Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1374 OF 2007
Abubucker Siqqique and Anr. … Appellants
VERSUS
The State represented by
The Deputy Superintendent of Police,
CBI/SCB/Chennai, Tamil Nadu …Respondent
W I T H
CRIMINAL APPEAL NO. 552 OF 2008
Kaja Nizamuddin. … Appellant
VERSUS
The State represented by
The Deputy Superintendent of Police,
CBI/SCB/Chennai, Tamil Nadu …Respondent
W I T H
CRIMINAL APPEAL NO. 1271 OF 2009
The State represented by
DSP, CBI, Chennai … Appellant
VERSUS
M.P. Rafiq Ahamed & Ors. …Respondents
1
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. These appeals have been filed under Section 19 of
the Terrorist and Disruptive Activities (Prevention) Act,
1987 (hereinafter referred to as ‘TADA Act’) against the
st
final judgment and order dated 21 June, 2007 passed
by the designated Court No. II TADA Act,
16(S)/93/CBI/SCB/MAS, whereby the learned Judge
convicted the appellants under Section 120-B IPC read
with Sections 153A, 201, 302, 326, 324, 419, 436 IPC,
Section 9(B)(1)(b) of the Explosives Act, Sections 3, 4, 5
and 6 of the Explosives Substances Act and Section
3(2)(i) and (ii) and Section 3(3) of the TADA Act and they
were sentenced to undergo imprisonment for life.
2. The prosecution case in brief was as follows:
After the demolition of the Babri Masjid in the month of
December 1992, there were numerous violent incidents
2
in various parts of the country attributed to Muslim
fanatics against Hindu organizations, places of religious
worship and other institutions. During the period from
December 1992 to October 1993, the appellants entered
into a criminal conspiracy at Madras, Vaniyam Padi
Melapalayam, Madurai, Bangalore, Tumkur, Anchal and
other places to commit illegal acts by inciting Muslim
youths to commit acts of violence and terrorism. Such
acts included manufacturing of bombs, exploding them
in various Hindu organizations, places of worship and
other religious institutions, committing murder of
persons likely to be present in the offices of such
organizations and places of worship, to cause hurt to the
inmates therein, to escape after the commission of such
acts, to provide accommodation and shelter to the
conspirators to carry out the object of the conspiracy, to
go into hideouts, to harbour the offenders involved in
such violent acts and to screen the offenders from the
clutches of law. Ahmad Ali (A9) addressed public
meetings and incited Muslim youths to fight against
3
Hindu Munnani and RSS leaders and also to indulge in
acts of violence to promote enmity between Hindu and
Muslims.
th
3. On 8 July, 1993, A14 Hyder Ali (posing himself to
be Ravi) and A15 Imam Ali (posing himself to be
Sivakumar) visited Vadacherry (located in the outskirts of
Vaniyambadi-Vellore District, Tamil Nadu) with the
intention of causing bomb blasts at a public meeting
addressed by one of the Hindu Munnani leaders Sridhar
(PW 118). However they could not execute their plan
since the meeting was over by the time they reached
Vadacherry and the bomb remained unused. However
they met Sridhar and after introducing themselves as
Ravi and Sivakumar, expressed their desire to meet him
at Chennai. The unused bomb was dismantled and kept
in the house of A18 Mushtaq Ahmed at Jaffarbad in
Vaniyambadi which is nearer to Vadacherry. Afterwards
th
the duo returned to Chennai. On 29 July, 1993, A5
Abubucker Siddique, A14 Hyder Ali, A15 Imam Ali and
4
A17 Kaja Nizamuddin went to a house in Porur and
ordered a remote control device. Thereafter they went to
the house of A18 Mushtaq Ahmed (absconding accused)
at Jaffarabad. Together all the aforesaid accused went to
Gudiyatham and purchased gelatin and detonators and
brought it to the house of A18 Mushtaq Ahmed. It is
further the case of the prosecution that A15 Imam Ali
conducted a trial blast at the house of A18 Mushtaq
Ahmed and thereafter left for Chennai on the following
day. They collected the remote control ordered earlier
from the Porur house and checked the same. They then
purchased pen torch cells, one battery box, quartz timer,
switch and some other items required for blasting
th
suitcase bomb. On 30 July, 1993 A15 Imam Ali and
A17 Kaja Nizamuddin along with A5 Abubucker Siddique
and A14 Hyder Ali went to the RSS office Chennai for
surveying the place. While A15 Imam Ali and A17 Kaja
Nizamuddin were inside the RSS office A5 Abubucker
Siddique and A14 Hyder Ali remained outside. A15 and
A17 could not meet Sridhar as he was out of office.
5
However they met other office bearers and informed him
that they were running a cassette recording company in
Alandur, Chennai and made an official entry of an
incorrect/ non-existent address in the register kept as a
th
record of visitors to the RSS office. On 6 August, 1993
all the above four accused went to RSS office, Chennai
with suitcases containing bombs. On the way, A15 and
A17 got down near a temple, applied Vibhooti (white ash)
and kum (tilak) on their forehead, stuck photos of Lord
Krishna on their suitcases. Again A15 and A17 went
inside the RSS office carrying the suitcases containing
bombs and A5 and A14 remained outside. A5 and A17
enquired about Sridhar from Shanmugam, a RSS worker.
A15 and A17 had also talked to Jawahar, another RSS
worker and handed over a letter addressed to Sridhar.
Thereafter they came out of the office leaving behind the
suitcase bombs and waited for about half an hour at a
tea shop. However the bombs did not explode. A15 and
A17 went inside and brought the suitcase bombs outside
and took it back to the godown of A1 Rafiq Ahmed. On
6
th
7 August, 1993, they purchased new battery cells, cells
for torch light and plastic covers which do not conduct
electricity. These were brought for rectification and then
the bombs were again kept ready in both the suitcases.
th
On 8 August, 1993 at about 11-12 am all the above four
accused went again with the two suit cases containing
the bombs. Again A5 and A14 remained outside, A15 and
A17 went inside the RSS office carrying the suitcases the
bombs. Inside the RSS office they met PW1 Srinivasan
and asked about Sridhar. After that they came out of the
building leaving behind the suitcase bombs. At about
1:45 pm there was loud explosions which resulted in the
death of 11 persons, injuries to 7 others and also
complete demolition of the building.
4. Instant case was registered by Mr. A. Rajaram,
Inspector, Chetput, F-5, Police Station, Chennai in crime
No. 1137 of 1993 under Section 120-B, 302 326, 153 A
IPC, Section 9B(1)(b) of The Indian Explosive Act, 1884
and Sections 3 And 4 of The Explosive Substances Act,
7
1908 against unknown persons. Initially the investigation
was started by CBCID, Metro, Chennai. Later on, the
th
investigation was transferred to CBI on 26 August, 1993
and registered in R.C No. 16 (S) 93- CBI/SCB/Chennai
and investigated by Mr. M.S. Sundarajan DSp,
CBI/SCB/Madras. After the completion of the
th
investigation, charge sheet dated 8 June, 1994 was filed
against 18 accused under Sections 120-B IPC read with
Sections 153-A,201,302,326,324,419,436 IPC, Section
9(B)(1)(b) of the Explosives Act, Sections 3, 4, 5 and 6 of
the Explosives Substances Act and Section 3 of the TADA
Act.
5. The Designated Court No. II TADA Act, 1987
(hereinafter referred to as the Trial Court) by order dated
st
21 June, 2007 convicted A1 Rafiq Ahmed under Section
153A read with Section 109 IPC, A2 Shahabudeen under
Section 201 IPC, A4 Abdul Rahim under Section 3(4)
TADA Act, A5 Abubucker Siddique under Section 120B
read with Sections 153 A, 201, 302, 326, 324, 419, 436
8
IPC, Section 9(B)(1)(b) of Explosive Act, Sections 3, 4, 5 &
6 of Explosives Substances Act, Sections 3(2) and 3(3) of
TADA Act, A7 Ahmed Gnaiyar under Section 3(4) TADA
Act, A10 Md. Moosa Mohideen under Section 3(4) TADA
Act, A11 Syed Md Buhari under Section 3(4) TADA Act,
A12 S.K. Md.Ali under Section 3(4) TADA Act, A14 Hyder
Ali under Section 120B read with Sections
153A,201,302,326,324,419,436 IPC, Section 9 (B)(1)(b) of
Explosive Act, Sections 3, 4, 5 & 6 of Explosives
Substances Act, Sec 3(2), 3(3) of TADA Act, A15 Imam Ali
(dead), A17 Kaja Nijammudin under Section 120B read
with Sections 153 A,201,302,326,324,419,436 IPC,
Section 9 (B)(1)(b) of Explosive Act, Sections 3, 4, 5 & 6
of Explosives Substances Act, Sections 3(2), 3(3) of TADA
Act. The following persons were acquitted namely A3
Mukhtar Ahmed, A6 S.A.Basha, A8 Ameenuddin Sheriff
and A13 Abdul Aslam. Aggrieved by the said judgment,
A5 Abubucker Siddique and A14 Hyder Ali filed Criminal
Appeal No. 1374 of 2007. A17 Kaja Nizamuddin filed
Criminal Appeal No. 552 of 2008 and the State filed
9
Criminal Appeal No. 1271 of 2009.
6. We have heard Mr. Natrajan, learned Senior
Advocate for the appellants Mr. P.P. Malhotra on behalf
of the respondent State.
7. Mr. Natarajan has submitted that the trial court has
committed a grave error in convicting the appellants.
According to the learned counsel, there was no legal
evidence on the record to indicate that the appellants
were involved in the explosion which was the subject
matter of the charge sheet of 8th August, 1993. The
entire body of evidence, according to Mr. Natarajan,
relied upon by the prosecution, consists of various
confessional statements recorded by the authorities
under Section 15 of TADA Act. According to him, these
confessions would show that :-
(i) All the accused had entered into a conspiracy as
alleged in the charge sheet.
10
(ii) In pursuance of this conspiracy, Abubucker
Siddique A5, Imam Ali (A15) Hyder Ali (A14) and one
Mushtaq Ahmed were engaged with the task of
procuring explosives and its accessories, making
bombs with them.
(iii) They went to Vaniyampadi in North Arcot District.
There, they associated Mustaq Ahmed who helped
them in procuring the explosive substance namely
gelatin sticks and detonators. They, thereafter,
travelled to Gudiyatham and contacted a licenced
dealer Kamalnathan, PW.112, through a cycle shop
owner Jayasekhar, PW.111 and illegally purchased
the aforesaid explosives. According to the learned
counsel, five of the accused persons have given a
confession on this point. In all, they purchased 8
th
kgs. of gelatin on 30 July, 1993 and 5 kgs. on 1st
August, 1993. The 13 kgs. of gelatin alongwith the
detonators were required for manufacturing the two
bombs.
11
(iv) On 6th August, 1993, the effort to blow up the RSS
Office did not succeed as the bomb did not
detonate. In that attempt, A5, Abubucker Siddique
and A14, Hyder Ali stood outside the RSS Office.
A15, Imam Ali and A17, Kaja Nizamuddin went
inside the RSS Office. On 7th August, 1993, both
the bombs were brought to the godown of Rafeeq
Ahamed, A1. There, the two bombs were repaired.
On 8th August, 1993, the same two bombs were
again taken to the RSS Headquarters for causing
the explosion as narrated above.
8.
According to Mr.Natarajan, the entire foundation of
the prosecution, as narrated above, is destroyed by
the results of examination of the bomb site, by the
committee of experts headed by the committee of
experts headed by the Director of Central Forensic
Laboratory (CFSL) and the evidence of Investigating
officer, M.S. Sundarrajan PW 223 and K.
Sundarrajan PW 189. He submits that :-
12
(1)
After the explosion, the bomb site was examined by
the experts of the prosecution. The evidence of these
experts, consisting of five volumes of exhibits is on the
record. The expert report (Ex.P316) has clearly
concluded that the Improvised Explosive Device (IED)
used was prepared from high explosives. The
explosive devices did not contain gelatin but was/were
made of RDX and PETN.
(2) Investigating Officer M.S. Sundarrajan (PW 223)
and K. Sundarrajan (PW 189) have also stated that at
the site only the presence of RDX and PETN was
detected in the bomb used on 8th August, 1993 and
gelatin was not used.
(3)Mr. Natarajan then submitted that since the
conspirators had only procured gelatin, it was for the
prosecution to establish the source from where RDX
was brought. It was also for the prosecution to
establish as to what has happened to gelatin, which
was allegedly procured by the conspirators.
13
(4) Since the prosecution is unable to answer either of
the two questions, the very substratum of the
prosecution case is destroyed. Apart from the
building, even from the remains of the dead bodies
and the clothes, only traces of RDX and PETN were
found.
(5) In the confessional statements, there is no mention
of any other explosive being procured by the
conspirators. The expression used was other
materials. This expression referred only to the other
materials which were required to assemble the bombs.
(6) The trial court erred in law in reading “other
materials” to mean “other explosives”. In support of
his submission, he relied on the evidence of Mr. M.S.
Sundarrajan, the investigating officer, PW.223.
According to Mr. Natarajan, this witness has admitted
in the cross examination that during the investigation,
he was unable to find out the origin of RDX and PETN.
He also pointed out to the cross-examination of Mr. K.
Sundarrajan, PW.189, who stated that PETN and RDX
14
are different explosives. This witness also stated that
in gelatin sticks RDX will not be found.
(7) Even the trial court had noticed that the evidence
of experts shows that the explosion was caused only
by RDX and PETN and not by gelatin sticks.
(8) The trial court also accepts that even the
confessional statements revealed that what was
purchased at Gudiyatham was only gelatin and not
RDX or PETN. Mr. Natarajan submitted that the
conclusion, therefore, reached by the trial court is
without any legal basis.
(9) The trial court has misconcluded the legal position
while excluding from consideration the exculpatory
part of the confession. In support of this, the learned
counsel relied on Chhittar Vs. State of Rajasthan
[1995 Supp (4) SCC 519]; Aghnoo Nagesia Vs. State
of Bihar [(1966) 1 SCR 134] and Devku Bhikha Vs.
State of Gujarat [(1996) 11 SCC 641].
(10)
So far as A17 is concerned, Mr. Natarajan
submitted that he was not identified. His confession
15
th
was not recorded. A memo was filed in Court on 17
June, 1998 stating that he had died. Therefore, charge
against him had abated.
9. Mr.P.P.Malhotra, learned senior counsel on the
other hand submitted that the terms used by the defence
are scientific terms. The accused had merely said that
they have purchased explosives. They were not scientists
and therefore even if they call the explosives as gelatin
instead of RDX would not be fatal to the case of the
prosecution. He further submitted that the confessions
have to be read from the point of view of a layman. It was
also submitted that merely because the prosecution has
not been able to prove the source of the bomb making
material does not mean bombs were not used or that
they were not planted by them. Thus the case of the
prosecution as roughly summarized by the learned senior
counsel was that there was a conspiracy hatched; bombs
were manufactured using explosive substances. These
bombs were used to destroy the RSS headquarters. It
16
was further submitted that the prosecution had
established that explosives were used, the planting of the
bombs were also proved and it was for that reason that
the prosecution was not required to prove what kind of
explosives were used. It was further submitted that the
prosecution case is that the explosive chemicals were
used for causing the bomb blast. The confession of A5
and others clearly indicate that explosive substances
were procured. Recovery of high explosive chemical PETN
was also made form the godown of A1, form the well
located in the house of A2 as well as from the grey colour
pant of A17 as per recovery mahazars. It is not the
prosecution case that only gelatin and detonators were
used but the prosecution case is that explosive chemicals
were used. On the basis of the confessional statement of
A5 some of the sources of explosives and other materials
were traced. It was further submitted that PETN which
was found from the debris of the bomb blast site was also
recovered form the dust sweep collected from the godown
of A1 where the bomb was prepared, from the well in the
17
house of A2 as well as from the grey colour pant of A17.
As per the expert opinion of Sh. K Sundararajan PW 189,
PETN itself is a highly explosive substance and not
simply a booster as claimed. It was further submitted
that the meeting between Sridhar and A14 & A15 at
Vadacherry was confirmed by A15’s own letter left at the
th
office of RSS office on 6 August, 1993 and hand writing
expert opinion. The visiting card given by Sridhar to A15
th
on 8 July, 1993 at Vadachery recovered from the
residence of A3 Mukhtar Ahmed at Bangalore confirms
the connection between A15 and A3. The visit of A15
Imam Ali posing himself as Sivakumar in the RSS office
th
on 30 July, 1993 and the entry made in the register
giving false non existing address found to be of his own
hand writing corroborates the fact that he visited the RSS
th
office on 30 July, 1993. It was further submitted the
accused persons had made an attempt to blast a bomb
th
on 8 July, 1993 at Vadachery but in vain. A5 in his
confession statement had indicated that explosives were
procured in addition to gelatin and detonators and the
18
same could be RDX/PETN. Merely because the source
was not proved it cannot be held that the same were not
used considering the fact that traces of RDX/PETN were
found in the bodies at the scene of crime. It was further
submitted that the contention of the defence was totally
fallacious that RDX can be found only in the Indian
Military. During the ‘Bombay Bomb Blast’ about 50 kgs
of RDX were smuggled to India. Further RDX is also used
for selective industrial applications like demolition of
structures etc. RDX exists in the form of plasticine putty
and it may not leave any trace or residue like a liquid or
powder substances as in the case of PETN. According to
Mr. Malhotra, the conclusions recorded by the Trial
Court are based on the correct analysis of the entire
evidence. The conviction recorded against the appellants
does not call for any interference.
10. We have considered the submissions of the learned
counsel
19
11. Undoubtedly, in this case there is no direct evidence
of the crime. The prosecution case hinges on
circumstantial evidence. It is an accepted proposition of
law that even in cases where no direct evidence is
available in the shape of eye-witnesses etc. a conviction
can be based on circumstantial evidence alone. The
hypothesis which can form the basis for conviction purely
on circumstantial evidence was stated by this Court in
the case of Hanumant Govind Nargundkar Vs. State of
M.P. , [1952 SCR 1091] . In the aforesaid judgment,
Mahajan, J. speaking for the Court stated the principle
which reads thus:-
“It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of
guilt is to be drawn should in the first instance
be fully established, and all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. Again,
the circumstances should be of a conclusive
nature and tendency and they should be such
as to exclude every hypothesis but the one
proposed to be proved. In other words, there
must be a chain of evidence so far complete as
not to leave any reasonable ground for a
conclusion consistent with the innocence of
the accused and it must be such as to show
20
that within all human probability the act must
have been done by the accused.”
The aforesaid proposition of law was restated in the case
of Naseem Ahmed v. Delhi Admn., (1974) 3 SCC 668
by Chandrachud J. as follows :
“This is a case of circumstantial evidence and
it is therefore necessary to find whether the
circumstances on which prosecution relies are
capable of supporting the sole inference that
the appellant is guilty of the crime of which he
is charged. The circumstances, in the first
place, have to be established by the
prosecution by clear and cogent evidence and
those circumstances must not be consistent
with the innocence of the accused. For
determining whether the circumstances
established on the evidence raise but one
inference consistent with the guilt of the
accused, regard must be had to the totality of
the circumstances. Individual circumstances
considered in isolation and divorced from the
context of the over-all picture emerging from a
consideration of the diverse circumstances and
their conjoint effect may by themselves appear
innocuous. It is only when the various
circumstances are considered conjointly that it
becomes possible to understand and
appreciate their true effect.”
21
12. The trial court accepts that:-
(i)
The entire case of the prosecution is based on
circumstantial evidence and confessions recorded
under Section 15 of TADA Act.
(ii) The confessional statements voluntarily made under
Section 15 of TADA Act are admissible in evidence.
(iii) Having held the confessional statements to be
admissible yet the trial court discards part of the
confessional statement on the ground that they are
not truthful to some extent in respect of the
conspiracy aspect of all the accused and
involvement of all the accused.
(iv) After analyzing the entire evidence, the trial court
concludes that the evidence indicates that the
explosion was caused only by RDX and PETN.
(v) It is also concluded that gelatin sticks were not
used.
(vi) It is also accepted that in Gudiyatham only gelatin
sticks were purchased and not RDX or PETN.
22
(vii) The trial court accepted that the aforesaid will have
a serious bearing on acceptability of the
confessional statement of the accused and their
involvement of all accused in the conspiracy.
(viii) Inspite of the aforesaid, it is concluded that there is
sufficient evidence to show that the appellants
committed the overt act of causing the explosion as
claimed by the prosecution. The discrepancy
between the material found at the bomb site and
the material purchased by the conspirators is held
to be not of much importance.
13. On the basis of the aforesaid, the trial court
concluded that the A5, A14, A15 and A17 were liable for
the charges with which they were charged. All the other
accused were liable only for their act of either promoting
enmity among the religious groups or harbouring the
accused before or after the blast.
23
14. In our opinion, the contents of the confessional
statements if true, would indicate that all the accused
mentioned above and the appellants, in particular, had
entered into a conspiracy for committing the violent and
terrorist acts against a particular Hindu organization and
Hindu places of religious worships, religious institutions
and places frequented by Hindus in general. In order to
strike terror in the minds of the Hindus, they had
decided to cause explosions and commit crimes of
violence, such as murder. They were also intent to cause
destruction to the property belonging to the Hindu
community. In furtherance of this aim, the participants
in the conspiracy, the appellants in particular, and their
accomplices had been charged with the task of procuring
high explosives. For that purpose, they went to
Gudiyatham and procured 13 kgs of gelatin as narrated
herein above. From the explosive material collected by
the conspirators, two dangerously explosive bombs had
been assembled. The first attempt to explode such a
bomb did not fructify as the intended target had already
24
left the premises in which the bomb was to be exploded.
The bomb was dismantled and kept in the house of A18
Mushtaq Ahmed (absconding). The second attempt for
exploding these bombs also failed as the detonator was
short circuited. It was the third attempt in which the
th
conspirators succeeded. This attempt took place on 8
August, 1993 when A15 Imam Ali and A17 Kaja
Nizamuddin carried the two bombs into the building.
They deposited the bombs in the building and exited
there from. They waited outside for half an hour till the
bomb exploded. This is the sum total of the sequence of
events leading upto the explosion that destroyed the RSS,
th
Headquarters on 8 August, 1993.
15.
Quite some time after the explosion, upon
investigation, certain arrests were made. A5
th
Abubucker Siddique was arrested on 24 October,
1993. A14 Hyder Ali was arrested in some other case
but was produced before the Trial Court on PT
th
warrant on 16 August, 1995. A15 has died. A17 Kaja
25
Nizamuddin was arrested in some other case and
th
produced before the Trial Court on 13 March, 2000
on PT warrant. We may notice here that A14 Hyder Ali
and A17 Kaja Nizamuddin were also arrested in some
other case and that too after two years and 7 years
respectively. On interrogation, they made
confessional statements.
16. Excepting for the confessional statements,
admittedly, there is no other independent evidence with
regard to the participation of the accused in the
conspiracy and the particular role played by them.
According to these confessions, A15 Imam Ali and A17
Kaja Nizamuddin had carried the two suitcases inside the
building. Therefore, it is apparent that even according to
the prosecution version, they could have only carried
bombs made from gelatin. The lid on the prosecution
case is blown away by the report of forensic experts and
the traces of the explosive material collected at the Bomb
site.
26
17.
Upon investigation and according to the evidence,
which has been recorded in the trial court itself, it has
been established that the bomb which caused the
damage consisted only of RDX and PETN. This is also
the conclusion in the ‘Report on the Investigation of
the Bomb blast which occurred at Chetput, Madras
th
on August 8 , 1993’ submitted by T.R. Baggi,
Director, CFSL, Hyderabad. Relevant extracts of the
aforesaid report are as under:-
“The State Head quarters of R.S.S. is located at
No. 2, M.V. Naidu Street, Chetput, Madras – 8.
th
On Sunday, the 8 August, 1993 at about
1345 hours, the three storied building was
damaged by a loud blast killing 11 persons
th
and injuring 5. On Monday, the 9 August,
1993, Shri J.N. Saksena, IPS, Director
General, Bureau of Police Research &
Development (BPR&D), New Delhi alerted Dr.
T.R. Baggi, Director, Central Forensic Science
Laboratory (CFSL), Hyderabad and permitted
the CFSL team to visit Madras to help the
Tamil Nadu Police in the investigation if a
request is received from them. Later Shri B.
Perumalswamy, IPS, Additional Director
General of Police (Crime), Madras contacted
the Director, CFSL, Hyderabad and requested
him to visit Madras and help the Tamil Nadu
Government in the investigation of the Bomb
27
blast at R.S.S. Head quarters building at M.V.
Naidu Street, Chetput, Madras.
Accordingly, a team consisting of Dr. T.R.
Baggi, Shri Nagraj Shankpal, Shri V Suresh
and Shri M Vara Prasad of CFSL, Hyderabad
th
reached Madras on the morning of 10
August, 1993 to provide the necessary help in
the investigation.
This report presents the details of the extent of
damage to the structure, human life, property,
neighbourhood due to the explosion while
discussing the structural failure pattern. The
report also presents the details of the post-
explosion laboratory investigations particularly
fixing the seat of explosion in the building and
the chemical nature of Improvised Explosive
Device (IED) used in the blast.”
“(B) LABORATORY ANALYSIS FOR THE
EXPLOSION RESIDUES:
It was reported that the police officers collected
several material objects (exhibits) immediately
after the blast as clue materials to be sent to
Forensic Science Laboratory for analysis.
Later the Forensic Science Laboratory
personnel also collected several exhibits for
analysis. The material recovered from the
dead bodies, which consisted of debris
material, which had entered the bodies like
metal pieces, stone pieces, glass pieces, plastic
material, wooden pieces etc., were also sent for
analysis. Portions of the burnt skin of the
deceased and the clothings of the deceased
persons were also sent for analysis. The
debris which was removed by the bulldozer to
extricate the dead bodies was piled up in the
open space in front of the building. As most of
28
the crucial clues must be lying in this debris,
it was suggested to the senior officers of the
Tamil Nadu Police to transport the entire
debris after removing big boulders and stones,
etc., to the Forensic Science Laboratory (FSL)
premises, so that the debris could be served
for parts of any IED initiating devices and
explosion residues. Accordingly, about 30
lorry loads of debris was transported to FSL
premises and sieving process was undertaken.
Preliminary spot tests and Thin Layer
Chromatographic (TLC) tests carried out on the
select exhibits cited above gave positive tests
for Penta Erythritol Tetra Nitrate (PETN)
initially and no positive response was obtained
for other propellants, low and high explosives.
Based on these findings, it was suggested by
FSD/Police Officers of Madras that PETN alone
could have been used in the IED. However,
the CFSL, Hyderabad did not agree with this
view and conveyed that the literature indicates
that only in few cases PETN alone is used for
causing small explosions like safe-cracking or
blasting an automobile etc. Therefore, it was
suggested that as PETN was always used as an
initiator/booster for other high explosives such
as Cyclotrimethylene trinitramine (RDX),
Trinitro toluene (TNT), 2,4,6 –
trinitrophenylmethyl nitramine (Tetryl),
Nitroglycerine (NG), Cyclotetramethylene
tetramine (HMX) etc. An analytical search
could be carried out systematically for one of
these high explosives. Accordingly, some more
screening tests were conducted on large
number of exhibits sent by the police/medical
officers and the debris received in FSL by
using larger quantities and clean-up
procedures. In this screening procedure
29
positive response was obtained for both PETN
and RDX in some of the exhibits. It was also
noted that few exhibits gave positive tests only
for PETN, some exhibits gave positive tests
only for RDX and some exhibits gave positive
tests for both PETN and RDX. However, many
exhibits did not give positive tests for any of
the explosives.”
“It can be seen that the retention times of RDX
and PETN in various exhibits analysed are
tallying with the retention times of the
standard runs on RDX and PETN, confirming
the presence of RDX/PETN in the respective
exhibits.
As a further confirmation, two representative
exhibit extracts were injected into the column,
later, the same exhibits were spiked with RDX
and PETN and chromatographed.
Corresponding increase in peak heights was
noted in each case confirming that the peaks
were essentially of RDX and PETN.
Further the analysis was carried out at two
different wave lengths namely 210nm and
230nm to get better sensitives for individual
components. It was noted that the
chromatograms at both these wave lengths
gave positive response for the presence of
RDX/PETN correspondingly.
The comparison of TLC results and HPLC
results also indicates that in some of the
exhibits only PETN is present, in some of the
exhibits only RDX is present and in some of
the exhibits both PETN and RDX are present.
30
“Based on the site visits, discussions with
Chief Engineer, PWD, visiting team of IIT
Structural Engineers, the medial officers, the
police officers and chemical analysis, the
following conclusions are drawn:-
a) The origin of the blast is in the ground
floor.
b) The seat of the blast is slightly to the
north of the centre of the entry
hall/reading room-library.
c) The seat of explosion is located at a place
above the ground level.
d) The primary damage from the blast is the
failure of the four walls, roof of the entry
hall followed by the failure of the roof of
the prayer hall, east and west walls of the
prayer hall and the two storied porch.
e) The secondary failures consisted of severe
cracking of walls, shattering of
door/window frames and glass panes.
f) The IED used was prepared from high
explosives.
g) The IED contained cyclotrimethylene
trimitramine (RDX) as high explosive and
Penta Erythritol Tetra Nitrate (PETN) as
initiator/booster.
h) Seeing the damage, the RDX charge in
the IED used could be roughly assessed
to the order of about one (1) kg.”
18. Mr. Natarajan, in our opinion, correctly formulated
the two vital questions, viz., (i) where did the RDX come
from? and (ii) what happened to the Gelatin? Since the
evidence of the prosecution itself clearly indicates that
31
the explosive material used in the bomb explosion was
RDX and PETN, it was necessary for the prosecution to
satisfactorily answer the aforesaid two questions.
19. The Trial Court was well aware of the legal position
which is evident from the following observations:
“With regard to the contention of the defence
in respect of RDX, PETN etc., it is true that
when it is the specific case of the prosecution
that the explosives and other materials were
procured from Gudiyatham, Chennai and
other places, it is the duty cast upon the
prosecution to prove the specific allegation
beyond doubt in a very cogent manner without
missing any link in the chain of
circumstances. The prosecution says that
gelatin sticks were procured from Gudiyatham
at Vellore District, but the relevant witnesses
were treated as hostile witnesses. However,
Ex.P.298 and Ex.P.316 and the conclusions
reached therein by the team of experts shows
the usage of RDX in blasting the building in
question.
Presence of high explosives namely RDX, PETN
and other lethal and Hazardous substances
were detected from the dead bodies and other
materials recovered from the debris and also
seized from the accused when subjected for
chemical examination.”
32
20. Having recorded the aforesaid conclusion, the trial
court, without any cogent evidence, accepted the
submission of the prosecution that only two persons
knew about the procurement of RDX, PETN etc, namely
A15 Imam Ali and A18 Mushtaq Ahmed (absconding
accused). Thereafter, the trial court quite erroneously
observed that A5 Abubucker Siddique in his confessional
statement had indicated that gelatin sticks, detonators
and “other explosives” were procured. Having said so, the
trial court without any basis goes on to accept the
contention of the prosecution that other explosives could
have been RDX, PETN and merely because the source
could not be proved it cannot be said that such
explosives were not used. This conclusion is reached by
the trial court inspite of the evidence of the investigating
officer Mr. M.S. Sundarrajan, PW-223. His statement
was as under:-
“…….During the course of my investigation, I
could not find out the origin from where RDX
or PETN was obtained by the accused for
causing blast of RSS Office building in this
case because the main accused Imam Ali and
33
Hyder Ali were not available to me for my
investigation at the relevant point of time to
throw light about this. From the examination
of other accused persons, I could not get
details about the particulars of RDX or PETN.”
So also during the cross-examination of PW 189 Mr.K.
Sundarrjan has stated as under:-
“…….PETN and RDX are different articles. In
Gelatin sticks RDX will not be found…..”
21. Upon noticing the aforesaid evidence the trial court
quite rightly concludes that
“a conjoint reading of the above shows that
RDX and PETN are different materials in
composition, differing from that of gelatin. In
Gelatin sticks RDX or PETN will not be found.
Therefore, the prosecution ought to have
investigated the case in the angle of the usage
of the RDX, PETN etc., in the instant bomb
blast.”
But having recorded the aforesaid conclusion, the trial
court again proceeds to record a conclusion which would
be wholly without any basis. This conclusion is as
under:-
“However, it will not affect the merits of the
case as high explosives were also stated to
34
have been procured and used in addition to
Gelatin sticks. But the source from where
these materials were purchased is said to have
been within the exclusive knowledge of Mustaq
Ahamed (absconding accused) and A15 Imam
Ali (since dead), it will have some bearing on
the reliability and acceptability of the
confession statements of the accused to some
extent as aforesaid.”
22. The aforesaid conclusion does not explain as to what
happened to 13 Kgs of Gelatin, which was procured
from Gudiyatham. It also does not explain as to why
only traces of RDX were found in dead bodies, clothes
and parts of the building. Not a trace of Gelatin was
found in the building. It is worth noticing here that in
none of the confessional statements, has it been
stated about any other explosives being procured, yet
the trial court concludes that other explosive material
has also been procured. The conclusion is clearly
without any factual basis nor supported by any
evidence.
35
23. We may reiterate here that it is admitted by Mr.
Sundarrajan that the origin from where the RDX or
PETN was obtained by the accused were not
discovered. He also emphatically stated that PETN
and RDX are different articles. It is also stated in his
cross-examination that in Gelatin sticks, RDX will not
be found. On a conjoint reading of the entire
evidence, the trial court clearly recorded the
conclusion that only RDX and PETN and not Gelatin
sticks as claimed by the prosecution were used for the
explosion. It is also noticed that the confessional
statements reveals that what was purchased were
only Gelatin sticks from Gudiyatham and not RDX
and PETN. Such evidence would clearly destroy the
very foundation of the prosecution case, which
proceeds on the basis that the gelatin and the
detonators were procured in Gudiyatham was the
material from which the bombs were manufactured,
th
which were responsible for the explosion on 8
August, 1993. Even according to the trial court, the
36
exploding bomb consisted of RDX and PETN. Having
recorded the aforesaid conclusion that trial court
without any justification concludes such evidence
would only affect the evidentiary value and
truthfulness of the confessional statements. We may
notice here the conclusion as recorded by the trial
court as follows:-
“Now a conjoint reading of the confessional
statements of the accused already said above,
searches made and recoveries effected from the
respective places of the accused, material
seized from the scene of crime, recovery
seizure and observation mahazers therefore
and consequential chemical examination and
its result and the evidence of the experts
therefore shows that what was used for the
explosion was only RDX and PETN and not
gelatin sticks as claimed by the prosecution.
The confessional statements reveals that what
was purchased was only gelatin sticks from
Gudiyatham and not RDX or PETN which has
got a serious bearing on the acceptability of
the confessional statements of the accused
and their involvement of all the accused in the
conspiracy. According to the learned Special
Public Prosecutor only two persons namely
A15 Imam Ali (died) and absconding accused
Mustaq Ahamed knew about it. It follows that
the other three accused namely A5 Abubucker
Siddique, A14 Hyder Ali and A17 Kaja
Nizamuddin who were closely associated with
them also knew about it. It goes without
37
saying that they only conspired together and
did everything for bomb blast.”
24. In our opinion, the trial court having correctly
recorded the conclusion in the earlier part of the
paragraph, unnecessarily and without any basis diluted
the same and restricted it only to the reliability of the
confessional statement. We are of the considered opinion
that the Trial Court correctly observed that “the
prosecution ought to have investigated the case in the
angle of the usage of the RDX, PETN etc.” Even after
making such an observation, the Trial Court erroneously
goes onto convict the appellants who had procured only
Gelatin and Detonators from Gudiyatham.
25. We are unable to accept the submission of Mr. P.P.
Malhotra that the appellants not being scientists,
referring to the explosive substance as gelatin as opposed
to RDX would not be fatal. According to him, the
confessional statements should be read from the point of
view of a layman. We may refer to certain extracts from
38
the confessional statement of A5 Abubucker Siddique,
which is as follows:-
“Afterwards, we four went to see Mustaq of
Vaniyampadi to purchase gun powder for the
preparation of bomb. They went to
Gudiyatham and bought 8 Kgs. of Gelatin and
some detonators. Imam Ali and Mustaq went
outside and bought an iron box to be suitable
for fitting in a two wheeler. At the house of
Mustaq, Imam Ali conducted a Trial of blasting
the gun powders by setting a timer. On the
same day, we all of us along with Mustaq and
his friend Shakil went to a theatre at
Vaniyambadi and saw an English Film called
“Armour for the action”. While going to the
cinema, Mustaq and Shakil kept the gun
powder and other items in a house near the
Theatre and after seeing the cinema, we took
the items from that house and left for Chennai
in the night and reached Chennai in the next
day morning i.e., 30.07.93.”
“On the next day after our return from
Vaniyambadi, we went to Riche Street and
bought the following items: some pen torch
cells, one battery box, quartx timer, switch and
some items which are required for blasting the
bomb from a box/ suitcase.”
“On 1.8.93, Imam Ali sent me to purchase 5
kgs of gun powder, a box made of iron for the
purpose of making the second bomb and also
told me to meet Mustaq at Jafrabad. He gave
me Rs.275 for this purpose. He also told me to
bring the gun powder from Mustaq’s house
which was bought form Mustaq’s house which
39
was bought for planting bombs at Hindu
Munnani meeting at Vadacherry.”
26. We are of the considered opinion that the
observations of the trial court that ‘other materials’ could
have been RDX and PETN is perverse. In our opinion,
Mr. Natarajan had correctly submitted that the other
items in addition to gun powder were the iron box, suit
case, battery box, quartz timer, switch etc. The
confessional statement of A5 Abubucker Siddique reveals
that they had gone to Vaniyampadi to purchase “gun
powder” for the preparation of the bomb. Then they went
to Gudiyatham and procured 8 kgs of gelatine on
29.7.93. Later they had procured 5 kgs of “gunpowder”
on 1.8.93. We are of the considered opinion that the
confessional statement of A5 Abubucker Siddique only
reveals that they had procured gelatine, gunpowder and
certain other accessories required for blasting a bomb
viz. detonators, switch, battery box, pen torch cells,
quartz timer etc. It is not mentioned in the confessional
statement as to how and when the appellants had
40
procured RDX and PETN i.e. the materials with which the
bomb made for blasting the RSS building situated at No.
1 M.V. Naidu Street was made.
27. It was vehemently argued before us by Mr. Malhotra
that the charge has to be read along with the
confessional statements. We may notice an extract of the
charge relied upon by him. It reads as follows:
“Fifthly: that you A-1, A-2, A-5, A-5 and A-8 in
pursuance of the said criminal conspiracy
during the said period and in the course of the
same transaction and in the furtherance of the
common intention of you A-1, A-2, A-5 and A-
8 and the absconding accused Imam Ali, Hyder
Ali and Kaja Nizamuddin to commit murders
and cause injuries to RSS and Hindu Munnani
leaders and others who were likely to be
present on 8.8.93 at about 1.45 pm at the RSS
Headquarters building procured explosives
and other materials required for preparing the
two suitcase-bombs at godown no 21, Subaiah
Street, Periamet, Madras belonging to A1………
……… ”
We are of the considered opinion that the most important
portion of the aforesaid charge is “procured explosives
and other materials”. We have considered the
41
confessional statements in extenso. It is not in dispute
that explosives were procured from Gudiyatham. The
confessional statement of A1 Rafiq Ahmed and A5
Abubucker Siddique are unequivocal that only gelatin
sticks and detonators were bought from Gudiyatham
form a licensed shop owner PW 112 Kamalnathan
(declared hostile). The prosecution has not been able to
ascertain as to how the appellants had access to RDX.
The Trial Court had accepted that as only two persons
namely A15 Imam Ali (died) and absconding accused
Mustaq Ahamed knew about the source from where RDX
was procured, the other three accused namely A5
Abubucker Siddique, A14 Hyder Ali and A17 Kaja
Nizamuddin who were closely associated with them also
knew about it. The observation of the Trial Court is
merely conjectural. In our opinion, the conclusion of the
Trial Court that the “other materials” as mentioned in the
charge sheet brings in its sweep other explosives like
RDX and PETN is wholly without any basis. The evidence
on the record clearly militates against such a conclusion.
42
Thus even if the charges are read along with the
confessional statement, it would not, in any manner,
improve the intrinsic value of the evidence led by the
prosecution. Suspicion no matter how strong cannot take
the place of legal proof.
28. As submitted by Mr. Malhotra, it is true that the
prosecution case was that explosive substances were
used to make bombs. It is not in dispute that the present
case was registered against the 18 persons for blasting
the RSS building situated at No. 1 M.V. Naidu Street. As
noticed hereinabove the bomb was made of RDX and
PETN but no trace of gelatin was found form the scene of
crime. The prosecution could only prove that the
appellant had procured gelatin sticks and detonators
form Gudiyatham but the traces of said explosives could
not be found from the scene of occurrence. Thus there is
clearly no evidence to link the appellants with the
explosion.
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29. In the result the prosecution story as put forward
does not inspire confidence on the basis of the material
placed on record. Criminal Appeal No.1374 of 2007 and
Criminal Appeal No.552 of 2008 filed by the accused
appellants are, therefore, allowed and the conviction and
sentence passed against the appellants are set aside.
They shall be set free forthwith unless wanted in any
other case.
CRIMINAL APPEAL NO.1271 OF 2009
1. In view of the judgment passed in the aforesaid two
appeals, this appeal stands dismissed.
……………………...J.
[B.Sudershan Reddy]
New Delhi; ………………………..J.
December 06, 2010. [Surinder Singh Nijjar]
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