1

NOTE: This document (3 of 3) on the Supreme Court Verdict of Rajiv Gandhi

Assassination Trial, was prepared for online posting by Dr. Sachi Sri Kantha (Tokyo,
Japan), from publicly available court records, Central Bureau of Investigations (CBI)
website in India. This verdict was delivered on May 11, 1999 in New Delhi, by Supreme
Court Justice S.S.M. Quadri.
The date of preparation of this document: June 27, 2021. Total number of pages 31.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

DEATH REFERENCE NO.1 OF 1998

(Arising out of D.No.1151/1998)

State of Tamil Nadu through Superintendent of Police, CBI/SIT ....Petitioner/Appellant

Versus Nalini and 25 others ....Respondents

W I T H CRIMINAL APPEAL NO.321 OF 1998

T.Suthenthiraraja alias Santhan & Ors. .…Appellants

Versus State by D.S.P., CBI, SIT, Chennai ….Respondent

W I T H CRIMINAL APPEAL NO.322 OF 1998

P.Ravichandran & Ors. ….Appellants

Versus State by D.S.P., CBI, SIT, Chennai ….Respondent

W I T H CRIMINAL APPEAL NO.323 OF 1998

Robert Payas & Ors ....Appellants

Versus State by D.S.P., CBI, SIT, Chennai ….Respondent

 2

W I T H CRIMINAL APPEAL NO.324 OF 1998

S.Shanmugadivelu & Ors. ….Appellants

Versus State by D.S.P., CBI, SIT, Chennai ….Respondent

W I T H CRIMINAL APPEAL NO.325 OF 1998

S.Nalini & Ors. ….Appellants

Versus State by D.S.P., CBI, SIT, Chennai ….Respondent

JUDGEMENT

Justice S. SHAH MOHAMMED QUADRI,

I have had the advantage of going through the draft judgments prepared by my noble
and learned brethern, Hon’ble Mr. Justice K.T.Thomas and Hon’ble Mr. Justice
D.P.Wadhwa. In view of different notes struck by them on some aspects, I am
expressing my views separately.

The facts are stated somewhat exhaustively in their judgments. To recapitulate briefly, it
may be noted that May 21, 1991 witnessed a terrible happening -- explosion of human
bomb, an unprecedented event in Sriperambudur (Tamil Nadu) at 10.20 p.m. -- which
resulted in extirpation of a National leader, a former Prime Minister of India, Shri Rajiv
Gandhi, killing of 18 others and leaving 43 persons seriously injured. This incident was
a result of wickedly hatched conspiracy which was skillfully planned and horridly
executed. While in office as Prime Minister of India, Shri Rajiv Gandhi, to bring about
a settlement of disputes between Tamil-speaking ethnic minority and Government of Sri
Lanka, signed Indo-Sri Lankan Accord on July 22, 1987 under which the Government
of India took upon itself certain role. A prominent organisation of Tamils - Liberation
Tiger of Tamil Elam (LTTE) - was among the signatories to that Accord. In discharge
of its obligation under the Accord, Government of India sent Indian Peace Keeping
Force (IPKF) to Sri Lanka to disarm LTTE. This fact together with the alleged atrocities
of IPKF against Tamilians in Sri Lanka and non-cooperation of Government of India
with the LTTE, at what is termed as the hour of their need, gave rise to grouse which
culminated in plotting of a conspiracy to assassinate Shri Rajiv Gandhi, which was put
through on the fateful day, May 21, 1991. It caused severe blow to the democratic
 3

process, sent shock waves throughout the world and the nation had to pass through
excruciating time.

The investigation of that horrible incident was entrusted to the Central Bureau of
Investigation (CBI)/Special Investigating Team (SIT). On June 26, 1992, after a lengthy
investigation, the SIT filed charge sheet in respect of offences under the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (TADA), Indian Penal Code, 1890 (IPC),
Explosive Substances Act, 1908, Arms Act, 1959, Passport Act, 1967, Foreigners Act,
1946 and the Indian Wireless Telegraphy Act, 1933, against 41 persons, 12 of them died
(2 in the blast and 10 having committed suicide) and three were declared absconding.
The case was thus tried against the following 26 accused persons: A-1 (S.Nalini), A-2
(T.Suthendraraja alias Santhan), A-3 (Sriharan alias Murugan alias Thas alias Indu
Master), A-4 (Shankar alias Koneswaran), A-5 (D. Vijayanandan alias Hari Ayya), A-6
(Sivaruban alias Suresh alias Suresh Kumar alias Ruban), A-7 (S. Kanagasabapathy
alias Radhayya), A-8 (A.Chandralekha alias Athirai alias Sonia alias Gowri), A-9
(B.Robert Payas alias Kumaralingam), A-10 (S.Jayakumar alias Jayakumaran alias
Jayam), A-11 (J.Shanthi), A-12 (S.Vijayan alias Perumal Vijayan), A-13
(V.Selvaluxmi), A-14 (S.Bhaskaran alias Velayudam), A-15 (S. Shanmugavadivelu
alias Thambi Anna), A-16 (P.Ravichandran alias Ravi alias Pragasam), A-17
(M.Suseemdram alias Mahesh), A-18 (G.Perarivelan alias Arivu), A-19 (S.Irumborai
alias Duraisingam), A-20 (S.Bhagyanathan), A-21 (S.Padma), A-22 (A.Sundaram),
A-23 (K.Dhanasekaran alias Raju), A-24 (N.Rajasuriya alias Rangan), A-25
(T.Vigneswaran alias Vicky), A-26 (J.Ranganath). Thirteen of these accused are Sri
Lankan and an equal number comprises of Indians.

The Designated Court framed as many as 251 charges of which Charge No.1 is common
to all the accused for the other 250 charges, accused are charged separately under
different heads. For the sake of brevity, all charges can be conveniently classified under
three categories --

A. Under Section 120-B read with Section 302 IPC;

B. Under Sections 3,4 and 5 of the TADA Act; and

C. (i) Under various provisions of IPC

(ii) Under Sections 3,4 and 5 of the Explosive Substances Act, 1908;
 4

(iii) Section 25 of the Arms Act, 1959;

(iv) Section 12 of the Passport Act, 1967;

(v) Section 14 of the Foreigners Act, 1946;

i.Section 6(1A) of the Wireless Telegraphy Act, 1933.

To bring home the guilt of the accused in respect of the charges framed against each of
them, the prosecution placed on record confessions of seventeen accused and also
plethora of evidence. It examined 288 witnesses exhibited 1448 documents, marked
Exs.P-1 to P-1448.

The Designated Court, on consideration of the material placed before it, found all the
twenty six accused guilty of all the charges framed against them and awarded
punishment of fine of varying amounts, rigorous imprisonment of different period and
sentenced all of them to death. The Designated Court referred the case to this Court for
confirmation of death sentence of all the convicts, numbered as Death Reference No.1
of 1998. The convicts filed appeals, Criminal Appeals 321 to 324 of 1998, against their
conviction for various offences and the sentence awarded to them. These cases were
heard together.

Mr. Natarajan, learned senior counsel for the appellants (except Appellant No.15),
assisted by the team of able and thoroughly prepared instructing counsel, Mr.
Subramaniam for the appellant No.15 and Mr. Altaf Ahmed, learned Additional
Solicitor General for the Prosecution, assisted by competent and proficient advocates
and departmental officers, very ably and exhaustively argued the cases for over three
months.

Regarding conviction of the appellants for offences mentioned in Category ‘C’ noted
above, the learned counsel for appellants submitted that they were not pressing the
appeals on that aspect as all the appellants had served out the sentence thereunder.

The conviction of appellants under the provisions of TADA Act, noted in category ‘B’
above, had been found to be unsustainable by my learned brethern in their separate
opinions and I am in respectful agreement with the same.
 5

The provisions of sub-sections (2), (3) and (4) of Section 3 of TADA Act would be
attracted only when a person accused of the offences under the said provisions, has
committed ‘a terrorist act’ within the meaning of Section 3(1) of the TADA Act.
Section 3(1) reads as under:

"3(1). Punishment for terrorist acts - Whoever with intent to overawe the Government
as by law established or to strike terror in the people or any section of the people or to
alienate any section of the people or to adversely affect the harmony amongst different
sections of the people does any act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or fire-arms or other lethal weapons or
poisons or noxious gases or other chemicals or by any other substances (whether
biological or otherwise) of a hazardous nature in such a manner as to cause, or as is
likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or
destruction of, property or disruption of any supplies or services essential to the life of
the community, or detains any person and threatens to kill or injure such person in order
to compel the Government or any other person to do or abstain from doing any act,
commits a terrorist act."

A perusal of the provision, extracted above, shows that it embodies the principle
expressed in the maxim ‘actus non facit reum nisi mens sit rea’; both ‘mens rea’ and a
criminal act are the ingredients of the definition of ‘Terrorist Act’. The mens rea
required is the intention (i) to overawe the Government as by law established; or (ii) to
strike terror in the people or any section of the people; or (iii) to alienate any section of
the people; or (iv) to adversely affect the harmony amongst different sections of the
people. The actus reus should comprise of doing any act or thing by using bombs,
dynamite or other explosive substances or inflammable substances or fire-arms or other
lethal weapons or poisons or noxious gases or other chemicals or by any other
substances (whether biological or otherwise) of a hazardous nature in such a manner as
to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of,
or damage to, or destruction of, property or disruption of any supplies or services
essential to the life of the community, or detaining any person and threatening to kill or
injure such persons in order to compel the Government or any other persons to do or
abstain from doing any act.

Mr.Altaf Ahmed, learned Additional Solicitor General, has developed an ingenious

argument that as the acts which are committed by the accused persons have the
potentiality to overawe the Government and to strike terror in the people or any section
 6

of the people, the required mens rea has to be inferred. A perusal of the charges
discloses that the intention to overawe the Government is not mentioned therein.
However, Mr.Altaf Ahmed relying upon the provisions of Sections 211, 212, 215, 464
and 465 of the Criminal Procedure Code has submitted that omission to mention the
ingredient of the charge did not result in misleading the accused persons and though the
words ‘to overawe the Government’ were not mentioned in the charge, the charge is not
bad in law. He relied on Tulsi Ram vs. State of U.P. (1963) Suppl. 1 SCR 382; Willie
(William) Slaney vs. The State of Madhya Pradesh (1956) 2 SCR 1140; R.S.Pandit vs.
State of Bihar (1963) Suppl. 2 SCR 652; Chittaranjan Das vs. State of West Bengal
(1964) 3 SCR 237; and Jaswantri Manilal Akhaney vs. The State of Bombay (1956)
SCR 483 in support of his contentions. In my view, the question here does not relate to
defect in the charge but to the content of the charge and without the said germane words
in the charge, it cannot be said that the charge includes the intention to overawe the
Government. The charge framed is confined only to those acts which are referred to
therein. This is also the view expressed by my learned brethern. Therefore, the
conviction recorded by the Designated Court in the judgment under appeal for offences
noted in Category ‘B’ under the TADA Act cannot be maintained. The appellants are
accordingly acquitted of the charges under TADA Act.

Now remains the charge under Section 120-B read with Section 302 IPC noted in
Category ‘A’ above, which is substantial and important. Brother Thomas,J. in his
precise and well considered opinion found A-1 (Nalini), A-2 (Santhan), A-3 (Murugan),
A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arivu) guilty
of offence under Section 120-B read with Section 302 IPC and sentenced A-1, A-9,
A-10 and A-16 to life imprisonment and A-2, A-3 and A-18 to death, while brother
Wadhwa,J., on very exhaustive consideration, held A-1 (Nalini), A-2 (Santhan), A-3
(Murugan) and A-18 (Arivu) guilty of the said offence and sentenced them to death.

There is no controversy about the horrible occurrence of human bomb blast in

Sriperumbudur in the night of May 21, 1991 causing death of Shri Rajiv Gandhi and
eighteen others and grevious injuries to 43 persons. The controversy is about who are
responsible for this horrendous crime? The question is whether the conviction of the
appellants or any of them under Section 120-B r/w 302 IPC is sustainable in law and in
respect of whom the punishment of death sentence can be confirmed.

To record conviction under Section 120-B, it is necessary to find the accused guilty of
criminal conspiracy as defined in Section 120-A of IPC which reads as under :
 7

"120A. Definition of criminal conspiracy - When two or more persons agree to do, or
cause to be done -

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement

is designated a criminal conspiracy :

Provided that no agreement except an agreement to commit an offence shall amount to a

criminal conspiracy unless some act besides the agreement is done by one or more
parties to such agreement in pursuance thereof.

Explanation - It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object."

The ingredients of the offence of criminal conspiracy are: (i) an agreement between two
or more persons; (ii) the agreement must relate to doing or causing to be done either (a)
an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. The
proviso and the explanation are not relevant for the present discussion.

Though the meeting of minds of two or more persons for doing/or causing to be done an
illegal act or an act by illegal means is a sine qua non of the criminal conspiracy, yet in
the very nature of the offence which is shrouded with secrecy no direct evidence of the
common intention of the conspirators can normally be produced before the Court.
Having regard to the nature of the offence, such a meeting of minds of the conspirators
has to be inferred from the circumstances proved by the prosecution, if such an
inference is possible.

In Sardar Sardul Singh Caveeshar vs. State of Maharashtra [(1964) 2 SCR 378], Subba
Rao,J. speaking for himself and his learned colleagues, observed :

"The essence of conspiracy is, therefore, that there should be an agreement between
persons to do one or other of the acts described in the section. The said agreement may
be proved by direct evidence or may be inferred from acts and conduct of the parties."

In Shivnarayan Laxminarayan Joshi & Ors. vs. State of Maharashtra [(1980) 2 SCC
465], S.Murtaza Fazal Ali,J., speaking for a two-Judge Bench, observed:
 8

"It is manifest that a conspiracy is always hatched in secrecy and it is impossible to

adduce direct evidence of the same. The offence can be only proved largely from the
inferences drawn from acts or illegal omission committed by the conspirators in
pursuance of a common design which has been amply proved by the prosecution as
found as a fact by the High Court."

In Mohammad Usman Mohammed Hussain Maniyar & Ors. vs. State of Maharashtra,
[(1981) 2 SCC 443], another two-Judge Bench of this Court pointed out :

"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. In this case, the fact that the
appellants were possessing and selling explosive substances without a valid licence for
a pretty long time leads to the inference that they agreed to do and/or caused to be done
the said illegal act, for, without such an agreement the act could not have been done for
such a long time."

In State of Himachal Pradesh vs. Krishan Lal Pardhan & Ors. [(1987) 2 SCC 17[,
Natarajan,J. observed :

"In the opinion of Special Judge every one of the conspirators must have taken active
part in the commission of each and every one of the conspiratorial acts and only then the
offence of conspiracy will be made out. Such a view is clearly wrong. The offence of
criminal conspiracy consists in a meeting of minds of two or more persons for agreeing
to do or causing to be done an illegal act or an act by illegal means, and the performance
of an act in terms thereof. If pursuant to the criminal conspiracy the conspirators
commit several offences, then all of them will be liable for the offences even if some of
them had not actively participated in the commission of the offences."

In State of Maharashtra & Ors. vs. Somnath Thapa & Ors. [(1996) 4 SCC 659],
Hansaria,J., speaking for a three-Judge Bench of this Court after elaborate discussions
of the various judgments of this Court, concluded thus :

"To establish a charge of conspiracy knowledge about indulgence in either an illegal act
or a legal act by illegal means is necessary. In some cases, intent of unlawful use being
made of the goods or services in question may be inferred from the knowledge itself.
This apart, the prosecution has not to establish that a particular unlawful use was
 9

intended, so long as the goods or service in question could not be put to any lawful use.
Finally, when the ultimate offence consists of a chain of actions, it would not be
necessary for the prosecution to establish, to bring home the charge of conspiracy, that
each of the conspirators had the knowledge of what the collaborator would do, so long
as it is known that the collaborator would put the goods or service to an unlawful use."

From a survey of cases, referred to above, the following position emerges:

In reaching the stage of meeting of minds, two or more persons share information about
doing an illegal act or a legal act by illegal means. This is the first stage where each is
said to have knowledge of a plan for committing an illegal act or a legal act by illegal
means. Among those sharing the information some or all may form an intention to do an
illegal act or a legal act by illegal means. Those who do form the requisite intention
would be parties to the agreement and would be conspirators but those who drop out
cannot be roped in as collaborators on the basis of mere knowledge unless they commit
acts or omissions from which a guilty common intention can be inferred. It is not
necessary that all the conspirators should participate from inception to the end of the
conspiracy; some may join the conspiracy after the time when such intention was first
entertained by any one of them and some others may quit from the conspiracy. All of
them cannot but be treated as conspirators. Where in pursuance of the agreement the
conspirators commit offences individually or adopt illegal means to do a legal act which
has a nexus to the object of conspiracy, all of them will be liable for such offences even
if some of them have not actively participated in the commission of those offences.

The agreement, sine qua non of conspiracy, may be proved either by direct evidence
which is rarely available in such cases or it may be inferred from utterances, writings,
acts, omissions and conduct of the parties to the conspiracy which is usually done. In
view of Section 10 of the Evidence Act anything said, done or written by those who
enlist their support to the object of conspiracy and those who join later or make their
exit before completion of the object in furtherance of their common intention will be
relevant facts to prove that each one of them can justifiably be treated as a conspirator.

Section 10 of the Evidence Act recognises the principle of agency and it reads as
follows:

"10. Things said or done by conspirator in reference to common design.- Where there is
reasonable ground to believe that two or more persons have conspired together to
 10

commit an offence or an actionable wrong, anything said, done or written by any one of
such persons in reference to their common intention, after the time when such intention
was first entertained by any one of them, is a relevant fact as against each of the persons
believed to be so conspiring, as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was a party to it."

To apply this provision, it has to be shown that (1) there is reasonable ground to believe
that two or more persons have conspired together; and (2) the conspiracy is to commit
an offence or an actionable wrong. If these two requirements are satisfied then anything
said, done or written by any one of such persons after the time when such intention was
entertained by any one of them in furtherance of their common intention, is a relevant
fact against each of the persons believed to be so conspiring as well as for the purpose
of proving the existence of conspiracy and also for the purpose of showing that any such
person is a party to it.

To establish the charge of conspiracy to commit the murder of Shri Rajiv Gandhi,
reliance is placed mainly on seventeen confessional statements made by the accused
persons. The confessions of the accused persons have been recorded under Section
15(1) of the TADA Act. Before adverting to the confessional statements, it is necessary
to consider the incidental questions as to whether they can be used against the
appellants for the charge under Section 120-B read with Section 302, IPC when the
accused are found to be not guilty of various offences under the TADA Act.

Mr.Natarajan has referred to the judgment of this Court in Bilal Ahmed Kaloo vs. State
of Andhra Pradesh [(1997) 7 SCC 431], in support of his contention that the confession
recorded under Section 15(1) of the TADA Act cannot be made use of to record the
conviction of appellants under Section 120-B read with Section 302 IPC.

Mr.Altaf Ahmed, however, submitted that that case could not be treated as authority for
the proposition canvassed by the learned counsel for appellants as Section 12 of the
TADA Act has not been considered in that case by this Court.

Here, it would be necessary to refer to Section 12 of the TADA Act, which is

reproduced herein :

"12. Power of Designated Courts with respect to other offences - (1) When trying any
offence, a Designated Court may also try and other offence with which the accused may,
 11

under the Code, be charged at the same trial if the offence is connected with such other
offence.

(2) If, in the course of any trial under this Act of any offence, it is found that the
accused person has committed any other offence under this Act or any rule made
thereunder or under any other law, the Designated Court may convict such person of
such other offence and pass and sentence authorised by this Act or such rule or, as the
case may be, such other law, for the punishment thereof."

Section 12(1) authorises the Designated Court to try offences under the TADA Act
along with another offence with which the accused may be charged, under the Cr.P.C.,
at the same trial. The only limitation on the exercise of the power is that the offence
under the TADA Act is connected with the offence being tried together. Sub-section (2)
provides that the Designated Court may convict the accused person of offence under
that Act or any rule made thereunder or under any other law and pass any sentence
authorised under that Act or the rules or under any other law, as the case may be, for the
punishment thereof if in the course of any trial under the TADA Act the accused
persons are found to have committed any offence either under that Act or any rule or
under any other law.

A perusal of the judgment in Kaloo’s case (supra) shows that Section 12 of the TADA
Act was not brought to the notice of this Court and moreover the point was conceded by
the learned counsel for the State. I concur with my learned brethern that Kaloo’s case
does not lay down the correct law. It follows that confessions recorded under Section 15
of the TADA Act and admitted in the trial of offences under the TADA Act and under
Section 120B read with Section 302 IPC can be relied upon to record conviction of the
appellants for the said offences under IPC even though they are acquitted of offences
under the TADA Act.

The next question that arises for consideration is the ambit of Section 15 of the TADA
Act, which is in the following terms:

"15. Certain confessions made to police officers to be taken into consideration - (1)
Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872),
but subject to the provisions of this section, a confession made by a person before a
police officer not lower in rank than a Superintendent of Police and recorded by such
police officer either in writing or on any mechanical device like cassettes, tapes or
 12

sound tracks from out of which sounds or images can be reproduced, shall be admissible
in the trial of such person or co-accused, abettor or conspirator for an offence under this
Act or rules made thereunder.

Provided that co-accused, abettor or conspirator is charged and tried in the same case
together with the accused.

(2). The police officer shall, before recording any confession under sub-section (1),
explain to the person making it that he is not bound to make a confession and that, if he
does so, it may be used as evidence against him and such police officer shall not record
any such confession unless upon questioning the person making it, he has reason to
believe that it is being made voluntarily."

Sub-section (1) of Section 15 opens with a non obstante clause --‘notwithstanding

anything in the Code of Criminal Procedure or in the Indian Evidence Act’ -- and says
that ‘subject to the provisions of this section’, a confession made by a person before a
police officer not lower in rank than a Superintendent of Police and recorded by such
police officer either in writing or on any mechanical device like cassettes, tapes or
sound tracks from out of which sounds or images can be reproduced, shall be admissible
in the trial of such person or co-accused, abettor or conspirator for an offence under that
Act or the Rules made thereunder. The admissibility of the confession of an accused in
the trial of a co-accused, abettor or conspirator is subject to the condition that the
co-accused, abettor or conspirator is charged and tried in the same case together with
the accused.

Sub-section (2) incorporates safeguards for the person whose confession is to be

recorded under sub-section (1) and it is not necessary to refer to it for the present
discussion.

Having regard to the provisions of Section 12 of the TADA Act, the confession
recorded under Section 15 will be admissible in the trial of a person, co-accused, abettor
or conspirator for an offence under the TADA Act or the rules made thereunder and
such other offence with which such a person may be charged at the same trial under the
provisions of the Criminal Procedure Code provided the offence under the TADA Act
or the Rules made thereunder is connected with such other offence.
 13

An analysis of sub-section (1) of Section 15 shows that it has two limbs. The first limb
bars application of provisions of the Code of Criminal Procedure and the Indian
Evidence Act to a confession made by a person before a police officer not lower in rank
than a Superintendent of Police and recorded by him in any of the modes noted in the
section. The second limb makes such a confession admissible, de hors the provisions of
the Evidence Act in the trial of such person or co-accused, abettor or conspirator for an
offence under the TADA Act or rules made thereunder provided the co-accused, abettor
or conspirator is charged and tried in the same case together with the accused. The
import of Section 15(1) is that insofar as the provisions of the Cr.P.C. and the Evidence
Act come in conflict with either recording of a confession of a person by a police officer
of the rank mentioned therein, in any of the modes specified in the section, or its
admissibility at the trial, they will have to yield to the provision of Section 15(1) of the
TADA Act as it is given overriding effect.

Thus, Sections 162, 164, 281 and 463 of the Code of Criminal Procedure which have a
bearing on the question of recording of statement/confession of a person and Sections
24 to 30 of the Evidence Act which deal with various aspects of confession of an
accused stand excluded vis-a-vis Section 15(1) of the TADA Act and cannot be called
in aid to invalidate recording of confession of an accused by a police officer of the
specified rank and/or its admissibility in the trial of the, co-accused, abettor or
conspirator charged and tried in the same case together with the accused for an offence
under the TADA Act or rules made thereunder. It must be made clear that the non
obstante clause in Section 15(1) of the TADA Act does not exclude the application of
all the provisions of the Cr.P.C. and the Indian Evidence Act in the trial of offences
under TADA Act.

What remains to be examined is what is the evidential value of a confession recorded

under Section 15 of the TADA Act against the maker thereof and as against a
co-accused, abettor or conspirator?

Thomas,J. took the view that the confession of an accused is a substantive evidence as
against the maker thereof but it is not so as against the co-accused, abettor or
conspirator against whom it can be used only as corroborative evidence. Wadhwa,J.
took the contrary view; according to him, confession of an accused is a substantive
evidence against himself as well as against co-accused, abettor or conspirator.
 14

Section 3 of the Indian Evidence Act defines, inter alia, the term ‘evidence’ to mean and
include all statements which the Court permits or requires to be made before it by
witnesses in relation to matters of fact under the inquiry (which is called ‘oral
evidence’) and all documents produced for the inspection of the court (which is called
‘documentary evidence’). The plea of ‘guilty’ by the accused at the trial cannot,
therefore, be treated as falling within the meaning of evidence as it is not a statement
made by a witness before the Court. The extra judicial confession made to any person
which is allowed to be proved by the Court will be a part of the statement of a witness
made before the Court, so it will be evidence within the meaning of that term. A
confession recorded by a Magistrate under Section 164 Cr.P.C. also satisfies the
requirements of the definition of the term ‘evidence’. A confession recorded under
Section 15(1) of the TADA Act is also within the ambit of evidence under Section 3(1)
of the Evidence Act and there is no dissension on this.

The expression "substantive evidence" is not employed in the Evidence Act. It connotes
evidence of a fact in issue or a relevant fact. In Black’s Law Dictionary (at P.1597), the
following meaning is noted:

SUBSTANTIVE EVIDENCE. That adduced for the purpose of proving a fact in issue,
as opposed to evidence given for the purpose of discrediting a witness, (i.e., showing
that he is unworthy of belief,) or of corroborating his testimony. Best, Ev.246,773,803."

In Words and Phrases (Vol.40), "substantive evidence" is defined as follows:

"SUBSTANTIVE EVIDENCE. Although subordinate feature of case, certain types of

evidence, such as character evidence or prior criminal acts, can be considered as
‘substantive evidence’ on question of guilt or innocence. State v. Wallace, N.C.A.
pp.283 S.E.2d. 404, 407.

‘Substantive evidence’ is that offered for purpose of persuading trier of fact as to truth
of proposition on which determination of tribunal is to be asked, whereas ‘impeachment
evidence’ is that evidence designed to discredit the witness, i.e. to reduce effectiveness
of his testimony by bringing forth evidence explaining why jury should not put faith in
his testimony. Zimmerman v. Superior Court In and For Maricopa County, 402, P.2d.
212, 215, 98, Ariz 85, 18 A.L.R. 3d. 900".
 15

Thus, plea of guilty by an accused at the commencement of the trial or in his statement
under Section 313 Cr.P.C. will not be substantive evidence but extra judicial confession
and confession recorded by a Magistrate under Section 164 Cr.P.C. of an accused will
be substantive evidence. So also a confession of a person recorded under Section 15 of
the TADA Act; I shall elaborate this point presently.

In regard to evidential value of confessions both academicians and Judges have

expressed conflicting opinions.

Blackston described confession as the weakest and most suspicious of all evidence.

In Wigmore on Evidence, para 866, third edition, it is noted :

"Now, assuming the making of a confession to be a completely proved fact - its

authenticity beyond question and conceded, - - then it is certainly true that we have
before us the highest sort of evidence. The confession of crime is usually as much
against a man’s permanent interests as anything well can be; and, in Mr.Starkie’s phrase,
no innocent man can be supposed ordinarily to be willing to risk life, liberty, or property
by a false confession. Assuming the confession as an undoubted fact, it carries a
persuasion which nothing else does, because a fundamental instinct of human nature
teaches each one of us its significance."

(Emphasis supplied)

Similar view is expressed in Treatise on the Law of Evidence, Volume 1, Twelfth

Edition, by Taylor in para 865 :

"Indeed, all reflecting men are now generally agreed that, deliberate and voluntary
confessions of guilt, if clearly proved, are among the most effectual proofs in the law,
their value depending on the sound presumption that a rational being will not make
admissions prejudicial to his interest and safety, unless when urged by the promptings
of truth and conscience."

In Principles and Digest of the Law of Evidence, Volume 1, New Edition, by Chief
Justice M.Monir, after noticing conflicting views and discussing various authorities, the
learned author stated the rule as follows :
 16

"The rule may, therefore, be stated to be that whereas the evidence in proof of a
confession having been made is always to be suspected the confession, if once proved to
have been made and made voluntarily, is one of the most effectual proofs in the law."

There is a plethora of case law holding that confession of an accused recorded in the
manner provided under Cr.P.C. and admissible under the provisions of the Evidence Act,
even if retracted later, is substantive evidence as against the maker thereof.

Section 30 of the Evidence Act which deals with consideration of proved confession
affecting person making it and others jointly under trial for same offence, is quoted
below:

"30. Consideration of proved confession affecting person making it and others jointly
under trial for same offence - When more persons than one are being tried jointly for the
same offence, and a confession made by one of such persons affecting himself and some
other of such persons is proved, the Court may take into consideration such confession
as against such other person as well as against the person who makes such confession.

Explanation -- ‘Offence’ as used in this section, includes the abetment of, or attempt to
commit, the offence."

This Section says that when more persons than one are being tried jointly for the same
offence and a confession, made by one of such persons affecting himself and some other
of such persons, the Court may take into consideration such confession against the
maker of the confession as well as against such other person when such a confession is
proved in Court.

Speaking for a two-Judge Bench of this Court in Kalpnath Rai vs. State (Through CBI)
[(1997) 8 SCC 732], Thomas,J. observed:

"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."

A plain reading of Section 30 of the Evidence Act discloses that when the following
conditions exist, namely, (i) more persons than one are being tried jointly; (ii) the joint
trial of the persons is for the same offence; (iii) a confession is made by one of such
persons (who are being tried jointly for the same offence); (iv) such a confession affects
 17

the maker as well as such persons (who are being tried jointly for the same offence); and
(v) such a confession is proved in Court, the Court may take into consideration such
confession against the maker thereof as well as against such persons (who are being
jointly tried for the same offence).

It has been noticed above that Section 15(1) of the TADA Act enacts that a confession
recorded thereunder shall be admissible in the trial of the maker of the confession, or
co-accused, abettor or conspirator provided the co-accused, abettor or conspirator is
charged and tried in the same case together with the accused.

The difference between Section 30 of the Indian Evidence Act and Section 15(1) of the
TADA Act may also be noticed here. Whereas the former provision requires that the
maker of the confession and others should be tried jointly for the same offence, the
latter provision does not require that joint trial should be for the same offence. Another
point of distinction is that under Section 30 of the Evidence Act, the Court is given
discretion to take into consideration the confession against the maker as well as against
those who are being tried jointly for the same offence, but Section 15(1) of TADA Act
mandates that confession of an accused recorded thereunder shall be admissible in the
trial of the maker of confession or co-accused, abettor or conspirator, provided the
co-accused, abettor or conspirator is charged and tried in with the accused the same case.
Both Section 30 of the Evidence Act as well as Section 15 of the TADA Act require
joint trial of the accused making confession and co-accused, abettor or conspirator.

Having excluded the application of Sections 24 to 30 of the Evidence Act to a

confession recorded under Section 15(1) of the TADA Act, a self-contained scheme is
incorporated therein for recording confession of an accused and its admissibility in his
trial with co-accused, abettor or conspirator for offences under the TADA Act or the
rules made thereunder or any other offence under any other law which can jointly be
tried with the offence with which he is charged at the same trial. There is thus no room
to import the requirements of Section 30 of the Evidence Act in Section 15 of the
TADA Act.

Under Section 15(1) of the TADA Act the position, in my view, is much stronger, for it
says, "a confession made by a person before a police officer not lower in rank than a
Superintendent of Police and recorded by such police officer either in writing or on any
mechanical device like cassettes, tapes or sound tracks from out of which sounds or
images can be reproduced, shall be admissible in the trial of such person or co-accused,
 18

abettor or conspirator for an offence under this Act or rules made thereunder, Provided
that the co-accused, abettor or conspirator is charged and tried in the same case together
with the accused". On the language of sub-section (1) of Section 15, a confession of an
accused is made admissible evidence as against all those tried jointly with him, so it is
implicit that the same can be considered against all those tried together. In this view of
the matter also, Section 30 of the Evidence Act need not be invoked for consideration of
confession of an accused against a co-accused, abettor or conspirator charged and tried
in the same case along with the accused.

Therefore, with great respect to the learned Judges, I am unable to agree with the
above-quoted observations made in Kalpnath Rai’s case (supra) and the view of brother
Thomas,J. in his judgment in this case.

In support of the said view, Thomas,J. pointed out, in his judgment, that (i) a confession
can be used as relevant evidence against its maker under and subject to conditions
mentioned in Section 21 of the Evidence Act; (ii) there is no provision in the Evidence
Act except Section 30 which authorises consideration of confession against co-accused
and posed a question that if Section 30 is to be excluded by virtue of non-obstante
clause in Section 15(1) of the TADA Act, under what provision could a confession of
one accused be used against another co-accused at all? With great respect to my learned
brother, I am not persuaded to adopt that view. On analysis of Section 15(1) of the
TADA Act and Section 30 of the Evidence Act, I have reached a different conclusion,
noted above.

It is true that Section 21 of the Evidence Act declares that admission is relevant and
permits its proof against the person who makes it. Even when confessions which are
species of admissions are not hit by Sections 24, 25 or 26 and are relevant or when they
became relevant under Sections 27, 28 and 29, they can only be proved against the
maker thereof. Admittedly, there is no provision in the Evidence Act for making
confession of an accused relevant or admissible against the co-accused. In the setting of
those provisions Section 30 of the Evidence Act is enacted which is a clear departure
from the principles of English Law. It permits taking into consideration of a confession
made by one of the persons being tried jointly for the same offence as against the
co-accused. It is in such a case a confession of an accused, recorded in accordance with
the provisions of the Cr.P.C. and the Evidence Act, has to satisfy the requirements of
Section 30 of the Evidence Act for using it against the co-accused.
 19

It is now well settled that the expression ‘the court may take into consideration such
confession’ means to lend assurance to the other evidence against the co-accused.

Sir John Beaumont, speaking for the Privy Council, in Bhuboni Sahu vs. The King [AIR
(1949) PC 257], an oft-quoted authority, observed in regard to Section 30 of the
Evidence Act, thus :

"Section 30 seems to be based on the view that an admission by an accused person of

his own guilt affords some sort of sanction in support of the truth of his confession
against others as well as himself. But a confession of a co-accused is obviously
evidence of a very weak type. It does not indeed come within the definition of
‘evidence’ contained in Section 3. It is not required to be given on oath, nor in the
presence of the accused, and it cannot be tested by cross-examination. It is a much
weaker type of evidence than the evidence of an approver which is not subject to any of
those infirmities. Section 30, however, provides that the Court may take the confession
into consideration and thereby, no doubt, makes it evidence on which the Court may
act; but the section does not say that the confession is to amount to proof. Clearly there
must be other evidence. The confession is only one element in the consideration of all
the facts proved in the case; it can be put into the scale and weighed with the other
evidence. The confession of a co-accused can be used only in support of other evidence
and cannot be made the foundation of a conviction."

About the nature of the evidence of an accomplice, it was pointed out therein :

"The danger of acting upon accomplice evidence is not merely that the accomplice is on
his own admission a man of bad character who took part in the offence and afterwards
to save himself betrayed his former associates, and who has placed himself in a position
in which he can hardly fail to have a strong bias in favour of the prosecution; the real
danger is that he is telling a story which in its general outline is true, and it is easy for
him to work into the story matter which is untrue.

In Kashmira Singh vs. State of Madhya Pradesh [1952 SCR 526] this Court approved
the principles laid down by the Privy Council in Bhuboni Sahu’s case (supra) and
observed:

"But cases may arise where the Judge is not prepared to act on the other evidence as it
stands even though, if believed, it would be sufficient to sustain a conviction. In such an
 20

event the Judge may call in aid the confession and use it to lend assurance to the other
evidence and thus fortify himself in believing what without the aid of the confession he
would not be prepared to accept."

In Hari Charan Kurmi and Jogia Hajam vs. State of Bihar [(1964) 6 SCR 623], a
Constitution Bench of this Court after referring to Bhuboni Sahu’s case (supra) and
Kashmira Singh’s case (supra), observed :

"Normally, if a statement made by an accused person is found to be voluntary and it

amounts to a confession in the sense that it implicates the maker, it is not likely that the
maker would implicate himself untruly, and so, s.30 provides that such a confession
may be taken into consideration even against a co-accused who is being tried along with
the maker of the confession......When Section 30 provides that the confession of a
co-accused may be taken into consideration, what exactly is the scope and effect of such
taking into consideration, is precisely the problem which has been raised in the present
appeals."

It was held that technically construed, the definition of the term "evidence" in Section 3
would not apply to confession. It was observed :

"Even so, s.30 provides that a confession may be taken into consideration not only
against its maker, but also against a co-accused person; that is to say, though such a
confession may not be evidence as strictly defined by s.3 of the Act, it is an element
which may be taken into consideration by the criminal court and in that sense, it may be
described as evidence in a non-technical way. But it is significant that like other
evidence which is produced before the Court, it is not obligatory on the court to take the
confession into account. When evidence as defined by the Act is produced before the
Court, it is the duty of the Court to consider that evidence. What weight should be
attached to such evidence, is a matter in the discretion of the Court. But a Court cannot
say in respect of such evidence that it will just not take that evidence into account. Such
an approach, can, however, be adopted by the Court in dealing with a confession,
because s.30 merely enables the Court to take the confession into account."

In the cases referred to above, it was held that the confession of a co-accused is not
evidence as defined in Section 3 of the Evidence Act and that Section 30 enables the
Court to take into consideration the confession of a co-accused to lend assurance to
other evidence against the co-accused. The expression ‘may take into consideration’
 21

means that the use of the evidence of confession of an accused may be used for
purposes of corroborating the evidence on record against the co-accused and that no
conviction can be based on such confession.

The amendments effected in Section 15(1) and Section 21(1) of the TADA Act by Act
43 of 1993 may be noticed here. The words ‘co-accused, abettor or conspirator’ and the
proviso are added in sub-section (1) of Section 15; clauses (c) and (d) of sub-section (1)
of Section 21 are deleted. Before the amendment of Sections 15 and 21, the sweep of
the legal presumption contained therein was that in a prosecution for any offence under
sub-section (1) of Section 3 of the TADA Act on proof of the facts mentioned in clauses
(a), (b), (c) and (d) of sub-section (1) of Section 21, it was mandated that the Designated
Court shall presume, unless the contrary is proved, that the accused had committed such
offence. Clauses (c) and (d), which are deleted from sub-section (1) of Section 21 by
Act 43 of 1993, related to a confession made by a co-accused that the accused had
committed the offence and to the confession made by the accused of the offence to any
person other than a police officer. The effect of the said clauses was that in the event of
the co-accused making confession inculpating the accused or in the event of the accused
himself making an extra-judicial confession to any person other than a police officer the
legal presumption that the accused had committed such offence would arise.

Section 4 of the Evidence Act defines "shall presume" as follows :

"Shall presume.-whenever it is directed by this Act that the court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved."

The presumption is, however, rebuttable so the burden of showing that the offence was
not committed would shift to the accused. The normal presumption in criminal cases is
that till it is proved to the contrary the accused will be deemed to be innocent and that
position is altered by Section 21(1). After deletion of clauses (c) and (d) by Act 43 of
1993 the statutory presumption under Section 21(1) will not apply to situations where a
confession is made by a co-accused that the accused had committed the offence (clause
(c)) or where the accused himself made a confession of the offence to any person other
than a police officer (clause (d)) and the normal rule of presumption of innocence of the
accused will apply. What was in the realm of ‘as proved’ has after the amendment
become only substantive evidence admissible as against the co-accused.
 22

I have already pointed out the difference in the phraseology of Section 15 of the TADA
Act. The Parliament used the expression "shall be admissible in the trial of such person
or co-accused, abettor or conspirator" in Section 15 which is different from the language
employed in Section 30 of the Evidence Act which says that the Court may take into
consideration such confession as against such other person as well as against the person
who makes such confession. It has to be presumed that the Parliament was aware of the
interpretation placed by the courts including Privy Council and Supreme Court on
Section 30 of the Evidence Act but chose to frame Section 15 differently obviously
intending to avoid the meaning given to the phrase ‘the court may take into
consideration such confession as against such other person....’ used in Section 30 of the
Evidence Act. On the language of Section 15(1), it is clear that the intention of the
Parliament is to make the confession of an accused substantive evidence both against
the accused as well as the co-accused.

Brother Thomas,J. proceeded on the assumption that under unamended Section 21(1),
the confession of an accused as against a co-accused was to be treated by the court as
‘substantive evidence’. But in view of the use of the expression ‘shall presume’ in
Section 21(1) of the TADA Act, the confession of one accused as against the other
co-accused cannot be said to be ‘substantive evidence’; such a confession will be
regarded as proof of the fact that the accused had committed such offence unless the
contrary is proved. In my view, ‘substantive evidence’ of a fact by itself does not
amount to ‘proof of that fact’. There is no presumption in law that substantive evidence
of a fact has to be treated as proof of that fact.

After the amendment of Section 21(1), the confession of an accused recorded by the
police officer under Section 15(1) of the TADA Act is in the same position as that
recorded by a Magistrate under Section 164 Cr.P.C. and that it cannot be placed on a
higher pedestal in regard to its evidential value. If that be so, in a trial under the TADA
Act when there are two categories of confessions - one a judicial confession recorded by
a Magistrate under Section 164 Cr.P.C. and the other by a police officer under Section
15(1) of the TADA Act, the court will have to give the same evidential value to such
confessions as against the co-accused.

If the expression ‘substantive evidence’ is understood in the sense of evidence of a fact

in issue or a relevant fact and not proof of what it contains and that it has to be
evaluated by the Court like any other category of evidence no difficulty arises. The
difficulty will, however, arise if ‘substantive evidence’ is equated with the position
 23

flowing from the application of legislative mandate by incorporating ‘shall presume’ as

Brother Thomas,J. has indicated in his judgment as that will, in my view, nullify the
effect of legal presumption in Section 21(1) of the TADA Act. I, therefore, respectfully
differ from the view taken by the Bench in Kalpnath Rai’s case (supra) and brother
Thomas,J. in his judgment in this case and in respectful agreement with the view
expressed by brother Wadhwa,J. in his judgment that a confession of an accused under
Section 15(1) of the TADA Act is substantive evidence against the co-accused, abettor
or conspirator jointly tried with the accused.

But I wish to make it clear that even if confession of an accused as against co-accused
tried with accused in the same case is treated ‘substantive evidence’ understood in the
limited sense of fact in issue or relevant fact, the rule of prudence requires that the court
should examine the same with great care keeping in mind the following caution given
by the Privy Council in Bhuboni Sahu’s case which has been noted with approval by
this Court in Kashmira Singh (supra) and I quote:

"This tendency to include the innocent with the guilty is peculiarly prevalent in India, as
Judges have noted on innumerable occasions, and it is very difficult for the Court to
guard the danger."

It is also to be borne in mind that the evidence of confession of co-accused is not

required to be given on oath, nor is given in the presence of the accused, and its veracity
cannot be tested by cross examination. Though the evidence of an accomplice is free
from these shortcomings yet an accomplice is a person who having taken part in the
commission of offence, to save himself, betrayed his former associates and placed
himself on a safer plank - ‘a position in which he can hardly fail to have a strong bias in
favour of the prosecution’ the position of the accused who has given confessional
statement implicating a co-accused is that he has placed himself on the same plank and
thus he sinks or sails along with the co-accused on the basis of his confession. For these
reasons, in so far as use of confession of an accused against a co-accused is concerned,
rule of prudence cautions the judicial discretion that it cannot be relied upon unless
corroborated generally by other evidence on record.

Now adverting to merits of the appeals, learned brother Thomas,J. having considered
the confession of A-20 (S.Bhagyanathan) Exh.P-69, A-21 (S.Padma) Exh.P-73, A-1
(S.Nalini) Exh.P-77, A-3 (V.Sriharan) Exh.P-81. A-9 (Robert Payas) Exh.P-85, A-18
(Arivu) Exh.P-87, A-10 (Jayakumar) Exh.P-91, A-8 (Athirai) Exh.P-97, A-12 (Vijayan)
 24

Exh.P-101, A-2 (Santhan) Exh.P-104, A-24 (Rangan) Exh.P-109, A-23 (Dhanasekaran)

Exh.P-113, A-19 (Irumborai) Exh.P-117, A-16 (Ravichandran) Exh.P-121, A-17
(Suseendran) Exh.123, A-25 (Vigneswara) Exh.P-127, A-15 (Thambianna alias
Shanmugavadivelu) Exh.P-139, meticulously examined other oral and documentary
evidence in support of such confessional statement and found A-1 (Nalini), A-2
(Santhan), A-3 (Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16
(Ravichandran) and A-18 (Arivu) guilty of offences under Section 120-B read with
Section 302 IPC and altered death sentence of A-1, A-9, A-10 and A-16 to life
imprisonment while confirming death sentence of A-2, A-3 and A-18.

Brother Wadhwa,J. on consideration of all the aforementioned confessions and other

evidence against the appellants confirmed conviction of only A-1, A-2, A-3 and A-18
under Section 120-B read with Section 302 I.P.C. and confirmed death sentence of all of
them while acquitting all other appellants.

In the view I have taken in the light of the above discussions and on examining the said
statements of confession and the evidence, both oral and documentary, on record, it
would be duplication to record here the same reasoning over again on the question of
confirmation of conviction of appellants, A-1,A-2, A-3, A-9, A-10, A-16 and A-18. In
so far as the conviction of any other appellant is concerned it would serve no practical
purpose and will be only of academic interest and an exercise in futility. I, therefore,
consider it appropriate to record my respectful agreement with the reasoning and
conclusion arrived at by Thomas,J. in confirming the conviction of A-1, A-2, A-3, A-9,
A-10, A-16 and A-18 for the aforementioned offences.

The last crux in these cases is the question of punishment. The Indian Penal Code gives
a very wide discretion to the Court in the matter of awarding punishment. The
maximum and the minimum punishments are prescribed under the IPC and awarding of
appropriate punishment is left to the discretion of the court. There are no general
guidelines in the IPC but in the exercise of its discretion the Courts have to take into
consideration the aggravating and mitigating circumstances of each case to determine
appropriate sentence commensurate with the gravity of the offence and role of the
convict.

On the question of awarding the sentence for the offences for which the punishment
prescribed is life imprisonment or the death sentence, there has been a complete change
in the legislative policy which is reflected in sub-section (3) of Section 354 of the Code
 25

of Criminal Procedure. It enjoins that in the case in which the court awards sentence of
death, the judgment shall state special reasons for such sentence.

In Bachan Singh vs. State of Punjab, [AIR 1980 SC 989], the constitutional validity of
Section 354(3) Cr.P.C. was considered by a Constitution Bench of this Court. The
change in the policy of sentencing is pointed out thus:

‘Section 354(3) of the Code of Criminal Procedure, 1973, marks a significant shift in
the legislative policy underlying the Code of 1898, as in force immediately before April
1, 1974, according to which both the alternative sentences of death or imprisonment of
life provided for murder and for certain other capital offences under the Penal Code
were normal sentences. Now, according to this changed legislative policy which is
patent on the face of Section 354(3), the normal punishment for murder and six other
capital offences under the Penal Code, is imprisonment for life (or imprisonment for a
term of years) and death penalty is an exception.’

It will be useful to note the principles for awarding punishment contained in the
following observations:

‘.. ..for making the choice of punishment or for ascertaining the existence or absence of
‘special reasons’ in that context, the Court must pay due regard both to the crime and
the criminal. What is the relative weight to be given to the aggravating and mitigating
factors, depends on the facts and circumstances of the particular case……..In many
cases, the extremely cruel and beastly manner of the commission of murder is itself a
demonstrated index of a depraved character of the perpetrator. That is why, it is not
desirable to consider the circumstances of the crime and the circumstances of the
criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and
therefore all murders are cruel. But such cruelty may vary in its degree of culpability.
And it is only when the culpability assumes the proportion of extreme depravity that
‘special reasons’ can legitimately be said to exist.

(Emphasis supplied)

In Machhi Singh & Ors. vs. State of Punjab [(1983) 3 SCR 413] the following
observations of Thakkar,J., speaking for a three-Judge Bench of this Court, are worth
noticing. The very existence of the rule of law and the fear of being brought to book
operates as a deterrent to those who have no scruples in killing others if it suits their
 26

ends. In such a situation the community feels that for the sake of self preservation the
killer has to be killed and it may withdraw the protection afforded to him from being
killed. It might do so in ‘rarest of the rare’ cases. When its collective conscience is so
shocked, it would expect the holders of the judicial power centre to inflict death penalty
irrespective of their personal opinion as regards the desirability or otherwise of retaining
death penalty. The learned Judge catalogued various factors which would bring a case in
the ‘rarest of the rare’ cases. Among them is included the case where the victim is a
public figure generally loved and respected by the community for the services rendered
by him and the murder is committed for political or similar reasons other than personal
reasons.

In Kehar Singh & Ors. vs. State (Delhi Administration) [(1988) 3 SCC 609], the
security guards of Smt.Indira Gandhi, the then Prime Minister of India, assassinated her.
This Court confirmed the death sentence of Satwant Singh who actually committed the
murder as well as of Kehar Singh who conspired and inspired for commission of the
crime. Applying the principles laid down in Bachan Singh’s case (supra) and Machhi
Singh’s case (supra) that case was classified as a ‘rarest of the rare’ case, inter alia, on
the ground that the convicts were involved in assassinating a great daughter of India and
the Prime Minister of India and that the act of the accused not only took away the life of
the popular leader but also undermined our democratic system which had been working
so well for the last 40 years.

To determine the rarest of the rare case it was suggested that the answers to the
following questions would be helpful :

a. Is there something uncommon about the crime which renders sentence of the
imprisonment for life inadequate and calls for a death sentence?

a. Are the circumstances of the crime such that there is no alternative but to impose
death sentence after according maximum weightage to the mitigating
circumstances which speak in favour of the offender.

The leading cases on the subject suggest that discretion of the Court in awarding
punishment when conviction is for an offence punishable with death or with
imprisonment for life is controlled by Section 354(3) Cr.P.C. so if the Court proposes to
impose capital punishment it must record ‘special reasons’ for so doing. What
constitutes special reasons cannot be stated with any precision and that has to be
 27

determined having regard to the facts and circumstances of each case. If a case falls in
the category of ‘rarest of the rare case’ it would justify the requirement of special
reasons. But again in deciding whether a case falls within ‘rarest of the rare case’, the
Court has to consider both aggravating as well as the mitigating circumstances in each
case in the light of the above noted principles.

In numerous cases these principles are being applied. There is no need to multiply the
cases here. It is now time to address to the facts of the case.

On applying the well-settled principles laid down by this Court, Brother Thomas,J. felt
that the confirmation of death sentence awarded by the Designated Court to A-2, A-3
and A-18 is justified whereas brother Wadhwa,J. on the same principles confirmed the
death sentence awarded by the Designated Court to A-1, A-2, A-3 and A-18. So far as
the confirmation of death sentence of A-2. A-3 and A-18 is concerned both the learned
brethern concur and I record my respectful agreement with their conclusions. The
difference of opinion between them is with regard to confirmation of death sentence of
A-1. It is now my view which determines the result of this issue.

I may express my feelings that ill behoves a person to order the death of another. He
who gives life alone has the authority to take life. In dispensing justice a Judge is not
only discharging a sovereign function but he is also doing a divine function. Even so the
most difficult task for a Judge is to choose the punishment of death in preference to the
punishment of life imprisonment for he is conscious of the fact that once the life of a
person is taken away by a judicial order it cannot be restored by another judicial order
of the highest authority in this world. Having taken upon himself the onerous
responsibility of doing justice according to Constitution and the laws the Judge must
become independent of his conviction and ideology to maintain the balance of scales of
justice.

Mr. Natarajan pleaded for not confirming the death sentence of A-1 highlighting the
mitigating circumstances. She is a woman and is mother of a small girl who was born
during the period of her confinement in jail. She is very young. She has also
subsequently regretted her act and her participation was the result of indoctrination by
A-3. She did not play any major role. These are indisputably the mitigating
circumstances and I am not unmindful of these facts. Indeed the dilemma whether
sentence of death should be pronounced upon a woman has been troubling my mind for
a considerable time. Surely in our culture a woman has to be treated with beneficence
 28

and kindness. But then in this case the person Dhanu who opted to become a human
bomb was a woman. Subha who gave moral support to sacrifice her life on the anvil of
some ideology and to end up by annihilating others lives, was also a woman. About the
role of A-1 (Nalini), it is not a case where she was caught up in a sudden situation and
became a mute comrade, the mind not towing the body. It was indeed the other way
round.

On her own saying she had developed a strong feeling against Shri Rajiv Gandhi and
decided that the lesson should be taught for the mass killings and rapes in Sri Lanka and
particularly in view of the death of eleven LTTE leaders by consuming cyanide and
thought that she was justified for taking any retaliatory action. She admitted that she
was mentally prepared by Sivarasan, Murugan, Dhanu and Subha for any kind of
retaliatory action including killing of leaders. Even on May 2, 1991, she felt that the
said persons were going to assassinate the leaders and she voluntarily participated
thereafter and attended the meeting addressed by Shri V.P. Singh on the night of 7th
May, 1991 in Madras. She had never been free from the feeling that Sivarasan,
Murugan, Dhanu and Subha had come for a dangerous mission and after the meeting of
Mr.V.P.Singh it had become clear to her that Dhanu and Subha had come for a
dangerous mission. She was, however, closely associated with them. On 19th May itself,
according to her Sivarasan came to her house along with a clipping of an evening
newspaper of Tamil Nadu in which there was news of the visit of Shri Rajiv Gandhi to
Tamil Nadu for election campaign. He said that they had come only for that and that
they would attend the meeting. She entertained strong feeling about the danger ahead
after briefing of Sivarasan about attending the meeting of Shri Rajiv Gandhi at
Sriperumbudur on 21st May, 1991. On 21st May, 1991 at about 3.45 p.m. Subha told her
that Dhanu was going to create history that day by assassinating Shri Rajiv Gandhi and
that they would be very happy if she also participated in that and she agreed. Before
leaving for Sriperambudur she was aware of the fact that Dhanu was concealing an
apparatus inside her dress. Nonetheless she went along with Subha and Dhanu to
provide cover to them as planned by Sivarasan for which she had already agreed earlier.
She did accompany them and provided the required cover. Without her providing cover
to Dhanu and Subha, perhaps they would not have the confidence for attending the
meetings including the fateful meeting. She was actually present at the scene of
occurrence along with Dhanu and Subha when Dhanu exploded herself as a human
bomb as a result of which Shri Rajiv Gandhi and 18 other persons died and 43 persons
were seriously injured which included police officers and innocent persons.
 29

Brother Thomas,J. noted that in the confessional statement of A-20 (Baghyanathan) it is

stated A-1 (Nalini) had confided to him that she realised only at Sriperumbudur that
Dhanu was going to kill Shri Rajiv Gandhi. He appears to have been impressed by that
statement and observed that perhaps that might be a true fact and if that be so, she
would not have dared to retreat from the scene as she was tucked into the tentacles of
the conspiracy octopus from where it was impossible for a woman like A-1 (Nalini) to
get extricated herself would have been justified.

From the facts pointed out above which strongly suggest her participation was not the
result of helplessness but a well designed action with her free will to make her part of
the contribution to the unholy plan and wicked conspiracy so I am not inclined to place
any reliance on that confessional statement of her brother A-20 which is referred to by
my learned brother Thomas,J.

I am convinced that the facts of this case are uncommon. 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 (Murugan), 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.

On the facts of this case, discussed above, 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.
 30

It is apt to quote here the following observations of this Court in Mahesh vs. State of
Madhya Pradesh [(1987) 3 SCC 80], with which I am in respectful agreement :

‘It will be a mockery of justice to permit these appellants to escape the extreme penalty
of law when faced with such evidence and such cruel acts. To give the lesser
punishment for the appellants would be to render the justicing system of this country
suspect. The common man will lose faith in courts. In such cases, he understands and
appreciates the language of deterrence more than the reformative jargon.’

Thus, I conclude that 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.

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 alias Koneswaran), A-5
(D. Vijayanandan alias Hari Ayya), A-6 (Sivaruban alias Suresh alias Suresh Kumar
alias Ruban), A-7 (S. Kanagasabapathy alias Radhayya), A-8 (A.Chandralekha alias
Athirari alias Sonia alias Gowri), A-11 (J.Shanthi), A-12 (S.Vijayan alias Perumal
Vijayan), A-13 (V.Selvaluxmi), A-14 (S.Bhaskaran alias Velayudam), A-15 (S.
Shanmugavadivelu alias Thambi Anna), A-17 (M.Suseemdram alias Mahesh), A-19
(S.Irumborai alias Duraisingam), A-20 (S.Bhagyanathan), A-21 (S.Padma), A-22
(A.Sundaram), A-23 (K.Dhanasekaran alias Raju), A-24 (N.Rajasuriya alias Rangan),
A-25 (T.Vigneswaran alias Vicky), A-26 (J.Ranganath) for the offences under Section
120-B read with Section 302 IPC. Their appeals are accordingly allowed.

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 (Arivu) finding them guilty of offences under Section 120-B
read with Section 302 IPC.

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.
 31

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. Their appeals are dismissed and Death Reference is
accordingly answered.

Justice S.S.H. Quadri

New Delhi;

May 11, 1999.