REPORTABLE    

IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL NO.1374 OF 2007

Abubucker Siqqique and Anr.               … Appellants

VERSUS

The State represented by   The Deputy Superintendent of Police,  CBI/SCB/Chennai, Tamil Nadu       …Respondent

W I T H

           CRIMINAL  APPEAL NO. 552 OF 2008

Kaja Nizamuddin.                                  … Appellant

VERSUS

The State represented by   The Deputy Superintendent of Police,  CBI/SCB/Chennai, Tamil Nadu       …Respondent

W I T H

           CRIMINAL  APPEAL NO. 1271 OF 2009

The State represented by   DSP, CBI, Chennai                               … Appellant

VERSUS

M.P. Rafiq Ahamed & Ors.                 …Respondents

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J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. These appeals have been filed under Section 19 of  

the  Terrorist  and Disruptive  Activities  (Prevention)  Act,  

1987 (hereinafter referred to as ‘TADA Act’)  against the  

final judgment and order dated 21st June, 2007 passed  

by  the  designated  Court  No.  II  TADA  Act,  

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

convicted the appellants under Section 120-B IPC read  

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

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

and  6  of  the  Explosives  Substances  Act  and  Section  

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

were sentenced to undergo imprisonment for life.

2. The prosecution case in brief was as follows:

After the demolition of the Babri Masjid in the month of  

December 1992, there were numerous violent incidents  

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in  various  parts  of  the  country  attributed  to  Muslim  

fanatics against Hindu organizations, places of religious  

worship and other institutions. During the period from  

December 1992 to October 1993, the appellants entered  

into  a  criminal  conspiracy  at  Madras,  Vaniyam  Padi  

Melapalayam, Madurai, Bangalore, Tumkur, Anchal and  

other  places  to  commit  illegal  acts  by  inciting  Muslim  

youths to commit  acts of  violence and terrorism. Such  

acts included manufacturing of bombs, exploding them  

in  various  Hindu organizations,  places  of  worship  and  

other  religious  institutions,  committing  murder  of  

persons  likely  to  be  present  in  the  offices  of  such  

organizations and places of worship, to cause hurt to the  

inmates therein, to escape after the commission of such  

acts,  to  provide  accommodation  and  shelter  to  the  

conspirators to carry out the object of the conspiracy, to  

go  into  hideouts,  to  harbour  the  offenders  involved  in  

such violent acts and to screen the offenders from the  

clutches  of  law.   Ahmad  Ali  (A9)  addressed  public  

meetings  and  incited  Muslim  youths  to  fight  against  

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Hindu Munnani and RSS leaders and also to indulge in  

acts of violence to promote enmity between Hindu and  

Muslims.  

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

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

Sivakumar) visited Vadacherry (located in the outskirts of  

Vaniyambadi-Vellore  District,  Tamil  Nadu)  with  the  

intention  of  causing  bomb  blasts  at  a  public  meeting  

addressed by one of the Hindu Munnani leaders Sridhar  

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

since  the  meeting  was  over  by  the  time  they  reached  

Vadacherry  and  the  bomb  remained  unused.  However  

they  met  Sridhar  and  after  introducing  themselves  as  

Ravi and Sivakumar, expressed their desire to meet him  

at Chennai. The unused bomb was dismantled and kept  

in  the  house  of  A18  Mushtaq  Ahmed  at  Jaffarbad  in  

Vaniyambadi which is nearer to Vadacherry. Afterwards  

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

Abubucker Siddique, A14 Hyder Ali, A15 Imam Ali and  

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A17  Kaja  Nizamuddin  went  to  a  house  in  Porur  and  

ordered a remote control device. Thereafter they went to  

the house of A18 Mushtaq Ahmed (absconding accused)  

at Jaffarabad. Together all the aforesaid accused went to  

Gudiyatham and purchased gelatin and detonators and  

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

further  the case of  the prosecution that A15 Imam Ali  

conducted  a  trial  blast  at  the  house  of  A18  Mushtaq  

Ahmed and thereafter left  for Chennai on the following  

day.  They  collected  the  remote  control  ordered  earlier  

from the Porur house and checked the same. They then  

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

switch  and  some  other  items  required  for  blasting  

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

A17 Kaja Nizamuddin along with A5 Abubucker Siddique  

and A14 Hyder Ali  went to the RSS office Chennai  for  

surveying the place. While A15 Imam Ali and A17 Kaja  

Nizamuddin  were  inside  the  RSS  office  A5  Abubucker  

Siddique and A14 Hyder Ali remained outside. A15 and  

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

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However they met other office bearers and informed him  

that they were running a cassette recording company in  

Alandur,  Chennai  and  made  an  official  entry  of  an  

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

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

all the above four accused went to RSS office, Chennai  

with suitcases containing bombs. On the way, A15 and  

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

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

Krishna  on  their  suitcases.  Again  A15  and  A17  went  

inside the  RSS office  carrying  the  suitcases containing  

bombs and A5 and A14 remained outside. A5 and A17  

enquired about Sridhar from Shanmugam, a RSS worker.  

A15 and A17 had also talked to Jawahar, another RSS  

worker and handed over a letter  addressed to Sridhar.  

Thereafter they came out of the office leaving behind the  

suitcase bombs and waited for about half an hour at a  

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

A17 went inside and brought the suitcase bombs outside  

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

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

for torch light and plastic covers which do not conduct  

electricity. These were brought for rectification and then  

the bombs were again kept ready in both the suitcases.  

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

accused went again with the two suit cases containing  

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

A17 went inside the RSS office carrying the suitcases the  

bombs. Inside the RSS office they met PW1 Srinivasan  

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

building  leaving  behind  the  suitcase  bombs.  At  about  

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

death  of  11  persons,  injuries  to  7  others  and  also  

complete demolition of the building.  

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

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

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

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

and Sections 3 And 4 of The Explosive Substances Act,  

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1908 against unknown persons. Initially the investigation  

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

investigation was transferred to CBI on 26th August, 1993  

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

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

CBI/SCB/Madras.  After  the  completion  of  the  

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

against 18 accused under Sections 120-B IPC read with  

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

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

the Explosives Substances Act and Section 3 of the TADA  

Act.  

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

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

21st June, 2007 convicted A1 Rafiq Ahmed under Section  

153A read with Section 109 IPC, A2 Shahabudeen under  

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

TADA Act, A5 Abubucker Siddique under Section 120B  

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

8

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

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

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

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

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

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

Ali  under  Section  120B  read  with  Sections  

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

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

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

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

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

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

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

Act.  The  following  persons  were  acquitted  namely  A3  

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

and A13 Abdul Aslam. Aggrieved by the said judgment,  

A5 Abubucker Siddique and A14 Hyder Ali filed Criminal  

Appeal  No.  1374  of  2007.  A17  Kaja  Nizamuddin  filed  

Criminal  Appeal  No.  552  of  2008  and  the  State  filed  

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Criminal Appeal No. 1271 of 2009.

6. We  have  heard  Mr.  Natrajan,  learned  Senior  

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

of the respondent State.  

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

committed  a  grave  error  in  convicting  the  appellants.  

According  to  the  learned  counsel,  there  was  no  legal  

evidence  on  the  record  to  indicate  that  the  appellants  

were  involved  in  the  explosion  which  was  the  subject  

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

entire  body  of  evidence,  according  to  Mr.  Natarajan,  

relied  upon  by  the  prosecution,  consists  of  various  

confessional  statements  recorded  by  the  authorities  

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

confessions would show that :-

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

alleged in the charge sheet.

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(ii) In  pursuance  of  this  conspiracy,  Abubucker  

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

Mushtaq  Ahmed  were  engaged  with  the  task  of  

procuring  explosives  and  its  accessories,  making  

bombs with them.   

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

There, they associated Mustaq Ahmed who helped  

them in procuring the explosive substance namely  

gelatin  sticks  and  detonators.   They,  thereafter,  

travelled to Gudiyatham and contacted a licenced  

dealer Kamalnathan, PW.112, through a cycle shop  

owner Jayasekhar, PW.111 and illegally purchased  

the aforesaid explosives.  According to the learned  

counsel,  five of the accused persons have given a  

confession on this point.  In all, they purchased 8  

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

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

detonators were required for manufacturing the two  

bombs.  

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

Office  did  not  succeed  as  the  bomb  did  not  

detonate.  In that attempt, A5, Abubucker Siddique  

and A14,  Hyder Ali  stood outside the RSS Office.  

A15,  Imam  Ali  and  A17,  Kaja  Nizamuddin  went  

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

the bombs were brought to the godown of  Rafeeq  

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

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

again taken to the  RSS Headquarters  for  causing  

the explosion as narrated above.  

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

the prosecution, as narrated above, is destroyed by  

the results of examination of the bomb site, by the  

committee  of  experts  headed by the committee  of  

experts headed by the Director of Central Forensic  

Laboratory (CFSL) and the evidence of Investigating  

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

Sundarrajan PW 189. He submits that :-  

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

the experts of the prosecution.  The evidence of these  

experts, consisting of five volumes of exhibits is on the  

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

concluded that the Improvised Explosive Device (IED)  

used  was  prepared  from  high  explosives.   The  

explosive devices did not contain gelatin but was/were  

made of RDX and PETN.  

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

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

the  site  only  the  presence  of  RDX  and  PETN  was  

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

gelatin was not used.

(3)Mr.  Natarajan  then  submitted  that  since  the  

conspirators had only procured gelatin, it was for the  

prosecution to establish the source from where RDX  

was  brought.   It  was  also  for  the  prosecution  to  

establish as to what has happened to gelatin, which  

was allegedly procured by the conspirators.

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

the  two  questions,  the  very  substratum  of  the  

prosecution  case  is  destroyed.   Apart  from  the  

building,  even from the  remains  of  the  dead  bodies  

and the clothes,  only traces of RDX and PETN were  

found.  

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

of  any  other  explosive  being  procured  by  the  

conspirators.   The  expression  used  was  other  

materials.  This expression referred only to the other  

materials which were required to assemble the bombs.  

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

materials” to mean “other explosives”.  In support of  

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

Sundarrajan,  the  investigating  officer,  PW.223.  

According to Mr. Natarajan, this witness has admitted  

in the cross examination that during the investigation,  

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

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

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

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are different explosives.  This witness also stated that  

in gelatin sticks RDX will not be found.

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

of experts shows that the explosion was caused only  

by RDX and PETN and not by gelatin sticks.  

(8)      The  trial  court  also  accepts  that  even  the  

confessional  statements  revealed  that  what  was  

purchased  at  Gudiyatham was  only  gelatin  and not  

RDX  or  PETN.   Mr.  Natarajan  submitted  that  the  

conclusion,  therefore,  reached  by  the  trial  court  is  

without any legal basis.  

(9)     The trial court has misconcluded the legal position  

while  excluding  from  consideration  the  exculpatory  

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

counsel  relied  on  Chhittar Vs.  State  of  Rajasthan  

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

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

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

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

submitted that he was not identified.  His confession  

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

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

against him had abated.

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

other hand submitted that the terms used by the defence  

are scientific  terms.  The accused had merely said that  

they have purchased explosives. They were not scientists  

and therefore even if they call the explosives as gelatin  

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

prosecution.  He further submitted that the confessions  

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

also submitted that merely because the prosecution has  

not been able to prove the source of the bomb making  

material  does  not  mean bombs were  not  used or  that  

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

prosecution as roughly summarized by the learned senior  

counsel was that there was a conspiracy hatched; bombs  

were  manufactured  using  explosive  substances.  These  

bombs  were  used  to  destroy  the  RSS headquarters.  It  

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was  further  submitted  that  the  prosecution  had  

established that explosives were used, the planting of the  

bombs were also proved and it was for that reason that  

the prosecution was not required to prove what kind of  

explosives were used. It was further submitted that the  

prosecution  case  is  that  the  explosive  chemicals  were  

used for causing the bomb blast. The confession of A5  

and  others  clearly  indicate  that  explosive  substances  

were procured. Recovery of high explosive chemical PETN  

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

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

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

prosecution case that only gelatin and detonators were  

used but the prosecution case is that explosive chemicals  

were used. On the basis of the confessional statement of  

A5 some of the sources of explosives and other materials  

were traced. It was further submitted that PETN which  

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

recovered form the dust sweep collected from the godown  

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

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

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

PETN  itself  is  a  highly  explosive  substance  and  not  

simply  a  booster  as  claimed.  It  was  further  submitted  

that  the  meeting  between  Sridhar  and  A14  &  A15  at  

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

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

expert opinion. The visiting card given by Sridhar to A15  

on  8th July,  1993  at  Vadachery  recovered  from  the  

residence of A3 Mukhtar Ahmed at Bangalore confirms  

the  connection  between A15 and  A3.  The  visit  of  A15  

Imam Ali posing himself as Sivakumar in the RSS office  

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

giving false non existing address found to be of his own  

hand writing corroborates the fact that he visited the RSS  

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

accused persons had made an attempt to blast a bomb  

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

confession statement had indicated that explosives were  

procured in addition to gelatin and detonators and the  

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same could be  RDX/PETN.  Merely  because the source  

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

used considering the fact that traces of RDX/PETN were  

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

submitted that the contention of the defence was totally  

fallacious  that  RDX  can  be  found  only  in  the  Indian  

Military. During the ‘Bombay Bomb Blast’ about 50 kgs  

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

for  selective  industrial  applications  like  demolition  of  

structures etc. RDX exists in the form of plasticine putty  

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

powder substances as in the case of PETN.  According to  

Mr.  Malhotra,  the  conclusions  recorded  by  the  Trial  

Court  are  based  on  the  correct  analysis  of  the  entire  

evidence. The conviction recorded against the appellants  

does not call for any interference.

10. We have considered the submissions of the learned  

counsel

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

of  the  crime.  The  prosecution  case  hinges  on  

circumstantial evidence.  It is an accepted proposition of  

law  that  even  in  cases  where  no  direct  evidence  is  

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

can  be  based  on  circumstantial  evidence  alone.   The  

hypothesis which can form the basis for conviction purely  

on circumstantial  evidence was stated by this Court in  

the case of Hanumant Govind Nargundkar Vs. State of  

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

Mahajan, J. speaking for the Court stated the principle  

which reads thus:-  

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

20

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

The aforesaid proposition of law was restated in the case  

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

by Chandrachud J. as follows:  

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

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12. The trial court accepts that:-

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

circumstantial  evidence  and  confessions  recorded  

under Section 15 of TADA Act.  

(ii) The confessional statements voluntarily made under  

Section 15 of TADA Act are admissible in evidence.   

(iii) Having  held  the  confessional  statements  to  be  

admissible  yet the trial  court  discards part of the  

confessional statement on the ground that they are  

not  truthful  to  some  extent  in  respect  of  the  

conspiracy  aspect  of  all  the  accused  and  

involvement of all the accused.

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

concludes  that  the  evidence  indicates  that  the  

explosion was caused only by RDX and PETN.

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

used.  

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

sticks were purchased and not RDX or PETN.  

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

a  serious  bearing  on  acceptability  of  the  

confessional  statement  of  the  accused  and  their  

involvement of all accused in the conspiracy.  

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

sufficient  evidence  to  show  that  the  appellants  

committed the overt act of causing the explosion as  

claimed  by  the  prosecution.   The  discrepancy  

between the material  found at  the bomb site  and  

the material purchased by the conspirators is held  

to be not of much importance.

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

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

the charges with which they were charged. All the other  

accused were liable only for their act of either promoting  

enmity  among  the  religious  groups  or  harbouring  the  

accused before or after the blast.

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14. In  our  opinion,  the  contents  of  the  confessional  

statements if  true,  would indicate  that all  the accused  

mentioned above and the appellants, in particular, had  

entered into a conspiracy for committing the violent and  

terrorist acts against a particular Hindu organization and  

Hindu places of religious worships, religious institutions  

and places frequented by Hindus in general.  In order to  

strike  terror  in  the  minds  of  the  Hindus,  they  had  

decided  to  cause  explosions  and  commit  crimes  of  

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

destruction  to  the  property  belonging  to  the  Hindu  

community.  In furtherance of this aim, the participants  

in the conspiracy, the appellants in particular, and their  

accomplices had been charged with the task of procuring  

high  explosives.   For  that  purpose,  they  went  to  

Gudiyatham and procured 13 kgs of gelatin as narrated  

herein above.  From the explosive material collected by  

the conspirators, two dangerously explosive bombs had  

been assembled.   The  first  attempt  to  explode  such a  

bomb did not fructify as the intended target had already  

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

The bomb was dismantled and kept in the house of A18  

Mushtaq Ahmed (absconding).   The second attempt for  

exploding these bombs also failed as the detonator was  

short circuited.  It was the third attempt in which the  

conspirators succeeded.  This attempt took place on 8th  

August,  1993  when  A15  Imam  Ali  and  A17  Kaja  

Nizamuddin  carried  the  two  bombs  into  the  building.  

They  deposited  the  bombs  in  the  building  and  exited  

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

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

events leading upto the explosion that destroyed the RSS,  

Headquarters on 8th August, 1993.  

15. Quite  some  time  after  the  explosion,  upon  

investigation,  certain  arrests  were  made.   A5  

Abubucker  Siddique  was  arrested  on  24th October,  

1993. A14 Hyder Ali was arrested in some other case  

but  was  produced  before  the  Trial  Court  on  PT  

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

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Nizamuddin  was  arrested  in  some  other  case  and  

produced before the Trial Court on 13th March, 2000  

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

and A17 Kaja Nizamuddin were also arrested in some  

other case and that too after two years and 7 years  

respectively.   On  interrogation,  they  made  

confessional statements.

16. Excepting  for  the  confessional  statements,  

admittedly, there is no other independent evidence with  

regard  to  the  participation  of  the  accused  in  the  

conspiracy  and  the  particular  role  played  by  them.  

According to these confessions, A15 Imam Ali and A17  

Kaja Nizamuddin had carried the two suitcases inside the  

building. Therefore, it is apparent that even according to  

the  prosecution  version,  they  could  have  only  carried  

bombs  made  from  gelatin.  The  lid  on  the  prosecution  

case is blown away by the report of forensic experts and  

the traces of the explosive material collected at the Bomb  

site.  

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17. Upon  investigation  and  according  to  the  evidence,  

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

been  established  that  the  bomb  which  caused  the  

damage consisted only of RDX and PETN.  This is also  

the conclusion in the ‘Report on the Investigation of  

the Bomb blast which occurred at Chetput,  Madras  

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

Director,  CFSL,  Hyderabad.  Relevant extracts of  the  

aforesaid report are as under:-

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

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

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

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

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

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

Preliminary  spot  tests  and  Thin  Layer  Chromatographic (TLC) tests carried out on the  select exhibits cited above gave positive tests  for  Penta  Erythritol  Tetra  Nitrate  (PETN)  initially and no positive response was obtained  for other propellants, low and high explosives.  Based on these findings, it was suggested by  FSD/Police Officers of Madras that PETN alone  could have been used in the IED.  However,  the CFSL, Hyderabad did not agree with this  view and conveyed that the literature indicates  that only in few cases PETN alone is used for  causing small explosions like safe-cracking or  blasting an automobile etc.  Therefore, it was  suggested that as PETN was always used as an  initiator/booster for other high explosives such  as  Cyclotrimethylene  trinitramine  (RDX),  Trinitro  toluene  (TNT),  2,4,6  –  trinitrophenylmethyl  nitramine  (Tetryl),  Nitroglycerine  (NG),  Cyclotetramethylene  tetramine  (HMX)  etc.   An  analytical  search  could be carried out systematically for one of  these high explosives.  Accordingly, some more  screening  tests  were  conducted  on  large  number of exhibits sent by the police/medical  officers  and  the  debris  received  in  FSL  by  using  larger  quantities  and  clean-up  procedures.   In  this  screening  procedure  

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

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

As a further  confirmation,  two representative  exhibit extracts were injected into the column,  later, the same exhibits were spiked with RDX  and  PETN  and  chromatographed.  Corresponding  increase  in  peak  heights  was  noted in each case confirming that the peaks  were essentially of RDX and PETN.  

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

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

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“Based  on  the  site  visits,  discussions  with  Chief  Engineer,  PWD,  visiting  team  of  IIT  Structural  Engineers,  the medial officers,  the  police  officers  and  chemical  analysis,  the  following conclusions are drawn:- a) The origin of the blast is in the ground  

floor. b) The  seat  of  the  blast  is  slightly  to  the  

north  of  the  centre  of  the  entry  hall/reading room-library.

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

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

e) The secondary failures consisted of severe  cracking  of  walls,  shattering  of  door/window frames and glass panes.   

f) The  IED  used  was  prepared  from  high  explosives.

g) The  IED  contained  cyclotrimethylene  trimitramine (RDX) as high explosive and  Penta Erythritol  Tetra Nitrate  (PETN)  as  initiator/booster.

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

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

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

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

evidence  of  the  prosecution itself  clearly  indicates that  

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the explosive material used in the bomb explosion was  

RDX and PETN, it was necessary for the prosecution to  

satisfactorily answer the aforesaid two questions.

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

which is evident from the following observations:

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

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

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20. Having recorded the aforesaid conclusion, the trial  

court,  without  any  cogent  evidence,  accepted  the  

submission  of  the  prosecution  that  only  two  persons  

knew about the procurement of RDX, PETN etc, namely  

A15  Imam  Ali  and  A18  Mushtaq  Ahmed  (absconding  

accused).  Thereafter,  the  trial  court  quite  erroneously  

observed that A5 Abubucker Siddique in his confessional  

statement had indicated that gelatin sticks,  detonators  

and “other explosives” were procured. Having said so, the  

trial  court  without  any  basis  goes  on  to  accept  the  

contention of the prosecution that other explosives could  

have been RDX, PETN and merely because the source  

could  not  be  proved  it  cannot  be  said  that  such  

explosives were not used. This conclusion is reached by  

the trial court inspite of the evidence of the investigating  

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

was as under:-

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

33

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

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

Sundarrjan has stated as under:-

“…….PETN and RDX are different articles.  In  Gelatin sticks RDX will not be found…..”

21. Upon noticing the aforesaid evidence the trial court  

quite rightly concludes that  

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

But having recorded the aforesaid conclusion,  the trial  

court again proceeds to record a conclusion which would  

be  wholly  without  any  basis.   This  conclusion  is  as  

under:-

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

34

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

22. The aforesaid conclusion does not explain as to what  

happened to 13 Kgs of Gelatin, which was procured  

from Gudiyatham.  It also does not explain as to why  

only traces of RDX were found in dead bodies, clothes  

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

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

none  of  the  confessional  statements,  has  it  been  

stated about any other explosives being procured, yet  

the trial court concludes that other explosive material  

has  also  been  procured.   The  conclusion  is  clearly  

without  any  factual  basis  nor  supported  by  any  

evidence.

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

Sundarrajan that the origin from where the RDX or  

PETN  was  obtained  by  the  accused  were  not  

discovered.   He  also  emphatically  stated that  PETN  

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

cross-examination that in Gelatin sticks, RDX will not  

be  found.   On  a  conjoint  reading  of  the  entire  

evidence,  the  trial  court  clearly  recorded  the  

conclusion that only RDX and PETN and not Gelatin  

sticks as claimed by the prosecution were used for the  

explosion.   It  is  also  noticed  that  the  confessional  

statements  reveals  that  what  was  purchased  were  

only  Gelatin  sticks  from Gudiyatham and not  RDX  

and PETN. Such evidence would clearly  destroy the  

very  foundation  of  the  prosecution  case,  which  

proceeds  on  the  basis  that  the  gelatin  and  the  

detonators  were  procured  in  Gudiyatham  was  the  

material  from which the bombs were manufactured,  

which  were  responsible  for  the  explosion  on  8th  

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

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exploding bomb consisted of RDX and PETN.  Having  

recorded  the  aforesaid  conclusion  that  trial  court  

without  any  justification  concludes  such  evidence  

would  only  affect  the  evidentiary  value  and  

truthfulness of the confessional statements.  We may  

notice  here  the  conclusion  as  recorded  by  the  trial  

court as follows:-

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

37

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

24. In  our  opinion,  the  trial  court  having  correctly  

recorded  the  conclusion  in  the  earlier  part  of  the  

paragraph, unnecessarily and without any basis diluted  

the same and restricted it  only to the reliability of  the  

confessional statement. We are of the considered opinion  

that  the  Trial  Court  correctly  observed  that  “the  

prosecution ought to have investigated the case in the  

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

making such an observation, the Trial Court erroneously  

goes onto convict the appellants who had procured only  

Gelatin and Detonators from Gudiyatham.

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

Malhotra  that  the  appellants  not  being  scientists,  

referring to the explosive substance as gelatin as opposed  

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

confessional statements should be read from the point of  

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

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the  confessional  statement  of  A5  Abubucker  Siddique,  

which is as follows:-

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

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

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

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was  bought  for  planting  bombs  at  Hindu  Munnani meeting at Vadacherry.”

26. We  are  of  the  considered  opinion  that  the  

observations of the trial court that ‘other materials’ could  

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

Mr.  Natarajan  had  correctly  submitted  that  the  other  

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

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

confessional statement of A5 Abubucker Siddique reveals  

that  they  had  gone  to  Vaniyampadi  to  purchase  “gun  

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

to  Gudiyatham  and  procured  8  kgs  of  gelatine  on  

29.7.93. Later they had procured 5 kgs of “gunpowder”  

on  1.8.93.  We  are  of  the  considered  opinion  that  the  

confessional  statement  of  A5  Abubucker  Siddique  only  

reveals that they had procured gelatine, gunpowder and  

certain  other  accessories  required  for  blasting  a  bomb  

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

quartz timer etc. It is not mentioned in the confessional  

statement  as  to  how  and  when  the  appellants  had  

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

bomb made for blasting the RSS building situated at No.  

1 M.V. Naidu Street was made.  

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

that  the  charge  has  to  be  read  along  with  the  

confessional statements. We may notice an extract of the  

charge relied upon by him. It reads as follows:

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

We are of the considered opinion that the most important  

portion  of  the  aforesaid  charge  is  “procured explosives  

and  other  materials”.  We  have  considered  the  

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confessional statements in extenso. It  is not in dispute  

that  explosives  were  procured  from  Gudiyatham.  The  

confessional  statement  of  A1  Rafiq  Ahmed  and  A5  

Abubucker  Siddique  are  unequivocal  that  only  gelatin  

sticks  and  detonators  were  bought  from  Gudiyatham  

form  a  licensed  shop  owner  PW  112  Kamalnathan  

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

ascertain as to how the appellants had access to RDX.  

The Trial Court had accepted that as only two persons  

namely  A15  Imam  Ali  (died)  and  absconding  accused  

Mustaq Ahamed knew about the source from where RDX  

was  procured,  the  other  three  accused  namely  A5  

Abubucker  Siddique,  A14  Hyder  Ali  and  A17  Kaja  

Nizamuddin who were closely associated with them also  

knew  about  it.  The  observation  of  the  Trial  Court  is  

merely conjectural. In our opinion, the conclusion of the  

Trial Court that the “other materials” as mentioned in the  

charge  sheet  brings  in  its  sweep  other  explosives  like  

RDX and PETN is wholly without any basis. The evidence  

on the record clearly militates against such a conclusion.  

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Thus  even  if  the  charges  are  read  along  with  the  

confessional  statement,  it  would  not,  in  any  manner,  

improve  the  intrinsic  value  of  the  evidence  led  by  the  

prosecution. Suspicion no matter how strong cannot take  

the place of legal proof.

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

prosecution  case  was  that  explosive  substances  were  

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

case was registered against the 18 persons for blasting  

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

noticed  hereinabove  the  bomb  was  made  of  RDX and  

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

crime.  The  prosecution  could  only  prove  that  the  

appellant  had  procured  gelatin  sticks  and  detonators  

form Gudiyatham but the traces of said explosives could  

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

clearly  no  evidence  to  link  the  appellants  with  the  

explosion.

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29. In the result the prosecution story as put forward  

does not inspire confidence on the basis of the material  

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

Criminal  Appeal  No.552  of  2008  filed  by  the  accused  

appellants are, therefore, allowed and the conviction and  

sentence  passed  against  the  appellants  are  set  aside.  

They  shall  be  set  free  forthwith  unless  wanted  in  any  

other case.

       CRIMINAL APPEAL NO.1271 OF 2009

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

appeals, this appeal stands dismissed.

……………………...J. [B.Sudershan Reddy]

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

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