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.
-----------------------
[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
-----------------------
34
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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