Abubucker Siddique & Anr vs State Rep.By Dy.Supdt.Of Police

by the designated Court No. II TADA Act,

16(S)/93/CBI/SCB/MAS, whereby the learned Judge

convicted the appellants under Section 120-B IPC read

with Sections 153A, 201, 302, 326, 324, 419, 436 IPC,

Section 9(B)(1)(b) of the Explosives Act, Sections 3, 4, 5

and 6 of the Explosives Substances Act and Section

3(2)(i) and (ii) and Section 3(3) of the TADA Act and they

were sentenced to undergo imprisonment for life.

2. The prosecution case in brief was as follows:

After the demolition of the Babri Masjid in the month of

December 1992, there were numerous violent incidents

2 in various parts of the country attributed to Muslim

fanatics against Hindu organizations, places of religious

worship and other institutions. During the period from

December 1992 to October 1993, the appellants entered

into a criminal conspiracy at Madras, Vaniyam Padi

Melapalayam, Madurai, Bangalore, Tumkur, Anchal and

other places to commit illegal acts by inciting Muslim

youths to commit acts of violence and terrorism. Such

acts included manufacturing of bombs, exploding them

in various Hindu organizations, places of worship and

other religious institutions, committing murder of

persons likely to be present in the offices of such

organizations and places of worship, to cause hurt to the

inmates therein, to escape after the commission of such

acts, to provide accommodation and shelter to the

conspirators to carry out the object of the conspiracy, to

go into hideouts, to harbour the offenders involved in

such violent acts and to screen the offenders from the

clutches of law. Ahmad Ali (A9) addressed public

meetings and incited Muslim youths to fight against

3 Hindu Munnani and RSS leaders and also to indulge in

acts of violence to promote enmity between Hindu and

Muslims.

3. On 8th July, 1993, A14 Hyder Ali (posing himself to

be Ravi) and A15 Imam Ali (posing himself to be

Sivakumar) visited Vadacherry (located in the outskirts of

Vaniyambadi-Vellore District, Tamil Nadu) with the

intention of causing bomb blasts at a public meeting

addressed by one of the Hindu Munnani leaders Sridhar

(PW 118). However they could not execute their plan

since the meeting was over by the time they reached

Vadacherry and the bomb remained unused. However

they met Sridhar and after introducing themselves as

Ravi and Sivakumar, expressed their desire to meet him

at Chennai. The unused bomb was dismantled and kept

in the house of A18 Mushtaq Ahmed at Jaffarbad in

Vaniyambadi which is nearer to Vadacherry. Afterwards

the duo returned to Chennai. On 29th July, 1993, A5

Abubucker Siddique, A14 Hyder Ali, A15 Imam Ali and

4 A17 Kaja Nizamuddin went to a house in Porur and

ordered a remote control device. Thereafter they went to

the house of A18 Mushtaq Ahmed (absconding accused)

at Jaffarabad. Together all the aforesaid accused went to

Gudiyatham and purchased gelatin and detonators and

brought it to the house of A18 Mushtaq Ahmed. It is

further the case of the prosecution that A15 Imam Ali

conducted a trial blast at the house of A18 Mushtaq

Ahmed and thereafter left for Chennai on the following

day. They collected the remote control ordered earlier

from the Porur house and checked the same. They then

purchased pen torch cells, one battery box, quartz timer,

switch and some other items required for blasting

suitcase bomb. On 30th July, 1993 A15 Imam Ali and

A17 Kaja Nizamuddin along with A5 Abubucker Siddique

and A14 Hyder Ali went to the RSS office Chennai for

surveying the place. While A15 Imam Ali and A17 Kaja

Nizamuddin were inside the RSS office A5 Abubucker

Siddique and A14 Hyder Ali remained outside. A15 and

A17 could not meet Sridhar as he was out of office.

5 However they met other office bearers and informed him

that they were running a cassette recording company in

Alandur, Chennai and made an official entry of an

incorrect/ non-existent address in the register kept as a

record of visitors to the RSS office. On 6th August, 1993

all the above four accused went to RSS office, Chennai

with suitcases containing bombs. On the way, A15 and

A17 got down near a temple, applied Vibhooti (white ash)

and kum (tilak) on their forehead, stuck photos of Lord

Krishna on their suitcases. Again A15 and A17 went

inside the RSS office carrying the suitcases containing

bombs and A5 and A14 remained outside. A5 and A17

enquired about Sridhar from Shanmugam, a RSS worker.

A15 and A17 had also talked to Jawahar, another RSS

worker and handed over a letter addressed to Sridhar.

Thereafter they came out of the office leaving behind the

suitcase bombs and waited for about half an hour at a

tea shop. However the bombs did not explode. A15 and

A17 went inside and brought the suitcase bombs outside

and took it back to the godown of A1 Rafiq Ahmed. On

6 7th August, 1993, they purchased new battery cells, cells

for torch light and plastic covers which do not conduct

electricity. These were brought for rectification and then

the bombs were again kept ready in both the suitcases.

On 8th August, 1993 at about 11-12 am all the above four

accused went again with the two suit cases containing

the bombs. Again A5 and A14 remained outside, A15 and

A17 went inside the RSS office carrying the suitcases the

bombs. Inside the RSS office they met PW1 Srinivasan

and asked about Sridhar. After that they came out of the

building leaving behind the suitcase bombs. At about

1:45 pm there was loud explosions which resulted in the

death of 11 persons, injuries to 7 others and also

complete demolition of the building.

4. Instant case was registered by Mr. A. Rajaram,

Inspector, Chetput, F-5, Police Station, Chennai in crime

No. 1137 of 1993 under Section 120-B, 302 326, 153 A

IPC, Section 9B(1)(b) of The Indian Explosive Act, 1884

and Sections 3 And 4 of The Explosive Substances Act,

7 1908 against unknown persons. Initially the investigation

was started by CBCID, Metro, Chennai. Later on, the

investigation was transferred to CBI on 26th August, 1993

and registered in R.C No. 16 (S) 93- CBI/SCB/Chennai

and investigated by Mr. M.S. Sundarajan DSp,

CBI/SCB/Madras. After the completion of the

investigation, charge sheet dated 8th June, 1994 was filed

against 18 accused under Sections 120-B IPC read with

Sections 153-A,201,302,326,324,419,436 IPC, Section

9(B)(1)(b) of the Explosives Act, Sections 3, 4, 5 and 6 of

the Explosives Substances Act and Section 3 of the TADA

Act.

5. The Designated Court No. II TADA Act, 1987

(hereinafter referred to as the Trial Court) by order dated

21st June, 2007 convicted A1 Rafiq Ahmed under Section

153A read with Section 109 IPC, A2 Shahabudeen under

Section 201 IPC, A4 Abdul Rahim under Section 3(4)

TADA Act, A5 Abubucker Siddique under Section 120B

read with Sections 153 A, 201, 302, 326, 324, 419, 436

8 IPC, Section 9(B)(1)(b) of Explosive Act, Sections 3, 4, 5 &

6 of Explosives Substances Act, Sections 3(2) and 3(3) of

TADA Act, A7 Ahmed Gnaiyar under Section 3(4) TADA

Act, A10 Md. Moosa Mohideen under Section 3(4) TADA

Act, A11 Syed Md Buhari under Section 3(4) TADA Act,

A12 S.K. Md.Ali under Section 3(4) TADA Act, A14 Hyder

Ali under Section 120B read with Sections

153A,201,302,326,324,419,436 IPC, Section 9 (B)(1)(b) of

Explosive Act, Sections 3, 4, 5 & 6 of Explosives

Substances Act, Sec 3(2), 3(3) of TADA Act, A15 Imam Ali

(dead), A17 Kaja Nijammudin under Section 120B read

with Sections 153 A,201,302,326,324,419,436 IPC,

Section 9 (B)(1)(b) of Explosive Act, Sections 3, 4, 5 & 6

of Explosives Substances Act, Sections 3(2), 3(3) of TADA

Act. The following persons were acquitted namely A3

Mukhtar Ahmed, A6 S.A.Basha, A8 Ameenuddin Sheriff

and A13 Abdul Aslam. Aggrieved by the said judgment,

A5 Abubucker Siddique and A14 Hyder Ali filed Criminal

Appeal No. 1374 of 2007. A17 Kaja Nizamuddin filed

Criminal Appeal No. 552 of 2008 and the State filed

9 Criminal Appeal No. 1271 of 2009.

6. We have heard Mr. Natrajan, learned Senior

Advocate for the appellants Mr. P.P. Malhotra on behalf

of the respondent State.

7. Mr. Natarajan has submitted that the trial court has

committed a grave error in convicting the appellants.

According to the learned counsel, there was no legal

evidence on the record to indicate that the appellants

were involved in the explosion which was the subject

matter of the charge sheet of 8th August, 1993. The

entire body of evidence, according to Mr. Natarajan,

relied upon by the prosecution, consists of various

confessional statements recorded by the authorities

under Section 15 of TADA Act. According to him, these

confessions would show that :-

(i) All the accused had entered into a conspiracy as

alleged in the charge sheet.

10 (ii) In pursuance of this conspiracy, Abubucker

Siddique A5, Imam Ali (A15) Hyder Ali (A14) and one

Mushtaq Ahmed were engaged with the task of

procuring explosives and its accessories, making

bombs with them.

(iii) They went to Vaniyampadi in North Arcot District.

There, they associated Mustaq Ahmed who helped

them in procuring the explosive substance namely

gelatin sticks and detonators. They, thereafter,

travelled to Gudiyatham and contacted a licenced

dealer Kamalnathan, PW.112, through a cycle shop

owner Jayasekhar, PW.111 and illegally purchased

the aforesaid explosives. According to the learned

counsel, five of the accused persons have given a

confession on this point. In all, they purchased 8

kgs. of gelatin on 30th July, 1993 and 5 kgs. on 1st

August, 1993. The 13 kgs. of gelatin alongwith the

detonators were required for manufacturing the two

bombs.

11

(iv) On 6th August, 1993, the effort to blow up the RSS

Office did not succeed as the bomb did not

detonate. In that attempt, A5, Abubucker Siddique

and A14, Hyder Ali stood outside the RSS Office.

A15, Imam Ali and A17, Kaja Nizamuddin went

inside the RSS Office. On 7th August, 1993, both

the bombs were brought to the godown of Rafeeq

Ahamed, A1. There, the two bombs were repaired.

On 8th August, 1993, the same two bombs were

again taken to the RSS Headquarters for causing

the explosion as narrated above.

8. According to Mr.Natarajan, the entire foundation of

the prosecution, as narrated above, is destroyed by

the results of examination of the bomb site, by the

committee of experts headed by the committee of

experts headed by the Director of Central Forensic

Laboratory (CFSL) and the evidence of Investigating

officer, M.S. Sundarrajan PW 223 and K.

Sundarrajan PW 189. He submits that :-

12

(1) After the explosion, the bomb site was examined by

the experts of the prosecution. The evidence of these

experts, consisting of five volumes of exhibits is on the

record. The expert report (Ex.P316) has clearly

concluded that the Improvised Explosive Device (IED)

used was prepared from high explosives. The

explosive devices did not contain gelatin but was/were

made of RDX and PETN.

(2) Investigating Officer M.S. Sundarrajan (PW 223)

and K. Sundarrajan (PW 189) have also stated that at

the site only the presence of RDX and PETN was

detected in the bomb used on 8th August, 1993 and

gelatin was not used.

(3)Mr. Natarajan then submitted that since the

conspirators had only procured gelatin, it was for the

prosecution to establish the source from where RDX

was brought. It was also for the prosecution to

establish as to what has happened to gelatin, which

was allegedly procured by the conspirators.

13 (4) Since the prosecution is unable to answer either of

the two questions, the very substratum of the

prosecution case is destroyed. Apart from the

building, even from the remains of the dead bodies

and the clothes, only traces of RDX and PETN were

found.

(5) In the confessional statements, there is no mention

of any other explosive being procured by the

conspirators. The expression used was other

materials. This expression referred only to the other

materials which were required to assemble the bombs.

(6) The trial court erred in law in reading "other

materials" to mean "other explosives". In support of

his submission, he relied on the evidence of Mr. M.S.

Sundarrajan, the investigating officer, PW.223.

According to Mr. Natarajan, this witness has admitted

in the cross examination that during the investigation,

he was unable to find out the origin of RDX and PETN.

He also pointed out to the cross-examination of Mr. K.

Sundarrajan, PW.189, who stated that PETN and RDX

14 are different explosives. This witness also stated that

in gelatin sticks RDX will not be found.

(7) Even the trial court had noticed that the evidence

of experts shows that the explosion was caused only

by RDX and PETN and not by gelatin sticks.

(8) The trial court also accepts that even the

confessional statements revealed that what was

purchased at Gudiyatham was only gelatin and not

RDX or PETN. Mr. Natarajan submitted that the

conclusion, therefore, reached by the trial court is

without any legal basis.

(9) The trial court has misconcluded the legal position

while excluding from consideration the exculpatory

part of the confession. In support of this, the learned

counsel relied on Chhittar Vs. State of Rajasthan

[1995 Supp (4) SCC 519]; Aghnoo Nagesia Vs. State

of Bihar [(1966) 1 SCR 134] and Devku Bhikha Vs.

State of Gujarat [(1996) 11 SCC 641].

(10) So far as A17 is concerned, Mr. Natarajan

submitted that he was not identified. His confession

15 was not recorded. A memo was filed in Court on 17th

June, 1998 stating that he had died. Therefore, charge

against him had abated.

9. Mr.P.P.Malhotra, learned senior counsel on the

other hand submitted that the terms used by the defence

are scientific terms. The accused had merely said that

they have purchased explosives. They were not scientists

and therefore even if they call the explosives as gelatin

instead of RDX would not be fatal to the case of the

prosecution. He further submitted that the confessions

have to be read from the point of view of a layman. It was

also submitted that merely because the prosecution has

not been able to prove the source of the bomb making

material does not mean bombs were not used or that

they were not planted by them. Thus the case of the

prosecution as roughly summarized by the learned senior

counsel was that there was a conspiracy hatched; bombs

were manufactured using explosive substances. These

bombs were used to destroy the RSS headquarters. It

16 was further submitted that the prosecution had

established that explosives were used, the planting of the

bombs were also proved and it was for that reason that

the prosecution was not required to prove what kind of

explosives were used. It was further submitted that the

prosecution case is that the explosive chemicals were

used for causing the bomb blast. The confession of A5

and others clearly indicate that explosive substances

were procured. Recovery of high explosive chemical PETN

was also made form the godown of A1, form the well

located in the house of A2 as well as from the grey colour

pant of A17 as per recovery mahazars. It is not the

prosecution case that only gelatin and detonators were

used but the prosecution case is that explosive chemicals

were used. On the basis of the confessional statement of

A5 some of the sources of explosives and other materials

were traced. It was further submitted that PETN which

was found from the debris of the bomb blast site was also

recovered form the dust sweep collected from the godown

of A1 where the bomb was prepared, from the well in the

17 house of A2 as well as from the grey colour pant of A17.

As per the expert opinion of Sh. K Sundararajan PW 189,

PETN itself is a highly explosive substance and not

simply a booster as claimed. It was further submitted

that the meeting between Sridhar and A14 & A15 at

Vadacherry was confirmed by A15's own letter left at the

office of RSS office on 6th August, 1993 and hand writing

expert opinion. The visiting card given by Sridhar to A15

on 8th July, 1993 at Vadachery recovered from the

residence of A3 Mukhtar Ahmed at Bangalore confirms

the connection between A15 and A3. The visit of A15

Imam Ali posing himself as Sivakumar in the RSS office

on 30th July, 1993 and the entry made in the register

giving false non existing address found to be of his own

hand writing corroborates the fact that he visited the RSS

office on 30th July, 1993. It was further submitted the

accused persons had made an attempt to blast a bomb

on 8th July, 1993 at Vadachery but in vain. A5 in his

confession statement had indicated that explosives were

procured in addition to gelatin and detonators and the

18 same could be RDX/PETN. Merely because the source

was not proved it cannot be held that the same were not

used considering the fact that traces of RDX/PETN were

found in the bodies at the scene of crime. It was further

submitted that the contention of the defence was totally

fallacious that RDX can be found only in the Indian

Military. During the `Bombay Bomb Blast' about 50 kgs

of RDX were smuggled to India. Further RDX is also used

for selective industrial applications like demolition of

structures etc. RDX exists in the form of plasticine putty

and it may not leave any trace or residue like a liquid or

powder substances as in the case of PETN. According to

Mr. Malhotra, the conclusions recorded by the Trial

Court are based on the correct analysis of the entire

evidence. The conviction recorded against the appellants

does not call for any interference.

10. We have considered the submissions of the learned

counsel

19

11. Undoubtedly, in this case there is no direct evidence

of the crime. The prosecution case hinges on

circumstantial evidence. It is an accepted proposition of

law that even in cases where no direct evidence is

available in the shape of eye-witnesses etc. a conviction

can be based on circumstantial evidence alone. The

hypothesis which can form the basis for conviction purely

on circumstantial evidence was stated by this Court in

the case of Hanumant Govind Nargundkar Vs. State of

M.P.,[1952 SCR 1091]. In the aforesaid judgment,

Mahajan, J. speaking for the Court stated the principle

which reads thus:-

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show

20 that within all human probability the act must have been done by the accused."

The aforesaid proposition of law was restated in the case

of Naseem Ahmed v. Delhi Admn., (1974) 3 SCC 668

by Chandrachud J. as follows:

"This is a case of circumstantial evidence and it is therefore necessary to find whether the circumstances on which prosecution relies are capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the over-all picture emerging from a consideration of the diverse circumstances and their conjoint effect may by themselves appear innocuous. It is only when the various circumstances are considered conjointly that it becomes possible to understand and appreciate their true effect."

21 12. The trial court accepts that:-

(i) The entire case of the prosecution is based on

circumstantial evidence and confessions recorded

under Section 15 of TADA Act.

(ii) The confessional statements voluntarily made under

Section 15 of TADA Act are admissible in evidence.

(iii) Having held the confessional statements to be

admissible yet the trial court discards part of the

confessional statement on the ground that they are

not truthful to some extent in respect of the

conspiracy aspect of all the accused and

involvement of all the accused.

(iv) After analyzing the entire evidence, the trial court

concludes that the evidence indicates that the

explosion was caused only by RDX and PETN.

(v) It is also concluded that gelatin sticks were not

used.

(vi) It is also accepted that in Gudiyatham only gelatin

sticks were purchased and not RDX or PETN.

22 (vii) The trial court accepted that the aforesaid will have

a serious bearing on acceptability of the

confessional statement of the accused and their

involvement of all accused in the conspiracy.

(viii) Inspite of the aforesaid, it is concluded that there is

sufficient evidence to show that the appellants

committed the overt act of causing the explosion as

claimed by the prosecution. The discrepancy

between the material found at the bomb site and

the material purchased by the conspirators is held

to be not of much importance.

13. On the basis of the aforesaid, the trial court

concluded that the A5, A14, A15 and A17 were liable for

the charges with which they were charged. All the other

accused were liable only for their act of either promoting

enmity among the religious groups or harbouring the

accused before or after the blast.

23

14. In our opinion, the contents of the confessional

statements if true, would indicate that all the accused

mentioned above and the appellants, in particular, had

entered into a conspiracy for committing the violent and

terrorist acts against a particular Hindu organization and

Hindu places of religious worships, religious institutions

and places frequented by Hindus in general. In order to

strike terror in the minds of the Hindus, they had

decided to cause explosions and commit crimes of

violence, such as murder. They were also intent to cause

destruction to the property belonging to the Hindu

community. In furtherance of this aim, the participants

in the conspiracy, the appellants in particular, and their

accomplices had been charged with the task of procuring

high explosives. For that purpose, they went to

Gudiyatham and procured 13 kgs of gelatin as narrated

herein above. From the explosive material collected by

the conspirators, two dangerously explosive bombs had

been assembled. The first attempt to explode such a

bomb did not fructify as the intended target had already

24 left the premises in which the bomb was to be exploded.

The bomb was dismantled and kept in the house of A18

Mushtaq Ahmed (absconding). The second attempt for

exploding these bombs also failed as the detonator was

short circuited. It was the third attempt in which the

conspirators succeeded. This attempt took place on 8th

August, 1993 when A15 Imam Ali and A17 Kaja

Nizamuddin carried the two bombs into the building.

They deposited the bombs in the building and exited

there from. They waited outside for half an hour till the

bomb exploded. This is the sum total of the sequence of

events leading upto the explosion that destroyed the RSS,

Headquarters on 8th August, 1993.

15. Quite some time after the explosion, upon

investigation, certain arrests were made. A5

Abubucker Siddique was arrested on 24th October,

1993. A14 Hyder Ali was arrested in some other case

but was produced before the Trial Court on PT

warrant on 16th August, 1995. A15 has died. A17 Kaja

25 Nizamuddin was arrested in some other case and

produced before the Trial Court on 13th March, 2000

on PT warrant. We may notice here that A14 Hyder Ali

and A17 Kaja Nizamuddin were also arrested in some

other case and that too after two years and 7 years

respectively. On interrogation, they made

confessional statements.

16. Excepting for the confessional statements,

admittedly, there is no other independent evidence with

regard to the participation of the accused in the

conspiracy and the particular role played by them.

According to these confessions, A15 Imam Ali and A17

Kaja Nizamuddin had carried the two suitcases inside the

building. Therefore, it is apparent that even according to

the prosecution version, they could have only carried

bombs made from gelatin. The lid on the prosecution

case is blown away by the report of forensic experts and

the traces of the explosive material collected at the Bomb

site.

26

17. Upon investigation and according to the evidence,

which has been recorded in the trial court itself, it has

been established that the bomb which caused the

damage consisted only of RDX and PETN. This is also

the conclusion in the `Report on the Investigation of

the Bomb blast which occurred at Chetput, Madras

on August 8th, 1993' submitted by T.R. Baggi,

Director, CFSL, Hyderabad. Relevant extracts of the

aforesaid report are as under:-

"The State Head quarters of R.S.S. is located at No. 2, M.V. Naidu Street, Chetput, Madras - 8. On Sunday, the 8th August, 1993 at about 1345 hours, the three storied building was damaged by a loud blast killing 11 persons and injuring 5. On Monday, the 9th August, 1993, Shri J.N. Saksena, IPS, Director General, Bureau of Police Research & Development (BPR&D), New Delhi alerted Dr. T.R. Baggi, Director, Central Forensic Science Laboratory (CFSL), Hyderabad and permitted the CFSL team to visit Madras to help the Tamil Nadu Police in the investigation if a request is received from them. Later Shri B. Perumalswamy, IPS, Additional Director General of Police (Crime), Madras contacted the Director, CFSL, Hyderabad and requested him to visit Madras and help the Tamil Nadu Government in the investigation of the Bomb

27 blast at R.S.S. Head quarters building at M.V. Naidu Street, Chetput, Madras.

Accordingly, a team consisting of Dr. T.R. Baggi, Shri Nagraj Shankpal, Shri V Suresh and Shri M Vara Prasad of CFSL, Hyderabad reached Madras on the morning of 10th August, 1993 to provide the necessary help in the investigation.

This report presents the details of the extent of damage to the structure, human life, property, neighbourhood due to the explosion while discussing the structural failure pattern. The report also presents the details of the post- explosion laboratory investigations particularly fixing the seat of explosion in the building and the chemical nature of Improvised Explosive Device (IED) used in the blast."

"(B) LABORATORY ANALYSIS FOR THE EXPLOSION RESIDUES:

It was reported that the police officers collected several material objects (exhibits) immediately after the blast as clue materials to be sent to Forensic Science Laboratory for analysis. Later the Forensic Science Laboratory personnel also collected several exhibits for analysis. The material recovered from the dead bodies, which consisted of debris material, which had entered the bodies like metal pieces, stone pieces, glass pieces, plastic material, wooden pieces etc., were also sent for analysis. Portions of the burnt skin of the deceased and the clothings of the deceased persons were also sent for analysis. The debris which was removed by the bulldozer to extricate the dead bodies was piled up in the open space in front of the building. As most of

28 the crucial clues must be lying in this debris, it was suggested to the senior officers of the Tamil Nadu Police to transport the entire debris after removing big boulders and stones, etc., to the Forensic Science Laboratory (FSL) premises, so that the debris could be served for parts of any IED initiating devices and explosion residues. Accordingly, about 30 lorry loads of debris was transported to FSL premises and sieving process was undertaken.

Preliminary spot tests and Thin Layer Chromatographic (TLC) tests carried out on the select exhibits cited above gave positive tests for Penta Erythritol Tetra Nitrate (PETN) initially and no positive response was obtained for other propellants, low and high explosives. Based on these findings, it was suggested by FSD/Police Officers of Madras that PETN alone could have been used in the IED. However, the CFSL, Hyderabad did not agree with this view and conveyed that the literature indicates that only in few cases PETN alone is used for causing small explosions like safe-cracking or blasting an automobile etc. Therefore, it was suggested that as PETN was always used as an initiator/booster for other high explosives such as Cyclotrimethylene trinitramine (RDX), Trinitro toluene (TNT), 2,4,6 -

trinitrophenylmethyl nitramine (Tetryl), Nitroglycerine (NG), Cyclotetramethylene tetramine (HMX) etc. An analytical search could be carried out systematically for one of these high explosives. Accordingly, some more screening tests were conducted on large number of exhibits sent by the police/medical officers and the debris received in FSL by using larger quantities and clean-up procedures. In this screening procedure

29 positive response was obtained for both PETN and RDX in some of the exhibits. It was also noted that few exhibits gave positive tests only for PETN, some exhibits gave positive tests only for RDX and some exhibits gave positive tests for both PETN and RDX. However, many exhibits did not give positive tests for any of the explosives."

"It can be seen that the retention times of RDX and PETN in various exhibits analysed are tallying with the retention times of the standard runs on RDX and PETN, confirming the presence of RDX/PETN in the respective exhibits.

As a further confirmation, two representative exhibit extracts were injected into the column, later, the same exhibits were spiked with RDX and PETN and chromatographed.

Corresponding increase in peak heights was noted in each case confirming that the peaks were essentially of RDX and PETN.

Further the analysis was carried out at two different wave lengths namely 210nm and 230nm to get better sensitives for individual components. It was noted that the chromatograms at both these wave lengths gave positive response for the presence of RDX/PETN correspondingly.

The comparison of TLC results and HPLC results also indicates that in some of the exhibits only PETN is present, in some of the exhibits only RDX is present and in some of the exhibits both PETN and RDX are present.

30 "Based on the site visits, discussions with Chief Engineer, PWD, visiting team of IIT Structural Engineers, the medial officers, the police officers and chemical analysis, the following conclusions are drawn:-

a) The origin of the blast is in the ground floor.

b) The seat of the blast is slightly to the north of the centre of the entry hall/reading room-library.

c) The seat of explosion is located at a place above the ground level.

d) The primary damage from the blast is the failure of the four walls, roof of the entry hall followed by the failure of the roof of the prayer hall, east and west walls of the prayer hall and the two storied porch.

e) The secondary failures consisted of severe cracking of walls, shattering of door/window frames and glass panes. f) The IED used was prepared from high explosives. g) The IED contained cyclotrimethylene

trimitramine (RDX) as high explosive and Penta Erythritol Tetra Nitrate (PETN) as initiator/booster.

h) Seeing the damage, the RDX charge in the IED used could be roughly assessed to the order of about one (1) kg."

18. Mr. Natarajan, in our opinion, correctly formulated

the two vital questions, viz., (i) where did the RDX come

from? and (ii) what happened to the Gelatin? Since the

evidence of the prosecution itself clearly indicates that

31 the explosive material used in the bomb explosion was

RDX and PETN, it was necessary for the prosecution to

satisfactorily answer the aforesaid two questions.

19. The Trial Court was well aware of the legal position

which is evident from the following observations:

"With regard to the contention of the defence in respect of RDX, PETN etc., it is true that when it is the specific case of the prosecution that the explosives and other materials were procured from Gudiyatham, Chennai and other places, it is the duty cast upon the prosecution to prove the specific allegation beyond doubt in a very cogent manner without missing any link in the chain of circumstances. The prosecution says that gelatin sticks were procured from Gudiyatham at Vellore District, but the relevant witnesses were treated as hostile witnesses. However, Ex.P.298 and Ex.P.316 and the conclusions reached therein by the team of experts shows the usage of RDX in blasting the building in question.

Presence of high explosives namely RDX, PETN and other lethal and Hazardous substances were detected from the dead bodies and other materials recovered from the debris and also seized from the accused when subjected for chemical examination."

32 20. Having recorded the aforesaid conclusion, the trial

court, without any cogent evidence, accepted the

submission of the prosecution that only two persons

knew about the procurement of RDX, PETN etc, namely

A15 Imam Ali and A18 Mushtaq Ahmed (absconding

accused). Thereafter, the trial court quite erroneously

observed that A5 Abubucker Siddique in his confessional

statement had indicated that gelatin sticks, detonators

and "other explosives" were procured. Having said so, the

trial court without any basis goes on to accept the

contention of the prosecution that other explosives could

have been RDX, PETN and merely because the source

could not be proved it cannot be said that such

explosives were not used. This conclusion is reached by

the trial court inspite of the evidence of the investigating

officer Mr. M.S. Sundarrajan, PW-223. His statement

was as under:-

".......During the course of my investigation, I could not find out the origin from where RDX or PETN was obtained by the accused for causing blast of RSS Office building in this case because the main accused Imam Ali and

33 Hyder Ali were not available to me for my investigation at the relevant point of time to throw light about this. From the examination of other accused persons, I could not get details about the particulars of RDX or PETN."

So also during the cross-examination of PW 189 Mr.K.

Sundarrjan has stated as under:-

".......PETN and RDX are different articles. In Gelatin sticks RDX will not be found....."

21. Upon noticing the aforesaid evidence the trial court

quite rightly concludes that

"a conjoint reading of the above shows that RDX and PETN are different materials in composition, differing from that of gelatin. In Gelatin sticks RDX or PETN will not be found. Therefore, the prosecution ought to have investigated the case in the angle of the usage of the RDX, PETN etc., in the instant bomb blast."

But having recorded the aforesaid conclusion, the trial

court again proceeds to record a conclusion which would

be wholly without any basis. This conclusion is as

under:-

"However, it will not affect the merits of the case as high explosives were also stated to

34 have been procured and used in addition to Gelatin sticks. But the source from where these materials were purchased is said to have been within the exclusive knowledge of Mustaq Ahamed (absconding accused) and A15 Imam Ali (since dead), it will have some bearing on the reliability and acceptability of the confession statements of the accused to some extent as aforesaid."

22. The aforesaid conclusion does not explain as to what

happened to 13 Kgs of Gelatin, which was procured

from Gudiyatham. It also does not explain as to why

only traces of RDX were found in dead bodies, clothes

and parts of the building. Not a trace of Gelatin was

found in the building. It is worth noticing here that in

none of the confessional statements, has it been

stated about any other explosives being procured, yet

the trial court concludes that other explosive material

has also been procured. The conclusion is clearly

without any factual basis nor supported by any

evidence.

35

23. We may reiterate here that it is admitted by Mr.

Sundarrajan that the origin from where the RDX or

PETN was obtained by the accused were not

discovered. He also emphatically stated that PETN

and RDX are different articles. It is also stated in his

cross-examination that in Gelatin sticks, RDX will not

be found. On a conjoint reading of the entire

evidence, the trial court clearly recorded the

conclusion that only RDX and PETN and not Gelatin

sticks as claimed by the prosecution were used for the

explosion. It is also noticed that the confessional

statements reveals that what was purchased were

only Gelatin sticks from Gudiyatham and not RDX

and PETN. Such evidence would clearly destroy the

very foundation of the prosecution case, which

proceeds on the basis that the gelatin and the

detonators were procured in Gudiyatham was the

material from which the bombs were manufactured,

which were responsible for the explosion on 8th

August, 1993. Even according to the trial court, the

36 exploding bomb consisted of RDX and PETN. Having

recorded the aforesaid conclusion that trial court

without any justification concludes such evidence

would only affect the evidentiary value and

truthfulness of the confessional statements. We may

notice here the conclusion as recorded by the trial

court as follows:-

"Now a conjoint reading of the confessional statements of the accused already said above, searches made and recoveries effected from the respective places of the accused, material seized from the scene of crime, recovery seizure and observation mahazers therefore and consequential chemical examination and its result and the evidence of the experts therefore shows that what was used for the explosion was only RDX and PETN and not gelatin sticks as claimed by the prosecution. The confessional statements reveals that what was purchased was only gelatin sticks from Gudiyatham and not RDX or PETN which has got a serious bearing on the acceptability of the confessional statements of the accused and their involvement of all the accused in the conspiracy. According to the learned Special Public Prosecutor only two persons namely A15 Imam Ali (died) and absconding accused Mustaq Ahamed knew about it. It follows that the other three accused namely A5 Abubucker Siddique, A14 Hyder Ali and A17 Kaja Nizamuddin who were closely associated with them also knew about it. It goes without

37 saying that they only conspired together and did everything for bomb blast."

24. In our opinion, the trial court having correctly

recorded the conclusion in the earlier part of the

paragraph, unnecessarily and without any basis diluted

the same and restricted it only to the reliability of the

confessional statement. We are of the considered opinion

that the Trial Court correctly observed that "the

prosecution ought to have investigated the case in the

angle of the usage of the RDX, PETN etc." Even after

making such an observation, the Trial Court erroneously

goes onto convict the appellants who had procured only

Gelatin and Detonators from Gudiyatham.

25. We are unable to accept the submission of Mr. P.P.

Malhotra that the appellants not being scientists,

referring to the explosive substance as gelatin as opposed

to RDX would not be fatal. According to him, the

confessional statements should be read from the point of

view of a layman. We may refer to certain extracts from

38 the confessional statement of A5 Abubucker Siddique,

which is as follows:-

"Afterwards, we four went to see Mustaq of Vaniyampadi to purchase gun powder for the preparation of bomb. They went to Gudiyatham and bought 8 Kgs. of Gelatin and some detonators. Imam Ali and Mustaq went outside and bought an iron box to be suitable for fitting in a two wheeler. At the house of Mustaq, Imam Ali conducted a Trial of blasting the gun powders by setting a timer. On the same day, we all of us along with Mustaq and his friend Shakil went to a theatre at Vaniyambadi and saw an English Film called "Armour for the action". While going to the cinema, Mustaq and Shakil kept the gun powder and other items in a house near the Theatre and after seeing the cinema, we took the items from that house and left for Chennai in the night and reached Chennai in the next day morning i.e., 30.07.93."

"On the next day after our return from Vaniyambadi, we went to Riche Street and bought the following items: some pen torch cells, one battery box, quartx timer, switch and some items which are required for blasting the bomb from a box/ suitcase."

"On 1.8.93, Imam Ali sent me to purchase 5 kgs of gun powder, a box made of iron for the purpose of making the second bomb and also told me to meet Mustaq at Jafrabad. He gave me Rs.275 for this purpose. He also told me to bring the gun powder from Mustaq's house which was bought form Mustaq's house which

39 was bought for planting bombs at Hindu Munnani meeting at Vadacherry."

26. We are of the considered opinion that the

observations of the trial court that `other materials' could

have been RDX and PETN is perverse. In our opinion,

Mr. Natarajan had correctly submitted that the other

items in addition to gun powder were the iron box, suit

case, battery box, quartz timer, switch etc. The

confessional statement of A5 Abubucker Siddique reveals

that they had gone to Vaniyampadi to purchase "gun

powder" for the preparation of the bomb. Then they went

to Gudiyatham and procured 8 kgs of gelatine on

29.7.93. Later they had procured 5 kgs of "gunpowder"

on 1.8.93. We are of the considered opinion that the

confessional statement of A5 Abubucker Siddique only

reveals that they had procured gelatine, gunpowder and

certain other accessories required for blasting a bomb

viz. detonators, switch, battery box, pen torch cells,

quartz timer etc. It is not mentioned in the confessional

statement as to how and when the appellants had

40 procured RDX and PETN i.e. the materials with which the

bomb made for blasting the RSS building situated at No.

1 M.V. Naidu Street was made.

27. It was vehemently argued before us by Mr. Malhotra

that the charge has to be read along with the

confessional statements. We may notice an extract of the

charge relied upon by him. It reads as follows:

"Fifthly: that you A-1, A-2, A-5, A-5 and A-8 in pursuance of the said criminal conspiracy during the said period and in the course of the same transaction and in the furtherance of the common intention of you A-1, A-2, A-5 and A- 8 and the absconding accused Imam Ali, Hyder Ali and Kaja Nizamuddin to commit murders and cause injuries to RSS and Hindu Munnani leaders and others who were likely to be present on 8.8.93 at about 1.45 pm at the RSS Headquarters building procured explosives and other materials required for preparing the two suitcase-bombs at godown no 21, Subaiah Street, Periamet, Madras belonging to A1......... ......... "

We are of the considered opinion that the most important

portion of the aforesaid charge is "procured explosives

and other materials". We have considered the

41 confessional statements in extenso. It is not in dispute

that explosives were procured from Gudiyatham. The

confessional statement of A1 Rafiq Ahmed and A5

Abubucker Siddique are unequivocal that only gelatin

sticks and detonators were bought from Gudiyatham

form a licensed shop owner PW 112 Kamalnathan

(declared hostile). The prosecution has not been able to

ascertain as to how the appellants had access to RDX.

The Trial Court had accepted that as only two persons

namely A15 Imam Ali (died) and absconding accused

Mustaq Ahamed knew about the source from where RDX

was procured, the other three accused namely A5

Abubucker Siddique, A14 Hyder Ali and A17 Kaja

Nizamuddin who were closely associated with them also

knew about it. The observation of the Trial Court is

merely conjectural. In our opinion, the conclusion of the

Trial Court that the "other materials" as mentioned in the

charge sheet brings in its sweep other explosives like

RDX and PETN is wholly without any basis. The evidence

on the record clearly militates against such a conclusion.

42 Thus even if the charges are read along with the

confessional statement, it would not, in any manner,

improve the intrinsic value of the evidence led by the

prosecution. Suspicion no matter how strong cannot take

the place of legal proof.

28. As submitted by Mr. Malhotra, it is true that the

prosecution case was that explosive substances were

used to make bombs. It is not in dispute that the present

case was registered against the 18 persons for blasting

the RSS building situated at No. 1 M.V. Naidu Street. As

noticed hereinabove the bomb was made of RDX and

PETN but no trace of gelatin was found form the scene of

crime. The prosecution could only prove that the

appellant had procured gelatin sticks and detonators

form Gudiyatham but the traces of said explosives could

not be found from the scene of occurrence. Thus there is

clearly no evidence to link the appellants with the

explosion.

43

29. In the result the prosecution story as put forward

does not inspire confidence on the basis of the material

placed on record. Criminal Appeal No.1374 of 2007 and

Criminal Appeal No.552 of 2008 filed by the accused

appellants are, therefore, allowed and the conviction and

sentence passed against the appellants are set aside.

They shall be set free forthwith unless wanted in any

other case.

CRIMINAL APPEAL NO.1271 OF 2009

1. In view of the judgment passed in the aforesaid two

appeals, this appeal stands dismissed.

...........................J. [B.Sudershan Reddy]

New Delhi; .............................J. December 06, 2010. [Surinder Singh Nijjar]

44 45