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TMI Blog1999 (5) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... shed into smithereens. As for the assassin nothing except a few pieces of charred limbs and her sundered head were left behind. In the explosion lives of 18 others also got extinguished. Investigation pointed to a minutely orchestrated cabal, masterminded by some conspirators to extirpate the former Prime Minister from this terrestrial terrain. In the final charge-sheet made by the Central Bureau of Investigation (CBI) all the 26 appellants now before us, were arraigned as members of the conspiracy which targeted, inter alia, Rajiv Gandhi. The Special Judge who tried the case found all the 26 appellants guilty of various offences charged, the gravamen of them being Section 302 read with Section 120-B IPC. All of them were hence convicted of those offences and all of them were sentenced to death. 2. These appeals by right are under Section 19 of the Terrorists and Disruptive Activities (Prevention) Act (TADA for short). The Special Judge submitted the records to this Court for confirmation of the death sentence. We heard all the above matters together at great length, perhaps the longest heard criminal appeal in this country. Shri Altaf Ahmad, Additional Solicitor General who was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys. 6. Skirmishes became rampant between members of the IPK Force and LTTE activists. In October 1987, a vessel carrying 17 LTTE functionaries was intercepted by the Sri Lankan navy while patrolling on the high seas and the passengers were held captives. Leaders of LTTE made a bid to save them by appealing to the Indian Government to intervene, but there was no response. 12 out of 17 captives committed suicide by consuming Pottasium Cyanide. There was counter attack on IPK Force when LTTE commandos captured a ship carrying provisions for the army, and in the encounter which ensued 11 Indian soldiers were killed. 7. In the meanwhile one Varadaraja Perumal who was an accredited leader of a rival organisation called Eelam Peoples Revolutionary Liberation Front (EPRLF) got elected from the Northern Zone as a follow-up step of the terms of Sri Lanka-India Accord to which reference was made above. Later the Indian Government under the leadership of Rajiv Gandhi agreed for making a gradual denudation of IPK Force from Sri Lanka. 8. In the general election which was held in 1989, a new Government headed by Sri V.P. Singh as Prime Minister came to power in India. The new Government accel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op ranking hardcore LTTE leader by name Sivarasan. 13. It is appropriate to mention now itself that the said Sivarasan would have been one of the most seriously involved accused in this case, but he is not alive now as he abruptly ended his life when he was sure of being nabbed by the police. Among the conspirators nobody else seems to have played a greater role on the Indian soil than what Sivarasan had played. Sivarasan reached India sometime in December 1990 and in collaboration with those who arrived in the first batch he managed to secure a house building in a locality called Kodangiyoorat Madras. 14. The next batch consisted of Robert Payas (9th accused), his wife and sisters and Jayakumar (10th accused) together with his wife Shanthi (11th accused). They arrived in India in September 1990. They took another house on rent at a more secluded locality in Kodangiyoor as suggested by Sivarasan who too started residing therein. The third batch consisting of Ravichandran (16th accused) and Suseendran (17th accused) came to India on December 17, 1990. Murugan (3rd accused) reached India in January 1991 and Radhayya (7th accused) and Chandralekha alias Athirai alias Guari (8th accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ached that Rajiv Gandhi was addressing a meeting at Marina Beach, Madras on 18-4-1991 four persons - Nalini (A-1), Murugan (A-3), Subha Sundaram (A-22) and one Haribabu went to the meeting place. The conspirators thought of conducting a trial for the purpose of assassinating Rajiv Gandhi. When they got information that V.P. Singh, a former Prime Minister, was addressing a meeting at Madras on 7th May, 1991 Sivarasan took Suba and Thanu to that place (Nandanam, in Madras), Nalini (A-1), Murugan (A-3) and Arivu (Perarivalan) and Haribabu also accompanied them. The idea was to give advance training to Suba and Thanu as to how to go near a former Prime Minister. V.P. Singh arrived at the meeting place only during the wee hours of 8th May, 1991. Before V.P. Singh could address the gathering, Nalini (A-1), Thanu and Suba made a bid to garland the visiting former Prime Minister on the rostrum of the meeting. The success of the aforesaid trial emboldened Suba and Thanu and they on 9th May, 1991 conveyed their confidence in achieving the target to Akila who was Deputy Chief of intelligence wing of LTTE. (Akila was also put in charge of the Women Wing of the organisation). 20. With the succ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. 25. The auto-rickshaw which Vijayan (A-12) brought was not taken close to his house as Sivarasan had cautioned him in advance. He took Suba and Thanu in the auto-rickshaw and dropped them in the house of Nalini (A-1). Suba expressed gratitude of herself and her colleagues to Nalini (A-1) for the wholehearted participation made by her in the mission they had undertaken. She then told Nalini that Thanu was going to create history by murdering Rajiv Gandhi. The three women went with Sivarasan to a nearby temple where Thanu offered her last prayers. They then went to "Parry's Corner" (which is a starting place of many bus services at Madras). Haribabu was waiting there with camera and garland. 26. All the 5 proceeded to Sriperumpudur by bus. After reaching there they waited for the arrival of Rajiv Gandhi. Sivarasan instructed Nalini (A-1) to provide necessary cover to Suba and Thanu so that their identity as Sri Lankan girls would not be disclosed due to linguistic accent. Sivarasan further instructed her to be with Suba and to escort her after assassination to the spot where Indira Gandhi's statue is situate and to wait there for 10 minutes for Sivarasan to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrival of Rajiv Gandhi On seeing it Pottu Omman sent a wireless query to Sivarasan whether Thanu was identifiable in the photo. Sivarasan, Suba, Nalini (A-1), her husband Murugan (A-3) and mother Padma (A-21) proceeded to Tirupati to offer thanks-giving worship to the Lord, and they returned Madras on the next day. Sivarasan thereafter moved from place to place and Suba was shifted to different houses. 34. In the first week of June 1991, Sivarasan felt that he was within the penumbra of suspicion of the police. Thereupon he entrusted the remaining work to be carried out by Murugan (A-3). Though Sivarasan advised Nalini to escape to Sri Lanka she did not do so for practical reasons known to her. She and her husband Murugan (A-3) again proceeded to Tirupati on 9-6-1991 in cognito. Murugan got his head tonsured by way of redeeming a vow. 35. By the middle of June, photographs of Nalini (A-1) and Suba appeared in the newspapers. Sivarasan kept Pottu Omman informed of the developments in India through wireless transmissions. 36. On 11-6-1991 Bhagyanathan (A-20) and Padma (A-21) were arrested by the police. Three days later Nalini (A-1) and Murugan (A-3) were arrested. The said deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t each accused as the same shall be referred to when we consider the liability of the each accused.) 40. The Special Judge, after a marathon trial, convicted all the 26 accused of all the main offences charged against each of them. He sentenced all of them to the extreme penalty under law (i.e. death) for the principal offence under Section 302 read with Section 120-B IPC. In addition thereto A-1 was again sentenced to death under Section 3(1)(ii) of the TADA. Ravichandran (A-16) and Suseendran (A-17) were further convicted under Section 5 of TADA and were sentenced to imprisonment for life. For other offences of which the accused were convicted the trial court awarded sentences of lesser terms of imprisonment. 41. Before we proceed to discuss the evidence relating to the main offence under Section 302 read with Section 120-B of IPC it would be advantageous to consider whether prosecution could sustain offences under TADA (except the offence under Section 5 thereof which was fastened only against Ravichandran (A-16) and Suseendran (A-17) as that can be dealt with separately). 42. To constitute any offence under Sub-section (2) or Sub-section (3) of Section 3 of TADA the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. 44. A reading of the first sub-section shows that the person who does any act by using any of the substances enumerated in the sub-section in any such manner as are specified in the sub-section, cannot be said to commit a terrorist act unless the act is done "with intent" to do any of the four things: (1) to overawe the Government as by law established; or (2) to strike terror in people or any section of the people; or (3) to alienate any section of the people; or (4) to adversely affect the harmony amongst different sections of the people. 45. When the law requires that the act should have been done "with intent" to cause any of the above four effects such requirement would be satisfied only if the dominant intention of the doer is to cause the aforesaid effect. It is not enough that the act resulted in any of the four consequences. 46. It must be recapitulated now that the constitutional validity of Section 3 of TADA was challenged in this Court and a Five-Judge Bench has upheld the provisions in Kartar Singh v. State of Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely where the consequence of the crime committed by the accused create that result, would attract the provisions of Section 3(1) ' of TADA. Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the section, the offence would not attract Section 3(1) of TADA. 50. The Bench on the aforesaid reasoning, concluded thus: Thus, the true ambit and scope of Section 3(1) is that no conviction under Section 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by Section 3(1) by means of the weapons etc. as enumerated in the section and was committed with the motive as postulated by the said section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by Section 3(1) to achieve the objective as envisaged by the section, an accused should not be convicted for an offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was signed on 22-7-1987. Any one who criticised the policy of a Government could not be dubbed as a terrorist unless he had done any of the acts enumerated with the object of deterring the Government from doing anything or to refrain from doing anything. 56. Veluppillai Piribhakaran addressed a meeting on 4-8-1987, the text of the speech was published which is marked in this case as Ext.354. In the said speech he used strong language to criticise "India-Sri Lanka Accord" and the manner in which it was made. But no word of hatred was expressed towards the Government of India though he aired his opposition towards Sri Lankan Government which he described as "Sinhala racist government". He also spoke bitterly against the Sri Lankan Tamil leaders who supported the Accord. About the Indian Government and its Prime Minister the LTTE supremo said the following: The Indian Prime Minister offered me certain assurances. He offered a guarantee for the safety and protection of our people, I do have faith in the straightforwardness of the Indian Prime Minister and I do have faith in his assurances. We do believe that India will not allow the racist Sri Lankan State to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n then as follows: We are not against India or the Indian people but against the former leadership in India who is against the Tamil liberation struggle and the LTTE. 60. Nothing else is proved in the case either from the utterances of the top brass LTTE or from any writings edited by them that anyone of them wanted to strike fear in the Government either of center or of any State. 61. From the aforesaid circumstances it is difficult for us to conclude that the conspirators intended, at any time, to overawe the Government of India as by law established. 62. Nor can we hold that the conspirators ever entertained an intention to strike terror in people or any section thereof. The mere fact that their action resulted in the killing of 18 persons which would have struck great terror in the people of India has been projected as evidence that they intended to strike terror in people. We have no doubt that the aftermath of the carnage at Sriperumpudur had bubbled up waves of shock and terror throughout India. But there is absolutely no evidence that any one of the conspirators ever desired the death of any Indian other than Rajiv Gandhi. Among the series of confessions made by a reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht. Sub-section (3) reads thus: Without prejudice to the generality of the provisions of Sub-section (2), it is hereby declared that any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, which- (a) advocates, advises, suggests or incites; or (b) predicts, prophesies or pronounces or otherwise expresses, in such manner as to incite, advise, suggest or prompt, the killing or the destruction of any person bound by oath under the Constitution to uphold the sovereignty and integrity of India or any public servant shall be deemed to be a disruptive activity within the meaning of this section. 68. The killing of a public servant or killing of any other person bound by oath would be an offence under the Indian Penal Code. But it must be noted that such killing, as such, is not a disruptive activity. Certain type of actions which preceded such killing alone is regarded as a disruptive activity through the legal fiction created by Sub-section (3). Such actions include advocating, advising, suggesting, inciting, predicting, prophesying, pronouncing or prompting the killing of such persons. 69. In other words, all the preceding acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purview of Section 4 of TADA. 75. We are, therefore, unable to sustain the conviction of appellants for offences under Section 3 or 4 of TADA. 76. Now we have to proceed to consider whether the prosecution has succeeded in establishing the remaining offences found against the appellants. 77. We may put on record the following concessions made by the learned Counsel for all the appellants at the Bar: (I) Prosecution has successfully established that Rajiv Gandhi was assassinated at 10.19 P.M. on 21-5-1991 at Sriperumpudur by a girl named Thanu who became a human bomb and got herself exploded in the same event; and that altogether 18 persons, including the above two, died in the said explosion. (II) There is overwhelming evidence to show that assassination of Rajiv Gandhi was resulted from a conspiracy to finish him. (III) It is also established by the prosecution beyond doubt that Sivarasan alias Raghuvaran who was a top brass of LTTE was one of the kingpins of the said conspiracy. 78. We may also record at this stage that the two points which are seriously disputed by the learned Counsel for the appellants are the following: (1) Assassination of Rajiv Gandhi was not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clude the confessional statements from the purview of admissibility in this case on the premise that no offence under TADA could be found against any of the accused and hence the confessional statements would wiggle into the can of inadmissibility and consequently it cannot be used for offences outside TADA. To buttress up the said contention, learned Counsel invited our attention to the following observations made by a two-Judge Bench of this Court in Bilal Ahmed Kaloo v. State of A.P. 1997 Cri LJ 4091 : While dealing with the offences of which the appellant was convicted there is no question of looking into the confessional statement attributed to him, much less relying on it since he was acquitted of all offences under TADA. Any confession made to a police officer is inadmissible in evidence as for the offences and hence it is fairly conceded that the said ban would not wane off in respect of offences under the Penal Code merely because the trial was held by the Designated Court for offences under TADA as well. Hence the case against him would stand or fall depending on the other evidence. 82. Shri Altaf Ahmed, learned Additional Solicitor General submitted that the above obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the co-accused (which was tried in the same case) is only for a limited purpose, i.e. to be used for corroborating other evidence. In support of the contention learned Counsel relied on the decision of a two-Judge Bench of this Court in Kalpnath Rai v. State 1998 Cri LJ 369 . The ratio of that decision, on this point, is that "a confession made admissible under Section 15 of TADA can be used as against a co-accused only in the same manner and subject to the same conditions as stipulated in Section 30 of the Evidence Act." 87. Shri Altaf Ahmad, learned Additional Solicitor General pleaded for reconsideration of the aforesaid legal position adumbrated in the said decision and contended that the non obstante limb in Section 15(1) of TADA ("notwithstanding anything in the Code or Indian Evidence Act") is a clear legislative indicator to permit a confession made by an accused against a co-accused to be used with the same force as it can be used against the confessor himself. He further contended that the position became clearer after the subsection was amended by Act 43 of 1993. 88. We shall first examine whether the amendment as per Act 43 of 1993 has improved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used had committed such offence. 90. Act 43 of 1993 has snipped out Clause (c) which contained the words "that a confession has been made by a co-accused that the accused had committed the offence" and Clause (d) which contained-the words "that the accused had made a confession of the offence to any person other than a police officer" of Section 21(1). 91. No doubt, the amendment carried out in Section 15(1) and in Section 21(1) was in one package. It was done with a definite purpose. Before amendment the Designated Court had a duty to presume that an accused had committed the offence if his co-accused had, in a confession, involved the former. The words "shall presume" in Section 21(1) denoted that it was the duty of the court to draw such presumption. (See Section 4 of the Evidence Act). 92. This means, the court should have treated the confession of one accused as against a co-accused to be substantive evidence against the latter, and in the absence of proof to the contrary, the Designated Court would have full power to base a conviction of the co-accused upon the confession made by another accused. 93. But the amendment of 1993 has completely w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te is admissible under the Evidence Act, and a confession made by an accused to any person other than a police officer, if the accused was not in police custody, is also admissible under the Evidence Act. 98. The upshot of the above discussion is that the effect of the non obstante clause, when read with the words "shall be admissible in the trial of such person or a co-accused or abettor or conspirator" would only mean that the confession made to a police officer under Section 15(1) shall also become a confession like other admissible confessions under the Evidence Act. But it was not even in the legislative contemplation of Parliament to elevate a confession made to a police officer to a status even higher than a judicial confession recorded by a magistrate. 99. What is the evidentiary value of a confession made by one accused as against another accused apart from Section 30 of the Evidence Act? While considering that aspect we have to bear in mind that any confession when it is sought to be used against another has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accompli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. 102. The above observations had since been treated as the approved and established position regarding confession vis-a-vis another co-accused. Vivian Bose, J, speaking for a Three-Judge Bench in Kashmira Singh v. State of Madhya Pradesh 19 52 Cri LJ 839 had reiterated the same principle after quoting the aforesaid observations. A Constitution Bench of this Court has followed it in Hari Charan Kurmi and Jogia Hajam v. State of Bihar 1964 Cri LJ 344 . Gajendragadkar, J (as he then was) has stated the legal principle thus: The point of significance is that when the Court deals with the evidence by an accomplice, the Court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under Section 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and as such, is very weak; but, nevertheless, it is eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW-75 (Basant Kumar) accepted the work on payment of Rs. 2000/- per month. 105. We have pointed out earlier that LTTE was very much concerned about the general elections to the Lok Sabha in the year 1991. They felt that if Rajiv Gandhi came back to power, IPKF would again go to Sri Lanka which means lot more atrocities heaped upon LTTEs and the goal "Tamil Eelam" would again elude like a mirage. 106. In all probabilities a criminal intent to kill Rajiv Gandhi would have sprouted in the minds of LTTE top brass at the aforementioned stage. There is not even a speck of doubt in our mind that the criminal conspiracy to murder Rajiv Gandhi was hatched by at least 4 persons comprising of Veluppillai Piribhakaran, Pottu Omman, Sivarasan and Akila. It could have been the scheme of the conspirators to enlist more persons in the field for the successful implementation of their targets. 107. We have no doubt from the circumstantial evidence in this case, that Thanu, the girl who transformed into a human bomb, and her friend Suba were unflinchingly committed commandos of LTTE and they were also brought into the conspiracy ring by the top brass of LTTE. Circumstances proved in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "in reference to their common intention". Under the corresponding provision in the English Law the expression used is "in furtherance of the common object". No doubt, the words "in reference to their common intention" are wider than the words used in English Law, (vide Sardar Sardul Singh Caveeshar v. State of Maharashtra 1965 Cri LJ 608a. 111. But the contention that any statement of a conspirator, whatever be the extent of time, would gain admissibility under Section 10 if it was made "in reference" to the common intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlies in Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racy even after his arrest. That is precisely the reason why we said that it may not be possible to lay down a proposition of law that one conspirator's connection with the conspiracy would necessarily be cut off with his arrest. 115. In this case, prosecution could not establish that the accused who were arrested, continued to conspire with those conspirators remaining outside. Prosecution cannot contend that the confession made by one accused in this case can be substantive evidence against another accused under Section 10 of the Evidence Act. At any rate we cannot uphold the contention that confessions made by an accused can be used as substantive evidence against the another co-accused on the principle enunciated in Section 10 of the Evidence Act, 116. The conclusion on the above score is that confessional statement made by an accused after his arrest, if admissible and reliable, can be used against a confessor as substantive evidence, but its use against the other co-accused would be limited only for the purpose of corroboration of other evidence. THE CASE AGAINST A-1 (NALINI): 117. A-1 (Nalini) is the sole surviving conspirator who participated in the assassination, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a meeting. Suba and Thanu tried to garland V.P. Singh. Later Sivarasan scolded A-1 (Nalini) for not taking the girls to the rostrum. It was then that Nalini realised as to how the murder was planned to be perpetrated. 121. In the confessional statement A-1 (Nalini) is alleged to have stated that on 11 -5-1991 she chaperoned Suba and Thanu to a readymade garments shop at Puruswakkom (Madras) and bought a chooridar suit (orange and green coloured) and a dupatta. On 17-5-1991, Sivarasan told her of Rajiv Gandhi's Tamil Nadu programme and asked her to attend one of the meetings. She confessed in her statement (Ext.P-77) that by then it was certain for her that Rajiv Gandhi was going to be killed. Sivarasan collected the details of the topography of Sriperumpudur from her and warned her not to divulge the contents of that conversation to any one else. She was instructed to take leave from her office on 21st May, 1991 under some false pretext. 122. She had narrated in the confessional statement the events which happened on the day of assassination and also on its preceding day. According to her, Sivarasan met her on 20-5-1991 at 6.00 P.M. and told her that the venue of the meeti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided in Rule 15 of the TADA Rules, 1987. Second is that it was not certified as required by the Rules. Third is that the confession was extracted by coercive methods and is therefore unreliable. 127. Rule 15(3) says that the confession shall be signed by its maker and also the police officer who recorded it. Further, the police officer "shall certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person". 128. Ext. P-77 was recorded in as many as 18 pages. All the first 16 pages contain the signatures of A-1 (Nalini) but the last two pages don't have the signatures. The requirement that confessional statement shall be signed by the maker has been substantially complied with despite the slip in obtaining the signatures in the last two pages. According to PW-52 - the Superintendent of Police who recorded it, the said slip was an inadvertent omission. But that omission does not mean that a confession was not signed by her at all. The certificate which is required by Rule 15(3) has also been made at the foot of Ext.P-77, but that happened to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herself admitted in her confessional statement that she made such a disclosure to PW-132. 133. Another item of corroborative evidence is M.O.144 Video Cassette. (It was viewed on the video in the trial court as well as by us in the Supreme Court). It was the video cassette of the meeting held at Nandavanam (Madras) in the early hours of 18-5-1991 which was addressed by V.P. Singh. PW-93 (Suyambu) said in his evidence that he attended the said meeting. When he was shown the video cassette replayed in the court he identified Sivarasan who was sitting at the meeting place, just left to the said witness. It was video graphed by PW-81 (Manivanam) as instructed by PW-77 (Ganani). PW-77 also identified Sivarasan in the video. We have noticed the presence of A-1 (Nalini) in the meeting when M.O.144 was displayed in this Court, with the help of a photograph in which A-1 's figure could be discerned by us and admitted by the defence counsel to be correct. 134. On the next day of the said meeting, i.e. 9th May, two letters were sent by Suba and Thanu jointly to Sri Lanka, one to Pottu Omman and the other to Akila. They are Ext.P-96 and Ext.P-95 respectively. Prosecution has proved that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice by 12 noon. 140. One of the most striking corroborative evidence for A-1 's confession regarding her participation in the assassination scene of Rajiv Gandhi is the testimony of PW-32 (Anusuya). She is a woman Sub-Inspector who was deputed to do duty at the venue of the meeting to be addressed by Rajiv Gandhi at Sriperumpudur. She was one of the injured in the bomb blast. Nobody can dispute that she was on duty because she had come in the photo M.O.33. It was taken just before the occurrence. Pointing out Thanu in the photograph PW-32 (Anusuya) said in her evidence that she was found moving with two male persons at the scene of occurrence before the arrival of Rajiv Gandhi. One of them, on being questioned by PW-32, claimed to be a press photographer (it is with reference to Haribabu). The witness identified the other person as Sivarasan. PW-32 identified A-1 Nalini (who was present in the trial court) as one of the ladies who attended the meeting place. She identified A-1 from the photograph when M.O.32 photograph was shown to her. There was no dispute about the genuineness of the above said photograph. We have absolutely no reason to doubt the correctness of M.O.32. 141 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onspirators and she participated in the act of assassination of Rajiv Gandhi by playing a very active role. A-2 SANTHAN ALIAS RAVIRAJ: 145. Santhan (A-2) is a Sri Lankan citizen. He was aged 22 during the relevant time. The evidence shows that he was a cardholder of the intelligence wing of the LTTE. He studied up to 5th standard in a school at Jaffana. He came in contact with Sivarasan and they eventually became close to each other. In February 1988, Sivarasan suggested to him to continue his studies at Madras and LTTE would meet his expenses. Pursuant thereto he came to India in February 1990 and secured admission at Madras Institute of Engineering Technology. His educational expenses were met by LTTE'. He was arrested in connection with Rajiv Gandhi murder case on 22-7-1991. His confessional statement was recorded on 17-9-1991 by the Superintendent of Police as per Section 15 of TADA. It is marked as Ext.P-104. The incriminating admissions contained in Ext.P-104 are the following: Sivarasan persuaded A-2 (Santhan) to join him for liquidating one Padmnabha who was leader of EPRLF which was considered to be a rival organisation of Sri Lankan Tamils. A-2 (Santhan) accepted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2 (Santhan) whether it was visible from outside. A-2 gave a nod that nothing was visible and then Sivarasan left the place. It was on the said night that Sivarasan told him that Rajiv Gandhi was murdered. He also said that Thanu too died. It was only on the next day that Sivarasan revealed to A-2 (Santhan) that Haribabu died. On 27-5-1991 Sivarasan moved to Madras and instructed A-2 (Santhan) to hand over Rs. 5,000/- to A-10 (Jayakumar). A-2 (Santhan) was moving from place to place thereafter and finally on 30-5-1991 he went to Sundara Lodge. PW-111 (Vijayendran) conveyed to A-2 a message from Sivarasan that the latter should meet him. Pursuant to that, A-2 (Santhan) met Sivarasan on the next day. By that time Sivarasan had removed his moustache. 151. Sivarasan told A-2 (Santhan) that thenceforth it was A-3 (Murugan) who would look after the work which Sivarasan was to continue in India. A-2 booked three bus tickets to Coimbator in pseudonymous names. 152. On 7-6-1991 Sivarasan and Suba met A-2 (Santhan) and asked him to handover a cover to A-3 (Murugan). A-2 (Santhan) learnt from A-3 (Murugan) that Sivarasan had instructed A-3 to murder one Chandrahasan. When A-3 (Murugan) aske ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement, it was admitted in evidence, has been marked as P-1396. Those bags were actually given to A-2(Santhan) by Sivarasan after returning from Tirupaty. Those articles were seized pursuant to the information for which Ext. P-1397 Mahassar was drawn up. M.O.1083 is a bag which was identified as containing the clothes and cosmetics and other materials belonging to Suba. M.O.1129 is a bag which contained articles of Sivarasan including a diary maintained by him. 159. PW-62 (Vimla), a teacher by profession narrated how she and her daughters were duped by Sivarasan when he brought Athirai (A-8) to their house under some false pretext without knowing that they were the persons involved in the assassination of Rajiv Gandhi. PW-62 (Vimla) was closely associated with A-8 (Athirai), PW-62 in her evidence said that A-2 (Santhan) was visiting A-8 (Athirai) and that once A-2 (Santhan) told the witness that CBI might perhaps search her house also. A-2 (Santhan) took A-8 (Athirai) away from the house of PW-62 (Vimla) on the direction of Sivarasan. We have absolutely no reason to disbelieve the evidence of PW-62. She said that the moment she came to know that those persons were suspected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for her. 164. In the further portion of the confessional statement A-3 (Murugan) stated that Sivarasan expressed to him that he had accomplished his work though Haribabu and Thanu died in it. He stated further that on 25-5-1991 he along with A-1 (Nalini) and Suba accompanied Sivarasan to Tirupaty to visit the temple of Lord Venkateshwara. During that trip Sivarasan told him that it was with the help of a belt bomb connected to two switches that Thanu could explode the bomb and that it was Veluppillai Piribhakaran's decision to utilize the girls to retaliate against Rajiv Gandhi because IPKF atrocities were done mostly on women. He also confessed that on 7-6-1991 he himself, Sivarasan, Suba and A-2 (Santhan) met together at Astataka Temple and took a decision to go back to Sri Lanka. 165. In Ext.P-81, A-3 (Murugan) has further stated that Sivarasan told him to find out a girl from India for garlanding Rajiv Gandhi at a public meeting. This happened during the last week of March 1991. Then he realised that Rajiv Gandhi was the target. He believed that Rajiv Gandhi was responsible for all the atrocities which IPKF committed in Sri Lanka. He said that it was in April 1991 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rugan) had taken on rent. Evidently it was a preparation to attend public meetings addressed by persons like Prime Minister or a former Prime Minister. 171. After the arrest of A-3 (Murugan) PW-282 (Inspector of CBI) seized six baggage which were buried in a pit. The baggage contained, among other things, Ext.P-95 and Ext.P-96 (letters written by Suba and Thanu to Pottu Omman and Akila after attending the meeting addressed by V.P. Singh on 17-5-1991). PW-86 (Mariappan) said in his evidence that he was staying in the house of one Sanmugham at Kodiakarai opposite to which some Sri Lankan people were staying, A-3 (Murugan) was one among them. PW-86 stated that one day A-3 (Murugan) told him to hand over a box to the witness and asked him to keep it till he returned from Madras. After A-3 (Murugan) left he was asked by his master (Sanmugham's brother) to bury the box. It contained six items. He collected those six items and tied them together in a plastic bag and buried them. It must be remembered that PW-86 was pointed out by A-3 when the CBI Inspector (PW-282) questioned him after the arrest. 172. PW-233 (Bharathi) said that she was staying at Royapetta, Madras and in the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "I got news that one of my associates was caught at Nagapattinam and he has told all the news about me." (5) When the news of arrest of A-4 was published Sivarasan communicated that fact to. Pottu Omman. (6) In Ext.P-1253, a diary, Sivarasan has mentioned having paid a sum of Rs. 10,000/- to A-4. (7) In Ext. P-439, Sivarasan has mentioned payment of Rs. 5,000/- to A-4 (Shankar). 177. The Special Judge of the Designated Court reached a conclusion, on the strength of the above narrated circumstances, that A-4 (Shankar) was a member of the conspiracy. It was contended by the learned Counsel for the defence that the above circumstances may, at the most, show that A-4 (Shankar) was actively involved in LTTE work because there is nothing to suggest that he ever knew that Rajiv Gandhi was going to be murdered. Of course the first among those circumstances has a strong tendency to create suspicion in our mind against A-4 (Shankar) but in the total absence of anything to show that the 9 passengers in the boat had talked about the assassination programme of Rajiv Gandhi or at least that Sivarasan or Suba or Thanu would have divulged it to others, there is great practical difficu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ached the conclusion that he too was a member of the conspiracy. 181. It must be borne in mind that LTTE was a proscribed organisation in Sri Lanka and their members were indulging in secret activities for attaining a goal of independent Tamil Eelam in Sri Lanka. There were many, who were members of LTTE, living in India without exposing themselves lest they would be caught by the Sri Lankan authorities. Even prosecution has no case that all those who were members of the LTTE were also members of the conspiracy to murder Rajiv Gandhi. So the mere fact that someone was shown to be an LTTE votary and acquainted with the other accused persons in this case that by itself would not entangle him into the cobweb of the conspiracy to murder Rajiv Gandhi. 182. As in the case of A-4 (Shankar) the circumstances arrayed by the prosecution against A-5 (Vijayanandan) may, at the worst, show him to be an active LTTE votary. But beyond that stage the circumstances would not push him into the dragnet of the conspiracy. A-6 SIVARUBAN: 183. A-6 (Sivaruban) was a boy in his teens when the incident took place. He also belongs to Sri Lanka. His left leg was amputated. Nevertheless he was an active L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y rate no material has been placed in regard to those aspects. 186. A circumstance which created suspicion in the mind of the investigating agency was that A-6 (Sivaruban) also came to India along with the other 8 persons on 1-5-1991 That might be the reason why the associates of A-6 cautioned him that he too would be caught by the police and advised him to shift to another place. No doubt that is an incriminating circumstance against A-6 (Sivaruban). But it is too much a strain to jump to the conclusion, with the help of the aforesaid circumstance, that A-6 (Sivaruban) was also a conspirator for assassinating Rajiv Gandhi. A-7 KANAGASABAPATHY AND A-8 ATHIRAI: 187. While considering the involvement of A-7 (Kanagasabapathy) it would be expedient to consider the case of A-8 Athirai alias Sonia (also called Gowri). Such a course was adopted by the trial court and we too feel that such a course would be advantageous. In fact the learned Counsel for the defence addressed arguments as for A-7 and A-8 together. 188. It must first be pointed out that no confessional statement was recorded by any person from A-7. A confessional statement attributed to A-8 is marked as Ext.P-97. We will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iracy. 192. Over and above the circumstances pitted against A-7 on a par with A-8 (Athirai) it is proved that A-7 had gone to Delhi on 20-5-1991 with the money supplied by Sivarasan. He was accompanied by a person called Vanan and they both stayed in Delhi till 30-5-1991. Trial court drew an inference that Sivarasan would have sent A-7 (Kanagasabapathy) to New Delhi for fixing up a hide- out. Even if it was so, where is the evidence to show that A-7 was ever conspired with for the murder of Rajiv Gandhi? 193. In this connection reference has to be made to the testimony of two witnesses. PW-109 (Jai Kumari) is the niece of A-7 (Kanagasabapathy). She has stated in court that she has seen her uncle A-7 in the company of A-8 (Athirai) visiting "Higginboathams" (the famous bookseller) at Mount Road, Madras. They bought a map of Delhi and they were found enquiring for a book containing the addresses of VIPs. On 2-5-1991 Sivarasan was found talking with them and a few days thereafter they went away with Sivarasan, though A-7 used to visit her again infrequently. The witness said that when she saw the photo of Sivarasan connecting him with the murder of Rajiv Gandhi she asked h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arasan and they were all ardent LTTE personnel. But the converse cannot be a necessary inference i.e. all those LTTE personnel who associated with Sivarasan should have been brought within the radius of the conspiracy to murder Rajiv Gandhi as participants thereof. 197. We entertain genuine doubt, in spite of the association that A-7 and A-8 had with LTTE Movement and also with Sivarasan, whether those two accused would have conspired with others in murdering Rajiv Gandhi. A-9 ROBERT PAYAS: 198. Robert Payas was aged 25 during the relevant period. While he was in Sri Lanka he associated himself with LTTE work. He arrived in India on 20-9-1990. He was arrested in connection with Rajiv Gandhi murder case on 18-6-1991. Ext. P-85 is said to be the confessional statement given by him to the Superintendent of Police on 15-8-1991. 199. It has been narrated in Ext. P-85 that IPKF caught A-9 (Robert Payas) and detained him for 15 days along with some others, and during that time the army men committed a lot of atrocities in the houses of the detained persons. A suckling child of A-9 died in the army action. A-9 and his colleagues developed bitter hatred towards IPKF and the other rival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sehood. 204. PW-59 (Raghu) has a Photo Studio at St. Thomas Mount, Madras. He said that A-9 and Sivarasan went to his studio on 15-9-1990 and got two photographs taken. Sivarasan then wrote his name and address in the records of the studio as follows: R. Subaraj, 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). 205. In M.0.180 Diary, which is proved to be the diary of Sivarasan, there are umpteen entries showing various amounts paid to A-9. It is not disputed that the said diary belonged to Sivarasan and the entries were made at his instance. 206. In Ext.P-81 confessional statement, A-3 (Murugan) stated that a wireless set was installed in the house of A-9 at Porur by LTTE militant Kanthan. It was from that wireless set Sivarasan used to contact Pottu Omman at Sri Lanka. 207. The aforesaid items of evidence proved in this case have rendered the confessional statement made by A-9 in Ext. P-85 as wholly true. We therefore concur with the finding of the Special Judge that A-9 (Robert Payas) was very much involved in the conspiracy to assassinate Rajiv Gandhi. A-10 JA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e saw Sivarasan keeping the pistol concealed and set out for the public meeting at Sriperumpudur. By midnight Sivarasan returned with Suba and Nalini and it was confirmed that Rajiv Gandhi was killed by Thanu. He saw Sivarasan going upstairs for talking with Santhan. 210. The further incriminating portions in Ext.P-91 are: On 22-5-1991 A-10 prepared meals for Sivarasan, Suba and Nalini and it was only on 23rd that Sivarasan left the house. Before leaving Sivarasan kept all his things in the suitcase, (except the pistol) and entrusted the pistol to A-10. The suit-case was put in a pit dug by A-10. As instructed by Sivarasan the pit was closed with a concrete slab and a painting was given on its surface. 211. The above is the substance of the confession contained in Ext.P-91. If that statement can be accepted as reliable we have no doubt that it would afford enough materials for concluding that A-10 (Jayakumar) was actively involved in the conspiracy to assassinate Rajiv Gandhi. In order to verify the truth of it we have to turn to other evidence which prosecution has adduced for corroboration purposes. 212. The first corroborative material pressed into service by the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was carved out for keeping a pistol). PW-85 is a witness to the unearthing of the suit-case. He has stated that fact in his evidence. 216. Over and above the afore-narrated corroborative pieces of evidence prosecution has produced still further items of evidence. But we do not think it necessary to refer to all of them since we are fully satisfied even with the evidence already discussed above that the confessional statement contained in Ext.P-91 was made by A-10 and it is a true confession. We therefore conclude without hesitation that prosecution has succeeded in proving that A-10 (Jayakumar) was an active participant in the conspiracy for assassination of Rajiv Gandhi. A-11 SHANTHI: 217. She is the wife of A-10 (Jayakumar). Except the fact that she accompanied her husband from Sri Lanka in September 1990 and continued to live with him in India we are unable to find any involvement for her in the conspiracy to murder Rajiv Gandhi. Learned Special Judge has considered her case, tagging it with her husband's case. We may point out, in this context, that no confession could be recorded from her under Section 15 of TADA. We have not come across any material, apart from her l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... varasan visited A-12's house at 12.30 noon and asked Thanu and Suba to get ready. Then the two girls went inside a room and after about an hour came out dressed up for going out. Sivarasan took the girls in an auto-rickshaw and left. On the next day Sivarasan reached A-12's house and disclosed to him that Rajiv Gandhi was murdered. He asked Nehru to transmit the message to Sri Lanka. 223. The remaining part of the confessional statement in Ext.P-101 contains the directives which Sivarasan gave to A-12 (Vijayan) which the latter had obeyed. But there is nothing in Ext.P-101 to show that A-12 ever knew before 22-5-1991 that Rajiv Gandhi would be murdered. Of course, he could have inferred that the important work which Sivarasan suggested would be some criminal activity but that does not mean he should necessarily have inferred that Sivarasan was targeting Rajiv Gandhi and was contemplating his assassination. 224. No doubt A-12 was very much used by Sivarasan without letting him know of his plan to murder Rajiv Gandhi. Nor did anyone else tell A-12 about it. Even from among the articles which PW-281 - a police officer recovered from his house (as per Ext.P-1359 Mahassar) not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to meet his end. Next morning A-14 left the house of PW-97. 230. Shri Altaf Ahmad, learned Additional Solicitor General contended that the aforesaid conduct of A-14 is enough to draw the inference that A-14 was also privy to the conspiracy. But we are unable to stretch the inference to such a farthest extent. The evidence of PW-97 would certainly indicate that A-14 was interested in securing a safe place for Sivarasan and Suba to escape from police detection and also to save them from being caught by the police. It is quite possible that he would have been persuaded to help Sivarasan and Suba on the strength of the help which Sivarasan rendered to the family. It may be possible to go one more step further that perhaps Sivarasan would have disclosed to A-14 that Rajiv Gandhi was murdered at his behest and sought the help of A-14 to escape from police detection. 231. We can only conclude that A-14 would have harboured Sivarasan and Suba and also tried to screen them from being caught by the police. A-15 SHANMU GAVADIVELU ALIAS THAMBI ANNA: 232. He was arrested on 16-5-1992, The Superintendent of Police recorded a statement on 17-5-1992. Claiming that it is a confessional st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused we have necessarily to deli the offences under Sections 3(3) and 3(4) and 5 of TADA and Section 5 of the Explosive Substance Act and Section 3(1) of the Arms Act, for a certain obvious reason. It is an admitted fact that A-16 and A-17 were tried in another criminal case for the aforesaid offences read with Section 120-B of Indian Penal Code, inter alia, certain other counts of offences, A-16 and A-17 and a host of some other persons were arrayed in CCI of 1992 before a Designated Court, Poonamallai, Chennai (Madras). As per judgment dated 23-1-1998 they were convicted of those offences and sentenced to varying terms of imprisonment. It is also an admitted fact that the said judgment has become final and the convicted persons involved therein have undergone the punishment period. 236. Shri N. Natarajan, learned senior counsel for A-16 and A-17 contended that those accused are not liable to be tried again for the said offences since the facts now stated by the prosecution were substantially the same as were involved in CC 7 of 1992. Shri Altaf Ahmad, learned Additional Solicitor General made a strong bid to show that as the said trial was not in connection with the assassinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2), thereof. 239. The well-known maxim 'nemo debet bis vexari pro eadem causa' (no person should be twice vexed for the same offence) embodies the well established Common Law rule that no one should be put to peril twice for the same offence. The principle which is sought to be incorporated into Section 300 of the Procedure Code is that no man should be vexed with more than one trial for offences arising out of identical acts committed by him. When an offence has already been the subject of judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts. 240. Though Article 20(2) of the Constitution of India embodies a protection against second trial after a conviction of the same offence, the ambit of the sub-article is narrower than the protection afforded by Section 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 302 read with Section 120-B of IPC as a member of the criminal conspiracy to assassinate Rajiv Gandhi. 244. A-16 (Ravichandran) is a Sri Lankan citizen. He was arrested on 20-10-1991 in connection with Rajiv Gandhi murder case. The Superintendent of Police (CBI) has recorded a statement which is said to contain the confession made by A-16 on 14-2-1992. It is marked in this case as Ext.P-121. The incriminating statements, as for this case contained in Ext.P-121 can be extracted after excluding the facts which were the subject matter of CC 7 of 1992. 245. A-16 (Ravichandran) and his companion A-17 (Suseendran) reached India in December 1990. He met Sivarasan as instructed by him near Devi Theatre. A few days hence Sivarasan handed over to A-16 a sum of Rs. 1.5 lacs for buying any kind of vehicle for the use of LTTE movement. Sivarasan gave A-16 a contact number (2343402) for any urgent need which might arise. A-16 went to the house of A-10 Jayakumar at Kodingayoor along with Sivarasan and on his instructions went to the Airport at Madras to know how security arrangements were in force when a VIP arrived. A-16 reported to Sivarasan that the first gate of the old Airport c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 knew about it. In December 1990, he was deputed to India to carry out the execution of an "important mission" and he was instructed to obey the direction of Sivarasan for that purpose. When he knew that Rajiv Gandhi was a target he wanted to get that confirmed from Sivarasan and that is why he asked Sivarasan in plain language -whether it was Rajiv Gandhi. The silence adopted by Sivarasan helped him to confirm it. All the activities done by him thereafter were in facilitation of the aforesaid common design. It has now to be considered whether the confessional statement made by A-16 has been corroborated in material particulars. 250. PW-206 (Lokmatha), the aunt of A-16, has said in her evidence that Sivarasan was found contacting A-16 in March 1991, and on another occasion Sivarasan entrusted one letter to her for handing over to A-16. The witness said that when the letter was given to A-16 he read it and immediately went out of the house. On 23-5-1991 Sivarasan again visited her house, but when he noted that A-16 was absent there he gave one more letter to the witness to be handed over to A-16. A couple of days thereafter PW-206 handed over that letter to A-16. He lef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded under Section 15 of the TADA (Ext.P-123). Here also we have to exclude those portions which relate to the offences covered by CC 7 of 1992. The remaining incriminating statements in Ext.P-123 are the following: In December 1990, he met Sivarasan. Pottu Omman asked him to go to Tamil Nadu. He went to Madras and met A-16 at Marina Beach (Madras) and A-16 asked him to recruit more people to LTTE. He then set out on a tour to Pollachi, Coimbatore, Palani, and reached Madras on 26th May 1991. He met A-16 at Madras. When he met Sivarasan at Thiruvallur Bus Stand (Madras) Suba was introduced to him. They all went to Trichi. 257. A-17 has further said that he went with A-16 and Suba to Pollachi where he and Suba stayed in the house of PW-208 by pretending that Suba was his wife called Mallagi and Sivarasan was her brother. 258. It is not necessary to reproduce the further portion of the confessional statements as they relate to the efforts to save Sivarasan and Suba. We have no doubt that A-17 would have got information as to how Rajiv Gandhi was murdered at least when he met Suba and Sivarasan. But there is nothing in the confessional statement to indicate that he knew it at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons to think that the target of the said dangerous task was Rajiv Gandhi. In fact, Sivarasan asked him in April 1991 whether A-18 could work in unison with him and then A-18 agreed to do so. After this Sivarasan went to Sri Lanka. 262. After Sivarasan came back from Sri Lanka he asked A-18 to get a large sized car battery and some clips etc. A-18 bought a battery from a shop near LIC Building at Madras by giving a false name "Rajan" and a false address. He bought some wire and other accessories from another shop near Midland Theatre. A-18 took Sivarasan to a motor shop on 4.5.1991 and bought a motorcycle in his own name but giving a wrong address. He also bought two batteries (9-Volt Golden Power Battery) and handed them over to Sivarasan for using to blast bomb. 263. On 7-5-1991 he attended the public meeting addressed by V.P. Singh at Madras along with Suba, Thanu, A-3 (Murugan) and A-1 (Nalini). He bought a millimeter from a shop at Richie Street, Mount Road, Madras as Sivarasan wanted them. 264. He further confessed that on 20-5-1991, he went to A-20 Bhagyanathan's house. There he found Sivarasan, A.1 (Nalini), A.3 (Murugan) and Haribabu. Sivarasan divulged to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded for effecting payments regarding the printing charges. The witness further said that A-18 gave him a letter of Veluppillai Piribhakaran in which receipt of the books printed by him was acknowledged. By the beginning of May 1991, A-18 took this witness to Trichi and introduced him to A-2 (Shanthan). The witness further said that A-18 was found fuming with hatred towards Rajiv Gandhi for the atrocities which IPKF committed in Sri Lanka. On 10th May 1991, A-18 went to this witness's house with Sivarasan. We have no reason to disbelieve the above testimony of PW-75. 271. PW-23 (Bharathi - a nurse) is the sister of A-20(Bhagyanathan). She said in her evidence that A-3 (Murugan), A-18 (Arivu) and A-20 (Bhagyanathan) were staying in the same house. M.O.286 - a diary of Sivarasan contains the entry regarding the amount paid to A-18. 272. PW-149 (Latha) said that she had acquaintance with LTTE people through A-20 (Bhagyanathan). She identified A-18 as one of the LTTE strong men. The witness said that she saw A-18 (Arivu) and A-20 (Bhagyanathan) conversing with each other at the press where this witness was working. 273. PW-91 (Moideen) is a salesman in Hindustan Training Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Rajiv Gandhi. A-19 IRUMBORAI: 279. Irumborai is an Indian citizen. His original name was Duraisingam. After he joined the Rationalists' Organisation of Dravida Kazhakam he changed his name as Irumborai. In a meeting of Dravida Kazhakam held in 1985 a resolution was adopted to give full support to the Tamil liberation movements in Sri Lanka. 280. A-19 (Irumborai) was arrested on 9-10-1991. The most important item of evidence placed by the prosecution against him is Ext.P-117 which is a statement recorded by PW-52 (Superintendent of Police, CBI) on 3-12-1991 under Section 15 of TADA which is said to be a confessional statement. No doubt Ext.P-117 contains inculpatory statements about A-19 trying to screen the offenders in Rajiv Gandhi murder case and to harbour some of them. But on the crucial question whether he was a party to the conspiracy to assassinate Rajiv Gandhi, following portion of the statement would throw light. He was in contact with A-2 (Santhan), Suresh Master and some other leaders of LTTE. In the second week of May 1991 he went to Trichi as per the instructions of Suresh Master (a leader of LTTE) and collected an amount of Rs. 15.000/- from A-2 (Santhan) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the statement has to be brought within the ambit of Section 10 of the Evidence Act the pre-condition has to be satisfied that we must have reason to believe that A-19 and Trichy Santhan were members of the conspiracy to murder Rajiv Gandhi, Even assuming that the said statement can be brought under Section 10 of the Evidence Act, the question is -will it be a conclusive inference therefrom that the sender of the letter knew that fact earlier? It could be an advice given to A-19 (Irumborai) that he should not loosely talk that he knew about Rajiv Gandhi's murder earlier. It does not necessarily mean that A-19 (Irumborai) knew it earlier. 286. Even taking the alternative interpretation, the worst is that the sender of the letter (Trichy Santhan) would have believed that the sender had advance knowledge of Rajiv Gandhi's murder. Could it not have been possible for A-19 to clarify to Trichy Santhan that there was no need to give such an advice because he in fact did not know about it earlier. 287. In whatever way it is looked at we have difficulty to credit A-19 (Irumborai) with the advance knowledge of Rajiv Gandhi's murder on such a fragile material. 288. We are ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing a cinema show, came to know of Rajiv Gandhi's murder. The other confessions in Ext.P-69 are that on 23-5-1991 Sivarasan reached the house and informed them that Haribabu also died; and on 24-5-1991, A-20 (Bhagyanathan) compelled his mother to go along with Sivarasan, Suba and A-1 (Nalini) to Tirupaty. The confession shows that A-20 (Bhagyanathan) destroyed LTTE stickers which remained with him. When he saw the photo of Sivarasan in the newspapers connecting him with Rajiv Gandhi's murder case A-20 became very much bewildered. 295. The above statement of A-20 (Bhagyanathan) cannot be taken as a confession. He did not know that Rajiv Gandhi was going to be assassinated. He did not say anything in Ext.P-69 which would have at least impliedly connected him with Rajiv Gandhi's murder or the conspiracy. He was, of course, a strong sympathiser of LTTE. 296. Even assuming that the statement recorded in Ext.P-69 is a confessional statement there is no confession that A-20 ever knew that Rajiv Gandhi was going to be assassinated. 297. One of the materials which prosecution has pressed into service as a circumstance involving A-20 (Bhagyanathan) with the conspiracy is, Ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be a confessional statement given by PW-21 on 7-8-1991 and that too was recorded under Section 15 of the TADA. A-21 is said to have confessed the following. Muthuraja brought A-3 (Murugan) to her house in February 1991. A-21 (Padma) was not willing to accommodate him in the house. But she was prevailed upon by A-3 (Murugan) not to raise any objection. A-3 (Murugan) used to help the family with money. Sivarasan was brought to her house by A-3 in March or April 1991. On 20-5-1991, Sivarasan brought Suba and Thanu to her house. Till then they were in the house of A-1 at Villivakkom. Some medicines were given by A-21 to Thanu as she had a sprain on the leg. 305. A-21 (Padma) has further said in Ext.P-73 that in the morning of 21 -5-1991 she went to her Nursing Home as usual and returned in the evening. Late in the night she came to know of the assassination of Rajiv Gandhi when A-18 and A-20 told her about it. 306. In the further portion of Ext.P-73 she has stated that on 23-5-1991, she came to know from her daughter (A-1 Nalini) the details of the killing of Rajiv Gandhi at Sriperumpudur. According to A-21 she became frightened on hearing the said information and at the same t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cene of occurrence. (7) PW-205 (Smt. Parimalam) a cousin of Haribabu said that she got a phone call in the name of A-22 advising her to remove all the papers and cassettes from the house of Haribabu. (8) PW-258 (Vazhappari Ramamurthy) said that A-22 told him on 23.5.1991 and also on 27.5.1991 to enquire about the camera which Haribabu carried to Sriperumpudur. (9) A-22 persuaded the father of Haribabu to issue a press statement that Haribabu had no knowledge in Rajiv Gandhi murder case. In fact A-22 drafted that statement for the witness. The trial court found that all the above 9 circumstances were proved and are reliable. On that basis the Special Judge further found that A-22 was a member of the conspiracy, and that he had harboured the offenders. Learned Counsel for A-22, contended that even if all the above circumstances are found to be legal evidence it would not form a completed chain for the court to draw any conclusive inference. 310. We too are of the definite view that the aforesaid circumstances, even if all of them are assumed to be legal evidence, would hardly be sufficient to prove the involvement of A-22 in the conspiracy to murder Rajiv Gandhi. 311. That a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because learned Counsel for the accused has fairly conceded that he is not attacking the finding of the trial court regarding the offence under Section 212 of the IPC. 317. One circumstance which the trial court used against A-23 is that he purchased a Maruti Gypsy (M.O.540) on 14.11.1990. There is evidence to prove that fact. There is also evidence to prove that the said vehicle was used by Sivarasan, Suba and others for moving from one place to other, but all such travels were subsequent to the assassination of Rajiv Gandhi. The trial court concluded on the strength of the aforesaid evidence like this: Thus M.0.540 Maruti Gypsy purchased in November, 1990 in Salem before the assassination of Rajiv Gandhi was used by A-24, and Sivarasan, Subha and A-26 and other accused, after the assassination of Rajiv Gandhi. The close association between these accused is thus proved by the prosecution beyond doubt. Purchase of M.O.540 Maruti Gypsy and its subsequent use by the members of the conspiracy also proves the involvement of A-23 in the accomplishment of the object of conspiracy. 318. The aforesaid leap jump to such a conclusion is impermissible and contrary to the well established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sivarasan and Suba were wanted by the police in connection with the aforesaid case. PW-230 (Selvaraj) was the person who drove the Tanker Lorry. PW-22 (Sathyamoorthy) said that on 8.8.1991 A-24 brought a Maruti Gypsy for painting. The witness painted it with white colour. 324. The above items of evidence would also help in finding that A-24 was actively helping the accused to escape from the police. Learned Additional Solicitor General argued that considering the fact that he was an active LTTE votary and also considering his activities during the post assassination days it is possible to draw an inference that he too was involved in the conspiracy to murder Rajiv Gandhi. 325. Such an inference is not a necessary inference, for, it is equally possible to think that A-24 being an active LTTE votary, would have decided to help other LTTE people to escape from the police clutches though he knew about their involvement in the assassination of Rajiv Gandhi only after he himself came to know that the former Prime Minister was assassinated. A-25 VIGNESWARAN (r) VICKY: 326. He is a Sri Lankan citizen. He was aged 28 during the relevant period. He was, by profession, a cleaner of vehic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and circumstances would go to establish the active part played by A-25 in consonance with the directions of Trichy Santhan in furtherance of the object of the conspiracy." 332. We are unable to uphold the second conclusion regarding A-25 (Vicky) for want of any evidence and also for the reasons set out by us in the preceding paragraphs. A-26 RANGANATH: 333. The trial court at the close of the discussion of evidence against A-26 has entered the following finding in paragraph 2419 of the Judgment: From the foregoing discussion and analysis of evidence proved by the prosecution it has to be concluded that A-26 harboured Sivarasan and Suba, who were proclaimed offenders and the other accused A-24 Rangan, Nehru, Suresh Master, Driver Anna and Amman in his house at Puttanahalli and subsequently at Konanakunte voluntarily and willingly without any fear to his life. 334. The above is the only finding on facts which the learned trial Judge appears to have made regarding the role of A-26. Thereafter no discussion is seen made about his activities. But learned Judge had held in paragraph 2451, that A-26 is also guilty of the offence under Section 120-B read with Section 302 IPC a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with all the other counts of offences (except Section 302 IPC). We also set aside the conviction and sentence passed by the trial court on those appellants who were convicted of offences under Section 3(3), Section 3(4) and Section 5 of TADA. 339. We confirm the conviction passed by the trial court for the offences under Sections 212 & 216 of the IPC, Section 14 of the Foreigners Act, 1946, Section 25(1-B) of the Arms Act, Section 5 of the Explosive Substance Act, Section 12 of the Passports Act, and Section 6(1-A) of the Wireless and Telegraph Act, 1933, in respect of those accused who were found guilty of those offences. However, as the sentence awarded by the trial court in respect of those offences did not exceed imprisonment for a period of two years we are not disposed to disturb the sentence passed by the trial court on those counts. It is for the jail authorities to consider the question of releasing those accused who have already undergone the period of rigorous imprisonment for two years, and against whom there is no conviction confirmed under any other counts of offence, as they are entitled to be set at liberty forthwith. 340. In other words, except A-1 (Nalini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . During pre Bachan Singh period the Sessions Court was free to choose death penalty in any case where special reasons could be advanced. But during post Bachan Singh period even that was drastically changed as the Constitution Bench made it impermissible to award death sentence except in rarest of the rare cases wherein the lesser alternative is unquestionably foreclosed. 346. As the law which has been pronounced in such unreserved language on the subject, holds the field ever thereafter we are required to remind ourselves of the legal position adumbrated by the Constitution Bench in Bachan Singh's case (supra). The following is the ratio which emerged after making a detailed analysis of various view points on the sustainability of the provision empowering the court to pass death sentence: It is therefore imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to look at it from that perspective also. 349. The conspirators in the Rajiv Gandhi assassination can be vivisected into four broad categories. First, those who formed the hardcore nucleus which took the decision to assassinate Rajiv Gandhi. Second, those who induced others to join the ring and played active as well as supervisory roles in the conspiracy. Third, those who joined the conspiracy by inducement whether through indoctrination or otherwise. Fourth, those among the conspirators who participated in the actual commission of murder. 350. Persons who fall within the first category cannot normally escape from capital punishment if their case ends in conviction. Veluppillai Piribhakaran, Pottu Omman, Akila, Sivarasan and Trichy Santhan have been described as persons falling within the radius of the first category. As they were not tried for the offences so far we refrain from observing anything concerning them in the sphere of sentencing exercise. 351. However, we can hold with certainty that A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) belonged to the second category even if they slip out of the first. They were not merely carrying out the orders of the first c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mother of a little female child who would not have even experienced maternal huddling as that little one was born in captivity. Of course the maxim "Justitia non novit patrem nee mortem" (Justice knows no father nor mother) is a pristine doctrine. But it cannot be allowed to reign with its rigour in the sphere of sentence determination. As we have confirmed the death sentence passed on the father of that small child an effort to save its mother from gallows may not militate against jus gladiate " so that an innocent child can be saved from imposed orphanhood. 355. Thus, on an evaluation of the plus and minus, pros and cons -we persuade ourselves to save A-1 (Nalini) from gallows. Hence the sentence passed on her is altered to one of imprisonment for life. 356. What remains is the case of A-9 (Robert Payas), A-10 (Jayakumar), and A-16(Ravichandran). They do not belong to the first or even to the second category. They were LTTE followers and they just obeyed the commands of leaders like Sivarasan who had the capacity to dominate over them. We are inclined to alter their sentence from death penalty to imprisonment for life. We order so. 357. The appeals filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der. "A judicial massacre", bemoaned Mr. Natarajan, learned senior counsel for the accused, and rightly so in our opinion. Designated Court also sentenced each of the accused individually for various offences for which they had been separately charged. 360. In view of the provisions of Section 20 of TADA, Designated Court submitted the sentence of death to this Court for confirmation. The accused also filed appeals under Section 19 of TADA challenging their conviction and sentence. 361. The accused have different alias and while mentioning the accused name it may not be necessary to refer to them with all their respective alias and alias of an accused will be indicated wherever necessary. There is no dispute about these alias. For proper comprehension of the facts it will be appropriate to refer to the appellants as accused, 362. Three absconding accused are (1) Prabhakaran, (2) Pottu Amman alias Shanmuganathan Sivasankaran and (3) Akila alias Akilakka. Prabhakaran is alleged to be the supreme leader of Liberation Tigers of Tamil Elam (LTTE) - a Sri Lankan Tamil organization, who along with Pottu Amman, Chief of Intelligence Wing of LTTE, Akila, Deputy Chief of Women W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into India clandestinely, 2. to carry and use unauthorized arms, ammunition and explosives, 3. to set up and operate unauthorized wireless sets to communicate with LTTE leaders in Sri Lanka from time to time, 4. to cause and carry out acts of terrorism and disruptive activities in Tamil Nadu and other places in India by use of bombs, explosives and lethal weapons so as to scare and create panic by such acts in the minds of the people and thereby to strike terror in the people, 5. in the course of such acts to assassinate Rajiv Gandhi, former Prime Minister of India and others, who were likely to be with him, 6. to cause disappearance of evidence thereof and to escape, 7. to screen themselves from being apprehended, 8. to harbour the accused and escape from the clutches of law, and 9. to do such other acts as may be necessary to carry out the object of the criminal conspiracy as per the needs of situation. and in pursuance of the said criminal conspiracy and in furtherance of the same to carry out the object of the said criminal conspiracy: (I) Santhan (A-2), Murugan (A-3), Shankar (A-4), Vijayanandan (A-5), Ruban (A-6), Kanagasabapathy (A-7), Athirai (A-8), Rober ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with Driver Anna (DA) rendered all assistance necessary therefor; (IX) Sivarasan decided to murder Rajiv Gandhi, former Prime Minister of India in the public meeting to be held at Sriperumbudhur on 21.5.91 on learning that Rajiv Gandhi was to address the meeting on the said day and finalized the method of operation to murder him by enlisting the services of Nalini (A-1) to be of help at the scene of crime; (X) Arivu (A-18) handed over the film roll for the purposes of taking photographs of events to Haribabu (DA), who also purchased a sandal wood garland from Poompuhar Handicrafts, Mount Road Madras to be used for garlanding Rajiv Gandhi at the scene of occurrence by Dhanu (DA) so as to gain access to the VVIP under the guise of garlanding; (XI) Dhanu equipped herself with the necessary apparel in order to hide a belt bomb and detonator attached thereto for detonating the same when she was in close proximity to Rajiv Gandhi; (XII) Haribabu (DA) met Suba Sundaram (A-22) on 21.5.1991 and thereafter took a Chinon camera from a friend for taking photographs at the scene of offence and loading the camera with the film already provided by Arivu (A-18); (XIII) Nalini (A-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bangalore and other places in Karnataka purchased by Dhanasekaran (A-23) using LTTE funds; (XXIII) Ranganath (A-26) harboured the accused Rangam (A-24) and the deceased accused Sivarasan, Subha, Nero, Suresh Master, Amman, Driver Anna and Jamuna at Knonnakunte, Bangalore and on 19.8.1991 the deceased accused Sivarasan, Subha, Nero, Suresh Master, Amman, Driver Anna and Jamuna committed suicide; (XXIV) Shanmugavadivelu alias Thambi Anna (A-15) rendered financial assistance to Sivarasan and to one or other of coconspirators to carry out the object of conspiracy and abetted the commission of the said offence; (XXV) Nalini(A-1)to Ranganath(A-26) caused the disappearance of evidence of murder of Rajiv Gandhi; and thereby Nalini (A-1) to Ranganath (A-26) committed offences punishable under Section 120-B of IPC read with Sections 302 of IPC, 326 of IPC, 324 of IPC, 201 of IPC, 212 of IPC and 216 of IPC; Sections 3, 4 and 5 of Explosive Substances Act of 1908; Section 25 of Arms Act of 1959; Section 12 of Passport Act, 1967; Section 14 of the Foreigners Act, 1946; Section 6(1A) of the Wireless Telegraphy Act, 1933 and Sections 3, 4 and 5 of TADA of 1987. 365. Including the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bha, Dhanu and Haribabu on the night of 21.5.1991 at about 10.20 P.M. in the public meeting having knowledge of the commission of the terrorist act viz., explosion of bomb for killing Rajiv Gandhi and others and causing injuries to those, who were likely to be around him, and also striking terror in the people and rendered assistance to the terrorists Dhanu, Sivarasan and Subha prior to the terrorist act by taking them to the bus, hotel, the venue of public meeting and the like and intentionally aided the said terrorist act by being present on 21.5.1991 at Sriperumbudur in the public meeting, where the terrorist act was committed by Dhanu by detonating the improvised explosive device kept concealed in her waist belt resulting in the bomb blast, and with intent to aid and facilitate the commission of the said terrorist act Nalini (A-1) provided a cloak to Dhanu and Subha from being easily identified as Sri Lankan Tamils at the scene of crime and also facilitated the escape of the above said accused concerned in the crime, and thus Nalini (A-1) abetted the commission of the terrorist act and acts preparatory to the terrorist act or knowingly facilitated the commission of the terroris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson 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 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 extent 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unauthorized arms, etc., in specified areas.- Where any person is in possession of any arms and ammunition specified in columns 2 and 3 of Category 1 and 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.-(1) If any person with intent to aid any terrorist or disruptions, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oing 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 the 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 make thereunder; (e) the punishment of any person who contravenes or attempts to contravene or abets or attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital 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 detain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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; xxx xxx xxx xxx 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. "PASSPORTS ACT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such person has entered into a bond in pursuance of Clause (f) to 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)to(e) .... (f) shall enter into a bond with or without sureties for the due observance of as in alternative to a enforcement of any or all prescribed or specified restrictions or conditions, (g) ... and 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 tele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the prosecution against the accused, namely, (1) clandestine infiltration into India, (2) hiring of safe accommodation for the conspirators, (3) unauthorized 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 past couple of years there has been unrest in the north part of Sri Lanka, a neighbouring country which area is inhabited mostly b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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, 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/Coast Guard will co-operate with the Sri Lanka 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 co-operate 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 co-operate in ensuing the physical security and safety of all communities inhabiting the Northern and Eastern Provinces. The Indo-Sri Lankan Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposed to the Accord and also against the IPKF. Prabhakaran at one stage even said that it was 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 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. Vasantha 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 inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21.5.1991. 377. Aveek Sarkar (PW-255) had an interview with Rajiv Gandhi which was published in the Sunday magazine issue of August 12-19, 1990. The interview is dated July 30/31, 1990. In the interview Rajiv Gandhi supported the Accord and criticized V.P. Singh in withdrawing the IPKF. He said there was no rationale behind the withdrawal and as things till then had not stabilized and Accord had not been fully implemented. In the Congress manifesto which was released in 1991 for Lok Sabha elections Congress supported the Accord. This manifesto was brought on record in the statement of K. Ramamurthi (PW-258), who was the President of Tamil Nadu Congress Committee at the relevant time. 378. 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 he made statement in April, 1990 that he was against the former leadership, namely, Rajiv Gandhi. Though the Congre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on 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, Kodung ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... useendran (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 creation of Tamil State separate from India. 383. 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. 384. 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 Amman. He reached Kodiakkarai 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 Kodiakkarai. 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. Muthiraja, 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, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Murugan (A-3) met Shankar (A-4) at Kodiakkarai on 14.5.1991 he gave him a slip of paper (Exh.P-1062) containing the names Nalini (A-1)-Thas (also pronounced as Das by which name Murugan (A-3) was as 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 members group on 1.5.1991 at Kodiakkarai Shanmugavadivelu (A-15) (also described as Thambi Anna) had made arrangements with P. Veerappan (PW-102), a travel agent and C. Vamadevan (PW114), a Sri Lankantravel 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. 388. 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: 388-A. Up till 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 are all LTTE activists or its ardent supporters and were to act under the instructions of Sivarasan. It is not disputed, however, that existence of LT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perate the wireless set installed there (Station 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 powdermachine. On 11.5.1991 Nalini(A-1) took Subha and Dhanu to the shop of M. Gunankhalal Soni (PW-179), gave him the measurement of Subha 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 Suba Sundaram (A-22) and deceased accused Haribabu attended the meeting of Rajiv Gandhi and Jayalalitha at Marina Beach, Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sandalwood garland from Poompuhar Emporium. He then went to the studio of K. Ravi Shankar (PW-151) and borrowed his camera (MO-1). In the afternoon he went to the studio of Suba Sundaram (A-22) when he was having 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 Kancheepuram 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 Villivakkam 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 Villivakkam. 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 Subha and Dhanu. Both Subha and Dhanu went inside the room and after about 30 to 40 minutes came out. Dhanu was wearing the orange colour salwar kameez. Sivarasan, Subha and Dhanu went to the house of Nalini (A-1) at Villivakkam in an auto-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alias Keerthy and Jamuna alias Jameela, all Sri Lankan nationals. 395. First Information Report of the crime was lodged at 1.15 a.m. on 22.5.1991 under Section 302, 307, 326 IPC and Section 3 to 5 of 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, Subha and Nalini (A-1). One photograph also showed the event of the explosion itself. (Exh. P-735 is the exposed part of the film and MO-542 is the unexposed part of the film). During the course of investigation 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), Suba Sundaram (A-22) and Ranganath (A-26) were recorded. Their dates of arrest, confession and nationality are as under: 396. The immediate fall out of the assassination of Rajiv Gandhi was that general elections in India got postponed. A notification was issued by Election Commission of India on 22.5.1991 stating that earlier notification dated 19.4.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Natrajan 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 being taken under coercion and under Police influence; (2) sufficient time was not given to accused before recording of the confession. They were given only 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 pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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:" (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". 402. It is unnecessary to refer to provisions of Section 281 of the Code as it is not disputed that otherwise the confessions of the accused have been properly recorded. Contention in the case of Nalini (A-1) is that the mandatory provision of Rule 15 (3) have been violated as it is not signed by Nalini (A-1) which s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach of procedure and the accepted norms of recording the confession which should reflect only the true and voluntary statement and there should be no room for hyper criticism that the authority has obtained an invented confession as a source of proof irrespective of the truth and creditability as it could be ironically put that when a judge remarked, "Am I not to hear the truth", the prosecution giving a startling answer, "No, Your Lordship is to hear only the evidence". This is how this Court analyzed Section 15 and Rule 15:- As per Section 15(1), a confession can either be reduced into writing or recorded on any mechanical device like cassettes, tapes or sound tracks from which sounds or images can be reproduced. As rightly pointed out by the learned Counsel since the recording or evidence on mechanical device can be tampered, tailored, tinkered, edited and erased etc., we strongly feel that there must be some severe safeguards which should be scrupulously observed while recording a confession under Section 15(1) so that the possibility of extorting any false confession can be prevented to some appreciable extent. Sub-section (2) of Section 15 enjoins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confession under Section 164(1) in view of Sub-section (3) of Section 20 of the TADA Act. Reference was also made to a Division Bench decision of the Bombay High Court in Abdul Razak Shaikh v. State of Maharashtra 1988 Crl.L.J. 382, which relying on a decision of Privy Council in Nazir Ahmad v. King-Emperor, held, "that the provision that the Magistrate after recording confession should obtain the signature of the accused thereon is a salutary provision and has been specially provided for, for safeguarding the interest of the accused and, therefore, it is mandatory". High Court said that this omission cannot be cured by examining the Magistrate under Section 463 of the Code. Section 463 of the Code is as under:-" 463. Non-compliance with provisions of Section 164 or Section 281.- (1) If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under Section 164 or Section 281, is tendered, or has been received, in evidence finds that any of the provisions of either or such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopted by the Crown, the only effect of Section 164 is to allow evidence to be put in a form in which it can prove itself under Sections 74 and 80, Evidence Act. Their Lordships are satisfied that the scope and extent of the section is far other than this, and that it is a section conferring powers on Magistrates and delimiting them. It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by Sections 164 and 364 would be of such trifling value as to be almost idle. Any Magistrate of any rank could depose to a confession made by an accused so long as it was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily and without showing or reading to the accused any version of what he was supposed to have said or asking for the confession to be vouched by any signature. The range of magisterial confessions would be so enlarged by this process that the provisions of Section 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case. In Abdul Razak Shaikh's case Bombay High Court also relied on a decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ages 1 to 16. In his testimony V. Thiagarajan (PW-52) has submitted that his not getting signatures of Nalini (A-1) at the end of confession is an omission. There is no cross-examination of V. Thiagarajan (PW-52) as to why the omission occurred. It has not been suggested that the omission was deliberate. Statement of V. Thiagarajan (PW-52) is forthright. There could certainly be a human error but that would not mean that Section 463 of the Code becomes inapplicable. Mr. Natarajan is correct in his submission that when the requirement of law is that confession should be signed by the person making it, it would mean his signatures at the end of the confession. What Section 463 requires is that evidence could be led of police officer recording the confession as to why provisions of Rule 15 (3) could not be complied while recording the confession. It has not been suggested or brought on record as to how not getting signatures of Nalim (A-1) on the last pages of the confession has injured her in her defence on the merits of the case. The confession has been corroborated in material particulars by means of independent evidence even if the confessions of the co-accused are set apart. Conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as challaned before the Designated Court at Hyderabad for offences under Sections 124-A, 436, 153-A and 505(2) IPC and under Sections 3, 4 and 5 of TADA and also under Section 25 of the Arms Act. The Designated Court acquitted him of the offences under TADA but convicted him of the offences under the IPC and also under Section 25 of the Arms Act. In these circumstances, this Court said that confession made by the accused before the Police Officer was inadmissible in respect of the offences under the IPC. The Court observed as under: While dealing with the offences of which the appellant was convicted there is no question of looking into the confessional statement attributed to him, much less relying on it since he was acquitted of all offences under TADA. Any confession made to a police officer is inadmissible in evidence as for these offences and hence it is fairly conceded that the said ban would not wane off in respect of offences under the Penal Code merely because the trial was held by the Designated Court for offences under TADA as well. Hence the case against him would stand or fall depending on the other evidence. 408. As to whether any offence under Section 3 or 4 of TA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". In this context we may point out that the words "or co-accused, abettor or conspirator" in the proviso were not in the section until the enactment of Act 43 of 1993 by which those words were inserted. By the same Amendment Act Section 21 was also recast which, as it originally stood, enabled the Designated Court to draw a legal presumption that the accused had committed the offence "if it is proved that a confession has been made by a co-accused that the accused had committed the offence". 71.The legal presumption linked to an accused vis-a-vis a confession made by a co-accused has been deleted by Parliament through Act 43 of 1993 and as a package inserted the words mentioned above in Section 15. 72. What is the effect of such deletion from Section 21 and addition to Section 15 of TADA? It should be remembered that under Sections 25 and 26 of the Evidence Act no confession made by an accused to a police officer, or to any person while he was in police custody could be admitted in evidence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 410. Mr. Altaf Ahmad, learned Additional Solicitor General submitted that the statement of law as spelled out in para 75 of the judgment in Kalpnath Rai's case needs re-consideration. He said what Section 15 contains is a non-absent clause and it applies notwithstanding the provisions of the Evidence Act and the Code. 411. Section 21 of TADA was amended by the amending Act 43 of 1993 and Clauses (c) and (d) were omitted. Section 21 before deletion of Clauses (c) and (d) was as under: 21. Presumption as to offences under Section 3. - (1) In a prosecution for an offence under Sub-section (1) of Section 3, if it is proved - (a) that the arms or explosives or any other substances specified in Section 3 were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature, were used in the commission of such offence; or (b) that by the evidence of an expert the finger prints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence; or (c) that a confession has been made by a co-accused that the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used is now admissible in evidence against co-accused. It is the substantive evidence against the co-accused as well. Concept of drawing presumption though as was earlier mentioned in Section 21 now no more existed. 415. When Section 15 TADA says that confession of an accused is admissible against co-accused as well it would be substantive evidence against the co-accused. It is a different matter as to what value is to be attached to the confession with regard to the co-accused as that would fall in the realm of appreciation of evidence. 416. The term 'admissible' under Section 15 has to be given a meaning. When it says that confession is admissible against a co-accused it can only mean that it is substantive evidence against him as well as against the maker of the confession. 417. Mr. Natrajan said that the confession may be substantive evidence against the accused who made it but not against his co-accused. He reasoned that the confession was not that of the co-accused and it was not the evidence; it is the confessor who owned his guilt and not the co-accused; it is not evidence under Section 3 of the Evidence Act; it is not tested by cross-examination; and lastly, aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposed to evidence given for the purpose of discrediting a witness (i.e. showing that he is unworthy of belief), or of corroborating his testimony". 420. TADA was enacted to meet extraordinary situation existing in the country. Its departure from the law relating to confession as contained in Evidence Act is deliberate. Law has to respond to the reality of the situation. What is admissible is the evidence. Confession of the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative. When the legislature enacts that Evidence Act would not apply which would mean all the provisions of the Evidence Act including Section 30. By judicial interpretation or judicial rigmarole, as we may put it, the Court cannot again bring into operation Section 30 of the Evidence Act and any such attempt would not appear to be quite warranted. Reference was made to a few decisions on the question of interpretation of Sections 3 and 30 of the Evidence Act, foremost being that of the Privy Council in Bhuboni Sahu v. The King, and though we note this decision it would not be applicable because of the view w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though such a confession may not be evidence as strictly defined by Section 3 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non-technical way. But it is significant that like other evidence which is produced before the Court, it is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the Court in dealing with a confession, because Section 30 merely enables the Court to take the confession into account. 423. In view of the above discussions, we hold the confessions of the accused in the present case to be voluntarily and validly made and under Section 15 of TADA confession of an accused is admissible against co-accused as a substantive evidence. Substantive evidence, however, does not necessarily means substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the crime. The witnesses give gory picture of the scene of the crime. There is no dispute that death of Rajiv Gandhi and 15 others was homicidal and the grievous and simple hurt caused to 43 on account of the blast. There is also no dispute about the identity of the accused. Dr. Cecelia Cyril (PW-121), Dr. M.N. Damodaran (PW-124) to Dr. Jishnu Mohan (PW-127), Dr. N. Ramasamy (PW-129), Dr. B. Santhakumar (PW-130), Dr. Veerapandian (PW-134) to Dr. T.S. Koshy (PW-146), Dr. Raja Venkatesh (PW-150), Dr. Kanagaraj (PW-155), Dr. A. Srinivasan (PW-162), Dr. E.V. Yuvaraj (PW-163), Dr. Ponnusamy (PW-165), Dr. K. Poongothai M.S. (PW-166), Dr. Saraswathi (PW-169) and Dr. Ramesh Kumar Sharma (PW-182) are medical officers, who conducted post-mortem and examined the injured. Dr. L. Thirunavukkarasu (PW-243), Dr. S. Rajendran (PW-244), Dr. S. Maghivanan (PW-246) and Dr. T. Shankughavel Samy (PW-247) are the medical officers who conducted the post-mortem on the dead bodies of the deceased accused, who committed suicide during investigation. Dr. Amrit Patnaik (PW-147) is the medical officer who conducted the post-mortem on the dead body of Dhanu. 425. We may now examine the confessions given by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fe of the former at Kalyani Nursing Home. Bhagyanathan (A-20) was introduced to Baby Subramaniam by Muthuraja. Arivu (A-18) also became friend of Bhagyanathan (A-20). Like Muthuraja, Arivu (A-18) used to gather news and photographs. He used to compile Tamil and English news, record in video cassettes, edit them and send them to LTTE Headquarters in Sri Lanka. He was staying in the house of Padma (A-21) since February, 1991. For the purpose of recording news on video cassettes he had bought a National colour TV and video deck. In the first week of February, 1991 Muthuraja introduced Murugan (A-3) to the family of Padma (A-21), He belonged to LTTE organization. Padma (A-21) at first did not like Murugan (A-3) to stay in her house but she agreed when Muthuraja told her that police was keeping a watch over his house and he could not keep him there. Murugan (A-3) used to provide financial help to Padma (A-21). He helped Bhagyanathan (A-20) by giving him money as well. One K. Bharathi (PW-233), a nurse, was a friend of Kalyani. She also stayed in the house of Padma (A-21) since February, 1991. On one occasion in February, 1991 K. Bharathi (PW-233) found Murugan (A-3) in the house of Padm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also told about the suicide committed by 12 Tamil activists, who were detained by Sri Lankan Navy. All this led Nalini (A-1) to have strong feeling of disgust against Rajiv Gandhi. She also read the book "Satanic Force" and developed extreme hatred for Rajiv Gandhi. Since Subha and Dhanu had come to India for the first time and were finding it difficult to communicate and thus required a natural cover to facilitate their movements. Nalini (A-1) by this time was mentally prepared by Sivarasan, Murugan (A-3), Subha and Dhanu for any kind of retaliatory action including killing of leaders. On 2.5.1991 when Sivarasan brought Subha and Dhanu to the house of Nalini (A-1) and she was told that they were going to garland Indian leaders while addressing public meeting Nalini (A-1) felt instinctively that they were going to assassinate some leader. They had, however, not discussed about it. Sivarasan was of the view that in order to acquaint with the method by which they could bypass the police security and reach the leaders addressing the meetings they should attend those meetings. He said it was very important that Subha and Dhanu reached very close to VIP for garlanding him at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we cannot proceed to any place in the noon. We are confident that the work for which we came would be finished in a proper manner. Because we were expecting another opportunity appropriately it would be executed within this month. Otherwise, the state of this country is very bad. We have to practise only to speak. Otherwise there is no problem for us. It is necessary to enact a drama. Akila sister's, every word shall remain in our mind until last. The remaining, if we meet? Are everybody is well? Yours Sd/- Subha-Dhanu Ex. P. 96 Tamil Elam 09.05.91 To Pottanna, We are confident and well. I am confident that we will be successful in the attempt of job for which we came. Because, we expected a similar opportunity (we went very near to Singh). We will be confident until last Yours Sd/- Subha-Dhanu 429. On 7.5.1991 Sivarasan sent a coded wireless message from Madras to Pottu Amman in Sri Lanka (Exh. P-392) which, when decoded, reads as under: She is the eldest daughter in the house of Indu Master. Moving closely. Our intention is not known to anybody except we three. I have told her that it is to have the support of the party who will be coming to power. Here V.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1) a feeling of terror. She, however, managed to tell him that it would be difficult to apply for two days' leave and go to Pondicherry and that she would be able to visit the nearest point. Sivarasan said that he would decide about the venue the next day. Nalini (A-1) now had a strong feeling that Rajiv Gandhi was their final target. Sivarasan again came to the house of Nalini (A-1) on the morning of 20.5.1991 and said that he would inform her about the venue in the evening. He told her to go to Royapettah house in the evening at about 6.30 p.m. He asked her where Sriperumbudur was and when she told him that she would make inquiries and let him know he said sternly that on no account she should discuss that matter with any one and that he would himself find out about Sriperumbudur. Sivarasan told Nalini (A-1) to apply for leave on some pretext but not for Sriperumbudur meeting. Then he left along with Dhanu and Subha. Nalini (A-1) went to Royapettah house in the evening. Sivarasan also came there and told her that venue was Sriperumbudur and that she need take only half day's leave on 21.5.1991 and should be available at her house positively at 3.00 p.m. sharp. He said he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee which had been purchased earlier. Dhanu was wearing loose fitting green colour 'kameez', orange colour 'churidar' and a green colour dupatta which had been purchased earlier from the market. Subha told Nalini (A-1) that Dhanu was going to create history that day by assassinating Rajiv Gandhi and they would he very happy if Nalini (A-1) also participated in that. Nalini (A-1) agreed. She could see that Dhanu was concealing an apparatus under her dress. Nalini (A-1) wore a saree. At about 4.00 p.m. they all left in an auto rikshaw. Dhanu said that she would go to temple for her final prayers. They went to Pillayar Temple near Nadamuni Theatre and Dhanu offered prayers. before leaving the house Nalini (A-1) left her keys with Rani (PW-90), her neighbour, whom she told that she was going to Vellore. They went to Parrys Corner and reached Thiruvalluvar bus stand around 5.00 p.m. Haribabu was already there. He had purchased a sandalwood garland which was wrapped in a brown cover. This garland was purchased in the morning by Haribabu from Poompuhar Handicrafts, Madras. It was sold to him by A.K. Anbalagan (PW-94). He was also having a camera. This was the camera (MO-1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lini (A-1) and Subha ran across to the Indira Gandhi statue as instructed earlier by Sivarasan and waited for him. Soon thereafter Sivarasan came running there. He told that both Rajiv Gandhi and Dhanu had died and said that unfortunately Haribabu also died. Sivarasan took out a pistol wrapped in a white cloth and gave it to Nalini (A-1) to be given to Subha. Nalini (A-1) handed over that pistol to Subha. They came to the bus stand and saw there was a bus but they were told that that bus would not be leaving. They ran further down the road and saw a lady Samundeeswari (PW-215) who was standing outside a house. They requested her and were given water to drink. They were able to reach Madras by changing two auto rickshaws. Last auto rikshaw was driven by K. Vardarajan (PW-183). They reached Kodungaiyur at 1.30 a.m. in the night of 21/22.5.1991. Jayakumar (A-10) and his wife Shanthi1 (A-11) were in the house. Nalini (A-1) met them for the first time. They spent night there. Nalini (A-1) and Subha were quite upset that Haribabu had unexpectedly also died in the blast. Subha told Nalini (A-1) that it was she who had personally prepared Dhanu to put the belt on her waist containing the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A-20). Nalini (A-1) continued to attend her office till 7.6.1991. On 7.6.1991 she gave a plastic cover containing Rs. 25,000/- to her colleague N. Sujaya Narayan (PW-96) and requested her to keep the same in her table drawer. Three days earlier Murugan (A-3) had come to the office of Nalini (A-1) and took her to a lady doctor to know if Nalini (A-1) was pregnant. That day they stayed in Madipakkam house. On 6.6.1991 Nalini (A-1) asked her sister Kalyani to go to Villivakkam house and settle the rent arrears with the landlord there. On 7.6.1991 as per earlier programme Nalini (A-1) and Murugan (A-3) went to Ashtalaxmi temple at Besant Nagar where Subha and Sivarasan also came. Sivarasan said that CBI was making detailed inquiries and invited Nalini (A-1) to go to Sri Lanka with him. Nalini (A-1) declined, He then told her to take Subha to a doctor as she was very weak. Nalini (A-1) took Subha to Asian Hospital at Besant Nagar and doctor advised her to take rest and prescribed some medicines. Sivarasan and Subha then left by an auto. Nalini (A-1) and Murugan (A-3) also returned. Nalini (A-1) went to see the lady doctor, who confirmed that she was pregnant. 437. On the morning of 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en, who are connected with Rajiv's assassination". In that notice there was description of Nalini (A-1) mentioned. R. Ravi Srinivasan (PW-115) gave information on telephone to SIT at about 10.00 a.m. Nalini (A-1) and Murugan (A-3), however, did not return from the temple. Murugan (A-3) had left his cap (MO-395) in the house which R. Ravi Srinivasan (PW-115) handed over to the police. From Madurai Nalini (A-1) and Murugan (A-3) went to Villupuram and then to Devangere near Bangalore on 13.6.1991 and stayed there in the house of Sasikala (PW-132). There Nalini (A-1) introduced Murugan (A-3) as her brother-in-law Thas (Doss) to Sasikala (PW-132). Sasikala (PW-132) met Nalini (A-1) earlier in a common acquaintance house and had conversed with her. Nalini (A-1) told Sasikala (PW-132) that she was two months pregnant. Husband of Sasikala (PW-132) came to the house in the evening. He asked Nalini (A-1) how and when she got married. Nalini (A-1) said it was a long story and it would take time to narrate. While she was narrating her story Murugan (A-3) stopped her mid way and said they had to go to Madras urgently. During the course of their stay Nalini (A-1) told Sasikala (PW-132) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Suba Studio. Various persons connected with LTTE used to come to Suba Studio to meet Baby Subramaniam. In the course of time Bhagyanathan (A-20) was also attracted towards LITE. In 1989 Bhagyanathan (A-20) used to stay in the house of Muthuraja during nights. He then came in contact with Arivu (A-18), a diploma holder in Electronics and Communications. Arivu (A-18) was meeting Baby Subramaniam everyday. He was selling books and collecting news for the political propaganda wing of LITE. Baby Subramanian was senior member of LTTE and was incharge of political wing of LTTE in Tamil Nadu. At the suggestion of Muthuraja, Bhagyanathan. (A-20) purchased the press being run by Baby Subramaniam in 1990. He bought it for a petty sum of Rs. 5,000/- though he purportedly bought it for Rs. 51,000/-. He was told not to pay the balance amount and instead he was required to print monthlies of Tamileelam and Urumal which were being published from the press. Baby Subramaniam left for Srilanka in the end of May, 1990. Arivu (A-18) and Irumborai (A-19) also went along with him. They, however, returned after about four or five months. Irumborai (A-19) came to be known to Bhagyanathan (A-20) through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectric circuit used in the waist belt-bomb to kill Rajiv Gandhi was identical to the diagram in MO-609. The material was shifted by Arivu (A-18), Bhagyanathan (A-20) and Haribabu. P. Vadivelu (PW-202) is a tempo driver in whose tempo the material was shifted from the house of M. Sankari (PW-210) to the house of V. Radhakrishnan (PW-231). V. Radhakrishnan (PW-231) is working in the Customs Department of the State Government. He was familiar with Arivu (A-18) and Suba Sundaram (A-22). In January, 1991 Arivu (A-18) had asked him for a house for keeping his books. V. Radhakrishnan (PW-231) told him that he was not having any house at Madras but had one in his village. Arivu (A-18) agreed for that house and in March, he sent his books in a tempo with two persons. When the books were being kept there Arivu (A-18) had also come. After seeing that the books related to LTTE movement V. Radhakrishnan (PW-231) asked Arivu (A-18) to remove those books on which Arivu (A-18) said that he would do so within a month or two months time. A sum of Rs. 50/- was paid by him to the mother of V. Radhakrishnan (PW-231) towards rent. All this material was subsequently seized by the police. 443. Various pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gyanathan (A-20) and Arivu (A-18) went to Subha Studio to get the address of Haribabu. Murugan (A-3) sent Rs. 1000/- to the family of Haribabu which money was handed over by Bhagyanathan (A-20) there. At this stage Bhagyanathan (A-20) also learnt that Haribabu had taken a camera from K. Ravi Shankar (PW-151) to get photograph of garlanding Rajiv Gandhi as was told by Haribabu to K. Ravi Shankar (PW-151). When Bhagyanathan (A-20) told this fact to Suba Sundaram (A-22) he said not to open his mouth in this regard. But Ravi Shanker (PW-151) does not say of any conversation he had with Haribabu when he took the camera (MO-1). Bhagyanathan (A-20) said that he compelled his mother Padma (A-21) to go to Tirupathi along with Nalini (A-1), Murugan (A-3), Sivarasan and Subha in the car arranged by him. He burnt LTTE stickers and Prabhakaran's stickers. 445. On 25.3.1991 Dhanu's photo, which had been taken by Haribabu, was published in the papers. On 26.5.1991 Sivarasan's photo was published. On 27.5.1991 Murugan (A-3) asked Bhagyanathan (A-20) to meet Sivarasan at Mount Road Post Office. They both went by auto. Sivarasan gave Bhagyanathan (A-20) the motor cycle key and a bag con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a post-conspiracy letter. It does not show if Trichy Santhan was a conspirator. There is no evidence of Trichy Santhan being a member of the conspiracy to kill Rajiv Gandhi. He was one of the persons who committed suicide in Bangalore. Then any knowledge of conspiracy is not enough to implicate a person as a member of the conspiracy. 449. Padma (A-21) did not know if Murugan (A-3) was an LTTE activist when he came to stay in her house at the instance of Muthuraja, who told her that his house was being watched by police. Only later on she came to know that Murugan (A-3) was an LTTE activist. He helped her financially as financial condition of Padma (A-21) was not sound. Padma (A-21) had even borrowed money from M. Chandra (PW-214) (Rs.4000/-), who was working as a maid in the neighbourhood of Kalyani Nursing Home, where Padma (A-21) was working and where her employer had been admitted. This amount Padma (A-21) returned three months prior to the death of Rajiv Gandhi. Padma (A-21) had also borrowed money from R. Janaki (PW-226) whom she knew. This amount she returned in the month of March, 1991. From the notebook of Murugan (A-3) (MO-286), which was seized during the course of inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wireless, so that it might not be seized by the police. He asked her to keep that safely hidden. Padma (A-21) gave that Code Sheet to her co-nurse Devasena Raj (PW-73) for safe custody. Devasena Raj (PW-73) in her statement said that it was on the morning of 7.5.1991 when she was going for duty that Padma (A-21) asked her to keep one brown cover in her locker. Padma (A-21) said it was important. MO-106 is the brown cover and papers which were in the cover are MO-107 and MO-108. These were taken into possession by the police during investigation. Both Padma (A-21) and Bhagyanathan (A-20) were arrested on 12.6.1991. There is a wireless message dated 12.6.1991 sent by Sivarasan from Wireless Station 910 to Station 91 of Pottu Amman which reads "the brother of officer-girl, her mother were arrested". Reference to office-girl is to Nalini (A-1). 450. Murugan (A-3) is a Srilankan national. He joined LTTE movement in 1988. He is hard-core LTTE activist. He took training in shooting, drill, political classes and weaponary; He used to train new entrants. He spent two months in Yalpanam (Jaffna) fort and was also guarding the prison there. He subjected prisoners to torture in orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) became very much attracted to LTTE movement. In March, 1991 Sivarasan asked Murugan (A-3) to find out from Padma (A-21) if she would come with him to Delhi to arrange a house for their stay. Padma (A-21) did not agree. When Sivarasan asked Murugan (A-3) about this he felt that there was some plan for serious act like murder. However, he did not ask for any details from Sivarasan. On his request Bhagyanathan (A-20) introduced Haribabu as his confidential man to Murugan (A-3). In the third week of February, 1991 Murugan (A-3) and Haribabu went to Vellore and saw the Fort where certain persons belonging to LTTE were arrested and detained. Haribabu of his own went to Vellore three or four times and collected the structure of the jail interiors and maps as desired by Murugan (A-3). These were sent to Pottu Amman through Kanthan's code message. Murugan (A-3) was snubbed that he should do that work only which was entrusted to him at Madras and he was to do his duty without questioning. Pottu Amman told Murugan (A-3) that if he was asked to watch a particular shop he should not watch the next shop. Haribabu was doing the job of taking photographs and videograph of St. George Fort, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.5.1991 and stayed there upto 17.5.1991. Since no boat came he returned to Madras. The boxes which he was carrying he left at Kodiakkarai with M. Mariappan (PW-86), an employee of Shanmugham(DA). Those were subsequently recovered and seized and letters written by Subha, Dhanu and Bhagyanathan (A-20) (Exh. P-95, P-96 and P-453) were found. Two volumes of "Satanic Force" (MO-125 and 126), video cassettes showing various parts of Fort St. George (MO-323), photographs of DGP Office etc. (Mos-256-259) were also found. Murugan (A-3) reached Madras on 18.5.1991 and stayed with Nalini (A-1). While at Kodiakkarai, Murugan (A-3) met Shankar (A-4) and gave him a slip of paper (Exh.P-1062) containing the name: "Nalini-Thass-419493". On 20.5.1991 Sivarasan came to Royapettah house to instruct them to be ready for the meeting of Rajiv Gandhi on the next day. Murugan (A-3) went to the house of Haribabu and since Haribabu was not available he asked his sister to tell Haribabu to go to Royapettah house. On the night of 21.5.1991 Murugan (A-3) was in Royapettah house. When Arivu (A-18) and Bhagyanathan (A-20) came at 1.30 a.m. after seeing late night show they told him about R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e he got admission. Nagarajan was introduced as uncle of Santhan (A-2). Fees and expenses were paid by Sivarasan. Santhan (A-2) was residing in the hostel. Santhan (A-2) in his confession has described as to how Padmanabha, leader of EPRLF and other leaders of EPRLF were killed by Sivarasan and other LTTE tigers David, Danial alias Dinesh Kumar and Ravi on 19.6.1990 and how they were able to effect the escape back to Sri Lanka. Santhan (A-2) though himself did not take part in the killing was entrusted with the duty to watch the place where meeting of EPRLF was being held and to give that information to Sivarasan. He also escaped with Sivarasan and other Sri Lankans. Pottu Amman welcomed them and praised them by patting their shoulders. Prabhakaran also met them and shook hands with David, who was incharge of Padmanabha's murder. Because of this incident Santhan (A-2) discontinued his studies. P.S. Padmanabhan (PW-187) was a student of Madras Institute of Engineering Technology. He identified Santhan (A-2) as Raja who was studying in that Institute. He said Santhan (A-2) studied in the institute only for a couple of days and thereafter he did not see him. In the last week of Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments such as passport, ration card, school certificate, etc. and his brother-in-law should also come along with him. Shanmugavadivelu (A-15) was told that the expenses of visa, ticket and foreign exchange for the purpose would be Rs. 80,000/- and Rs. 50,000/-- were required in advance. In the first week of May, 1991 Shanmugavadivelu (A-15) brought his brother-in-law and introduced him to P. Veerappan (PW-102). He asked him certain questions. After two or three days C. Vamadevan (PW114) and Shanmugavadivelu (A-15) came to P. Veerappan (PW-102) and gave him Rs. 50,000/-. Shanmugavadivelu (A-15) said that other documents he will bring within a few days. Shanmugavadivelu (A-15) again met P. Veerappan (PW-102) two/three times and told him that necessary documents were getting ready. In the second week of July, 1991 brother-in-law of Shanmugavadivelu (A-15) came to P. Veerappan (PW-102) and asked him if papers were ready for his foreign trip. He told that documents have still not been given to him. P. Veerappan (PW-102) identified Santhan (A-2), who was introduced to him as brother-in-law by Shanmugavadivelu (A-15). P. Veerappan (PW-102) was, however, unable to identify if Shanmugavadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id as directed after the assassination of Rajiv Gandhi. On 20.5.1991 Santhan (A-2), Jayakumar (A-10) and Sivarasan were in the house of Jayakumar (A-10). before that on 16.5.1991 Sivarasan had told Santhan (A-2) that Prabhakaran had paid special attention on Santhan (A-2) after the murder of Padmanabha and important works were allotted to him and all this was on account of the cooperation given by Santhan (A-2) in Padmanabha case. Santhan (A-2) said that Sivarasan also told him that he was going to help Subha and Dhanu to finish Rajiv Gandhi. In Jayakumar's (A-10) house Santhan (A-2) stayed upto 28.5.1991. D.J. Swaminathan (PW-85) in his deposition said that Santhan (A-2) stayed in the house of Jayakumar (A-10) from 16.5.1991 to 26.5.1991. 456. On 21.5.1991 Santhan (A-2) saw Sivarasan in white kurta-pyjama. Sivarasan inserted a white cloth bag containing a pistol in his hip pocket and asked Santhan (A-2) whether the gun was protruding outside the dress. To this Santhan (A-2) replied in the negative. The pistol was Czechoslovakia make. Cloth bag was stitched by Shanthi (A-11) two days earlier. A pistol (MO-79) was seized by P.P. Chandrasekara Nair (PW-271) from the house at Kon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le he was still in the house of P. Thirumathi Vimala (PW-62). At his request Santhan (A-2) was taken to the house of Gowri Karunakaran. When he met Dixon he knew that he was a member of LTTE. A few days later Santhan (A-2) again come to the house of P.Thirumathi Vimala (PW - 62) and told her that Shanmugavadivelu's (A-15) house had been searched by the CBI and had caught him and that perhaps CBI would come to the house of P.Thirumathi Vimala (PW-62) also since Athirai (A-8) who was staying there was not holding passport and that it would be problem for her. He said he had, therefore, come to take Athirai (A-8) as directed by Sivarasan. Athirai (A-8) then went along with Santhan (A-2). before leaving, Athirai (A-8) left Rs. 8,000/-with P. Thirumathi Vimala (PW-62). Around 1.7.1991 when P. Thirumathi Vimala (PW-62) came to her house she found Santhan (A-2) and Athirai (A-8) waiting for her. Athirai (A-8) wanted her money back. P. Thirumathi Vimala (PW-62) said that she never expected them to come back immediately and that she had already spent Rs. 1,500 out of that money for certain purchases and was left with Rs. 6,500/-. They said it was alright and asked her to give that money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est 65% was shared between Shanmugavadivelu (A-15) and Arvinda Das. According to Shanmugavadivelu (A-15) Arvinda Das was disbursing money to Sri Lankan Tamils there from lorry service. He was also receiving money from Sri Lanka at times for distribution as per instructions received on telephone by him. Shanmugavadivelu (A-15) knew P. Thirumathi Vimala (PW-62) from Sri Lanka. She had come to India three or four years earlier to Shanmugavadivelu (A-15). She shifted to her house at Royapettah in 1990. P. Thirumathi Vimala (PW-62) was known to wife of Shanmugavadivelu (A-15). They were on visiting terms. One child was born to Shanmugavadivelu (A-15) while in India. One day two persons by the name Sivarasan and Santhan (A-2) came to the house of Shanmugavadivelu (A-15) and wanted to give a letter to P. Thirumathi Vimala (PW-62). Shanmugavadivelu (A-15) took them to the house of P. Thirumathi Vimala (PW-62). When Sivarasan and Santhan (A-2) expected some money from Shanmugavadivelu (A-15) he told them that that matter was attended to by Arvinda Das. Sivarasan said that whenever Santhan (A-2) would come and ask for money that be given to him. When Shanmugavadivelu (A-15) took them to P. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were kidnapped. LTTE used to ask for money before releasing the kidnapped but no one did make any complaint about that. Wife of Shanmugavadivelu (A-15) had thus developed a great hatred for LTTE. When Sivarasan and Santhan (A-2) came to the house of Shanmugavadivelu (A-15) for the first time they had noted his phone number. Shanmugavadivelu (A-15) does not talk of any help rendered by him to Santhan (A-2) to go abroad and for that purpose to get passport and visa for him or about any conversation between him and P. Veerappan (PW-102) and C. Vamadevan (PW114). In one of the papers seized from Ruban (A-6) at Jaipur telephone number of Shanmugavadivelu (A-15) 864249 is mentioned. From this prosecution seeks to draw an inference that Ruban (A-6) was sent to Jaipur by Santhan (A-2) and Sivarasan on 17.5.1991 for fixing a hide out and he was given telephone number of Shanmugavadivelu (A-15) as his contact number. Shanmugavadivelu (A-15) was known to Sivarasan and Santhan (A-2) as early as 1990 and had helped Santhan (A-2) to get admission in Madras Institute of Engineering Technology. 460. There is no confession of Ruban (A-6). Vijayendran (PW-111) is a Sri Lankan national. He came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Rajiv Gandhi at Sriperumbudur. He said they got into panic as they could be suspected as Tamilians. Ruban (A-6) suggested to vacate the lodge. Next day in the evening they changed to Vikram Lodge. Vijayendran (PW-111) met Mr.Rajan, Manager of the Lodge and asked him to help Ruban (A-6) for getting treatment as Dr. Sethi had given them appointment for 13.6.1991. He along with Ajas Ali left Jaipur on 24.5.1991 for Madras reaching there on the night of 27.5.1991. Ruban (A-6) told him that he would write letter to him addressed as Maharaja and to hand over that to Santhan (A-2). Ruban (A-6) gave him a letter which had already been written by him. Vijayendran (PW-111) saw the photo of Sivarasan published in newspaper on 29.5.1991 with announcement that his whereabouts be informed as he was the main person involved in the assassination of Rajiv Gandhi. That shook Vijayendran (PW-111). On 30.5.1991 Sivarasan came to him and inquired about Ruban (A-6) if he had given any letter. The letter which Ruban (A-6) had written was handed over to Sivarasan.. Vijayendran (PW-111) asked about his picture published in the newspapers. At this he gave sarcastic smile and told him in authoritative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 59) there is entry (Exh.P-439) giving details of expenses incurred for Ruban (A-6). In the confession of Irumborai (A-19) he has mentioned about the deceased accused Jamuna alias Jameela an injured LTTE tigress staying in Neyveli in Tamil Nadu for getting an artificial leg fixed as she had lost her leg in the fight at Jaffna against the Army. Ruban (A-6) did not get artificial limb in Jaipur and it was fixed in Madras itself while he was in judicial custody. 463. Arivu (A-18) was little less than 20 years of age on the date of assassination of Rajiv Gandhi. He was sympathizer of LTTE movement. In 1986 he took part in an agitation and was imprisoned for 15 days in Madras. Suba Sundaram (A-22) was known to his father. Arivu (A-18) joined his studio (Suba Studio) in May, 1989. Muthuraja and Baby Subramaniam used to visit Suba Studio. Arivu (A-18) became close to them and started working for LITE. He started selling and distributing LTTE literature. He used to sell these books in public meetings. In Suba Studio he also came in contact with Bhagyanathan (A-20) and deceased accused Haribabu, who were also working there. Even after they had left Suba Studio they used to come there. On ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re kept in custody. Blast of Vellore Fort and Jail and releasing of LTTE militants was one of the LTTE works in India. Various people connected with LTTE would come to the house of Bhagyanathan (A-20). Arivu (A-18) said when these people were talking among themselves he understood that it was for a very important and dangerous act and he had a strong suspicion that the target would be Rajiv Gandhi. 464. In April, 1991 when Sivarasan came to the house of Padma (A-21) he asked Arivu (A-18) if he was prepared to work with him. Arivu (A-18) agreed to work for him as Sivarasan was a senior LTTE member. Bhagyanathan (A-20) had already accepted to work for Sivarasan, before going to Sri Lanka Muthuraja has handed over his work to Arivu (A-18) and also instructed Bhagyanathan (A-20) to give all help to Arivu (A-18) as may be needed for the movement. Muthuraja had also requested Nalini (A-1) to provide all help to Arivu (A-18) in his absence. Photos and publications of LTTE movement and other books which were with Muthuraja were kept by Arivu (A-18). In March, 1991 he shifted them to the house of V. Radhakrishnan (PW-231), a friend of Arivu (A-18). These contained a 3 volume Black Book and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught earth wire. Sivarasan asked Arivu (A-18) to look after Vijayanandan (A-5), who was a senior LTTE leader. Vijayanandan (A-5) had come to India along with Sivarasan in the group of nine persons arriving on 1.5.1991. Vijayanandan (A-5) was staying in Komala Vilas lodge. Arivu (A-18) met him and took him to the house of N. Vasantha Kumar (PW-75). Vijayanandan (A-5) was to buy some books for the LTTE movement. In his confession Arivu (A-18) described N. Vasantha Kumar (PW-75) as his partner. He also described N. Vasantha Kumar (PW-75) as an LTTE member and close to Sivarasan. Once he said he had gone with N. Vasantha Kumar (PW-75) to the house of Trichy Santhan (DA). N. Vasantha Kumar (PW-75) was involved in publishing the LTTE propaganda book "Satanic Force" which contained articles relating to atrocities committed by IPKF. It was Trichy Santhan (DA) who was giving finance for that. On 20.5.1991 Arivu (A-18) learnt that in the evening when Nalini (A-1), Murugan (A-3) and Haribabu were in the house of Bhagyanathan (A-20) Sivarasan had a talk with Nalini (A-1) and Haribabu. Padma (A-21) had also come back from hospital at 8.00 p.m. According to Arivu (A-18) Sivarasan had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W-75) in partnership with Basheer Ahamad also published magazine called 'Pudhu Yugam'. The publication was stopped after two issues. In 1988 N. Vasantha Kumar (PW-75) was engaged to print calendars and some other pamphlets for LTTE at a monthly salary of Rs. 1500/-. He got printed various pamphlets like 'Indian Military Offensive', 'An unjust war against Tamils', 'Indo-Sri Lanka Accord', 'LTTE point of view', etc. In 1989 when DMK came to power in Tamil Nadu Baby Subramaniam was moving about openly in all places in an auto. He met N. Vasantha Kumar (PW-75) and asked him to print a book by the name 'Socialistic Tamil Ezham'. That book gave the political programme of LTTE. The book was got printed by N. Vasantha Kumar (PW-75) and his work was appreciated by Prabhakaran. Later Baby Subramaniam asked N. Vasantha Kumar (PW-75) to publish a big book by the name "Satanic Force" containing the atrocities of IPKF and other articles criticizing Rajiv Gandhi. N. Vasantha Kumar (PW-75) was promised Rs. 2000/- per month for the work in printing the book. A separate flat was hired for the purpose. All expenses of printing the book and hir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) to him. Trichy Santhan (DA) paid Rs. 90,000/- to N. Vasantha Kumar (PW-75) and promised to pay the balance through Arivu (A-18). They then returned to Madras. In the first week of May, 1991 Arivu (A-18) came to the. house of N. Vasantha Kumar (PW-75) with Vijayanandan (A-5). Arivu (A-18) asked him to help Vijayanandan (A-5) in purchasing the books for LTTE library. N. Vasantha Kumar (PW-75) made Vijayanandan (A-5) to stay in his adjoining flat. Vijayanandan (A-5) told N. Vasantha Kumar (PW-75) that he was a supporter of LTTE and that Pottu Amman had called him and had asked him to take charge of the library and for that purpose he had come to purchase the books. He also told him that about seven or eight days ago he had come to Kodiakkarai with eight other persons illegally in an LTTE boat. When N. Vasantha Kumar (PW-75) asked him if he had the list of books to be purchased, he replied that he did not have the list and that he would purchase the books directly. N. Vasantha Kumar (PW-75) sent Basheer Ahmad for helping Vijayanandan (A-5) in purchasing the books. Vijayanandan (A-5) had purchased about 400 books. Vijayanandan (A-5) used to talk about the atrocities committed by IPKF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e attending the meeting. On 29.5.1991 picture of Sivarasan was published in the Hindu newspaper. N. Vasantha Kumar (PW-75) recognized Sivarasan who had been brought to his house by Arivu (A-18). On 30.5.1991 Arivu (A-18) again came, to meet N. Vasantha Kumar (PW-75).and gave him Rs. 25,000/-, He was asked about the photo of Sivarasan and whereabouts of Sivarasan and if Arivu (A-18) was having any connection with the murder. At this Arivu (A-18) laughed sarcastically and left without any reply. Due to fear N. Vasantha Kumar (PW-75) did not inform the matter to anybody. At Balcon Press where Arivu (A-18) had gone to hand over Rs. 75,000/-- he came to know that police was in search of him. He was afraid and left Madras and went to his friend at Neyveli. In his absence on 4.6.1991 Vijayanandan (A-5) had come to his house and gave his wife a bag, Rs. 5,000/- and three sarees and told her that he would come and collect the same later. N. Vasantha Kumar (PW-75) returned from Neyveli and then with his family left Madras and stayed at a place outside the city. At this point of time he learnt the name of Sivarasan though earlier he was never introduced to him by that name. On 18.1.1992 one C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 9 volt golden power battery. 470. Lt. Col. Manik Sabharwal (PW-157), Bomb expert and Dr. P. Chandrasekaran (PW-280), Director, TNFSL, Madras gave opinion that 9 volt golden power battery was used as power source in the belt bomb used by Dhanu. From the statement of N. Vasantha Kumar (PW-75) it was seen that Arivu (A-18) was connected with the printing and publication of propaganda material for LTTE including the book "Satanic Force". Dr. R. Kuppusamy (PW-194) said in his statement that after examining the exposed frames of negatives used by Haribabu at the scene of crime (Exh.P-735) that these were from Kodak colour film and that was used for camera (MO-1). The unexposed portion of the Kodak colour film is MO-542 which was cut and removed from Exh.P-735. The material which had been removed by Arivu (A-18) from the house of Padma (A-21) after learning the assassination of Rajiv Gandhi, was subsequently recovered on the basis of disclosure statement (Exh.P-1343). In his letter (Exh.P-128) written by Trichy Santhan to Irumborai (A-19) he mentioned about the mistake committed in LTTE with the supporters of Sivarasan like Arivu (A-18) connected with Baby Anna. 471. Athira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey would be staying there in her house and would finish their work without any suspicion. 472. Relatives of Kanagasabapathy (A-7) were in Madras. He had already been to Delhi earlier. Athirai (A-8) and Kanagasabapathy (A-7) came to India in the end of April, 1991. They came in a fully armed boat of LTTE. On reaching Indian soil they went to the house of V. Kantha Raja (PW-60) alias Chokan, another LTTE sympathizer. That place Was Kodiakkarai. From there V. Kantha Raja (PW-60) took them to Madras and they went to the house of Jayakumari (PW-109) who was a relative of Kanagasabapathy (A-7). While they were staying in the house of Jayakumari (PW-109) Sivarasan came to meet her which was a pre-arranged meeting earlier by Pottu Amman. Sivarasan gave money to Athirai (A-8) for expenses and for her stay in Delhi. It appeared to Athirai (A-8) that Sivarasan was incharge of her. Athirai (A-8) said in her confession that later on she came to understand that when occasion would arise Sivarasan and other LTTE people would come for their purposes to Delhi and would be staying in the house taken by her. Sivarasan also gave money to Kanagasabapathy (A-7) for expenses. Once when Sivarasan came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left for Delhi on 20.5.1991. Sivarasan came to meet Athirai (A-8) one day after the assassination of Rajiv Gandhi and told her that it was difficult to take charge of her as police might arrest him. He told her that Santhan (A-2) would take charge of her. Speaking about the assassination of Rajiv Gandhi Sivarasan laughed. After his return from Delhi Kanagasabapathy (A-7) did not meet Athirai (A-8). He, therefore, shifted from the house of Jayakumari (PW-109) due to police surveillance. Sivarasan met Athirai (A-8) on 3.6.1991. Thereafter Santhan (A-2) used to visit her frequently. Sivarasan, Kanagasabapathy (A-7), Manju, daughter of P. Thirumathi Vimala (PW-62) and Athirai (A-8) used to meet at Marina Beach and talked about the status of Sri Lankan Tamilians as compared to status of Tamilians in India. In one of these meetings Kanagasabapathy (A-7) told Athirai (A-8) that he had arranged a double bed room house at Delhi. They decided to go to Delhi on 1.7.1991. Three days before that day Santhan (A-2) came and told Athirai (A-8) that police was interrogating Shanmugavadivelu (A-15) and it would be better for her not to stay with P. Thirumathi Vimala (PW-62) any further. He took Ath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r house any further. Sivarasan said that he would not come thereafter and that persons who would identify him and give information about him would meet with the same fate as Padmanabha and that it would apply to whomsoever it might be. Saying this he went away and did not come thereafter. P. Thirumathi Vimala (PW-62) told Athirai (A-8) also not to stay there any further and asked her to go away. At this Athirai (A-8) cried and said she did not have anyone else other than P. Thirumathi Vimala (PW-62) and that Sivarasan had already gone away. She pleaded that she be permitted to stay on. P. Thirumathi Vimala (PW-62) kept quiet. She read in the papers requiring all Sri Lankan refugees to get their names registered. Since Athirai (A-8) was not having any passport or any other document P. Thirumathi Vimala (PW-62) sent her daughter Manju along with Athirai (A-8) to get Athirai (A-8) registered as refugee. They returned and said it had been done. Application form requesting for issuance of identification card for Athirai (A-8) is Exh.P-214 and the application for getting name registered is Exh.P215. These were filled and signed by Athirai (A-8) and bear her photograph fixed on it. One da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Lanka and that her mother had expired in military attack and that she had come to study computer and journalism at Delhi. He also said that Athirai (A-8) would not talk much due to the grief of her mother's death. He did not introduce the other person but addressed him as brother, who left in the afternoon. Following day Kanagasabapathy (A-7) and Athirai (A-8) went to a book shop at Mount Road to buy some books. They purchased there Delhi Road map. They were also searching for a book containing addresses of VIPs but it was not available. On 2.5.1991 that person who had come with Kanagasabapathy (A-7) and Athirai (A-8) on 26.4.1991 came with Sivarasan. On 7.5.1991 Sivarasan again came and took Athirai (A-8) with him. before leaving Athirai (A-8) told Jayakumari (PW-109) that she would be staying at her brother's place and later she would go to Delhi. On 10.5.1991 Sivarasan again came on motorcycle and took along with him Kanagasabapathy (A-7). Later Kanagasabapathy (A-7) came back to the house and took his brief case, etc. and told Jayakumari (PW-109) that he was leaving for Delhi and would return after a week. On 30/31.5.1991 Kanagasabapathy (A-7) with two more persons c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tel Krishna there. K. Thiagarajan (PW-57) helped Kanagasabapathy (A-7) to get a house on rent at Moti Bagh in Delhi on monthly rent of Rs. 2,000 and an advance of Rs. 6,000/ -. He was also staying in Krishna Hotel, Delhi. That Kanagasabapathy (A-7) and Vanan travelled by air is evident by flight coupons of Indian Airlines (Exh.P-1329 and Exh.P-1330). In the note book (MO-159), diaries (MO-180 and Exh.P-1253), which are of Sivarasan, amounts have been shown to have been paid to Kanagasabapathy (A-7) and Athirai (A-8) and also to Vanan. In the wireless message (Exh.P-407) dated 14.6.1991 Sivarasan informed Pottu Amman that there was no news of Kanagasabapathy (A-7) who had gone to Delhi. This wireless message had been intercepted by T.P. Sitther (PW-78) and decoded by S. Mani (PW-84). On both the occasions at Delhi Kanagasabapathy (A-7) first time with Vanan and second time with Athirai (A-8) stayed in the Krishna Hotel. Ramkumar (PW-196), partner of the Krishna hotel has given statement with reference to the registers of arrival and departure (Exh.P-931) kept in the hotel. He had identified Kanagasabapathy (A-7) and Athirai (A-8). According to his record K. Thiagarajan (PW-57) along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kan national. He is also one of the nine members' group who came to India in a boat on 1.5.1991. At Kodiakkarai where the boat came Shankar (A-4) stayed with one Jagadeesan till 15.5.1991 and then came to Madras and stayed at Easwari Lodge from 16.5.1991 to 23.5.1991. before coming over to Madras Shankar (A-4) met Murugan (A-3) at Kodiakkarai when Murugan (A-3) was going for Jaffna but could not leave as boat had not arrived from Sri Lanka. Murugan (A-3) gave him a slip of paper containing (Ext. 1062) his name Thass' and name of Nalini (A-1) and her telephone number 419493. Santhan (A-2) and Sivarasan met Shankar (A-4) at Easwari Lodge and gave him Rs. 10,000/- Santhan (A-2) and Sivarasan knew the place of stay of Shankar (A-4). On 23.5.1991 Shankar (A-4) sought help of S. Kalyan Krishnan (PW-58) owner of the Easwari Lodge to contact Sivarasan or Robert Payas (A-9) on telephone number 2343402 of Ebenezer Stores. Shankar (A-4) was arrested on 7.6.1991 at Thiruthuraipoondi near Nagapattinam. Exh.P-401 is a wireless message from Sivarasan to Pottu Amman dated 9.6.1991 which reads :- "....There is news that one of my associates was caught at Nagapattinam and he has told al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lanka and got themselves registered as refugees on 20.9.1990. As noted above Prema, wife of Robert Payas (A-9) and Jayakumar (A-10) are brother and sister. Shanthi (A-11) is Indian national. Others are all Sri Lankan nationals. Shanmugha ingam is the father of Prema and Jayakumar (A-10). In his confession Robert Payas (A-9) said that he had been helping LTTE since 1985 during war first with Sri Lankan army and thereafter with Indian army IPKF. He said a rival organization EPRLF betrayed them to IPKF which caught hold of them and kept them in custody for 15 days. IPKF also raided their houses and beat up the ladies severely. He said at that time due to the action of IPKF his son aged 1-1/2 months died. He said they had developed hatred towards IPKF and even EPRLF. According to him IPKF was subjecting common people to great sufferings like committing murders, rape and other kinds of ill-treatments and harassment. Jayakumar (A-10) was a frequent visitor to Tamil Nadu. Porur house of Jayakumar (A-10) was rented through M. Utham Singh (PW56) proprietor of Ebenezer Stores who was paid commission. Jayakumar (A-10) also shifted to another house in Kodungaiyur. These two houses were arrang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s house. On 5.5.1991 Robert Payas (A-9), Santhan (A-2), Murugan (A-3), Haribabu: Arivu (A-18) and Sivarasan all met at Marina Beach. On 9.5.1991 Indirankutty came to Robert Payas (A-9) with Ruban (A-6) who had lost one of his legs in a bomb blast in Sri Lanka and had come to India with Sivarasan for medical treatment. Robert Payas (A-9) helped Sivarasan to get a learning licence' for motorcycle. He could not get a regular licence as he had lost one of his eyes. A week before the assassination of Rajiv Gandhi Sivarasan and Kanthan had come to the residence of Robert Payas (A-9) and they had a conference. Kanthan gave money to Sivarasan. Robert Payas (A-9) said that that money was used for their conspiracy work. Between 15.5.1991 to 21.5.1991 Santhan (A-2) came to the residence of Robert Payas (A-9) three times, first time when he came Kanthan gave him Rs. 2.00 lacs to hand over the same to Sivarasan who was staying at the residence of Jayakumar (A-10), second time Santhan (A-2) got Rs. 5.00 lacs and went away. One or two days later Robert Payas (A-9) and Santhan (A-2) went to market to make certain purchases for Ruban (A-6) which were needed for his journey to Jaipur and back. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gave a confession. He also talks of war first between Sri Lankan army and LTTE and then LTTE and IPKF. He said that Robert Payas (A-9), his sister's husband, was helping LTTE in his native village. In one raid made by IPKF Robert Payas (A-9) and Jayakumar (A-10) were caught and kept in a camp. Though Jayakumar (A-10) was released after a few days but not Robert Payas (A-9). Lives had become miserable because of raids by IPKF. They were now having close contacts with LTTE movement who were providing northern even financial help. In September, 1990 Jayakumar (A-10) said LTTE "people" told Robert Payas (A-9) and him to go and stay in Madras with instructions to keep houses ready for their purpose. He said on account of the atrocities committed jointly by IPKF and EPRLF, the LTTE movement had thought to teach a lesson to the leaders in India and to the persons belonging to EPRLF hiding in Madras. Since they were sent by LTTE movement to India they did not give two sovereigns of gold and pay Rs. 1500/- for each of the person coming to India which LTTE was charging. After getting themselves registered at Rameshwaram as refugees they all went to stay at Madras. Nishanthan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anka two or three times and returned. On 2.5.1991 when he returned from Sri Lanka he brought two LTTE lady tigresses Dhanu and Subha. Jayakumar (A-10) said it was known to him that "Sivarasan had. brought those two LTTE movement lady tigers with a murder plan". He said it was also known to him that Sivarasan and lady tigresses had decided to wreak vengeance for the atrocities committed by IPKF. After staying in the house of Jayakumar (A-10) for a day or so those two girls went to stay in the house of Vijayan (A-12) and Bhaskaran (A-14), his father-in-law. Sivarasan also bought one red colour Bajaj Kawasaki motorcycle which he kept in the house of Vijayan (A-12). Subha and Dhanu would often come to the house of Jayakumar (A-10). Shanthi (A-11) would go with them for shopping. Sivarasan would visit the house of Vijayan (A-12) daily. One day when Sivarasan came to stay in the house of Jayakumar (A-10) he brought Santhan (A-2), who was his "partner". Jayakumar (A-10) said that he knew that Santhan (A-2) was in connivance with Sivarasan in all the activities and that Santhan (A-2) was assisting Sivarasan "for the dangerous work which he would carry out". Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the morning Sivarasan went out with Nalini (A-1) and then took Subha and left her at the house of Vijayan (A-12). When he came back in the night he said that he had decided to leave within a day or two. He kept all his things in a suitcase which included his cloths and that of Subha, two big dictionaries and notebooks which Sivarasan was keeping, took the pistol separately and packed the bullets in a separate parcel. In the notebooks Sivarasan used to write his income and expenses. In the suitcase he also kept photos, passports, cassettes and the artificial eye which he used to wear. On his directions Jayakumar (A-10) dug a pit in the corner of the kitchen where he placed the suitcase and parcel of bullets and covered the pit with a concrete slab that he had bought, again on the instructions of Sivarasan. Jayakumar (A-10) then painted the area in such a way that nobody could find out. All these things were seized on 26.6.1991 as disclosed in the confession statement of Jayakumar (A-10). Sivarasan then left but Santhan (A-2) kept on staying in the house for two or three days. Then he also left as Sivarasan had instructed Jayakumar (A-10) to change the house. before leaving he ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Payas (A-9) from Italy and Denmark. Robert Payas (A-9) also introduced Kanthan to M. Utham Singh (PW-56), who also requested for the facility of receiving phone calls. M. Utham Singh (PW-56) said that when these persons used to attend the calls they would speak only in cerebral 'yes', 'correct', 'O.K.' and some time 'I will come'. Either M. Utham Singh (PW-56) or his assistant T. Soundara Pandian (PW-54) would go to the house of Robert Payas (A-9) to tell them of the receipt of the call. On 22.5.1991 M. Utham Singh (PW-56) did not open the shop because of some ceremony in his house. On 23.5.1991 T. Soundara Pandian (PW-54) came to open the shop in the morning at 7.00 a.m. M. Utham Singh (PW-56) himself did not go. At about 12.30 noon M. Utham Singh (PW-56) made a call to the shop and asked how was the business. T. Soundara Pandian (PW-54) told him that it was on an average. M. Utham Singh (PW-56) instructed him to close the shop and go home since riots had broken out in certain areas. At about 1.30 p.m. T. Soundara Pandian (PW-54) came to the house of M. Utham Singh (PW-56) and told him that he had received a call from one Shankar, who was staying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kers of S. Raghu (PW-59) on 15.12.1990 for getting passport size photographs. They also went to Kavitha Driving School of T. Panneer Selvam (PW-61) on 4.4.1991 and 9.5.1991 to take Driving licence. Robert Payas (A-9) lived in the neighbourhood of Dr. Claud Fernandez (PW-19-7), a Dentist, Dr. Claud Fernandez (PW-197) knew Robert Payas (A-9) as he was President of the residents' association of that area. Robert Payas (A-9) and his friend had come to the clinic of Dr. Claud Fernandez (PW-197) for treatment. The name of his friend was Ramanan. Second time he came with his another friend whose name was Murugan (A-3). On 23.7.1991 police had come from Malligai CBI headquarters to the residence of Robert Payas (A-9) and recovered his passport and other small items. Dr. Claud Fernandez (PW-197) was witness of the recovery. He said assassination of Rajiv Gandhi took place on 21.5.1991 and "when they are feeling sad, on 22nd evening at about 6 or 7 p.m. we heard a sound of blast from the house of Robert Payas (A-9). That was the sound of crackers". He said he could not see the persons when he came out but above the house of Robert Payas (A-9) it was filled with smoke. 484. K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nu first time she did not wear spectacles. Initially, therefore, witness said he could not identify her in the photograph if it was Dhanu. Two days thereafter Sivarasan's photograph was shown on T.V. Now D.J. Swaminathan (PW-85) got suspicious. On 2.6.1991 he dialed telephone number 100 and gave the information. When he told the person receiving the call that Sivarasan and Dhanu stayed in the house of Jayakumar (A-10) no one made any inquiry. He did not give his address. Again in the second week of June, 1991 he himself went to the office of CBI headquarters, Malligai and stated the facts he knew. His statement was recorded. On 26.6.1991 house of Jayakumar (A-10) was searched. At that time Shanthi. (A-11) and her father Ramaswamy were there in the house. Various articles were seized. On 7.7.1991 CBI officers with Jayakumar (A-10) came to his Kodungaiyur house. They were not having key of the house. Lock was broken open. Jayakumar (A-10) entered the house and showed the place in the kitchen at the left side. A slab at that place was removed and it was found that there was a pit 2-1/2 fit deep. From that pit Jayakumar (A-10) took out a plastic bag and a suitcase (Aristocrat make) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1991. The purpose of letting was to run a coffee grinding shop. On 25.7.1991 M. Janarthanam (PW-71) was called to Malligai office of CBI headquarters where he handed over the agreement (Exh.P-338). He had also given a letter of consent (Exh.P-339) to Shanthi (A-11) for installing the coffee grinding machine in the shop, which he also handed over to the police. During his statement M. Janarthanam (PW-71) was asked to identify Jayakumar (A-10), who had approached him for running out the shop along with his brother-in-law Damodaran. M. Janarthanam (PW-71) identified Bhagyanathan (A-20) as Jayakumar (A-10). M. Janarthanam (PW-71) said that on 29.1.1992 Ramaswamy, father of Shanthi (A-11) came to the shop and removed the grinding machine and other equipments. He also asked for refund of advance of Rs. 20,000/- which the witness did not give. Shanthi (A-11) wrote a letter (Exh.P-343) on 13.8.1992 to M. Janarthanam (PW-71) from the prison for the purpose but M. Janarthanam (PW-71) said that letter from Jayakumar (A-10) should also come. Then Shanthi (A-11) and Jayakumar (A-10) wrote a letter (Exh.P-344) to M. Janarthanam (PW-71) from the prison. In his statement M. Janarthanam (PW-71) f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India without making any payment to LTTE. Kutty introduced Vijayan (A-12) to Sivarasan who told him that if he worked for LTTE his expenses would be looked after by the LTTE. Sivarasan told him to take a house on rent and to stay there and that persons belonging to LTTE would come and stay in that house for their work. While staying at Tuticorin, Vijayan (A-12) worked in Tuticorin Port Trust and at SPIC as daily wage earning Rs. 20 to Rs. 30/- per day. His wife gave birth to a son on 17.10.1990. After Vijayan (A-12) settled in his house in Madras as described earlier Sivarasan along with Chokkanathan alias Sabapathi and Munusami, LTTE workers came to his house. Sivarasan told Vijayan (A-12) that in the first week of May, 1991 he would bring some LTTE men for an important work and he asked him to make necessary arrangements for their stay. He was also cautioned by him not to tell that to anybody. Sivarasan again came on 2.5.1991 with Gokul alias Nero, an LTTE activist. Both came with a suitcase containing wireless set and other things. Sivarasan then informed Vijayan (A-12) that he would bring two LTTE women to the house. He gave him Rs. 10,000/- for his expenses. After three or fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auto driver would not be able to identify the house. They brought the auto as instructed. Sivarasan, Subha and Dhanu walked up to the auto. Nero went with them but came back and then gave some message through wireless. He used to speak daily through wireless once in the morning and once in evening. On the morning of 22.5.1991, Sivarasan came to the house of Vijayan (A-12) and said that the work was over and that the Rajiv Gandhi was murdered. He asked Nero to send the message to Sri Lanka through wireless and himself went to sleep. Sivarasan would write on a piece of paper in a language which was not understandable and would give that to Nero to send that message through wireless. After lunch Sivarasan went away. On 23.5.1991 he came on a cycle, took the motorcycle and again went away. He used to keep the motorcycle in the house of Vijayan (A-12). From the evening of 23.5.1991 Sivarasan, Subha and Nero were staying in the house of Vijayan (A-12). Nero used to keep his gun (AK-47) always ready. All these three used to watch carefully if police was coming. This watching started from the day Dhanu's photograph appeared in the newspapers. Sivarasan used to go out with his pistol. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s set in the pit which had been dug in the kitchen. After a day or two Santhan (A-2) brought another person to take Sivarasan and Subha with him. Later, Vijayan (A-12) came to know that his name was Suresh Master (DA). In the evening they brought an auto. The plan was that Sivarasan, Subha, Nero and Suresh Master would all go together. Thereafter Vijayan (A-12) said he did not see all of them. Vijayan (A-12) and family then decided to go to Tuticorin and after staying for one week returned to their house to take the things and to vacate the house but by that time the police came and arrested Vijayan (A-12). 493. Mangaleswaran (PW-234) and Rose D. Nayagam (PW-235) respectively were in charge of Rameshwaram and Tuticorin refugee camps and they have testified to the registration of stay of Vijayan (A-12), his wife Selvaluxmi (A-13) and his father-in-law Bhaskaran (A-14) in the refugee camps, as refugees coming from Sri Lanka. 494. J. Duraisamy Naidu (PW-82) is the owner of the house which was taken on rent by Vijayan (A-12). Tenant agreement (Exh.P-426) was executed. The house was occupied on 23.4.1991. The tenant agreement bears signature of Vijayan (A-12) for Plot No. 12, Eveready ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to get a job in Dubai. At that time she noticed he had two eyes. Left eye looked like an artificial eye. Now he did not have even mustache and did not wear spectacles. Mother of Esylen Mantel (PW-99) went to CBI office at Malligai to give information. But because of fear of LTTE she did not do so. She said they should watch the house to collect more clues and then to inform CBI. Thereafter they were keeping watch on Vijayan's (A-12) house and noticing the movements on that house. On 26.6.1991 at 7.30 a.m. Esylen Mantel (PW-99) saw Vijayan (A-12) taking Bhaskaran (A-14) on a cycle. While passing in front of her house Bhaskaran (A-14) told Esylen Mantel (PW-99) that he was going to Madurai. That day Sivarasan was not in the house of Vijayan (A-12). Vijayan (A-12) said Sivarasan had gone to Madurai to get a job and would return in a month or so. At that time there was a black boy in the house who was later identified as Santhan (A-2). Vijayan (A-12) introduced Santhan (A-2) as his brother who was a driver and was trying for a job in Dubai. On 1.7.1991 again at 7.30a.m. Esylen Mantel (PW-99) saw Vijayan (A-12) and Santhan (A-2) going on a cycle. After ten minutes Vijayan.(A-12) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ob. Then suddenly on 20.6.1991 Bhaskaran (A-14) called on him. He entertained him and discussed about family matters. They went for an evening movie show. That day Bhaskaran (A-14) slept in the house of N. Chokkanathan (PW-97). After they had supper Bhaskaran (A-14) asked N. Chokkanathan (PW-97) to get a big house rented for him in an outer area at a monthly rent of Rs. 2000/- to Rs. 3000/-. N. Chokkanathan (PW-97) was surprised and said that a house at the rate of Rs. 300/ - per month would be sufficient for his family. Bhaskaran (A-14) said the house was not for him but was required for some important persons. When N. Chokkanathan (PW-97) inquired who those important persons were Bhaskaran (A-14) said it would create some problem if he disclosed him and their names. N. Chokkanathan (PW-97) said that unless he revealed the names of the important persons he would not take any step to search for a house. Then Bhaskaran (A-14) told him that the house was meant for Sivarasan and Subha who were involved in Rajiv Gandhi assassination case and whose photographs had been exhibited in TV and posters. N. Chokkanathan (PW-97) said he was shocked and asked what was the relation between him an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s come on record during the course of examination of the witness that recovery had already been effected on 7.7.1991 (Exh.D-63). The trial court has accepted Exh.D-63 and has rejected Exh.P-1358 and had adversely commented to the conduct of the witness, the investigating officer, in allegedly manipulating the recovery. 503. Ravi (A-16) is an Indian national. He made confession. He was attracted towards LITE. He got training in military camp run by LTTE on Indian soil. He joined LTTE movement and got deeply involved in it. In his confession he described the details of the training he got and the oath he took. Ravi (A-16) also described some of the activities of LITE. He went to Sri Lanka as well where also he got further training in military operations. Ravi (A-16) then came back to Madras before Indo-Sri Lankan Accord was signed in 1987. In Madras he continued his operation. During holidays, however, he would meet various LTTE personnel like Kittu, Baby Subramaniam, etc. in the LTTE office at Indira Nagar in Madras. When war started between IPKF and LTTE he said he was eager to go to Sri Lanka to take part in the war operations against IPKF. He was kept under house arrest in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o carry on the work assigned to Ravi (A-16) and others it had to be done in three phases (1) to arrange houses for the stay of LTTE cadre personnel, (2) to enroll more people and impart training to them and (3) to develop seashore linkage and to form separate boat line, if possible. Training in wireless operation was also given. In the month of December, 1990 Ravi (A-16), Suseendran (A-17) and two others were brought to a house in Jaffna by Pottu Amman for the purpose of their return to Tamil Nadu. In this House Sivarasan was introduced to Ravi (A 16) by Pottu Amman. Pottu Amman separately called Ravi (A-16) and told him that Sivarasan was also going with them to Tamil Nadu and that he might be contacted if there was any need for money for selection of personnel for the movement and it would be useful to get suggestions from him. Pottu Amman also reminded him the incident of Padmanabha case in Tamil Nadu and said some important matters would be going to occur there and for that his role must be prominent one. He was, therefore, told to follow the instructions of Sivarasan and consult him in case of any doubt. They all were seen off by Pottu Amman. While they were waiting in the boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of the VIP. That night Sivarasan asked about the VIP security and Ravi (A-16) told him that when great leaders come, first gate of the old airport was used and that it was a narrow road and that the "place is advantageous for us". Ravi (A-16) asked Sivarasan that three months had elapsed after they had come to India and that nothing was done 'about the target. Sivarasan told him that "we must not go in search of target and that target would come searching us and we shall see at that time". He also said that it might take place in near future if the election is declared. Sivarasan said that in order to make wireless set functioning to contact Sri Lanka two or three places of shore had to be separately arranged. Sivarasan then told Ravi (A-16) to start a travel agency in Delhi and then asked him to send some person to collect the details to Delhi. When Ravi (A-16) said that that would be an expensive proposition Sivarasan replied that expenses need not be bothered. Ravi (A-16) received another sum of Rs. 2 lacs from Sivarasan. After 15 days when Ravi (A-16) again met Sivarasan he gave him Rs. 5 lacs to start travel agency in Delhi. He, however, said trav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that police was searching him in connection with the murder of Rajiv Gandhi. That being so he said that there would be problem for Subha and it would be better if she was kept in the custody of Ravi (A-16) in the house of some Indian Tamil family. When Ravi (A-16) met Suseendran (A-17) on 26.5.1991 he brought the problem to his notice. Suseendran (A-17) said that if it was for few days there was no problem in keeping Subha in his custody. Ravi (A-16) and Suseendran (A-17) met Sivarasan in the evening. Then Ravi (A-16), Suseendran (A-17), Sivarasan and Subha gathered at 9.00 p.m. at the bus stand from where Ravi (A-16) took leave. After returning he informed Pottu Amman through wireless that Sivarasan had left Subha in his and Suseendran's (A-17) custody. Ravi (A-16) sent a message to Sivarasan that the shore was now clear. Ravi (A-16) along with Sivarasan went to the house of Karpagam (PW-133), relative of Suseendran (A-17) at Pollachi where Subha had been taken. Both Suseendran (A-17) and Subha were there. Ravi (A-16), Suseendran (A-17), Sivarasan, Subha, Kanthan and Murugesan collected at the seashore to take a boat for Sri Lanka. That was 10.6.1991. A message was, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contact with Sivarasan. Ravi (A-16) gave Pottu Amman up-to-date perception of the investigation and the arrest of various persons. Ultimately Ravi (A-16) stated that he returned to India. He left Sri Lanka on 10.8.1991 with various weapons, 12 gold biscuits and 15 code sheets. The weapons included 2 SMG, 10 grenades, 1350 rounds and 5 pistols. Pottu Amman told Ravi (A-16) that now weapons had been handed over to him, time had come for starting the struggle and to fight against a very big super power and asked him to be careful. He told Ravi (A-16) to decide targets and then suggested many other things as to how to go about and use the arms and ammunition. They came to India through a boat. He contacted Suseendran (A-17). 1350 rounds, 2 SMG and 5 grenades were dumped in a place by two LTTE men on the direction of Ravi (A-16). Next morning they came to Dindigul with 2 walkie-talkie, 12 gold biscuits (each weighing 120 grams), code sheets and 3 pistols. Jaffna was informed through wireless set of Kanthan. Ravi (A-16) gave 6 biscuits, 2 grenades, one pistol and code sheets to Suseendran (A-17) and asked him to keep them. One pistol Ravi (A-16) kept with him and one he gave to one Sukum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 1990 Pottu Amman took him, Ravi (A-16) and others to Jaffna. He took Ravi (A-16) separately and talked to him. In the house there was one person whose name was Sivarasan. Then Sivarasan, Pottu Amman and Ravi (A-16) talked together for a while. They then left for Indian soil on boat and were seen off by Pottu Amman. In his further confession Suseendran (A-17) described his meeting with various persons connected with LTTE and the expenses met by Sivarasan. He was involved in organizing the youths and went to places like Pollachi. As per earlier arrangement he met Ravi (A-16) at Madras on 26.5.1991. Sivarasan also came there. At that time Ravi (A-16) told him to have a lady tiger stay with him for one week since the police problem was too much at Madras. He requested that the girl could stay in a house of a, sup-porter whom he knew. Sivarasan, Subha, Ravi (A-16) and Suseendran (A-17) then gathered at bus stop at 9 O'clock when Ravi (A-16) left leaving them there. That lady was introduced to Suseendran (A-17) as Malliga. Suseendran (A-17) said that later he came to know that her name was Subha. He, Sivarasan and Subha left for Trichy reaching there in the morning. From there the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which Suseendran (A-17) was coming. Suseendran (A-17) identified the coast and informed Pottu Amman by wireless. On 10.9.1991 Ravi (A-16) arrived by boat in the night. Four more persons also came with him, who had completed their training. Ravi (A-16) brought two wooden boxes containing weapons. In the same boat which had come four more persons were sent to Jaffna for training. Ravi (A-16) and Suseendran (A-17) came to Dindigul. Jaffna was informed by wireless. Ravi (A-16) gave a walkie talkie, three grenades, one nine M.M, pistol, 6 gold biscuits, code sheets and eight cyanide capsules to Suseendran (A-17) and asked him to keep them safely. Ravi (A-16) also gave him Rs. 30,000/- and told him to buy sockets for the wireless. Ravi (A-16) also told Suseendran (A-17) to make arrangement for buying of petrol and diesel and to send them to Jaffna. He told Suseendran (A-17) that in future they had to make arrangement for the petrol needed for the boat to send the weapons and persons. In the month of October, 1991 Suseendran (A-17) went to Pollachi. All the things which Ravi (A-16) gave him he kept locked in a suitcase and gave that to a friend K. Periasami (PW-213) and told him that he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere requisitioned and they brought out all the articles from the well. Articles (MOs 582-587) were seized by Mahazar Exh.P-1003. Six gold biscuits (collectively MO 588) were seized as per Mahazar Exh.P-1004. Suitcase, however, could not be found. 509. Magarathinam (PW-260) said he was resident of Kodiakkarai. He is in laundry business. He said Sundaramoorthy Pillai and his wife Valliamai were residing in the house next to his door. Later on they got their own house and shifted. About four years back five policemen had come nine days after Pongal festival. There were two pits in the western side of the house of Pillai. In one there were two explosives (MO-754 and MO-755) and in the other one walkie talky (MO-777). Valliamai was showing those objects to the police. A seizure memo was prepared taking into possession the articles (Exh.P-1172). Walkie talky and two explosives were kept by Suseendran (A-17) with Valliamai, who is mother of Jothi Venkatachalam, a friend of Suseendran (A-17). 510. M. Mariappan (PW-86) was working in the house hold of Shanmugham (DA) at Kodiakkarai. He was living in the elder brother's house of Shanmugham (DA). At that time he said that some Sri Lanka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am (PW-133) identified the photo of Sivarasan (MO-470) as the person who was introduced as brother of Malliga by Suseendran (A-17). There was another person who had come with Sivarasan. Karpagam (PW-133) identified him as Ravi (A-16). On 3.6.1991 Suseendran (A-17) and Malliga came back and when D. Shanmugasundaram (PW-208) asked them whether they had gone to Bangalore, Suseendran (A-17) replied that they could not get the tickets and had stayed in a friend's house. Malliga was told that her brother had come on a day before. Suseendran (A-17) left the house on 4.6.1991 and came back the next day. After some time Sivarasan came and then all three left. They did not tell Karpagam (PW-133) as to where they were going. After about ten days Suseendran (A-17) came to the house of Karpagam (PW-133) and when she inquired about Malliga's health he said she was fine and asked her to come to Bangalore where they were staying in a separate rented house. After one month suddenly on one night Suseendran (A-17) came again and told D. Shanmugasundaram (PW-208) that the woman who had stayed in their house was Subha and if they disclose that to anybody they would be put in trouble and also sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Subramaniam. Baby Subramaniam would bring copies of video and audio cassettes relating to LTTE to the studio of Suba Sundaram (A-22), which related to LTTE camps in Sri Lanka and the affected places and persons. At the studio of Suba Sundaram (A-22), Irumborai (A-19) also said that he got acquainted with Bhagyanathan (A-20) but he did not see either his sister or his mother. Whenever Irumborai (A-19) came to Madras he would stay in a room near water tank, rent of which was paid by Baby Subramaniam. Irumborai (A-19) had also seen Arivu (A-18) in DK conferences. He also got acquainted with Muthuraja through Baby Subramaniam, who was strong supporter of LTTE. Muthuraja and Arivu (A-18) had also been staying in the room near water tank in Indira Nagar. Irumborai (A-19) said he and others did not accept the policy of Indian Government and specially the action of the IPKF. In June, 1990 Irumborai (A-19), Arivu (A-18) and Baby Subramaniam went to Trichy. When they were staying in a house, Trichy Santhan (DA) came there in a Maruti van. They along with some other LTTE persons went to a place near the coast by van and from there to Jaffna in Sri Lanka by a boat. After spending some days t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi" (PW-258) of Rajiv Congress to which Trichy Santhan said he did not know the details of the persons and place and alerted all of them to be careful. Irumborai (A-19) then returned to Madras and gave money to Suresh Master and also told him the details told by Trichy Santhan. Irumborai (A-19) said in his confession that after that he did not talk with any one about that. On 21.5.1991 Irumborai (A-19) said he and Suresh Master went to a place called Luz Corner. Arivu (A-18) and Bhagyanathan (A-20) were also there. They all went to M. Sankari's (PW-210) house. Thereafter Irumborai (A-19) and Suresh Master went to Anna Nagar by an auto. Suresh Master got down saying that he was going to see Kasi Anandhan (PW-242). Irumborai (A-19) went home and took a boy Anand to a dentist. He came back by 10 O'clock in the night. Suresh Master also came. Next day on 22.5.1991 in the morning there was news of Rajiv Gandhi being murdered in bomb blast in Sriperumbudur as announced on TV and in newspapers. Irumborai (A-19) said everybody got frightened and did not go out for two days. He thought Rajiv Gandhi's murder was a brave deed and an act of revenge. On third day he and Suresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borai (A-19) to have contacts with Andhra Naxalites and also to find out if boat transport could be available at place Malliapattinam near Pudukottai. Irumborai (A-19) then went to Neyveli and told Jamuna to be ready. He also inquired about the boat transport to Sri Lanka and was told because of security being tightened and there being patrolling by Navy it was not possible. Irumborai (A-19) then accompanied with Jamuna returned to Bangalore. Two days later Trichy Santhan also came to Bangalore. He said Sivarasan and Subha were not able to go to Jaffna and that he had received an order to look after them and he said he would accompany them to Bangalore within two days. Then one day in the end of June, 1991 at about 6.30 in the morning Sivarasan, Subha and Nero came to the house at Indira Nagar where Irumborai (A-19) was staying. Along with them Vicky (A-25), Rangam (A-24) and Dhanasekaran (A-23) also came. Irumborai (A-19) asked Trichy Santhan how they had come and was told that they had come to Bangalore from Madras by hiding in a tanker lorry of Dhanasekaran (A-23). After four days of their arrival Vikky and Dixon also came to that house in Indira Nagar. Trichy Santhan (DA) and D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was another letter which Trichy Santhan (DA) wrote to Irumborai (A-19). It was dated 7.9.1991 and was in two pages. A boat which was to take I rumborai (A-19) and other LTTE persons came from Rameshwaram near a place 'Vil Oondi Theertham' near seashore as arranged earlier. They got into the boat. When the boat was moving in the sea at about 1.30 in the night Navy men who were patrolling surrounded the boat. Three LTTE persons, who were in the boat, took cyanide. Two died and one in serious condition was taken to the hospital. On the morning of 3.10.1991 Irumborai (A-19) and others, who were also in the boat were handed over to the police at Rameshwaram. The letters, which were written by Trichy Santhan (DA) to Prabhakaran and Irumborai (A-19) (Exh.P-128 and 129) and other letters were also seized from him. P.V. Francis (PW-172), Commander in Indian Navy, and P.P.S, Dhillon (PW-239), Flight Commander of the Helicopter Unit of Portblair, both testified to the capturing of boat taking LTTE personnel and seizure of letters Exh.P-128 and 129. 513. Dhanasekaran (A-23) is in lorry business with his brother. They had been taking loan from Sundaram Finance Ltd. for purchase of lorr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y injured persons in Maruti van from Mettur to Bangalore for treatment. K. Jagannathan (PW-211) and another person belonging to LTTE helped him and also came with them up to Bangalore and a house was arranged in Bangalore through K. Jagannathan (PW-211). Of the injured persons so transferred one died. His body was brought and buried at the side of the LTTE camp. In April, 1991 Trichy Santhan (DA) and an important member of LTTE came along with Rangam (A-24) whom Dhanasekaran (A-23) already knew as driver. He was also known to Trichy Santhan as he met him in Gokulam Hospital at Salem where LTTE persons were getting treatment. Trichy Santhan told Dhanasekaran (A-23) that more boys of LTTE movement were in prison in Tamil Nadu and he had come to Tamil Nadu to look after them and wanted to see Kolathur Mani where LTTE camp was situated. After some days Dhanasekaran (A-23) got a message to meet Trichy Santhan at Salem. He went there. Trichy Santhan asked him to meet Kolathur Mani and to remind him to send him money. Dhanasekaran (A-23) said that on 21.5.1991 he was in his house at Mettur when he heard the news of Rajiv Gandhi's death due to bomb explosion at Sriperumbudur. He got th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angam (A-24) and Dhanasekaran (A-23) took the tanker and halted it at a certain place after crossing Porur. Vicky (A-25), Amman (DA) and Rangam (A-24) went out and returned along with Suresh Master (DA) who was introduced to Dhanasekaran (A-23). By that time three persons, namely, Sivarasan, Subha and Nero came there with three bags with them. They entered inside the tanker after Vicky (A-25) opened the cap of the container. Vicky (A-25), Amman (DA) and Rangam (A-24) were seated along with Dhanasekaran (A-23) in lorry cabin. It was driven by Dhanasekaran (A-23). Driver R. Selvaraj (PW-230) and cleaner Vijayan boarded the lorry at Poonamallee. They drove the vehicle straight on the Bangalore Road. At two places messages were sent to Bangalore that they were reaching there. They reached Bangalore in the morning at about 7 O'clock on 29.6.1991. Tanker lorry was stopped a little away from Indira Nagar. Driver R. Selvaraj (PW-230) and cleaner Vijayan were again sent away to have tea. Vicky (A-25) was left in the vehicle and Dhanasekaran (A-23) and Rangam (A-24) went to the house at Indira Nagar. There they saw Trichy Santhan and Irumborai (A-19). More injured persons of LTTE cadre w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he name of Ramesh who also arranged a house for him. He said he came to know Trichy Santhan(DA), Suresh Master (DA) and Irumborai (A-19) through Amman (DA). Rangam (A-24) said that Prabhakaran had entrusted Trichy Santhan the responsibility of looking after the work such as political activities of LTTE in India, necessary supplies to Sri Lanka, arranging for treatment of injured "tigers", arranging houses for the persons in LTTE movement and to take them from place to place. A house at Alwarthirunagar was arranged by Amman (DA) for the stay of LTTE persons. That house was independent and situated in a remote place and was convenient for LTTE men to come and go without being noticed. Rangam (A-24) said that Suresh Master (DA) told him in the beginning of May, 1991 that police would take action very soon and that LTTE men should be shifted to some other place. Rangam'(A-24) said that he was taking LTTE men, who were injured, continuously in his Maruti van. Some of them stayed in the house at Alwar Thirunagar, some in Vijaya Nursing home and some were taking treatment in Asian Hospital. He removed those injured persons from those places in his van and dropped them in pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tol with them. Rangam (A-24), Vicky (A-25) and Amman (DA) sat in front portion of the tanker and they left for Bangalore by 9 O'clock in the night. Two more boys, who were working with Dhanasekaran (A-23) were also taken in the tanker on their way. Vicky (A-25) telephoned Bangalore from PCO while they were going to Bangalore and informed Trichy Santhan about their arrival. They reached Bangalore early in the morning. Then Rangam (A-24) in- his confession corroborates what Dhanasekaran (A-23) said. On the same day Rangam (A-24) said, he returned to Madras and shifted the remaining injured LTTE persons to some other places like lodges, etc. He vacated his house at Thiruvanmiyur. He went to stay with Suresh Master (DA) in Vijaya Nursing Home. In the third week of July, 1991 Rangam (A-24) again went to Bangalore on the instructions of Suresh Master. He went by night bus. Suresh Master also reached Bangalore by that time. There they went to the house at Indira Nagar where Sivarasan and others were hiding. Rangam (A-24) met some other LTTE men in that house. After hearing that Vicky (A-25) had been arrested in Coimbatore the house at Indira Nagar was vacated and they all moved to ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aught him. 515. Vicky (A-25) is a Sri Lankan national. His father was having a shop selling cloths. That shop was destroyed in a raid by Sri Lankan Air Force in the year 1985. Vicky (A-25) thereafter came to India illegally by boat carrying with him video cassettes, audio cassettes, sarees, V.C.P., etc. which he sold in India. Instead he carried lungis and food articles and returned back to Sri Lanka and earned some money by way of selling those articles in Sri Lanka. By Sri Lankan military one of their houses was completely damaged by bomb blast in the year 1987. His family resided at certain places as refugees. In 1990 he again came to India to start some business here. Then he met an LTTE activist who said he had come to India for treatment of his wounds and now he was looking those wounded in Sri Lanka and had come to India for treatment. Vicky (A-25) also met LTTE boys who had been injured and were getting treatment in the hospitals in India. Vicky (A-25) assisted that LTTE activist in getting medicines and acted as his helper. In the middle of 1990, Vicky (A-25) said in his confession that he was introduced to Trichy Santhan. He further said that in the month of 'Panguni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment with Sundaram Finance Ltd. it was taken into possession by S.V. Krishnan (PW-168). Subsequently during investigation this tanker lorry (MO-543) was seized by the police. 519. R. Selvaraj (PW-230) was the driver of the tanker lorry (MP-540) and Vijayan was the cleaner. In his statement R. Selvaraj (PW-230) said that he drove the tanker lorry on 27.6.1991 from Mettur to Madras. On the way it was filled with water. The purpose was to clean the tanker. Tanker was also filled with diesel for fuel. Prosecution has produced S. Vasudevan (PW-245) to testify that 238 litres of diesel was put in the tanker lorry (MO-543) on 27.6.1991. R. Selvaraj (PW-230) then said that at Sriperumbudur tanker was emptied of water and cleaned from inside. They reached Poonamallee on 28.6.1991 in the morning where he and Vijayan got down. Now it was Dhanasekaran (A-23) who drove the vehicle with Amman (DA) and Vicky (A-25) visiting in the tanker lorry. When the tanker came back to Poonamallee R. Selvaraj (PW-230) and Vijayan got into the vehicle and the vehicle proceeded toward Bangalore. It was being driven by Dhanasekaran (A-23). On the way Vicky (A-25) got down and made a telephone call on STD. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t time he was without any job. In March, 1991 he was staying with his wife at a house in Puttan Halli which was owned by E. Aanjanappa (PW-218). 521. R. Rajan (PW-223) in his deposition said that he was friendly to one Vasanthan who was Tamilian and whose native place was in Jaffna, Sri Lanka. Both knew each other from Tamil Association in Bangalore. On 29.7.1991 Vasanthan asked R. Rajan (PW-223) that a house was required for stay of four or five persons urgently. After two days Vasanthan again met R. Rajan (PW-223) for the purpose. He told him that no house was available. On 1.8.1991 Jagadish, a friend of R. Rajan (PW-223) met him and told him that he wanted to buy a lathe machine. A lathe machine was owned by Ranganath (A-26) who wanted to sell the same. In that connection R. Rajan (PW-223) met Ranganath (A-26) in his house. R. Rajan (PW-223) introduced Ranganath (A-26) to Vasanthan telling him that he was an LTTE activist and asked Ranganath (A-26) to arrange a house for him. R. Rajan (PW-223) said that he knew Ranganath (A-26) since 1990 as he was friend of Jagadish. R. Rajan (PW-223) said on 2.8.1991 that about 5.30 or 6.30 p.m. he and Vasanthan met near Sivaji Circle, Bangal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... morning of 3.8.1991. When Suresh Master and Rangam (A-24) returned it was about 2.30 p.m. They had brought provisions. Her husband did not come at that time. Mrudulla (PW-65) said that when her husband returned in the night she told him that the persons, who were staying, were hesitating to go out and she said some thing was fishy. He replied that they would stay for two or, three days and would leave. Fifth day Mrudulla (PW-65) watched the news on the TV and saw the pictures of Subha and Sivarasan. Mrudulla (PW-65) identified Subha. Subha also knew that she had been identified by Mrudulla (PW-65). In the evening Mrudulla (PW-65) told her husband about this fact who said not to ask any question. Subha afterwards became familiar with Mrudulla (PW-65). She told Mrudulla (PW-65) she was eager to return to Jaffna to meet her leader Prabhakaran. Once Mrudulla (PW-65) saw Sivarasan fixing a lens on his left eye. Mrudulla (PW-65) asked Subha as to why did they kill Rajiv Gandhi, and her reply was that Rajiv Gandhi was responsible in sending the IPKF to Sri Lanka and they had 'spoiled' many women and children. She was wearing a cyanide capsule in a thread around her neck. Persons s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ranganath (A-26), helped them in this process. From Puttanhalli they went to Mrudulla's (PW-65) brother's house in Vijayanagar. On the way both Ranganath (A-26) and R. Jayasankar (PW-229) got out of the van saying that they had to make a phone call. At about 4.30 P.M. Mrudulla (PW-65) said that after unloading the articles she left the house to give sarees for dry wash but while going to the shop four or five people in civil dress approached her and told her that she should accompany them to ViJayanagar police station. She said she would talk only to Asstt. Commissioner, Dy. Commissioner or Commissioner of Police. She told them that the persons whom they were searching for were in Konunkunte house. She asked if full security would be provided to her she would show the persons whom they searching for. That time there were Deputy Commissioner of Police, Assistant Commissioner of Police and a lady constable with her. She pointed to Konankunte house from a distance. Then they all returned to Vijayanagar police station. Security was provided to Mrudulla (PW-65) and she was taken to her parents house. Officers of CBI examined her. She said they were talking in Tamil among themse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... babu, V.T. Sundaramani (PW-120), his father and K. Ravi Shankar (PW-151), another friend, went to the studio of Suba Sundaram (A-22). It is stated that Suba Sundaram (A-22) exclaimed that only the previous day he had seen Haribabu. Two letters, one (Exh.P-548) dated 18.1.1991 written by Suba Sundaram (A-22) to LTTE leader Kittu and other (Exh.P-544) addressed by Suba Sundaram (A-22) to Prabhakaran as younger brother, were seized from his studio contents of which showed deep involvement of Suba Sundaram (A-22) with LTTE activities. In one of the letters he had criticized the activities of IPKF. 526. T. Ramamurthy (PW-72), a journalist, had also attended the public meeting at Sriperumbudur on 21.5,1991. At mid night he was returning home and as there was chaos and confusion he stayed that night at police station, Poonamallee. At mid night Suba Sundaram (A-22) contacted Meena (PW-74), wife of T. Ramamurthy (PW-72) and asked her whether her husband returned home. She replied in the negative. 527. In her statement Meena (PW-74) said that at the mid night on 21.5.1991 one Anand Viswanathan rang her up to say that Rajiv Gandhi and some others had died due to bomb blast at Sriperumbudur. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was wrong to touch them. Suba Sundaram (A-22) then told him to contact him the next day on his reaching Madras. In the morning Suba Sundaram (A-22) again rang up T. Ramamurthy (PW-72) and asked him to give him some photographs and said he would send his son for the purpose. T. Ramamurthy (PW-72) first went to 'Dhinamalar', from there to the studio of Suba Sundaram (A-22), who again asked the details of the occurrence. Again he told T. Ramamurthy (PW-72) that he should have brought the camera and "we could have used the photographs in it". When T. Ramamurthy (PW-72) again said that it was wrong to remove the evidence from that place Suba Sundaram (A-22) said that they could have managed by stating anything and that it was not wrong to have done like that between photographers. 529. On 22.5.1991 when V.T. Sundaramani (PW-120), father of Haribabu (DA) and K. Ravi Shankar (PW-151) went to Subha Studio after making inquiries about the place where Haribabu's dead body was kept, Suba Sundaram (A-22) told V.T. Sundaramani (PW-120) to remove all the papers connected with Haribabu from the house. V.T. Sundaramani (PW-120) on reaching home removed all the papers of Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthi (PW-258), who was still in Delhi about the camera. At that time Suba Sundaram (A-22) told K. Ramamurthi (PW-258) that Haribabu was dead and that his camera had been seized by the police and asked him whether the said camera could be got back by talking to someone. On 25.5.1991 Hindu newspaper (Exh.P-550) published a news item connecting Haribabu with LITE. Suba Sundaram (A-22) immediately asked V.T. Sundaramani (PW-120), father of Haribabu to come to his studio and asked him to stoutly deny the news item connecting Haribabu with LTTE by issuing a denial statement to the press. Suba Sundaram (A-22) himself dictated the denial statement which was taken down by M. Girija Vallaban (PW-116). The original denial statement prepared by Suba Sundaram (A-22) was seized (Exh.P-543). A copy of Exh.P-543 - denial statement -was seized by the police from Subha studio of Suba Sundaram (A-22). Suba Sundaram (A-22) thereafter asked V.T. Sundaramani (PW-120) to take 12 of 13 copies of the denial statement and to give that to all the newspapers. On 26.5.1991 the denial statement was published in Hindu (Exh.P-551). When V.T. Sundaramani (PW-120) told Suba Sundaram (A-22) about cassette 'Pasar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aribabu and also one Veeraraman came to his house. They told that Haribabu was dead and, therefore, they had to find him out as whereabouts of Haribabu were not known by that time. V.T. Sundaramani (PW-120) said that then Suba Sundaram (A-22) came to his mind and he sent S. Santhana Krishnan (PW-108) and other man to Subha Studio to find out the actual position. Kanan, a photographer, told V.T. Sundaramani (PW-120) that he had seen Haribabu with Sandalwood garland at Sundaram's (A-22) office at 3.00 O'clock at Royapettah. V.T. Sundaramani (PW-120) also came to know that Haribabu had taken a camera from K. Ravi Shankar (PW-151). V.T, Sundaramani (PW-120) went to the studio of Suba Sundaram (A-22) and asked how it had happened and also asked him whether he had sent Haribabu. Suba Sundaram (A-22) replied in the negative. This part of the statement of V.T. Sundaramani (PW-120) may be quoted: When I reached there I asked him how it had happened and I also asked him whether he sent him, he said No. Yesterday he came to his photo studio at 3 O'clock. He also invited us for taking photos. Haribabu had asked Subha Sundaram whether anybody else was coming from his studio for ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ped him in writing the same and asked V.T. Sundaramani (PW-120) to put his signature. That counter statement is Exh.P-543. 535. We have set out in sufficient details the confessions and the evidence linking the accused with each other as projected by the prosecution. 536. Mr. Natarajan at the outset submitted that the charges of conspiracy and other charges framed against the accused were highly defective and did not show in what manner the accused had to answer these charges. He said that it was not enough if a statutory provision is merely incorporative charged. He said prosecution may rely on Sections 464 and 465 of the Code to overcome his objections to the charge but these two sections did not completely bar the argument that charge is defective and had prejudiced accused in their defence. He said charge No. 1 was so complicated and conspiracy spread over a number of years and the accused who allegedly joined the conspiracy after the object of conspiracy had been achieved, were all tried together, which in itself caused great prejudice to them in their defence. Mr. Altaf Ahmad, however, quickly interposed to say that Section 215 of the Code would protect any error in the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 121 is against Nalini (A-1) and it says that in pursuance of the criminal conspiracy referred to in charge No. 1 and in furtherance of the common intention of Nalini (A-1) and deceased accused Sivarasan, Dhanu, Subha and Haribabu to commit disruptive activity at a public meeting at Sriperumbudur, where Nalini (A-1) was physically present at the scene of crime and provided assassin Dhanu (since deceased) with necessary cover from being detected as a foreigner, which enabled the assassin to move freely in the scene of crime and gained access nearer to Rajiv Gandhi where she (Dhanu) detonated the improvised explosive device concealed in her waist belt resulting in the bomb blast and killing of nine police officials who were public servants and who were at that time with Rajiv Gandhi on duty and Nalini (A-1) thereby committed an offence under Section 4(3) of TADA punishable under Section 4(1) of TADA read with Section 34, IPC. 538. Charge No. 228 is against Arivu (A-18) and it is alleged against him that in pursuance to the criminal conspiracy and in course of the same transaction he abetted the commission of disruptive activity by purchasing two golden power battery cells during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indo-Sri Lankan Accord would not mean that that would be questioning the sovereignty and integrity of India. When a member of the Opposition whether in Parliament or outside criticizes the Accord in public it could not be said that he is questioning the sovereignty and integrity of India. According to Mr. Altaf Ahmad the accused had chosen the target being Rajiv Gandhi and struck the target thus questioning the very ability of the country to take sovereign decisions. Mr. Natarajan said that death of Rajiv Gandhi as target did not find mention in any charge under Section 4 of TADA and no such question was put to any accused under Section 313 of the Code. Death of nine police officers though public servants was not on account of any of the grounds mentioned in Sub-sections (2) or (3) of Section 4 of TADA but since target was Rajiv Gandhi and the intensity of the blast was so vast that the police officers died and so also the assassin Dhanu and photographer Haribabu. Mr. Natarajan, in our view, is right in his submission that no case under Section 4 of TADA has been made out in the case. 540. Under Section 3 of TADA in order there is a terrorist act three essential conditions must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. Experience has shown us that 'terrorism' is generally an attempt to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon. What distinguishes 'terrorism' from other forms of violence, therefore, appears to be the deliberate and systematic use of coercive intimidation. More often than not, a hardened criminal today takes advantage of the situation and by wearing the cloak of 'terrorism', aims to achieve for himself acceptability and respectability in the society because unfortunately in the States affected by militancy, a 'terrorist' is projected as a hero by his group and often even by the misguided youth. It is, therefore, essential to treat such a criminal and deal with him differently than an ordinary criminal capable of being tried by the ordinary courts under the penal law of the land. Even though the crime committed by a 'terrorist' and an ordinary criminal would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o one is killed and there has been only some person who has been injured or some damage etc. has been caused to the property, the provisions of Section 3(1) of TADA would be squarely attracted. Where the crime is committed with a view to overawe the Government as by law established or is intended to alienate any section of the people or adversely affect the harmony amongst different sections of the people and is committed in the manner specified in Section 3(1) of TADA, no difficulty would arise to hold that such an offence falls within the ambit and scope of the said provision. Some difficulty, however, arises where the intended activity of the offender results in striking terror or creating fear and panic amongst the people in general or a section thereof. It is in this situation that the courts have to be cautious to draw alone between the crime punishable under the ordinary criminal law and the ones which are punishable under Section 3(1) of TADA. It is of course neither desirable nor possible to catalogue the activities which would strictly bring the case of an accused under Section 3(1) of TADA. Each case will have to be decided on its own facts and no rule of thumb can be ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f EPRLF, which fact finds mention in the confession statement of Santhan (A-2). But then he said it was not a terrorist act. It was killing of a rival Sri Lankan and in any case killing of Padmanabhan is not a charge in the case before this Court. Mr. Altaf Ahmad said that when he earlier mentioned the killing of Padmanabhan, it was only to show that LTTE was an organization which brook no opposition and anyone opposing its objective was eliminated. Mr. Natarajan said it was the case of the prosecution itself that Prabhakaran had personal animosity against Rajiv Gandhi developed over a period of time and had motive to kill him. 543. Mr. Altaf Ahmad realised the difficulty he had to face to show that any offence under Sections 3 and/or 4 of TADA had been committed. He submitted that charges in the present case showed the dimension of the conspiracy and the nature of the crime committed on 21.5.1991. He said the object of the conspiracy was to commit terrorist act and use of bomb, etc. was the means to achieve that object and that the consequence was to overawe the Government and to create terror in the minds of the public and it was with that object that Rajiv Gandhi and others wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed can certainly assume that they are not being charged with other ingredients of the offence given in a particular section. If we now take into consideration those ingredients as well prejudice would certainly be caused to the accused. 544. Mr. Altaf Ahmad said that Rajiv Gandhi was targeted as he was the Prime Minister when the Indo-Sri Lankan Accord was entered into and his name was synonymous with the Accord. LTTE took it that it was entered into contrary to their aspirations. In an interview before the general elections Rajiv Gandhi did support his stand on the Accord which had been ratified by the Parliament. He said that action of the accused in killing Rajiv Gandhi struck at the sovereign powers of the country and it was to intimidate the Government. That the country was in the midst of election and on account of the assassination of Rajiv Gandhi elections were postponed and formation of the Government was delayed. A notification dated 22.5.1991 was issued by the Election Commission of India postponing the elections. It was mentioned in the Notification that the country had suffered a great tragedy in the death of Sri Rajiv Gandhi at the assassins hands. Country was thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that. Quite a number of judgments on the question of power of Reference Court were cited, principal of these being two judgments in Jumman and Ors. v. The State of Punjab 1957 Cri LJ 586 and Ram Shankar Singh and Ors. v. State of West Bengal 1962 Supp. (1) SCR 49. 545. In Jumman and Ors. v. State of Punjab 1957 Cri LJ 586 this Court considered scope of the reference under Section 374 and 375 of the old Code (Section 366 and 367 of the new Code) and powers of the High Court in its disposal. Statement of law has been laid in paras 11 and 12 of the judgment which is as under: (11) Before we propose to discuss the evidence on which reliance has been placed by the counsel in this Court, it is necessary to advert to a circumstance which calls for some comment. Along with the appeals filed by the accused, there was before the High Court, a reference under Section 374, Criminal P.C., by the Sessions Judge, submitting to the High Court the proceedings before him for confirmation of the sentences of death passed by him, Under Section 375, Criminal P.C., the High Court has power to direct further inquiry to be made or additional evidence to be taken in such matters and according to Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used, who is sentenced to death prefers an appeal, High Court is bound to consider the evidence and arrive at an independent conclusion as to the guilt or innocence of the accused and this the High Court must do even if the trial of the accused was held by jury. Indeed, duty is imposed upon the High Court to satisfy itself that the conviction of the accused is justified on the evidence, and that the sentence of death in the circumstances of the case, is the only appropriate sentence. 547. These are the basic judgments on the scope of reference and the powers of the High Court while disposing of the same. Other judgments of this Court on this aspect reiterate the principles laid in these two judgment. It is, therefore, not necessary for us to refer to all those judgments. 548. We have certainly kept in view principles laid in these judgments. 549. Prosecution case now made out before us is that the object of conspiracy was to commit terrorist acts during the period 1987 to 1992; that the assassination of Rajiv Gandhi was one of such acts with the intention to overawe the Government and to strike terror; and the assassination was an act which struck terror and was also a disruptiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 when Rajiv Gandhi supported the stand of LTTE and had admitted that it was his mistake in sending IPKF to Sri Lanka and wanted LTTE to go ahead with its agitation. That being the evidence brought on record by the prosecution there is no question of it now contending that there was conspiracy to overawe the Government. Its stand throughout has been that it was the personal motive of Prabhakaran and others to commit terrorist act by killing Rajiv Gandhi. Under Section 3(1) of TADA overawing the Government cannot be the consequence but it has to be the primary object. There is nothing on record to show that the intention to kill Rajiv Gandhi was to overawe the Government. Reference to the Indo-Sri Lankan Accord is merely by way of narration. 550. Support to the struggle of LTTE in Sri Lanka was from Tamil Nadu and it does not appeal to reason that LTTE would commit any act to overawe the Government. It is matter of common knowledge that all terrorist acts are publicized and highlighted which is fundamental to terrorism. Whenever a terrorist act is committed some organisation or the other comes forward to claim responsibility for that. In the present case LTTE tried to. conceal the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 3(3) of TADA against Rangam (A-24), Vicky" (A-25) and Ranganath (A-26). They are charged under Section 3(4) of TADA. Charge under Section 3(3) is against A-1 to A-23. If we examine one such charge, say charge No. 235 against A-21 which says that she in pursuance to the criminal conspiracy referred to in charge No. 1 and in course of same transaction during the period between January 91 and June, 1991 at Madras and other place in Tamil Nadu she had actively associated with and assisted other conspirators for carrying out the object of criminal conspiracy and thus she knowingly facilitated the commission of terrorist act or any act preparatory to terrorist act and which was committing the terrorist act by detonating the improvised explosive device concealed in waist belt of Dhanu and thereby A-21 committed an offence punishable under Section 3(3) of TADA. 551A. Designated Court held that hatred which developed in the minds of Prabhakaran, further developed into animosity against Rajiv Gandhi in view of the events which took place after IPKF was inducted in Sri Lanka. 552. Thus examining the whole aspect of the matter we are of the opinion that no offence either u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement is made an offence even if no steps are taken to carry out that agreement. In Yash Pal Mittal v. State of Punjab 1978 Cri LJ 189 the Court said as under: 9. The offence of criminal conspiracy under Section 120A is a distinct offence introduced for the first time in 1913 in Chapter V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must inquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition: Although it is not in doubt that the offence requires some physical manifestation of agreement. It is important to note the limited nature of this proposition. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; and punishable if for a criminal object, or for the use of criminal means. The Court also referred to another decision of English House of Lords in Director of Public Prosecutions v. Doot 1973 AC 807 where Lord Pearson held that: [A] conspiracy involved an agreement express or implied. A conspiratorial agreement is not a contract, not legally binding because it is unlawful. But as an agreement it has its three stages, namely, (1) making or formation; (2) performance or implementation; (3) discharge or termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirator can be prosecuted even though no performance had taken place. But the fact that of the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conspiracy. An illustration of a single conspiracy, its parts bound together as links in a chain, is the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers knew that the middlemen must sell to retailers; and the retailers knew that the middlemen must buy of importers of some one or another. Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their settlers. The accused embarked upon a venture in all parts of which each was a participant and an abettor in the sense that, the success of the part with which he was immediately concerned, was dependent upon the success of the whole. It should also be considered as a spoke in the hub. There is a rim to bind all the spokes together in a single conspiracy. It is not material that a rim is found only when there is proof that each spoke was aware of one another's existence but that all promoted in furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ign. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice versa. 562. In State of Maharashtra and Ors. v. Som Nath Thapa and Ors. 1996 Cri LJ 2448 this Court referred to its earlier decision in Ajay Aggarwal case 1993 Cri LJ 2516 ) and said: The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l activity, of the fruits of which he knows that others will make an unlawful use; he must in some sense promote their venture himself, make it his own, have a stake in its outcome. The distinction is especially important today when so many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided. We may agree that morally the defendants at bar should have refused to sell to illicit distillers; but, both morally and legally, to do so was toto cockle different from joining with them in running the stills. Falcon and similarly situated appellants were acquitted of the charge of conspiracy. 565. United States then moved the Supreme Court for a writ of certiorari to review the aforesaid judgment of the Circuit Court setting aside the conviction of the respondents Falcone and others. The Government, however, did not argue that the conviction of conspiracy could rest on proof alone of knowingly supplied an illicit di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal means, such an agreement is designated a criminal conspiracy. The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence : it can be established by direct evidence or by circumstantial evidence. But Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the conspirators co-conspirators. The said section reads: 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour. 568. Then in State of Gujarat v. Mohammed Atik and Ors. 1998 Cri LJ 2251 this Court said as under: It is well-nigh settled that Section 10 of the Evidence Act is founded on the principle of law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so, once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made "in reference to their common intention". In other words, a post-arrest statement made to a police officer, whether it is a confession or otherwise, touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note of an alternative argument of Mr. Altaf Ahmad. He said even if it is held that the confession under Section 15 TADA can be admitted only if there is corroboration, under Section 10 of the Evidence Act the confession of an accused can nevertheless be a substantive evidence against co-accused if it satisfies the requirement of that Section. 572. It is true that provision as contained in Section 10 is a departure from the rule of hearsay evidence. There can be two objections to the admissibility of evidence under Section 10 and they are (1) the conspirator whose evidence is sought to be admitted against co-conspirator is not confronted or cross-examined in Court by the co-conspirator and (2) prosecution merely proves the existence of reasonable ground to believe that two or more persons have conspired to commit an offence and that brings into operation the existence of agency relationship to implicate co-conspirator. But then precisely under Section 10 Evidence Act statement of a conspirator is admissible against co-conspirator on the premise that this relationship exists. Prosecution, no doubt, has to produce independent evidence as to the existence of the conspiracy for Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed. 2. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder. 3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. 4. Conspirators may, for example, be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders". 8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the criminal conspiracy, still keeping in view the following aspects:- 1. Presence of LTTE on Indian soil before and after Indo-Sri Lankan Accord is undisputed. Its activities went ostensibly underground after the Accord. LTTE was having various activities in India and some of these were (1) printing and publishing of books and magazines for LTTE propaganda, (2) holding of camps for arms training in India and various other places in Tamil Nadu (This was done openly till the Indo-Sri Lankan Accord), (3) collection and raising of funds for its war efforts in Sri Lanka, (4) treatment of injured LTTE cadres in India, (5) medical assistance and (6) transporting of goods like petrol, diesel, lungies, medicines, wireless equipments and explosives and even provisions to Sri Lanka. 2. Hiring of houses in Tamil Nadu was for various activities of the LTTE, which included houses for the treatment of injured LTTE cadres. 3. Sivarasan was having other activities in Tamil Nadu. He was to make arrangements for Santhan (A-2) to go to Switzerland and for Kangasabapathy (A-7) and Athirai (A-8) to go to Delhi and from there to Germany. He was to make arrangement to recruit persons to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oup and Vijayan (A-12), Selvaluxmi (A-13) and Bhaskaran (A-14) as the second group, were in fact wanting to come to India due to conditions prevailing in Sri Lanka. They had no money to pay to LTTE. They were exempted from paying any toll to LTTE on their agreeing to hire houses in Tamil Nadu for stay of LTTE cadre and on their being promised help by LTTE. When they so agreed they were not aware that what was the object behind their hiring the houses. Evidence regarding providing shelter to the conspirators either before or after the object of the conspiracy has been achieved, is not conclusive to support the charge of conspiracy against them. 9. Robert Payas (A-9), Jayakumar (A-10) and Vijayan (A-12) were hard-core LTTE activists. They were living in Sri Lanka with their families and suffered because of the turmoil there. They may be sympathizers of LTTE having strong feelings against IPKF. Consider the background in which they accepted the offer of LTTE to meet their expenses in India. It could be that they themselves felled into the trap because of the circumstances in which their families were placed in Sri Lanka and the conditions prevailing there. 576. Now, we proceed to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who repainted Maruti Gypsy. 578. Vicky (A-25) was also aware that Sivarasan and Dhanu were involved in the assassination of Rajiv Gandhi. He accompanied Dhanasekaran (A-23) and Rangam (A-24) in tanker lorry (MO-543) for shifting Sivarasan, Subha and Nero from Madras to Bangalore. He had opened the top lid of the tanker for Sivarasan, Subha and Nero to get into the tanker. This was done with a view to evade the arrest of Sivarasan, Subha and Nero. Evidence against Vicky (A-25) is same as against Dhanasekaran (A-23) and Rangam (A-24) and his case is similar to them. He had come to India for the first time in 1985 and again in 1990. He was given the task of looking after wounded LTTE personnel, who had come to India for treatment. 579. Ranganath (A-26) gave shelter to Sivarasan, Subha, Nero and others in his house knowingly that both Sivarasan and Subha were involved in the assassination of Rajiv Gandhi. He helped Rangam (A-24) to take Maruti Gypsy (MO-540-) and Fiat car (CAU 6492) to the workshop for changing colour of the vehicles respectively from green to white and sky blue to white. After colour of Maruti Gypsy had been changed he took delivery of the same. He got the Fiat car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets a positive feeling that they were planning to kill certain leaders. However, wireless message (Exh.P-392), which was sent on 7.5.1991 by Sivarasan to Pottu Amman and which was intercepted and decoded, showed that till this date Nalini (A-1) had no knowledge about any conspiracy to kill Rajiv Gandhi. Further that till 7.5.1991 only three persons Sivarasan, Subha and Dhanu knew the object of conspiracy to kill Rajiv Gandhi. On 19.5.1991 she got a strong feeling that Rajiv Gandhi was the target but she continues to associate with them. It was on 21.5.1991 that she agreed to associate herself with the killing of Rajiv Gandhi and became member of the conspiracy. On that day she goes with the group comprising Sivarasan, Subha and Dhanu from her house to achieve the object of conspiracy. Haribabu also joins them on way to Sriperumbudur where Rajiv Gandhi was to address the public meeting. She has been given a role. She has to give cover to Subha and Dhanu so that they may not be identified as Sri Lankan Tamils and when the explosion occurs she acts as per instructions. She takes Subha with her to a particular place, performs the role assigned to her and then goes into hiding. She is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sivarasan, Subha, Dhanu, Nalini (A-1) and Haribabu in the photograph; (PW-28) Bhagawan Singh (Journalist) also an eye witness, who has seen Sivarasan, Haribabu and the girl (Nalini (A-1)) and identified Sivarasan in MO-2 and Haribabu in MO-17; (PW-19) D. Lakshmi Albert (Congress Party member) an eye witness, who identified Nalini (A-1), Subha in MO-188, Dhanu, Sivarasan in MO-16 and Haribabu in MO-17; (PW-20) Dr. Ramadevi (another Congress Party member and eye witness) who identified Nalini (A-1), and Subha in MO-18 (photograph), Dhanu & Sivarasan in MO-16 and Haribabu in MO-17; (PW-215) Chamundeeswari (Native of Sriperumbadur, who deposes that she had given water to Nalini (A-1), Subha and Sivarasan on the night of 21.5.1991; (PW-183) Varadharajan K. (Auto-driver at Thiruvellore) who transported Sivarasan, Subha, Nalini (A-1) from Sriperumbudur to Madras and is also a spot witness who heard the sound of blast from parking lot; (PW-195) R. Nagarajan (Congress Party member of Thrivellore) who travelled in the auto of PW-183 to Sriperumbudur; (PW-85) D.J. Swaminathan (Neighbour of Jayakumar (A-10) at Kodungaiyur) who deposes about the visits of Sivarasan, Subha, Dhanu, Robert Payas ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akaran had paid special attention to him (Santhan (A-2))after the murder of Padmanabha and important works were allotted to him and the reason for all that was the cooperation given by him (Santhan (A-2)) in the matter of killing of Padmanabhan. Earlier it was Kanthan, an LTTE activist, who was handling the finances of Sivarasan and now it was Santhan (A-2), who had taken the charge from Kanthan. On 15.5.1991 on the strength of letter from Sivarasan, addressed to Kanthan, he was given a sum of Rs. 5 lakhs by Kanthan to be handed over to Sivarasan. Sivarasan took Rs. 2 lakhs out of that and asked Santhan (A-2) to keep the balance with him. On 17.5.1991 Santhan (A-2) and Sivarasan went to Easwari Lodge to meet Shankar (A-4), who had also come with them in the boat carrying nine persons on 1.5.1991. Out of the money lying with Santhan (A-2) Sivarasan gave Rs. 10,000/- to Shankar (A-4). On 18.5.1991 Santhan (A-2) gave another sum of Rs. 20,000/- to Sivarasan. Same day in the afternoon Santhan (A-2) on the instructions of Sivarasan went to the house of Robert Payas (A-9) and gave Rs. 4,000/- to Ruben (A-6), who was there at that time. Another sum of Rs. 1 lakh was given to Santhan (A-2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but was not successful, but then in the meanwhile he became member of the conspiracy being a confidante of Sivarasan. It is agreement, which is sine qua non of the offence of conspiracy which is quite discernible in the case of Santhan (A-2). Murugan (A-3) 585. Murugan (A-3) is a Sri Lankan national and a hard-core LTTE activist. He was member of the suicide squad of LTTE which he joined in January, 1991. In January, 1991 itself he came to India on the direction of absconding accused Pottu Amman and was given specific jobs of preparing sketches of the interior of Madras Fort, Police Headquarters at Madras and various other police stations and their locations. He was also asked to take photographs and video graphs of these places. When he arrived at the Indian shore he was received by Sivarasan. In the course of time he came in contact with Bhagyanathan (A-20), his mother Padma (A-21) and then with Nalini (A-1). He was introduced to Haribabu (deceased accused) by Bhagyanathan (A-20). He gave financial help to the family of Padma (A-21). Murugan (A-3) in his confession statement said that earlier there was a plan to establish a household in Delhi by taking Padma (A-21) there but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha. 586. Then in April, 1991 Sivarasan told Murugan (A-3) that he had to bring two girls Subha and Dhanu from Sri Lanka and that in order to finish the job he required an Indian girl as both Subha and Dhanu would speak Tamil in Sri Lankan dialect and in order to mingle in the group without anyone suspecting there was need of an Indian Tamil girl. Sivarasan and Murugan (A-3) then decided to make use of Nalini (A-1). On 7.5.1991 Murugan (A-3) along with Nalini (A-1), Subha, Dhanu, Sivarasan, Haribabu and Arivu (A-18) attended the public meeting addressed by V.P. Singh, former Prime Minister of India, at Nandanam, Madras. This operation was a 'dry run' operation. Rajiv Gandhi was also former Prime Minister of India. Security arrangements would be same for both V.P. Singh and Rajiv Gandhi. These accused therefore conducted rehearsal at the public meeting for the purpose of gaining access to the VIP under the guise of garlanding him. Now Murugan (A-3) was sure that Rajiv Gandhi would be the target. In order to gain access to V.P. Singh in the public meeting Press Accreditation Cards were forged, which were prepared by Haribabu for Murugan (A-3) and Sivarasan. Forged Press Accre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1), an Indian girl for accompanying Subha and Dhanu to act as their cover so as not to expose their identity. Conduct of Murugan (A-3) before and after the assassination of Rajiv Gandhi leaves no doubt in our minds that he had agreed to achieve the object of conspiracy which was to murder Rajiv Gandhi. On 7.6.1991 Murugan (A-3) gave two code sheets (MO-107 and MO-108), meant for communicating secret messages through wireless set, to Padma (A-21) and asked her to keep them in safe custody. She gave those two sheets to her colleague Devasena Raj (PW-73), which were subsequently seized from her by the police. There is sufficient evidence on record to show as to how after the assassination of Rajiv Gandhi Murugan (A-3) and Nalini (A-1) absconded and took refuge at various places including Tirupathi, Madurai and Devengere in the State of Karnataka and the fact that identity of Murugan (A-3) was concealed by them. Confession of Murugan (A-3) stands corroborated with the confessions of his co-accused Nalini (A-1), Santhan (A-2), Arivu (A-18), Bhagyanathan (A-20) and Padma (A-21) and by independent witnesses showing his being a member of the criminal conspiracy with the object of killing R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai at the coast of India. He was found in possession of forged passport (MO-559), which was seized during the investigation. In Madras he stayed at Komala Vilas Lodge on 8.5.1991 and 9.5.1991. In the guest register of the lodge (Exh.P-496) he described himself as an Indian hailing from Madurai in Tamil Nadu. In the column 'purpose of visit' he mentioned the same as "marriage" and profession as "teacher". On 9.5.1991 Arivu (A-18) met him in the lodge and took him to the house of N. Vasantha Kumar (PW-75) where he stayed. In his statement N. Vasantha Kumar (PW-75) said that while Vijayanandan (A-5) was staying in his house he used to express his hatred towards Rajiv Gandhi and IPKF and was also narrating the atrocities committed by IPKF in Jaffna. N. Vasantha Kumar (PW-75) also said that Vijayanandan (A-5) brought with him a book titled "Alecia" with Tamil translation (MO-113) for printing. This book, he said, dealt with life of a Jewish lady who sacrificed her life for her nation. In his diary (MO-180) Sivarasan mentioned on the date 8.5.1991 about payment of Rs. 50,000/- to Vijayanandan (A-5). It has come in evidence that the purpose of Vijayan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) to use his name as Maharaja which was his pseudo name used by him in his poems. In Jaipur they stayed in Golden Lodge where they had arrived on 19.5:1991. On 22.5.1991 Vijayendran (PW-111) said he read the news of Rajiv Gandhi's assassination at Sriperumbudur. He said they were in panic as they could be suspected being Tamilians and in that situation Ruben (A-6) suggested to vacate the lodge. On 23rd evening they shifted to Vikram Lodge. Vijayendran (PW-111) said he met Rajan, manager of the lodge, and asked him to assist him for taking treatment for Ruben (A-6) as the date of appointment by Dr. Sethi was given for 13th June only. He and Ajas Ali came back to Madras on 27.5.1991, having left Jaipur on 24.5.1991, while Ruben (A-6) stayed in Jaipur, On the morning of 29.5.1991 Vijayendran (PW-111) saw the picture of Sivarasan published in the English newspaper and he was stunned. Ruben (A-6) was arrested at Jaipur, on 26.5.1991. On account of the association with Santhan (A-2) and Sivarasan prosecution seeks to draw inference that he was a member of the conspiracy and that the real purpose of his going to Jaipur was to arrange a hide out and that the ostensible purpose was giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port to come to India through authorised channel. After arriving at Kodiakarai on Indian soil Kangasabapathy (A-7) and Athirai (A-8) came to Madras to stay with Jayakumari (PW-109), a relative of Kangasabapathy (A-7). Sivarasan met them in the house of Jayakumari (PW-109). From this fact prosecution seeks to contend that only because Kangasabapathy (A-7) and Athirai (A-8) were to accomplish the object of conspiracy Sivarasan met them and took care of them and he was also to meet their expenses in India. Simply because Sivarasan was looking after them is not enough to infer their being members of the criminal conspiracy. From 7.5.1991 till 1.7.1991 Athirai (A-8) stayed with P. Thirumathi Vimala (PW-62). She was persuaded by Sivarasan to let Athirai (A-8) stay with her. Sivarasan had brought P. Thirumathi Vimala (PW-62) a letter from her mother in Sri Lanka. On 16.5.1991 Sivarasan gave Rs. 10,000/- to Athirai (A-8) for expenses. He also gave Rs. 20,000/--to Kangasabapathy (A-7) and asked him to go to Delhi to arrange an accommodation. On 20.5.1991 Kangasabapathy (A-7) accompanied by one Vanan went to Delhi and arranged a house. From this also an inference is sought to be drawn by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assination of Rajiv Gandhi. Charge under Section 212 against both of them must also fail and they are acquitted. However, charge punishable under Section 14 of the Foreigners Act, 1946 is sustained against both of them as they clandestinely came to India through illicit channels without any valid travel document. Their conviction and sentence under Section 14 of the Foreigners Act is upheld. Robert Payas (A-9) Jayakumar (A-10) Shanthi(A-11) 591. Robert Payas (A-9) and Jayakumar (A-10) are Sri Lankan Tamils. Shanthi (A-11) is Indian Tamil, married to Jayakumar (A-10). Wife of Robert Payas (A-9) is the sister of Jayakumar (A-10). From the confession of Robert Payas (A-9) and other evidence the prosecution seeks to contend that: a) he had knowledge about the conspiracy to kill Rajiv Gandhi; b) since Shanthi (A-11) was an Indian Tamil this group was sent by Pottu Amman to go to Tamil Nadu to fix a house for Sivarasan and other members of the conspiracy to accomplish the object of conspiracy inasmuch as Robert Payas's (A-9) one and half months son had been killed in an action by IPKF and he had developed great hatred towards IPKF and Rajiv Gandhi. He viewed Rajiv Gandhi as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rposes like housing the injured LTTE cadre, storing of medicines, etc. 593. In the case of Jayakumar (A-10) it is alleged that he fixed a house in Kodungiyar for his family to stay which was taken in the name of Ramaswamy, father of Shanthi (A-11). This house was in fact for the stay of Sivarasan. It is alleged by the prosecution that it could be inferred that Jayakumar (A-10) and Shanthi (A-11) were members of the conspiracy having the object to kill Rajiv Gandhi from the following circumstances that:- a) they were selected by Pottu Amman along with Robert Payas (A-9) to go to India to hire houses for the stay of LTTE militants and they did not pay any tax to LTTE for coming to India; b) after Jayakumar (A-10) had taken a separate house in fact for the stay of Sivarasan, he in the first week of May, 1991 brought Subha, Dhanu and Nero to that house; c) Sivarasan was meeting the expenses of Jayakumar (A-10) since Jayakumar (A-10) and Shanthi (A-11) were not having any income; d) Sivarasan paid Rs. 20,000 as advance for renting a shop in the name of Shanthi (A-11) for her to run a coffee grinding shop. The machine was purchased for Rs. 15,000/- payment of which was also made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord to show that Jayakumar (A-10) and Shanthi (A-11) knew of the "dangerous mission" or for whose assassination Subha and Dhanu were brought by Sivarasan. True the couple was in dire financial needs and with the promise of financial help and to start some business in India away from the turmoil in Sri Lanka they agreed to come to India and to hire a house for LTTE militants to stay and they did rent a house where Sivarasan could stay. But they did not know what Sivarasan was upto. 595. From all these circumstances it is difficult to infer any agreement to make Robert Payas (A-9), Jayakumar (A-10) and Shanthi (A-11) as members of the conspiracy having the object to kill Rajiv Gandhi. As a matter of fact there is hardly any circumstance against Shanthi (A-11) to make her a member of the conspiracy. These accused may have a strong feeling against Rajiv Gandhi and they may have strong suspicion that Sivarasan, Subha and Dhanu had come for some dangerous mission but there is no evidence to infer that that would make them members of the conspiracy. It is correct that Jayakumar (A-10) harboured Sivarasan, Nalini (A-1) and Subha after having come to know their involvement in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying advance rent, etc. were met by Sivarasan. On 2.5.1991 Sivarasan brought Nero, Subha and Dhanu to this house. Arivu (A-18) purchased a 12 volt car battery on 3.5.1991 for operating the wireless set installed in the house. With this Nero started communicating with the LTTE leaders in Jaffna. This wireless station installed in the house of Vijayan (A-12) is of Sivarasan being station No. 910 and was communicating with Station No. 91 in Jaffna of Pottu Amman. Thus the prosecution alleges that the house of Vijayan (A-12) was used by Sivarasan to keep informed LTTE leaders in Jaffna through wireless messages as to the progress made by him in the execution of the object of conspiracy. Purchase of two cycles by Vijayan (A-12) is also being taken as part of the conspiracy as these were used by Subha, Dhatiu and others for meeting the members of the conspiracy. While Sivarasan stayed in the house of Jayakumar (A-10) Subha and Dhanu were staying in the house of Vijayan (A-12). As to why Subha and Dhanu were staying in the house of Vijayan (A-12) it was said that it was on account of the fact that both Selvaluxmi (A-13) and Bhaskaran (A-14) were Indian Tamils and as such stay of Subha and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spiracy. They are also guilty of having harboured Sivarasan and Subha knowing fully well that they were the persons involved in the killing of Rajiv Gandhi. After the assassination Sivarasan was staying in the house of Vijayan (A-12) along with Subha and regularly sending messages to Pottu Amman through wireless explaining the developments. Association of Bhaskaran (A-14) is also alleged but this did not end with the harbouring of Sivarasan and Subha as he made efforts to get another accommodation for the hiding of Sivarasan and Subha for which he sought the help of his relative N. Chokkanathan (PW-97). It is also the case of the prosecution that Bhaskaran (A-14), who was all along staying in the house of Vijayan (A-12) and Selvaluxmi (A-13), was also fully aware that Sivarasan, Subha and Dhanu had gone to Sriperumbudur and killed Rajiv Gandhi and when particularly Dhanu did not return. Relying on the confession of Vijayan (A-12) lastly the prosecution said that one or two days after 23.6.1991 Santhan(A-2) came with deceased accused Suresh Master and took Sivarasan and Subha. On 23.6.1991 Vijayan (A-12), Selvaluxmi (A-13) and Bhaskaran (A-14) went to Tuticorin and again returned to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th her husband A-12 and merely on that account knowledge and intention cannot be attributed to her, particularly when no overt act is alleged against her. She is acquitted of all these charges and her conviction and sentence set aside. Shanmugavadivelu (A-15) 598. Shanmugavadivelu (A-15) is a Sri Lankan Tamil. He is living in India since 1987. As to how he was a member of the conspiracy with the object to kill Rajiv Gandhi the prosecution relies on the following circumstances:- 1. From the papers seized from Ruben (A-6) at Jaipur on 20.6.1991 in one of the folios the name Thambi Anna' is written with telephone number 864249, which in fact is the telephone number of Shanmugavadivelu (A-15). 2. Shanmugavadivelu (A-15) was known to Santhan (A-2) and Sivarasan in early 1990 when Shanmugavadivelu (A-15) helped Santhan (A-2) to get admission in Madras Institute of Engineering Technology. 3. When Sivarasan came to India in a group of nine on 1.5.1991 he brought a letter dated 27.4.1991 (Exh.P-209) addressed to P. Thirumathi Vimala (PW-62) from her mother. To locate the house of P. Thirumathi Vimala (PW-62) Shanmugavadivelu (A-15) took Santhan (A-2) and Sivarasan to her house i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eerappan (PW-102) and Vamadevan (PW-114) for sending Santhan (A-2) abroad. It is wrong on the part of the prosecution to allege on the basis of evidence that Athirai (A-8) had been regularly visiting Shanmugavadivelu (A-15). There is no such evidence. There is nothing in the evidence to suggest even remotely that when Santhan (A-2) asked Shanmugavadivelu (A-15) to keep certain amount with him and took that amount back on certain dates Shanmugavadivelu (A-15) had even an inkling that there was any conspiracy afoot or that Santhan' (A-2) and Sivarasan were members of that conspiracy. It is difficult to accept the prosecution case that arrival of Santhan (A-2) was known to Shanmugavadivelu (A-15) even before his arrival in India. When P. Veerappan (PW-102) said that it was in the end of April, 1991 that Shanmugavadivelu (A-15) approached him it could be 1st week of May, 1991 as well. P. Veerappan (PW-102) was not keeping any record of the visit of Shanmugavadivelu (A-15) to him and his statement in court was recorded years later. It appears to us that prosecution is looking at every circumstance with the proverbial jaundiced eye. From what the prosecution alleges no case whatsoeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not go in search of target and that the target should come to us" and further "it may take place in near future if election is declared". 8. On 10.5.1991 Ravi (A-16) was at Kodiakkarai where Murugan (A-3) also came and another LTTE helper Chokkanathan was also present. When Chokkanathan asked Murugan (A-3) in presence of Ravi (A-16) as to "why the work of Sivarasan has not yet been completed". To this Murugan (A-3) answered" how could that not be completed. It has to take place". 9. On the night of 21.5.1991 Ravi (A-16) was sleeping in the hut opposite to the house of Shanmugham (DA) at Kodiakkarai. In the mid night he was told by a servant of Shanmugham that Rajiv Gandhi had died in a bomb blast in Madras and with him 30 others also died and that a message has been received that Shanmugham and others should not remain there. 10. Ravi (A-16) and Suseendran (A-17) harboured Subha and Sivarasan after assassination of Rajiv Gandhi knowing that they had committed the offence of murder. Ravi (A-16) was making all attempts for Sivarasan and Subha to escape from India after the assassination of Rajiv Gandhi. 11. Ravi (A-16) went to Sri Lanka in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and Emigration Act. Individual charges against Ravi (A-16) were that (1) he recruited co-accused numbering eight, he himself went to Sri Lanka, got training in arms through Pottu Amman, helped in organizing Tamil Nadu Retrieval Force, assisted co-accused by arranging houses, setting up wireless sets at Dindigul, was found in possession of arms and ammunitions, thus committed various terrorist acts punishable under TADA; (2) that he along with other co-accused clandestinely came to India in LTTE boat with bombs and ammunition; and (3) that he went to Jaffna without valid passport for getting training in wireless there. In the confession made on 12.12.1991 by Ravi (A-16) in that case, he said as under: In June 1986, he went to Sri Lanka. He was given training for 31/2 months in arms and ammunition. In August 1987 he is in India in his uncle's house at Madipakkam and had joined a school to continue his studies. He, however, keeps on going to LTTE office at Adyar and helping Kittu alias Krishankumar, an LTTE activist. He was put in house arrest in 1988 along with Kittu in a lodge in Madras Central Prison. Then he was taken to IPKF camp in Sri Lanka. After his release from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 29 cartridges, knife and cyanide capsules. On his statement, gold biscuits concealed by him were recovered. In his confession also recorded on 12.12.1991, Suseendran (A-17) said as under: He met Ravi (A-16) in May 1990 and they talked about LTTE. Ravi (A-16) asked him if he was ready to go to Sri Lanka for arms and ammunition training to which he agreed. Suseendran (A-17) collected eight (8) more persons and they all 10 went to Sri Lan ka. They went to sea-shore by a Maruti Gypsy and Ambassador car of LTTE. There LTTE boat was available to go to Sri Lanka. They were given training in handling of arms and ammunition. Since war had started, they have to stay in Sri Lanka for five more months. Pottu Amman had visited them during their training. This group of 10 resolved to form Tamil National Retrieval Troops and decided to work under the leadership of Ravi (A-16) for the purpose of committing terrorist acts in India and for separation of Tamil Nadu from Indian Union. He and Ravi (A-16) were given training in Wireless operation also. In December 1990, they returned to India along with Sivarasan. Ravi (A-16) told him to meet at Madras after three days. Ravi (A-16) gave him Rs. 500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 5 of TADA and convicted and sentenced. That certainly could not have been done as in CC 7/92 they have already been tried for an offence under Section 5 of TADA and convicted and sentenced. Facts constituting the charge under Section 5 of TADA in CC 7/92 and in the present case are the same. Conviction of Ravi (A-16) and Suseendran (A-17) in the present case under Section 5 of TADA is set aside and they are acquitted of this charge. Also they have been separately charged under Section 5 of the Explosive Substance Act and similarly convicted and sentenced. They have then been charged for an offence punishable under Section 25 of the Arms Act and convicted and sentenced. Mr. Natarajan, learned Counsel appearing for them, did not press his argument on the applicability of the provision of Section 300 of the Code inasmuch as he said that since these accused have already undergone the period of their sentence they will not challenge their conviction under the charges under IPC, Explosive Substance Act, Section 5 of TADA and Arms Act. In this view of the matter we need not go into the question if Ravi (A-16) and Suseendran (A-17) could have been tried again for these charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha, Dhanu and Murugan (A-3) were also present. He knew Subha and Dhanu, who were the lady tigresses from Jaffna and had been brought by Sivarasan for his job. These two ladies were moving about with Nalini (A-1). Attending the meeting of V.P. Singh was a dry run for some future engagements/acts. i) After President's Rule was imposed in Tamil Nadu there were restrictions placed on the movement of LTTE cadre in Tamil Nadu. Persons belonging to LTTE cadre went underground. Arivu (A-18), however, continued his propaganda work for LTTE with the material that was kept in a room occupied by Baby Subramaniam in the house of Sankari(PW-210). These materials were removed by Arivu (A-18) with the help of Bhagyanathan (A-20) and deceased accused Haribabu in the month of April, 1991 to the house of Radhakrishnan (PW-231), a friend of Arivu (A-18). These were subsequently recovered and seized during the course of investigation and among the articles so recovered there was one black book (MO-609), which depicted the electric circuit identical to the electric circuit in the reconstructed explosive device(IED)(MO-722) used by Dhanu to trigger the blast which killed Rajiv Gandhi and others. Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Mr. Natarajan said that Arivu (A-18) was merely an errand boy and was following the instructions of Sivarasan and he himself had no active role to play. He said Arivu (A-18) bought the car battery and 9 volt golden power battery at the instance of Sivarasan and so also Kawasaki Bajaj motorcycle. He further argued that merely on these counts it cannot be said that Arivu (A-18) had knowledge of the conspiracy and that he himself did not agree to achieve the object of the conspiracy. Circumstances rather show that Arivu (A-18) was in the thick of conspiracy. He knew that to explode the I ED power source would be 9 volt battery and that is why he purchased battery of that power and which was ultimately used in exploding the device killing Rajiv Gandhi and others. Mr. Natarajan also said that the version of Arivu (A-18) that this battery was used for explosion of the I ED was his knowledge derived after the explosion cannot be accepted. Arivu (A-18) has, therefore, been rightly convicted for various offences charged against him by the Designated Court. 607. Irumborai(A-19) a) Irumborai (A-19) was given this name by LTTE. His original name is Duraisingam. b) Irumborai (A-19) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrange a separate house for Sivarasan, Suba and Nero. Irumborai (A-19) took three LTTE injured boys and left them in a particular house. h) When Irumborai (A-19) was on his way to Jaffna in Sri Lanka after arranging a boat he was intercepted by the Indian Navy and handed over to the Police. Letters (Exh. P-128 and P-129) were recovered from him. i) Irumborai (A-19) learnt about the death of Rajiv Gandhi on the morning of 22.5.1991. To him the death of Rajiv Gandhi seemed to be a brave deed and an act of revenge. But then whatever feeling a person may have that would not make him a member of the conspiracy. Further apart from the fact that Irumborai (A-19) knew certain members of the LTTE operating in India but there is no evidence whatsoever that he had any knowledge of the conspiracy with the object to kill Rajiv Gandhi. Documents (Exh.P-128 and P-129) are not admissible in evidence. There is nothing on record to show that Trichy Santhan (DA) was a member of the conspiracy to kill Rajiv Gandhi. Rather evidence shows that he was looking after the injured LTTE cadre in India and supplying various medicines to Sri Lanka to support the war efforts of LTTE there. It also cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t St. George and other places Bhagyanathan (A-20) introduced him to Haribabu. f) Bhagyanathan (A-20) was aware that Nalini (A-1), Murugan (A-3), Arivu (A-18), Sivarasan, Subha, Dhanu and Haribabu had attended the meeting of V.P. Singh on 7.5.1991 at Nandanam, Madras. He himself did not attend the meeting. g) On 20,5.1991 Sivarasan, Murugan (A-3), Arivu (A-18) and Haribabu had come to the house of Padma (A-21). There is, however, no evidence as to what conversation, if any, took place at that time and whether Bhagyanathan (A-20) himself attended the meeting and if so what was his part. It was on 23.5.1991 when Sivarasan and Nalini (A-1) came to the house of Padma (A-21) he got narration of the incident that took place at Sriperumbudur on 21.5.1991. h) Bhagyanathan (A-20) gave a sum of Rs. 1,000/- to Haribabu's family for meeting the expenses on account of death of Haribabu, which money was given by Murugan (A-3). i) After the death of Rajiv Gandhi Bhagyanathan (A-20) helped Arivu (A-18) to removed his TV, VCR, etc. and other LTTE materials from the house of Padma (A-21) to the house of a friend of Arivu (A-18). j) Knowing fully well that Sivarasan, Subha, Dhanu, Nalini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the killing of Rajiv Gandhi would not make Bhagyanathan (A-20) and Padma (A-21) members of any conspiracy to kill Rajiv Gandhi. There is nothing unusual in Murugan (A-3) providing financial help to Padma (A-21) in view of the fact that he was staying in her house and also his having affair with Nalini (A-1). Charge of any conspiracy against Padma (A-21) and Bhagyanathan (A-20) must fail. Charge under Section 3(3) TADA against both of them also fails. They, however, have rightly been convicted and sentenced for offence under Section 212 IPC. Their conviction under Section 212 IPC and sentence was not challenged by Mr. Natarajan. Padma (A-21) has also been charged for an offence under Section 6(1A) of Wireless Telegraphy Act and found guilty and sentenced. This charge against her was that she was in possession of two code sheets used by Murugan (A-3) which was material used for communicating from India to other conspirators, namely, Prabhakaran and Pottu Amman in Sri Lanka and those sheets were handed over to Padma (A-21) for safe custody. We do not think that there is any evidence to suggest that Padma (A-21) had any knowledge of the code sheets or what the code sheets were about. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Suba Sundaram (A-22) thereafter contacted K. Ramamurthy (PW-258), President of AICC(1) for seeking his help to retrieve the camera of Haribabu. g) Since Suba Sundaram. (A-22) was making strenuous efforts for getting the camera prosecution says that the sole purpose was to destroy any clue that the investigating agency might get from the photographs taken by Haribabu before he died about the role of LTTE and others in the crime. But then it must not be forgotten that Suba Sundaram (A-22) was running a studio and he was Keen that he should get the photographs taken by Haribabu and use them for his business. h) Suba Sundaram (A-22) made all attempts to conceal the identity of Haribabu that he was an LTTE activist and that he had been engaged by Sivarasan and others to take the photographs of the incident. i) Though he was aware that Haribabu had gone to the public meeting of Rajiv Gandhi and that he was working for LTTE he got the statement issued by father of Haribabu V.T. Sundaramani (PW-120) denying that his son was member of LTTE. j) Suba Sundaram (A-22) wanted all the material relating to LTTE lying in the house of Haribabu to be destroyed so that no one could find the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onment awarded to them. In case they are not required to be detained in any other case they shall also be released forthwith. 618. We confirm the conviction of Nalini (A-1), Santhan (A-2), Murugan (A-3) and Arivu (A-18) under Section 120B read with Section 302 IPC. 619. We have been addressed arguments on the question of sentence to be passed against the accused which is the requirement of Sub-section (2) of Section 235 of the Code. Section 354 of the Code deals with the contents of judgment. Sub-section (3) of Section 354 is relevant. It is as under: (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. 620. Mr. Natarajan said that in case we hold that Nalini (A-1), Santhan (A-2), Murugan (A-3) and Arivu (A-18) are guilty they do not deserve the extreme penalty. 621. In Bachan Singh v. State of Punjab 1980 Cri LJ 636 the Constitution Bench of this Court was considering the constitutional validity of Section 302 IPC. Though holding that Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member of public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had rendered assistance to a magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code. "209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to be guilty not because they themselves committed the murder, but because they were members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a matter which had to be decided on the facts and circumstances of each case. In the present case, it is clear that the whole group of persons belonged to Laxmi Prasad's faction, joined together armed with deadly weapons and they were inspired by the common object of exterminating the male members in the family of Gayadin, 10 of these persons were armed with fire-arms and the others with several other deadly weapons, and evidence shows that five murders by shooting were committed by the members of this unlawful assembly. The conduct of the members of the unlawful assembly both before and after the commission of the offence has been considered by the courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who Were armed with fire-arms. It cannot be said that discretion in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state Of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. 624. In Bheru Singh s/o Kalyan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se against one or other of the accused may be complicated or confused by the attempt to put it in a proper place in a larger setting. A Court should not be overzealous to provide a cover of conspiracy for a number of offences unless it is clearly satisfied on the material placed before it that there is evidence to prove prima facie that the persons who committed separate offences were parties to the conspiracy and they committed the separate acts attributed to them pursuant to the object of the said conspiracy. 626. In Payne v. Tennessee 111 S.Ct. 2597 (91) the Supreme Court of United States overruled by majority of 6:3 its earlier two decisions in Booth v. Maryland 482 U.S. 496 and South Carolina v. Gathers 490 U.S. 805 and upheld the admission during capital sentencing of evidence relating to the victim's personal characteristics and the emotional impact of crime on the victim of his family or friends. Charisse Christopher, her two years old daughter Lacie and her three years old son, Nicholas, were brutally attacked with a butcher knife in their apartment in Tennessee. Only the son Nicholas surviced. The police arrested Payne and a jury found him guilty of two counts of fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that "Court should always bear in mind that sentences were in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of those things." 628. Mr. Natarajan said that Nalini (A-1) got involved in the conspiracy only to please Murugan (A-3) and to be close to him, who was her lover. It was Murugan (A-3), who first indoctrinated her and then used her as a cover. It was not that any idea to assassinate Rajiv Gandhi had originated with her and she became party to the conspiracy only on the day of the incident itself though she might have suspicion or even knowledge about the same. Mr. Natarajan further said that Nalini (A-1) did not contribute to the conspiracy but merely acted as a cover as she was only obeying the role assigned to her by Sivarasan whom Murugan (A-3) introduced to her as his boss. It was also submitted that in India no woman had been hanged since India attained independence. He said if we look at the criminal, Nalini (A-1) did not belong to any criminal tribe and that though there is no evidence about her character but nothing has been said about her bad antecedents by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1990. She became friendly to Murugan (A-3) when she was introduced to him in her office by her sister Kalyani and Bharathi (PW-233). Before this date also she was close to some of the LTTE activists. She developed fondness towards Murugan (A-3) and in fact wanted to marry him. He, however, declined as he said he was a committed LTTE activist and as per code of LTTE he could not marry. They were, however, having sexual relations and when they returned from trip to Tirupathi after the assassination of Rajiv Gandhi it was found that Nalini (A-1) was pregnant. Subsequently while both of them were in custody they were married from earlier date. It was in July 1991 that she gave birth to the girl child. When you think of the crime we find that along with Rajiv Gandhi 15 others also lost their lives. Many of them were Police men on duty. Fifteen persons who lost their lives in the bomb blast were : (1) P. K. Gupta, Personal Security officer to Rajiv Gandhi, (2) Latha Kanna, (3) Kokilavani, (4) Iqbal, Superintendent of police, (5) Rajaguru, Inspector of Police, (6) Edward Joseph, Inspector of police, (&) Ethiraj, Sub Inspector of Police, (8) Sudararaju Pillai, Police constanble, (9) Ravi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o move away. Haribabu was so keen to have close-up picture of the crime that he met his fate in the blast itself. We are unable to find any mitigating circumstance not to upset the award of sentence of death on the accused. 630. This is a case where all these Nalini (A-1), Santhan (A-2), Murugan (A-3) and Arivu (A-18) deserve extreme penalty. We confirm the award of sentence of death on them. 631. We record our appreciation of the assistance given to us by counsel for the parties. Mr. Natarajan, senior advocate, led the team for all the accused except one. He was ably assisted by Mr. Sunder Mohan, Mr. B. Gopikrishnan, Mr. S. Duraisamy, Mr. V. Elangovan, Mr. N. Chandrasekharan, Mr. T. Ramdass and Mr. R. Jayseelan. A heavy burden lay on the shoulders of Mr. Natarajan. He carried it with aplomb. His presentation of the case showed his complete mastery on facts and law. It was a pleasure to hear him, not losing his poise even for once. He was fair in his submissions conceding where it was unnecessary to contest. Mr. Siva Subramanium, senior advocate assisted by Mr. Thanan, who represented the remaining one accused, rendered his bit to support Mr. Natarajan. Mr. Altaf Ahmad, Additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nadu) at 10.20 p.m. -which resulted in extirpation of a National leader, a former Prime Minister of India, Shri Rajiv Gandhi, killing of 18 others and leaving 43 persons seriously injured. This incident was a result of wickedly hatched conspiracy which was skillfully planned and horridly executed. While in office as Prime Minister of India, Shri Rajiv Gandhi, to bring about a settlement of disputes between Tamil-speaking ethnic minority and Government of Sri Lanka, signed Indo-Sri Lankan Accord on July 22, 1987 under which the Government of India took upon itself certain role. A prominent organisation of Tamils - Liberation Tiger of Tamil Elam(LTTE) -was among the signatories to that Accord. In discharge of its obligation under the Accord, Government of India sent Indian Peace Keeping Force (IPKF) to Sri Lanka to disarm LTTE. This fact together with the alleged atrocities of IPKF against Tamilians in Sri Lanka and non-cooperation of Government of India with the LTTE, at what is termed as the hour of their need, gave rise to grouse which culminated in plotting of a conspiracy to assassinate Shri Rajiv Gandhi, which was put through on the fateful day, May 21, 1991. It caused severe b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sport Act, 1967; (v) Section 14 of the Foreigners Act, 1946; (vi) Section 6(1A) of the Wireless Telegraphy Act, 1933. 638. To bring home the guilt of the accused in respect of the charges framed against each of them, the prosecution placed on record confessions of seventeen accused and also plethora of evidence. It examined 288 witnesses exhibited 1448 documents, marked Exs.P-1 to P-1448. 639. The Designated Court, on consideration of the material placed before it, found all the twenty six accused guilty of all the charges framed against them and awarded punishment of fine of varying amounts, rigorous imprisonment of different period and sentenced all of them to death. The Designated Court referred the case to this Court for confirmation of death sentence of all the convicts, numbered as Death Reference No. 1 of 1998. The convicts filed appeals, Criminal Appeals 321 to 324 of 1998, against their conviction for various offences and the sentence awarded to them. These cases were heard together. 640. Mr. Natarajan, learned senior counsel for the appellants (except Appellant No. 15), assisted by the team of able and thoroughly prepared instructing counsel, Mr. Subramaniam for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he people or any section of the people; or (iii) to alienate any section of the people; or (iv) to adversely affect the harmony amongst different sections of the people. The actus reus should comprise of doing any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms 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 manners to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detaining any person and threatening to kill or injure such persons in order to compel the Government or any other persons to do or abstain from doing any act. 644. Mr. Altaf Ahmed, learned Additional Solicitor General, has developed an ingenious argument that as the acts which are committed by the accused persons have the potentiality to overawe the Government and to strike terror in the people or any section of the people, the required mens rea has to be inferred. A perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the conviction of the appellants or any of them under Section 120B r/w 302 IPC is sustainable in law and in respect of whom the punishment of death sentence can be confirmed. 647. To record conviction under Section 120B, it is necessary to find the accused guilty of criminal conspiracy as defined in Section 120A of IPC which reads as under: 120A. 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. 648. The ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Special Judge every one of the conspirators must have taken active part in the commission of each and every one of the conspiratorial acts and only then the offence of conspiracy will be made out. Such a view is clearly wrong. The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences. 654. In State of Maharashtra and Ors. v. Somnath Thapa and Ors. 1996 Cri LJ 2448 , Hansaria, J., speaking for a three-Judge Bench of this Court after elaborate discussions of the various judgments of this Court, concluded thus: To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t facts to prove that each one of them can justifiably be treated as a conspirator. 657. Section 10 of the Evidence Act recognises the principle of agency and it reads as follows: 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. 658. To apply this provision, it has to be shown that (1) there is reasonable ground to believe that two or more persons have conspired together; and (2) the conspiracy is to commit an offence or an actionable wrong. If these two requirements are satisfied then anything said, done or written by any one of such persons after the time when such intention was entertained by any one of them in furtherance of their co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under the TADA Act is connected with the offence being tried together. Sub-section (2) provides that the Designated Court may convict the accused person of offence under that Act or any rule made thereunder or under any other law and pass any sentence authorised under that Act or the rules or under any other law, as the case may be, for the punishment thereof if in the course of any trial under the TADA Act the accused persons are found to have committed any offence either under that Act or any rule or under any other law. 663. A perusal of the judgment in Kaloo's case (supra) shows that Section 12 of the TADA Act was not brought to the notice of this Court and moreover the point was conceded by the learned Counsel for the State. I concur with my learned brethern that Kaloo's case does not lay down the correct law. It follows that confessions recorded under Section 15 of the TADA Act and admitted in the trial of offences under the TADA Act and under Section 120B read with Section 302 IPC can be relied upon to record conviction of the appellants for the said offences under IPC even though they are acquitted of offences under the TADA Act. 664. The next question th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on recorded under Section 15 will be admissible in the trial of a person, co-accused, abettor or conspirator for an offence under the TADA Act or the rules made thereunder and such other offence with which such a person may be charged at the same trial under the provisions of the Criminal Procedure Code provided the offence under the TADA Act or the Rules made thereunder is connected with such other offence. 668. An analysis of Sub-section (1) of Section 15 shows that it has two limbs. The first limb bars application of provisions of the CrPC and the Indian Evidence Act to a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by him in any of the modes noted in the section. The second limb makes such a confession admissible, de hors the provisions of the Evidence Act in the trial of such person or co-accused, abettor or conspirator for an offence under the TADA Act or rules made thereunder provided the co-accused, abettor or conspirator is charged and tried in the same case together with the accused. The import of Section 15(1) is that insofar as the provisions of the Cr.P.C. and the Evidence Act come in conflict with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to be proved by the Court will be a part of the statement of a witness made before the Court, so it will be evidence within the meaning of that term. A confession recorded by a Magistrate under Section 164 Cr.P.C. also satisfies the requirements of the definition of the term 'evidence'. A confession recorded under Section 15(1) of the TADA Act is also within the ambit of evidence under Section 3(1) of the Evidence Act and there is no dissension on this. 673. The expression "substantive evidence" is not employed in the Evidence Act. It connotes evidence of a fact in issue or a relevant fact. In Black's Law Dictionary (at P. 1597), the following meaning is noted: SUBSTANTIVE EVIDENCE. That adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness, (i.e. showing that he is unworthy of belief,) or of corroborating his testimony. Best, Ev. 246,773,803. In Words and Phrases (Vol.40), "substantive evidence" is defined as follows: 'SUBSTANTIVE EVIDENCE Although subordinate feature of case, certain types of evidence, such as character evidence or prior criminal acts, can be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when urged by the promptings of truth and conscience. In Principles and Digest of the Law of Evidence, Volume 1, New Edition, by Chief Justice M. Monir, after noticing conflicting views and discussing various authorities, the learned author stated the rule as follows: The rule may, therefore, be stated to be that whereas the evidence in proof of a confession having been made is always to be suspected the confession, if once proved to have been made and made voluntarily, is one of the most effectual proofs in the law. There is a plethora of case law holding that confession of an accused recorded in the manner provided under Cr.P.C. and admissible under the provisions of the Evidence Act, even if retracted later, is substantive evidence as against the maker thereof. 677. Section 30 of the Evidence Act which deals with consideration of proved confession affecting person making it and others jointly under trial for same offence, is quoted below: 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 af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Act, the Court is given discretion to take into consideration the confession against the maker as well as against those who are being tried jointly for the same offence, but Section 15(1) of TADA Act mandates that confession of an accused recorded thereunder shall be admissible In the trial of the maker of confession or co-accused, abettor or conspirator, provided the co-accused, abettor or conspirator is charged and tried in with the accused the same case. Both Section 30 of the Evidence Act as well as Section 15 of the TADA Act require joint trial of the accused making confession and co-accused, abettor or conspirator. 682. Having excluded the application of Sections 24 to 30 of the Evidence Act to a confession recorded under Section 15(1) of the TADA Act, a self-contained scheme is incorporated therein for recording confession of an accused and its admissibility in his trial with co-accused, abettor or conspirator for offences under the TADA Act or the rules made thereunder or any other offence under any other law which can jointly be tried with the offence with which he is charged at the same trial. There is thus no room to import the requirements of Section 30 of the Evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 and are relevant or when they became relevant under Sections 27, 28 and 29, they can only be proved against the maker thereof. Admittedly, there is no provision in the Evidence Act for making confession of an accused relevant or admissible against the co-accused. In the setting of those provisions Section 30 of the Evidence Act is enacted which is a clear departure from the principles of English Law. It permits taking into consideration of a confession made by one of the persons being tried jointly for the same offence as against the co-accused. It is in such a case a confession of an accused, recorded in accordance with the provisions of the Cr.P.C. and the Evidence Act, has to satisfy the requirements of Section 30 of the Evidence Act for using it against the co-accused. 687. It is now well settled that the expression 'the court may take into consideration such confession' means to lend assurance to the other evidence against the co-accused. 688. Sir John Beaumont, speaking for the Privy Council, in Bhuboni Sahu v. The King, an oft-quoted authority, observed in regard to Section 30 of the Evidence Act, thus: Section 30 seems to be based on the view that an admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni Sahu's case (supra) and Kashmira Singh's case (supra), observed: Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, Section 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession...When Section 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration, is precisely the problem which has been raised in the present appeals. It was held that technically construed, the definition of the term "evidence" in Section 3 would not apply to confession. It was observed: Even so, Section 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused person; that is to say, though such a confession may not be evidence as strictly defined by Section 3 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed himself making an extra-judicial confession to any person other than a police officer the legal presumption that the accused had committed such offence would arise. 693. Section 4 of the Evidence Act defines "shall presume" as follows: Shall presume.-whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. 694. The presumption is, however, rebuttable so the burden of showing that the offence was not committed would shift to the accused. The normal presumption in criminal cases is that till it is proved to the contrary the accused will be deemed to be innocent and that position is altered by Section 21(1). After deletion of Clauses (c) and (d) by Act 43 of 1993 the statutory presumption under Section 21(1) will not apply to situations where a confession is made by a co-accused that the accused had committed the offence (clause (c)) or where the accused himself made a confession of the offence to any person other than a police officer (clause (d)) and the normal rule of presumption of innocence of the accused will apply. What was in the realm of 'as proved' has after the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 164 Cr.P.C. and the other by a police officer under Section 15(1) of the TADA Act, the court will have to give the same evidential value to such confessions as against the co-accused. 698. If the expression 'substantive evidence' is understood in the sense of evidence of a fact in issue or a relevant fact and not proof of what it contains and that it has to be evaluated by the Court like any other category of evidence no difficulty arises. The difficulty will, however, arise if 'substantive evidence' is equated with the position flowing from the application of legislative mandate by incorporating 'shall presume' as Brother Thomas, J. has indicated in his judgment as that will, in my view, nullify the effect of legal presumption in Section 21(1) of the TADA Act. I, therefore, respectfully differ from the view taken by the Bench in Kalpnath Rai's case (supra) and brother Thomas, J. in his judgment in this case and in respectful agreement with the view expressed by brother Wadhwa, J. in his judgment that a confession of an accused under Section 15(1) of the TADA Act is substantive evidence against the co-accused, abettor or conspirator jointly tried with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of such confessional statement and found A-1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arivu) guilty of offences under Section 120B read with Section 302 IPC and altered death sentence of A-1, A-9, A-10 and A-16 to life imprisonment while confirming death sentence of A-2, A-3 and A-18. 702. Brother Wadhwa, J. on consideration of all the aforementioned confessions and other evidence against the appellants confirmed conviction of only A-1, A-2, A-3 and A-18 under Section 120B read with Section 302 I.P.C. and confirmed death sentence of all of them while acquitting all other appellants. 703. In the view I have taken in the light of the above discussions and on examining the said statements of confession and the evidence, both oral and documentary, on record, it would be duplication to record here the same reasoning over again on the question of confirmation of conviction of appellants, A-1 ,A-2, A-3, A-9, A-10, A-16 and A-18. In so far as the conviction of any other appellant is concerned it would serve no practical purpose and will be only of academic interest and an exercise in futility. I, therefore, consider i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case.... In many cases, the extremely cruel and beastly manner of the commission of murder is itself a demonstrated index of a depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that 'special reasons' can legitimately be said to exist. (Emphasis supplied) 707. In Machhi Singh and Ors. v. State of Punjab 1983 Cri LJ 1457 the following observations of Thakkar, J., speaking for a three-Judge Bench of this Court, are worth noticing. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. In such a situation the community feels that for the sake of self preservation the killer has to be killed and it m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y precision and that has to be determined having regard to the facts and circumstances of each case. If a case falls in the category of 'rarest of the rare case' it would justify the requirement of special reasons. But again in deciding whether a case falls within 'rarest of the rare case', the Court has to consider both aggravating as well as the mitigating circumstances in each case in the light of the above noted principles. 711. In numerous cases these principles are being applied. There is no need to multiply the cases here. It is now time to address to the facts of the case. 712. On applying the well-settled principles laid down by this Court, Brother Thomas, J, felt that the confirmation of death sentence awarded by the Designated Court to A-2, A-3 and A-18 is justified whereas brother Wadhwa, J. on the same principles confirmed the death sentence awarded by the Designated Court to A-1, A-2, A-3 and A-18. So far as the confirmation of death sentence of A-2. A-3 and A-18 is concerned both the learned brethern concur and I record my respectful agreement with their conclusions. The difference of opinion between them is with regard to confirmation of death sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory action including killing of leaders. Even on May 2, 1991, she felt that the said persons were going to assassinate the leaders and she voluntarily participated thereafter and attended the meeting addressed by Shri V.P. Singh on the night of 7th May, 1991 in Madras. She had never been free from the feeling that Sivarasan, Murugan, Dhanu and Subha had come for a dangerous mission and after the meeting of Mr. V.P. Singh it had become clear to her that Dhanu and Subha had come for a dangerous mission. She was, however, closely associated with them. On 19th May itself, according to her Sivarasan came to her house along with a clipping of an evening newspaper of Tamil Nadu in which there was news of the visit of Shri Rajiv Gandhi to Tamil Nadu for election campaign. He said that they had come only for that and that they would attend the meeting. She entertained strong feeling about the danger ahead after briefing of Sivarasan about attending the meeting of Shri Rajiv Gandhi at Sriperumbudur on 21st May, 1991. On 21st May, 1991 at about 3.45 p.m. Subha told her that Dhanu was going to create history that day by assassinating Shri Rajiv Gandhi and that they would be very happy if she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sinate Shri Rajiv Gandhi who was himself a young popular leader so much loved and respected by his fellow citizens and had been the Prime Minister of India. The conspirators including A-1 (Nalini) had nothing personal against him but he was targeted for the political decision taken by him as the Prime Minister of India. She inspite of being an Indian citizen joined the gang of conspirators and engaged herself in pursuit of common intention to commit the crime only because she was infatuated by the love and affection developed for A-3 (Murugan), and thus played her part in execution of the conspiracy which resulted in the assassination of Shri Rajiv Gandhi and death of many police officers and innocent citizens including a small girl. For a person like A-1, taking into consideration all the mitigating circumstances, in my view, there is no room for any leniency, kindness and beneficence. 719. On the facts of this case, discussed above, once A-1 (Nalini) is found to fall in the rarest of the rare case, declining to confirm the death sentence will, in my view, stultify the course of law and justice. 720. It is apt to quote here the following observations of this Court in Mahesh v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd their death sentence is commuted to life imprisonment and their appeals are allowed to this extent. 725. The death sentence awarded to A-1 (Nalini), A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) is confirmed the death sentence of A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) agreeing with Thomas, J. as well as Wadhwa, J. and the death sentence of A-1 (Nalini) agreeing with Wadhwa, J. Their appeals are dismissed and Death Reference is accordingly answered. (S.S.M. Quadri) *** ORDER 726. The conviction and sentence passed by the trial court of the offences of Section 3(3), Section 3(4) and Section 5 of the TADA are set aside in respect of all those appellants who were found by the trial court guilty under the said counts. 727. The conviction and sentence passed by the trial court of the offences under Section 212 and 216 of the Indian Penal Code , Section 14 of the Foreigners Act, 1946, Section 25(1-5) of the Arms Act, Section 5 of the Explosive Substance Act, Section 12 of the passports Act, and Section 6(1-A) of the Wireless and Telegraph Act, 1933, in respect of those accused who were found guilty of those offences, are confirmed. If they have already undergone the period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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