Terrorist and Disruptive Activities (Prevention) ACT. 1987:

Ss. 15, 21 - Evidentiary value of confession recorded by Police Officer under S. 15 against its maker and against co-accused, abettor or Conspirator - Effect of non-obstante clause in S. 15(1) - S. 30 of Evidence Act, whether excluded - Amending Act 43 of 1993 - Addition of words "or co accused, abettor or conspirator" in S. 15 (1) and deletion of clauses (c) and (d) of S. 21 - Effect of - Confession of an accused - Admissibility as a substantive evidence against himself as well as a co-accused, abettor or Conspirator.

S. 15 - Voluntary Confession - Sufficient time given to accused for reflection before making confession - Confession recorded shortly before expiry of remand - Effect of.

S. 3 - Applicability - Conditions for - Mens rea and criminal act - Commission of terrorist act a sine qua non - Intention to overawe the Government, to strike terror in people, to alienate any section of the people or to adversely affect the harmony amongst sections of the people - Intention and consequence - Distinction between. Ss. 4(1) & 4(3) - Disruptive activity - Acts preceding the killing such as advocating, advising, inciting etc. of killing a public servant or any person bound by oath, and not the act of killing alone, would amount to disruptive activity. 

Ss. 3, 4, 12 and 15 - Confession under S. 15 - Accused tried for offences under Ss. 3 and 4 as well as under other criminal laws - Even if offences under Ss. 3 and 4 not made out, confession made under S. 15 would continue to be admissible for offences under other laws.

TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) RULES, 1987: 

Rule 15(3) - Confession - Omission to affix signature on certain pages - Not fatal since confession corroborated in material particulars by independent evidence apart from evidence of Co-accused - Ss. 164, 463 Cr. P.C.

EVIDENCE ACT, 1872:

S. 30 - Applicability of - Conditions - Difference between S. 30 of Evidence Act and S. 15 of TADA Act.

S.10 - Scope and conditions for applicability of - Principle of agency between every conspirator and his associate underlies this provision - Statement made by one conspirator admissible against another conspirator only during the period of subsistence of agency - Conspirator's connection with the conspiracy - Not necessarily snapped after his arrest - Existence of conspiracy - Proof of.

PENAL CODE, 1860:

Ss. 120-A, 120-B, and 302 - Criminal conspiracy - Ingredients Principles governing law of conspiracy - Mere associates however close or even knowledge of conspiracy not enough - Agreement essential for offence of conspiracy.

S.302 r/w, S.120-B - Code of Criminal Procedure, 1973 - Ss. 354(3) and 235(2) - Sentencing - Death sentence or life imprisonment - Test of rarest of rare case - Court to take into account the crime and the criminal as also the aggravating and mitigating circumstances - On the facts and circumstances of the case, Held, per majority: four out of seven accused sentenced to death - Three accused sentenced to life imprisonment.

CODE OF CRIMINAL PROCEDURE, 1973:

S.300 - Scope of - Second trial on the ground that some more allegations were not made in the first trial - Not to be allowed - Double jeopardy -  Constitution of India, Art, 20(2).

Ss. 215 & 465 - Charges - Defects in charge-sheet alleged - Powers of Reference Court.

S.313 - Improper examination of accused - Examination by Reference Court to correct the error - Scope of.

LEGAL MAXIMS

(1) Actus non facit reum mens nisi sit rea - Applicability of.

2) Justicia non novit patrem nee matrem - Applicability of.

(3) Nemo debet is vexari pro eadem causa - Meaning and applicability of.

WORDS & PHRASES

"Substantive Evidence", "Shall presume" - Meaning of.

On May 21, 1991 in Sriperambadur in Tamil Nadu at 10.20 p.m. a human bomb exploded which resulted in the death of former Prime Minister Shri Rajiv Gandhi as also 18 others and leaving 43 persons seriously injured.

According to the prosecution, this was the handi work of LTTE because of its hatred towards Rajiv Gandhi since LTTE believed that it was forced to be a signatory to the Indo-Sri Lankan accord signed on July 22, 1987. In accordance with the said accord, Government of India took upon itself certain role of maintaining peace in Sri Lanka and disarming of LTTE, for which purpose the Government of India sent Indian Peace Keeping Force (IPKF). It was alleged that IPKF committed atrocities against Tamilians in Sri Lanka which gave rise to a grouse mainly against Rajiv Gandhi, which resulted in a conspiracy hatched by LITE to eliminate him. LTTE Supremo Prabhakaran and some important functionaries in LTTE viz. Pottu Amman, Akila and Sivarasan master minded the plan to kill Rajiv Gandhi and it was executed by Sivarasan and Thanu with the back up of other accused. The criminal. conspiracy was hatched at various places in Sri Lanka and India. Certain illegal acts were contemplated in furtherance of the conspiracy viz. to infilerate into India clandestinely, to carry and use unauthorised arms, ammunition and explosives, to set up and operate unauthorised wireless sets in India for communicating with LTTE leaders in Sri Lanka from time to time, to carry out acts of terrorism and disruptive activities in Tamil Nadu and other places in India so as to scare and create panic in the minds of the people and thereby to strike terror in the people; in the course of the said acts, to assassinate Rajiv Gandhi and others, to cause disappearance of evidence thereafter and to escape, to screen themselves from being apprehended, to harbour the accused and to escape from the clutches of law and to do other acts necessary to carry out the objects of the criminal conspiracy as per the needs of the situation and ultimately to carry out the objects of the abovesaid criminal conspiracy.

 In all 26 accused - 13 Indians and 13 Sri Lankans were charged with for the assasination of Rajiv Gandhi. The Designated Court framed 251 charges against the accused. Charge no. 1 was under Section 120B read with Section 302 IPC, which charge is common to all the accused. In respect of the other 250 charges, the accused were separately tried under different heads viz. Sections 3,4 and 5 of TADA Act, under various provisions of IPC, Sections 3,4 and 5 of the Explosive Substances Act 1908, Section 25 of the Arms Act, 1925, Section 12 of the Passport Act 1957, Section 14 of the Foreigners Act, 1947 and under Section (IA) of the Wireless Telegraphy Act 1933.

Apart from the above said 26 accused, chargesheets were also laid against LTTE Supremo Prabhakaran, Chief of Intelligence Wing of LTTE Pottu Amman and Deputy Chief of Intelligence Wing of LTTE Akila for various offences including the main offence under Section 302 IPC read with Section 120B IPC and Sections 3 and 4 of TADA Act. Steps to apprehend three of the main accused viz. Prabhakaran, Pottu Amman and Akila did not succeed and so they were proclaimed as absconding offenders. The charge sheet also mentioned 12 other persons as Co-conspirators. Among the 12, two died on the spot (Thanu and Hari Babu) and the remaining 10 persons died subsequently, the prominent among them being sivarasan. Thus, in the final charge-sheet filed by CBI, 26 accused were arraigned as members of the conspiracy which targeted Rajiv Gandhi. The Special Judge who tried the case found all the 26 accused-appellants guilty of various offences charged, the main among them being under Section 302 read with Section 120 IPC. He convicted all the accused and sentenced them to death.

State has filed a death reference case for confirmation of the death sentence imposed on all the accused.

The criminal appeals have been filed by the appellant-accused.

On behalf of the appellant-accused it was contended that the object of the conspiracy was to assassinate Rajiv Gandhi and not to commit any terrorist act or disruptive activity falling under Sections 3 and 4 of TADA. Thus, the existence of conspiracy was not disputed; it was only contested as regards the objects of the conspiracy and who were the members of the conspiracy. It was contended that the confessions were not voluntary and have been retracted by the accused; that except for A-15, whose confession was recorded on the following day of his arrest and in the case of other accused confessions have been recorded only a day or so, before the police remand was to expire, that in the case of A-1 and A-18 mandatory safeguards have been violated; that the confession of one accused could not have been used for corroboration of the confession of another accused that all the accused were kept together in a building which was the headquarters of CBI and that a Sub-Jail was denotified as jail and handed over to CBI and converted into Police Station and all the accused were transferred there and again kept together under the control of Special Investigation team of CBI; that infact as required by law, the accused should have been kept separated and sufficient time should have been given to them to reflect if they wanted to make the confession that all the confessions were post arraigned confessions and even with reference to Section 10 of Evidence Act the confession of one accused cannot be used against as the other; that it could not be said that the object of conspiracy was not accomplished by the assassination of Rajiv Gandhi and that the conspiracy was still in existence; that as regards the confession of A-1 she had referred some of the accused arraigned before the Court including A-10 though he came into the picture after the assassination was completed; that A-1 had denied in her statement under Section 313 Cr.P.C. that her confession was voluntary; that the fact remained that blank papers were got signed from her and so her confession did not satisfy the requirement of law under S.15 of TADA and Rule 15(3) of TADA Rules; that it is not disputed that all the confessions were recorded by PW 52, the Superintendent of Police; that in the confession of A-1 out of 18 pages, only pages 1 to 16 bear her signatures while pages 17 and 18 which are crucial to the confession do not bear her signature; that the Police Officer has appended his certificate at the end of the confession but his recording of the Certificate is immaterial if the accused did not append his/her signature at the end of the confession; thus the omission of signature of A.1 can not cure the defect.

On behalf of the State, it was contended that the non-obstante limb in Section 15(1) of TADA "notwithstanding anything in the Code or in the Indian Evidence Act" is a clearer legislative indicator to permit a confession made by an accused against the co-accused to be used with the same force as can be used against the confessor himself; and that the position became clearer after the sub-section was amended by Act 43 of 1993; that the amplitude of S.10 of the Evidence Act is so large as to render any statement made by a conspirator as substantive evidence if it has succeeded in confirming with the other conditions of the Section; that the decision in Kalpnath Rai's case needs reconsideration; that the provisions of Sections 15 and 21 of TADA after their amendment provided that a confession of an accused is now admissible in evidence against co-accused; that it is the substantive evidence against the co-accused as well; and that the concept of drawing presumption as mentioned in Section 21 no more existed.

In the Death Reference, a plea was taken on behalf of the accused, for not confirming the death sentence on A-1. It was pleaded that she is a woman and is a mother of a small girl who was born during the period of her confinement in jail; that she is very young; that she has also subsequently regretted her act and her participation was the result of indoctrination; and that she did not play any major role.