and ANR VS The State represented by The Deputy Superintendent of Police, CBI/SCB/Chennai,
WITH CRIMINAL APPEAL
NO. 552 OF 2008
Kaja Nizamuddin. VS The
State represented by The Deputy Superintendent of Police, CBI/SCB/Chennai, Tamil
WITH CRIMINAL APPEAL
NO. 1271 OF 2009
The State represented
by DSP, CBI, Chennai VS M.P. Rafiq Ahamed & Ors.
appeals have been filed under Section 19 of the Terrorist and Disruptive
Activities (Prevention) Act,1987 (hereinafter referred to as `TADA Act')
against the final judgment and order dated 21st 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,
5and 6 of the Explosives Substances Act and Section3(2)(i) and (ii) and Section
3(3) of the TADA Act and they were sentenced to undergo imprisonment for life.
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 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 the min 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 Hindu Munnani and RSS leaders and
also to indulge in acts of violence to promote enmity between Hindu and Muslims.
8th 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 Siva kumar,
expressed their desire to meet himat Chennai. The unused bomb was dismantled
and kept in the house of A18 Mushtaq Ahmed at Jaffarbad in Vaniyambadi which is
nearer to Vadacherry. After wards the duo returned to Chennai. On 29th July,
1993, A5Abubucker Siddique, A14 Hyder Ali, A15 Imam Ali and 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 suitcase bomb. On 30th July, 1993
A15 Imam Ali andA17 Kaja Nizamuddin along with A5 Abubucker Siddiqueand 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 andA17 could not meet Sridhar as he was
out of office.
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 record of visitors to
the RSS office. On 6th August, 1993all the above four accused went to RSS
office, Chennaiwith suitcases containing bombs. On the way, A15 andA17 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 A17enquired 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 andA17 went inside and brought the suitcase bombs
outside and took it back to the godown of A1 Rafiq Ahmed. On 7th 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. On 8th 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 andA17 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 about1:45 pm there was loud explosions
which resulted in the death of 11 persons, injuries to 7 others and also complete
demolition of the building.
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 AIPC,
Section 9B(1)(b) of The Indian Explosive Act, 1884and Sections 3 And 4 of The
Explosive Substances Act, 1908 against unknown persons. Initially the
investigation was started by CBCID, Metro, Chennai. Later on, the investigation
was transferred to CBI on 26th August, 1993and 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 investigation, charge sheet dated 8th June, 1994 was
filed against 18 accused under Sections 120-B IPC read with Sections
153-A,201,302,326,324,419,436 IPC, Section9(B)(1)(b) of the Explosives Act,
Sections 3, 4, 5 and 6 of the Explosives Substances Act and Section 3 of the
Designated Court No. II TADA Act, 1987(hereinafter referred to as the Trial
Court) by order dated21st June, 2007 convicted A1 Rafiq Ahmed under Section153A
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 120Bread 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) 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 Sections153A,201,302,326,324,419,436 IPC, Section
9 (B)(1)(b) ofExplosive 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 & 6of Explosives Substances
Act, Sections 3(2), 3(3) of TADAAct. The following persons were acquitted
namely A3Mukhtar 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 Criminal Appeal No. 1271 of 2009.
have heard Mr. Natrajan, learned Senior Advocate for the appellants Mr. P.P.
Malhotra on behalf of the respondent State.
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. (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 kgs. of gelatin on 30th July, 1993 and 5 kgs.
on 1st August, 1993. The 13 kgs. of gelatin along with the detonators were
required for manufacturing the two bombs. (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
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 :-
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.
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.
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.
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.
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.
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 are different explosives. This witness also stated
that in gelatin sticks RDX will not be found.
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.
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.
trial court has mis concluded 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 [(196) 11 SCC 641].
far as A17 is concerned, Mr. Natarajan submitted that he was not identified.
His confession was not recorded. A memo was filed in Court on 17th June, 1998
stating that he had died. Therefore, charge against him had abated.
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 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 A5and 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 ofA5
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 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 office of
RSS office on 6th August, 1993 and hand writing expert opinion. The visiting
card given by Sridhar to A15on 8th July, 1993 at Vadachery recovered from the residence
of A3 Mukhtar Ahmed at Bangalore confirms the connection between A15 and A3.
The visit of A15Imam Ali posing himself as Sivakumar in the RSS office on 30th
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 office on 30th July, 1993. It was further submitted the accused persons had
made an attempt to blast a bomb on 8th 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 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.
have considered the submissions of the learned counsel
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 668by 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."
trial court accepts that:-
entire case of the prosecution is based on circumstantial evidence and
confessions recorded under Section 15 of TADA Act.
confessional statements voluntarily made under Section 15 of TADA Act are
admissible in evidence.
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.
analyzing the entire evidence, the trial court concludes that the evidence
indicates that the explosion was caused only by RDX and PETN.
is also concluded that gelatin sticks were not used.
is also accepted that in Gudiyatham only gelatin sticks were purchased and not
RDX or PETN.
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.
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
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.
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 left the premises in which the bomb was to be exploded. The bomb was
dismantled and kept in the house of A18Mushtaq 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 conspirators succeeded. This
attempt took place on 8thAugust, 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 up to the
explosion that destroyed the RSS, Headquarters on 8th August, 1993.
some time after the explosion, upon investigation, certain arrests were made. A5
Abubucker Siddique was arrested on 24th October, 1993. A14 Hyder Ali was
arrested in some other case but was produced before the Trial Court on PT warrant
on 16th August, 1995. A15 has died. A17 Kaja Nizamuddin was arrested in some
other case and produced before the Trial Court on 13th 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.
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 A17Kaja 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 Bombsite.
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 on August
8th, 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. On
Sunday, the 8th August, 1993 at about 1345 hours, the three storied building
was damaged by a loud blast killing 11 persons and injuring 5. On Monday, the
9th 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 27blast 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 Sureshand Shri M Vara Prasad of CFSL,
Hyderabad reached Madras on the morning of 10thAugust, 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, neighbor hood 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 THEEXPLOSION 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
debrismaterial, 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 the crucial clues must be lying in this debris, it was suggested to the
senior officers of the Tamil Nadu Police to transport the entiredebris 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 30lorry 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 forcausing 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),T rinitro toluene (TNT), 2,4,6 trinitrophenylmethyl
nitramine (Tetryl),Nitroglycerine (NG), Cyclotetramethylenetetramine (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
byusing larger quantities and clean-up procedures. In this screening procedure 29positive
response was obtained for both PET Nand RDX in some of the exhibits. It was
also noted that few exhibits gave positive tests onlyfor 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 and230nm to get better
sensitives for individual components. It was noted that the chromatograms at
both these wave lengths gave positive response for the presence ofRDX/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. "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."
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 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.
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."
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, namelyA15 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 in spite 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....."
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
asunder:- "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 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.
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, which were responsible for the explosion on 8th August, 1993.
Even according to the trial court, the 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."
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.
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 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."
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, suitcase, battery box, quartz timer, switch etc. The confessional
statement of A5 Abubucker Siddique reveals that they had gone to Vaniyampadi to
purchase "gunpowder" for the preparation of the bomb. Then they went to
Gudiyatham and procured 8 kgs of gelatine on29.7.93. Later they had procured 5
kgs of "gun powder" 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 bombviz. 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 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.
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 confessional
statements in extenso. It is not in dispute that explosives were procured from
Gudiyatham. The confessional statement of A1 Rafiq Ahmed and A5Abubucker
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
A5Abubucker 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. 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.
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.
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
In view of the
judgment passed in the aforesaid two appeals, this appeal stands dismissed.
[Surinder Singh Nijjar]