P-87 can be relied on as true confession they would uphold the prosecution case for convicting A-18 of criminal conspiracy to murder Rajiv Gandhi.
265. One of the contentions raised against the said confession is that A-18 (Arivu) was not given any time for reflection after eliciting that he was prepared to give a confession. But a perusal of the proceedings which led to the recording of Ext. P-87 shows that on 14-8-1991 preliminary questions were put to him by PW 52 (Superintendent of Police, CBI) but no confession was recorded on that date. It was on 15-8-1991 that PW 52 called him again. Even from the first question put to A-18 (Arivu) it is clear that the interval was intended to afford a period of reflection for A-18. The Superintendent of Police, CBI (PW 52) has also said the same thing in his evidence. In such a situation there is no scope for contending that A-18 was not afforded sufficient opportunity for reflection.
266. It seems there are a lot of circumstances to assure the truth of the statements in Ext. P-87.
267. MO 49 is the sketch of the Vellore Fort which is said to be prepared by A-18 (Arivu). PW 75 (Basant Kumar - a freelance artist) has said in his evidence that he was engaged by LTTE people for printing books. He said that A-18 met him in February 1991 and gave him certain telephone numbers. One was that of Kittoo who was then in London. It was intended for effecting payments regarding the printing charges. The witness further said that A-18 gave him a letter of Veluppillai Prabhakaran in which receipt of the books printed by him was acknowledged. By the beginning of May 1991, A-18 took this witness to Trichi and introduced him to A-2 (Santhan). The witness further said that A-18 was found fuming with hatred towards Rajiv Gandhi for the atrocities which IPKF committed in Sri Lanka. On 10-5-1991, A-18 went to this witness's house with Sivarasan. We have no reason to disbelieve the above testimony of PW 75.
268. PW 233 (Bharathi - a nurse) is the sister of A-20 (Bhagyanathan). She said in her evidence that A-3 (Murugan), A-18 (Arivu) and A-20 (Bhagyanathan) were staying in the same house. MO 286 - a diary of Sivarasan contains the entry regarding the amount paid to A-18.
269. PW 149 (Latha) said that she had acquaintance with LTTE people through A-20 (Bhagyanathan). She identified A-18 as one of the LTTE strongmen. The witness said that she saw A-18 (Arivu) and A-20 (Bhagyanathan) conversing with each other at the press where this witness was working.
270. PW 91 (Moideen) is a salesman in Hindustan Training Company, Royapettah High Road, Madras. He said in his evidence that during the second week of May 1991, A-18 (Arivu) had purchased two batteries from his shop. He mentioned a reason for remembering that it was A-18 who purchased the batteries. Whatever be the reason, the fact remains that it was on the strength of the information supplied by A-18 that the investigating officer (PW 266 Venkateswaran) came to know of PW 91's shop. The inference is therefore irresistible that A-18 would have pointed out the shop and PW 91, the salesman as the person from whom A-18 had purchased two "9-volt Golden Power" batteries.
271. In this context it is significant to note that a little portion of one battery was recovered from the place of occurrence. When that was tested at the Forensic Laboratory it was found to be the portion of a 9-volt Golden Power battery.
272. Another item of evidence to corroborate the confession of A-18 is the further portion of the testimony of PW 266. The witness said that from the interrogation of A-18 he came to know of PW 88 (Dalip Chodia) who is a dealer of a firm called "International Tyre Service" at Mount Road, Madras. The copy of a cash bill was proved through PW 88 as Ext. P-447. It is in respect of a bill issued in the name of one Rajan, Door No. 6, Lady Madhavan Street, Mahabalipuram, Madras the bill is in respect of selling an Exide Battery No. EM-3878.
273. PW 281 (M. Narayanan) is the Deputy Superintendent of Police, CBI. He said in his evidence that when he interrogated A-18 on 2-8-1991, he got the information that LTTE books and literature and cassettes were kept by A-18 in the house of PW 210. Pursuant to the said information 49 items were recovered from the said house. Ext. 1344 is the mahassar prepared for that purpose. It contains the list of the articles which is consistent with the statement made by A-18.
274. We have no reason to disbelieve or reject the above items of evidence. It is not necessary to-refer to yet other items of evidence which prosecution has presented for corroborating the confessional statement of A-18 (Arivu) because even with the help of those which we have adverted to above we are satisfied that A-18's confession in Ext. P-87 has been corroborated in material particulars.
275. We therefore reach the conclusion that A-18 (Arivu) was actively involved in the criminal conspiracy to assassinate Rajiv Gandhi.
A-19 Irumborai
276. Irumborai is an Indian citizen. His original name was Duraisingam. After he joined the. Rationalists' Organisation of Dravida Kazhagam he changed his name to Irumborai. In a meeting of Dravida Kazhagam held in 1985 a resolution was adopted to give full support to the Tamil liberation movements in Sri Lanka.
277. A-19 (Irumborai) was arrested on 9-10-1991. The most important item of evidence placed by the prosecution against him is Ext. P-117 which is a statement recorded by PW 52 (Superintendent of Police, CBI) on 3-12-1991 under Section 15 of TADA which is said to be a confessional statement. No doubt Ext. P-117 contains inculpatory statements about A-19 trying to screen the offenders in the Rajiv Gandhi murder case and to harbour some of them. But on the crucial question whether he was a party to the conspiracy to assassinate Rajiv Gandhi, the following portion of the statement would throw light.
278. He was in contact with A-2 (Santhan), Suresh Master and some other leaders of LTTE. In the second week of May 1991 he went to Trichi as per the instructions of Suresh Master (a leader of LTTE) and collected an amount of Rs. 15,000 from A-2 (Santhan) to be delivered over to Suresh Master. Then he was told by A-2 (Santhan) that LTTE was making arrangements to kill "an important leader quickly".
279. It is clear that A-19 (Irumborai) did not then understand who that leader was because A-19 then asked A-2 (Santhan) whether that leader could be "Vazhappari". A-2 (Santhan) in his answer did not confirm it or deny it but expressed ignorance about the identity of the person and also about the manner by which it was to be accomplished. A-19 (Irumborai) further said in the confessional statement that when he heard the above answer from A-2 (Santhan) he did not talk with anybody else on that subject. He also said that he knew that Rajiv Gandhi was murdered in a bomb blast only on 22-5-1991. On hearing the news he became frightened.
280. The rest of the confessional statement relates to the help rendered by him to Sivarasan, Suba, Nehru, Vicky etc. to hide themselves from police catch.
281. Thus it is not discernible from the confessional statement whether he knew that Rajiv Gandhi was going to be murdered. But his own thinking was that it was Vazhappari (a local leader of Tamil Nadu) who was the target. When that doubt was eliminated there is no material to show that he knew that the target of the plotters was Rajiv Gandhi. Prosecution relies on a letter which Trichy Santhan (a top-ranking LTTE personnel) had written to A-19. That letter is dated 7-9-1991 and is marked as Ext. P-128. (It is not necessary to embark on a discussion regarding the proof of Ext. P-128 - a letter written by Trichy Santhan, as the defence counsel has agreed that it can be taken as proved.) In Ext. P-128 an advice seems to have been given to A-19 (Irumborai) like this : "Don't say that Rajiv incident was known before."
282. It is admitted that Trichy Santhan died later. Prosecution wants to press into service the aforesaid advice of Trichy Santhan to prove that as a matter of fact A-19 knew about the Rajiv Gandhi incident earlier and that is why he was advised not to say so.
283. There are two hurdles before we take up that piece of evidence into consideration. First is that it was a statement made by a person who is now dead. It does not relate to any transaction of the circumstances which resulted in his death. So the statement would not fall within the ambit of Section 32 of the Evidence Act. Second is that if the statement has to be brought within the ambit of Section 10 of the Evidence Act the precondition has to be satisfied that we must have reason to believe that A-19 and Trichy Santhan were members of the conspiracy to murder Rajiv Gandhi. Even assuming that the said statement can be brought under Section 10 of the Evidence Act, the question is - will it be a conclusive inference therefrom that the sendee of the letter knew that fact earlier ? It could be an advice given to A-19 (Irumborai) that he should not talk loosely that he knew about Rajiv Gandhi's murder earlier. It does not necessarily mean that A-19 (Irumborai) knew about it earlier.
284. Even taking the alternative interpretation, the worst is that the sender of the letter (Trichy Santhan) would have believed that the sendee had advance knowledge of Rajiv Gandhi's murder. Could it not have been possible for A-19 to clarify to Trichy Santhan that there was no need to give such an advice because he in fact did not know about it earlier.
285. In whatever way it is looked at, we have difficulty to credit A-19 (Irumborai) with the advance knowledge of Rajiv Gandhi's murder on such a fragile material.
286. We are therefore inclined to extend to A-19 the benefit of reasonable doubt regarding his involvement in the conspiracy for assassinating Rajiv Gandhi though we are fully satisfied that he was involved in helping the offenders to escape from the police.
A-20 Bhagyanathan
287. Bhagyanathan is an Indian citizen. He is the brother of A-I (Nalini) and son of A-21 (Padma). During the relevant period he was aged 25. He has passed B.Com. degree examination. He and his mother were residing in the nurses' quarters of "Kalyana Nursing Home", Madras where his mother was working. His father was a Sub-Inspect or of Police.
288. He was arrested on 10-6-1991 in connection with the Rajiv Gandhi murder case. PW 52 Superintendent of Police, CBI recorded a statement from him which is marked as Ext. P-69. Prosecution wants to treat it as a confessional statement recorded under Section 15 of TADA. The following are said to be the inculpative statements in Ext. P-69.
289. In 1988, A-20 (Bhagyanathan) got himself acquainted with Muthuraja who was an important person in LTTE and they became friends. Through him A-20 secured friendship with Baby Subramaniam - another LTTE senior leader. A-20 was allured to the LTTE movement by Muthuraja. In course of time he became friendly with A-18 (Arivu). Muthuraja arranged a press to be transferred to A-20 and he agreed to print LTTE publications at that press.
290. According to A-20, he and his family shifted the residence to a house at Royapettah on 26-1-1991. He accommodated A-3 (Murugan) also to stay in the said house as Muthuraja requested him to do so. His mother raised objections to the said accommodation but he prevailed upon her to agree. Muthuraja went back to Sri Lanka in February 1991.
291. The further contents in Ext. P-69 are that A-3 (Murugan) brought Sivarasan to the house of A-20 in the month of April 1991. He sent a letter to Baby Subramaniam on 9-5-1991 offering full cooperation for the cause of Tamil liberation in Sri Lanka. The letter was sent per A-3 (Murugan). On 20-5-1991, Haribabu visited the house of A-20 at Royapettah. A Kodak film was obtained from Arivu and A-20 gave it to Haribabu.
292. Regarding the activities on the day of the assassination of Rajiv Gandhi A-20 (Bhagyanathan) has stated in Ext. P-69 that on 21-5-1991 he and A-18 (Arivu) went to the house of Muthuraja. A-18 who returned to the house at 9.30 p.m., after seeing a cinema show, came to know of Rajiv Gandhi's murder. The other confessions in Ext. P-69 are that on 23-5-1991 Sivarasan reached the house and informed them that Haribabu had also died; and on 24-5-1991, A-20 (Bhagyanathan) compelled his mother to go along with Sivarasan, Suba and A-1 (Nalini) to Tirupathi. The confession shows that A-20 (Bhagyanathan) destroyed LTTE stickers which remained with him. When he saw the photograph of Sivarasan in the newspapers connecting him with the Rajiv Gandhi murder case A-20 became very much bewildered.
293. The above statement of A-20 (Bhagyanathan) cannot be taken as a confession. He did not know that Rajiv Gandhi was going to be assassinated. He did not say anything in Ext. P-69 which would have at least impliedly connected him with Rajiv Gandhi's murder or the conspiracy. He was, of course, a strong sympathiser of LTTE.
294. Even assuming that the statement recorded in Ext. P-69 is a confessional statement there is no confession that A-20 ever knew that Rajiv Gandhi was going to be assassinated.
295. One of the materials which prosecution has pressed into service as a circumstance involving A-20 (Bhagyanathan) with the conspiracy is Ext. P-128 letter which is said to have been written by Trichy Santhan to A-19 (Irumborai) on 7-9-1991. We have already discussed about the proof of that letter and so we proceed on the assumption that the letter was written by Trichy Santhan. The following passage in the letter is made use of by the prosecution as against A-20 (Bhagyanathan) :
"Speaking about the mistakes of Raghuvaran's people like Arivu, Baby Anna Press, Haribabu and Subha Sundaram, such things would not have occurred if our own people were utilised as was done in the case of Padmnabha."
296. It is not disputed that the reference to Raghuvaran means Sivarasan, Baby Anna means A-20 (Bhagyanathan), Subha Sundaram means A-22 and Arivu means A-18.
297. The first question is how far is that reference in Ext. P-128 admissible as against A-20. The writer of that letter Trichy Santhan is now no more. The letter does not speak of any transaction of the circumstances which resulted in his death. Nor has the cause of his death come into question in this case. Hence, the said reference cannot fall under the purview of Section 32 of the Evidence Act.
298. But the greater effort made was to bring it within the ambit of Section 10 of the Evidence Act. The primary condition to invoke the said section is the existence of "reasonable ground to believe" that Trichy Santhan and A-20 (Bhagyanathan) had conspired together to commit an offence. When the very question whether A-20 was a party to the conspiracy, is being considered the aforesaid primary hurdle forecloses the use of the contents of Ext. P-128 as against A-20 (Bhagyanathan).
299. Barring the above materials we are unable to find that A-20 was a party to the conspiracy to assassinate Rajiv Gandhi.
A-21 Padma
300. She is the mother of A-1 (Nalini) and A-20 (Bhagyanathan). As pointed out earlier she is a nurse. She was arrested on 10-6-1991 in connection with Rajiv Gandhi's assassination.
301. We may say at the outset, regarding A-21 (Padma), that it is very unfortunate that she too was convicted as a conspirator in the Rajiv Gandhi murder case and was sentenced to hanging. We are unable to find anything which, involves her in the conspiracy. Of course there is some evidence to show that A-21 (Padma) is privy to accommodate some of the offenders in the Rajiv Gandhi murder case. At the most she is liable to be convicted of that offence.
302. Ext. P-73 is said to be a confessional statement given by A-21 on 7-8-1991 and that too was recorded under Section 15 of TADA. A-21 is said to have confessed the following.
303. Muthuraja brought A-3 (Murugan) to her house in February 1991. A-21 (Padma) was not willing to accommodate him in the house. But she was prevailed upon by A-3 (Murugan) not to raise any objection. A-3 (Murugan) used to help the family with money. Sivarasan was brought to her house by A-3 in March or April 1991. On 20-5-1991, Sivarasan brought Suba and Dhanu to her house. Till then they were in the house of A-1 at Villiwakkam. Some medicines were given by A-21 to Dhanu as she had a sprain in the leg.
304. A-21 (Padma) has further said in Ext. P-73 that in the morning of 21-5-1991 she went to her Nursing Home as usual and returned in the evening. Late in the night she came to know of the assassination of Rajiv Gandhi when A-18 and A-20 told her about it.
305. In the further portion of Ext. P-73 she has stated that on 23-5-1991, she came to know from her daughter (A-1 Nalini) the details of the killing of Rajiv Gandhi at Sriperumbudur. According to A-21 she became frightened on hearing the said information and at the same time she started worrying about her daughter (A-1 Nalini) and her son-in-law (A-3 Murugan). When the photo of Dhanu appeared in the newspapers A-21 (Padma) started entertaining a fear that she too would be embroiled in the case.
306. The above is the substance of her statement in Ext. P-73. A reading of it would show that A-21 had no inkling whatsoever that Rajiv Gandhi was going to be murdered. Of course, as a mother it was a matter of concern for her when she knew that her daughter (A-1) and her son-in-law (A-3) were wanted by the police in connection therewith.
307. The only inculpative statement in Ext. P-73 is that she harboured the offenders in her house after coming to know that they were involved in the murder of Rajiv Gandhi. She is liable to be convicted of that.
A-22 Subha Sundaram 308.
He is a photographer. He was running a photo studio by the name of "Subha News Photo Service" at Madras. Haribabu was a cameraman attached to the said photo studio. (Haribabu died along with Dhanu during the bomb blast at Sriperumbudur.) No confessional statement was elicited from A-22 which could be used under Section 15 of TADA. Hence prosecution had to depend upon certain circumstances alone for establishing the charge against him. Such circumstances are the following :
(1) Ext. P-544 is an article prepared by A-22 on 5-8-1989. (It was written in the handwriting of PW 116 - Girija Vallabhan on the dictation given by A-22.) Ext. P-544 contains a scathing criticism of the activities of IPKF in Sri Lanka.
(2) The camera which Haribabu carried to the scene of occurrence belonged to A-22.
(3) On 22-5-1991, A-22 told some others that he and Haribabu met together on 21-5-1991. (PW 108 Santhana Krishna, PW 120 Sundarmani and PW 151 Ravisankaran are the witnesses who spoke about it.)
(4) When a search was conducted by the police in the photo studio of A-22 on 5-6-1991, LTTE literature and cassettes were recovered. Ext. P-1354 is the search list-prepared then.
(5) In a letter which Trichy Santhan wrote to A-19 (Irumborai) on 7-9-1991 (Ext. P-128) he criticised the supporters of Sivarasan. Among such supporters the name of A-22 was mentioned by Trichy Santhan.
(6) PW 172 (Ramamurthy), another photographer who happened to be at the place of occurrence said in his evidence that A-22 asked him whether he could have brought back the camera of Haribabu from the scene of occurrence.
(7) PW 205 (Smt Parimalam) a cousin of Haribabu said that she got a phone call in the name of A-22 advising her to remove all the papers and cassettes from the house of Haribabu.
(8) PW 258 (Vazhappari Ramamurthy) said that A-22 told him on 23-5-1991 and also on 27-5-1991 to enquire about the camera which Haribabu carried to Sriperumbudur.
(9) A-22 persuaded the father of Haribabu to issue a press statement that Haribabu had no knowledge of the Rajiv Gandhi murder case. In fact A-22 drafted that statement for the witness. The trial court found that all the above 9 circumstances were proved and are reliable. On that basis the Special Judge further found that A-22 was a member of the conspiracy and that he had harboured the offenders. Learned counsel for A-22 contended that even if all the above circumstances are found to be legal evidence it would not form a complete chain for the Court to draw any conclusive inference.
309. We too are of the definite view that the aforesaid circumstances, even if all of them are assumed to be legal evidence, would hardly be sufficient to prove the involvement of A-22 in the conspiracy to murder Rajiv Gandhi.
310. That apart, if the circumstances are individually analysed, many of them cannot be treated as incriminating circumstances at all. A-22 would have been a critic of IPKF activities in Sri Lanka. He would have been a sympathiser of the LTTE movement. Those two premises are discernible from the aforesaid circumstances.
311. Of course there is one circumstance which, if found reliable, would be incriminating to A-22. It was spoken to by PW 205 (Parimalam) that A-22 phoned her up and advised her to remove the incriminating articles from the house of Haribabu. But the difficulty regarding that evidence is that PW 205 (Parimalam) never knew A-22 and she had never heard his voice earlier. So her evidence is hardly sufficient for holding that A-22 called her over the phone. Anybody else could have called her in the name of A-22.
312. Most probably A-22 was the owner of the camera which Haribabu took to Sriperumbudur. So A-22's concern was to get his valuable property back. He would have sought the help of others for that purpose. The conduct of A-22 can only show that he evinced much interest in securing his property. But that can hardly be a circumstance which is consistent only with the guilt of the accused.
313. We cannot therefore concur with the finding of the trial court that
A-22 was a member of the conspiracy to assassinate Rajiv Gandhi.
A-23 Dhanasekaran Raju
314. He was arrested on 13-10-1991 in connection with Rajiv Gandhi's murder. He was conducting a motor transport company at Tuticorin. Ext. P-113 is the record containing his statement which PW 52 (Superintendent of Police, CBI) recorded on 4-11-1991. It is sought to be used as his confessional statement.
315. But the difficulty with Ext. P-113 is, it shows clearly that A-23 had absolutely no knowledge about the murder of Rajiv Gandhi. The following passage in Ext. P-113 would bear testimony to it :
"On 21-5-1991, I was in my house at Mettur. Then only I heard the news that Rajiv Gandhi died due to bomb explosion at Sriperumbudur. The news was flashed through newspapers and television. Later, I came to know that LTTE Organisation is the main cause for that assassination and Sivarasan, Suba and. Dhanu were involved in that murder."
Of course, his statement thereafter in Ext. P-113 shows that he too was involved in helping the offenders to escape. It is not necessary to refer to those passages in Ext. P-113 because learned counsel for the accused has fairly conceded that he is not attacking the finding of the trial court regarding the offence under Section 212 of IPC.
316. One circumstance which the trial court used against A-23 is that he purchased a Maruti Gypsy (MO 540) on 14-11-1990. There is evidence to prove that fact. There is also evidence to prove that the said vehicle was used by Sivarasan, Suba and others for moving from one place to another, but all such travels were subsequent to the assassination of Rajiv Gandhi. The trial court concluded on the strength of the aforesaid evidence like this :
"Thus MO 540 Maruti Gypsy purchased in November 1990 in Salem before the assassination of Rajiv Gandhi was used by A-24, and Sivarasan, Suba and A-26 and other accused after the assassination of Rajiv Gandhi. The close association between these accused is thus proved by the prosecution beyond doubt. Purchase of MO 540 Maruti Gypsy and its subsequent use by the members of the conspiracy also proves the involvement of A-23 in the accomplishment of the object of conspiracy."
317. The aforesaid leap jump to such a conclusion is impermissible and contrary to the well-established principles governing circumstantial evidence. We therefore dissent from the trial court's conclusion regarding A-23's involvement in the conspiracy to murder Rajiv Gandhi.
A-24 Rajasuriya @ Rangan
318. He is a Sri Lankan citizen. He was aged 27 during the relevant time. He was arrested on 29-8-1991 in connection with Rajiv Gandhi's murder. PW 52 (Superintendent of Police, CBI) recorded his confessional statement on 23-10-1991 as per Section 15 of TADA. It is marked as Ext. P-109.
319. A-24 (Rangan) has stated in Ext. P-109 that he was working for LTTE in Sri Lanka and he reached India in 1989 and that he stayed at Thiruvaniyoor. He was conducting a travel agency-business without obtaining the required permission for it. He said that he was making fake travel documents for his clients and he was closely associated with the LTTE movement in India. He further stated that in April 1991, he got acquainted with Trichy Santhan and Suresh Master and A-18 (who were all senior leaders of LTTE). A-24 (Rangan) was given an assignment to look after the injured LTTE fighting men. In Ext. P-109 he further said that in May 1991 he was asked by Suresh Master to arrange transportation of LTTE men to different places. But A-24 did not say that he had any knowledge about Rajiv Gandhi's murder before the assassination took place. In June 1991, A-24 himself gave hospitality to Sivarasan, Suba and Suresh Master and thereafter they were helped to escape by a tanker lorry.
320. It is not necessary to extract the further portion in the confessional statements as they contain his admissions regarding the activities which he carried on for helping Sivarasan and others to escape from police nabbing. We have no doubt that A-24 had harboured the offenders and helped them to escape from the police net.
321. But regarding the crucial fact whether A-24 had any involvement in the conspiracy to assassinate Rajiv Gandhi, the confessional statement is of no help because it does not even indicate that he had any prior knowledge about the same.
322. PW 65 (Mridula) is the wife of A-26 (Ranganath). She said in her evidence that on 2-8-1991 her husband brought A-24 and some other persons who are accused in the Rajiv Gandhi murder case. Suba was also among such persons. On the next day, a green Maruti Gypsy van reached their house. When she watched the television programme she knew that Sivarasan and Suba were wanted by the police in connection with the aforesaid case. PW 230 (Selvaraj) was the person who drove the tanker lorry. PW 22 (Sathyamoorthy) said that on 8-8-1991 A-24 brought a Maruti Gypsy for painting. The witness painted it in white colour.
323. The above items of evidence would also help in finding that A-24 was actively helping the accused to escape from the police. Learned Additional Solicitor General argued that considering the fact that he was an active LTTE votary and also considering his activities during the post-assassination days it is possible to draw an inference that he too was involved in the conspiracy to murder Rajiv Gandhi.
324. Such an inference is not a necessary inference, for, it is equally possible to think that A-24 being an active LTTE votary, would have decided to help other LTTE people to escape from the police clutches though he knew about their involvement in the assassination of Rajiv Gandhi only after he himself came to know that the former Prime Minister was assassinated.
A-25 Vigneswaran @ Vicky
325. He is a Sri Lankan citizen. He was aged 28 during the relevant period. He was, by profession, a cleaner of vehicles. He was arrested on 4-2-1992 in connection with the Rajiv Gandhi murder case. A statement was elicited from him on 24-2-1992 which has been marked as Ext. P-127. Prosecution treated it as a confessional statement under Section 15 of TADA.
326. A-25 (Vicky) has admitted in Ext. P-127 that he was working for the LTTE movement from 1985 onwards. He moved to India when his house was destroyed by the Sri Lankan army in 1987. He was acquainted to Trichy Santhan by the middle of 1990. Another LTTE member called Dixon was introduced to him. When he was staying in Trichy he was doing some business in medicines for which Trichy Santhan extended financial help to him.
327. In the further portion of Ext. P-127 he has stated that 2 days after the murder of Rajiv Gandhi he was told by Trichy Santhan not to venture to stay in Trichy any more. Hence he decided to shift to Coimbatore and agreed to take over all the medicines for which Trichy Santhan had placed orders. He came to know of Sivarasan only after the newspapers published the photo of that person though he had seen him before.
328. The rest of the statements in Ext. P-127 contain clear admissions of the activities of A-25 (Vicky) for helping Sivarasan, Suba etc. to escape from the police. However, there is absolutely no statement of him in the document which could be used to involve him in the conspiracy to murder Rajiv Gandhi. Apart from his role in helping some of the accused who were wanted by the police in the Rajiv Gandhi murder case there is no evidence to suggest that A-25 (Vicky) had even the knowledge that Rajiv Gandhi would be murdered by anyone whom he knew.
329. The trial court, after referring to various items of evidence, concluded in para 2373 of the judgment that "A-25 was also instrumental in the transportation of Sivarasan, Suba and Nehru from Madras to Bangalore in MO 543 tanker lorry driven by PW 230 Selvaraj". It is a conclusion which needs no interference.
330. But thereafter learned Special Judge proceeded to mention that A-25 identified the photo of the tanker lorry and also the photos of Sivarasan, Suba and Nehru and even the photos of dead bodies of Suba, Suresh Master and Sivarasan. The trial court adverted to his association with Trichy Santhan. After making reference to such facts learned Special Judge made a long leap to reach the next conclusion like this :
"All the above evidence and circumstances would go to establish the active part played by A-25 in consonance with the directions of Trichy Santhan in furtherance of the object of the conspiracy."
331. We are unable to uphold the second conclusion regarding A-25 (Vicky) for want of any evidence and also for the reasons set out by us in the preceding paragraphs.
A-26 Ranganath
332. The trial court at the close of the discussion of evidence against A-26 has entered the following finding in para 2419 of the judgment :
"From the foregoing discussion and analysis of evidence proved by the prosecution it has to be concluded that A-26 harboured Sivarasan and Suba, who were proclaimed offenders and the other accused A-24 Rangan, Nehru, Suresh Master, Driver Anna and Amman in his house at Puttanahalli and subsequently at Konanakunte voluntarily and willingly without any fear to his life."
333. The above is the only finding on facts which the learned trial Judge appears to have made regarding the role of A-26. Thereafter no discussion is seen made about his activities. But learned Judge had held in para 2451 that A-26 is also guilty of the offence under Section 120-B read with Section 302 IPC and rest of the offences included in the charge.
334. We have no difficulty to concur with the finding of the trial court that A-26 (Vicky sic Ranganath) is guilty of offences under Sections 212 and 216 of the Indian Penal Code. In this context we may point out that PW 65 is the wife of A-26, and apart from her evidence the testimony of PW 218 (Anjanappa), PW 223 (Rajan) and PW 229 (Jayasankar) were read out to us. In the trial court a plea was made on behalf of A-26 that he is protected by Section 94 of the Indian Penal Code. We do not think it necessary to advert to that plea now in view of the concession made by the learned counsel for A-26 that the appeal as for A-26 is not pressed regarding the offences under Sections 212 and 216 of IPC because the accused concerned had already undergone the sentence of imprisonment awarded by the trial court as for those two counts.
335. But at the same time we have to point out that there is absolutely no evidence whatsoever for connecting A-26 with the conspiracy to assassinate Rajiv Gandhi. In fact, the prosecution did not even bother to establish that A-26 had no knowledge that anybody would be plotting to murder Rajiv Gandhi. It is very unfortunate that the trial court has convicted A-26 also of the offence under Section 120-B read with Section 302 IPC and sentenced him to be hanged.
336. Now, we come to the stage of deciding who all are liable to be convicted and of which offences. We may point out that learned counsel for the accused submitted at the Bar that it is not worthwhile, at this distance of time, to press the appeal of the appellants as against the conviction under Sections 212 and 216 of IPC, Section 14 of the Foreigners Act, 1946, Section 6(1-A) of the Wireless Telegraphy Act, 1933, Section 3 of the Wireless Act and Section 5 of the Explosive Substances Act, 1908 as well as Section 12 of the Passport Act, 1967.
337. For the reasons set out in the preceding paragraphs of this judgment we confirm the conviction of the offence under Section 120-B read with Section 302 IPC as against A-1 (Nalini), A-2 (Santhan @ Raviraj), A-3 (Murugan @ Thas), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran @ Ravi) and A-18 (Perarivalan @ Arivu). We shall deal with the question of sentence for the said offence separately. However, we set aside the conviction and sentence passed on all the accused under Section 120-B of IPC read with all the other counts of offences (except Section 302 IPC). We also set aside the conviction and sentence passed by the trial court on those appellants who were convicted of offences under Section 3(3), Section 3(4) and Section 5 of TADA.
338. We confirm the conviction passed by the trial court for the offences under Sections 212 and 216 of IPC, Section 14 of the Foreigners Act, 1946, Section 25(1-B) of the Arms Act, Section 5 of the Explosive Substances Act, Section 12 of the Passport Act and Section 6(1-A) of the Wireless Telegraphy Act, 1933, in respect of those accused who were found guilty of those offences. However, as the sentence awarded by the trial court in respect of those offences did not exceed imprisonment for a period of two years we are not disposed to disturb the sentence passed by the trial court on those counts. It is for the jail authorities to consider the question of releasing those accused who have already undergone the period of rigorous imprisonment for two years, and against whom there is no conviction confirmed under any other counts of offence, as they are entitled to be set at liberty forthwith.
339. In other words, except A-1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arivu) all the remaining appellants shall be set at liberty forthwith.
Sentence regarding offence under Section 302 read with Section 120-B of IPC
340. Now we have reached the proximity of the terminus of a long journey. But the remaining stage is the hardest and the most tedious sector - to decide on the sentence passed for the offence under Section 302 read with Section 120-B IPC.
341. We have before us only two alternatives - death or life term. The trial Judge opted to award the former to all the 26 appellants. This was dubbed as amounting to judicial massacre by the defence counsel, while the Additional Solicitor General endeavoured to justify the imposition of extreme penalty.
342. A fervent plea was made to us that the high profile of the celebrity dimension of the targeted victim should not colour our judicial vision in determining the sentencing extent. But the other side of the picture was etched by pleading that the Court cannot adopt a Nelson's eye to the stark reality that the target of the dastardly intrigue was a leader who represented a bulk of the nation's population in whom the nation reposed its faith and trust for a full term. Be such factors as they may, we would proceed to discharge the task as law enjoins.
343. Both sides cited a number of decisions of this Court in support of their respective pleas - one for retention of the sentence and the other for choosing the next alternative. Decisions which held the field before the introduction of the Code of Criminal Procedure, 1973 do not afford any help because the Criminal Procedure then obliged the court to pass death sentence for murder as a general proposition and the alternative sentence could be awarded only in exceptional cases for which the court was then required to advance special reasons. After 1973, there was a complete reversal to the approach. Thereafter, life imprisonment was made the normal sentence for murder and death penalty was allowed to be passed only in exceptional cases. The criminal courts were required to state special reasons for choosing the latter. But the decisions rendered during the aforesaid second stage were divided into two categories with the pronouncement of the decision of this Court in Bachan Singh v. State of Punjab ((1980) 2 SCC 684 : 1980 SCC (Cri) 580).
344. During the pre-Bachan Singh period the Sessions Court was free to choose death penalty in any case where special reasons could be advanced. But during the post-Bachan Singh period even that was drastically changed as the Constitution Bench made it impermissible to award death sentence except in rarest of the rare cases wherein the lesser alternative is unquestionably foreclosed.
345. As the law which has been pronounced in such unreserved language on the subject holds the field ever thereafter, we are required to remind ourselves of the legal position adumbrated by the Constitution Bench in Bachan Singh case (Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580). The following is the ratio which emerged after making a detailed analysis of various viewpoints on the sustainability of the provision empowering the court to pass death sentence : (SCC p. 751, para 209)
"It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
346. The Constitution Bench, however, did not agree with the approach adopted by a three-Judge Bench of this Court in Rajendra Prasad v. State of U.P. ((1979) 3 SCC 646 : 1979 SCC (Cri) 749) that focus of special reasons has shifted from the crime to the criminal. On that part, the majority view in Bachan Singh (Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580) is the following : (SCC p. 748, para 201)
"As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of 'special reasons' in that context, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case."
Their Lordships accepted the broad contours of the circumstances cited before them by one of the learned counsel as having mitigating impact. The Constitution Bench has observed, on the aforesaid submission of the counsel, as follows : (SCC p. 750, para 207)
"207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence."
Three such circumstances which the Court was told about are the following : (1) The age of the accused - if the accused is young or old the sentence of death should be avoided.
(2) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(3) That the accused acted under duress or domination of another person.
347. Bearing the above principles in mind we have now to determine whether the death sentence passed by the trial court should be confirmed or not in respect of the 7 accused whose conviction of the offence under Section 302 read with Section 120-B we have confirmed. There can be no two opinions that looking at the crime conspectus of what was perpetrated at Sriperumbudur it was most dastardly to the superlative degree. Those who machinated to bring about such a horrendous crime cannot normally escape the extreme penalty of law. As the law enjoins that we have to look at the criminals also we are duty-bound to look at it from that perspective also.
348. The conspirators in the Rajiv Gandhi assassination case can be vivisected into four broad categories :
First, those who formed the hard-core nucleus which took the decision to assassinate Rajiv Gandhi.
Second, those who induced others to join the ring and played active as well as supervisory roles in the conspiracy.
Third, those who joined the conspiracy by inducement whether through indoctrination or otherwise.
Fourth, those among the conspirators who participated in the actual commission of murder.
349. Persons who fall within the first category cannot normally escape from capital punishment if their case ends in conviction. Veluppillai Prabhakaran, Pottu Omman, Akila, Sivarasan and Trichy Santhan have been described as persons falling within the radius of the first category. As they were not tried for the offences so far we refrain from observing anything concerning them in the sphere of sentencing exercise.
350. However, we can hold with certainty that A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) belonged to the second category even if they slip out of the first. They were not merely carrying out the orders of the first category personnel but they made others to work according to their directions in order to achieve the target. The role played by them was prominently direct and active. They were in the leadership layer among the conspirators. We are not able to find out anything extenuating as for the said three persons in their activities for implementation of the decisions of the cabal.
351. We therefore confirm the extreme penalty imposed by the trial court on A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) for the offence under Section 302 read with Section 120-B of IPC.
352. A-1 (Nalini) belongs to the fourth category. In the normal spectrum of consideration, death penalty is the first priority to be chosen for her. She is an elderly and educated woman. One gets the impression, on reading her confession, that she was led into the conspiracy by playing on her feminine sentiments. She became an obedient participant without doing any dominating role. She was persistently brainwashed by A-3 (Murugan) who became her husband and then the father of her child. Suba and Dhanu would certainly have etched a woeful picture regarding the atrocities committed by IPKF on women and girls of Tamil origin in Sri Lanka. By such indoctrinative exercises she would have honestly believed in the virtue of offering her help to the task undertaken by the conspirators. In the confessional statement made by her brother A-20 (Bhagyanathan) he revealed one fact i.e. A-1 (Nalini) had confided to him on 23-5-1991 itself that as a matter of fact she realised only at Sriperumbudur that Dhanu was going to kill Rajiv Gandhi. Perhaps that may be a true fact. But she would not have dared to retreat from the scene as she was tucked into the tentacles of the conspiracy octopus from where it was impossible for a woman like A-1 (Nalini) to get herself extricated. She knew how Sivarasan and Santhan had liquidated those who did not stand by them. Padmnabha's episode would have been a lesson for her. Considering the fact that she belongs to the weaker sex and her helplessness in escaping from the cobweb of Sivarasan and company, the mere fact that she became obedient to all the instructions of Sivarasan need not be used for treating her conduct as amounting to "rarest of the rare cases" indicated in Bachan Singh case (16 Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580).
353. Another consideration which we find difficult to overlook is - she is the mother of a little female child who would not have even experienced maternal huddling as that little one was born in captivity. Of course the maxim "justitia non novit patrem nec matrem" (justice knows no father nor mother) is a pristine doctrine. But it cannot be allowed to reign with its rigour in the sphere of sentence determination. As we have confirmed the death sentence passed on the father of that small child, an effort to save its mother from the gallows may not militate against jus gladii so that an innocent child can be saved from imposed orphanhood.
354. Thus, on an evaluation of the plus and minus, pros and cons we persuade ourselves to save A-1 (Nalini) from the gallows. Hence the sentence passed on her is altered to one of imprisonment for life.
355. What remains is the case of A-9 (Robert Payas), A-10 (Jayakumar), and A-16 (Ravichandran). They do not belong to the first or even to the second category. They were followers and they just obeyed the commands of leaders like Sivarasan who had the capacity to dominate over them. We are inclined to alter their sentence from death penalty to imprisonment for life. We order so.
356. The appeals filed by all the 26 accused and the proceedings submitted by the Special Judge of the Designated Court under Section 366 of the Code of Criminal Procedure are disposed of in the aforementioned terms.
D. P. WADHWA, J. - I have studied the draft judgment prepared by my learned and noble brother K. T. Thomas, J. It is a judgment so well written, but, regrettably, I find myself unable to agree with him entirely both on certain questions of law and conviction and sentence proposed by him on some of the accused. Moreover, keeping in view the fact that since sentence of death passed on the 26 accused by the Designated Court has been submitted to this Court for confirmation, evidence needs to be considered in somewhat greater detail, I venture to render a separate judgment.
358. On the night of 21-5-1991 a diabolical crime was committed. It stunned the whole nation. Rajiv Gandhi, former Prime Minister of India, was assassinated by a human bomb. With him 15 persons including 9 policemen perished and 43 suffered grievous or simple injuries. Assassin Dhanu, an LTTE (Liberation Tigers of Tamil Eelam) activist, who detonated the belt bomb concealed under her waist and Haribabu, a photographer (and also a conspirator) engaged to take photographs of the horrific sight, also died in the blast. As in any crime, criminals leave some footprints. In this case it was a camera which was found intact on the body of Haribabu at the scene of the crime. The film in the camera when developed led to unfolding of the dastardly act committed by the accused and others. A charge of conspiracy for offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), Indian Penal Code (IPC), Explosive Substances Act, 1908, Arms Act, 1959, Passport Act, 1967, Foreigners Act, 1946, and the Indian Wireless Telegraphy Act, 1933 was laid against 41 persons, 12 of whom were already dead having committed suicide and three absconded. Out of these, 26 faced the trial before the Designated Court. Prosecution examined 288 witnesses and produced numerous documents and material objects. Statements of all the accused were recorded under Section 313 of the Code of Criminal Procedure (Code). They denied their involvement. The Designated Court found them guilty of the offences charged against them. Thereafter all the accused were heard on the question of sentence. The Designated Court awarded death sentence to all of them on the charge of conspiracy to murder. "A judicial massacre", bemoaned Mr Natarajan, learned Senior Counsel for the accused, and rightly so in our opinion. The Designated Court also sentenced each of the accused individually for various offences for which they had been separately charged.
359. In view of the provisions of Section 20 of TADA, the Designated Court submitted the sentence of death to this Court for confirmation. The accused also filed appeals under Section 19 of TADA challenging their conviction and sentence.
360. The accused have different alias and while mentioning the accused's names it may not be necessary to refer to them with all their respective alias and alias of an accused will be indicated wherever necessary. There is no dispute about these alias. For proper comprehension of the facts it will be appropriate to refer to the appellants as accused.
361. Three absconding accused are (1) Prabhakaran, (2) Pottu Omman @ Shanmuganathan Sivasankaran and (3) Akila @ Akilakka. Prabhakaran is alleged to be the supreme leader of Liberation Tigers of Tamil Eelam (LTTE) - a Sri Lankan Tamil organization, who along with Pottu Omman, Chief of Intelligence Wing of LTTE, Akila, Deputy Chief of Women Wing of LTTE, and others designed criminal conspiracy to assassinate Rajiv Gandhi and commit other offences in pursuance thereof.
362. Deceased accused (DA) who are alleged to be the members of the conspiracy and died either by consuming cyanide or in the blast or by hanging are :

1. S. Packiachandran @ Raghuvaran @ Sivarasan 2. Dhanu @ Anbu @ Kalaivani 3. Suba @ Nitya 4. S. Haribabu 5. Nehru @ Nero @ Gokul 6. N. Shanmugham @ Jayaraj 7. Trichy Santhan @ Gundu Santhan 8. Suresh Master 9. Dixon @ Kishore 10. Amman @ Gangai Kumar 11. Driver Anna @ Keerthy 12. Jamuna @ Jamila
The accused who are put on trial and are appellants before us are :
A-1 S. Nalini A-2 T. Suthendraraja @ Santhan A-3 Sriharan @ Murugan @ Thas @ Indu Master A-4 Shankar @ Koneswaran A-5 D. Vijayanandan @ Hari Ayya A-6 Sivaruban @ Suresh @ Suresh Kumar @ Ruban A-7 S. Kanagasabapathy @ Radhayya A-8 A. Chandratekha @ Athirai @ Sonia @ Gauri A-9 B. Robert Payas @ Kumaralingam A-10 S. Jayakumar @ Jayakumaran @ Jayam A-11 J. Shanthi A-12 S. Vijayan @ Perumal Vijayan A-13 V. Selvaluxmi A-14 S. Bhaskaran @ Velayudam A-15 S. Shanmugavadivelu @ Thambi Anna A-16 P. Ravichandran @ Ravi @ Pragasam A-17 M. Suseendran @ Mahesh A-18 G. Perarivalan @ Arivu A-19 S. Irumborai @ Duraisingam A-20 S. Bhagyanathan A-21 S. Padma A-22 A. Sundaram @ Subha Sundaram A-23 K. Dhanasekaran @ Raju A-24 N. Rajasuriya @ Rangan A-25 T. Vigneswaran @ Vicky A-26 J. Ranganath

363. Prosecution case is that Prabhakaran, Pottu Omman, Akila and Sivarasan masterminded and put into operation the plan to kill Rajiv Gandhi which was executed by Sivarasan, and Dhanu, one of the two assassins (other being Suba), with the back-up of other accused, who conspired and abetted them in the commission of the crime which included providing them a safe haven before and after the crime. Charge of conspiracy is quite complex and when analysed it states that 26 accused before us, and those absconding, deceased and others, are charged with having entered into criminal conspiracy between July 1987 and May 1992 at various places in Sri Lanka and India to do or cause to be done illegal acts, namely :
1. to infiltrate into India clandestinely,
2. to carry and use unauthorised arms, ammunition and explosives,
3. to set up and operate unauthorised wireless sets to communicate with LTTE leaders in Sri Lanka from time to time,
4. to cause and carry out acts of terrorism and disruptive activities in Tamil Nadu and other places in India by use of bombs, explosives and lethal weapons so as to scare and create panic by such acts in the minds of the people and thereby to strike terror in the people,
5. in the course of such acts to assassinate Rajiv Gandhi, former Prime Minister of India and others, who were likely to be with him,
6. to cause disappearance of evidence thereof and to escape,
7. to screen themselves from being apprehended,
8. to harbour the accused and escape from the clutches of law, and
9. to do such other acts as may be necessary to carry out the object of the criminal conspiracy as per the needs of the situation,
and in pursuance of the said criminal conspiracy and in furtherance of the same to carry out the object of the said criminal conspiracy :
(I) Santhan (A-2), Murugan (A-3), Shankar (A-4), Vijayanandan (A-5), Ruban (A-6), Kanagasabapathy (A-7), Athirai (A-8), Robert Payas (A-9), Jayakumar (A-10), Shanthi (A-11), Vijayan (A-12), Selvaluxmi (A-13), Bhaskaran (A-14), Rangan (A-24) and Vicky (A-25) along with the deceased accused Sivarasan, Dhanu, Suba, Nero, Gundu (Trichy) Santhan, Suresh Master, Dixon, Amman, Driver Anna and Jamuna infiltrated into India from Sri Lanka clandestinely and otherwise on different dates during the said period of criminal conspiracy;
(II) Shanmugham (DA) amongst them arranged to receive, accommodated and rendered all assistance to the members of the conspiracy;
(III) Robert Payas (A-9), Jayakumar (A-10), Shanthi (A-11), Vijayan (A-12), Selvaluxmi (A-13) and Bhaskaran (A-14) after having come over to India secured houses at Porur and Kodungaiyur in Madras at the instance of Sivarasan (DA) for accommodating one or the other co-conspirators from time to time and for chalking out the modalities of the course of action to be followed for the achievement of the object of the said criminal conspiracy;
(IV) Nero (DA) established contacts with Prabhakaran (absconding) through Pottu Omman (absconding) through illegally operated wireless sets brought into India by Sivarasan (DA) through illicit channel from the house of Vijayan (A-12);
(V) Kanagasabapathy (A-7) and Athirai (A-8) came to India through illicit channel and set up hideouts in Delhi;
(VI) Sivarasan (DA) brought Santhan (A-2), Shankar (A-4), Vijayanandan (A-5) and Ruban (A-6) along with the deceased accused Dhanu, Suba, Nero and Driver Anna to Kodaikkarai and got them all accommodated in several places in Tamil Nadu to be of assistance in carrying out the object of criminal conspiracy;
(VII)(a) Arivu (A-18) visited Jaffna and other places in Sri Lanka along with Irumborai (A-19) clandestinely in June 1990, purchased a Kawasaki motorcycle on 4-5-1991 at Madras to facilitate quick movement of himself and one or the other of the co-conspirators,
(a-1) arranged payment for printing the compilation described as Satanic Force and sent one copy of the same to Prabhakaran (absconding) through Sivarasan (DA) and another set through Murugan (A-3),
(b) purchased and provided a battery for operating the wireless apparatus and other two battery cells, which were used as detonator in the belt bomb used by Dhanu (DA) for the murder of Rajiv Gandhi and 15 others;
(VIII) Shankar (A-4), Vijayanandan (A-5) and Ruban (A-6) along with Driver Anna (DA) rendered all assistance necessary therefor;
(IX) Sivarasan decided to murder Rajiv Gandhi, former Prime Minister of India in the public meeting to be held at Sriperumbudur on 21-5-1991 on learning that Rajiv Gandhi was to address the meeting on the said day and finalised the method of operation to murder him by enlisting the services of Nalini (A-1) to be of help at the scene of crime;
(X) Arivu (A-18) handed over the film roll for the purposes of taking photographs of the events to Haribabu (DA), who also purchased a sandalwood garland from Poompuhar Handicrafts, Mount Road, Madras to be used for garlanding Rajiv Gandhi at the scene of occurrence by Dhanu (DA) so as to gain access to the VVIP under the guise of garlanding;
(XI) Dhanu equipped herself with the necessary apparel in order to hide a belt bomb and detonator attached thereto for detonating the same when she was in close proximity to Rajiv Gandhi;
(XII) Haribabu (DA) met Subha Sundaram (A-22) on 21-5-1991 and thereafter took a Chinon camera from a friend for taking photographs at the scene of offence and loaded the camera with the film already provided by Arivu (A-18);
(XIII) Nalini (A-1) along with the deceased accused Sivarasan, Dhanu and Suba met Haribabu at Parry's Corner, Broadway Bus-Stand and proceeded to the venue of the public meeting at Sriperumbudur on the evening of 21-5-1991 where Nalini (A-1) provided cover to Dhanu and Suba and when Rajiv Gandhi arrived at the scene of occurrence at about 10.10 p.m. Dhanu gained nearer access to Rajiv Gandhi and while in close proximity to Rajiv Gandhi Dhanu detonated the improvised explosive device kept concealed in her waist belt at about 10.20 p.m. resulting in the blast and assassinated Rajiv Gandhi and 15 others and also killed herself (Dhanu) and also caused the death of Haribabu accused and caused injuries to 43 persons;
(XIV) Nalini (A-1) along with the deceased accused Sivarasan