# > ~ --' ' .J STATE THROUGH SUPERINTENDENT OF POLICE, CBI/SIT ETC v. NALINI AND ORS. ETC. ETC

- **Citation:** [1999] 3 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1999-05-11
- **Case number:** Death Reference case A No. 1 of 1998
- **Bench:** K.T. Thomas, D.P. Wadhwa, Syed Shah Mohammed Quadri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-state-through-superintendent-of-police-cbi-sit-etc-v-nalini-and-ors-etc-etc-17176
- **Pages:** 425

## Headnote

Terrorist and Disruptive Activities (Prevention) ACT. 1987:
A
B
Ss. 15, 21-Evidentiary value of confession recorded by Police Officer C
under S. 15 against its maker and against co-accused, abettor or
Conspirator-Effect of non-obstante clause in S. 15(1)-S. 30 of Evidence
Act, whether excluded-Amending Act 43 of J993-Addition of words "or coaccused, abettor or conspirator" in S. J 5 (1) and deletion of clauses (c) and
(d) of S. 2 J-Effect of-Confession of an accused-Admissibility as a
substantive evidence against himself as well as a co-accused, abettor or D
Conspirator.
S. J 5-Vo/untary Confession-Sufficient time given to accused for
reflection before making confession-Confession recorded shortly before expiry
of remand-Effect of
·
S. 3-Applicability-Conditions for-Mens rea and criminal act-:-
Commission of terrorist act a sine qua non-Intention to overawe the
Government, to strike terror in people, to alienate any s.:tction of the people
or to adversely affect the harmony amongst sections of the people-Intention
and consequence-Distinction between.
Ss. 4(1) & 4(3)--Disruptive activity-Acts preceding the killing such
as advocating, advising, inciting etc. of killing a public servant or any
person bound by oath, and not the act of killing alone, would amount to
disruptive activity. ·
E
F
Ss. 3, 4, J 2 and JS-Confession under S. JS-Accused tried for offences G
under Ss. 3 and 4 as well as under other criminal laws-Even if offences
under Ss. 3 and 4 not made out, confession made under S. JS would continue
to be admissible for offences under other laws.
TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) RULES,
J987:
H
1
A
B
2
SUPREME COURT REPORTS
[1999] 3 S.C.R.
Rule 15(3)-Confession-Omission to ajfzx signature on certain pagesNot fatal since confession corroborated in material particulars by independent
evidence apart from evidence of Co-accused-Ss. 164, 463 Cr. P.C.
EVIDENCE ACT, 1872:
S. 30-Applicability of-Conditions-Difference between S. 30 of
Evidence Act and S. 15 of TADA Act.
S.10-Scope and conditions for applicability of-Principle of agency
between every conspirator and his associate underlies this provisionStatement made by one conspirator admissible against another conspirator
C only during the period of subsistence of agency-Conspirator's connection
with the conspiracy-Not necessarily snapped after his arrest-Existence of
conspiracy-Proof of
PENAL CODE, 1860:
Ss.120-A, 120-B, and 302-Criminal conspiracy-IngredientsD Principles governing law of conspiracy-Mere associates however close or
even knowledge of conspiracy not enough-Agreement essential for offence
of conspiracy.
S.302 r/w, S.120-B-Code of Criminal Procedure, 1973-Ss.354(3)
E and 235(2)-Sentencing~Death sentence or life imprisonment-Test of rarest
of rare case-Court to take into account the crime and the criminal as also
the aggravating and mitigating circu'fnstances-On the facts and circumstances
of the case, Held, per majority: four out of seven accused sentenced to
death-Three accused sentenced to life imprisonment.
F
CODE OF CRIMINAL PROCEDURE, 1973:
S.300-Scope of-Second trial on the ground that some more allegcttions
were not made in the first trial-Not to be allowed-Double jeoparayc...-
Constitution of India, Art, 20(2).
Ss.215 & 465-Charges-Defects in charge-sheet alleged-Powers of
G Reference Court.
S.313-Improper examination of accused-Examination by Reference
Court to correct the error-Scope of
LEGAL MAXIMS
H
(1) Actus non facit reum mens nisi sit rea-App/icability of
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STATE THROUGH CBI v. NALINI
3
(2) Justicia non novit patrem nee matrem-Applicability of
A
(3) "Nemo debet is vexari pro eadem causa"-Meaning and applicability
of
WORDS & PHRASES
"Substantive Evidence", "Shall presume"-Meaning of
On May 21, 1991 in Sriperambadur in Tamil Nadu at 10.20 p.m. a
human bomb exploded which resulted in the death of former Prime Minister
Shri Rajiv Gandhi as also 18 others and leaving 43 pe

## Text

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.J
STATE THROUGH SUPERINTENDENT OF POLICE, CBI/SIT ETC.
v.
NALINI AND ORS. ETC. ETC.
MAY 11, 1999
[K.T. THOMAS, D.P. WADHWA AND SYED SHAH MOHAMMED
QUADRI, JJ.]
Terrorist and Disruptive Activities (Prevention) ACT. 1987:
A
B
Ss. 15, 21-Evidentiary value of confession recorded by Police Officer C
under S. 15 against its maker and against co-accused, abettor or
Conspirator-Effect of non-obstante clause in S. 15(1)-S. 30 of Evidence
Act, whether excluded-Amending Act 43 of J993-Addition of words "or coaccused, abettor or conspirator" in S. J 5 (1) and deletion of clauses (c) and
(d) of S. 2 J-Effect of-Confession of an accused-Admissibility as a
substantive evidence against himself as well as a co-accused, abettor or D
Conspirator.
S. J 5-Vo/untary Confession-Sufficient time given to accused for
reflection before making confession-Confession recorded shortly before expiry
of remand-Effect of
·
S. 3-Applicability-Conditions for-Mens rea and criminal act-:-
Commission of terrorist act a sine qua non-Intention to overawe the
Government, to strike terror in people, to alienate any s.:tction of the people
or to adversely affect the harmony amongst sections of the people-Intention
and consequence-Distinction between.
Ss. 4(1) & 4(3)--Disruptive activity-Acts preceding the killing such
as advocating, advising, inciting etc. of killing a public servant or any
person bound by oath, and not the act of killing alone, would amount to
disruptive activity. ·
E
F
Ss. 3, 4, J 2 and JS-Confession under S. JS-Accused tried for offences G
under Ss. 3 and 4 as well as under other criminal laws-Even if offences
under Ss. 3 and 4 not made out, confession made under S. JS would continue
to be admissible for offences under other laws.
TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) RULES,
J987:
H
1
A
B
2
SUPREME COURT REPORTS
[1999] 3 S.C.R.
Rule 15(3)-Confession-Omission to ajfzx signature on certain pagesNot fatal since confession corroborated in material particulars by independent
evidence apart from evidence of Co-accused-Ss. 164, 463 Cr. P.C.
EVIDENCE ACT, 1872:
S. 30-Applicability of-Conditions-Difference between S. 30 of
Evidence Act and S. 15 of TADA Act.
S.10-Scope and conditions for applicability of-Principle of agency
between every conspirator and his associate underlies this provisionStatement made by one conspirator admissible against another conspirator
C only during the period of subsistence of agency-Conspirator's connection
with the conspiracy-Not necessarily snapped after his arrest-Existence of
conspiracy-Proof of
PENAL CODE, 1860:
Ss.120-A, 120-B, and 302-Criminal conspiracy-IngredientsD Principles governing law of conspiracy-Mere associates however close or
even knowledge of conspiracy not enough-Agreement essential for offence
of conspiracy.
S.302 r/w, S.120-B-Code of Criminal Procedure, 1973-Ss.354(3)
E and 235(2)-Sentencing~Death sentence or life imprisonment-Test of rarest
of rare case-Court to take into account the crime and the criminal as also
the aggravating and mitigating circu'fnstances-On the facts and circumstances
of the case, Held, per majority: four out of seven accused sentenced to
death-Three accused sentenced to life imprisonment.
F
CODE OF CRIMINAL PROCEDURE, 1973:
S.300-Scope of-Second trial on the ground that some more allegcttions
were not made in the first trial-Not to be allowed-Double jeoparayc...-
Constitution of India, Art, 20(2).
Ss.215 & 465-Charges-Defects in charge-sheet alleged-Powers of
G Reference Court.
S.313-Improper examination of accused-Examination by Reference
Court to correct the error-Scope of
LEGAL MAXIMS
H
(1) Actus non facit reum mens nisi sit rea-App/icability of
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STATE THROUGH CBI v. NALINI
3
(2) Justicia non novit patrem nee matrem-Applicability of
A
(3) "Nemo debet is vexari pro eadem causa"-Meaning and applicability
of
WORDS & PHRASES
"Substantive Evidence", "Shall presume"-Meaning of
On May 21, 1991 in Sriperambadur in Tamil Nadu at 10.20 p.m. a
human bomb exploded which resulted in the death of former Prime Minister
Shri Rajiv Gandhi as also 18 others and leaving 43 persons seriously
B
~~
c
According to the prosecution, this was th~ handi work of LTTE because
of its hatred towards Raj iv Gandhi since LTTE believed that it was forced to
be a signatory to the Indo-Sri Lankan accord signed on July 22, 1987. In
accordance with the said accord, Government of India took upon itself certain
role of maintaining peace in Sri Lanka and disarming of LTTE, for which D
purpose the Government of India sent Indian Peace Keeping Force (JPKF).
It was alleged that IPKF committed atrocities against Tamilians in Sri Lanka
which gave rise to a grouse mainly against Rajiv Gandhi, which resulted in
a conspiracy hatched by LITE to eliminate him. LTTE Supremo Prabhakaran
and some important functionaries in LTTE viz. Pottu Amman, Akila and
Sivarasan master minded the plan to kill Rajiv Gandhi and it was executed E
by Sivarasan and Thanu with the back up of other accused. The criminal.
conspiracy was hatched at various places in Sri Lanka and India. Certain
illegal acts were contemplated in furtherance of the conspiracy viz. to infilerate
into India clandestinely, to carry and use unauthorb;ed arms, ammunition
and explosives, to set up and operate unauthorised wireless sets in India for p
communicating with LTTE leaders in Sri Lanka from time to time, to carry
out acts of terrorism and disruptive activities in Tamil Nadu and other places
in India so as to scare and create panic in the minds of the people and thereby
to strike terror in the people; in the course of the said acts, to assassinate
Rajiv Gandhi and others, to cause disappedrance of evidence thereafter and
.
to escape, to screen themselves from being apprehended, to harbour the - G
accused and to escape from the clutches of law and to do other acts necessary
to carry out the objects of the criminal conspiracy as per the needs of the
situation and ultimately to carry out the objects of the abovesaid criminal
conspiracy.
In all 26 accused - 13 Indians and 13 Sri Lankans were charged with H
4
SUPREME COURT REPORTS
[1999] 3 S.C.R.
A for the assasination of Rajiv Gandhi. The Designated Court fram~d 251
charges against the accused. Charge no. 1 was under Section 120lJ read
with Section 302 IPC, which charge is common to all the accused. In respect
of the other 250 charges, the accused were separately tried under different
heads viz. Sections 3,4 and 5 of TADA Act, under various provisions of IPC,
B Sections 3,4 and 5 of the Explosive Substances Act 1908, Section 25 of the
Arms Act, 1925, Section 12 of the Passport Act 1957, Section 14 of the
Foreigners Act, 1947 and under Section (IA) of the Wireless Telegraphy
Act 1933.
Apart from the above said 26 accused, chargesheets were also laid
C against LTTE Supremo Prabhakaran, Chief of Intelligence Wing ofLTTE
Pottu Amman and Deputy Chief of Intelligence Wing of LTTE Akila for
various offences including the main offence under Section 302 IPC read with
Section 120B IPC and Sections 3 and 4 of TADA Act. Steps to apprehend
three of the main accused viz. Prabhakaran, Pottu Amman and Akila did not
succeed and so they were proclaimed as absconding offenders. The charge
D sheet also mentioned 12 other persons as Co-conspirators. Among the 12,
two died on the spot (Thanu and Hari Babu) and the remainingJ-0 persons
died subsequently, the prominent among them being sivarasan. Thus, in the
final charge-sheet filed by CBI, 26 accused were arraigned as members of
the conspiracy which targeted Rajiv Gandhi. The Special Judge who tried the
E case found all the 26 accused-appellants guilty of various <>ffences charged,
the main among them being under Section 302 read with Section 120 IPC.
He convicted all the accused and sentenced them to death.
F
State has filed a death reference case for confirmation of the death
sentence imposed on all the accused.
The criminal appeals have been filed by the appellant-accused.
On behalf of the appellant-accused it was contended that the object of
the conspiracy was to assassinate Rajiv Gandhi and not to commit any
terrorist act or disruptive activity falling under Sections 3 and 4 of TADA.
G Thus, the existence of conspiracy was not disputed; it was only contested as
regards the objects of the conspiracy and who were the members of the
conspiracy. It was contended that the confessions were not voluntary and have
been retracted by the accused; that except for A-15, whose confession was
recorded on the following day of his arrest and in the case of other accused
confessions have been recorded only a day or so, before the police remand
H was to expire, that in the case of A-1 and A-18 mandatory safeguards have
\~
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ST ATE THROUGH CBI v. NALINI
5
been violated; that the confession of one accused could not tiave been used A
for corroboration of the confession of another accused that all the accused
were kept together in a building which was the headquarters of CBI and that
a Sub-Jail was denotified as jail and handed over to CBI and converted into
Police Station and all the accused were transferred there and again kept
together under the control of Special Investigation team of CBI; that infact B
as required by law, the accused should have been kept separated and sufficient
time should have been given to them to reflect if they wanted to make the
confession that all the confessions were post arraigned confessions and even
with reference to Section 10 of Evidence Act the confession of one accused
cannot be used agah1st as the other; that it could not be said that the object
of conspiracy was not accomplished by the assassination of Raj iv Gandhi and C
that the conspiracy was still in existence; that as regards the confession of
A-1 she had referred some of the accused arraigned before the Court including
A-10 though he came into the picture after the ,.ssassination was completed;
that A-1 had denied in her statement under Section 313 Cr.P.C. that her
confession was voluntary; that the fact remained that blank papers were got
signed from her and so her confession did not satisfy the requirement of 19 N D
under S.15 of TADA and Rule 15(3) of TADA Rules; that it is not disputed
that all the confessions were recorded by PW 52, the Superintendent of
Police; that in the confession of A-1 out of 18 pages, only pages 1 to 16 bear
her signatures while pages 17 and 18 which are crucial to the confession
do not bear her signature; that the Police Officer has appended his certificate E
at the end of the confession but his recording of the Certificate is immaterial
if the accused did not append his/her signature at the end of the confession;
thus the omission of signature of A.1 can not cure the defect.
On behalf of the State, it was contended that the non-obstante limb in
Section 15(1) of TADA "notwithstanding anything in the Code or in the F
Indian Evidence Act" is a clearer legislative indicator to permit a confession
made by an accused against the co-accused to be used with the same force
as can be used against the confessor himself; and that the position became
clearer after the sub-section was amended by Act 43 of 1993; that the
amplitude ofS.10 of the Evidence Act is so large as to render any statement G
made by a conspirator as substantive evidence if it has succeeded in confirming
with the other conditions of the Section; that the decision in Kalp~atli Rai's
case needs reconsideration; that the provisions of Sections 15 and 21 of
TADA after their amendment provided that a confession of an accused is now
admissible in evidence against co-accused; that it is the substantive evidence
against the co-accused as well; and that the concept of drawing presumption H
6
SUPREME COURT REPORTS
[1999) 3 S.C.R.
(
A as mentioned in Section 21 no more existed.
L
In the Death Reference, a plea was taken on behalf of the accused, for
not confirming the death sentence on A-1. Itwas pleaded that she is a woman
and is a mother of a small girl who was born during the period of her
B
confinement in jail; that she is very young; that she has also subsequently
regretted her act and her participation was the result of indoctrination; and
that she did not play any major role.
Disposing of the Death Reference and the appeals, the Court,
\
c
HELD : (By the Court)
l. The conviction and sentence passed by the trial Court of the offences
under Sections 3(3), 3(4) and Section 5 of the TADA Act are set aside in
respect of all those appellants who were found by the trial court guilty under
the said counts. [424-D]
D
2. The conviction and sentence passed by the trial court of the offences
under Sections 212 and 216 of the Indian Penal Code, Section 14 of the
Foreigners Act, 1946, Section 25(1-B) of the Arms Acts, Section 5 of the
~
Explosive Substances Act, Section 12 of the Passports Act, and Section 6(1-
\
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A) of the Wireless and Telegraphy Act, 1933 in respect of those accused who
E were found guilty of those offences are confirmed. If they have already
undergone the period of sentence under those counts it is for the jail
authorities to release such of those against whom no other conviction and
'
sentence exceeding the said period have been passed. [424-E-F]
..._
3. The conviction for the offence under Section 120-B read with Section
F 302, Indian Penal Code as against A.1, A.2, A.3, A.9, A.10, A-16 and A.18
is confirmed. [424-F-G]
4. The conviction and sentence for the offences under Section 302 read
.....
with Section 120B passed by the trial Court on the remaining accused are
set aside. [424-G]
G
5. The sentence of death passed by the trial court on A.1, A.2, A.3 and
A.18 is confirmed. The death sentence passed on A.9, A.10 and A.16 is
altered to imprisonment for life~ [424-H; 425-A)
6. Except A.1, A.2, A.3, A.9, A.10, A.16 and A.18 all the remaining
H appellants shall be set at liberty forthwith. (425-B)
(
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ST A TE THROUGH CBI v. NALINI
7
Per Thomas, J.
A
1.1. To constitute any offence under sub-section (2) or sub-section (3)
of Section 3 of TADA of the accused should have either committed a terrorist
act or have done something concerning a terrorist act which is si11e qu" 11011
for convicting the accused under either of the sub-sections. If terrorist act
is absent in the perpetration of any crime it may still amount to certain B
offences under the ordinary law for which there is procedure and penalty
already prescribed by law. But if any such crime should be dealt with under
TADA it must be inter-linked with "terrorist act" as defined thereunder.
(72-D-E)
1.2. "Terrorist act" is defined in Section 2(1)(h) of the TADA, by C
giving "the meaning assigned to it. in sub-section (1) of Section 3" and the
expression "terrorist" is mandated to be construed accordingly. (72-F)
1.3. A reading ofsub-section(l) ofS.3 of TADA shows that the person
who does any act by using any of the substances enumerated in the subsection in any such manner as are specified in the sub-section, cannot be D
said to commit a terrorist act unless the act is done "with intent" to do any
of the four things: (I) to overawe the Government as by law established; or
(2) to strike terror in people or any section of the people; or (3) to alienate
any section of the people; or (4) to adversely affect the harmony amongst
different sections of the people. When the law requires that the act should E
have been done "with intent" to cause any of the above four effects such
requirement would be satisfied only if the dominant intention of the doer is
to cause the aforesaid effect. It is not enough that the act resulted in any of
the four consequences. (73-E-G)
2.1. The legal position remains unaltered that the crucial postulate for F
judging whether an offence is terrorist act falling under TADA or not is
whether it was done with the intent to overawe the Government as by law
established or to strike terror in the people etc. (76-B)
2.2. It is true, LTTE leaders were bitterly critical of"lndia-Sri Lanka
Accord" which was signed no 22.7.1987. Any one who criticised the policy G
of a Government could not be dubbed as a terrorist unless he had done any
of the acts enumerated with the object of deterring the Government from
doing any thing or to refrain from doing anything. (76-D)
2.3. Velluppilai Prabhakaran addressed a meeting on 4.8.1987, the text
of the speech was published which is marked as Ex.t. 354. In the said speech H
A
B
c
D
E
F
8
SUPREME COURT REPORTS
[ 1999] 3 S.C.R
he used strong language to criticise "India-Sri Lanka Accord" and the
manner in which it was made. But no word of hatred was expressed towards
the Government of India though he aired his opposition towards Sri Lankan
Government which he described as "Sinhala racist government". He also
spoke bitterly against the Sri Lankan Tamil leaders who supported the
Accord. [76-E-F]
2.4. The IPKF inducted into Sri Lanka was gradually withdrawn in a
phased manner, which process was commenced during the Prime Ministership
of Raj iv Gandhi himself and continued during the Prime Ministership of V.P.
Singh. The attitude of L TIE towards Government oflndia, during the aforesaid
period, as seen from the editorial of their own official organs, the "Voice of
Tigers" issue dated 19.1.1990, shows that LTTE till then did not contemplate
any action to overawe the Government of India. Of course the top layer of
LTTE did not conceal their ire against Rajiv Gandhi who was then out of
power. In this context it is important to point out what Vellupillai Prabhakaran,
who went underground in Sri Lanka and resurfaced on 1.4.1990 after a
period of 32 months of disappearance had said. The L TTE supremo had told
the newsmen then that they (LTTE) were not against India or the Indian
people but against the former leadership in India who is against the Tamil
liberation struggle and the LTTE. [77-A-B-E-G]
2.5. Nothing else is proved in the case either from the utterances of
the top brass of LTTE or from any writings edited by them that anyone of
them wanted to strike fear in the Government either of Centre or of any
State. [77-H]
2.6. From the aforesaid circumstances it is difficult to conclude that
the conspirators intended, at any time, to overawe the Government of India
as by law established. [78-A]
2.7. So also it cannot be said that the conspirators eve~ entertained an
intention to strike terror in people or any section thereof: The mere fact that
their action resulted in the killing of 18 persons which would have struck
G great terror in the people of India has been projected as evidence that they
intended to strike terror in people. There is no doubt that the aftermath of
the carnage at Sriperumpudur had bubbled up waves of shock and terror
throughout India. But there is absolutely no evidence that any one of the
conspirators ever desired the death of any Indian other than Raj iv Gandhi.
Among the series of confessions made by a record number of accused in any
H single case, as in this case, not even one of them has stated that anybody had
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ST ATE THROUGH CBI v. NALINI
9
the desire or intention to murder any other person along with Rajiv Gandhi A
except perhaps the murderer herself. Of course they should have anticipated
that in such a dastardly action more lives would be vulnerable to peril. But
that is a different matter and one cannot attribute an intention of the
conspirators to kill anyone other than Raj iv Gandhi and the contemporaneous
destruction of the killer also. Even if Sivarasan and the top brass of LTTE B
knew that there was likelihood of more casualties that cannot be equated to
a situation that they did it with an intention to strike terror in any section
of the people. [78,.B-D-E]
2.8. In view of the paucity of materials to prove that the conspirators
intended to overawe the Government oflndia or to strike terror in the people C
of India it will be difficult to sustain the conviction of offences under Section
3 of TADA. [78-F]
Kartar Singh v. State of Punjab, [1994) 3 SCC 569, relied on.
Niranjan Singh Karam Singh Punjabi v. Jitendera Bhimraj Bijava & D
Ors, [1990] 4 SCC 76; Hitendra Vishnu Thakur & Ors. v. State of Maharashtra
& Ors., [1994] 4 SCC 602; Girdhari Parmanand Vadhava v. State cf
Maharashtra, [1996) 11SCC179 and Mohd. Iqbal M Shaikh & Ors. v. State
of Maharashtra, [1998) 4 SCC 494, referred to.
3.1. The killing of a public servant or killing of any other person E
bound by oath would be an offence under the Indian Penal Code. But it must
be noted that such killing, as such, is not a disruptive activity. Certain type
of actions which preceded such killing alone is regarded as a disruptive
activity through the legal fiction created by sub-section (3) of Section 4 of
TADA. Such actions include advocating, advising, suggesting, inciting, F
predicting, prephesying, pronouncing or prompting the killing of such
persons. If there is any evidence to show that any such preceding act was
perpetrated by any of the appellants towards killing of any police officer who
was killed at the place of occurrence, it would no doubt amount to disruptive
activity. But there is no such evidence that any such activity was done for G
the purpose of killing any police personnel. However, there is plethora of
evidence for establishing that all such preceding activities were done by
many among the accused arrayed, for killing Rajiv Gandhi. But unfortunately
Rajiv Gandhi was not then "a person bound by oath under the Constitution
to uphold the sovereignty and integrity of India". Even the Lok Sabha stood
dissolved-months prior to this incident and hence it cannot be found that he H
10
SUPREME COURT REPORTS
[1999] 3 S.C.R.
A was under an oath as a Member of Parliament. The inevitable fall out of the
above situation is that ~one of the conspirators can be caught in the dragnet
of sub-section (3) of Section 4 of TADA. [79-F-H; 80-A-D]
3.2. The prosecution attempted to show that the conspirators intended
to disrupt the sovereignty of India. Emphasis was laid on the confessional
B statements of A-3, A-18 and the photographs proved as M.Os. 256 to 259
which were seized from the bag of A-3. The said items of evidence show that
the photos of Fort St. George, Madras (which houses the Government
Secretariat of Tamil Nadu and the Legislative Assembly & Legislative
Council), Police Headquarters, Central Jail within Vellore Fort etc. had been
C taken and despatched to the LTTE top brass in Sri Lanka. It is too much a
strain to enter a finding, on such evidence that the above activities were
unmistakably aimed at disrupting the sovereignty of India. The sketch of
Vellore Fort (which houses the Central Jail) was drawn up, most probably,
for planning some operation to rescue the prisoners belonging to LTTE who
have been interned therein. That of course would be an offence but not an
D activity which falls within the purview of Section 4 of TADA. Therefore,
-conviction of appellants for offences under Sections 3 or 4 of TADA cannot
be sustained. [80-D-H]
4.1. Section 12 of the TADA enables the Designated Court to jointly
E try, at the same trial, any offence under TADA together with any other
offence "with which the accused may be charged" as per the Code of Criminal
Procedure. Sub-section (2) thereof empowers the Designated Court to convict
the accused, in such a trial, of any offence "under any other law", if it is
found by such Designated Court in such trial that the accused is found guilty
of such offence. (83-B-C]
F
G
4.2. The correct legal position is that the confessional statement duly
recorded under Section 15 of TADA would continue to remain admissible as
for the other offences under any other law whiCh too were tried along with
TADA offences, no matter that the accused was acquitted of offences under
TADA in that trial. (83-F]
Bilal Ahmed kaloo v. State of A.P., [1997] 7 SCC 431and Kalpnath Rai
v. State, [1997] 8 SCC 732, dissented from.
5.1. No doubt, the amendment carried out in Section 15(1) and in
Section 21(1) was in one package. It was done with a definite·purpose. Before
H amendment the Designated Court had a duty to presume that an accused had
--.....
-
STATETHROUGHCBiv.NALINI
11
committed the offence if his co-accused had, in a confession, involved the A
former. The words "shall presume" in Section 21(1) denoted that it was the
duty of the court to draw such presumption. This means, the court should
have treated the confession of one accused as against a co-accused to be
substantive evidence against the latter, and in the absence of proof to the
contrary, the Designated Court Would have full power to base a conviction B
of the co-accused upon the confession made by another accused. [85-E-Gl
5.2. But the amendment of 1993 has completely wiped out the said
presumption against a co-accused from the statute book. Parliament has
taken away such empowerment. After the amendment, the Designated Court
could use the confession of one accused against another accused only if two
conditions are fulfilled: (1) The co-accused should have been charged in the C
same case along with the confessor. (2) He should have been tried together
with the confessor in the same case. Before the said amendment, the
Designated Court had no such restriction as the confession of an accused
co~ld have been used against a co-accused whether or not the later was
charged or tried together with the confessor. Thus the amendment in 1993 D
was a clear climbing down from a draconian legislative fiat which was in the
field of operation prior to the amendment in so far as the use of one confession
against another accused was concerned. The contention that the amendment
in 1993 was intended to make the position more rigorous as for a co-accused
is, therefore, untenable. [85-G-H; 86-A-C)
E
6.1. There are provisions in the Indian Evidence Act which prohibit the
admissibility of certain confessions, e.g. Section 25 of the Evidence Act
prohibited proving any confession made by an accused to a police officer.
Section 26 prohibited proving any confession made. by an accused to any
person while that accused was in the custody of police. Section 27 permitted F
only a very limited part of the information supplied by the accused to a police
officer, whether it amounts to a confession or not. What Section 15(1) of
TADA has done was to remove the said ban against admissibility of confessions
made to police officer and brought it on a par with any other admissible
confession under the Evidence Act. A confession made to a Magistrate is
admissible under t~e Evidence Act, and a confession made by an accused to G
any person other than a police officer, if the accused was not in police
custody, is also admissible under the Evidence Act. (86-E-G)
6.2. The effect of the non obstante clause, when read with the words
''shall be admissible in the trial of such person or a co-accused or abettor
or conspirator" would only mean that the confession made to a police officer H
12
SUPREME COURT REPORTS
(1999] 3 S.C.R.
A under Section 15(1) shall also become a confession like other admissible
confession under the Evidence Act. But it was not even in the legislative
contemplation of Parliament to elevate a confession made to police officer to
a status even higher than a judicial confession recorded by a Magistrate.
[86-A; 87-AI
B
6.3. While considering the evidentiary value of a confession made by
one accused as against another accused apart from S.30 of the Evidence Act,
one aspect that has to be borne in mind is that any confession when it is
sought to be used against another has certain inherent weaknesses. First
is, it is the statement of a person who claims hjmself to be an offender, which
C means, it is the version of an accomplice. Second 'is, the truth of it cannot
be tested by cross-examination. Third is, it is not an item of evidence given
on oath. Fourth is, the confession was made in the absence of the co-accused
against whom it is sought to be used. (87-B-C]
6.4. It is well nigh settled, due to the aforesaid weaknesses, that
D confession of a co-accused is a weak type of evidence. A confession can be
used as a relevant evidence against its maker because Section 21 of the
Evidence Act permits it under certain conditions. But there is no provision
which enables a confession to be used as relevant evidence against another
person. It is only Section 30 of the Evidence Act which, at least, permits the
Court to consider such a confession as against another person under the
E conditions prescribed therein. If Section 30 was absent in the Evidence Act
no confession could ever have been used for any purpose as against another
co-accused until it is sanctioned by other statute. So, if Section 30 of the
Evidence Act is also to be excluded by virtue of the non-obstante clause
contained in Section 15(1) of TADA, under what provision a confession of
F one accused could be used against another co-accused at all? Section 15(1)
of TADA does not say that a confession can be used against a co-accused.
It only says that a confession would be admissible in a trial of not only the
maker thereof but a co-accused, abettor or conspirator tried in the same
case. (87-D-F)
G
6.5. The established position which gained ground for a very long time
is that while a confession is substantive evidence against its maker it cannot
be used as substantive evidence against another person even if the latter is
a co-accused, but it can be used as a piece of corroborative material to
support other substantive evidence. The non-obstante words in Section 15(1)
of TADA are not intended to make it substantive evidence against the nonH maker, particularly after the amendments made in 1993. [88-H; 89-A)
-
-
STATE THROUGH CBI v. NALINI
13
Kashmira Singh v. State of Madhya Pradesh, (1952) SCR 526 and Hari A
Charan kurmi and logia Hajam v. State of Bihar, (1964) 6 SCR 623, relied
on.
Bhuboni Sahu v. The King, AIR (1949) PC 257, referred to.
7.1. Whether a particular accused had ceased to be a conspirator or B
not, at any point of time, is a matter which can be decided on the facts of that
particular case. Normally a conspirator's connection with the conspiracy
would get snapped after he is nabbed by the police and kept in their custody
because he would thereby cease to be the agent of the other conspirators. Of
course, there might be rare cases in which a conspirator would continue to
confabulate with the other conspirators and persists with the conspiracy C
even after his arrest. That is precisely the reason why it may not be possible
to lay down a proposition of law that one conspirator's connection with the
conspiracy would necessarily be cut off with his arrest. (92-C-D)
7.2. In the instant case, prosecution could not establish that the accused
who were arrested, continued to conspire with those conspirators remaining D
outside. Prosecution cannot contend that the confession made by one accused
in,this case can be substantive evidence against another accused under
section 10 of the Evidence Act. At any rate it cannot be held that confessions
made by an accused can be used as substantive evidence against another coaccused on the principle enunciated in Section 10 of the Evidence Act.
7.3. The conclusion that emerges is that confessional statement made
by an 11ccused after his arrest, if admissible and reliable can be used against
a confessor as substantive evidence, but its use against the other co-accused
would be limited only for the purpose of corroboration of other evidence.
[92-G)
Mirza Akabar v. King-Emperor, AIR (1940~ PC 176; Sardul Singh
Caveeshar v. The State of Bombay, [1958) SCR 161 and State of Gujarat v.
Mohammed Atik and Ors., (1998) 4 SCC 351, referred to.
A.1 (Nalini):
8.1. According to the prosecution, A.I is the sole surviving conspirator
who participated in the assassination. She is the daughter of co-accused A.21
and sister of another co-accused A.20. She had fallen in love with accused
no. 3 during the period of conspiracy; their marriage took place on 21.4.91
and she gave birth to a female child. Exhibit P.77 is the confessional statement
E
F
G
of A.1 in which she has stated that Sivarasan brought two girls (Suba and H
14
SUPREME COURT REPORTS
[1999] 3 S.C.R.
A Thanu) and that A.I was made to believe that Raj iv Gandhi was the person
who was responsible for all the atrocities committed on LTTE followers in
Sri Lanka. She has also stated that Sivarasan wanted her to play the role
of chaperone to Suba and Thanu wherever they went. Accordingly, she took
them to a ,meeting in Madras addressed by Shri V.P. Singh. She also took
B them to a ready-made shop and bought a Churidar suit (orange and green
colour) and Dupatta which Thanu was wearing when she died alongwith Rajiv
Gandhi. A.I has also confessed that Sivarasan collected details of topography
of Sriperambadur from her and warned her not to divulge this to any one else
~pd that she was asked to take leave from her office on 21.5.1991 under
some false pretext. She also confessed that she accompanied Suba, Thanu
C and Sivarasan as also Photographer Haribabu to Sriperambadur where Rajiv
Gandhi was to address a meeting. She also stated that Sivarasan told her that
Raj iv Gandhi and Thanu as also Photographer Hari Babu died. Thereafter,
she alongwith Sivarasan and Suba hurriedly left the place and reached
Madras. The Designated Court acted on her confessional statement as valid
D and proved, and relied on that statement. [92-H; 93-A-B-H; 94-A-B; 95-B]
8.2. Exhibit P.77 was recorded in 18 pages, the first 16 pages contained
the signatures of A.I; in the last two pages her signatures are not there.
The requirement that confessional statement shall be signed by the maker
has been substantially complied with despite the slip in obtaining the signature
E in the last two pages. According to P.W. 52 the Superintendent of Police who
recorded the statement, the said slip was an inadvertent omission. But that
omission does not mean that the confession was not signed by A.I. The
contention that the confession was extracted by coercive methods is not
supported by any material. In fact when A.twas produced before the Judicial
F
Magistrate soon after recording the confession she did not even express any
complaint regarding the conduct of any personnel of the Special Investigation
Team. [95-E-F; 96-A]
8.3. Exhibit P.77 is corroborated by the evidence of PW.132 who is a
teacher and is acquainted with A.I. The evidence of PW.I32 was fully believed
G by Trial Judge. There is no reason to take a different view on that evidence.
Its corroborative value is unassailable because A. I herself admitted in her
confessional statement that she made such a disclosure regarding the
assassination of Raj iv Gandhi to PW. I32. Another item of corroborative
evidence is M.O.I44 Video Cassette in which the photograph of A. I could
be discerned and admitted by the defence counsel to be correct. The
H confessional statement of A.I is also corroborated by the two letters exhibit
(
l.
STATE THROUGH CBI v. NALINI
15
~ ...-
P.96 and 95 written by Suba and Thanu jointly of Pottu Amman and Akita. A
PW.179 who was the Manager of a retail textile shop identified Thanu ·.
alongwith the orange and green colour Churidar worn by her, from a
photograph shown to him. He stated that he remembered A.1 because she
..
and the two girls with her insisted on quick delivery of the stitched dress
on the same day. That apart, the I~vestigating officer could trace out PWI 79 only because A.I told him of the place wherefrom the Churidhar was B
purchased. That portion was admitted in evidence under S.27 of the Evidence
Act. [96-E-F)
8.4. PW 96 was an officer in a Company in which A.1 was working.
He has deposed that A.I took half-a-day casual leave on 21.5.199I and left
the office by I2 noon. PW.32 is a woman Sub-Inspector who was deputed to C
do duty at the venue of the meeting to be addressed by Rajiv Gandhi at
Sriperambadur. She was one of the persons injured in bomb-blast. She has
identified from photographs, Sivarasan, Bari Babu as also A.I. There is no
dispute about the genuineness of the photograph. PW.215 has stated in her
evidence that she is a resident of Sriperambadur and on 21.5.1991 she saw D
standing outside her house at about 10.45 p.m. waiting for her Son. She
found two ladies and one male coming to her and they asked for water to
drink. She also deposed that they told her that Rajiv Gandhi died at the
meeting venue. She has also stated that all the three persons went towards
Madras side. She has also identified them from a photograph. PW.103 is an
Auto Rickshaw driver at Thiruvallur. He has deposed that he has dropped E
some persons at the meeting venue at Sriperambadur. Later he identified
them from the photograph, as A.I, Sivarasan and Suba.
[97-H; 98-A-D; 99-A-B)
8.5. The prosecution has succeeded in proving beyond reasonable doubt
that A.I was one of the conspirators and she participated in the assassination F
of Rajiv Gandhi by playing a very active role. [99-D]
A.2 (Santhan Ravi Raj)
9.1. A.2 was arrested in connection with Rajiv Gandhi murder case on
22.7.1991. His confessional statement was recorded on 17.9.1991 by the G
Superintendent of Police under s.15 of TADA, and marked as Exhibit P.104.
In April 1991 he came from Sri Lanka to Tamil Nadu in a group led by
Sivarasan. He was introduced to photographer Bari Babu by Sivarasan. It
seems Vellupillai Prabhakaran had great confidence in A.2 particularly
after the murder of Padmanabha who was leader ofEPRLF, a rival organisation
of Sri Lankan Tamils. The killing was carried out by Sivarasan with the help H
16
SUPREME COURT REPORTS
[1999] 3 S.C.R.
A of useful information supplied to him by A.2. [99-F)
9.2. On the day of Raj iv Gandhi's assassination A.2 met Sivarasan who
w_as preparing himself for going to Sriperambadur. Sivarasan had concealed
a pistol beneath his kurta and checked up from A.2 whether it was visible
from outside. After A.2 said it was not visible Sivarasan left that place. On
B the night of the assassination Sivarasan told A.2 that Raj iv Gandhi was
murdered and that Thami also died. However, only on the next day Sivarasan
revealed to A.2 that Hari Babu also died. In his confessional statement A.2
has narrated that occasions on which he and Sivarasan met. He has also
deposed that Sivarasan wanted him to keep his two bags and conceal them.
C A.2 did accordingly. He had also shifted A.8 to several places to escape from
the police clutches. He had also handed over a wireless set to a person called
Suresh Master. The vivid details contained in the confessional statement,
in all probabilities, must have been supplied by himself because he alone
knew what all he did and where-all he went and whom all he met. The
confessional statement of A.2 is also corroborated by the evidence of PW.120
D and PW. 111. [100-G-H, D-F; 102-A-B)
E
F
9.3. PW.285 was the Superintendent of Police who arrested· A.2. PW.285
deposed that A.2 had told him the place where three plastic bags and one
cloth bag were concealed, Subsequently, these bags were seized. One such
bag contained the clothes and cosmetices belonging to Suba. Another bag
contained certain articles of Sivarasan including a diary maintained by him.
The evidence of other PWs. also corroborated the confessional statement of
A.2. [102-B-D)
9.4. In view of the above, it could be concluded that the prosecution has
succeeded in proving that A.2 was also one of the conspirators in the
conspiracy leading to the assassination ofRajiv Gandhi. [102-H]
A.3 (Murugan @ Dhas)
10.1. In his confessional statement marked Exhibit P.81, A.3 has
G admitted that he joined the suicide Squad of LTTE and came to India in
January 1991, when he was received by Sivarasan. He got sketches of Fort
St.