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Friday, April 11, 2014

TADA Act - Confession - trial court convicted both accused basing on the retracted confessional statement of one of the accused -When the confession statement is not corroborated - no conviction can be placed safely - Apex court held that There is a passing reference in PW-15 Sevi Periyasamy’s evidence that after the blast when he asked A2-Periyasami about the blast, he told him that Lenin, Karalan and Rajaram were responsible for the blast and if he discloses this to anyone, all members of his family would be killed. This part of the statement of PW-15 Sevi Periyasamy is not corroborated by any evidence on record. Thus, it would not be safe to rely on it. We are, therefore, of the opinion that the prosecution has not been able to establish its case against A2-Periyasami beyond reasonable doubt. He must, therefore, get benefit of doubt.= Periyasami s/o. Duraisami Novanagar … Appellant Vs. State represented through the Inspector of Police, ‘Q’ Branch CID, Tiruchirappalli, Tamil Nadu. … Respondent =2014 (April.Part) judis.nic.in/supremecourt/filename=41402

TADA Act - Confession - trial court convicted both accused basing on the retracted confessional statement of one of the accused -When the confession statement is not corroborated - no conviction can be placed safely -  Apex court held that There is a passing reference in PW-15 Sevi Periyasamy’s evidence that  after the blast when he asked A2-Periyasami about the  blast,  he  told  him  that Lenin, Karalan and  Rajaram  were  responsible  for  the  blast  and  if  he
discloses this to anyone, all members of his family would be  killed.   This part of the statement of PW-15 Sevi Periyasamy is not  corroborated  by  any evidence on record.  Thus, it would not be safe to  rely  on  it.   We  are, therefore, of the  opinion  that  the  prosecution  has  not  been  able  to establish its case against A2-Periyasami beyond reasonable doubt.  He  must, therefore, get  benefit  of  doubt.=

 The present appeals filed  under Section  19  of  the  Terrorist  And
Disruptive Activities (Prevention) Act,  1987  (“the  TADA”)   are  directed
against the judgment and order dated  27/06/2012  passed  by  the  Principal
Sessions Judge and Designated Judge under the TADA,  for  Tiruchirapalli  in
Calendar Case No.45 of 1995 in Crime No.307 of 1992 of Vridhachalam  Railway
Police Station.  =
whether the prosecution has established its  case  against  A1-Senthilkumar.
His confessional statement is a major piece of evidence  against  him.   The
question is what is the evidentiary value of  a  confession  recorded  under
Section 15 of the TADA.

21.   In Yakub Abdul Razak Memon, after referring to  several  judgments  of
this Court on the evidentiary value of confession particularly  judgment  of
this Court in Nalini, this Court summed  up  the  position  of  law  on  the
evidentiary value of confession.  The relevant conclusions could be  quoted.

 “105.    To sum up, it can easily be inferred that the position of law on
   the evidentiary value of confession is as under:-


        i) If the confessional statement is  properly  recorded  satisfying
           the mandatory provision of Section 15 of TADA and the Rules made
           thereunder, and if the same is found by the court as having been
           made voluntarily and truthfully  then  the  said  confession  is
           sufficient to base conviction on the maker of the confession.


       ii) Whether such confession requires  corroboration  or  not,  is  a
           matter for the court to consider on the basis of  the  facts  of
           each case.

      iii) With regard to the use of  such  confession  as  against  a  co-
           accused, it has to be held  that  as  a  matter  of  caution,  a
           general corroboration should be sought for but  in  cases  where
           the  court  is  satisfied  that  the  probative  value  of  such
           confession is such that it does not require  corroboration  then
           it may base conviction on the basis of such confession of the co-
           accused without corroboration.  But this is an exception to  the
           general rule of requiring corroboration when such confession  is
           to be used against a co-accused.

       iv) The nature of corroboration required both in regard to  the  use
           of confession against the maker as also in regard to the use  of
           the same against a co-accused is of a general nature, unless the
           court comes to the conclusion that such corroboration should  be
           on material facts also because of  the  facts  of  a  particular
           case.  The degree of corroboration so required is that which  is
           necessary for a prudent man to believe in the existence of facts
           mentioned in the confessional statement.

        v)       xxx        xxx         xxx        xxx”

     It is clear, therefore, that a confessional statement  recorded  under
Section 15 of the TADA, if found to be voluntarily made and is truthful  and
properly recorded, can form the basis of conviction.
Conclusion
So far as A2-Periyasami is concerned, in  his  confessional  statement
A1-Senthilkumar has only stated that Lenin took him to the  house  of  PW-15
Sevi Periyasamy and others joined him there in that house. When  he  reached
there, Lenin informed PW-15 Sevi Periyasamy that they have been sent by  A2-
Periyasami.  Apart from this, there is no reference to A2-Periyasami in  the
confessional  statement  of  A1-Senthilkumar.   PW-15  Sevi  Periyasamy  has
stated that on 22/12/1993 A2-Periyasami came to him and  stated  that  Lenin
and others will visit him and they will stay till night and food  should  be
provided to them.   It  appears  from  the  confessional  statement  of  A1-
Senthilkumar and evidence of PW-15 Sevi Periyasamy  that  A2-Periyasami  did
not participate in manufacturing of bombs, carrying them  to  the  scene  of
offence, planting them under the  railway  bridge  and  causing  the  blast.
There is a passing reference in PW-15 Sevi Periyasamy’s evidence that  after
the blast when he asked A2-Periyasami about the  blast,  he  told  him  that
Lenin, Karalan and  Rajaram  were  responsible  for  the  blast  and  if  he
discloses this to anyone, all members of his family would be  killed.   This
part of the statement of PW-15 Sevi Periyasamy is not  corroborated  by  any
evidence on record.  Thus, it would not be safe to  rely  on  it.   We  are,
therefore, of the  opinion  that  the  prosecution  has  not  been  able  to
establish its case against A2-Periyasami beyond reasonable doubt.  
He  must,
therefore, get  benefit  of  doubt.   
In  the  circumstances,  the  impugned
judgment and order so far as it convicts and  sentences  A1-Senthilkumar  is
confirmed.  Conviction and sentence of A1-Senthilkumar  is  confirmed.   The
impugned judgment and  order  so  far  as  it  convicts  and  sentences  A2-
Periyasami is set aside. He is acquitted.  A2-Periyasami is  on  bail.   His
bail bond stands discharged.
29.   In the  result,  Criminal  Appeal  No.1272  of  2012  is  allowed  and
Criminal Appeal No.787 of 2013 is dismissed.
2014 (April.Part) judis.nic.in/supremecourt/filename=41402
P SATHASIVAM, RANJANA PRAKASH DESAI, RANJAN GOGOI

                                                      REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1272 OF 2012


Periyasami s/o. Duraisami Novanagar     …          Appellant

            Vs.

State represented through
the Inspector of Police, ‘Q’ Branch
CID, Tiruchirappalli, Tamil Nadu.       …          Respondent

                                    WITH

                       CRIMINAL APPEAL NO. 787 OF 2013


Senthilkumar                                 …     Appellant

       Vs.

State of Tamil Nadu                          …     Respondent



                           J  U  D  G  M  E  N  T


(SMT.) RANJANA PRAKASH DESAI, J.


1.     The present appeals filed  under Section  19  of  the  Terrorist  And
Disruptive Activities (Prevention) Act,  1987  (“the  TADA”)   are  directed
against the judgment and order dated  27/06/2012  passed  by  the  Principal
Sessions Judge and Designated Judge under the TADA,  for  Tiruchirapalli  in
Calendar Case No.45 of 1995 in Crime No.307 of 1992 of Vridhachalam  Railway
Police Station.   The  appellant  in  Criminal  Appeal  No.787  of  2013  is
Senthilkumar @ Kumar (‘A1-Senthilkumar’ for convenience).  The appellant  in
Criminal  Appeal  No.1272  of  2012  is  Periyasami  (‘A2-Periyasami’    for
convenience).

2.    According to  the  prosecution,  on  24/10/1992,  PW-10  Ramasamy  was
driving Quilon  Express  (Train  No.6105).   When  the  train  reached  near
Maruvathur Peria Odai  Bridge  No.276,  he  noticed  some  object  over  the
railway track.  He immediately  applied  emergency  brake  and  stopped  the
train.  PW-11 Rajendran Raja, who was  the  Assistant  Driver  stepped  down
from the train along with the guard and  proceeded  to  inspect  the  track.
They saw some boulders placed on the track covered with  green  leaves.   At
that time, they heard a loud noise near the bridge situated  at  a  distance
of 1 K.M.  In the meantime, PW-2 Ganapathy, Station Master  3  of  Sillakudi
Station received information that Quilon Express had started  from  Kallagam
Station  after  crossing  of  Pearl  City  Express,  but  had  not   reached
Palanganatham.  He instructed PW-1 Antonisamy, PW-4  Hazi  Salahudeen,  PW-6
Thangaraj and PW-7 Ponnaian to find out the reason  for  the  delay  of  the
Quilon Express.  They found at  the  place  of  occurrence  the  rails  bent
upwards and the gravel  stones  and  the  sleepers  broken  and  dislocated.
Under the bridge, they saw some papers containing slogans.   They  saw  some
slogans written on the bridge walls.  Some boulders  were  also  found  over
the railway track covered with green leaves.  PW-8 Raja Chidambaram, SEP  at
Kallagam Station also went in search of the train along the track and  found
the train on the northern side of Bridge No.276.  He found  boulders  placed
on the track covered with green leaves.  The sleepers were found broken  and
dislocated and rails found bent upwards.

3.    On information being received from the control  room  about  the  bomb
blast on the railway line, PW-29 Hyder Ali Khan,  Sub-Inspector  of  Police,
Railway, Vridhachalam rushed  to  the  place  of  occurrence.   He  received
complaint [Ex-P1] dated 24/10/1992 from PW-1  Antonisamy  and  registered  a
case being Crime No.307 of 1992 against unknown persons  under  Section  150
of the Indian Railways Act and under Sections 3 and 5 of the Explosives  Act
and Sections 120-B and 124  of  the  IPC.   The  printed  version  of  First
Information Report [Ex-P11] was forwarded  to  Judicial  Magistrate  No.  V,
Tiruchirappalli and a  copy  was  forwarded  to  the  Inspector  of  Police,
Railways, Villupuram for necessary action.  Investigation was  started.   It
appears from the evidence of PW-40 Pattabiraman, the Inspector of Police  of
“Q” Branch CID, Tiruchirappalli that after he took  over  investigation,  he
interrogated PW-15 Sevi Periyasamy.  He got the leads.  Involvement  of  A1-
Senthilkumar,  A2-Periyasami  and  other   accused   was   disclosed.    A1-
Senthilkumar was arrested on 17/12/1993. On his search, five gelatin  sticks
concealed in his right side waist, five  electric  detonators  concealed  in
his left side waist and two pen torch cells from his pocket were  recovered.
 They were seized under Mahazar [Ex-P5].  On  19/12/1993,  the  confessional
statement   of   A1-Senthilkumar   was   recorded   by   PW-37    Ramanujam,
Superintendent of Police, “Q” Branch CID  under  Section  15  of  the  TADA,
after following the necessary  procedure.   A2-Periyasami  was  arrested  on
9/1/1994.

4.    Upon completion  of  investigation,  PW-40  PI  Pattabiraman  filed  a
police report under Section 173 of  the  Code  of  Criminal  Procedure  (for
short ‘Cr.P.C.’) against A1-Senthilkumar, A2-Periyasami, absconding  accused
Rajaram @ Madhavan alleging that A1-Senthilkumar, A2-Periyasami  along  with
absconding accused Rajaram @ Madhavan  and  deceased  Lenin  and  Karalan  @
Nagarajan are members of  “Tamil  Nadu  Viduthalai  Padai”  and  “Thamizhaga
Makkal Viduthalai Padai”, the main object of which was to strike  terror  in
the people by planting bombs to cause derailment  of  trains  and  to  cause
damage to Central and State  Government  properties  by  such  acts  and  to
secede  Tamil  Nadu  from  the  Indian  Union.   It  was  alleged  that  A1-
Senthilkumar, A2-Periyasami, along with the  absconding  accused  Rajaram  @
Madhavan and deceased Lenin and Karalan @ Nagarajan conspired  together  and
A2-Periyasami introduced witness Sevi Periyasamy  to them  at  Duraimangalam
and they manufactured explosive bombs and caused  blast   of  the  rails  of
Bridge No.276 in  between  Kms.  292/6  and  7  situated  between  Kallakudi
Pazhanganatham and Kallagam railway stations on  24/10/1992  at  2.45  hours
with intention to endanger the life of passengers of  Quilon  Express  which
usually crosses the bridge at or about  the  same  time  and  the  explosion
damaged 20 wooden sleepers and rails to a length of 20 feet and  portion  of
concrete structures.  The disaster was averted  because  the  engine  driver
stopped the train noticing the boulders on the rails.  It was  also  alleged
that  on  17/12/1993  A1-Senthilkumar  was  in  unathorised  possession   of
detonators and gelatin  sticks  without  any  permit.   The  report  alleged
various  charges  under  the  TADA,  the  Explosive  Substances   Act,   the
Prevention of Damage to Public Property Act and  the  Railways  Act  against
the accused.

5.    As accused Rajaram @ Madhavan was absconding,  the  case  against  him
was split.  Since it was reported that he had died, his  case  was  disposed
of as having abated.

6.    The trial court framed charge  against  A1-Senthilkumar  for  offences
under Section 120(B) IPC read with Section 3(3)  and  Section  4(1)  of  the
TADA, Sections 3(2) (ii), 4(1) and 5 of the TADA, Sections 3 and  5  of  the
Explosive Substances Act,  Section  150(2)  (b)  of  the  Railways  Act  and
Section 3 read with  Section  4  of  the  Prevention  of  Damage  to  Public
Property Act. As against A2-Periyasami the trial court framed  charge  under
Section 120(B) IPC read with Sections 3(3) and 4(1) of  the  TADA,  Sections
3(3) and 4(1) of the TADA, Section 3  of the Explosive Substances Act,   and
Section 3 read with  Section  4  of  the  Prevention  of  Damage  to  Public
Property Act.

7.    A1-Senthilkumar and A2-Periyasami pleaded not guilty to charges.   Two
defence witnesses were examined to  establish  that  the  police  threatened
them and asked them to produce  A1-Senthilkumar  thus  suggesting  that  A1-
Senthilkumar  was  falsely  implicated.    The   prosecution   examined   41
witnesses.

8.     After  perusing  the   evidence,  the  trial  court   convicted   A1-
Senthilkumar under Section 120(B) IPC read with Sections 3(3)  and  4(1)  of
the TADA, Sections 3(2) (ii), 4(1) and 5 of the TADA, Sections 3  and  5  of
the Explosive Substances Act,  under Section  150(2)  (b)  of  the  Railways
Act, 1989 and  under Section 3 read with Section  4  of  the  Prevention  of
Damage  to  Public  Property  Act  and  sentenced  him   to   undergo   life
imprisonment for offence under Section  150(2)  (b)  of  the  Railways  Act;
rigorous imprisonment for a period of 5 years and to pay fine of  Rs.1,000/-
and in default to undergo rigorous imprisonment for a further  period  of  6
months for offence under Section 120(B) of IPC read with Sections  3(3)  and
4(1) of the TADA; rigorous imprisonment for a period of 5 years and  to  pay
fine of Rs.1,000/- and in default to undergo  rigorous  imprisonment  for  a
further period of 6 months for offence under Section 3(2) (ii) of the  TADA;
rigorous imprisonment for a period of 5 years and to pay fine of  Rs.1,000/-
and in default to undergo rigorous imprisonment for a further  period  of  6
months for offence under Section  4(1) of the  TADA;  rigorous  imprisonment
for a period of 5 years and to pay fine of  Rs.1,000/-  and  in  default  to
undergo rigorous imprisonment for a further period of 6 months  for  offence
under Section 5 of the TADA; rigorous imprisonment for a period of 10  years
and  to  pay  fine  of  Rs.1,000/-  and  in  default  to  undergo   rigorous
imprisonment for a further period of 6 months for offence  under  Section  3
of the Explosive Substances Act; rigorous imprisonment for  a  period  of  5
years and to pay fine of Rs.1,000/-  and  in  default  to  undergo  rigorous
imprisonment for a further period of 6 months for offence  under  Section  4
of the Explosive Substances Act and rigorous imprisonment for  a  period  of
one  year and to pay fine of Rs.1,000/- and in default to  undergo  rigorous
imprisonment for a further period of 2 months for offence  under  Section  3
read with Section 4 of the Prevention  of  Damage  to  Public  Property  Act
(Total fine Rs.7,000/-).   Substantive sentences were to run concurrently.

9.    The trial court convicted A2-Periyasami  under Section 120(B)  of  the
IPC read with Sections 3(3) and 4(1) of the TADA, Sections 3(3) and 4(1)  of
the TADA and under Section 3  read with  Section  4  of  the  Prevention  of
Damage to  Public  Property  Act  and  sentenced  him  to  undergo  rigorous
imprisonment for a period of 5 years and to pay fine of  Rs.1,000/-  and  in
default to undergo rigorous imprisonment for a further period  of  6  months
for offence under Section 120(B) of the IPC  read  with  Sections  3(3)  and
4(1) of the TADA; rigorous imprisonment for a period of 5 years and  to  pay
fine of Rs.1,000/- and in default to undergo  rigorous  imprisonment  for  a
further period of 6 months for offence  under  Section  3(3)  of  the  TADA;
rigorous imprisonment for a period of 5 years and to pay fine of  Rs.1,000/-
and in default to undergo rigorous imprisonment for a further  period  of  6
months  for  offence  under  Section   4(1)  of  the  TADA;   and   rigorous
imprisonment for a period of one  year and to pay fine of Rs.1,000/- and  in
default to undergo rigorous imprisonment for a further period  of  2  months
for offence under Section 3  read  with  Section  4  of  the  Prevention  of
Damage  to  Public  Property  Act  (Total  fine  Rs.4,000/-).    Substantive
sentences were to run concurrently.  Both the accused  have  challenged  the
said judgment in these appeals.

10.   Mr. M.S. Ganesh, learned counsel for  A1-Senthilkumar  submitted  that
the prosecution case entirely rests on the  confessional  statement  of  A1-
Senthilkumar.  The said statement is not voluntarily made and  is  retracted
by him.  It is, therefore, not safe to rest conviction on it.   Besides,  it
is not corroborated.   Counsel  submitted  that  it  is  also  not  properly
recorded.  Counsel further submitted that reliance also cannot be placed  on
the evidence of PW-15 Sevi Periyasamy and his  wife  PW-14  Chandra  because
both of them have turned hostile.  The  prosecution  has  not  examined  any
independent  witness.   The  evidence  on  record  shows  that  PW-15   Sevi
Periyasamy is, in fact, involved in this crime.  There is no explanation  as
to why  he  has  not  been  made  an  accused.   The  prosecution  case  has
therefore, become suspect.   Counsel  submitted  that  no  reliance  can  be
placed on  PW-15  Sevi  Periyasamy  who  is  himself  an  accused.   Counsel
submitted that in  the  circumstances,  the  conviction  of  A1-Senthilkumar
deserves to be set aside.

11.    Mr.  Gowthaman,  learned  counsel  for  A2-Periyasami  has  submitted
written  submissions  which  we  have  perused.   He  submitted   that   the
prosecution has not proved that A2-Periyasami was a  member  of  any  banned
organization.  Relying on Pulin Das @ Panna  Koch  v.   State  of  Assam[1],
counsel submitted that conviction  of  A2-Periyasami  cannot  be  sustained.
Counsel submitted  that  A2-Periyasami  was  arrested  one  year  after  the
incident because there was  confusion  about  his  name.    Because  of  the
similarity of name,  he is implicated in this case though he is  in  no  way
concerned with the offence.  Counsel  submitted  that  no  reliance  can  be
placed on the evidence of PW-15 Sevi Periyasamy,  because he himself  is  an
accused.  He  procured  sulphur  for  the  preparation  of  bomb.    Counsel
further submitted that statement of  this witness is recorded under  Section
164 of the Code after a prolonged police custody hence, no  reliance can  be
placed on it.  In any case, it  is  uncontroverted  that  A2-Periyasami  had
asked PW-15 Sevi Periyasamy to only provide food for the  four  persons  who
were likely to come for a function.  Relying  on  Prakash  Kumar  @  Prakash
Bhutto, etc.  v.  State of Gujarat[2], counsel  submitted  that  considering
the role assigned to  A2-Periyasami,  his  conviction  must  be  set  aside.
There is absolutely no evidence on record to  establish  that  A2-Periyasami
had any prior knowledge  of the offence which was committed by  the  accused
and, therefore, even if it is found that he  had  some  contact  with  PW-15
Sevi Periyasamy it cannot be said that he was a part of the conspiracy.   In
this connection, he  relied  on  Vijayan,  etc.   v.   State  of  Kerala[3].
Counsel submitted that no witness has made any specific  allegation  against
A2-Periyasami.  PW-15 Sevi Periyasamy  turned  hostile  and  A1-Senthilkumar
retracted his confessional statement.   Therefore, there is no  evidence  on
record to connect the accused with the crime.  He deserves to be  acquitted.
Counsel submitted that A2-Periyasami   has  undergone  two  years  and  nine
months sentence and this fact may also be taken into consideration.

12.   Mr. Subramonium Prasad, Addl.  Advocate  General,  for  the  State  of
Tamil Nadu on the other hand submitted that the validity of  Section  15  of
the TADA has been upheld by this Court.  Therefore, conviction can be  based
on a confessional statement recorded under Section 15 of  the  TADA.   If  a
confessional statement is found to be truthful then, despite its  subsequent
retraction or its denial in statement recorded  under  Section  313  of  the
Code, it can be relied upon.  In this connection, counsel  relied  on  State
v.   Nalini  &  Ors.[4]  and  Yakub  Abdul  Razak  Memon    v.    State   of
Maharashtra[5].   Counsel  submitted  that  in  this  case  apart  from  the
confessional statement  of  A1-Senthilkumar,  there  is  other  evidence  on
record to establish complicity  of  the  appellants.   In  support  of  this
submission, counsel took us through the evidence of  PW-13  M.  Paramasivam,
the then Chief Permanent Inspector of Peralam and the evidence of  PW-32  K.
Ramakrishnan, the then Assistant Director of Forensic Department.   Evidence
of these witnesses show that the handwriting on  the  incriminating  posters
found at the scene of occurrence is that of A1-Senthilkumar.   Counsel  also
relied on the evidence of PW-15 Sevi Periyasamy who has turned hostile at  a
very late stage.  Counsel submitted that hostile  witnesses’  evidence  need
not be totally ignored.  Part of the evidence which  is  consistent  can  be
relied upon.  Counsel submitted that sufficient corroboration  is  available
to the confessional statement of A1-Senthilkumar.  Counsel urged that  since
the involvement of the appellants is proved beyond  doubt,  the  appeals  be
dismissed.

13.   The prosecution’s claim that on 24/10/1992  at  or  around  2.45  a.m.
there was a blast  at rails of Bridge No.276 in between  Kms.  292/6  and  7
situated between Kallakudi Pazhanganatham  and  Kallagam  Railway  Stations,
which damaged 20 wooden sleepers and rails to a length  of  20  feet  and  a
portion of concrete structures  is  not  disputed.   The  engine  driver  of
Quilon Express, which was to cross Bridge No.276, stopped the  train  as  he
saw boulders on the track.  Thus, a great disaster was averted.  So  far  as
the occurrence of the blast is concerned, the prosecution has examined  PW-1
to PW-13, who  are railway employees.  It is  not  necessary  to  deal  with
their evidence because there is no serious challenge to  that  part  of  the
prosecution story.
14.   At the outset, we must deal with the submission that  the  prosecution
has not examined any independent witnesses.  It  is  common  knowledge  that
when the terrorists unleash a way of terror, no  independent  witnesses  are
ready to come forward and depose against them.  Prosecution case  cannot  be
rejected on this ground.  In any case, the evidence on record is cogent  and
reliable and, therefore, non-examination of independent witnesses  does  not
have any adverse impact on the prosecution case.  We may also note that  the
evidence of defence witnesses does not inspire confidence  and  has  rightly
not been taken into consideration by the trial court.   PW-14  Chandra  wife
of PW-15 Sevi Periyasamy turned hostile. Some other  formal  witnesses  also
turned hostile. This, however, has not  affected  the  core  of  prosecution
case which is established by reliable evidence.  We shall now deal with  the
evidence which, in our opinion, bears out the prosecution case.

15.   PW-15  Sevi  Periyasamy  appears  to  have  given  the  leads  to  the
investigating agency to unearth  the  crime.   His  statement  was  recorded
under Section 164 of the Code  by  the  Judicial  Magistrate  Perambalur  on
31/12/1993.  He stated that he is a member  of  Ambedkar  Narpani  Mandaram.
They had  celebrated  Ambedkar  birthday  function  in  1991.   He  met  A2-
Periyasami in that function.   On  23/10/1992,  A2-Periyasami  came  to  his
house and told him that one Lenin and 3 other persons will visit  him,  they
will stay in the house till night and that he should provide food  to  them.
Lenin came to his house at 1.30 p.m.  Lenin  introduced  him  to  the  other
person who had come with him as Kumar.  Thereafter, two other  persons  came
there.  They were introduced to him as Karalan and Rajaram.   He asked  them
as to for what purpose they had come to his house.  They told him that  they
had come to participate in the function and they  will  stay  in  his  house
till night.  He put a cot in the cattle shed and asked them to sit.  He  and
his wife prepared food for them.  He saw both  Lenin  and  Karalan  removing
the gelatin sticks.  They applied flour  like  powder  over  the  same.   He
suspected them.  He asked them as to  what  they  were  doing  with  gelatin
sticks.  Karalan stated that he should not  ask  any  questions  about  what
they were doing.  Then A1-Senthilkumar and Rajaram @ Madhavan wrote  slogans
on white colour paper  with  black  ink  such  as  “Veera  Vanakkam”  (royal
salute) and  ‘Withdraw  the  cases  filed  against  the  Tamilian  leaders’.
Karalan then asked him to get two empty glass bottles.  He gave two  bottles
to them.  They broke the glass bottles  into  powder.   Thereafter,  Karalan
gave him Rs.12/- and asked him  to  purchase  sulphur  powder.   Since  they
threatened him, out of fear, he went to Perambalur and  purchased  100  gms.
sulphur powder.  He came to his village and handed over the  sulphur  powder
to Karalan.  After taking food, they left keeping their goods in the  cattle
shed.  After some time, all of them returned with tin bottles  and  inserted
gelatin sticks in tin bottles. They left the house.   When  he  asked  them,
where they were going, Lenin told him that he would come  to  know  when  he
reads the newspaper on the next day.  Next day, he read  the  newspaper  and
came to know that  the  railway  bridge  situated  at  Kallakam  Muthuvathur
village had been destroyed due to a bomb  blast.   He  asked  A2-Periyasami,
who had caused the blast. A2-Periyasami told him  that  Lenin,  Karalan  and
Rajaram @ Madhavan were responsible for the blast and if he  discloses  this
to anybody, his family would be killed.  Thereafter, he met  A1-Senthilkumar
at  Thuraimangalam  junction  road.   A1-Senthilkumar  told  him  that   he,
Karalan, Lenin and Rajaram had destroyed the railway bridge.   He  told  A1-
Senthilkumar that he cannot give him shelter in his house.   A1-Senthilkumar
went away telling him that if  he  discloses  this  to  anybody,  they  will
finish his family.  Therefore, in the interest of his  family,  he  did  not
disclose to anybody what he was told. Thereafter,  police  interrogated  him
and he disclosed the facts which were known to him.  He also identified  the
photographs of Karalan, Rajaram and Lenin.

16.   He was examined in the Court on 13/9/1996 and  on  3/11/1997  when  he
reiterated his statement given under  Section  164  of  the  Code.   He  was
recalled on 5/2/1998 when he stated that MO 5 series   (wall  posters)  were
written by A1-Senthilkumar in his cattle shed.  He  was  again  recalled  on
25/9/1998 when he acknowledged that on 31/12/1993  he  had  given  statement
before the Judicial Magistrate at Perambalur.   He  was  again  recalled  on
19/9/2001.  On that day, he resiled  from  his  earlier  statement  to  some
extent.  He stated that  he  did  not  remember  whether  A2-Periyasami  had
personally informed him that four persons would  come  and  he  should  feed
them.  He, however, stated that the four persons did come and they  informed
him that they hail from the similar organization and he should provide  food
for them.  He was again recalled on 28/9/2001.  On that day, he stated  that
he saw Lenin when he came to his house and he came  to  know  about  Karalan
when he visited his house.  He then stated that he was detained at Q  Branch
Police Station and he was told by the Investigating Officer  that  he  would
be  set  at  liberty  after  he  gave  his  statement  before  the  Judicial
Magistrate.  He, however, denied the  suggestion  that  A1-Senthilkumar  did
not meet him at his residence.  He stated that the person,  who  accompanied
Lenin, informed him that his name was A1-Senthilkumar.  He  stated  that  it
was  incorrect  to  state  that  he  was  intimidated  by  the  police  from
10/12/1992  to  30/12/1992.   He  stated  that  he  was   tutored   by   the
Investigating Officer to make the statement before the Judicial  Magistrate.
 He stated that he used to render help to any Dalit guest and he  would  not
have given food and shelter to Lenin, if he had knowledge that  he  belonged
to that organization.  He then stated that he had  not  met  A1-Senthilkumar
earlier and he was seeing him in the court for the first time.  Thus, it  is
apparent that on 28/9/2001, though he stuck to several assertions  which  he
had made earlier, he resiled from his statement to some extent.  The  public
prosecutor, therefore, sought permission to cross-examine him.   The  public
prosecutor cross-examined him.  In the cross-examination, he stated that  he
gave this statement at the dictates of the Investigating Officer.

17.   PW-40 PI Pattabiraman  stated  that  after  he  took  custody  of  A1-
Senthilkumar, he took his specimen signatures which are Ex-P/6  series.   He
further stated that on 19/12/1993, he took A1-Senthilkumar  to  Chennai  and
produced him before PW-37 Ramanujam,  Superintendent  of  Police,  Q  Branch
CID, Chennai and gave  a  written  requisition  for  recording  confessional
statement of A1-Senthilkumar under Section 15 of the TADA.   On  20/12/1993,
at 1800 hours PW-37 Ramanujam after ascertaining  that  A1-Senthilkumar  was
not threatened or induced to give his confessional statement,  recorded  his
confessional statement and obtained his signature on each page.

18.   In his confessional statement, A1-Senthilkumar has stated how he  came
in contact with one Murugesan, who was running an association to spread  the
ideology of Ambedkar.  It is through Murugesan that he got  acquainted  with
the activities of Tamil Nadu Liberation Force and  associates  of  Murugesan
like Lenin and Ravi.  He stated that in the house of Ravi, Murugesan,  Lenin
and others used to hold secret meetings; they used to say  that  Tamil  Nadu
should secede from India and for that  purpose,  they  have  to  fight  with
weapons.  He further stated that Lenin took him to the house of  PW-15  Sevi
Periyasamy.  Lenin told him  that  they  had  been  sent  by  A2-Periyasami.
Within short time, Rajaram @ Madhavan and  Karalan  @  Nagarajan  also  came
there.  Karalan brought a bag containing 40 gelatin sticks, one  long  green
colour wire, 5 to 6 detonators and jute thread.  The bag brought by  Rajaram
@ Madhavan contained an empty tin of five litre capacity, two large  drawing
papers and two black and red colour sketch  pens.   They  had  brought  wall
papers and as instructed by Lenin and Karalan A1-Senthilkumar wrote  slogans
such as ‘Bravery salute.  Bravery salute’, ‘Let the liberation  struggle  of
Kashmiri people win’, ‘Withdraw the  cases  filed  against  Tamil  leaders’,
etc.  He further stated that in between, Lenin and Karalan took out  gelatin
sticks wrapped in a paper and mixed in a dough.  They got  two  empty  glass
bottles from PW-15 Sevi Periyasamy, broke them into pieces  and  mixed  that
also in the dough.  He stated that Karalan got sulphur powder through  PW-15
Sevi Periyasamy and applied sulphur to the wire.  In the evening, they  went
near the lake area and Lenin told them that they are going to  demolish  the
railway track so that panic would be created among the  public.   Then  they
went ahead, had dinner in a hotel.  They came  to  PW-15  Sevi  Periyasamy’s
house and took all articles which were  kept  there  and  left  that  place.
While  leaving  the  place,  Lenin  told  everyone  that  they  should  read
tomorrow’s newspaper.  From there, they  went  to  Ariyalur  by  bus.   From
there, they went by bus to Dalmiapuram.  They walked  through  a  canal  and
reached a railway  bridge.   Sitting  below  the  bridge,  Karalan  put  the
gelatin and sulphur  in  the  tin.   He  tied  the  detonator  together  and
inserted the same in the tin which had gelatin mixture.   He  connected  the
wire with the detonator and, through the hole in the tin cover, he took  out
the wire and closed the tin.  Thereafter, all  the  four  climbed  over  the
bridge.  Karalan kept the bomb in the southern corner of the bridge  in  the
middle of the rails.  They put a huge stone between the  rails.   They  kept
the branches of trees over the rails.  They wrote slogans  on  the  pillars.
They also kept posters prepared on drawing papers and notices at  the  scene
of offence.  Karalan lit a wire with  a  match  stick  and  they  ran  away.
Within a few seconds, there was a blast.  He, thereafter,  narrated  how  he
went from place to place till he was arrested on 17/12/1993.

19.   The confessional statement of  A1-Senthilkumar  reveals  that  he  had
accompanied other accused to the house of PW-15  Sevi  Periyasamy,  that  he
had actively participated in the activities of Karalan, Lenin and Rajaram  @
Madhavan and they had joined  him  in  manufacturing  explosive  substances.
His confession further reveals that he wrote slogans on  papers and  he  was
party to preparing, carrying and planting of bomb and causing of the  blast.
It must also be stated here that A1-Senthilkumar retracted his  confessional
statement. We shall advert to that a little later.

20.   Having referred to  the  relevant  evidence,  we  shall  now  consider
whether the prosecution has established its  case  against  A1-Senthilkumar.
His confessional statement is a major piece of evidence  against  him.   The
question is what is the evidentiary value of  a  confession  recorded  under
Section 15 of the TADA.

21.   In Yakub Abdul Razak Memon, after referring to  several  judgments  of
this Court on the evidentiary value of confession particularly  judgment  of
this Court in Nalini, this Court summed  up  the  position  of  law  on  the
evidentiary value of confession.  The relevant conclusions could be  quoted.



   “105.    To sum up, it can easily be inferred that the position of law on
   the evidentiary value of confession is as under:-


        i) If the confessional statement is  properly  recorded  satisfying
           the mandatory provision of Section 15 of TADA and the Rules made
           thereunder, and if the same is found by the court as having been
           made voluntarily and truthfully  then  the  said  confession  is
           sufficient to base conviction on the maker of the confession.


       ii) Whether such confession requires  corroboration  or  not,  is  a
           matter for the court to consider on the basis of  the  facts  of
           each case.

      iii) With regard to the use of  such  confession  as  against  a  co-
           accused, it has to be held  that  as  a  matter  of  caution,  a
           general corroboration should be sought for but  in  cases  where
           the  court  is  satisfied  that  the  probative  value  of  such
           confession is such that it does not require  corroboration  then
           it may base conviction on the basis of such confession of the co-
           accused without corroboration.  But this is an exception to  the
           general rule of requiring corroboration when such confession  is
           to be used against a co-accused.

       iv) The nature of corroboration required both in regard to  the  use
           of confession against the maker as also in regard to the use  of
           the same against a co-accused is of a general nature, unless the
           court comes to the conclusion that such corroboration should  be
           on material facts also because of  the  facts  of  a  particular
           case.  The degree of corroboration so required is that which  is
           necessary for a prudent man to believe in the existence of facts
           mentioned in the confessional statement.

        v)       xxx        xxx         xxx        xxx”



      It is clear, therefore, that a confessional statement  recorded  under
Section 15 of the TADA, if found to be voluntarily made and is truthful  and
properly recorded, can form the basis of conviction.

22.   We have  already  stated  that  PW-40  PI  Pattabiraman  produced  A1-
Senthilkumar before PW-37 Ramanujam, Superintendent  of  Police  “Q”  Branch
CID, Chennai for recording his confessional statement.  On  22/12/1993,  PW-
37  Ramanujam  recorded  confessional  statement  of  A1-Senthilkumar  after
ascertaining that he was not threatened or induced to give his  confessional
statement.  PW-37 Ramanujam obtained A1-Senthilkumar’s  signatures  on  each
page of the confessional statement.   A1-Senthilkumar  signed  on  the  said
confessional statement  acknowledging  that  he  was  giving  the  statement
voluntarily  without  any  coercion   and   compulsion   and   knowing   its
consequence.  We have carefully read the evidence of PW-40 Pattabiraman  and
PW-37 Ramanujam and the confessional statement of A1-Senthilkumar, which  is
at Ex-P/24.  We are satisfied that the confessional statement  was  properly
recorded; that  A1-Senthilkumar  was  not  forced  or  coerced  into  giving
statement; that the statement is given voluntarily and that it is  truthful.
In our opinion, therefore, it can form the basis of conviction.

23.    We must now come to the retraction. It is  argued  however  that  A1-
Senthilkumar  has  retracted  his  confession  and,  hence,    it   has   no
evidentiary value. It cannot be relied upon.  It is not possible  to  accept
this submission. Retraction does not always dilute or reduce   or  wipe  out
the evidentiary value of a confessional statement.  Quite  often  retraction
is an afterthought.  It could be the result  of  legal  advice  or  pressure
exerted by those  whose  involvement  may  be  likely  to  be  disclosed  or
confirmed by the confessional statement of the accused.  Therefore, in  each
case, the court will have to examine whether the  confession  was  voluntary
and true and whether the retraction was an  afterthought.   In  Kalawati  v.
State of Himachal[6], this Court stated that the amount  of  credibility  to
be attached to a retracted  confession  would  depend  upon  the  facts  and
circumstances of each case.  Again in State of  Tamil  Nadu   v.   Kutty[7],
this Court stated that a retracted  confession  may  form  legal  basis  for
conviction if the court is satisfied that the confession was  true  and  was
voluntarily made.   Following these judgments in Yakub  Abdul  Razak  Memon,
this Court  held  that  where  the  original  confession  was  truthful  and
voluntary, the court can rely upon such confession to  convict  the  accused
in spite of a subsequent  retraction  and  its  denial  in  statement  under
Section 313 of the  Code.   The  law  is  thus  crystallized.   A  retracted
confessional statement is  therefore  not  always  worthless.   We  have  no
hesitation in reiterating that A1-Senthilkumar’s confessional statement  was
recorded after following the correct procedure; that it  was  voluntary  and
truthful; that A1-Senthilkumar was not  forced  or  compelled  to  give  his
statement and that the retraction  of  the  said  statement  is  clearly  an
afterthought and should be ignored.

24.   In any case,  there  is  sufficient  corroboration  available  to  the
confessional  statement  of  A1-Senthilkumar  from  the  other  evidence  on
record.  In this connection, it is necessary to turn to the evidence of  PW-
13 M. Paramasivam, who was working as Chief Permanent Inspector  at  Peralam
at the relevant time.  He stated that on 24/10/1992, in  the  early  morning
at 3.00 a.m. when he got the news that a train had halted, he  went  to  the
place of occurrence.  He found that the  train  was  reversed  and  kept  at
Kallagam Railway Station.  He went to the southern part of  the  bridge  and
found that the fish plates and the  concrete  portion  of  the  bridge  were
broken.  He got down from the bridge.  He saw wall posters  (MO  5  series),
bit notices and other articles.  They were taken  charge  of  under  Mahazar
[Ex-P/3]. PW-32 K. Ramakrishnan, who was working as the  Assistant  Director
in the Photography Division of the Forensic Science Department, Chennai,  at
the relevant time, stated that he had received the requisition of  Inspector
of Police, Q Branch, CID, Trichy.  He further  sated  that  along  with  the
requisition, he had received two  disputed  wall  posters  marked  as  MO  5
series and four disputed wall posters marked MO 22 series.  For   comparison
of the disputed handwriting on the wall posters, he  had  received  30  wall
posters and four full sheets containing  specimen  handwriting,  which  were
marked Ex-P/6  series.   He  compared  the  specimen  handwriting  with  the
handwriting appearing on the wall papers [MO 5 series and MO 22 series]  and
found that the writings on MO 5 series and MO 22 series were of  the  person
who wrote writings marked Ex-P/6 series.  Ex-P/6  series  are  the  specimen
handwritings of A1-Senthilkumar  taken  by  PW-40  PI  Pattabiraman.   Thus,
evidence  of  PW-13  M.  Paramasivam  and  PW-32  K.  Ramakrishnan  provides
necessary independent corroboration to the  confessional  statement  of  A1-
Senthilkumar.  The fact that the incriminating wall  posters  found  at  the
scene  of  offence  bear  handwriting  of  A1-Senthilkumar  is  a  clinching
circumstance and goes a long way in establishing his guilt.

25.    So far as evidence of  PW-15  Sevi  Periyasamy  is  concerned  it  is
argued that he was  himself  involved  in  the  offence.   His  evidence  is
tainted evidence and, hence, it should  not  be  relied  upon.   It  is  not
possible to accept this submission.  The evidence of  this  witness  clearly
indicates that he  did  not  know  anything  about  the  activities  of  the
accused.  He is an  active  worker  of  Ambedkar  Welfare  Association.   He
stated that he is a Dalit and he works for the cause of  Dalits.   According
to him, it is A2-Periyasami, who told him that four persons would be  coming
to him and he should provide food to them.  He accordingly gave them  lunch.
 When they were busy preparing wall  posters  and  manufacturing  bombs,  he
asked them what they were doing and they told him that  he  should  not  ask
them any question and he would come to know about it if he reads next  day’s
newspaper.  According to him, when A1-Senthilkumar met  him,  he  asked  him
who had caused the blast.  A1-Senthilkumar told him that  blast  was  caused
by him and his associates and if he informs anyone about it, all members  of
his family will  be  killed.   It  is  difficult  therefore  to  come  to  a
conclusion that PW-15 Sevi  Periyasamy  was  involved  in  the  offence.  He
appears to be a victim of circumstances.  He was used by  the  accused.   He
did not know  the  nature  of  conspiracy  hatched  by  the  accused.    His
evidence, therefore, cannot be discarded as tainted evidence.

26.   It was submitted that the evidence of PW-15 Sevi  Periyasamy  must  be
rejected because he  turned  hostile.   It  is  trite  that  evidence  of  a
hostile witness need not be completely discarded.  The prosecution  can  use
that part of his evidence which is corroborated by other evidence on  record
[See Bhajju @ Karan Singh  v.  State of Madhya Pradesh[8]].    Moreover,  in
this  case,  the  facts  are  peculiar.   From  13/9/1996  when  PW-15  Sevi
Periyasamy was first examined in the Court till 25/9/1998, he supported  the
prosecution.  When after  five  years  he  was  recalled  on  19/9/2001,  he
resiled from his previous statement only to some extent.  On  28/9/2001,  he
confirmed some portion of his earlier  statement  but  resiled  to  a  large
extent from his earlier statement.  It is obvious that the recording of  his
evidence was not continuous.  There was  huge  gap  of  five  years  between
recording of his examination and re-examination.   It is also  pertinent  to
note that on 13/9/1996, 3/11/1997, 5/2/1998 and 25/9/1998, when he  narrated
the sequence of events and explained the role of the  accused,  he  was  not
cross-examined at all.   It  is  clear  from  this  that  recording  of  his
evidence was unduly prolonged, and in that period, an  effort  was  made  to
win him over.  These facts will have to be taken  into  consideration  while
considering the evidentiary value of his evidence.  We are  of  the  opinion
that it would be safe to rely on that part of the evidence of this  witness,
which is corroborated by other evidence on record.



27.    We  have  extensively  referred  to  the  evidence  of   PW-15   Sevi
Periyasamy.   He stated how A1-Senthilkumar came to  his  house  along  with
Lenin and how two other persons joined him.   He  further  stated  how  they
prepared the dough with gelatin sticks  and  broken  glass  pieces.  He  has
further gone on to say that they left the house telling him that  he  should
not ask them anything about their activities and he  should  read  the  next
day’s newspaper to know what they were doing.  He has  further  stated  that
after  the  blast,  he  met  A1-Senthilkumar  at   Perambalur-Thuraimangalam
Junction Road and he told him  that  he,  Karalan,  Lenin  and  Rajaram  had
destroyed the railway bridge.  A1-Senthilkumar left the  place  telling  him
that if he discloses it to  anyone,  all  members  of  his  family  will  be
killed.  This portion of his evidence finds  sufficient  corroboration  from
other evidence on  record  and,  therefore,  we  are  of  the  opinion  that
reliance can be placed on it.  Thus, A1-Senthilkumar’s  involvement  in  the
crime is proved to the hilt by his confessional statement recorded by  PW-37
Ramanujam; by the evidence of PW-13 Paramsivam who stated that posters  were
seized from the place  where  blast  occurred;  by  the  evidence  of  PW-32
Ramakrishnan which indicates that those posters were in his handwriting  and
the statement of PW-15 Sevi Periyasamy which indicates his role.  The  trial
court, therefore, has rightly convicted him.


28.   So far as A2-Periyasami is concerned, in  his  confessional  statement
A1-Senthilkumar has only stated that Lenin took him to the  house  of  PW-15
Sevi Periyasamy and others joined him there in that house. When  he  reached
there, Lenin informed PW-15 Sevi Periyasamy that they have been sent by  A2-
Periyasami.  Apart from this, there is no reference to A2-Periyasami in  the
confessional  statement  of  A1-Senthilkumar.   PW-15  Sevi  Periyasamy  has
stated that on 22/12/1993 A2-Periyasami came to him and  stated  that  Lenin
and others will visit him and they will stay till night and food  should  be
provided to them.   It  appears  from  the  confessional  statement  of  A1-
Senthilkumar and evidence of PW-15 Sevi Periyasamy  that  A2-Periyasami  did
not participate in manufacturing of bombs, carrying them  to  the  scene  of
offence, planting them under the  railway  bridge  and  causing  the  blast.
There is a passing reference in PW-15 Sevi Periyasamy’s evidence that  after
the blast when he asked A2-Periyasami about the  blast,  he  told  him  that
Lenin, Karalan and  Rajaram  were  responsible  for  the  blast  and  if  he
discloses this to anyone, all members of his family would be  killed.   This
part of the statement of PW-15 Sevi Periyasamy is not  corroborated  by  any
evidence on record.  Thus, it would not be safe to  rely  on  it.   We  are,
therefore, of the  opinion  that  the  prosecution  has  not  been  able  to
establish its case against A2-Periyasami beyond reasonable doubt.  He  must,
therefore, get  benefit  of  doubt.   In  the  circumstances,  the  impugned
judgment and order so far as it convicts and  sentences  A1-Senthilkumar  is
confirmed.  Conviction and sentence of A1-Senthilkumar  is  confirmed.   The
impugned judgment and  order  so  far  as  it  convicts  and  sentences  A2-
Periyasami is set aside. He is acquitted.  A2-Periyasami is  on  bail.   His
bail bond stands discharged.








29.   In the  result,  Criminal  Appeal  No.1272  of  2012  is  allowed  and
Criminal Appeal No.787 of 2013 is dismissed.


                                                        …….……………………………..CJI.
                                                             (P. Sathasivam)


                                                            ……………………………………J.
                                                     (Ranjana Prakash Desai)



                                                            ……………………………………J.
                                                              (Ranjan Gogoi)
New Delhi;
April 11, 2014.


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[1]    (2008) 5 SCC 89
[2]    (2007) 4 SCC 266
[3]    (1999) 3 SCC 54
[4]    (1999) 5 SCC 253
[5]    (2013) 3 SCALE 565
[6]    AIR 1953 SC 131
[7]    AIR 2001 SC 2778
[8]    (2012) 4 SCC 327

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