# 15 (ADDL.) S.C.R. 891 ABUBUCKER SIQQIQUE AND ANR v. THE STATE REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, CBl/SCB/CHENNAI, TAMIL NADU

- **Citation:** [2010] 15 S.C.R. 891
- **Court:** Supreme Court of India
- **Decided:** 2010-12-06
- **Case number:** Criminal Appeal No. 1374 of 2007
- **Bench:** B. Sudershan Reddy, Surinder Singh Nijjar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-891-abubucker-siqqique-and-anr-v-the-state-represented-by-the-26505
- **Pages:** 32

## Headnote

c
Penal Code, 1860 - s. 120-B rlw ss. 153A, 201, 302, 326,
324, 419, 436 - Explosives Acy 1884 - s. 9(B)(1)(b) -
Explosive Substances Act, 1908 - ss. 3, 4, 5 and 6 - Terrorist
and Disruptive Activities (Prevention) Act, 1987 - ss. 3(2)(i)
and (ii), s. 3(3) - Conspiracy allegedly hatched amongst D
appellants and others, subsequent to Babri Masjid demolition
- Alleged procurement of gelatin sticks and other materials
and bomb manufactured using explosive,substances - Bomb
used to destroy Headquarters of a Hindu organization .,..
Destruction of the building, death of eleven persons and E
injuries to seven - Trial court convicting the appellants on
basis of confessional statement as also the evidence that
explosion was caused only by ROX and PETN and gelatin
sticks were not used - Conviction uls. 120-B rlw ss. 153A, 201,
302, 326, 324, 419, 436, s. 9(8)(1)(b) of the Explosives Act,
F
ss. 3, 4, 5 and 6 of the Explosives Substances Act and s.
3(2)(i) and (ii) ands. 3(3) of the TADA Act with sentence of
life imprisonment - On appeal, held: No evidence to link the
appellants with the explosion - Except for the confessional
statements, no other independent evidence with regard to the G
participation of the accused in the conspiracy and the
particular role played by them - Bomb was made of ROX and
PETN but no trace of gelatin was found from the scene of
crime - Prosecution could only prove that the appellants had
891
H
892
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
procured gelatin sticks and detonators from place 'G' but traces
of said explosives could not be found from the scene of
occurrence -
Thus, order of conviction and sentence set
aside - Evidence.
8
According to the prosecution, after the demolition of
the Babri Masjid, the appellants alongwith the other
accused entered into a conspiracy for committing
terrorist acts at various places against Hindus. In order
to strike terror they decided to cause explosions with the
C intent to cause destruction to the property belonging to
the Hindu community and the people present there. In
pursuance thereof, the appellants and their accomplices
went to place 'G' and procured 13 kgs of gelatin and other
materials. Two explosive bombs were assembled. The
first and the second attempt to explode the b.omb failed.
D The conspirators succeeded in the third attempt which
resulted in death of many and destruction of the
Headquarters of a Hindu Organization. AS and A14 stood
outside the building, the office of a Hindu Organization.
A15 and A17 carried the bombs in the building and left
E the place. The trial court on basis of the confessional
statements made by the accused as also the evidence
that explosion was caused only by ROX and PETN and
that the gelatin sticks were not used, convicted the
appellants under Section 120-8 IPC rlw Sections 153A,
F
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), (ii) and Section 3(3)
of the TADA Act and sentenced them to life
imprisonment. The other accused were held liable only
G for the acts of either promoting enmity among the
religious groups or harbouring the accused before and
after the blast. Four accused were acquitted. Therefore,
the instant cross appeals were filed.
H
Allowing the appeals filed by the accused and
ABUBUCKER SIQQIQUE v. STATE REP. BY i)Y.
893
SUPDT. OF POLICE
dismissing the appeal filed by the State, the Court
A
HELD: 1. In the instant case, there is no direct
evidence of the crime. The prosecution case hinges on
circumstantial evidence. Even in cases where no direct
evidence is available in the shape of eye-witnesses etc., 8
a conviction can be based on circumstantial evidence
alone. [Para 11] [907 -F]
Hanumant Govind Nargundkar vs. State of M. P. 1952
SCR 1091; Naseem Ahmed v. Delhi Admn. (1974) 3 SCC
668 - referred to.
C
2.1 The contents of the confessional statements if
true, would indicate that all the accused and the
appell

## Text

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(2010] 15 (ADDL.) S.C.R. 891
ABUBUCKER SIQQIQUE AND ANR.
A
v.
THE STATE REPRESENTED BY THE DEPUTY
SUPERINTENDENT OF POLICE, CBl/SCB/CHENNAI,
TAMIL NADU
(Criminal Appeal No. 1374 of 2007)
B
DECEMBER 06, 2010
[B. SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
c
Penal Code, 1860 - s. 120-B rlw ss. 153A, 201, 302, 326,
324, 419, 436 - Explosives Acy 1884 - s. 9(B)(1)(b) -
Explosive Substances Act, 1908 - ss. 3, 4, 5 and 6 - Terrorist
and Disruptive Activities (Prevention) Act, 1987 - ss. 3(2)(i)
and (ii), s. 3(3) - Conspiracy allegedly hatched amongst D
appellants and others, subsequent to Babri Masjid demolition
- Alleged procurement of gelatin sticks and other materials
and bomb manufactured using explosive,substances - Bomb
used to destroy Headquarters of a Hindu organization .,..
Destruction of the building, death of eleven persons and E
injuries to seven - Trial court convicting the appellants on
basis of confessional statement as also the evidence that
explosion was caused only by ROX and PETN and gelatin
sticks were not used - Conviction uls. 120-B rlw ss. 153A, 201,
302, 326, 324, 419, 436, s. 9(8)(1)(b) of the Explosives Act,
F
ss. 3, 4, 5 and 6 of the Explosives Substances Act and s.
3(2)(i) and (ii) ands. 3(3) of the TADA Act with sentence of
life imprisonment - On appeal, held: No evidence to link the
appellants with the explosion - Except for the confessional
statements, no other independent evidence with regard to the G
participation of the accused in the conspiracy and the
particular role played by them - Bomb was made of ROX and
PETN but no trace of gelatin was found from the scene of
crime - Prosecution could only prove that the appellants had
891
H
892
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
procured gelatin sticks and detonators from place 'G' but traces
of said explosives could not be found from the scene of
occurrence -
Thus, order of conviction and sentence set
aside - Evidence.
8
According to the prosecution, after the demolition of
the Babri Masjid, the appellants alongwith the other
accused entered into a conspiracy for committing
terrorist acts at various places against Hindus. In order
to strike terror they decided to cause explosions with the
C intent to cause destruction to the property belonging to
the Hindu community and the people present there. In
pursuance thereof, the appellants and their accomplices
went to place 'G' and procured 13 kgs of gelatin and other
materials. Two explosive bombs were assembled. The
first and the second attempt to explode the b.omb failed.
D The conspirators succeeded in the third attempt which
resulted in death of many and destruction of the
Headquarters of a Hindu Organization. AS and A14 stood
outside the building, the office of a Hindu Organization.
A15 and A17 carried the bombs in the building and left
E the place. The trial court on basis of the confessional
statements made by the accused as also the evidence
that explosion was caused only by ROX and PETN and
that the gelatin sticks were not used, convicted the
appellants under Section 120-8 IPC rlw Sections 153A,
F
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), (ii) and Section 3(3)
of the TADA Act and sentenced them to life
imprisonment. The other accused were held liable only
G for the acts of either promoting enmity among the
religious groups or harbouring the accused before and
after the blast. Four accused were acquitted. Therefore,
the instant cross appeals were filed.
H
Allowing the appeals filed by the accused and
ABUBUCKER SIQQIQUE v. STATE REP. BY i)Y.
893
SUPDT. OF POLICE
dismissing the appeal filed by the State, the Court
A
HELD: 1. In the instant case, there is no direct
evidence of the crime. The prosecution case hinges on
circumstantial evidence. Even in cases where no direct
evidence is available in the shape of eye-witnesses etc., 8
a conviction can be based on circumstantial evidence
alone. [Para 11] [907 -F]
Hanumant Govind Nargundkar vs. State of M. P. 1952
SCR 1091; Naseem Ahmed v. Delhi Admn. (1974) 3 SCC
668 - referred to.
C
2.1 The contents of the confessional statements if
true, would indicate that all the accused and the
appellants, in particular, had entered into a conspiracy for
committing the violent and terrorist acts against a 0
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 E
murder. They were also intending to cause destruction
to the property belonging to the Hindu community. In
furtherance of the aim, the participants in the conspiracy,
the appellants in particular, and their accomplices had
been charged with the task of procuring high explosives. F
For that purpose, they went to place 'G'; and procured
13 kgs of gelatin. 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. G
The bomb was dismantled and kept in the house of A18
(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, when A15 and A17 carried the two bombs H
894
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A into the building. They deposited the bombs in the
building and exited from there. They waited outside for
half an hour till the bomb exploded, resulting in the
destruction of the Headquarters of the Hindu
Organization. [Para 14] [910-8-G]
B
2.2 Except for the confessional statements, there was
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 and A17 had carried the two suitcases
C inside the building. Therefore, it is apparent that even
according to the prosecution version, they could have
only carried bombs made from gelatin. Upon
investigation and according to the evidence, which was
recorded in the trial court itself, it was established that the
D bomb which caused the damage consisted only of ROX
and PETN. This is also the conclusion In the report
submitted by the Director, CFSL. [Paras 16 and 17] [911C-F]
E
2.3 The trial court, without any cogent evidence,
accepted the submission of the prosecution that only
two persons-A15 and A18 (absconding accused), knew
about the procurement of ROX and PETN. Thereafter, the
trial co1,1rt quite erroneously observed that AS in his
F confessional statement had indicated that gelatin sticks,
detonators and "other explosives" were procured. Having
said so, the trial court without any basis accepted the
contention of the prosecution that other explosives could
have been ROX, PETN and merely because the source
G could not be proved it cannot be said that such
explosives were not used. This conclusion was reached
by the trial court inspite of the evidence of PW-223, the
investigating' officer. [Para 20] [916-D-F]
2.4 The conclusion by the trial court does not explain
H as to what happened to 13 Kgs of Gelatin, which was
ABUBUCKER SIQQIQUE v. STATE REP. BY DY.
895
SUPDT. OF POLICE
procured ,from place 'G'. It also does not explain as to A
why only traces of ROX were found in dead bodies,
clothes and parts of the building. Not a trace of Gelatin
was found in the building. In none of the confessional
statements, it has been stated about any other explosives
being procured, yet the trial court concluded that other B
explosive material has also been procured. The
conclusion is clearly without any factual basis nor
supported by any evidence. [Para 22) [917-G-H]
2.5 On a conjoint reading of the entire evidence, the C ~
trial court clearly recorded the conclusion that only ROX
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 the place 'G' and
not ROX and PETN. Such evidence would clearly destroy D
the very· foundation of the prosecution case, which
proceeds on the basis that the gelatin and the detonators
were procured in place 'G' was the material from which
the bombs were manufactured, which were responsible
for the explosion. Even according to the trial court, the E
exploding bomb consisted of ROX and PETN. Having
recorded the said conclusion that trial court without any
justification concluded that such evidence would only
affect the evidentiary value and truthfulness of the
confessional statements. The trial court having correctly
F~
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. The trial court correctly observed
that the prosecution ought to have investigated the case G
in the angle of the usage of the ROX, PETN etc. Even
after making such an observation, the trial court
erroneously went on to convict the, appellants who hacf
procured only Gelatin ahd Detonators from place 'G'.
[Paras 23 and 24) [918-C-E; 919-C-D]
H
896
SUPREME COURT REPORTS [2010) 15 (ADDL) S.C.R
A
2.6 The submission that the appellants not being
B
scientists, referring to the explosive substance as gelatin
as opposed to ROX would not be fatal, cannot be
accepted. The confessional statements should be read
from the point of view of a layman. [Para 25] [919•E]
2.7 The observations of the trial court that 'other
materials' could have been ROX and PETN is perverse.
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 reveals that they had gone
C to place 'V' to purchase "gun powder" for the preparation
of the bomb. Then they went to place 'G' and procured 8
kgs of gelatine. Later they had procured 5 kgs of
"gunpowder". The confessional statement of A5 only
reveals that they had procured gelatine, gunpowder and
D 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
procurnd ROX and PETN-the materials with which the
E bomb made for blasting the building situated at 'N' Street
was made. [Para 26] (920-E-H; 921-A]
2.8 The most important portion of the charge levied
was "procurement explosives and other materials". It is
F
not in dispute that explosives were procured from place
'G'. The confessional statement of A 1 and A5 are
unequivocal that only gelatin sticks and detonators were
bought from place "G' from a licensed shop owner PW
112 (declared hostile). The prosecution has not been able
G to ascertain as to how the appellants had access to ROX.
The trial court had accepted that as only two persons
namely A 15 (died) and absconding accused 'MA' knew
about the source from where ROX was procured, the
other three accused-A 5, A 14 and A 17 who were closely
associated with them also knew about it. The observation
H
ABUBUCKER SIQQIQUE v. STATE REP. BY DY.
897
SUPDT. OF POLICE
-of'the trial court is merely conjectural. The conclusion of A
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 8
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. [Para 27) [921-E-H; 922-A·
BJ
2.9 It is true that the prosecution case was that
explosive substances were used to make bombs. It is not
in. dispute that the instant case was registered against
the 18 persons for blasting the RSS building situated at
c
'N' Street. The bomb was made of ROX and PETN but no D
trace of gelatin was found from the scene of crime. The
prosecution could only prove that the appellant had
procured gelatin sticks and detonators from place 'G' but
the traces of said explosives could not be found from the
scene of occurrence. Thus, there is clearly no evidence E
to link the appellants with the explosion. [Para 28) [921D]
2.10 The prosecution story as put forward does not
inspire confidence on the basis of the material placed on F
record. The conviction and sentence passed against the
appellants are set aside. [Para 29) (922-F]
Chhittar vs. State of Rajasthan 1995 Supp (4) SCC 519;
Ag/moo Nagesia vs. State of Bihar (1966) 1 SCR 134; Devku
Bhikha vs. State of Gujarat (1996) 11 SCC 641 • referred to. G
Case Law Reference:
1995 Supp (4) SCC 519
Referred to
Para 8
(1966) 1 SCR 134
Referred to
Para 8
H
898 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
(1996) 11 sec 641
Referred to
Para 8
I
1952 SCR 1091
Referred to
Para 11
(1974) 3 sec 668
Referred to
Para 11
B
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1374 of 2007.
From the Judgment & Order dated 21.06.2007 of the
Terrorist and Disruptive Activites (Prevention) Act, 1987,
Chennai in Calender Case No. 4 of 1994 in R.C. 16 (S)/93/
C
CBl/SCBiMAS.
WITH
Crl. A. Nos. 552 of 2008 & 1271 of 2009.
D
P.P. Malhotra, ASG, N. Natarajan, Abdul Kalam Bahadur
Shah, A. Venayagan Balan, G. Balaji, Mahalakshmi Pavani,
Abdul Kalam Bahadur Shah (for Mahalakshmi Balaji & Co.),
P.K. Dey, Dr. Shailendra Sharma, Padmalakshmi Nigam,
Madhurima Mridul, Arvind Kumar Sharma for the appearing
E
parties.
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. These appeals have
been filed under Section 19 of the Terrorist and Disruptive
F
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/CBl/SCB/MAS, whereby the learned Judge convicted
the appellants under Section 120-B IPC read with Sections
G
153A, 201, 302, 326, 324, 419, 436 IPC, Section 9(8)(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.
H
ABUBUCKER SIQQIQUE v. STATE REP. BY DY.
899
SUPDT. OF POLICE [SURINDER SINGH NIJJAR, J.]
I I
2. The prosefoutioh tase in brief was as follows:
A ·.
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 B
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 C
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 D
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
E
RSS leaders and also to indulge in acts of violence to promote
enmity between Hindu and Muslims.
3. On 8th July, 1993, A14 Hyder Ali (posing himself to be
Ravi) and A 15 Imam Ali (posing himself to be Sivakumar)
visited Vadacherry (located in the outskirts of VaniyambadiF
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 G
they met Sridhar and after introducing themselves as Ravi and
Sivakumar, expressed their desire to meet him at C.hennai. The
unused bomb was dismantled and kept .in the house of A 18
Mushtaq Ahmed at Jaffarbad in Vaniyarribadi which is nearer
H
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SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
to Vadacherry. Afterwards the duo returned to Chennai. On
29th July, 1993, A5 Abubucker Siddique, A14 Hyder Ali, A15
Imam Ali and A 17 Kaja Nizamuddin went to a house in Porur
and ordered a remote control device. Thereafter they went to
the house of A 18 Mushtaq Ahmed (absconding accused) at
8
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 A'. fl Imam Ali conducted a trial blast at the
house of A 18 Mushtaq Ahmed and thereafter left for Chennai
C
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, 1993A15 Imam Ali and A 17 Kaja Nizamuddin along
with AS Abubucker Siddique and A14 Hyder Ali went to the
D
RSS office Chennai for surveying the place. While A 15 Imam
1
Ali and A 17 Kaja Nizamuddin were inside the RSS office A5 '
Abubucker Siddique and A14 Hyder Ali remained outside. A15
and A 17 could not meet Sridhar as he was out of office.
However they met other office bearers and informed him that
E
they were running a cassette recording company in Alandur,
Chennai and made an official entry of an incorrecU non-existent
address in the register kept as a record of visitors to the RSS
office. On 6th August, 1993 all the above four accused went to
RSS office, Chennai with suitcases containing bombs. On the
F
way, A 15 and A 17 got down near a temple, applied Vibhooti
(white ash) and kum (tilak) on their forehead, stuck photos of
Lord Krishna on their suitcases. Again A 15 and A 17 went
inside the RSS office carrying the suitcases containing bombs
and A5 and A14 remained outside. A5 and A17 enquired about
G
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.
H
ABUBUCKER SIQQIQUE v. STATE REP. BY DY.
901
SUPDT. OF POLICE [SURINDER SINGH NIJJAR, J.]
A 1 S and A 17 went inside and brought the suitcase bombs · A
outside and took it back to the godown of A 1 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 . e
at about 11-12 am all the above four accused went again with
the two suit cases containing the bombs. Again AS and A 14
remained outside, A 1 S and A 17 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 c
came out of the building leaving behind the suitcase bombs.
At about 1 :4S 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. D
Inspector, Chetput, F-S, Police Station, Chennai in crime No.
1137 of 1993 under Section 120-B, 302 326, 153 A IPC,
Section 98(1)(b) of The Indian Explosive Act, 1884 and
Sections 3 And 4 of The Explosive Substances Act, 1908
against unknown persons. Initially the investigation was started
E.
by CBCID, Metro, Chennai. Later on, the investigation was
transferred to CBI on 26th August. 1993 and registered in R.C
No. 16 (S) 93- CBl/SCB/Chennai and investigated by Mr. M.S.
Sundarajan DSp, CBl/SCB/Madras. After the completion of the
investigation, charge sheet dated 8th June, 1994 was filed
F
against 18 accused under Sections 120-B IPC read with
Sections 153-A,201,302,326,324,419,436 IPC, Section
9(8)(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 21st
June, 2007 convicted A 1 Rafiq Ahmed under Section 153A
read with Section 109 IPC, A2 Shahabudeen under Section
G
201 IPC, A4 Abdul Rahim under Section 3(4) TADA Act, AS
H
902
SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A
Abubucker Siddique under Section 1208 read with Sections
153 A, 201, 302, 326, 324, 419, 436 IPC, Section 9(8)(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
8
Mohideen under Section 3(4) TADA Act, A 11 Syed Md 8uhari
under Section 3(4) TADA Act, A12 S.K. Md.Ali under Section
3(4) TADA Act, A14 Hyder Ali under Section 1208 read with
Sections 153A,201,302,326,324,419,436 IPC, Section 9
(8)(1)(b) of Explosive Act, Sections 3, 4, 5 & 6 of Explosives
c Substances Act, Sec 3(2), 3(3) of TADA Act, A15 Imam Ali
(dead), A17 Kaja Nijarnmudin under Section 1208 read with
Sections 153 A,201,302,326,324,419,436 IPC, Section 9
(8)(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
D
S.A.Basha, A8 Ameenuddin Sheriff and A13 Abdul Aslam.
E
Aggrieved by the said judgment, AS 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.
6. We have heard Mr. Natrajan, learned Senior Advocate
for the appellants Mr. P. P. Malhotra on behalf of the respondent
State.
F
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
G
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 :-
H
(i)
Ali the accused had entered into a conspiracy as
ABUBUCKER SIQQIQUE v. STATE REP. BY DY.
903
SUPOT. OF POLICE [SURINDER SINGH NIJJAR, J.]
aUeged in the charge sheet.
A
(ii)
In pursuance of this conspiracy, Abubucker
Siddique A5, Imam Ali (A 15) Hyder Ali (A 14) and
one Mushtaq Ahmed were engaged with the task
of procuring explosives and its accessories,
B
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, c
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 0
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 alongwith the
detonators were required for manufacturing the two
bombs.
E
(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.
F
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, A 1. There, the two bombs were repaired.
On 8th August, 1993, the same two bombs were
again taken to the RSS Headquarters for causing G
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
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904
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
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 :-
B
c
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F
G
H
(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 ROX 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 ROX was
brought. It was also for the prosecution to establish as to
what lias happened to gelatin, which was allegedly
procured by the conspirators
(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 ROX 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,
ABUBUCKER SIQQIQUE v. STATE REP. BY DY. . -SOS --
SUPOT. OF POLICE [SURINDER SINGH NIJJAR, J.]
he relied on the evidence of Mr. M.S. Sundarrajan, the A
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 crossexamination of Mr. K. Sundarrajan, PW.189, who stated
B
that PETN and ROX 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 ROX C
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 ROX or PETN. Mr.
Natarajan submitted that the conclusion, therefore, reached o
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
E
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
· sec 641J.
·
(10) So far as A17 is concerned, Mr. Natarajan submitted
F
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.
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
G
call the explosives as gelatin instead of ROX would not be fatal
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906
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
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
B
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
c 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
0
blast. The confession of A5 and others clearly indicate that
explosive substances were procured. Recovery of high
explosive chemical PETN was also made from the godown of·
A 1, from the well located. in the house of A2 as well as from
the grey colour pant of A 17 as per recovery mahazars. It is not
the prosecution case that only gelatin and detonators were used
E
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 from the dust
F
sweep collected from the godown of A 1 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
G
submitted that the meeting between Sridhar and A14 & A15
at Vadacherry was confirmed by A 15'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 A15 on 8th
July, 1993 at Vadachery recovered from the residence of A3
H
Mukhtar Ahmed at Bangalore confirms the connection between
ABUBUCKER SIQQIQUE v. STATE REP. BY DY.
907
SUPDT. OF POLICE [SURINDER SINGH NIJJAR, J.]
A15 and A3. The visit of A15 Imam Ali posing himself as A
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 B
July, 1993 at Vadachery but in vain. AS in his confession,.· ·
statement had indicated that explosives were procured in
addition to gelatin and detonators and the same could be ROX/
PETN. Merely because the source was not proved it cannot be
hel.d that the same were not used considering the fact that traces c
of RDX/PETN were found in the bodies at the scene of crime.
It was further submitted that the contention of the defence i,yas
totally fallacious that ROX can· be found· only in the Indian Military ..
. During the 'Bombay Bomb Blast' about SO kgs of ROX were
smuggled to India. Further ROX is also used for selective
indu$trial applications like demolition of structures etc. ROX ~
exists ill-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 E \
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
· 11. Undoubtedly, in this case there is no direct evidence F
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 eyewitnesses etc. a conviction can be based on circumstantial G
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:-
908
~UPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R
A
"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
B
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
c
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show
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
0 Naseem Ahmed v. Delhi Admn., (1974) 3 SCC 668 by
Chandrachud J. as follows:
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"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."
I
ABUBtlCKER SIPQIQUE v. STATE REP. BY DY.
909
SUPDT. OF POLICE [SURINDER SINGH NIJJAR, J.]
. 12. The trial c9urt accepts that:-
A
(i) ·
The entire case \of the prosecution is based on
circumstantial evidence and confessions recorded
under Section 15 of TADA Act.
/( .. )
. II
(iii)
· The confessional statements voluntarily made under
B
Section 15 of· TADA Act are admissible in
evidence.
Having held the confessional statements to be
admissible yet the trial court discards part of the
C
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
D
concludes that the evidence indicates that the ·
explosion was caused only by ROX and PETN.
(v)
It is also concluded that gelatin sticks were not
used.
E
(vi)
It is also accepted that in Gudiyatham only gelatin
sticks were purchased and not ROX or PETN.
(vii) The trial court accepted that the aforesaid will have
F
a serious bearing on acceptability of the
confessional statement of the accused and their
involvement of all accused in the conspiracy.
(viii) lnspite of the aforesaid, it is concluded that there
is sufficient evidence to show that the appellants
G
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.
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910
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
13. On the basis of the aforesaid, the trial court concluded
B
that the A5, A 14, A 15andA17 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.
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 J')articular Hindu organization and Hindu places of religious
C 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.
D 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
E 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 A 18 Mushtaq Ahmed
F
(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 8th August, 1993 when A15 Imam Ali and A17 Kaja
Nizamuddin carried the two bombs into the building. They
G 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, Headquarters on 8th August,
1993.
H
15. Quite some time after the explosion, upon investigation,
ABUBUCKER SIQQIQUE v. STATE Ri=P. BY D~.
911
SUPDT. OF POLICE [SURINDER SINGH NIJJAR, J.]
certain arrests were made. A5 Abubucker Siddique was A
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. A 15 has died. A 17 Kaja
Nizamuddin was arrested in some other case and produced "
before the Trial Court on 13th March, 2000 on PT warrant. We B
may notice here that A 14 Hyder Ali and A 17 Kaja Nizamuddin "- r
were also arrested in some other case and that too after two ·
years and 7 years respectively. On interrogation, they made
confessional statements.
16. Ex~epting for the confessional statements, admittedly, C
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 D
to the prosecution version, they could have or.ly 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.
"
E
· 17.