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.
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BACKWARD REFERENCE : 1999-(SC2)-GJX -0387 -SC 1999-(005)-SCC -0253 -SC D P Wadhwa 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) (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.) “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). 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 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 : CHARGES 369. Before we consider the evidence and the arguments advanced by both the parties it may be more appropriate to set out various provisions of law which are the subject-matter of the charges against the accused. |
THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987
“2. Definitions. – (1) In this Act, unless the context otherwise requires, –
(a)-(c) * * *
(d) ‘disruptive activity’ has the meaning assigned to it in Section 4, and the expression ‘disruptionist’ shall be construed accordingly;
(e)-(gg) * * *
(h) ‘terrorist act’ has the meaning assigned to it in sub-section (1) of Section 3, and the expression ‘terrorist’ shall be construed accordingly;
* * *
3. Punishment for terrorist acts. – (1) Whoever with intent to overawe the Government as by law established or to strike terror in the 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 or any supplies of 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.
(4) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist 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.
(5) Any person who is a member of a terrorists gang or a terrorists Organisation, which is involved in 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.
(6) Whoever holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds 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.
4. Punishment for disruptive activities. – (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.
(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.
Explanation. – For the purposes of this sub-section, –
(a) ‘cession’ includes the admission of any claim of any foreign country to any part of India, and
(b) ‘secession’ includes the assertion of any claim to determine whether a part of India will remain within the Union.
(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 an 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.
(4) Whoever harbours or conceals, or attempts to harbour or conceal, any disruptionist 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.
5. Possession of certain unauthorised arms, etc., in specified areas. – Where any person is in possession of any arms and ammunition specified in Columns 2 and 3 of Category I or Category III(a) of Schedule I to the Arms Rules, 1962, or bombs, dynamite or other explosive substances unauthorisedly in a notified area, he shall, notwithstanding anything contained in any other law for the time being in force, 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.
6. Enhanced penalties. – (I) If any person with intent to aid any terrorist or disruptionist, contravenes any provision of, or any rule made under, the Arms Act, 1959 (54 of 1959), the Explosives Act, 1884 (4 of 1884), the Explosive Substances Act, 1908 (6 of 1908), or the Inflammable Substances Act, 1952 (20 of 1952), he shall, notwithstanding anything contained in any of the aforesaid Acts or the rules made thereunder, 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.
(2) For the purposes of this section, any person who attempts to contravene or abets, or attempts to abet, or does any act preparatory to the contravention of any provision of any law, rule or order, shall be deemed to have contravened that provision, and the provisions of sub-section (1) shall, in relation to such person, have effect subject to the modification that the reference to ‘imprisonment for life’ shall be construed as a reference to ‘imprisonment for ten years’.
* * *
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.
* * *
25. Overriding effect. – The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.
* * *
28. Power to make rules. – (1) Without prejudice to the powers of the Supreme Court to make rules under Section 27, the Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely –
(a) regulating the conduct of persons in respect of areas the control of which is considered necessary or expedient and the removal of such persons from such areas;
(b) the entry into, and search of, –
(i) any vehicle, vessel or aircraft; or
(ii) any place, whatsoever,
reasonably suspected of being used for committing the offences referred to in Section 3 or Section 4 or for manufacturing or storing anything for the commission of any such offence;
(c) conferring powers upon, –
(i) the Central Government;
(ii) a State Government;
(iii) an Administrator of a Union Territory under Article 239 of the Constitution;
(iv) an officer of the Central Government not lower in rank than that of a Joint Secretary; or
(v) an officer of a State Government not lower in rank than that of a District Magistrate,
to make general or special orders to prevent or cope with terrorist acts or disruptive activities;
(d) the arrest and trial of persons contravening any of the rules or any order thereunder;
(e) the punishment of any person who contravenes or attempts to contravene or abets or attempts to abet the contravention of any rule or order made thereunder with imprisonment for a term which may extend to seven years or for a term which may not be less than six months but which may extend to seven years or with fine or with imprisonment as aforesaid and fine;
(f) providing for the seizure and detention of any property in respect of which such contravention, attempt or abetment as is referred to in clause (e) has been committed and for the adjudication of such seizure and detention, whether by any court or by any other authority.”
TADA RULES
“15. Recording of confession made to police officers. – (1) A confession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such confession is made and if that is not practicable, in the language used by such police officer for official purposes or in the language of the Designated Court and it shall form part of the record.
(2) The confession so recorded shall be shown, read or played back to the person concerned and if he does not understand the language in which it is recorded, it shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his confession.
(3) The confession shall, if it is in writing, be –
(a) signed by the person who makes the confession; and
(b) by the police officer who shall also 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 and such police officer shall make a memorandum at the end of the confession to the following effect –
‘I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
Sd/-
Police Officer.’
(4) Where the confession is recorded on any mechanical device, the memorandum referred to in sub-rule (3) insofar as it is applicable and a declaration made by the person making the confession that the said confession recorded on the mechanical device has been correctly recorded in his presence shall also be recorded in the mechanical device at the end of the confession.
(5) Every confession recorded under the said Section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Designated Court which may take cognizance of the offence.”
INDIAN PENAL CODE (IPC)
“120-A. Definition of criminal conspiracy. – When two or more persons agree to do, or cause to be done, –
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof
Explanation. – It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
120-B. Punishment of criminal conspiracy. – (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
34. Acts done by several persons in furtherance of common intention. – When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
302. Punishment for murder. – Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
326. Voluntarily causing grievous hurt by dangerous weapons or means. – Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
324. Voluntarily causing hurt by dangerous weapons or means. – Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
201. Causing disappearance of evidence of offence, or giving false information to screen offender.-Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false.
[if a capital offence] shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
[if punishable with imprisonment for life] and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
[if punishable with less than ten years’ imprisonment] and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
212. Harbouring offender. – Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment,
[if a capital offence] shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine;
[if punishable with imprisonment for life, or with imprisonment] and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both.
‘Offence’ in this section includes any act committed at any place out of India, which, if committed in India, would be punishable under any of the following sections, namely, 302, 304, 482, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and every such act shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in India.
Exception. – This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender.
216. Harbouring offender who has escaped from custody or whose apprehension has been ordered. – Whenever any person convicted of or charged with an offence, being in lawful custody for that offence, escapes from such custody,
or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours or conceals that person with the intention of preventing him from being apprehended, shall be punished in the manner following, that is to say,
[if a capital offence] if the offence for which the person was in custody or is ordered to be apprehended is punishable with death, he shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
[if punishable with imprisonment for life, or with imprisonment] if the offence is punishable with imprisonment for life or imprisonment for ten years, he shall be punished with imprisonment of either description for a term which may extend to three years, with or without fine;
and if the offence is punishable with imprisonment which may extend to one year and not to ten years, he shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of the imprisonment provided for such offence, or with fine, or with both.
‘Offence’ in this section includes also any act or omission of which a person is alleged to have been guilty out of India, which, if he had been guilty of it in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise liable to be apprehended or detained in custody in India, and every such act or omission shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in India.
Exception. – The provision does not extend to the case in which the harbour or concealment is by the husband or wife of the person to be apprehended.”
EXPLOSIVE SUBSTANCES ACT, 1908
“3. Punishment for causing explosion likely to endanger life or property. – Any person who unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment for a term which may extend to ten years, to which fine may be added.
4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property. – Any person who unlawfully and maliciously –
(a) does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion in India of a nature likely to endanger life or to cause serious injury to property; or
(b) makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in India, or to enable any other person by means thereof to endanger life or cause serious injury to property in India;
shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with transportation for a term which may extend to twenty years, to which fine may be added, or with imprisonment for a term which may extend to seven years, to which fine may be added.
5. Punishment for making or possessing explosives under suspicious circumstances. – Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to fourteen years, to which fine may be added, or with imprisonment for a term which may extend to five years, to which fine may be added.”
ARMS ACT, 1959
“3. Licence for acquisition and possession of firearms and ammunition. – [(1)] No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder :
Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.
* * *
25. (1-B) Whoever –
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3;
* * *
shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine :
Provided that the court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.”
PASSPORT ACT, 1967
12. Offences and penalties. – (1) Whoever –
(a) contravenes the provisions of Section 3; or
(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or
(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or
(d) knowingly uses a passport or travel document issued to another person; or
(e) knowingly allows another person to use a passport or travel document issued to him,
shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five thousand rupees or with both.
(1-A) Whoever, not being a citizen of India, –
(a) makes an application for a passport or obtains a passport by suppressing information about his nationality, or
(b) holds a forged passport or any travel document,
shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees.
(2) Whoever abets any offence punishable under sub-section (1) or sub-section (1-A) shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence.
(3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.
(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence.”
THE FOREIGNERS ACT, 1946
“14. Penalties. – If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if such person has entered into a bond in pursuance of clause (f) of sub-section (2) of Section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting court why such penalty should not be paid.
3. (2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner –
(a)-(e) * * *
(f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions;
(g) * * *
and may make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act.”
INDIAN WIRELESS TELEGRAPHY ACT, 1933
“6. (1-A) Whoever possesses any wireless transmitter in contravention of the provisions of Section 3 shall be punished with imprisonment which may extend to three years, or with fine which may extend to one thousand rupees, or with both.
3. Prohibition of possession of wireless telegraphy apparatus without licence. – Save as provided by Section 4, no person shall possess wireless telegraphy apparatus except under and in accordance with a licence issued under this Act.”
INDIAN EVIDENCE ACT, 1872
“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.
30. Consideration of proved confession affecting person making it and others jointly under trial for same offence. – When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation. – ‘Offence’ as used in this section, includes the abetment of, or attempt to commit, the offence.”
370. Having set out the provisions of law we may refer to the preliminary submissions of Mr. N. Natarajan, Senior Advocate who appeared for all the accused except Shanmugavadivelu @ Thambi Anna (A-15). He submitted that he is not challenging the convictions of various accused under the Foreigners Act, Passport Act, Explosive Substances Act, Indian Wireless Telegraphy Act, Arms Act and Sections 212 and 216 IPC. This he said was on account of the fact that for offences under these Acts the accused were awarded sentence of imprisonment for two years or for a period less than two years which in any case has to be set off under Section 428 of the Code as they had been under detention throughout the period during trial. We are thus left to consider offences under Sections 120-B IPC, 302/34 IPC, 326/34 IPC, 324/34 IPC and under Sections 3, 4 and 5 of TADA.
371. Opening his arguments Mr. Natarajan submitted that the first charge gives the overall view of the case of the prosecution. In brief he said there were five facets of the conspiracy alleged by the prosecution against the accused, namely, (1) clandestine infiltration into India, (2) hiring of safe accommodation for the conspirators, (3) unauthorised wireless operation by them, (4) assassination of Rajiv Gandhi and others on 21-5-1991, and (5) harbouring of offenders in order to escape from India and disappearance of evidence. The prosecution evidence propounds a criminal conspiracy. Mr. Natarajan was right in his submissions when he said it would be futile to contend that there was no conspiracy. The questions that arise for consideration are as to what is the object of that conspiracy, who were members of the conspiracy, whether any offence under TADA is made out and whether it was a case of conspiracy to murder and causing grievous and simple hurt by use of bombs. Assuming that whatever prosecution evidence has led to be admissible and reliable, there is no conspiracy to commit any offence under TADA and the conspiracy is only to commit the murder of Rajiv Gandhi. On the question of motive of the crime, we find, there is no dispute. For the past couple of years there has been unrest in the northern part of Sri Lanka, a neighbouring country which area is inhabited mostly by Tamils. These Tamils or Tamilians complained of atrocities committed by the majority community of Sinhalese inhabiting in the south of Sri Lanka. To protect the rights of the Tamils various organizations came up in Sri Lanka, foremost being the Liberation Tigers of Tamil Eelam (LTTE). This organization claimed to be the only representative body of the Tamils. For the independence of Tamil area in Sri Lanka, armed struggle started between LTTE and Sri Lankan army. On this account there was turmoil in Sri Lanka resulting in the influx of Tamil refugees to India from Sri Lanka and by 1987 the problem, it appeared, was getting out of hand. During the armed struggle LTTE was having a free field in India. To support its struggle against Sri Lankan army a cadre of LTM had been operating from the Indian soil for the purpose of an-ns training, treatment of injured LTTE people, supply of medicines and other provisions, collection of funds, printing and publishing of propaganda material, buying of provisions like petrol, diesel, wireless equipments, explosives and even clothes.
372. An Indo-Sri Lankan Agreement to establish peace and normalcy in Sri Lanka was entered into on 22-7-1987. It was signed by Rajiv Gandhi, Prime Minister of the Republic of India and J. R. Jayawardane, President of the Democratic Socialist Republic of Sri Lanka. After the agreement was signed Prime Minister Rajiv Gandhi made a statement in the Rajya Sabha on the Agreement which he said aimed “at bringing to an end the difficult conflict which has afflicted our friendly neighbour Sri Lanka for years” and that the conflict had assumed acute dimensions over the last four years endangering the very stability, unity and integrity of Sri Lanka. The agreement among other things envisaged lifting of emergency in the eastern and northern provinces of Sri Lanka by 15-8-1987, holding of elections, constitution of interim council, etc. Cessation of hostilities was to come into effect all over the island within 48 hours of the signing of the Agreement and all arms presently held by Tamil militant groups were to be surrendered, in accordance with an agreed procedure, to authorities to be designated by the Government of Sri Lanka. Sri Lanka will grant a general amnesty to political and other prisoners now held in custody under the Prevention of Terrorism Act and other emergency laws. Para 2.16 of the Agreement provided as under :
2.16 These proposals are also conditional to the Government of India taking the following actions if any militant groups operating in Sri Lanka do not accept this framework of proposals for a settlement, a namely,
(a) India will take all necessary steps to ensure that Indian territory is not used for activities prejudicial to the unity, integrity and security of Sri Lanka.
(b) The Indian Navy/Coastguard will cooperate with the Sri Lankan Navy in preventing Tamil militant activities from affecting Sri Lanka.
(c) In the event that the Government of Sri Lanka requests the Government of India to afford military assistance to implement these proposals, the Government of India will cooperate by giving to the Government of Sri Lanka such military assistance as and when requested.
(d) The Government of India will expedite repatriation from Sri Lanka of Indian citizens to India who are resident there, concurrently with the repatriation of Sri Lankan refugees from Tamil Nadu.
(e) The Government of India and Sri Lanka will cooperate in ensuing the physical security and safety of all communities inhabiting the northern and eastern provinces.
The Indo-Sri Lankan Accord had thus the following features :
1. It contains a package for the devolution of political power recognising the northern and eastern provinces of Sri Lanka as the traditional homeland of the Tamils.
2. It gives to India a “guarantor” role in the implementation of the devolution package and the other provisions within the framework of “United Sri Lanka”.
3. It takes account of India’s security concerns in the area.
373. In pursuance of the Agreement Indian forces called the Indian Peace-Keeping Force (IPKF) went to Sri Lanka on 29-7-1987. After the initial somewhat reluctance to acceptance, LTTE got disillusioned with the Accord which is reflected from the following factors :
1. The Accord ruled out separate Tamil Eelam in Sri Lanka and so went against the objectives of LTTE to form an independent Tamil Eelam.
2. LTTE looked towards India with certain expectations under the Accord, which, according to it, were not fulfilled. It was the way the Tamil refugees of Sri Lanka were rehabilitated by the Sri Lankan Government which was not to the satisfaction of LTTE.
3. In the interim council to be formed under the Accord LTTE was given less seats though it claimed to be the sole representative body of Sri Lankan Tamils.
4. On 15-9-1987 one Dileepan of LTTE went on hunger strike in Sri Lanka. He took fast against the atrocities committed by IPKF and for the Government of India not acting properly. He died fasting on 26-9-1987.
5. 17 important functionaries of LTTE were captured by Sri Lankan Navy in the first week of October 1987. They were being taken to Colombo for interrogation. LTTE approached the Government of India for their release. The Government of India did not vigorously pursue the matter and while it was negotiating with the Sri Lankan Government to secure their release, 12 of them committed suicide by consuming cyanide.
6. In the night of 3-10-1987/4-10-1987 when an IPKF convoy was carrying ration it was attacked by LTTE and 11 Indian soldiers were killed. It was the flashpoint of breach between IPKF and LTTE and active confrontation between the two started. Prabhakaran, supreme leader of LTTE, went underground.
7. The Agreement or the Accord, as it is normally called ultimately, did not find favour with LTTE and in spite of the Agreement activities of LTTE on the Indian soil continued growing substantially.
374. LTTE became opposed to the Accord and also against IPKF. Prabhakaran at one stage even said that they were stabbed in the back by agreeing to the Accord and had been betrayed. There was more influx of refugees to India. Now LTTE complained of atrocities committed by IPKF on the Tamils in Sri Lanka and accused IPKF of torture, rape, murder, etc. As to what led India to enter into the Accord with the Sri Lankan Government and the background of the ethnic trouble in Sri Lanka and also reservations expressed on the Accord, there is the statement of R. M. Abhyankar (PW 173), Joint Secretary in the Ministry of External Affairs, Government of India. Two volumes of the book Satanic Force (MO 124 and MO 125) were published in India at the behest of LTTE which contained compilation of speeches of Prabhakaran and other articles and photographs showing the atrocities committed by IPKF on Tamils in Sri Lanka after the Accord and the animosity which Prabhakaran developed towards Rajiv Gandhi. The book was compiled by N. Basant Kumar (PW 75). He is an artist by profession. The printing and publishing of the book was authorised and financed by LTTE. It was published in January 1991 and contains information up to March 1990. In his statement Brig. Vivek Sapatnekar (PW 186), who was earlier in charge of IPKF operations in Sri Lanka, also stated that the Accord was not having the support of LTTE. MO 125 (Vol. 2 of Satanic Force) contained the news item published in the Indian Express of April 1990 which quotes the speech by Prabhakaran saying that he was against the former leadership in India and that LTTE was not against India or Indian people. These two volumes of Satanic Force contain over 1700 pages. No article or writing has been pointed out from Satanic Force from which it could be inferred that it was ever in the contemplation of Prabhakaran or any other functionary of LTTE questioning the sovereignty and territorial integrity of India; rather they identified Rajiv Gandhi with the Accord and the atrocities committed by IPKF. In the editorial in the official journal of LTTE Voice of Tigers dated 19-1-1990 the following comment appears :
“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 accrediting to Mr. Karunanidhi, the Tamil Nadu Chief Minister, the role and responsibility of mediating with the Tamil Tigers. The 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 northeastern province.”
375. It may be noted that in the general elections in India the Congress was defeated and a new Government under V. P. Singh as Prime Minister had taken over. Withdrawal of IPKF from Sri Lanka was completed on 24-3-1990. In March 1991 general elections in India were again announced. First phase of elections was over on 20-5-1991 and the next phase was to be held on 23-5-1991. This second phase was postponed for 15 days on account of assassination of Rajiv Gandhi on 21-5-1991.
376. Aveek Sarkar (PW 255) had an interview with Rajiv Gandhi which was published in the Sunday Magazine issue of 12-8-1990/19-8-1990. The interview is dated 30-7-1990/31-7-1990. In the interview Rajiv Gandhi supported the Accord and criticised V. P. Singh in withdrawing IPKF. He said there was no rationale behind the withdrawal and as things till then had not stabilised and the Accord had not been fully implemented. In the Congress manifesto which was released in 1991 for the Lok Sabha elections, the Congress supported the Accord. This manifesto was brought on record in the statement of K. Ramamurthy (PW 258), who was the President of Tamil Nadu Congress Committee at the relevant time.
377. Rajiv Gandhi in August 1990 predicted general elections in the country in early 1991. In the writings and articles in the two volumes of Satanic Force there were scathing attacks on Shri Rajiv Gandhi, who was projected as the perpetrator of the sufferings of Tamils in Sri Lanka by sending IPKF. Prabhakaran, when he came out of his hiding after about two-and-a-half years, made a statement in April 1990 that he was against the former leadership, namely, Rajiv Gandhi. Though the Congress led by Rajiv Gandhi was out of power in 1990 there was clear indication of mid-term poll and perceptible upswing in the popularity of Rajiv Gandhi. LTTE, apprehended the reversal of the Government of India’s policy of non-interference towards Sri Lanka and the possibility of return of Rajiv Gandhi as Prime Minister. Rajiv Gandhi stood for territorial integrity of Sri Lanka and for the role of various Tamil organizations in Sri Lanka for any Tamil solution. LTTM on the other hand claimed to be the sole representative body of Tamils there.
378. It was on this account, submitted Mr. Natarajan, that there was conspiracy to eliminate Rajiv Gandhi in order to prevent him from coming back to power. He said LTTE perceived the Accord as an object to stop the creation of a separate Tamil Eelam which went against the basic objective of LTTE. The creation of a separate Tamil Eelam was thwarted by the induction of IPKF and in the fight with IPKF more Sri Lankan Tamils died than they died fighting Sri Lankan army. IPKF committed atrocities on Tamils in Sri Lanka. LTTE thus turned against the Government of India and the former leadership as it identified Rajiv Gandhi and his Government as bringing the struggle of Sri Lankan Tamils to square one. Rajiv Gandhi and the Congress manifesto supported the Accord even after IPKF had been withdrawn from Sri Lanka. Mr. Natarajan said that the motive was not to overawe the Government of India or to create terror as was being alleged by the prosecution. Animosity of LTTE was only against Rajiv Gandhi who was identified with the Accord. Prabhakaran, the supreme leader of LTTE, had clearly stated more than once that he was not against the Indian Government and the Indian people.
379. According to prosecution conspiracy was activated with the publication of an interview of Rajiv Gandhi in the Sunday Magazine and now the conspiracy was put into operation. First group of conspirators to achieve the object of conspiracy arrived in India on 12-9-1990. This group consisted of Vijayan (A-12), Selvaluxmi (A-13) and Bhaskaran (A-14). Bhaskaran (A-14) is the father of Selvaluxmi (A-13). They arrived at Rameshwaram in India like other refugees from Sri Lanka and got themselves registered. At Jaffna in Sri Lanka they were seen off by deceased accused Sivarasan without paying any toll to LTTE. It is in evidence that anyone leaving Sri Lanka from the area in the control of LTTE had to pay two sovereigns of gold and Rs. 1500. The reason for not paying the toll was that they had left for India to take a house on rent for the work of LTTE. From Rameshwaram they were sent to the refugee camp at Tuticorin. Sivarasan visited them there on two occasions – once in December 1990 and a second time in the first week of April 1991. Sivarasan during his visit in December 1990 told Vijayan (A-12) that he was to take a house on rent in Madras at the time when he would be so told. In April 1991 Sivarasan gave instructions to Vijayan (A-12) to go to Madras and to take a house on rent with the help of Vijayan’s cousin Munusamy. At that time Sivarasan also told Vijayan (A-12) that he would be meeting him on 10-4-1991 at the house of Munusamy. Vijayan (A-12) was given Rs. 1000 towards expenses for the purpose by Sivarasan. Sivarasan did meet Vijayan (A-12) at Munusamy’s house as promised. Sivarasan wanted that the house which was to be taken on rent should be in a secluded place as “he thought that the movements of LTTE men are not known to the neighbours”. House of J. Duraisamy Naidu (PW 82) at No. 12, Eveready Colony, Kodungaiyur, Madras (Kodungaiyur house) was thus taken on rent by Vijayan (A-12). He, thereafter brought his family [Selvaluxmi (A-13) and Bhaskaran (A-14)] from the refugee camp at Tuticorin and started living in this Kodungaiyur house from 20-4-1991.
380. Second group comprising Robert Payas (A-9), his wife Prema, his sister Premlatha, Jayakumar (A-10) and his wife Shanthi (A-11) came to India from Sri Lanka on 20-9-1990 as refugees and reported at Rameshwaram. Shanthi (A-11) is an Indian Tamil while Robert Payas (A-9) and Jayakumar (A-10) are Sri Lankan Tamils. This group was similarly exempted from paying toll to LTTE and was sent for taking a house on rent for the work of LTTE. They registered themselves at the refugee camp there. They left for Madras on their own and on reaching there stayed with the relatives of Shanthi (A-11). From 1-10-1990 the house of G. J. Shrinivasan (PW 252) bearing No. 26, Sabari Nagar Extn., Porur, Madras (Porur house) was taken on rent in the name of Jayakumar (A-10). It was taken through M. Utham Singh (PW 56), a property agent and proprietor of Ebenezer Stores. Sivarasan (deceased accused) and Kanthan (not named accused) used to visit them in their Porur house. Telephone No. 2343402 installed at Ebenezer Stores, Porur was used by Sivarasan, Robert Payas (A-9) and others to contact one another. A wireless set was installed in the Porur house, which was numbered as Station No. 95. Till December 1990 families of Robert Payas (A-9), Jayakumar (A-10) and Shanthi (A-11) stayed together in this house, Sivarasan then wanted Robert Payas (A-9) to take another independent house at a secluded place for him (Sivarasan) to stay. This third house was taken on rent in the name of Ramasamy, father-in-law of Jayakumar (A-10) [father of Shanthi (A-11)]. The house was owned by K. Kottammal (PW 63) and was at No. 153, Muthamil Nagar, Kodungaiyur, Madras (Muthamil house). On 18-12-1990, Jayakumar (A-10), Shanthi (A-II) and their child moved to this house and Sivarasan also started staying with them.
381. Third group comprising Ravi (A-16) and Suseendran (A-17) along with Sivarasan arrived in India from Sri Lanka in the end of December 1990. Both Ravi (A-16) and Suseendran (A-17) are Indian Tamils. This group was seen, off at Sri Lanka by Pottu Omman. They were instructed by Pottu Omman to follow the instructions of Sivarasan. Both Ravi (A-16) and Suseendran (A-17) had gone to Jaffna and took training in LTTE camp in arms and in their indoctrination regarding atrocities committed by IPKF on Tamils in Sri Lanka and to enlist more people in Tamil Nadu in India for the movement of LTTE and for the creation of a Tamil State separate from India.
382. Fourth group comprising Arivu (A-18) and Irumborai (A-19) came to India in October 1990. They had gone to Sri Lanka in May 1990 with Baby Subramaniam where they had met Prabhakaran.
383. In the fifth group there is only one person – Murugan (A-3), who arrived in India clandestinely in the third week of January 1991 with the directions from Pottu Omman. He reached Kodaikkarai on the Indian coast where Sivarasan was waiting to receive him. They thereafter went to the house of one Mahalingam, a Sri Lankan Tamil, residing in Kodaikkarai. Then they came to Madras and went to the Porur house where now Robert Payas (A-9) was staying with his family. Murugan (A-3) stayed there for a few days. Muthuraja, an LTTE activist took Murugan (A-3) to the house of Padma (A-21), who was staying there with her son Bhagyanathan (A-20). This house is situated at No. 22, Muthiah Garden Street, Royapettah, Madras (Royapettah house).
384. Sixth group comprising Kanagasabapathy (A-7) and Athirai (A-8) came to India on 23-4-1991 and was seen off by Pottu Omman with certain specific instructions in an LTTE boat with an escort. They reached Kodaikkarai on the coast of India and were received by Chokan, an LTTE helper, who took them to the house of V. Kantha Raja (PW 60). After staying there for two days Kanagasabapathy (A-7) and Athirai (A-8) left for Madras and stayed in the house of Jai Kumari (PW 109), niece of Kanagasabapathy (A-7). Sivarasan met them there on 2-5-1991 as per the prior arrangement, fixed by Pottu Omman.
385. Seventh and the last group consisting of nine persons under the leadership of Sivarasan arrived at Kodaikkarai on 1-5-1991 in an LTTE boat. This group was seen off by Pottu Omman on 27-4-1991. The boat in which they were travelling developed a snag and had to return. They left the shore of Sri Lanka on 30-4-1991 when again Pottu Omman was there to see them off. Nine persons were Sivarasan, Santhan (A-2), Shankar (A-4), Vijayanandan (A-5), Ruban (A-6), Suba, Dhanu, Nero and Keerthy. Last four and Sivarasan are deceased accused. On 2-5-1991 Sivarasan took Suba and Dhanu to the house of Jayakumar (A-10) (Muthamil house) and Nero to the house of Vijayan (A-12) (Kodungaiyur house). 6n 6-5-1991 Sivarasan took Suba and Dhanu also to the Kodungaiyur house. A wireless set, which belonged to Sivarasan, was installed by Nero in the Kodungaiyur house which is Station No. 910 and started communicating with LTTE Headquarters in Sri Lanka. On 3-5-1991 Santhan (A-2) and Ruban (A-6) went to Porur house of Robert Payas (A-9) at Madras. Shankar (A-4) stayed at Kodaikkarai till 15-5-1991. Then he came to Madras and stayed at Esware Lodge uptil 23-5-1991. Vijayanandan (A-5) went to Trichi where he stayed till 7-5-1991 and then came to Madras and stayed at Komala Vilas Lodge, Madras. Arivu (A-18) also came to Madras on 9-5-1991 and took Vijayanandan (A-5) to meet N. Basant Kumar (PW 75) on the instructions of Sivarasan. Keerthy @ Driver Anna, who was also in the nine-member group, who had come to India on 1-5-1991, was later found dead along with Sivarasan, Suba and others in the house at Konanakunte, Bangalore on 20-8-1991. There is nothing on record as to where Keerthy stayed from the time of his arrival in India till he was found dead.
386. When Murugan (A-3) met Shankar (A-4) at Kodaikkarai on 14-5-1991 he gave him a slip of paper (Exh. P-1062) containing the names of Nalini (A-1) and Thas [also pronounced as Das by which name Murugan (A-3) was well known] and telephone number 419493, which was the phone number of the office of Nalini (A-1). Before Santhan (A-2) arrived in India in the nine-member group on 1-5-1991 at Kodaikkarai Shanmugavadivelu (A-15) (also described as Thambi Anna) had made arrangements with P. Veerappan (PW 102), a travel agent and C. Vamadevan (PW 114), a Sri Lankan travel agent, for getting an Indian passport and travel documents for him [Santhan (A-2)] in the last week of April 1991 for Santhan (A-2) to go abroad.
387. Sivarasan has been travelling between India and Sri Lanka though clandestinely during the period February 1990 to May 1991. Evidence shows his presence in these two countries as follows :
1. 15-2-1990 Arrives in India along with Santhan (A-2)
2. 21-6-1990 Went to Sri Lanka
3. Last week of Sivarasan, Ravi (A-16) and Suseendran (A-17) December 1990 arrive in India
4. February 1991 Went to Sri Lanka
5. 24-4-1991 He was at Madras in the house of Vijayan (A- 12)
6. 27-4-1991 He was at Jaffna in Sri Lanka
7. 1-5-1991 Reached Kodaikkarai
388. Uptil now we have referred to that part of the evidence as to how different groups arrived in India to achieve the object of conspiracy. They were all LTTE activists or its ardent supporters and were to act under the instructions of Sivarasan. It is not disputed, however, that existence of LTTE was already in India.
389. The first step was to hire places for the shelter of the conspirators and this was achieved by hiring houses – one at Porur and two at Kodungaiyur. Fourth house is that of Padma (A-21). Nalini (A-1) was living with her mother. Since October 1990 she started living separately in a house at No. 11, High Court Colony, Villiwakkam, Madras. On 7-3-1991 Rangan (A-24) took on rent a house at No. 3, Park Avenue, Alwar Tirunagar, Madras, purportedly for the stay of LTTE men. The house belonged to Nageswara Rao (PW 178). On 21-3-1991 a house at Indira Nagar, Bangalore was taken on rent in the name of Sivapackiam, wife of K. Jagannathan (PW 211) at the instance of Dhanasekaran (A-23) for the alleged purpose of serving as a hideout for the conspirators.
390. Of the remaining accused facing trial, Subha Sundaram (A-22) owned a studio and had trained deceased accused Haribabu in photography. Haribabu was assigned the role of taking photographs of the scene of crime. Dhanasekaran (A-23), Rangan (A-24) and Vicky (A-25) transported the deceased accused Sivarasan, Suba, etc., who were proclaimed offenders, from Madras to Bangalore in a tanker owned by Dhanasekaran (A-23). Ranganath (A-26) harboured proclaimed offenders Sivarasan, Suba and others.
391. According to prosecution, steps to achieve the object of conspiracy had already started even prior to arrival in India on 1-5-1991 of the assassins Dhanu and Suba accompanied by Sivarasan and six others. Houses for the use of LTTE persons had already been hired. In March 1991 Arivu (A-18), Bhagyanathan (A-20) and deceased accused Haribabu removed certain incriminating material of LTTE from the house of M. Sankari (PW 210) and kept them in the house of V. Radhakrishnan (PW 231). Baby Subramaniam, an LTTE activist was staying in the house of M. Sankari (PW 210). Arivu (A-18) purchased a Kawasaki Bajaj motorcycle (MO 82) on 4-5-1991. Vijayan (A-12) purchased two bicycles for use of Suba and Dhanu. A Maruti Gypsy (MO 540) had already been purchased by Dhanasekaran (A-23) in November 1990 in the name of Mohan. This Maruti Gypsy was driven by Rangan (A-24) and was used by deceased accused Sivarasan, Suba, Nero, Suresh Master and Keerthy for their movements in Bangalore After, the crime. On 3-5-1991 Arivu (A-18) purchased a 12-volt Exide car battery (MO 209) for use in the house of Vijayan (A-12) to operate the wireless set installed there (Station No. 910). During the second week of May 1991 Arivu (A-18) purchased two 9-volt Golden Power batteries and gave them to Sivarasan. These Golden Power batteries are alleged to have been ultimately used to detonate the belt bomb on 21-5-1991 killing Rajiv Gandhi and others. Various conspirators had been meeting each other under the charge of Sivarasan for communicating amongst themselves. While at Madras they used telephone numbers of Ebenezer Stores (2343402), Nalini (A-1) (419493) and of Shanmugavadivelu (A-15) (864249). An OYT telephone connection was applied for on 8-4-1991 in the name of Shanthi (A-11) for the shop premises hired in her name for coffee powder machine. On 11-5-1991 Nalini (A-1) took Suba and Dhanu to the shop of M. Gunathilal Soni (PW 179), gave him the measurement of Suba for stitching a loose salwar, kameez from the material bought from the shop itself. This salwar kameez was used by Dhanu for concealing the improvised explosive device. On 18-4-1991 Nalini (A-1), Murugan (A-3), Arivu (A-18) and Subha Sundaram (A-22) and deceased accused Haribabu attended the meeting of Rajiv Gandhi and Jayalalitha at Marina Beach, Madras. On the night between 7-5-1991/8-5-1991 Nalini (A-1), Murugan (A-3), Arivu (A-18) and deceased accused Sivarasan, Suba, Dhanu and Haribabu attended the meeting of Prime Minister V. P. Singh at Nandanam, Madras, where they conducted a “dry run” by securing access to V. P. Singh for garlanding him. On 16-5-1991/17-5-1991 Vijayan (A-12), Sivarasan and Nero dug a pit in the kitchen room of the house of Vijayan (A-12) for the purpose of concealing wireless set and gun. On 17-5-1991 Ruban (A-6) along with Vijayendran (PW 111) was sent to Jaipur for the purported purpose of fixing an artificial limb on the leg of Ruban (A-6) but in fact for hiring safe accommodation. Similar role has been assigned to Robert Payas (A-9) and Athirai (A-8) for hiring a place at Delhi for LTTE activists. All the payments for hiring accommodation, buying vehicles and expenses of Ruban (A-6) and going to Jaipur, etc. were borne by Sivarasan. On 19-5-1991 tour programme of Rajiv Gandhi to Tamil Nadu for 21-5-1991 and 22-5-1991 was published in local newspapers. When Nalini (A-1), Suba and Dhanu after visiting Mahabalipuram came to the house of Nalini (A-1) at Villiwakkam they found Sivarasan waiting for them. He showed the clipping of the Tamil newspaper in which the visit of Rajiv Gandhi to Tamil Nadu for election campaign was published. Sivarasan told Nalini (A-1) to take two days’ leave. On 19-5-1991 itself Sivarasan went to the house of N. Basant Kumar (PW 75) where Vijayanandan (A-5) was staying and shifted him to the house of one Vanan. On 20-5-1991 Kanagasabapathy (A-7) along with Vanan went to Delhi by flight to fix a house there. One house in Delhi was secured at Moti Bagh belonging to K. Thiagarajan (PW 57). On 20-5-1991 Sivarasan visited the house of Bhagyanathan (A-20) where Bhagyanathan (A-20), Murugan (A-3), Arivu (A-18) and deceased accused Haribabu were present. A message had already been left at the house of Haribabu when he was not there by Murugan (A-3) to go to the house of Bhagyanathan (A-20). Nalini (A-1) also joined the group. Sivarasan told Nalini (A-1) to apply for half day’s casual leave on 21-5-1991 as the venue of the public meeting, which Rajiv Gandhi was to address, was at Sriperumbudur. Arivu (A-18) gave a Kodak colour film roll to Haribabu. This Kodak colour film was to be used by Haribabu to take pictures of the scene of crime. On 21-5-1991 Haribabu purchased a sandalwood garland from Poompuhar Handicrafts. He then went to the studio of K. Ravisankaran (PW 151) and borrowed his camera (MO 1). In the afternoon he went to the studio of Subha Sundaram (A-22) when he was having the garland packet in his hands. On 21-5-1991 Nalini (A-1) got permission from her office to leave early and told her colleague N. Sujaya Narayan (PW 96) that she was going to Kanchipuram for buying sarees. She went to her mother’s house at Royapettah where Murugan (A-3) was present. He directed her to rush to her Villiwakkam house where Sivarasan would be waiting for her or else he would be angry. From there Nalini (A-1) immediately went to her house at Villiwakkam. It was about 3.00 p.m.
392. On that very day Sivarasan dressed in white kurta pyjama left the house of Jayakumar (A-10). Santhan (A-2) was also present there at that time. Sivarasan was armed with a pistol. Sivarasan then went to the house of Vijayan (A-12) and talked to Suba and Dhanu. Both Suba and Dhanu went inside the room and after about 30 to 40 minutes came out. Dhanu was wearing the orange-coloured salwar kameez. Sivarasan, Suba and Dhanu went to the house of Nalini (A-1) at Villiwakkam in an auto-rickshaw. Sivarasan had asked Vijayan (A-12) to hire the auto-rickshaw and had told him to stop at a distance from his house. Suba told Nalini (A-1) that Dhanu was going to create history by assassinating Rajiv Gandhi and they would be happy if she participated in that. Nalini (A-1) agreed. Nalini (A-1) also saw that some apparatus was concealed underneath the dress of Dhanu. All four of them, namely, Sivarasan, Suba, Dhanu and Nalini (A-1) went in the auto-rickshaw to a nearby temple where Dhanu offered prayers. They then went to Parry’s Corner where Haribabu was waiting for them with a camera and the sandalwood garland. All five then left for Sriperumbudur by bus and reached there at about 7.30 p.m. Near Indira Gandhi’s statue, Sivarasan directed Nalini (A-1) to give cover to Suba and Dhanu at the place of meeting before the occurrence and after the occurrence had taken place to take care of Suba and to wait for him near the statue of Indira Gandhi for about ten minutes and if he failed to turn up they could proceed as already planned’ They then proceeded towards the place of meeting. Sivarasan and Haribabu went towards the stage. Nalini (A-1), Suba and Dhanu sat in the women’s enclosure. Sivarasan then came to the women’s enclosure, got the garland parcel from Suba and took with him Dhanu towards the stage. Nalini (A-1) saw Dhanu standing in between a young girl (Kokila) and a lady (Lata Kannan) near the red carpet. It was about 9.30 p.m. Thereafter Rajiv Gandhi arrived. Nalini (A-1) and Suba got up from the women’s enclosure and moved away. There was a loud explosion. Nalini (A-1) and Suba ran across to Indira Gandhi’s statue and waited for Sivarasan. Sivarasan came there and told them that Rajiv Gandhi and Haribabu had died in the blast and that it was unfortunate that Haribabu died. Dhanu of course exploded herself. All this has come in the confession of Nalini (A-1) the admissibility of which has been challenged by Mr. Natarajan.
393. After the occurrence prosecution led evidence of harbouring, escaping and removal and destruction of incriminating evidence.
394. Dhanu is already dead in the blast. She was a human bomb. Principal perpetrators of the crime and others met their end during the course of investigation. They are all dead. They committed suicide. They are Sivarasan, Suba, Haribabu, Nero, Shanmugham, Trichy Santhan, Suresh Master, Dixon, Amman, Driver Anna @ Keerthy and Jamuna @ Jamila, all Sri Lankan nationals.
395. First information report of the crime was lodged at 1.15 a.m. on 22-5-1991 under Sections 302, 307, 326 IPC and Section’s 3 to 5 of the Indian Explosives Act. Camera (MO 1) was found lying on the dead body of Haribabu without any damage. Ten photographs taken by Haribabu before he died at the scene of crime showed the presence of the accused Sivarasan, Dhanu, Suba and Nalini (A-1). One photograph also showed the event of the explosion itself. (Exh. P-735 is the exposed part of file film and MO 542 – is the unexposed part of the film.) During the course of investigation the accused were arrested on various dates and confessions of all the accused except Shankar (A-4), Vijayanandan (A-5), Ruban (A-6), Kanagasabapathy (A-7), Shanthi (A-11), Selvaluxmi (A-13), Bhaskaran (A-14), Subha Sundaram (A-22) and Ranganath (A-26) were recorded. Their dates of arrest, confession and nationality are as under :
Name Nationality Date of Date of arrest confession
Nalini (A-1) Indian 14-6-1991 9-8-1991 Santhan (A-2) Sri Lankan 22-7-1991 17-9-1991 Murugan (A-3) Sri Lankan 14-6-1991 8-8-1991 Shankar (A-4) Sri Lankan 19-5-1992 No confession Vijayanandan (A-5) Sri Lankan 16-5-1992 No confession Ruban (A-6) Sri Lankan 16-5-1992 No confession Kanagasabapathy (A-7) Sri Lankan 4-7-1991 No confession Athirai (A-8) Sri Lankan 5-7-1991 29-8-1991 Robert Payas (A-9) Sri Lankan 18-6-1991 15-8-1991 Jayakumar (A-10) Sri Lankan 26-6-1991 22-8-1991 Shanthi (A-11) Indian 16-5-1992 No confession Vijayan (A-12) Sri Lankan 8-7-1991 4-9-1991 Selvaluxmi (A-13) Indian 16-5-1992 No confession Bhaskaran (A-14) Indian 8-7-1991 No confession Shanmugavadivelu (A-15) Sri Lankan 16-5-1992 17-5-1992 Ravi(A-16) Indian 6-1-1992 14-2-1992 Suseendran (A-17) Indian 6-1-1992 14-2-1992 Arivu (A-18) Indian 19-6-1991 15-8-1991 Irumborai (A-19) Indian 9-10-1991 3-12-1991 Bhagyanathan (A-20) Indian 11-6-1991 5-8-1991 Padma (A-21) Indian 11-6-1991 7-8-1991 Subha Sundaram (A-22) Indian 2-7-1991 No confession Dhanasekaran (A-23) Indian 13-10-1991 4-11-1991 Rangan (A-24) Sri Lankan 28-8-1991 23-10-1991 Vicky (A-25) Sri Lankan 4-2-1992 24-2-1992 Ranganath (A-26) Indian 28-8-1991 No confession
396. The immediate fallout of the assassination of Rajiv Gandhi was that general elections in India got postponed. A notification was issued by the Election Commission of India on 22-5-1991 stating that earlier notification dated 19-4-1991 had been issued under Section 30 of the Representation of the People Act, 1951 fixing 20-5-1991, 23-5-1991 and 26-5-1991 as the dates on which poll shall be held in the parliamentary constituencies in India and that “the country has suffered a great tragedy in the death of Shri Rajiv Gandhi at the assassins’ hands”. The Election Commission directed that election to the constituencies fixed for 22-5-1991 shall be held on 12-6-1991 and that fixed for 26-5-1991 shall be held on 15-6-1991.
397. During the course of investigation, prosecution as stated above, arrested the accused on various dates, recorded their confessions, recorded the statements of witnesses, collected documents and other material and submitted challan under Section 173 of the Code for offences punishable under Section 120-B IPC read with Sections 302, 326, 324, 201 and 212 IPC; Sections 3, 4 and 5 of the Explosive Substances Act; Sections 25 and 27 of the Arms Act; Section 12 of the Passport Act; Section 14 of the Foreigners Act; Section 6(1-A) of the Wireless Telegraphy Act and Sections 3(3), 4(2), 4(3) of TADA, 1987. Specific offences committed by each of the accused in pursuance of the criminal conspiracy were also stated.
398. Mr. Natarajan took us through the evidence. He understood the futility of the arguments, and in our opinion rightly, to challenge the very existence of a conspiracy. From the evidence led by the prosecution he did not dispute that reasonable grounds existed to believe that there was a conspiracy to commit an offence. According to him the object of conspiracy was to assassinate Rajiv Gandhi and not to commit any terrorist act or disruptive activity falling under Sections 3 and 4 of TADA as contended by the prosecution. Having accepted the existence of conspiracy he said it was only to be seen as to what was the object of the conspiracy and who were the members of the conspiracy. Confessions of the accused have been recorded under Section 15 of TADA. Rule 15 of the TADA Rules framed under Section 28 of TADA prescribes the conditions for recording of confession made to the police officer. He said confessions were not voluntary and have been retracted by the accused. Under Section 20 of TADA certain modified provisions of the Code are applicable. Except for Shanmugavadivelu (A-15), who was taken into custody on 16-5-1992 and his confession recorded on the following day, in the case of other accused confessions have been recorded only a day or so when the police remand was to expire which was for 60 days. No sufficient time was granted to the accused to reflect if they wanted to make confession. In the case of Nalini (A-1) and Arivu (A-18) mandatory safeguards have been violated. Confession of one accused could not be used for corroboration of the confession of another accused.
399. Mr. Natarajan said that confessions of the accused could not be taken into consideration. His arguments were :
(1) All these confessions have been retracted by the accused having been taken under coercion and under police influence;
(2) Sufficient time was not given to the accused before recording of the confession. They were given only a few hours to reflect if they wanted to make any confession;
(3) Under the provisions of the Code as amended by TADA, the police took full remand of the accused for 60 days and when a day or so before the remand was to expire the accused were made to give their confessions. There is, thus, every possibility of the confessions being extracted. It cannot also be ruled out that the confessions were obtained by causing physical harm to the accused and playing upon their psychology;
(4) Confessions of Nalini (A-1) and Arivu (A-18) are otherwise inadmissible as mandatory provisions contained in Section 15 of TADA and Rule 15(3) of the TADA Rules have been violated;
(5) All the accused were kept together in a building called Malagai situated at Green Pass Road, Madras which were the headquarters of CBI. Firstly, remand was taken for one month but no confession came to be recorded. Further remand of one month was taken. During this period, Poonamallai Sub-Jail was denotified as jail and handed over to CBI and converted into police station. All the accused were transferred there and again kept together under the control of special investigating team of CBI. Legal principles required that the accused should have been kept separate and sufficient time should have been given to them for their minds to reflect if they wanted to make a clean breast of the whole thing;
(6) It is settled law that confession of an accused cannot be used for corroboration of the confession made by co-accused. The rule of prudence so requires; and
(7) All these confessions are post-arrest confessions and confession of one accused cannot be used against the other even with reference to Section 10 of the Evidence Act. It could not be said that object of conspiracy was not accomplished by the assassination of Rajiv Gandhi and that the conspiracy was still in existence.
400. Coming to the confession of Nalini (A-1), it was submitted by Mr. Natarajan that she, in her confession, referred to Murugan (A-3), Arivu (A-18), Bhagyanathan (A-20) and Padma (A-21) among the accused now arraigned before the Court. She also referred to Jayakumar (A-10) though he comes in the picture after the act of assassination had been completed. Nalini (A-1) who was present at the scene of the crime is the sole surviving accused of the group that had gone to Sriperumbudur in furtherance of the conspiracy to assassinate Rajiv Gandhi. Nalini (A-1) has denied in her statement under Section 313 of the Code that her confession was voluntary. She said blank papers were got signed from her. This confession does not satisfy the requirement of law under Section 15 of TADA and Rule 15(3) of the TADA Rules though it is not disputed that all the confessions are recorded by V. Thiagarajan (PW 52), Superintendent of Police.
401. It was submitted that the certificate required to be recorded under Rule 15(3) of the Rules of TADA is on the same lines as given in Section 164(4) of the Code. Section 164(4) of the Code is as under :
164. (4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect –
‘I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A. B. Magistrate.'”