1999 Supreme(SC) 641

1999(5) Supreme 60
Supreme Court of India
(Under Section 366 Cr.P.C.)
K.T. Thomas, D.P. Wadhwa and S.S. Mohammed Quadri, JJ.
State through Superintendent of Police, CBI/SIT etc. -Appellants
versus
Nalini & Ors. etc. etc. -Respondents
Death Reference Case No. 1 of 1998
(Arising out of D. No. 1151 of 1998)
With
Criminal Appeal Nos. 321, 322, 323, 324 and 325 of 1998
Decided on 11-5-1999
Per D.P. Wadhwa J.
Counsel for the Parties :
For the Appearing Parties : Altaf Ahmed, Additional Solicitor General, N. Natarajan, S. Siva Subramaniam, Sr. Advocates, Jacob Daniel, Mariaputham, Romy Chacko, S.A. Matoo, Ms. Meenakshi Arora, A.D.N. Rao, P. Parmeshwaran, N. Chandrasekharan, S. Duraisamy, T. Ramadass, Ilam­govan, Sunder Mohan, B. Gopi Krishna Jai Srilank, K. Vijaykumar, V. Rama Subramaniam, T. Raja, K. Thennan, and D.K. Singh, Advocates.

Very Important Points
1. Court should always bear in mind that sentences are in almost every case intended to protect the public whether by punishing the offender or reforming him or deterring him and others, or all of those things.
2. The most important ingredient of the offence of conspiracy is agreement between two or more persons to do an illegal act. The ille­gal act may or may not be done in pursuance of agreement but the very agreement is an offence and is punishable.
3. Everyone of the conspirators need not have taken active part in the Commission of each and every one of the conspiratorial acts for the offence of conspiracy to be made out.
Important points
1. Confession made admissible under Section 15 of TADA can be used as against a co-accused only in the same manner and subject to the same conditions as stipulated in Section 30 of the Evidence Act.
2. For an offence under Section 120 B, the prosecution need not neces­sarily prove that the perpetrators expressly agreed to do and/or caused to be done the illegal act, the agreement may be proved by necessary implication.
3. It is well-nigh settled that Section 10 of the Evidence Act is founded on the principle of Law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made in reference to their common intention.

Headnote:(i) Terrorist and Disruptive Acti­vities (Prevention) Act, 1987-Sec­tions 3, 4 and 5- Death Reference-Evidence does not reflect that any of accused entertained any such intention or had any motive to overawe Govt. or to strike terror among people-No evidence directly or circumstantially that Rajiv Gandhi killed with intention contem­plated under Section 3(1)-No evidence that blasting of buildings -Vellore Fort, Police headquarters object of conspiracy or that was done with intention to overawe Government or to create terror among public-Similar is position regarding unspecified targets in Delhi-Inference cannot be drawn that act of killing of Rajiv Gandhi to overawe Government-Personal motive of Prabhakaran and others to commit terrorist act by killing Rajiv Gandhi-Under Section 3(1) of the Act overawing Govt. cannot be consequence but it has to be primary object-Terrorism synonymous with publicity-No offence-Either under Sections 3 or 4 of Act committed-Since there is no terrorist act and no disruptive activity under Sections 3 and 4-Charges under Sections 3(3), 3(4) and 4(3) of the Act fail against all accused. (Paras 187 to 189 and 191 to 198)

       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987-Sec­tion 15-Term ‘admissible’-Meaning of-When it says that confession admissible against co-accused it can only mean that it is substantive evidence against him as well as against maker of confession. (Para 60)

       (iii) Terrorist and Disruptive Activities (Prevention) Act, 1987-Confessions of accused to be voluntarily and validly made - Under Section 15 of TADA confession of accused admissible against co-accused as substantive evidence-Substantive evidence does not necessarily mean substantial evidence. (Para 68)

       (iv) Rajiv Gandhi assassination by human bomb-Indian Penal Code, 1860-Section 120-B read with Section 302-Terrorist and Disruptive Activities (Prevention) Act, 1987-Sections 3, 4 and 5-Explosive Substances Act, 1908-Sections 19 and 20-Arms Act, 1959-Section 25-Passport Act, 1967-Section 12-Foreigners Act, 1946-Section 14-Indian Wireless Telegraphy Act, 1933-Section 6 (1A) - Death Refer­ence - Criminal conspiracy - Explosion of human bomb resulting in extirpation of National Leader-With him fifteen persons including nine policemen perished - Forty-three suffered grievous or simple injuries-Case Laid against 41 persons-Twelve of whom already dead having committed suicide-Three absconded-Case tried against twenty-six persons-Designated Court found all guilty of offences charged against them-Awarded death sentence to all on charge of conspiracy to murder-Appeals by accused challenging conviction and sentence - No evidence against A-23, A-24, A-25 and A-26 that they were members of conspiracy - Rightly convicted and sentenced-A-26 also convicted and sentenced under Section 216 IPC-A-24 and A-25 also convicted and sentenced for offence under Section 14 of Foreigners Act -Conviction and sentence not challenged-A-12, A-14 and A-13 charged with offence under Section 212 IPC-A-12 and A-13 also charged with offence under Section 6(1A) of Wireless Telegraphy Act-A-12 and A-14 rightly convicted and sen­tenced-Convic­tion and sentence of A-11, A-13 and A-15 set aside-To be released forthwith A-21 and A-20 rightly convicted and sentenced for offences under Section 212 IPC and A-22 under Section 201 IPC-Each one of four accused A-1 (Nalini) - A-2 (Santhan), A-3 (Mugugan) and A-18 (Ariva) had role to play-Crime committed after previous planning -Executed with extreme brutality-A-1 (Nalini) willing party to crime-Merely because she is woman and mother of child born in custody cannot be ground not to award extreme penalty to her-All deserve extreme penalty-Award of sentence of death on them confirmed.

       Held : There is nothing unusual in Murugan (A-3) providing financial help to Padma (A-21) in view of the fact that he was staying in her house and also his having affair with Nalini (A-1). Charge of any conspiracy against Padma (A-21) and Bhagyanathan (A-20) must fail. Charge under Section 3(3) TADA against both of them also fails. They, however, have rightly been convicted and sentenced for offence under Section 212 IPC. (Para 253)

       We have independently examined the evidence with respect to charges against each of the accused. We acquit Shanthi (A-11), Selvaluxmi (A-13) and Shanmugavadivelu (A-15) of all charges. Their conviction and sentence are set aside. (Para 256)

       It is not that Nalini (A-1) did not understand the nature of the crime and her participation. She was a willing party to the crime. We have to see both the crime and the criminal. Nalini (A-1) in her associa­tion with Murugan (A-3) and others developed great hatred towards Rajiv Gandhi and wanted to have a revenge. Merely because Nalini (A-1) is a woman and a mother of the child who was born while she was in custody cannot be the ground not to award the extreme penalty to her. She is an educated woman and was working as a stenographer in a pri­vate firm. The crime sent shock waves in the country. General elections had to be postponed. It was submitted more than once that principal perpetrators in the present case are already dead but then for the support which Nalini (A-1). Santhan (A-2), Murugan (A-3) and Arivu (A-18) afforded for commission of the crime it could not have been committed. Each one of these four accused had a role to play. Crime was committed after previous planning and executed with extreme brutality. It is not that intensity of the belt bomb strapped on the waist of Dhanu was not known to the conspirators as after switching on the first switch on her belt bomb Dhanu asked Sivarasan to move away. Haribabu was so keen to have close-up picture of the crime that he met his fate in the blast itself. We are unable to find any mitigat­ing cir­cumstance not to upset the award of sentence of death on the accused. (Para 271)

       This is a case where all these Nalini (A-1), Santhan (A-2), Murugan (A-3) and Arivu (A-18) deserve extreme penalty. We confirm the award of sentence of death on them. (Para 272)

       Per K.T. Thomas, J. : I Concurring with learned brother Syed Shah Moham­med Quadri, J. and D.P. Wadhwa, J.

       (v) Rajiv Gandhi assassination case-Terrorist and Disruptive Acti­vi­ties (Prevention) Act, 1987-Sections 3, 4 and 5-Death reference-All activities done by many among accused arrayed for killing Rajiv Gandhi-Unfortunately Rajiv Gandhi not then-A person bound by oath under the Constitution to uphold sovereignty and integrity of India-Lok Sabha dissolved prior to incident-Not under oath as Member of Parliament-None of conspirators be caught under dragnet of Section 4(3) of TADA Act-Contention that conspirators intended to disrupt sover­eignty of India-Photos of houses of Government Secretariat T.N.-Legis-lative Assembly and Legislative Council-Police Head-quarters Central Jail despatched to LTTE top brass-Of course would be offence but not activity falling within purview of Section 4 of TADA Act-Conviction of appellants for offen­ces under Sections 3 and 4 of TADA Act cannot be sustained. (Paras 342 to 346)

       (vi) Indian Evidence Act, 1872 -Section 30-Confessional statement made by accused after his arrest-If admissible and reliable can be used against confessor as substantive evidence but its use against other co-accused limited only for purpose of corroboration of other evidence. (Para 387)

       (vii) Rajiv Gandhi Assassination case-Indian Penal Code, 1860-Section 120-B read with Section 302-Terrorist and Disruptive Acti­vities (Prevention) Act, 1987-Sections 19 and 20-Explosive Substances Act, 1908-Sections 3, 4 and 5-Arms Act, 1959-Section 25-Passports Act, 1967-Section 12-Foreigners Act, 1946-Section 14-Indian Wireless Telegraphy Act, 1933-Section 6(1A)-Death Refer­ence-Criminal con­spiracy-Explo­sion of human bomb resulting in extirpation of National Leader-Former Prime Minister of India-Rajiv Gandhi-Killing 18 others-Leaving 43 persons seriously injured-Case tried against 26 persons-Designated court on consi­deration of material found all twenty-six accused guilty of all charges framed against them-Awarded punishment of fine-Rigorous imprisonment of different period-Sen­tenced all of them to death on charge of conspiracy to murder - Appeals by convicts-Appeal of appellants as against conviction under Sections 212 and 216 of IPC, Section 14 of Foreigners Act-Section 6(1A) of Wireless and Telegraph Act-Section 3 of Wireless Act-Section 5 of Explosive Substances Act and Section 12 of Passports Act not pressed-Conviction of offences against A-1, A-2, A-3, A-9, A-10, A-16 and A-18 confirmed-Conviction passed by trial Court for offences under Sections 212 and 216 IPC, Section 14 Foreigners Act-Section 25(1B) of Arms Act-Section 5 of Explosive Substance Act-Section 12 of Passports Act and Section 6(1A) of Wireless and Telegraph Act in respect of those accused found guilty of those offences confirmed-Sen­tence of death passed on A-2, A-3, and A-18 who played prominently direct and active role and who were in leadership layer among conspirators confirmed-A-1 one of conspirators-Participated in the act of assassination of Rajiv Gandhi by playing very active role-Mere fact that she became obedient to all instructions of Sivarasan need not be used for treating her conduct as amounting to rarest of rare cases-She is mother of little female child born in captivity-On evaluation of plus and minus pros and cons sentence passed on her altered to one of imprisonment for life-A-9, A-10 and A-16 LTTE followers-Obeyed com­mands of leaders like Sivarasan who had capacity to dominate over them-Their sentence altered from death penalty to imprisonment for life.

       Held : We confirm the conviction passed by the trial Court for the offences under Sections 212 and 216 of the IPC, Section 14 of the Foreigners Act, 1946, Section 25(1-B) of the Arms Act, Section 5 of the Explosive Substances Act, Sec. 12 of the Passports Act, and Section 6(1-A) of the Wireless and Telegraph Act, 1933, in respect of those accused who were found guilty of those offences. However, as the sentence awarded by the trial Court in respect of those offences did not exceed imprisonment for a period of two years we are not disposed to disturb the sentence passed by the trial Court on those counts. It is for the jail authorities to consider the question of releasing those accused who have already undergone the period of rigorous imprisonment for two years, and against whom there is no conviction confirmed under any other counts of offence, as they are entitled to be set at liberty forthwith. (Para 619)

       In other words, except A-1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-9 (Royert Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arivu) all the remaining appellants shall be set at liberty forthwith. (Para 620)

       The conspirators in the Rajiv Gandhi assassination can be vivisected into four broad categories. First, those who formed the hard-core nucleus which took the decision to assassinate Rajiv Gandhi. Second, those who induced others to join the ring and played active as well as supervisory roles in the conspiracy. Third, those who joined the conspiracy by inducement whether through indoctrination or otherwise. Fourth, those among the conspirators who participated in the actual commission of murder. (Para 629)

       Persons who fall within the first category cannot normally escape from capital punishment if their case ends in conviction. Veluppillai Piribhakaran, Pottu Omman, Akila, Sivarasan and Trichy Santhan have been described as persons falling within the radius of the first category. As they were not tried for the offences so far we refrain from observing anything concerning them in the sphere of sentencing exercise. (Para 630)

       However, we can hold with certainty that A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) belonged to the second category even if they slip out of the first. They were not merely carrying out the orders of the first category personnel but they made others to work according to their directions in order to achieve the target. The role played by them was prominently direct and active. They were in the leadership layer among the conspirators. We are not able to find out anything extenuating as for the said three persons in their activities for implementation of the decisions of the cabal. (Para 631)

       We therefore confirm the extreme penalty imposed by the trial Court on A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) for the offence under Section 302 read with Section 120-B of the IPC. (Para 632)

       A-1 (Nalini) belongs to the fourth category. In the normal spectrum of consideration death penalty is the first priority to be chosen for her. She is an elderly and educated woman. One gets the impression, on reading her confession, that she was led into the conspiracy by play­ing on her feminine sentiments. She became an obedient participant without doing any dominating role. She was persistently brain-washed by A-3 (Murugan) who became her husband and then the father of her child. Considering the fact that she belongs to the weaker sex and her helplessness in escaping from the cobweb of Sivarasan and company the mere fact that she became obedient to all the instructions of Sivara­san, need not be used for treating her conduct as amounting to “rarest of the rare cases” indicated in Bachan Singh’s case, 1980(2) SCC 684. (Para 633)

       Thus, on an evaluation of the plus and minus, pros and cons we per­suade ourselves to save A-1 (Nalini) from gallows. Hence the sentence passed on her is altered to one of imprisonment for life. (Para 635)

       What remains is the case of A-9 (Robert Payas), A-10 (Jayakumar), and A-16 (Ravichandran). They do not belong to the first or even to the second category. They were LTTE followers and they just obeyed the commands of leaders like Sivarasan who had the capacity to dominate over them. We are inclined to alter their sentence from death penalty to imprisonment for life. We order so. (Para 636)

       Per Syed Shah Mohammed Quadri J. : Concurring with Learned brethern K. T. Thomas, J. and D. P. Wadhwa J.

       (viii) Rajiv Gandhi assassination case-Terrorist and Disruptive Acti­vities (Prevention) Act, 1987-Sections 3, 4 and 5-Death Refer­ence-Provisions of sub-sections (2), (3) and (4) of Section 3 of the Act attracted only when person accused of offences committed ‘a ter­rorist act’ within meaning of Section 3(1)-Additional Solicitor General submitted omission to mention ingredient of charge did not result in misleading accused persons-Though words ‘to overawe the Government not mentioned in charge-Charge not bad in law-Question does not relate to defect in charge but to content of charge -Without said germane words in charge-Cannot be said that charge includes intention to overawe Government-Charge framed confined only to those acts referred to therein-Conviction recorded by Designated Court in Judg­ment under appeal for offences under TADA Act not maintainable-Appel­lant acquitted of charges under TADA Act. (Paras 647 & 648)

       (ix) Indian Evidence Act, 1872-Section 30-Confession of accused against co-accused-Rule of prudence cautions judicial discretion that it cannot be relied upon unless corroborated generally by other evi­dence on record. (Para 701)

       (x) Rajiv Gandhi assassination case-Indian Penal Code, 1860-Section 120-B read with Section 302-Terrorist and Disruptive Activities (Preven­tion) Act, 1987-Sections 19 and 20-Explosive Substances Act, 1908-Sections 3, 4 and 5-Arms Act, 1959-Section 25-Passport Act, 1967-Section 12-Foreigners Act, 1946-Section 14-Indian Wireless Telegrapy Act, 1933 - Section 6(1A) - Death Reference-Criminal con­spiracy-Explosion of human bomb resulting in extirpation of National Leader-Former Prime Minister of India-Rajiv Gandhi-Killing 18 oth­ers-Leaving 43 persons seriously injured-Case tried against 26 persons-Designated court on consideration of material found all twenty six accused guilty of all charges framed against them - Awarded punishment of fine-Rigorous imprisonment of different period-Sen­tenced all of them to death on charge of conspiracy to murder-Appeal ­by convicts-Appeal regarding conviction of appellants for offences under various provisions of IPC, Explosive Substances Act, Arms Act, Passport Act, Foreigners Act and Telegraph Act not pressed -On examining state­ment of confession and evidence both oral and documentary and agreeing with Thomas, J.-Conviction of A-1, A-2, A-3, A-9, A-10, A-16 and A-18 confirmed-Death sentence award­ed by designated Court to A-2, A-3, and A-18 justified-Confirmed agreeing with Thomas, J. as well as Wadhwa J.-Case of A-1 (Nalini) found to fall in rarest of rare cases-De­clining to confirm death sentence will stultify course of law and justice-Sentence of life imprisonment for life inadequate-No alter­native but to confirm death sentence of A-1 (Nalini) awarded by Desig­nated Court agreeing with Wadhwa, J.-Conviction of A-4, A-5, A-6, A-7, A-8, A-11, A-13, A-14, A-15, A-17, A-19, A-20, A-21, A-22, A-23, A-24, A-25, A-26 for offence under Section 120-B read with Section 302 IPC set aside-Agreeing with Thomas, J. not a fit case to confirm death sen­tence awarded to A-9, A-10 and A-16 and their death sentence commuted to life imprisonment-Appeals allow­ed to this extent.

       Held : A crime committed on Indian soil against the popular national leader, a former Prime Minister of India, for a political decision taken by him in his capacity as the head of the executive and which met with the approval of the Parliament, by persons running political organisa­tion in a foreign country and their agents in concert with some Indi­ans for the reason that it did not suit their political objectives and of their organisation, cannot but be a ‘rarest of the rare’ case. In such a case the part played by A-1 (Nalini) is a candid participation in the crime of conspiracy to assassinate Shri Rajiv Gandhi who was himself a young popular leader so much loved and respected by his fellow citizens and had been the Prime Minister of India. The conspir­ators including A-1 (Nalini) had nothing personal against him but he was targeted for the political decision taken by him as the Prime Minister of India. She inspite of being an Indian citizen joined the gang of conspirators and engaged herself in pursuit of common inten­tion to commit the crime only because she was infatuated by the love and affection developed for A-3 (Margin), and thus played her part in execution of the conspiracy which resulted in the assassination of Shri Rajiv Gandhi and death of many police officers and innocent citizens including a small girl. For a person like A-1, taking into consideration all the mitigating circumstances, in my view, there is no room for any leniency, kindness and beneficence. (719)

       Once A-1 (Nalini) is found to fall in the rarest of the rare case, declining to confirm the death sentence will, in my view, stultify the course of law and justice. (Para 720)

       The sentence of imprisonment for life is inadequate and there is no alternative but to confirm the death sentence awarded by the Designat­ed Court to A-1 (Nalini). Therefore, with respect I concur with broth­er Wadhwa, J. in confirming the death sentence of first appellant A-1 (Nalini) awarded by the Designated Court. (Para 722)

       In the result I agree with brother Thomas, J. and set aside the con­viction of all the appellants recorded by the Designated Court for offences under the TADA Act mentioned in category ‘B’ and also the conviction A-4 (Shankar @ Koneswaran), A-5 (D. Vijayanandan @ Hari Ayya), A-6 (Sivaruban @ Suresh @ Suresh Kumar @ Ruban), A-7 (S. Kana­gasabapathy @ Radhayya), A-8 (A. Chandralekha @ Athirari @ Sonia @ Gowri), A-11 (J. Shanthi), A-12 (S. Vijayan @ Perumal Vijayan), A-13 (V. Selvaluxmi), A-14 (S. Bhaskaran @ Velayudam), A-15 (S. Shanmugava­divelu @ Thambi Anna), A-17 (M. Suseemdram @ Mahesh), A-19 (S. Irumbo­rai @ Duraisingam), A-20 (S. Bhagyanathan), A-21 (S. Padma), A-22 (A. Sundaram), A-23 (K. Dhanasekaran @ Raju), A-24 (N. Rajasuriya @ Rangan), A-25 (T. Vigneswaran @ Vicky), A-26 (J. Ranganath) for the offences under Section 120-B read with Section 302 IPC. Their appeals are accordingly allowed. (Para 723)

       Agreeing with brother Thomas, J. I confirm the conviction of A-1 (Nalini), A-2 (Santhan) and A-3 (Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arvind) finding them guilty of offences under Section 120-B read with Section 302 IPC. (Para 724)

       On the facts and in the circumstances, I am also of the same view as expressed by brother Thomas, J. that it is not a fit case to confirm the death sentence awarded to A-9 (Robert Payas), A-10 (Jayakumar) and A-16 (Ravichandran) and their death sentence is commuted to life imprisonment and their appeals are allowed to this extent. (Para 725)

       The death sentence awarded to A-1 (Nalini), A-2 (Santhan), A-3 (Muru­gan) and A-18 (Arivu) is confirmed the death sentence of A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) agreeing with Thomas, J. as well as Wadhwa, J. and the death sentence of A-1 (Nalini) agreeing with Wadhwa, J. (Para 726)

       Per K.T. Thomas, D.P. Wadhwa & Syed Shah Mohammed Quadri, JJ.

       (xi) Rajiv Gandhi Assassination Case - Terrorist and Disruptive Activi­ties (Prevention) Act, 1987-Sections 3(3), 3(4) and 5-Indian Penal Code, 1860-Sections 212 and 216-Section 120-B read with Section 302-Foreign­ers Act, 1946 -Section 14-Arms Act, 1959- Section 25(1B)-Explosive Substances Act, 1908-Section 5-Passport Act, 1967-Section 12-Wire­less and Telegraph Act, 1933-Section 6(1-A)-Death Reference - Case tried against twenty-six persons-Court while acquitting nineteen accused of charges of conspiracy to murder Rajiv Gandhi confirmed-Conviction under various other charges-Court set aside their conviction under TADA Act-Upheld conviction under IPC, Foreigners Act, Explosive Substances Act, Passport Act and Telegraph Act-Accused if already undergone period of sentence under those counts-Jail authorities to release such of those against whom no other conviction and sentence exceeding said period passed-Con-viction and sentence of offence under Section 302 read with Section 120-B passed on remaining accused by trial Court set aside-Sentence of death passed by trial Court on A-1 (Nalini), A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) confirmed-Death sentence passed on A-9, A-10, A-16 altered to imprisonment for life-All re­maining appellants set at liberty. (Paras 728 to 732)