(PRABHA SRIDEVAN,J.) The 14th of February 1998 was a day of unimaginable terror and horror as bombs continuously exploded in the city of Coimbatore. The State of Tamil Nadu had never before been subjected to something like this. It was a massacre of the innocents. The case was known as the Coimbatore Bomb Blasts Case. The trial court pronounced the judgment in that case on 01-08-2007. Thus, a trial, which had a sweep of unprecedented magnitude, came to an end. But it inflicted wounds on all barring none. The wounds still remain. Violence is always a comma, and is never a full stop.
2. The case of the prosecution is stated hereunder. We have abbreviated the narration of the prosecution case restricting it only to the relevant details:
The city of Coimbatore was subjected to 19 bomb explosions, between 14-02-1998 and 17-02-1998, resulting in the death of 58 persons and injuries to 250 persons and huge loss to private and public properties. Bombs planted in 24 places were recovered/defused. According to the prosecution, this was engineered by a fundamentalist organisation called 'Al Umma'. A1, S.A. Basha is the founder/leader of Al Umma. In an earlier case, he had been convicted and sentenced to undergo three years' imprisonment for attempt to murder. Thereafter, there had been several instances of communal violence in and around Coimbatore city. This gained momentum after the demolition of the Babri Masjid in the year 1992, and there had been police firing, destruction of public transport vehicles and damage to temples. A1 and others were arrested on 16-11-1993 in connection with the bomb blast at the R.S.S. Office at Chennai. 16 members of Al Umma, including A1, were taken into custody under the Terrorist And Destructive Activities (TADA) Act, but were released, in February 1997. A1 became the State President of 'Al Umma. According to the prosecution, teams were formed with young men to become 'shaheeds (martyrs) in the cause of Islam. On 30-11-1997, an incident took place and that was the death of a Traffic Constable Selvaraj at the hands of Al Umma cadres. This resulted in a brutal retaliation, where 18 Muslims were killed. According to the prosecution, the photographs and video clippings of the dead bodies of these persons were distributed to incite feelings of revenge and violence, which took the form of the blasts on 14-02-1998. To demonstrate their feelings, they chose the day of B.J.P. Leader Mr. L.K. Advanis visit to Coimbatore, to attend an Election Rally. To execute the plot, various accused had procured explosives, transported them, assembled them and planted them at strategic locations and caused the explosions.
3. According to the prosecution, during the months of December 1997, January and February 1998, there was a meeting of minds for the conspiracy amongst the accused in Coimbatore, Chennai, Sathyamangalam and Kerala. At these meetings, the decision was taken; thereafter explosives were procured from Karnataka and Kerala; the explosives were then transported to Coimbatore by buses and cars; they were assembled as pipe bombs or box bombs at the houses of some accused; they were subsequently distributed to other accused with specific instructions to plant them at the appointed places; they were planted accordingly and detonated, resulting in the devastation. Different tasks were assigned to each of the accused that were carried out by them as per the instructions. The prosecution claimed that there were eyewitnesses to prove its case. The particulars of the cases registered under various crime numbers in different police stations, relating to the accused who have filed the appeals, in and around Coimbatore are given below:
4. According to the prosecution, the conspiracy was hatched at different places from 30-11-1997 till 14-12-1998 and the bomb blasts were the outcome of the said conspiracy. The various accused were arrested only in the above Crime numbers but as a matter of convenience and for proper and effective investigation, Crime No.151 of 1998 was treated as the base case.
5. The following tabular column will broadly indicate the witnesses who were examined to prove the prosecution case:
Sl. No. Accused Name of the Witness P.W. No. Nature of Evidence
1. A2 Md. Ansari @ Ansari
1.Tr.Rajan 854 Conspiracy
2.Tr.Kalaiselvan 855 Conspiracy
3.Tr.Raja @ Lourdhunathan 1055 Conspiracy
4.Tr.Syed Ibrahim 1063 General
5.Tr.Senthilkumar 1132 Conspiracy
6.Tr.Nataraj 1152 Conspiracy
7.Tr.Velusamy 1175 Conspiracy
8.Tr.Sanjay @ Saifullah 1195 Conspiracy
9.Tr.Narayana Rao 1202 Mahazar Witness
10.Tr.Subba Rao 1203 Mahazar Witness
11.Tr.Gopalakrishnan 1259 Conspiracy
2. A3 Tajudeen
1.Tr.Rajan 854 Conspiracy
2.Tr.T.R.Kalaiselvan 855 Conspiracy
3.Tr.Gopinathan @ Gopi 1017 General
4.Tr.K.Veerapandian 1028 Police Officer
5.Tr.Idris 1052 General
6.Tr.Syed Ibrahim 1063 General
7.Tr.Sanjay 1195 Conspiracy
3. A4 S.A.Nawabkhan
1.Tr.Rajan 854 Conspiracy
2.Tr.Kalaiselvan 855 Conspiracy
3.Tr.Senthilkumar 1132 Conspiracy
4.Tr.Nagaraj 1152 Conspiracy
5.Tr.Velusamy 1175 Conspiracy
6.Tr.Sanjay 1195 Conspiracy
7.Tr.Ramesh 1199 Conspiracy
7.Tr.Narayana Rao 1202 Mahazar Witness
8.Tr.Gopalakrishnan 1259 Conspiracy
4. A5Basith @ Md. Basith
1.Tr.Devendran 750 General
2.Tr.Sivakumar 837 Mahazar Witness
3.Tr.Shabir Ali 981 General
4.Tr.Senthilkumar 1132 Conspiracy
5.Tr.Ramasamy 1139 Mahazar Witness
6.Tr.Ganagatharan 1158 Manufacture
7.Tr.Satheesh 1162 Manufacture
8.Tr.Muthusamy 1164 Manufacture
9.Tr.Balakrishnan 1169 Transportation
10.Tr.Gopalakrishnan 1259 Conspiracy
5. A6Abdul Ozir @ TADA Ozir
1.Tr.Govindaraj 448 Distribution
2.Tr.Ravi 449 Distribution
3.Tr.Rajan 854 Conspiracy
4.Tr.Kalaiselvan 855 Conspiracy
5.Tr.Kannan 948 Distribution
6.Tr.Nataraj 1152 Conspiracy
7.Tr.Balakrishnan 1169 Transportation
8.Tr.Velusamy 1175 Conspiracy
9.Tr.Sanjay @ Saifullah 1195 Conspiracy
10.Tr.Vijayakumar 1220 Distribution
11.Tr.Ganesh Babu 1256 Manufacture
6. A7S.A.Mohamed Alikhan @ Kutty
1.Tr.V.C. Durai 958 V.A.O. Mahazar Witness
2.Tr.Ravi 961 General
3.Tr.Alavudeen 968 Onwer of lodge
4.Tr.Zahir Hussain 975 Mahazar Witness
5.Tr.Shabir Ali 981 Purchase of car
6.Tr.Saravanakumar 1102 Transportation
7.Tr.Subramaniam 1103 Transportation
8.Tr.Vadivel 1121 Transportation
9.Tr.Rajan 1124 Manufacture
10.Tr.Dhakshinamoorthy 1166 Mahazar Witness
11.Tr.Chinnasamy 1172 Transportation
12.Tr.Vasu 1173 Transportation
7. A8Siddiq Ali @ Siddiq @ Imran
1.Tr.Easwaran 608 Manufacture
2.Tr.Venkataraj 726 Planting
3.Tr.Rajan 854 Conspiracy
4.Tr.Kalaiselvan 855 Conspiracy
5.Tr.Sanjay @ Saifullah 1195 Conspiracy
6.Tr.Narayana Rao 1202 Mahazar Witness
7.Tr.Perumal 1205 Mahazar Witness
8. A9Babu @ Oom Babu
1.Tr.Kaja Hussain 120 Sale of Car
2.Tr.Muruganantham 556 Sale of Car
3.Tr.Vijayakumar 681 Sale of Car
4.Tr.Sivaraman 732 Mahazar Witness
5.Tr.Sivasankaran 799 Mahazar Witness
6.Tr.Rajan 854 Conspiracy
7.Tr.Kalaiselvan 855 Conspiracy
8.Tr.Vadivel 1121 Transportation
9.Tr.Nataraj 1152 Conspiracy
10.Tr.Gangadharan 1158 Manufacture
11.Tr.Velusamy 1175 Conspiracy
12.Tr.Sanjay 1195 Conspiracy
13.Tr.Gopalakrishnan 1259 Conspiracy
9. A10Zakir Hussain @ Ismail @ Abdul Anus
1.Tr.Ramasamy 1139 Police Officer
2.Tr.Ganagatharan 1158 Manufacture
3.Tr.Satheesh 1162 Manufacture
4.Tr.Ganesh Babu 1256 Manufacture
5.Tr.Gopalakrishnan 1259 Conspiracy
10. A11Abdul Salam @ Poochikan Salam
1.Tr.Rajan 854 Conspiracy
2.Tr.Kalaiselvan 855 Conspiracy
3.Tr.Saravanakumar 1102 Transportation
4.Tr.Subramaniam 1103 Transportation
5.Tr.Rajan 1124 Manufacture
6.Tr.Velusamy 1175 Conspiracy
7.Tr.Sanjay @ Saifullah 1195 Conspiracy
11. A12Aslam @ TADA Aslam
1.Tr.Ganesh Babu 1060 Rioting
2.Tr.Sanjay @ Saifullah 1195 Conspiracy
12. A13 Siraj @ Auto Siraj
1.Tr.Sivakumar 627 Distribution
2.Tr.Nanjappan 875 Mahazar Witness
13. A15 M.H. Safoor Rahuman (died on 31.10.2007)
1.Tr.Ramkumar 535 Manazar Witness
2.Tr.Chandran 1025 Distribution
3.Tr.Balakrishnan 1169 Transportation
14. A16 Abbas @ Keelakarai Abbas
1.Tr.Mayilsamy (Dy. Tahsildar) 990 Mahazar Witness
2.Tr.Rajamanickam 1099 Police Officer
3.Tr.Rajan 1124 Manufacture
4.Tr.Muthusamy 1164 Manufacture
15. A17Zaffru @ Syed Zafar Ahmed
1.Tr.Anchana Perumal (Dy.Tahsildar) 881 Mahazar Witness
2.Tr.Ganeshkumar 1060 Rioting
3.Tr.Saravanakumar 1102 Transporation
4.Tr.Subramaniam 1103 Transportation
5.Tr.Sanjay @ Saifullah 1195 Conspiracy
16. A18 Ismail @ Kathikuthu Ismail
1.Tr.Sathar 352 Distribution
2.Tr.G. Rajan 361 Rioting
3.Tr.Mani @ Rotti Mani 378 Rioting
4.Tr.Ramachandran 424 General
5.Tr.Vasu 425 General
6.Tr.Nagarajan 684 Mahazar Witness
7.Tr.Sivan @ Sivakumar 1014 Rioting
17. A19 Jaffar @ Makkan Jaffar
1.Tr.Imthiyas 767 Mahazar Witness
2.Tr.Sivakumar 821 Mahazar Witness
3.Tr.Murugan 986 Bilal Estate Eye Witness
4.Tr.Ganeshkumar 1060 Rioting
5.Tr.Sanjay @ Saifullah 1195 Conspiracy
18. A20 Md. Amjath Ali @ Amjath Ali @ Amjath Released vide order of Court dated 5.10.2009 passed in M.P. Nos.1 & 2 of 2009 in Criminal Appeal No.1111 of 2007 under Juvenile Justice Act
19. A21 Amman @ Ammanullah
1.Tr.Devendran 750 House Owner
2.Tr.Rajan 854 Conspiracy
3.Tr.Kalaiselvan 855 Conspiracy
4.Tr.Ramasamy 1139 Mahazar Witness
5.Tr.Babu 1219 Saw the accused near dais
6.Tr.Santhosh 1265 Saw the accused near dais
20. A26 Jahangir @ Jahir
1.Tr.Venkatesh 663 Distribution
2.Tr.Madhan 809 Mahazar Witness
3.Tr.Shiva 984 Bilal Estate - eye witness
4.Tr.Murugan 986 Bilal Estate - eye witness
5.Tr.Balakrishnan 1169 Transportation
6.Tr.Karuppaiah 1234 Distribution
7.Tr.Syam Prasad 1240 Planting
21. A27 Mohamed Muthu @ Musthafa @ Muthappa
1.Tr.Venkatraj 726 Planting
2.Tr.Sanjay @ Saifullah 1195 Conspiracy
22. A28 Sarfu @ Sarfudeen
1.Tr.Muthukrishnan 728 Planting
2.Tr.Harikrishnan 794 Planting
3.Tr.Rajan 854 Conspiracy
4.Tr.Kalaiselvan 855 Conspiracy
5.Tr.Veerapandiyan 1028 Police Officer
6.Tr.Senthilkumar 1062 Planting
7.Tr.Satheesh 1162 Manufacture
8.Tr.Balakrishnan 1169 Transportation
9.Tr.Raja 1184 Rioting
10.Tr.Sanjay @ Saifullah 1195 Conspiracy
11.Tr.Ganesh Babu 1256 Manufacture
23. A32 L.M. Hakkim
1.Tr.Govindaraj 448 Distribution
2.Tr.Ravi 449 Distribution
3.Tr.Dhandapani 450 Planting
4.Tr.Venkitasamy 537 Planting
5.Tr.George 538 Mahazar Witness
24. A33- Abudhagir
1.Tr.Govindaraj 448 Distribution
2.Tr.Ravi 449 Planting
3.Tr.Dhandapani 450 Planting
4.Tr. Venkitasamy 537 Planting
5.Tr. Kalaiselvan 855 Conspiracy
25. A34-Mohammed Rafiq
1.Tr.Kadirvel 889 Planting
2.Tr. Kannan 948 Distribution
3.Sahul Hameed 979 Distribution
26. A36 Noor Mohammed @ Noor
1.Tr.Kathirvel 889 Planting
2.Tr.V.N.Rajan 376 Rioting
3.Tr.Kumar 631 Distribution
4.Tr.Nageswaran 818 Planting
5.Tr.Anandhakumar 1015 Rioting
6.Tr.Kanagaraj 1044 Mahazar Witness
27. A37 Basha @ Ozeer Basha
1.Tr.Kumar 631 Distribution
2.Tr.Ravi 987 Rioting
28. A38 Ibrahim @ Babu @ Adipatta Babu
1.Tr. Sathar 352 Knew the accused
2.Tr.V.N.Rajan 376 Rioting
3.Tr.Radhakrishnan 377 Rioting
4.Tr.Suriyaprakash 600 Rioting
5.Tr.Kumar 631 Distribution
29. A39 M. Hakkim
1.Tr.Sathar 352 Knew the Accused
30. A40 N.S. Hakkim
1.Tr.Muthukrishnan 728 Planting
2.Tr.Madhusudhanan 785 Mahazar Witness
3.Tr.Harikrishnan 794 Planting
31. A41E.M.Monappa @ Md. Hassan
1.Tr.Sivakumar 627 Distribution
2.Tr.Vellingiri 676 V.A.O. Mahazar Witness
3.Tr.Rajamanickam 677 Planting
4.Tr.Navaneedhan 709 Planting
32. A43 Abdul Razak @ Gundu Razak
1.Tr.Sakthivel 658 Planting
2.Tr.Sivasubramaniam 662 Planting
3.Tr.Kamalakannan 1216 Mahazar Witness
33. A44 Mohammed Azam
1.Tr.Sakthivel 658 Planting
2.Tr.Sivasubramaniam 662 Planting
3.Tr.Kamalakannan 1216 Mahazar Witness
34. A45 Sait @ Santhu Mohammed
1.Tr. Venkatesh 668 Distribution
2.Tr.Dhandapani 696 Planting
3.Tr.Abdul Kadhar 734 Planting
4.Tr.Anburaj 810 Knew the Accused
5.Tr.Karuppaiah 1234 Distribution
35. A46 Riyaz @ Md. Riyaz
1.Tr.G. Rajan 361 Was at the scene of occurrence
2.Tr.Ramachandran 424 Planting
4.Tr.Vasu 425 Planting
36. A60 Saleem @ Saleem Basha @ Valarntha Saleem
1.Tr.Rajan 854 Conspiracy
2.Tr.Kalaiselvan 855 Conspiracy
3.Tr.Ganeshkumar 1060 Rioting
4.Tr.Rajan 1124 Manufacture
5.Tr.T.Mani 1242 Mahazar Witness
37. A102-Salahudeen
1.Tr.Moorthy 1133 Mahazar Witness
38. A152 Moosa @ TADA Moosa
1.Tr.Rajan 854 Conspiracy
2.Tr.Kalaiselvan 855 Conspiracy
3.Tr.Sivasenthil 1196 Rioting
[email protected] Saifullah 1195 Conspiracy
39. A155S.Mohamed Subair @ Subair
1.Tr.Narayana Rao 1202 Mahazar Witness
2.Tr.SooryanarayanaRao 1204 Mahazar Witness
40. A156 Syed Mohammed Buhari @ TADA Buhari
1.Tr.Rajan 854 Conspiracy
2.Tr.Kalaiselvan 855 Conspiracy
3.Subba Rao 1224 General
41. A161 Mujibur Rahman @ Anna Colony Muji
1.Tr.Mohan 1050 Planting
2.Tr.Shamuel Paul 1095 Mahazar Witness
3.Tr.Ramasamy 1139 Mahazar Witness
4.Tr.Senthilkumar 1132 Conspiracy
42. A163 S.K. Mohammed Ali
1.Tr.Rajan 854 Conspiracy
2.Tr.Kalaiselvan 855 Conspiracy
43. A164 Muji @ Mujibur Rahman @ Athupalam Mujibur Rahman Released vide order of Court dated 5.10.2009 passed in M.P. Nos.1 & 2 of 2009 in Criminal Appeal No.1111 of 2007 under Juvenile Justice Act
6. The police personnel who have played an important role in either investigation or seizure or recovery or arrest are the following witnesses. P.W.1099 Rajamanickam was part of the police patrol party that went up Babulal Building, where an explosion took place and a case in Crime No.151 of 1998 was registered, which was the base case. P.W.1288 Murali was the complainant in the said case. P.W.1041 M. Chandrasekaran was also in the patrol party and who went up Babulal Building on the fateful day. Similarly, P.W.1045 Pachaiyappan is also an important witness in the same crime number. P.W.1262 is Lakshmanasamy, who effected the arrest of the accused not only in Tamil Nadu, but also in Rajahmundry, Andhra Pradesh. P.W.1283 is Pon Manikavel, P.W. 1298 is Varadarajulu, P.W.1299 is Jayachandra Bose and they also investigated the cases. P.W.1300 Rajasekar is the Chief Investigating Officer of the Special Investigation Team (SIT). They are the main police officer witnesses who were involved in the investigation of the case, apart from others, who speak of recovery, seizure or the constables who were deputed for the post mortem examination or the ones who have registered the F.I.Rs etc.
7. We find from Exs-D32, D33 and D34 that the Deputy General of Police, Tamil Nadu had informed the Inspector General of Police, Crime Branch to proceed to Coimbatore with the investigation team for taking up the investigation. This was on 14-02-1998 itself. On 16-02-1998, the Inspector General of Police, Crimes, Special Investigation Team informed the Deputy Superintendent of Police, PW 1299, and asked him to receive the C.D. files from PW 1141 Chellaiah, and to take up further investigation immediately. Under Ex-D.34, the Additional Superintendent of Police, P.W.1300 was prima facie satisfied that his investigation disclosed that all the 25 cases which were listed in Annexure-II had occurred in the course of the same transaction, i.e., pursuant to the conspiracy and therefore, he clubbed all the cases with Crime No.151 of 1998 as the base case and submitted his report on 28-09-1998. Then, on application for further investigation, he conducted further investigation. Finally, a total number of 43 cases were registered and after clubbing all the cases on 05-05-1999, a final report was filed against 180 accused.
8. Before the trial court, 1300 witnesses were examined on the side of the prosecution; 5 witnesses were examined on the defence side and 2 witnesses were examined by the Court; 1731 exhibits were marked on the side of the prosecution; 108 exhibits were marked on the defence side and there were 4 Court exhibits; 480 material objects were produced on the side of the prosecution. The accused on examination under S.313 Cr. P.C denied their guilt.
9. The first explosions on 14-02-1998 lasted from 3.50 p.m. to 4.30 p.m. We asked the Public Prosecutor if anyone could tell us what it was like during the frightful forty minutes. We were informed by one of the police officers who was assisting the Public Prosecutor that the blasts could be heard continuously from 3.50 p.m. to 4.30 p.m. We could visualize how threatened the citizens would have felt and the confusion, turmoil and fear that must have been generated. Several innocent persons died as a result of the blasts and several more persons were injured. Punishing the perpetrators of the crime would afford the feeling, to the victims especially, that justice was done, but this does not, and cannot mean that without any acceptable evidence, the accused can be found guilty and punished. In an article in the 1985 Law Review, Lynne Henderson (now of the William S. Boyd School of Law at the University of Nevada, Las Vegas) examined the relationship between victims' rights and criminal-justice policy. Looking carefully at the existing psychological data on the needs of victims, Henderson discovered a wide array of victim responses to tragedy, responses that differ from victim to victim and that change significantly over a victim's lifetime. "In light of the existing psychological evidence," Henderson concludes, "common assumptions about crime victims that they are all 'outraged' and want revenge and tougher law enforcement fail to address the experience and real needs of past victims." The data revealed that criminal trials and the promise of an execution offer a seemingly appealing mechanism to assign blame and to channel rage. But many crime victims felt that the endless repetition of their stories, the formal legal rules, and the years lost between appeals only served to increase stress and to delay healing.
10. There was an immediate reaction to what happened on 14-02-1998. The organisation 'Al Umma' was banned. A1 and some others were arrested on the same day. But the case cannot rest merely on the banning of 'Al Umma' or the arrest of A1. The investigating agency must prove by admissible evidence that the accused belonging to 'Al Umma' had hatched the conspiracy and in execution thereof, the entire events had taken place. On going through all the materials we find that a focussed, systematic and methodical investigation is slightly absent. There is some disarray. But this, per se, is not enough to reject the prosecution case. The police officers from top to bottom were obviously working under great stress and anxiety because of the fact that it was a never-before occurrence. The magnitude of the case also shows the immense task that the investigating agency had faced, as also the Court, which tried the case.
11. Out of the accused who faced the trial; four were acquitted; some were awarded punishment of imprisonment for three years; seven years, ten years, thirteen years and some were given life imprisonment. Of these, many have already undergone the period of imprisonment awarded to them, perhaps, even before the trial was completed and definitely before the appeals were filed. We give below a chart listing those who were awarded life imprisonment and the charges relating that. As regards the other sentences, the periods have been undergone.
Accused Charges Sentence A1 S.A. Basha (Not an Appellant) 1. Conspiracy 14. for creating disharmony among different communities Life Imprisonment 3 years RI A2 Mohammad Ansari @ Ansari 1.Conspiracy 14. for creating disharmony among different communities 79. Abetment for murder 81,126,130 - Abetment for attempt to murder. 83 - Abetment for causing damages to properties 128 Abetment for possession of explosives with intent to endanger life or property. S.6 r/w 4(b) explosive Act. 133 Abetment for murder 204 Possession of arms or ammunitions without license. 203 Possession of explosives S.4 (b) and 5 of explosives substances Act 85, 135 - Abetment for causing exposition to endanger life or property. S.6 r/w Sec.3 of explosive Act. Life Imprisonment 3 years RI Life Imprisonment 7 years RI 7 years RI 7 Yrs RI 9 Yrs RI 3 Yrs RI 7 Yrs RI 9 Yrs RI A3 Tajudeen 1.Conspiracy 14. for creating disharmony among different communities Life Imprisonment 3 years RI A4 S.A. Nawab Khan 1.Conspiracy 14. for creating disharmony among different communities 126. Abetment for attempt to murder 128. Abetment for possession of explosives with intent to endanger life or property. S.6 r/w 4(b) explosive Act. 203. Possession of explosives S.4 (b) and 5 of explosives substances Act 204. Possession of arms or ammunitions without license. Life Imprisonment 3 years RI 7 yrs RI 7 Yrs RI 7 yrs RI 3 yrs RI A5 Basith @ Md. Basith 1.Conspiracy 7. Manufacture and possession of explosives S.4 (b) of explosives substances Act, 1908 14. for creating disharmony among different communities 126, 142. Abetment for attempt to murder 128, 140. Abetment for possession of explosives with intent to endanger life or property. S.6 r/w 4(b) explosive substances Act 130. Abetment for attempt to murder Life imprisonment 7 Yrs RI 3 Yrs RI 7 Yrs RI 7 Yrs RI 7 Yrs RI A6 Abdul Ozir @ TADA Ozir 1.Conspiracy 7. Manufacture and possession of explosives S.4 (b) of explosives substances Act, 1908 14. for creating disharmony among different communities 22. Attempt for murder 24, 33, 126, 211. Abetment for attempt murder 26. Causing damages with explosives 28, 37, 135, 215. Abetment for causing exposition to endanger life or property. S.6 r/w Sec.3 of explosive substances Act. 35. Abetment for causing damages with explosives. 31, 133 , 209. Attempt for murder 39 , 128. Abetment for possession of explosives with intent to endanger life or property. S.6 r/w 4(b) explosive substances Act. 136. for possession of explosives S.4(b) of explosive substances Act. 206. Forgery for cheating 207. Usage of forged records 213. Abetment for causing damages with explosives. Life imprisonment 7 Yrs RI 3 Yrs RI 7 Yrs RI 7 Yrs RI 9Yrs RI 9 Yrs RI 9 Yrs RI Life imprisonment 7 Yrs RI 7 Yrs RI 7 Yrs RI 2 Yrs RI 9 Yrs RI A7 S.A. Mohammed Alikhan @ Kutty 1. Conspiracy 2. for possession of explosives S.4(b) of explosive substances Act. 7. Manufacture and possession of explosives S.4 (b) of explosives substances Act, 1908 14. for creating disharmony among different communities 140. Abetment for possession of explosives with intent to endanger life or property. S.6 r/w 4(b) explosive substances Act. 142. Abetment for attempt to murder Life imprisonment 7 Yrs RI 7 Yrs RI 3 Yrs RI 7 Yrs RI 7 Yrs RI A8 Siddiq Ali @ Siddiq @ Imran 1.Conspiracy 7. Manufacture and possession of explosives S.4 (b) of explosives substances Act, 1908 14. For creating disharmony among different communities 77. Trespass 78. Murder 80. Attempt to murder 82. Causing damages with explosives 84. Causing explosion 202. Possession of arms or ammunitions without license. Life imprisonment 7 Yrs RI 3 Yrs RI 10 Yrs RI Life imprisonment 7 Yrs RI 9 Yrs RI 9 Yrs RI 3 Yrs RI A9 Babu @ Oom Babu 1.Conspiracy 7. Manufacture and possession of explosives S.4 (b) of explosives substances Act, 1908 14. For creating disharmony among different communities 48 , 137. Forgery for cheating 49 , 138. Usage of forgery records 51, 81, 142 . Abetment for attempt to murder 53. Abetment for causing damages to properties 55, 85. Abetment for causing exposition to endanger life or property. S.6 r/w Sec.3 of explosive substances Act. 79. Abetment for murder 83. Abetment for causing damages with explosives. 140. Abetment for possession of explosives with intent to endanger life or property. S.6 r/w 4(b) explosive substances Act. 189. Possession of arms or ammunitions without license. Life imprisonment 7 Yrs RI 3 Yrs RI 7 Yrs RI 2 Yrs RI 7 Yrs RI 9 Yrs RI 9 Yrs RI Life imprisonment 9 Yrs RI 7 Yrs RI 3 Yrs RI A10 Zakir Hussain @ Ismail @ Abdul Anus 1.Conspiracy 7. Manufacture and possession of explosives S.4 (b) of explosives substances Act, 1908 14. For creating disharmony among different communities 220. For possession of explosives S.4 (b) and 5 of explosive substances Act. Life imprisonment 7 Yrs RI 3 Yrs RI 7 Yrs RI A11 Abdul Salam @ Poochikkan Salam 1.Conspiracy 2. for possession of explosives S.4 (b) of explosive substances Act. 7. Manufacture and possession of explosives S.4 (b) of explosives substances Act, 1908 14. For creating disharmony among different communities. 18. Rioting with deadly person 19. Attempt to murder 206. Forgery for cheating 207. Usage of forged records 209. Abetment for murder 211. Abetment for attempt to murder 213. Abetment for causing damages to properties 215. Abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the explosive substances Act, 1908 Life imprisonment 7 Yrs RI 7 Yrs RI 3 Yrs RI 3 Yrs RI 7 Yrs RI 7 Yrs RI 2 Yrs RI Life imprisonment 7 Yrs RI 9 Yrs RI 9 Yrs RI A12 Aslam @ TADA Aslam 1.Charge No.1-Conspiracy 2. Charge No.7 for possession of explosives S.4(b) of Explosive Substances Act,1908. 3.Charge No.14- for creating disharmony among different communities. 4. Charge No.18- rioting with deadly weapon. 5.Charge No.19- attempt to murder L.I 7 Yrs. R.I 3 Yrs. R.I 3 Yrs. R.I 7 Yrs. R.I A13 Siraj @ Auto Siraj 1.Charge No.1-Conspiracy 2. Charge No.14- for creating disharmony among different communities. 3.Charge No.59- abetment for murder 4.Charge No.61- abetment for attempt to murder 5. Charge No.63- abetment for causing damages to properties. 6. Charge No.65-abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the Explosive Substances Act, 1908. 7. Charge No.67 abetment for possession of explosives with intent to endanger life or property- S.6 r/w.4(b) of Explosive Substance Act,1908. 8. Charge No.114 abetment for possession of explosives with intent to endanger life or property- S.6 r/w.4(b) of Explosive Substance Act,1908. 9.Charge No.116- abetment for attempt to murder 10.Charge No.183 possession of explosives S.4(b) & 5 of Explosive Substances Act,1908. L.I. 5 Yrs. R.I L.I. 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I 7 Yrs. R.I 7 Yrs. R.I 7 Yrs. R.I 7 Yrs. R.I A15 M.H. Safoor Rahuman (Died on 31.10.2007) Charge No.1 - Conspiracy Charge No.14 - For creating disharmony among different communities Charge No.110 Abetment for possession of explosives with intent to endanger life or property S.g r/w.4(b) of Explosive Substances Act, 1908 Charge No.112 Abetment for attempt to murder L.I. 3 Yrs. R.I. 7 Yrs. R.I. 7 Yrs. R.I. A16 Abbas @ Keelakarai Abbas 1.Charge No.1-Conspiracy 2.Charge No.7- possession of explosive. 3.Charge No.14- for creating disharmony among different communities. 4.Charge No.15- attempt to murder 5.Charge No.16- causing explosion. 6.Charge No.17- possession of explosive. L.I. 7 Yrs. R.I 3 Yrs. R.I 7 Yrs. R.I 9 Yrs. R.I 7 Yrs. R.I A17 Zaffru @ Syed Zafar Ahmed 1.Charge No.1-Conspiracy 2.Charge No.2- possession of explosive. 3.Charge No.7- possession of explosive. 4.Charge No.14- for creating disharmony among different communities. 5.Charge No.18- rioting with deadly weapon. 6.Charge No.19- attempt to murder L.I. 7 Yrs. R.I. 7 Yrs. R.I. 3 Yrs. R.I. 3 Yrs. R.I. 7 Yrs. R.I. A18 Ismail @ Kathikuthu Ismail 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities. 3.Charge No.41- abetment for murder 4.Charge No.43- abetment for attempt to murder 5.Charge No.45- abetment for causing damages to properties. 6.Charge No.47-abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the Explosive Substances Act, 1908. 7.Charge No.95- abetment for murder 8.Charge No.97- abetment for attempt to murder 9.Charge No.99- abetment for causing damages to properties. 10.Charge No.101-abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the Explosive Substances Act, 1908. 11.Charge No.165- rioting with deadly weapon. 12.Charge No.166- causing explosion. 13.Charge No.167- attempt to murder 14.Charge No.168- causing damages with explosives. L.I. 3 Yrs. R.I. 7 Yrs. R.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I. L.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I. 3 Yrs. R.I. 9 Yrs. R.I. 7 Yrs. R.I. 9 Yrs. R.I. A19 Jaffar @ Makkan Jaffer 1.Charge No.1-Conspiracy 2.Charge No.7- for possession of explosives S.4(b) of Explosive Substances Act,1908. 3.Charge No.13- abetment for attempt to murder 4.Charge No.14- for creating disharmony among different communities. 5.Charge No.132- murder 6.Charge No.134- causing explosion. L.I. 7 Yrs. R.I. 3 Yrs. R.I. 3 Yrs. R.I. L.I. 9 Yrs. R.I. A20 Md. Amjath Ali @ Amjath Ali @ Amjath (Released vide order of Court dated 5.10.2009 passed in M.P. Nos.1 & 2 of 2009 in Criminal Appeal No.1111 of 2007 under Juvenile Justice Act) 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities. 3.Charge No.125- attempt to murder 4.Charge No.132- murder 5.Charge No.134- causing explosion. L.I. 3 Yrs. R.I. 7 Yrs. R.I. L.I. 9 Yrs. R.I. A21 Amman @ Ammanullah 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities. 3.Charge No.125- attempt to murder L.I. 3 Yrs. R.I. 7 Yrs. R.I. A26 Jahangir @ Jahir 1. Conspiracy 2.Charge No.14- for creating disharmony among different communities. 3.Charge No.87- abetment for murder 4.Charge No.89- abetment for attempt to murder 5.Charge No.91- abetment for causing damages to properties. 6.Charge No.93-abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the Explosive Substances Act,1908. 7.Charge No.132- murder 8.Charge No.134- causing explosion 9.Charge No.143- forgery for cheating. 10.Charge No.144- usage of forged records 11.Charge No.146 abetment for possession of explosives with intent to endanger life or property- S.6 r/w.4(b) of Explosive Substance Act,1908. 12.Charge No.148- abetment for attempt to murder L.I. 3 Yrs. R.I. L.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I. L.I. 9 Yrs. R.I. 7 Yrs. R.I. 2 Yrs. R.I. 7 Yrs. R.I. 7 Yrs. R.I. A27 Mohamed Muthu @ Musthafa @ Muthappa 1.Charge No.1-Conspiracy 2.Charge No.7 for possession of explosives S.4(b) of Explosive Substances Act,1908. 3.Charge No.14- for creating disharmony among different communities. 4.Charge No.77- trespass 5.Charge No.78- murder 6.Charge No.80- attempt to murder 7.Charge No.82- causing damages with explosives 8.Charge No.84- causing explosion L.I. 7 Yrs. R.I. 3 Yrs. R.I. 10 Yrs. R.I. L.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I. A28 Sarfu @ Sarfudeen 1.Charge No.1-Conspiracy 2.Charge No.7- for possession of explosive 3.Charge No.14- for creating disharmony among different communities. 4.Charge No.31- abetment for murder 5.Charge No.33- abetment for attempt to murder 6.Charge No.35- abetment for causing damages to properties. 7.Charge No.37-abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the Explosive Substances Act,1908. 8.Charge No.39 abetment for possession of explosives with intent to endanger life or property- S.6 r/w.4(b) of Explosive Substance Act,1908. 9.Charge No.50- attempt to murder 10.Charge No.52- causing damages with explosives. 11.Charge No.54- causing explosion 12.Charge No.139- for possession of explosive 13.Charge No.141- attempt to murder 14.Charge No.151- rioting with deadly weapon 15.Charge No.152- attempt to murder L.I. 7 Yrs. R.I 3 Yrs. R.I L.I 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I 7 Yrs. R.I 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I 7 Yrs. R.I 7 Yrs. R.I 3 Yrs. R.I 7 Yrs. R.I A32 L.M. Hakkim 1.Charge No.1-Conspiracy 2. Charge No.14- for creating disharmony among different communities. 3.Charge No.21- murder 4.Charge No.23- attempt to murder 5.Charge No.25- causing damages with explosives. 6.Charge No.27- causing explosion L.I. 3 Yrs. R.I. L.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I. A36 Noor Mohammed @ Noor 1.Charge No.1-Conspiracy 2. Charge No.14- for creating disharmony among different communities. 3.Charge No.40- murder 4.Charge No.42- attempt to murder 5.Charge No.44- causing damages with explosives. 6.Charge No.46- causing explosion L.I. 3 Yrs. R.I L.I. 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I A37 Basha @ Ozeer Basha 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities. 3.Charge No.41- abetment for murder 4.Charge No.43- abetment for attempt to murder 5.Charge No.45- abetment for causing damages to properties. 6.Charge No.47-abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the Explosive Substances Act,1908. 7.Charge No.175- rioting with deadly weapons 8.Charge No.176- causing explosion 9.Charge No.178- attempt to murder 10.Charge No.181- for member of unlawful assembly causing damages to private and public properties U/S.149 of I.P.C r/w.Sec.4 of the T.N.P(P of D & L) Act 1992. 11.Charge No.182- for using criminal force to deter public servant from discharging duty L.I. 3 Yrs. R.I. L.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I. 3 Yrs. R.I. 9 Yrs. R.I. 7 Yrs. R.I. 9 Yrs. R.I. 2 Yrs. R.I. A38 Ibrahim @ Babu @ Adipatta Babu 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different Communities. 3.Charge No.41- abetment for murder 4.Charge No.43- abetment for attempt to murder 5. Charge No.45- abetment for causing damages to properties. 6. Charge No.47-abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the Explosive Substances Act,1908. 7.Charge No.165- rioting with deadly weapons 8.Charge No.166- causing explosion L.I. 3 Yrs. R.I. L.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I. 3 Yrs. R.I. 9 Yrs. R.I. A39 M. Hakkim 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities. 3.Charge No.41- abetment for murder 4.Charge No.43- abetment for attempt to murder 5.Charge No.45- abetment for causing damages to properties. 6.Charge No.47-abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the Explosive Substances Act,1908. L.I. 3 Yrs. R.I. L.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I. A40 N.S. Hakkim 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities. 3.Charge No.50- attempt to murder 4.Charge No.52- causing damages with explosives. 5.Charge No.54- causing explosion 6.Charge No.56- possession of arms or ammunition without license. 7. Charge No.190- possession of arms or ammunition without license. 8. Charge No.206- forgery for cheating. 9. Charge No.207- usage of forged records. 10.Charge No.209- abetment for murder 11.Charge No.211- abetment for attempt to murder 12. Charge No.213- abetment for causing damages to properties. 13. Charge No.215-abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the Explosive Substances Act,1908. L.I. 3 Yrs. R.I. 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I 3 Yrs. R.I 3 Yrs. R.I 7 Yrs. R.I 2 Yrs. R.I L.I 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I . A41 E.M. Monappa @ Md. Hassan 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities. 3.Charge No.57- trespass 4.Charge No.58- murder 5.Charge No.60- attempt to murder 6.Charge No.62- causing damages with explosives. 7.Charge No.64- causing explosion L.I. 3 Yrs. R.I. 10 Yrs. R.I. L.I. 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I A43 Abdul Razak @ Gundu Razak 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities. 3.Charge No.68- trespass 4.Charge No.69- murder 5.Charge No.71- attempt to murder 6.Charge No.73- causing damages with explosives. 7.Charge No.75- causing explosion L.I 3 Yrs. R.I. 10 Yrs. R.I L.I 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I A44 Mohammed Azam 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities. 3.Charge No.68- trespass 4.Charge No.69- murder 5.Charge No.71- attempt to murder 6.Charge No.73- causing damages with explosives. 7.Charge No.75- causing explosion L.I. 3 Yrs. R.I. 10 Yrs. R.I. L.I. 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I A45 Sait @ Santhu Mohammed 1.Charge No.1-Conspiracy 2. Charge No.14- for creating disharmony among different communities. 3.Charge No.86- murder 4.Charge No.88- attempt to murder 5.Charge No.90- causing damages with explosives 6.Charge No.92- causing explosion L.I. 3 Yrs. R.I. L.I. 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I A46 Riyaz Ahamed Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities 3.Charge No.94- murder 4.Charge No.96- attempt to murder 5.Charge No.98- causing damages with explosives 6.Charge No.100- causing explosion L.I. 3 Yrs. R.I. L.I. 7 Yrs. R.I 9 Yrs. R.I 9 Yrs. R.I A60 Saleem @ Saleem Basha @ Valarntha Saleem 1.Charge No.1-Conspiracy 2.Charge No.7- for possession of explosives 3.Charge No.14- for creating disharmony among different communities 4.Charge No.191- possession of arms or ammunition without license 5.Charge No.206- forgery for cheating 6.Charge No.207- usage of forged records 7.Charge No.209- abetment for murder 8.Charge No.211- abetment for attempt to murder 9.Charge No.213- abetment for causing damages to properties 10.Charge No.215-abetment for causing explosion to endanger life or property-S.6 r/w S.3 of the Explosive Substances Act, 1908. L.I. 7 Yrs. R.I. 3 Yrs. R.I. 3 Yrs. R.I. 7 Yrs. R.I. 2 Yrs. R.I. L.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I. A152 Moosa @ TADA Moosa 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities 3.Charge No.151- rioting with deadly weapons 4.Charge No.152- attempt to murder L.I. 3 Yrs. R.I. 3 Yrs. R.I. 7 Yrs. R.I. A155 Mohammed Subair @ Subair 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities 3.Charge No.203 possession of explosives S.4(b) & 5 of Explosive Substances Act,1908 4.Charge No.204 possession of arms or ammunition without license 5.Charge No.205 harbouring L.I. 7 Yrs.R.I. 7 Yrs. R.I. 3 Yrs. R.I. 5 Yrs.R.I. A156 Syed Mohammed Buhari @ TADA Buhari 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities 3.Charge No.203 possession of explosives S.4(b) & 5 of Explosive Substances Act,1908 4.Charge No.204 possession of arms or ammunition without license L.I. 3 Yrs.R.I. 7 Yrs. R.I. 3 Yrs. R.I. A161 Mujibur Rahman @ Anna Colony Muji 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities 3.Charge No.216 murder 4.Charge No.217 attempt to murder 5.Charge No.218 causing damages with explosives 6.Charge No.219 causing explosion L.I. 3 Yrs.R.I. L.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I. A163 S.K. Mohammed Ali 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities L.I. 3 Yrs.R.I. A164 Muji @ Mujibur Rahman @ Athupalam Mujibur Rahman (Released vide order of Court dated 5.10.2009 passed in M.P. Nos.1 & 2 of 2009 in Criminal Appeal No.1111 of 2007 under Juvenile Justice Act) 1.Charge No.1-Conspiracy 2.Charge No.14- for creating disharmony among different communities 3.Charge No.208- murder 4.Charge No.210-attempt to murder 5.Charge No.212- causing damages with explosives 6.Charge No.214- causing explosion L.I. 3 Yrs.R.I. L.I. 7 Yrs. R.I. 9 Yrs. R.I. 9 Yrs. R.I.
12. The accused who were awarded sentences of life imprisonment are A1 Basha, A2 Md. Ansari @ Ansari, A6 Abdul Ozir @ TADA Ozir, A7 S.A. Mohammed Alikhan @ Kutty, A8 Siddiq Ali @ Siddiq @ Imran, A9 Babu @ Oom Babu, A10 Zakir Hussain @ Ismail @ Abdul Anus, A11 Abdul Salaam @ Poochikkann Salaam, A12 Aslam @ TADA Aslam, A13 Siraj @ Auto Siraj, A15 M.H. Safoor Rahuman (died pending appeal), A16 Abbas @ Keezhakarai Abbas, A17 Zaffru @ Syed Zafar Ahmed, A18 Ismail @ Kathikuthu Ismail, A19 Jaffar @ Makkan Jaffar, A20 Md. Amjath Ali @ Amjath Ali @ Amjath, A21 Amman @ Ammanullah, A26 Jahangir @ Jahir, A27 Mohammed Muthu @ Musthafa @ Muthappa, A28 Sarfu @ Sarfudeen, A32 L.M. Hakkim, A33, Abu @ Abudhageer, A36 Noor Mohammed @ Noor, A37 Basha @ Ozeer Basha, A38 Ibrahim @ Babu @ Adipatta Babu, A39 M. Hakkim, A40 N.S. Hakkim, A41 E.M. Monappa @ Md. Hassan, A43 Abdul Razak @ Gundu Razak, A44 Mohammed Azam, A45 Sait @ Santhu Mohammed, A46 Riyaz @ Md. Riyaz, A60 Saleem @ Saleem Basha @ Valarntha Saleem, A152 Moosa @ TADA Moosa, A155 S. Mohammed Subair @ Subair, A156 Syed Mohammed Buhari @ TADA Buhari, A161 Mujibur Rahman @ Anna, A163 S.K. Mohammed Ali and A164 Muji @ Mujibur Rahman @ Athupalam Mujibur Rahman.
13. Of the above, A20 and A164 were ordered to be released by us vide our order dated 05-10-2009 since they were entitled to the protection of the Juvenile Justice Act. Those who were awarded ten years imprisonment or nine, seven and three years imprisonment had served their respective sentences and had come out and therefore, they are not before us. In addition, we have those accused who were sentenced to undergo imprisonment for 13 years and they are A42 Ashraf, A51 Abuthahir @ Mohideen, A52 Mohammed Rafiq, A53 Abbas, A54 Abdul Rawoof, A55 Mohammed Ibrahim, A56 Abdul Rahman, A62 Abdul Kareem, A63 Abdul Farook, A101 Sarthaj, A102 Salahuddin, A103 Sahriff, A153 Yusuf @ Shajahan, A160 Bakrudeen Ali Ahamed, A162 Shahul Hameed. M.P.No.1 of 2009 filed in Criminal Appeal No.1018 of 2002, M.P.No.1 of 2009 filed in Criminal Appeal No.1017 of 2002 and M.P.No.2 of 2009 filed in O.A.No.1018 of 2007 filed for withdrawing the appeals filed by A42, A51, A52, A53, A54, A55, A56, A63, A101, A103, A153, A160 and A162 were ordered on 08-10-2009. By order of the Governor in G.O.Ms No 792 dated 14-09-2009, A42, A52, A53, A54, A55, A56, A63, A153, A160 and A162 have been granted pardon and released on 15-09-2009. The communication from the Superintendent of Prisons (i/c) indicates that of the above, A153 has been released, but he was retained in custody in connection with two other cases. We will be dealing with some legal questions regarding this later.
14. Thus, only the appeals filed by the rest of the 30 accused are before us. The State has not filed any appeal against the acquittal of some of the accused nor for enhancement of sentence for others. Revision petitions have been filed by some of the witnesses against the acquittal and for enhancement of the sentence. 15. Therefore, we will not embark on a narration of events in full detail since in that case, we would also have to refer to those portions of the prosecution case, which we need not deal with. We have focussed only on the crucial aspects with regard to the appellants before us bearing in mind also the specific points raised by the revision petitioner. We have already stated what the broad case of the prosecution was and what was the alleged motive and how the conspiracy was allegedly hatched and executed. We have given a list of the witnesses in relation to the particular accused. Therefore, we would be dealing only with the evidence of those witnesses, who according to the prosecution implicate the appellants. The occurrence is not denied. The fact that the explosions were the cause for the loss of lives and injuries as well as damage to property cannot be denied either. We feel that, in dealing with only the crucial details, without losing sight of the entire sequence of events, we will be saving the time and focussing our attention on what is relevant. It is for this reason we have made a departure from the usual practice of narrating the case of the prosecution from the date of the filing of the complaint till the date of filing of the final report.
16. The appellants attack the judgment of the trial court on several grounds, some of which are broad-based, while others are specific and narrow.
17. The broad-based grounds of attack are that the investigation is tainted; the clubbing of cases was illegal; there was selective persecution of 'Al Umma' organisation, though there was evidence to show that there were other Muslim fundamentalist organisations which may have been equally provoked and which had more economic strength as well as technical expertise to manufacture and detonate bombs; there were illegal arrests; the invoking of the doctrine of double jeopardy; violation of
Article 20 of the Constitution of India; the validity of the sanction and the inaction on the part of the investigating agency against the approver who turned hostile.
18. As far as the specific grounds of attack are concerned, it is stated that there is absolutely no evidence for either the conspiracy, transport of explosives, manufacture of bombs, distribution of bombs and planting of bombs; the evidence of the so-called witnesses is artificial, since in every case, the presence of the witnesses is unbelievable; there was belated examination of the witnesses; almost all the documents have been forwarded to the Court belatedly, which gives room for suspicion of manipulation; false arrests and recovery and seizure.
19. Mr. N. Natarajan, learned Senior Counsel, Mr. Gopinath, learned Senior Counsel, Mr. M. Venkataraman, learned Senior Counsel, Mr. Yashodvardhan, learned Senior Counsel, Mr. Jayakumar, learned counsel, Mr. Thirumalairaj, learned counsel, Mr. Xavier Felix, learned counsel, Mr. Sathiachandran, learned counsel, Mr. Raghavan, learned counsel, Mr. N. Manoharan, learned counsel, Mr. Jyothiraman, learned counsel and Mr.B.Mohan, learned Counsel made their submissions on behalf of the appellants. They are all summed up as follows:
(i) The investigation is a tainted one; the case of the prosecution cannot be believed since the statements have all been recorded from the witnesses several months after the occurrence and therefore, they lack credibility. Further, the statements under
Section 161 of the Code of Criminal Procedure have been sent to the Court only along with the charge sheet and therefore, the possibility of false implication cannot be ruled out. The evidence of the Chief Investigating Officer, P.W.1300 would show that there were other fundamentalist groups in and around Coimbatore and it has also been elicited through him that they possessed the funds and had the scientific know-how to mobilize people and to manufacture explosives and in spite of that, the prosecution has not followed those leads and has, on the other hand, implicated the innocent persons.
(ii) The conspiracy is the only offence in the Indian Penal Code where there is no physical manifestation of the mens rea. For example, a person uses his hands to take up the weapon to inflict the wound on the victim with intent to kill him. But in conspiracy, the decision to put into action what was planned itself is the overt act, though it is a mental activity and with that, the conspiracy is complete. There is no evidence to show that there was one single design to explode bombs in and around Coimbatore on 14.2.1998 and towards that purpose, the bombs had been transported from Karnataka, distributed, planted in the various places and blasted. Though the evidence of some witnesses indicates that the appellants had taken a decision for retaliatory action or taking revenge, there is absolutely no evidence to indicate that a plot was hatched to place explosive devices in various places and to blast them. When that crucial link is absent, it cannot be said to be one transaction to justify the clubbing of cases.
(iii) The trial court decided that the objection regarding clubbing of cases cannot be allowed to be taken at that stage and that it would be decided after the trial and that if such an objection is allowed to be taken at that juncture, then there would be a full trial before the trial. The trial Court failed to see the prejudice that would be caused. The reference to "a preliminary final report" by the Trial Judge is unacceptable since as per the Code of Criminal Procedure, there is and can be only one report in the form of the final report. When the prosecution had not established that there was one single transaction, clubbing of cases had resulted in prejudice to the accused and consequently, the trial was vitiated. Even with regard to the so called eye witnesses, the reason for their presence at the places where they claimed to have heard about the conspiracy or seen the manufacture, distribution etc., is artificial, there was artificiality in the case of all the prosecution witnesses who gave evidence in this regard; there is very feeble corroborative material for even this evidence. There is absolutely no evidence to show that the consignment of explosives had been purchased from the shop of Riaz-ur-Rahman (P.W.1293) at Mysore and brought to Coimbatore. Conspiracy is based on the principle of agency and therefore, the Court has to be very careful that there is no "danger of unfairness to the accused" and rule out the prejudice that might be caused by bringing into the net a person, who was not at all involved in the conspiracy, since just by virtue of labelling him as a conspirator, he will be made liable for the offence that ensued. By this clubbing which had no sanction of law, the prosecution had created a new phenomenon. While in the other cases, the prosecution might be heard to contend that even if conspiracy is not proved once the overt-act is established, the perpetrator of the offence must be found guilty; here just by the clubbing an artificial link is created which has no support in law, and prejudice is caused. In the Udumalpet blast case (S.C. No.1 of 2000) reported in Prabhakaran vs. State rep. by Inspector of Police, (2006 (4) C.T.C. 392), on the file of the Special Court for Bomb Blast Cases, Coimbatore, some of the accused in this case were the accused there and the witnesses who spoke of the conspiracy here were also roped in as witnesses in that case. There too, it was claimed that the purchase of bomb materials was from P.W.1293 Riaz-ur-Rahman. But this Court had disbelieved the prosecution case and allowed the appeals preferred by the accused in C.A. Nos.753 of 2001 etc. on 27-06-2006. The Supreme Court confirmed this, by dismissing the appeal preferred by the State. If the materials gathered in the investigation in this case and the materials gathered in the other case are examined, it would be seen that the prosecution case is that the consignment of explosives came from Bangalore to Coimbatore and thereafter, some explosives were sent to Udumalpet and some were sent to Coimbatore. The important link was disbelieved in that case. So, in this case too, the evidence should be rejected. What the Police did was to fix the accused and then selected persons who are either stock witnesses or who are obliged to the police to give evidence. It was submitted that there is no evidence to show how the Police was led to any of these eyewitnesses. There is nothing to show that statements recorded under Section 161 mention the presence of a particular person at the crucial time at the scene of occurrence for the police to examine him as an eyewitness. The presence of the so-called eyewitness in the place cannot be believed and sometimes, where there is more than one witness, one does not mention the presence of the other. In almost all the cases it is possible to find that though there was an inescapable police presence in all the areas of Coimbatore around that time and the witnesses also mention this, yet, none of the witnesses thought fit to mention that they had seen suspicious activities at the earliest point of time and no explanation is given for the delay; one fact that must be remembered is only after the bomb blast on 14-02-1998 Al-Umma was banned. So if the members have met on any date prior to that there was no illegality. According to the prosecution the conspiracy was hatched between the dates 01-12-1997 to 14-02-1998. But during that time Al-Umma was not banned and merely because the friends and relatives of A1 Basha had gathered in his house it cannot be said that there was mens rea to commit conspiracy and that they must have conspired to retaliate. It was only after the blast the State came to the conclusion that it is the work of Al-Umma and the arrest was followed by the blast. The evidence of P.W.1300 shows that in the FIR, the name Al-Umma and Jihad alone are mentioned and not any individuals names; the sanction for prosecution under the Explosives Act was not properly obtained. The application of mind has to be there with regard to each accused. In fact the evidence does not even indicate independent application of mind.
(iv) It was submitted that soon after the occurrence, the entire top brass of the police force was present and there is no justification for slipshod investigation or lapses in the investigation. The General Diary has not been maintained and this itself should draw suspicion to the entire police case since there is nothing to prevent the investigating officer from introducing or interpolating materials as he pleased. It was also submitted that the prosecution case could not be accepted merely because there is automatic repetition of words such part of the same transaction and in the course of unless there is actual material to support that several offences were committed in the course of the same transaction.
(v) The attitude of the prosecution towards the approver itself is very dubious. He was also the approver in Udumalpet case and if one examines his statement there is nothing self-incriminating in that for him to change as an approver. Even while giving evidence as an approver he did not support the prosecution case. Here too, he failed to support the prosecution case. Then the question arises why he was not tried as an accused. By treating him as an approver and failing to cross-examine him when he resiled from his stand had caused serious prejudice to the defense in questioning him. The order in which the witnesses have been examined was so haphazard that the defense could not rally their defense points properly. This has also grievously prejudiced the case of the defense.
(vi) There was a long delay in locating the witnesses and examining them and statements of some of the witnesses/testimony defies common sense. If we apply the conduct of a human being under ordinary circumstances, the testimonies of the witnesses with regard to the conspiracy cannot be accepted. Mere assembling of persons will not amount to conspiracy. The object of conspiracy must be known and accepted by everybody. Joining in agreement to commit conspiracy is essential. Evidence of acceptance must be unequivocal and also should be clear.
(vii) As far as procurement and distribution and charges under the Explosives Substance Act, almost the same accused figure in what we referred to as the Udumalpet bomb blast case and also in the R2 Kodambakkam Police Station case. In Udumalpet bomb blast the date of occurrence viz., the blast is 03-12-1997 and as far as R2 Kodambakkam is concerned, it is 17-03-1998. In both the cases, the procurement is only from Riazur Rahman, P.W.1293, the approver accused. In the Udumalpet case (cited supra), this Court held that the prosecution case was not proved. The case of the prosecution was that explosives were bought from Riazur Rahman and was transported to Sathyamangalam and from there it was distributed. But the High Court disbelieved the case and acquitted the accused. Then the principle of autrefois acquit will come into play and the accused are entitled to protection of
Article 20(2) and
Section 300 Cr.P.C. and since it is the prosecutions case that the explosives were procured only from Riazur Rahman and A7 was acquitted in that case. They cannot be charged and tried for the same offence in this case and once the charge relating to procurement fails one of the important links will be disproved and the entire case will have to fail. The learned Counsel also submitted that trails led towards other participants in the crime as for instance Imaam Ali. But that trail was not followed. If so the prosecutions case cannot be believed. There is no specific date with regard to procurement.
20. In reply, the learned Public Prosecutor Mr. P. Kumaresan submitted as follows:
(i) The Coimbatore serial bomb blast case was a first case of this magnitude in Tamil Nadu. The investigation had applied itself to tracking the offenders assiduously. Neither the prosecution case, nor the investigation suffered from any infirmity. It was an organised attack. All the witnesses either resided in, or worked in or had reason to go to, the particular locality. All the Accused came from certain areas. The Accused had fixed the 14-02-1998 for attack that was the date of the visit of Thiru.L.K.Advani, and they knew that the members belonging to BJP and Hindu Munnani and allied organisations would participate in full strength. The perpetarors of the crime intended to terrorise the entire city and to paralyse it.
(ii) The learned Public Prosecutor produced before us the map of the city of Coimbatore and showed us the various spots where the blasts took place and submitted that without a conspiracy and a consensus among minds, this incident would not have occurred. He also submitted that even the complainants knew who was behind this. A reading of the complaints would show this. This is why the police decided that there would be a joint investigation by clubbing of the cases because the entire incident and the acts that led to it formed part of the same transaction. The learned Public Prosecutor submitted that the investigating officers were under great stress and strain they were acutely conscious of the magnitude of the tragedy, the impact it had on the public and the consequences. They knew they had to complete their investigation without undue delay and all of them worked incessantly. There was no mala fide intention to proceed against any one organization. If the investigation led the police officers to a particular accused that was done. But wherever the Investigating Officer felt that the statements recorded led to no-where, the names of those accused were deleted and he pointed out to some instances. He also submitted that it would not have been fair, if members of the other Muslim groups had been roped in merely because they were Muslims. The fact that this was not done would itself show that the prosecution had done its job fairly. He submitted that the evidence of P.W.1064 D.Raghuraman would show that in Crime No. 14 of 1998 Ammapettai police Station the modus operandi used was similar to the one adopted in Saravana complex i.e. the explosives were kept in closed premises. Only Al-Umma cadres were involved in the occurrence on 29-11-1997and it was they who were waiting for the opportunity. So, there were earlier instances where AlUmma was found to have engineered similar actions though not of this magnitude. He submitted that the investigation was first concentrated on Coimbatore, thereafter without much delay the other witnesses including P.Ws 854, 855 and 1195 were examined. According to the learned Public Prosecutor, the prosecution had proved its case and neither the trial nor the investigation had caused any prejudice.
21. Mr. Rabu Manohar, learned counsel appearing for the revision petitioner submitted that there was important evidence relating to mobilization of funds emanating from Kerala, there was evidence relating to deposit of amount in the bank accounts and there were phone calls connecting the conspirators with A14 Madhani, who was acquitted. According to the learned counsel, the trial court had ignored some important pieces of evidence, and had lost sight of the impact of terrorist activity. He submitted that in cases which strike a fear-psychosis in the minds of the people, witnesses will be very reluctant to come to Court. So it will be very difficult to obtain corroborating evidence. He submitted that one cannot fault the Investigating Agency for selecting only some witnesses. Thousands of persons were examined under Section 161, Cr.P.C. and all of them cannot be examined in Court. He also referred to certain texts relating to Terrorism related conspiracy and Investigation. The learned counsel submitted that a terrorist activity does not merely cause disturbance of law and order, but the fall out of the intended activity is such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law vide Prakash Kumar vs. State of Gujarat, ((2005) 2 S.C.C. 409). He submitted that this is the rarest of rare cases where more stringent punishment should be awarded to the offenders. We have taken into account his submissions only so far asthey are relevant for deciding these appeals. We have pronounced orders separately in Cr.R.C. No.1149 and 1150 of 2008.
23. We have considered the submissions and the decided law. We have also considered the written submissions. We saw the video-recording M.O.900 to visualize the scenes of occurrence for better comprehension.
24. We will first deal with what we have called the broad-based grounds of attack. All the accused were jointly tried. The investigation commenced on 14.2.98. The Director General of Police, Tamil Nadu, vide Proceedings in Rc.No.47667/Ra/2/1998, appointed P.W.1300 as the Chief Investigating Officer and he took up the investigation treating Crime No.151 of 1998 as the base case.
25. Background:
(i) The persons who planned and put into action the bomb blast had without a doubt intended to unleash an epidemic of fear and terror on the society and to put the people under threat :
Terrorists have no religion, no concept of communal or social harmony and value for human life. Secularism, which is one of the greats attributes of the Indian Constitution, is viewed differently by some people. Communal harmony is not what they want. No religion propagates terrorism or hatred. Love for all is the basic foundation on which almost all religions are founded. Unfortunately, some fanatics who have distorted views of religion spread messages of terror and hatred. They do not understand or realise the amount of damage they do to the society and as a result of these fanatic acts of misguided people innocent lives are lost, distrust in the minds of communities replaces love and affection for others. Neighbours belonging to different communities who have lived like brothers for ages start viewing each other with suspicion and hatred. Their compassion is first replaced by a sense of diabolic designs. The object of these misguided people - the terrorists - seems to be to spread a message of terror and strike fear in the hearts of the citizens. The present case amply reflects the designs of some people to perpetrate such acts. The temple of democracy in the country - the Parliament - did not also escape the wrath of such people. Whoever did it, wanted to disturb the equilibrium in the minds of the citizens. The millions of peace loving citizens in the country are threatened to be put on a ransom by a group of people. vide Nazir Khan vs. State of Delhi, (2003) 8 S.C.C. 461.
(ii) In the extract from League of Nations Convention, 1937 with regard to terrorist activities, in particular, Clause 4 thereof, reads as follows :-
4. Academic Consensus Definition :
Terrorism is an anxiety-inspiring of repeated violent action, employed by (semi-) clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby - in contrast to assassination - the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat- and violence-based communication processes between terrorist (organization), (imperiled) victims, and main targets are used to manipulate the main target (audience (s)), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought" (Schmid, 1988).
(iii) In a Paper presented by Nicholas Kaufman, Senior District Attorney, Office of the District Attorney of Jerusalem, Israel at the First Annual Conference on Human Society, Terrorism and Organized Crime in the Western Balkan Region organized by the HUMSEC Project in Ljubljana between 23rd and 25th November, 2006 with regard to the problems encountered while investigating and prosecuting conspiracies in relation to terrorist offences and referred to the following paragraphs :
Having summarized the potential abuses of conspiracy charges in terror cases, it is worth mentioning that the British practitioners handbook Archbold recognizes three legitimate and common situations in which the use of the conspiracy charge will be regarded as beneficial:
1) Cases of factual and legal complexity where the interests of justice are best served by presenting an overall picture which cannot be achieved by charging a relatively small series of substantive offences;
2) Cases where authentic evidential difficulties preclude meeting the requisite burden of proof for the full-contemplated act. Should, for example, the DNA or fingerprints of two suspects be found on the remains of an explosive device and no other evidence exist apart from the suspects mutual incrimination, reasonable doubt would exist, on a substantive charge of murder, as to which of the suspects had detonated the device and killed the victims. There would, nevertheless, be more than reasonable grounds for charging a conspiracy since there can be no reasonable defense of innocently handling such an offensive weapon;
3) Cases where the agreement to commit the offence is more egregious than the substantive act itself. This situation could, potentially, arise when the prescribed sentence for the substantive offence is actually less than that indicated for the offence of conspiracy. Obviously, it would be unreasonable to expect that co-conspirators who jointly agree to carry out a terrorist attack, calculated to maximize the loss of civilian life and subsequently thwarted, should be acquitted of a conspiracy merely because there was no meeting of minds as to the modus operandi of the attack. In other words, two co-conspirators who agree to kill commuters on an underground railway ought not be acquitted of a conspiracy to murder because one of them intended that the attack be carried out by way of explosives whereas the other intended that it be effected by way of poison gas.
Ironically, certain integral participants in a wheel of conspiracy whose role may be a sine qua non to the success of the plot will escape criminal liability by virtue of having agreed to carry out a prima facie legal activity without knowledge of the ultimate illegal objective of the conspiracy. For example, parties to a terror network might be requested to rent out a safe house without, necessarily, knowing that it is destined for accommodating and arming a potential suicide bomber immediately prior to his deployment. Open Justice is a dilemma faced in criminal proceedings, especially in countries like India, where there is a strong common law tradition. According to the Australian Law Reforms Commission, On the other hand, disclosure for these purposes may have very serious consequences outside the courtroom and the logic and needs of the individual case, perhaps even to the extent of endangering the lives of intelligence officers; compromising on-going national security operations; revealing hitherto secret information about strategic alliances, techniques, operations and capabilities; and straining international relationships whether with allies who have produced or shared information that they do not wish to see made public, or with other nations that learn they are subject of intelligence gathering or unflattering security assessments.
These are just some indications of the problems in cases of conspiracy in terror offences.
ThusextrAordinary laws are made to contain the extrAordinary situation by providing harsh, drastic and stringent provisions, prescribing special procedure, departing from the procedures prescribed under the ordinary procedural law for the reasons that the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to deal with the offenders indulging in terrorist and disruptive activities. vide Prakash Kumar alias Prakash Bhutto vs State of Gujarat, (2005) 2 S.C.C. 409.
This is how the invocation of the Special Acts is justified. But in the present case, the ordinary penal law alone was invoked though what happened on 14-02-1998 was an extrAordinary occurrence. It cannot be denied that the fallout of what happened on 14-02-1998 had a paralyzing effect on society and this is something that the trial court had also borne in mind while evaluating the role of the investigating agency. This background is relevant.
26. We will now see if the defects pointed out can be sustained, if they had caused prejudice, and/or if the investigation suffers from defects so grievous as to render the trial vitiated.
a) Part of the same Transaction In the present case, the State had decided that all the cases would be clubbed and investigated by one officer and P.W.1300 took up the investigation from the stage to which it had progressed and proceeded with the investigation. The prosecution has maintained its stand that the timing of the series of blasts and the manner in which it was done indicated that there was a single minded purpose and design. We have tried to create a mental picture of what happened that day to decide whether the blasts formed part of a single transaction. The question whether the prosecution had proved to the hilt, the participation of the various accused in the specific overt acts will be decided by us in subsequent paragraphs. But there is enough material to indicate that it was not a random explosion of bombs planted by different groups and different persons and that the bomb blasts were the result of one cohesive plan.
b) Timing For instance, the blasts were so timed to coincide with the visit of the BJP leader Mr. Advani and the manner in which the bombs were set off and the timing of the blasts also indicated that it was in execution of a plan. The time and space where the blasts occurred show that it could only have been the result of a plan and not random blasts. The blasts started on 14-02-1998 at 3.50pm and continued almost ceaselessly till 4.30 pm. The 1st blast is at Sir Shanmugam Road at 3.50 pm on 14.2.98. Next blast went off at 4.00 pm at Gani Rowther Street. Almost in a synchronized manner at the same time bombs blasted at Rajendra Textiles, West Sambandam Road, Raja Rajeswari Towers, BJP Election Office, National towers, and SB Towers at 4.00 pm. Then bombs exploded at Hindu Munnani Office and CMC Hospital at 4.15 pm. The RMS Office blast is at 4.20 pm. Then between 5.00pm and 9.00 pm three blasts went off at Poompuhar Town Hall, Ukkadam Fish Market and Karunanidhi Market. We would have said that the blasts were orchestrated to go off on time, but a melodic image would be totally inappropriate and pehaps insensitive to describe the cacophony of tragedy that resulted. But there can be no doubt that the execution was as per one plan.
c) Configuration of the various sites We saw the timing of the blasts. Now we will see the spacing of the blasts. If the places where the blasts took place or bombs were planted are marked on a map of the city of Coimbatore as demonstrated by the Learned PP, the scenes of occurrence fall within an elliptical shape. Kannappa Nagar is at the top of the ellipse, R.S. Puram to the left side, the National Travels office to the east and Ukkadam market and CMC Hospital form the base of the ellipse. The scenes of the 19 blasts are within this ellipse. So the localization of the blasts is another indicator that the blasts were the execution of one plan.
d) Vehicles and containers used for planting The bombs have been placed in vehicles like tricycle carts carrying pineapples, cars, two wheelers and cycles have also been used. They were carried in blue jeans bags. This is found in the evidence of quite a few witnesses. This too shows that the all the cases formed apart from the same transaction.
e) F.I.Rs. / Complaints Next we looked at the complaints.
(i) Ex-P2 is the complaint with regard to Crime No.153 of 1998, which relates to the blast at West Sambandam Road at 4:00p.m., on 14-02-1998. The complainant is P.W.62, Thiruvengadam. His complaint states that a Muslim Extremist Group was the cause.
(ii) Ex-P31 relates to the blast at Rajarajeswari towers, Crime No.195 of 1998, which was also at 4 o clock on 14-02-1998. The complainant is P.W.158, Palaniappan. He is an Accountant in Rajarajeswari Towers. In his complaint he states that the people said there were series of blasts in several places in the City and the reason is the Muslim Extremists.
(iii) Ex-P91 is the complaint given in respect of the blast at National Travels in Crime No.132 of 1998 and the complainant is P.W.295, Balakrishnan. He has referred to the blast and he has said that this was due to some miscreants.
(iv) The next complaint is Ex-P95. This relates to the blast in Hindu Munnani Office, Crime No.195 of 1998. It states that a Muslim Fundamentalists had planned this and had planted bombs in bicycles in order to kill the followers of the Hindu Munnani Party.
(v) Ex-65 is the complaint given by P.W.205, Purushothaman in respect of the blast at B.J.P. Election Office and Crime No.196 of 1998. He has referred to the blast at 4 o clock and to the damage that had happened and he had stated that this was planned to show the opposition to Mr. L.K. Advanis visit by Muslim Extremists belonging to Al-Umma and Jahad Committee.
(vi) Ex-P75 relates to Crime No.152 of 1998. This is the blast at Sir Shanmugham road. The complainant is P.W.228, Sivasubramanian. He has also stated that the Muslim Fundamentalists like Al-Umma and Jahad Committee had planned these explosions to cause disturbance to stop the visit of Advani because if Bharatiya Janata Party come to power the Muslim Organizations would be banned and also to take vengeance for the death of Muslim people in the riots that took place at Coimbatore.
(vii) Ex-P92 is a complaint given by the resident Doctor of CMC who has requested immediate action, with regard to the blast at C.M.C. Hospital, Crime No.133 of 1998.
(viii) Ex-P124 is the complaint filed by Gugendran, Assistant Superintendent of Police and this relates to the explosion at R.M.S. Office.
(ix) Ex-P143 is a complaint given by P.W.420, Ravi Kumar with regard to the blast at S.B. Towers and he had also stated that this is the work of Muslim Extremists and he has specifically referred to the bag kept in Gokul and also the other similar bag which was kept when he gave the complaint, the bag was still in Gokul Stationery.
(x) Ex-P153 is the complaint given by P.W.458, Francis Xavier and he had referred to the enemies of society who had thrown bombs in Rajendra Textiles. This is crime No.148 of 1998.
(xi) Ex-P184 is the complaint given by P.W.547, Krishnamoorthy with regard to the blast at Gani Rowthar Street. In this there is no mention of the identity of persons whom the complainant thinks has caused the blast.
It is not necessary for us to deal with all the complaints. But, we can see that the complaints at least with regard to the first 12 blasts indicated that the complainants were of the opinion that this was consequence of a plot by Muslim Extremists. In some complaints, there is a specific mention of Al-Umma. In fact, on the very same day A1 Basha the leader of Al-Umma was also arrested.
So there was enough material to conclude that it was part of the same transaction.
27. Next we will look at the case laws :-
(i) In The State of Andhra Pradesh vs. Kandimalia Subbaiah and another, A.I.R. 1961 S.C. 1241, the Supreme Court held thus :
It is undesirable to complicate a trial by introducing a large number of charges spread over a long period this is only a question of propriety and it should be left to the Judge or the Magistrate trying the case to adopt the course which he thinks to be appropriate in the facts and circumstances of the case. Such a trial is not prohibited by the Code of Criminal Procedure.
(ii) In Bhagwan Das Jagdish Chander vs. Delhi Administration, 1975 (1) S.C.C. 866, the Supreme Court held thus :
The ordering of a separate trial, in a case where prejudice to an accused from a joint trial is apprehended, is enough. Indeed, we can go even further and say that, ordinarily they ought to be separately tried. But, a joint trial of such accused persons is not ab-initio illegal. It can take place in suitable cases.
(iii) In V. N. Kamdar and Anr. vs. Municipal Corporation of Delhi, (1974) 1 S.C.R. 157, this Court held as follows :
The normal rule under the Criminal Procedure Code is to try each accused separately when the offence committed by him is distinct and separate. The provisions of Sections 233 to 239 would indicate that joint trial is the exception.
(iv) In Kadiri Kunhahammad vs. The State of Madras, A.I.R. 1960 S.C. 861, the Supreme Court held thus :
Courts should carefully examine the nature of the accusation; but if they are satisfied that prima facie the accusation made shows that several persons are charged of different offences and that the said offences prima facie appear to have been committed in the course of the same transaction, their joint trial can and should be ordered. In other words, these provisions constitute an exception to the provisions of Section 233 as well as those under Section 234(2). There is, therefore, no doubt that, in a case of conspiracy, if specific offences are committed in pursuance of the said conspiracy, all persons who are parties to that conspiracy and are also concerned in the specific offences thus committed can be lawfully tried jointly at the same trial vide Rash Behari Shaw vs. Emperor, A.I.R. 1936 Cal. 753.
(v) In State of Andhra Pradesh vs. Ganeswara Rao, A.I.R. 1963 S.C. 1850, the State filed an appeal before the Supreme Court against the acquittal by the High Court and the dismissal of the revision for enhancement filed by the State (a) It is interesting to see that almost the same grounds were raised before the Supreme Court :
(1) That there was a misjoinder of charges and persons in that the various provisions of s. 239 were clubbed together and an omnibus charge of conspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves difficult.
(2) The procedure adopted in the investigation and committal stages was irregular.
(3) Irrelevant evidence was introduced and some evidence was introduced in a manner not authorised by the Evidence Act.
(4) That the Court abused its powers under s. 342, Cr. P.C. while conducting the examination of the respondents.
(5) The evidence of the approver was inadmissible because the pardon granted to him was illegal, that, in any case, it is unreliable, was so found even by the Sessions Judge and must, therefore, be rejected. If the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case.
(b) The proviso to Section 223 provides that on an application, the Magistrate may direct joint trial even if they do not fall in the categories specified. The Supreme Court held that the object of enacting this section is to avoid multiplicity of trials and the only limitation, which could be properly placed, would be consideration of justice and fairness. The Supreme Court observed that perhaps the Legislature did not want to differentiate between cases where a number of different offences were committed jointly by a group of persons from cases where any number of offences of the same kind were committed by a group of persons. In Paragraph No.25, the Supreme Court observed that, what is meant by same transaction is not defined anywhere in the Code. Where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. One of these elements should co-exist for a transaction to be recorded as the same. But if several acts committed by a person show unity of purpose or design that would be a strong circumstance to indicate that those act form part of the same transaction. The Supreme Court observed that the absence of the words so connected together as to form does not make any difference and connection between series of connected acts would be an essential ingredient.
(c) The Supreme Court held that no court has really dealt with the question of defining the expression same transaction and that if the several acts show a unity of purpose or design, that would be a strong circumstance to indicate same transaction. The Supreme Court also held that while it is true that separate trial is the normal rule and joint trial is an exception, where the same act is committed by several persons, it would be not only inconvenient, but injudicious to try all the persons separately. This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separate trials. And again, the Supreme Court said that if the offences are alleged not to be wholly unconnected, but as forming part of the same transaction, the only consideration that will justify separate trials would be embarrassment or difficulty caused to the accused persons in defending themselves. The Supreme Court then said, it is difficult to appreciate what purpose would be served by separating the trial for the same offence, and held that, even if we were to assume that there has been a misjoinder of charges in violation of the provisions of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. The Supreme Court further held, merely because the accused persons are charged with a large number of offences and convicted at the trial, the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence, with the result that there was a failure of justice.
(d) As regards the introduction of a large number of charges spread over a long time, the Supreme Court held that this was a question of propriety, which should be left to the discretion of the Judge or the Magistrate trying the case. And the Supreme Court also held, apart from that, the respondents were represented by counsel at the trial, who knew very well what the law was. No complaint was made by the respondents even in appeal that they were ignorant of their right and that had they known about it, they would have given their defence on oath and that they had been prejudiced.
(e) In R. vs. Dawson, R. vs. Wenlock, 1960 (1) All. E.R. 558, the Court of Appeals considered several of the grounds that have now been raised by the counsel for appellants. This court has more than once warned of the dangers of conspiracy counts, especially these long conspiracy counts, which one counsel referred to as a mammoth conspiracy. Several reasons have been given. First of all if there are substantive charges, which can be proved, it is in general undesirable to complicate matters and to lengthen matters by adding a charge of conspiracy. Secondly, it can work injustice because it means that evidence, which otherwise would be inadmissible on the substantive charges against certain people, becomes admissible. Thirdly, it adds to the length and complexity of the case so that the trial may easily be well-nigh unworkable and impose a quite intolerable strain both on the court and on the jury, and there they felt that the inclusion of conspiracy as one of the charges lengthened the case enormously.
(f) This was strongly relied on in Ganeswara Raos case (supra) where the Supreme Court held thus :
Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of
ss. 233 to
239 of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. This decision completely meets the argument based upon Dawson's case (1960) 1 All. E.R. 558. Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of justice. For all these reasons we cannot accept the argument to learned counsel on the ground of misjoinder of charges and multiplicity of charges. The counsel for the accused in that case supported the High Courts conclusion that there was a misjoinder of the charges and there could be no clubbing. The Supreme Court held that conspiracy must be regarded as one transaction and therefore, a single individual charged could be tried with the aid of Section 235(1), Cr.P.C. for all the acts committed by him in furtherance of or in pursuance of the conspiracy without the limitations imposed by Section 234(1), for where all the acts are referable to the same conspiracy, their connection with one another is obvious.
(g) The Supreme Court in Gangadhar Behera Vs. State of Orissa, 2003 (1) L.W. (Cri) 1 held thus :
18. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh vs. Satpal Singh and Ors., 1990 Cri LJ 562]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. vs. Ashok Kumar Srivastava, (1992) 1 S.C.R. 37 ]. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. vs. State (Delhi Admin.), 1978 Cri LJ 766]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties" [Per Viscount Simon in Stirland vs. Director of Public Prosecution, 1944 A.C. (PC) 315 quoted in State of U.P. vs. Anil Singh, A.I.R. 1988 S.C. 1988]. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
19. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade vs. State of Maharashtra, 1973 Cri LJ 1783 :
".....The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt....."
".....The evil of acquitting a guilty person light-heartedly as a learned author Glanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltness....."
(h) In State of West Bengal vs. Mir Mohammad Omar, A.I.R. 2004 S.C. 2998, the Supreme Court held thus :
Effort should be made by Courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case.
28. In this case, the trial court had also noted that after the marathon investigation, the Special Investigation Team came to the conclusion that all cases had arisen out of a single transaction and came to the conclusion that the group must have been functioning under one and the same leadership. The trial court was of the opinion that this mode or procedure was followed only after conclusion of the investigation and it was done so as to ensure fair investigation and deletion or removal of any crime number if it is detected that the occurrence in a particular crime number is found to be not connected to the conspiracy and design of execution. The trial court had relied on the judgment of a learned single Judge of the Allahabad High Court in Babri Masjid case. The learned senior counsel appearing for the appellants submitted that, in that case the fact situation was different and that decision cannot be applied to this case.
29. We have, however, referred to the judgment of the Supreme Court in A.I.R. 1963 S.C. 1850 (supra) to come to the conclusion that unless serious prejudice is shown, even if it is irregular, on that ground, the trial cannot be set aside. The learned trial Judge was prima facie satisfied that the charge made out the offences regarding criminal conspiracy with a common object in the course of the same transaction.
30. Therefore, the trial court had exercised its discretion and decided that it was in order and we find that the approach of the Supreme Court in the above referred to case is not very different and therefore, we see no reason to fault the trial Judge for dealing with this matter as he did in this regard.
31. We have seen the judgment and we find at every juncture, the Trial Court had acceded to the request of the accused, if they wanted adjournment, or if they wanted examination to be postponed to wait for the counsel to arrive; in fact, we are unable to see how the accused have been prejudiced. From the manner of cross examination we can see that there was no doubt in the minds of the appellants regarding the exact nature of charges against them and what should be their defense and what were the grounds of attack. We will not hold, that the clubbing, and joint trial was per se prejudice without need of further proof when the Supreme Court judgment indicates other wise and it was held that it must be seen that in fact there was embarrassment to the accused which resulted in injustice. We do not see any embarrassment to the accused or injustice. The appellants had the best of legal advice. In fact, they have even been given the opportunity to change their counsel often to meet their satisfaction and all this accommodation was done at the time of trial only to ensure that they did not suffer or feel aggrieved. And even from the viewpoint of the accused, we think that the disadvantage the accused would have suffered if each trial had been separately conducted would have been more than any disadvantage caused to them by the joint trial.
32. As observed by the Supreme Court in the above-cited case, in this case also, the accused had moved several petitions not only before this Court, but also before the Supreme Court, and knew what their rights were.
33. Therefore, if we apply this test laid down in the above cases as to whether the offences are so related to one another in point of purpose or of cause and effect, we see that there was justification for the clubbing of cases. Even if we were to assume that the procedure adopted was in violation of the provisions of the Code, it has been held by the Supreme Court that the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that it had occasioned failure of justice. As regards clubbing of cases it is more a matter of propriety and is best left to the Trial Court. Therefore, we reject this ground.
34. Faulty Investigation
(a) We have already referred to the submissions regarding tainted investigation. Merely because doubts are raised in the prosecution case, the prosecution case cannot be suspected. It is difficult for us to accept that the Police Officers acted mala fide in their investigation. They were struggling with a difficult and gargantuan task. No doubt, the top brass of the Police immediately rushed to Coimbatore but they did not remain there to continue and to conclude the investigation. The officers who were assigned the task investigated the cases and there may have been some lapses. The whole city had gone up in the explosions and from the evidence of P.W.1288 K.N. Murali and P.W. 1298 Varadarajulu we find that the police officers were investigating several crime numbers. When there were so many cases registered there must have been some practical difficulties. It may not have been possible to even get the required number of FIR forms from one station. It may not have been possible to send the statements recorded immediately. It may not have been possible to trace the witnesses promptly, both because of the reluctance of the common man, and also because it would have been practically difficult for the police to track them. The defence submitted that these were serious errors. The result of investigation under Chapter XII of the Criminal Procedure Code is a conclusion that an Investigating Officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent Court to take cognizance thereupon Under
Section 190(1)(b) Cr.P.C. and to proceed with the case for trial, where the materials collected during investigation are to be translated into legal evidence. The trial Court is then required to base its conclusion solely on the evidence adduced during the trial; and it cannot rely on the investigation or the result thereof vide Vijendar vs. State of Delhi, ((1997) 6 S.C.C. 171).
(b) In State of Karnataka vs. K. Yarappa Reddy, (1998) 8 S.C.C. 715), the Supreme Court held that, the court cannot be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records and that the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to that level of the investigating officers ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit investigating officer's suspicious role in the case.
(c) In Alagarsamy & Ors. Vs. State by Deputy Superintendent of Police, (2009 (13) SCALE 376), which was another sensational case , the persons belonging to one community were attacked because of a dispute that arose in the election of the President of the local authority. It was submitted before the Supreme Court, that the non-production of the FIR book would render the entire prosecution story suspicious. The Supreme Court referred to the unprecedented nature of the situation, the chaos that had caused in the otherwise peaceful life of the village, enormousness of the whole affair, the number of persons murdered, the number of witnesses collected and the enormousness of the investigation and held that the investigating agency cannot be blamed for not being able to trace out the FIR book, and the non-availability of the FIR book by itself will not persuade the Supreme Court to throw the whole prosecution case. In that case, there were only 40 accused persons, 50 witnesses and 121 prosecution exhibits, 55 M.Os., 2 defense witnesses and 19 defense exhibits. In this case, it is 10 times more. Here too the situation was enormously horrendous, there was total chaos in the City, many persons were killed and many more were injured and more than thousand witnesses were examined at the time of trial. If we apply the above decision to this case, the non-production of the general diary or the FIRs not being in seriatim or any other lapse in the investigation cannot be the main ground for rejecting the prosecution case. The Supreme Court in Alagarsamy case has referred to the Yarappa Reddys case (supra).
(d) The defence strongly relied on Sevi & Anr. vs. State of Tamil Nadu, ((1981) Supp. S.C.C. 43), where because of the non-production of the FIR, the Supreme Court held that all the eyewitnesses are partisan witnesses and if there had been an impartial investigation, it would have lend assurance to itself but if the investigation itself becomes tainted, the task becomes difficult. But in that case, the Supreme Court doubted the evidence of the eyewitnesses. Therefore, the non-production of the FIR added to the suspicion. If it had been produced, it might have dispelled the suspicion in the eyewitnesss evidence. Therefore, really what is crucial is the acceptability of the evidence before the Court and not what is gathered during the investigation. Sevi has also been referred to in Alagarsamys case(supra).
(e) In State of Andhra Pradesh vs. P.V. Pavithran, (A.I.R. 1990 S.C. 1266), the Supreme Court held thus :
9. While so, there are offences of grave magnitude such as diabolical crimes of conspiracy or clandestine crimes committed by members of the underworld with their tentacles spread over various parts of the country or even abroad. The very nature of such offences would necessarily involve considerable time for unearthing the crimes and bringing the culprits to book. Therefore, it is not possible to formulate inflexible guidelines or rigid principles of uniform application for speedy investigation or to stipulate any arbitrary period of limitation within which investigation in a criminal case should be completed. That was in the context of time taken for the investigation. But we have referred to it because in this case too it is a diabolic case of conspiracy. So there cannot be any inflexible guideline for determining what weight we should give to the investigation lapses while deciding the guilt/innocence of the accused. But because we have taken into account the inordinate stress and difficulties that the investigation must have faced we are more conscious that we have to scrutinize the evidence of the witnesses with extreme care and caution.
(f) In Leela Ram (D) vs. State of Haryana, (A.I.R. 1999 S.C. 3717), the Supreme Court considered whether mere delay in the investigation of criminal proceedings by itself would serve as sufficient ground for quashing the proceedings. That was a case under the Prevention of Corruption Act. There the Supreme Court made this observation, which we think applies squarely to this case.
8. Before however, proceeding with the matter on two counts as above, it would be convenient to note another aspect of the matter, namely, the observations pertaining to the investigation by the Investigating Agency. It is now a well settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case and we need not dilate on the issue excepting referring a decision of this Court vide State of Rajasthan v. Kishore, A.I.R. 1996 S.C. 3035.
(g) In Rotash vs. State of Rajasthan, ((2007) 2 S.C.C. (Cri) 382), the Supreme Court held : The investigation was not fool proof but then defective investigation would not lead to total rejection of the prosecution case. (h) In Visveswaran vs. State Rep. by S.D.M., (2003 Cri LJ 2548), this Court held:
The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
(i) In Nirmal Singh Kahlon vs. State of Punjab, (2008 (14) SCALE 639), it was held :
An accused is entitled to a fair investigation. Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under
Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation.
The offence, however, is not ordinary in nature. It involved investigation into the allegations of commission of fraud in a systematic manner. It had a wide ramification as a former Minister of the State is said to be involved.
We must also bear in mind the distinction between crime committed by an individual or a group of persons vis-`-vis a scam which means "to get money or property from, another, under false pretences, by gaining the confidence of the victim, also includes; swindle; defraud". [See Advanced Law Lexicon, 3rd edition, 2005, page 4237] This offence we are dealing with, is also not ordinary in nature. It too has a very wide ramification though of a different kind than what was there in the above case. It put the law and order situation upside down, and paralysed the society.
(j) In Chandrakant Luxman Vs. State of Maharashtra, (1974 (3) S.C.C. 626), the Supreme Court held:
Counsel for the appellant is right that the benefit of what the High Court terms a "highly defective" investigation cannot go to the prosecution. If it were to appear that the story narrated by Arjun immediately after the incident was in material particulars different from the evidence of the eye-witnesses, the benefit of such an infirmity would have gone to the accused. But if on a proper evaluation of the various facts and circumstances it transpires that the apparent inconsistencies in the case of the prosecution are solely the result of remissness on the part of the investigating officer and not of any improvement or prevarication on the part of the prosecution witnesses, there would be no justification for discarding the accusation. Therefore, it is clear that our duty is to evaluate the evidence before us properly and carefully and to ensure that there is in fact no inconsistency in the prosecution case. And if the evidence is credible, we will not discard the prosecution case because of the lapses or some weakness in the investigation.
35. Haphazard recording of evidence
(i) According to the appellants, the evidence was recorded in a haphazard manner and it had caused prejudice. Here we must record the observations made by the trial court with regard to the attitude of the accused. According to the learned trial Judge, the accused did not have faith or trust in the judicial system and there was pell-mell in the Court proceedings and pandemonium and only after the Supreme Court directed the Special Court to go ahead with the framing of charges even if the accused were not present, that some order was restored. Thereafter, they engaged themselves in dharna and riots. But the trial Judge has also recorded that soon the accused found that unless they submitted themselves to the process of law, their ordeal would not end. The presiding officers told the accused that there would be no interference in their religious rights and privileges. The Courts working hours were adjusted so that the accused could offer their prayers inside the Court Hall itself, and to enable the accused to observe the holy month of Ramzan, the Court timed its sittings in order to accommodate them and slowly, according to the trial Judge, trust and confidence built in their minds.
(ii) On a reading of the judgment of the Trial Court, we see that on some occasions the accused have not got along with the cross-examination in spite of several adjournments the Trial Court had closed the regarding of evidence with regard to that particular witness. But whenever an application was filed to reopen it was rightly allowed. Therefore, several factors have contributed to the manner in which the Trial Court had proceeded along in this case. Fair opportunity was given. Whenever they wanted change of counsel that was agreed to. We find that the defence knew what were the weak points in the prosecution case that had to be attacked in cross-examination. So if the recording of evidence did not proceed on the usual lines, it was also because of the accused, and that has not caused such prejudice as to vitiate the trial.
36. Delay in examination and choice of witnesses
(i) In Atmaduddin vs. State of U.P., A.I.R. 1974 S.C. 1901, the Supreme Court held that examination of witnesses after a very long time is certainly a circumstance that will have to be taken into account to consider whether the evidence given by them can be relied on. But in that case, the Supreme Court noted that the said circumstance has been taken into account and the evidence has also been considered carefully in view of the fact that there was faction in the village and the witness belonged to one particular group.
(ii) In Krishna Pal vs. State of U.P., 1996 Cri. L.J. 1134, the Supreme Court observed, In the instance case, no explanation has been given by the prosecution as to why eye witnesses had not been examined shortly after the incident and from the materials on record, it appears that there had been inordinate delay in examining the eye witnesses. But simply on that count, convincing and reliable evidence should not be discarded.
(iii) In Ambika Prasad vs. State (Delhi Administration), (2000 Cri. L.J. 810), the Supreme Court observed that independent persons are reluctant to be witness or to assist the investigation. The reasons are not far to seek. Firstly, in cases where the injured witnesses or the close relatives of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guarded. In State of U.P. vs. Satish, (2005 Cri. L.J. 1428), the Supreme Court held that it cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. The law laid down in these decisions appears to be that the delayed examination by the Investigating Officer cannot be the only factor for rejecting the case of the prosecution. But if there are other factors, which weaken the prosecution case, then the delayed examination adds to the weakness.
(iv) As already seen in Chandrakant Luxman vs. State of Maharashtra, ((1974) 3 S.C.C. 626), the benefit of a highly defective investigation cannot go to the prosecution, at the same time, the benefit of certain inconsistencies in the prosecution case should not go to the accused when the story of the prosecution witnesses is consistent.
(v) Many of the witnesses have stated in their evidence that after the blasts they stayed at home for several days, not even going out to earn their livelihood. This was understandable because of what happened. Some witnesses even said they had left the city. Some of the witnesses claim to have known some of the accused. If so, they may have felt more vulnerable. And as observed by the Supreme Court, independent persons very rarely come forward to give evidence. They will be more loath to do so in a case like this where they may fear repraisal. We have seen that most of the complainants refer to revenge, so the public reluctance to come to surface is very natural.
(vi) The same reason will apply for the choice of witnesses. The counsel submitted that it is curious that so many auto drivers have figured as witnesses. They submitted that auto-drivers are beholden to the police and therefore they are compliant witnesses and cannot be believed. That is one way of looking at the auto-driver witness. But the auto-rickshaw is ubiquitous. It can be seen everywhere. Wherever the customers want to go, the drivers go, so they may be in places where others may not be present. So the auto-driver, the coolie, the itinerant hawker are the witnesses who are on the scene when something happens. But we will bear in mind this factor whether the presence is plausible while evaluating their evidence. We will test whether the reason given by the witness for his presence at the correct time and the correct place is believable.
(vii) In Tarun Bora vs. State of Assam, ((2002) 7 S.C.C. 39), which dealt with proceedings under TADA, the Supreme Court held as follows :
27. It is quite but natural that in a prevalent situation, obtaining in the area surcharged with the insurgency activities, striking a terror and fear psychosis in the mind of the people, the Investigating Officer would definitely find difficulties to collect sufficient corroborative evidence. Witnesses will be reluctant to come to the Court to depose or appear before the Investigating Officer to give statement for fear of reprisals. Rarely, one comes across any corroborative evidence in such type of offence. This would be no ground to throw away otherwise trust-worthy evidence of prosecution witnesses. In the facts and circumstances of the present case, as adumbrated above, coupled with the credible and trustworthy statement of P.W.-1 Bhola Kakati, the prosecution has established its case. It must be remembered that the statement in-chief of P.W.-1 remained unimpeached. We have no reason to doubt the credit worthy evidence of Bhola Kakati - P.W.4, apart from the other lending circumstances as discussed above.
(viii) In Mohd. Khalid vs. State of West Bengal, ((2002) 7 S.C.C. 334), the following paragraphs are relevant :
14. Normally, the prosecution's duty is to examine all the eyewitnesses selection of whom has to be made with due care, honestly and fairly. The witnesses have to be selected with a view not to suppress any honest opinion, and due care has to be taken that in selection of witnesses, no adverse inference is drawn against the prosecution. However, no general rule can be laid down that each and every witness has to be examined even though his testimony may or may not be material. The most important factor for the prosecution being that all those witnesses strengthening the case of the prosecution have to be examined, the prosecution can pick and choose the witnesses who are considered to be relevant and material for the purpose of unfolding the case of the prosecution. It is not the quantity but the quality of the evidence that is important. In the case at hand, if the prosecution felt that its case has been well established through the witnesses examined, it cannot be said that non-examination of some persons rendered its version vulnerable.
15. As was observed by this Court in Habeeb Mohammad v. State of Hyderabad A.I.R. 1954 S.C. 51, prosecution is not bound to call a witness about whom there is a reasonable ground for believing that he will not speak the truth. That was also a case of bomb blasts. So each and every witness whose statement was recorded, need not be brought to Court. The prosecution has the right to pick and choose those witnesses who support the case. It cannot be insisted that because some were not examined the investigation is defective.
37. The investigations started in Coimbatore where the occurrence took place. The Learned Public Prosecutor submitted that though A1 was arrested on the same night, the leads relating to the various dates of conspiracy was followed and only then the investigation moved even to Chennai. Then they had pursued their task in other States too like Kerala and Karnataka. The investigating agency was racing against time to file the final report. The factors which persuaded the Supreme Court in Alagarsamys case(supra) to accept the non-production of the FIR diary, namely the unprecedented nature of the situation, the chaos that had caused in the otherwise peaceful life of the village, enormousness of the whole affair, the number of persons murdered, the number of witnesses collected and the enormousness of the investigation are equally relevant here. Many documents had reached the Court immediately, however it cannot be denied that many orders were sent belatedly too. On the side of the defence, the following judgments were cited.
(i) Arumugam vs. State, (2001 M.L.J. (Crl.) 801):
Sec.161-Statement of witness recorded under Should be sent to Court at the earliest point of time If there is any delay, then its evidentiary value is open to serious doubt.
This Court has been consistently holding that the statement of important witness recorded during investigation should be sent to the Court at the earliest point of time. If there is any delay, then, the evidentiary value of the evidence of such witnesses is open to a serious doubt. In view of the delay in sending the statement of this witness to the Court, as noted above, we are of the considered opinion, that to act upon the evidence of this witness will be a risky factor, especially in a case of murder like this.
(ii) Acharaparambath Pradeepan and another vs. State of Kerala, ((2006) 13 S.C.C. 643):
There may be some delay in examinations of PWs3 to 6 by the investigating officer. Delay in recording the statements of the eyewitnesses to the occurrence, normally is looked down upon but each case has to be considered on its own facts.
As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion See Ranbir and Ors. v. State of Punjab, [1974] 1 SCR 102 , Bodhraj @Bodha and Ors. v. State of Jammu and Kashmir, 2002 Cri LJ 4664 and Banti @ Guddu v. State of M.P., 2004 CriLJ 372.
(iii) In matters such as these, it is appropriate to recall the following observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, ((1973) Cri LJ 1783):
".....The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt....."
".....The evil of acquitting a guilty person light-heartedly as a learned author Glanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltness....."
".....a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....."
Therefore, this objection is rejected.
38. Issue relating to the Approver:
(a) P.W.1293, Riaz-ur-Rahman, who is the Approver, did not support the case of the prosecution by giving evidence. This was another ground of attack made by the defence, which according to them vitiated the entire proceedings. The learned counsel appearing for the defence submitted that even in the other case where the same offences were charged (Udumalpet), this witness had not supported the case of the prosecution. The prosecution should be fair and state before the Court why P.W.1293 has not been tried for the offence for which he was originally charged and also for the offence of giving false evidence.
(b) The learned Public Prosecutor submitted that the trial of the person not complying with the conditions of pardon is provided in
Section 308 of the Code of Criminal Procedure and the State had not invoked the said provisions because the appeals are pending.
(c) In A.I.R. 1963 S.C. 1850 (supra), the illegality of the pardon granted to the approver was raised as a ground before the Supreme Court and rejected. It is true that the evidence of P.W.1293 has not supported the case of the prosecution, but unless we are satisfied that the non-conduct of the trial against him had resulted in prejudice or it is shown to have a had a material effect on the final conclusion, we will accept the explanation given by the learned Public Prosecutor that further proceedings have not been initiated against him because of the pendency of these appeals.
39. Sanction:
P.W.1294, D.K. Farooqi was working as the Secretary to Government, Public Department from March 1998 till May 2001. A requisition came from the Inspector General of Police, Crime Branch for sanction of prosecution under Section 196 (i) (a) of Cr.P.C. with regard to an offence under Section 153 (A)(1) of IPC. This was referred to Law Department for their opinion. The opinion of the Public Prosecutor, High Court, Chennai was also obtained. Based on their opinion, a circular note was prepared and it was approved by him and Secretary Law, Chief Secretary, Minister for Law and the then Chief Minister. He had stated that based on his subjective satisfaction that it was a fit case for according sanction, he had accorded sanction. Several questions have been asked as to what were the materials based on which the other Departments have arrived at a conclusion for granting sanction, he is not able to give a clear reply. But, however, he had not replied that on a perusal he found enough materials for granting sanction. He has denied the suggestion that he has not properly and lawfully applied his mind pertaining to the grant of sanction. Every sentence in his examination has been bisected by the defence to attack the sanction. But, we find on a reading of the evidence as a whole that the witness has stated that he had properly exercised his discretion for grant of sanction.
40. Other cases with common accused /common witnesses It was submitted that this trial should be set at naught for the appellants were doubly jeopardized. Having faced the trial both in the Udumalpet blast case and the Poonamallee blast case they cannot under go the ordeal again. This violates their fundamental right against double jeopardy and their statutory right under Section 300, Cr.P.C.
I. Udumalpet
(a) Abdul Kareem @ Palani Babu who is A62 in the present case was A1 in that case; A7 Mohamed Ali Khan @ Kutty was A4; A5 Mohamed Bashith @ Bashith was A5 there too; A6 Abdul Ozir @ Ozir was A6; A106 Samjith Ahmed was A7; A153 Shajahan @ Yusuf was A8 and A26 Jahangir @ Jahir was A9. The case of the prosecution there, as in the present one, was to retaliate for the murder of 18 Muslims on 30.11.1997 and the conspiracy was between the third week of August 1997 and 3rd December, 1997 at Coimbatore. Whereas, here the dates of the conspiracy are different and are between 1st December 1997 and 14th February 1998. In the Udumalpet case, as in the instant case, the procurement of explosives was from Riaz-ur-Rehman, who was A11 and approver in Udumalpet case and P.W.1293 in the present case and through his employee A8 in the Udumalpet case and the deceased accused here. They were procured by Samjith Ahmed and handed over to Mohamed Ali Khan Kutty at Samraj Nagar, who later transported it to Sathyamangalam and handed it over to Yusuf. Yusuf kept it at the office of Arivoli Iyakkam and they were later converted into bombs by A5 and Jahangir and also handed it over to Abdul Ozir, A6. Thereupon, he handed it over to Abdul Kareem @ Palani Babu who exploded it on 3.12.1997 in the Udumalpet Shopping Complex. The following witnesses are common: P.W.38 Yejas Basha @ Mubarak. Yejas Basha is P.W.38 there and he is also examined here. In both the cases, the transport is through S.R.T. Bus Service, though in the present case, it is also through Modern Bus Service. In both the cases, the luggage was loaded as if the bag contained soapboxes and tamarind boxes.
(i) This Court, in the above case held, In other words, the prosecution has produced materials to show that explosive materials were purchased from A8 and brought and loaded in the Coimbatore bus. But the Division Bench was not satisfied with the evidence regarding what happened to the backed materials subsequent to the incident. In that case, the manufacture of the bombs was inside the house of A12, Mujibur Rehman. Finally, the Division Bench held, Not only are the important links missing, but even the available links are not enough to hold that the entire occurrence took place in pursuance of the conspiracy.
(ii) In Prabhakaran and others vs. State, rep. by the Inspector of Police, 2006 (4) C.T.C. 392, this Court held thus :
44. Even the Public Prosecutor was unable to say as to how these witnesses were traced to fix them as eye witnesses by P.W.36, the Inspector of Police, CB CID who took up investigation long after the occurrence and as to what was the reason for not having given any statement immediately after the occurrence was over to the police by these witnesses, even though they happened to meet the police officers on several occasions with reference to the enquiry for compensation, etc.
45. It is settled law that the unexplained delay in recording the statements of the eye witnesses, the non-examination of the material witnesses and unusual behaviour and artificial conduct of the eye witnesses would create a doubt about the genuineness of the case of prosecution, as laid down in the decisions in Harjinder Singh v. State of Punjab, 2004 Cri LJ 3854, Maruti Rama Naik v. State of Maharashtra, 2003 Cri LJ 4326, State of Punjab v. Harbans Singh, 2003 Cri LJ 2335, Deepak Kumar v. Ravi Virmani, 2002 Cri LJ 1781 and State of U.P. v. Bhagwant, 2003 CRI.L.J.233 7 (SC).
46. Under those circumstances, this Court is constrained to come to the conclusion that the prosecution has miserably failed to place correct records before the Court to enable this Court to find out as to what was the genesis of the occurrence and as to how the occurrence had started, as to how the occurrence ended and as to what was the part played by each of the accused in the commission of the crimes in question. Ultimately, this Court is of the view that all the accused are entitled to the benefit of doubt.
(iii) The prosecution case was that on the explosive materials being transported from Karnataka, they were manufactured into bombs in the Vallal Nagar premises belonging to P.W.29, Abdul Majith. And, after the manufacture, they were sent to Udumalpet. This Court disbelieved the evidence relating to what happened after the explosives came to Sathyamangalam, but the facts, according to the prosecution in this case, are totally different from the facts relating to transport, manufacture, distribution and planting here. The modus operandi may be the same, the persons accused of committing the offence may even be the same but it is not the same offence. Therefore, it is not possible for us to reject the evidence produced in this case merely on the basis of the rejection of the evidence produced in the Udumalpet case. We will have to evaluate it independently.
II. Poonamallee In S.C. No.1 of 2001 which relates to conspiracy and offences under Explosive Substances Act and offences under Sections 147, 148, 307 read with 149 etc., the Sessions Court Bomb Blast case at Poonamallee convicted A1-Basha, A29-Samsudeen, A28-Sarfudeen, A49-Basheer, A30-Abutahir, A31-Jaffar Ali, A10-Zakir Hussain, A5-Md.Basith @ Basith, A7-Kutty @ Md. Ali Khan, A119-Babu @ Amanullah, A153-Kuniyamuthur Yusuf @ Shajahan @ Shaja, A154-Hakkim @ Hakki @ Anwar A2 Abu, A118- Raffiq @ Md. Raffiq, A3-Tajudeen. There also the prosecution case was that the explosives were transported through Sathyamangalam and brought to Chennai. The narration of events as pointed out by the prosecution was identical to the present case. In the Poonamallee case also, the prosecution claimed that the accused have procured explosives from India Vediporul Kazhagam, Mysore and transported by SRT Bus Service at Sathyamangalam. P.W.1172, Chinnasamy (P.W.58 in Poonamallee case) claimed that he knew Liakat Ali Khan, the brother of A5 (A10 in Poonamallee case). He had a bakery at Sathyamangalam busstand. There again the case is that he would bring the gunny bags containing soap and tamarind. P.W.1103 who is the witness in this case is a rice merchant is P.W.68 in Poonamallee case is also one of the witnesses who claim that he along with his friend Chandrasekaran had seen A7 along with A17 and that they had loaded soapboxes in TN41-4515 and that he had seen that on more than one occasion. The evidence of P.W.1103 and 1172 is almost identical in this case and Poonamallee case. Therefore, according to the learned counsel for the defense when the Sessions Judge who tried the Poonamalee Bomb blast case had disbelieved the evidence of these two witnesses, it must be rejected in this case also. We will evaluate the evidence relating to these witnesses too carefully bearing in mind the prosecution had examined the same witnesses in two earlier cases, and their evidence was rejected.
We have given our reasons above why we are not rejecting the prosecution case merely because of lapses in investigation, or delay in examination, or clubbing of cases etc. We will examine the evidence before us and assess its weight to arrive at our decision. With this, we come to the end of the broad- based grounds of attack.
41. Specific Grounds of attack Now we will come to the specific grounds. We will deal with each step that the accused are alleged to have taken to accomplish their purpose, refer to the witnesses who give evidence in this regard. So the evidence will be discussed under the following heads. Conspiracy, which is the opening, Procurement from the dealer, Transport from the source to Coimbatore, Manufacture at various places, Distribution thereafter, and finally the Planting, which led to the gory finale. Then, we will discuss the evidence relating to Arrest and Recovery. We have already given our reasons for holding that without a conspiracy the blasts would not have occurred, so if an appellant is found to have taken part in the conspiracy, then he will be responsible for the consequence, and if the evidence relating to the other overt acts is accepted then that accused will be held to be part of the conspiracy too, since, according to us, one was the cause and the other, the effect. After we have discussed the evidence, we will take up the case of each accused/appellant based on the crime number or otherwise, including A1 who has not filed an appeal. Then we will give reasons for accepting or rejecting the prosecutions case vis-`-vis the particular accused.
42. We will now deal with the submissions under different heads:
I. MOTIVE The prosecution has examined several witnesses to speak of the motive.
P.W.893, K.M. John Britto the Inspector of Police, speaks of Crime No.464 of 1996, where some of the accused had been arrested. P.W.1261, P. Mallanna Goud was examined to show the involvement of S.K. Mohammed Ali in Crime No.16 of 1993, which is the R.S.S. Bomb Blast case. P.W.873, Muralidharan was the Assistant Manager of Hotel Aradhana and on 21.11.1997, A1 had given a press meet in their hotel, where A2, A3, A13 and the absconding accused Mujibur Rahman took part. He could not identify the accused. P.W.864, K.K. Srinivasan was the Manager of the same hotel. He too has spoken of the press meet and the hotel registers have been seized from him. P.W.852, V. Vellaiyan is a retired Superintendent of Police. He has spoken of the incident where in the police shooting, one Shahul Hameed had died and a case was registered in Crime No.2210 of 1997. P.W.766, Abdul Sukkur owns the shop by name "AChoice Video" and according to him, Amanullah and Wahab of his shop took the short video films of the damage caused in certain parts of Coimbatore at the request of Jaffer Ali of T.M.M.K. and Musthafa Kamal of J.M.Q. P.W.771, Abdul Wahab is the photographer mentioned above. P.W.742, Jiauddin, at the request of Musthafa Kamal mentioned earlier, took the video of the 18 dead bodies of the young Muslims in C.M.C. Hospital. P.W.740, Ayup took the video pictures of the destruction caused to the shops belonging to Muslims at he request of Habib Rahman, an advocate. P.W.749, Habeeb Rahman is the advocate mentioned above. P.W.880, Abdul Rahman owned "Three Star Cable". According to him, A8 Siddiq Ali, requested him to take the pictures of the funeral procession of the dead Muslims. P.W.758, R. Ravikumar was the Reporter of the Coimbatore City Police and he recorded the speech made by Sridhar, the State General Secretary of the Hindu Makkal Katchi and also the speech made by A1 on 22.11.1997 at the meeting held at about 8.45 p.m. P.W.746, Sathar is the Secretary of Hyder Ali, Tipu Sultan Dakkani Sunnat Jamath Pallivasal and Kabrasthan. According to him, on 30.11.1997, a crowd containing 150 persons jumped over the wall of their pallivasal and destroyed the lights, windows, the holy book of Quran, amplifier and set fire to it and he gave a complaint. P.W.851, K. Marudha Raju was the Head Constable who received the complaint given by P.W.746 and registered it in Crime No.2095 of 1997. P.W.916, M. Rajendran has received the complaint given by one Sivaraj in respect of an incident that took place on 3.12.1997 where a bomb was kept in a cycle. He had arrested A62, Palani Babu under the N.S.A. in connection with the said case. P.W.1064, D. Regoramanis was the Deputy Superintendent of Police of 'Q' Branch. He was examined with regard to Crime No.7498 of 1997 at Ammapettai, where A1 was one of the accused and a bomb was kept in a closed rice mill. According to the prosecution, the same modus operandi has been used in this case, which is an additional piece of evidence, that it was only this group, viz. the 'Al Umma', which caused the explosions in the present case. P.W.779, Gnanasekaran was the I Grade Constable at Tambaram Police Station and according to him, A149 (not an accused) was carrying a rexine suitcase in a bicycle. He tried to apprehend him, but he ran away, leaving the suitcase there. He found that there were some wires and explosive materials in that suitcase. P.W.1082, T. Sugumaran was the Assistant Commissiner of Police, who registered Crime No.116 of 1998 at the instance of P.W.779. P.W.945, T.V.V. Muthusamy was the Inspector at Thudilayur Police Station in 1998. He received information that there were bombs, which he detonated with the help of the Bomb Squad. He has also spoken of earlier cases, including the incident on 29.11.1997 when A2 and two other are said to have created a problem in the presence of P.W.1045, Chandrasekaran. P.W.894, N. Dhanapal received a complaint from S.K. Mahendran on 2.9.1997 that A1's son-in-law and four others had attacked him and Crime No.637 of 1997 was registered. P.W.891, K. Balasubramaniam was the Inspector at Melapalayam and he had registered a case in Crime No.233 of 1997 under Sections 147, 148, 341 and 302, I.P.C. against the accused who were alleged to be 'Al Umma' fundamentalists for the murder of one Pookkadai Kannan. P.W.1090, P.K. Sundaramoorthy, the Inspector of Police, investigated the case in Crime No.183 of 1997 of Tambaram Police Station and according to his investigation, six Muslims had killed one Ramki @ Ramachandran of R.S.S., in order to take revenge for the murder of Palani Baba of the Jehad Committee. P.W.1223, K. Periyamuthu was the Inspector of Tiruppur South Police Station and he had investigated the case in Crime No.306 of 1997 and arrested the accused belonging to Hindu Munnani. P.W.1251, N. Sethunathan was the C.B. C.I.D. Inspector at Coimbatore at the relevant point of time. He had registered a case against A155 and another for attempt to commit murder of the Hindu Munnani leader Ramagopalan on 7.4.1995. P.W.1155, C. Ramasubbu was the Assistant Commissioner (Law & Order) of Coimbatore West and he had spoken of the law and order problem that arose after the murder of Constable Selvaraj. P.W.884, Muthusamy was the Inspector (Law & Order) at Coimbatore R.S. Puram. He has spoken to about the case registered in Crime No.748 of 1983 of the R.S. Puram Police Station for an occurrence that took place on 11.6.1983 when A1 and others attempted tp murder Thirukovilur Sundaram and others. P.W.1225, P. Zainul Abdeen was the publisher of a monthly magazine called "Nasaaj" in the year 1987. In 1988, he published a magazine called "Al Jannath". According to him, with his efforts, the organisation called JAK was formed, with the intention of educating Muslims about the evils of dowry and superstition. Initially, A1 was supported JAK and in 1993, when A1 was arrested under TADA, this witness collected Rs.17,000/- and sent it to the families of the TADA prisoners through A5 Basith. A1 was initially staying in T.M.M.K. Office. Thereafter, when his brothers were arrested by the police in Kodungaiyur, the TMMK Office was raided. Then, the TMMK people felt that the growth of their organisation will be affected by such police raids and hence, they attempted to send A1 and others away. Thereafter, A1 took a house in Maroof Sahib Street and started the 'Al Umma' Office. He has also spoken of some estrangement that arose between him and A1. The fact that originally A1 was staying in TMMK Office and later moved to Maroof Sahib Street is also spoken to by P.Ws.854, 855 and 1195, which will be dealt with separately. P.W.1206, K. Sundararaj was the Assistant Inspector at B-1 Kadai Veethi Police Station in 1988 and he has referred to the frequent conflicts between 'Al Umma' people and Hindu Munnani people. P.W.959, K. Sekar was the Inspector (Law & Order) at B-1 Police Station in 1989 and he has spoken of an incident where the Hindu Munnani people had murdered one Hakeem on 3.4.1989. P.W.859, Pon. Chandrasekaran has also spoken of earlier occurrences, especially law and order problems that arose after the demolition of the Babri Masjid, consequent to which A1 was arrested on 26.12.1992 under the N.S.A. P.W.1248, V. Surulivel, the Inspector, Crime Branch, Avinashi has been examined to speak of Crime No.289 of 1991, where Baburam and others belonging to Hindu Munnani had murdered Shaik Dawood. P.W.877, Mahendran, the photographer of Shanthi Studios has spoken of the constant tussle between the two communities and that he filed a complaint, pursuant to which, Ex-P.555, F.I.R. was registered. This relates to an incident that took place near Maagaliamman Temple. P.W.749, Nazir has a video shop by name Melody Videos on N.H. Road. He has also taken pictures of the damage caused to the shops as well as the dead bodies on the instructions of advocate Habib Rahman.
We have not dealt in detail with the evidence of these witnesses. According to the prosecution, this will show that their cases of conspiracy is proved. Whereas, according to the defence, this evidence itself would show that it could have been other organisations which had been behind the blasts and 'Al Umma' had been unnecessarily been implicated. We are relying on the evidence only to that extent that it establishes that there were frequent untoward incidents at the instance of one community or the other in Coimbatore, which finally culminated in the bomb blasts on 14-02-1998. The evidence of these witnesses does not indicate anything more than that.
II. MOBILISATION OF FUNDS The prosecution has also examined a few witnesses with regard to the mobilisation of funds for the operations leading to the bomb blasts. The evidence of P.Ws.854 and 855, which has been dealt with under the caption Conspiracy, is very vague. According to them, notices were distributed requesting persons to contribute to conduct the cases for the 'Al Umma' cadres who are languishing in jails. But this really does not help the case of the prosecution in this case, because here we are only concerned with the mobilisation of funds for procurement of or for transport of the bombs used in the present case. But even according to the witnesses the collection of funds was meant only to help the TADA prisoners or their families. P.W.838, Ramkumar was the Senior Manager of Canara Bank. According to him, A1 opened a Current Account in his branch on 16.8.1997 and the last transaction in his account is dated 10.2.1998. P.W.783, K.A. Rahman was having a car workshop near Vincent Road, in a place, which belonged to Peria Pallivasal. He wanted to sell the workshop, for which he asked some advice and he was told that he could sell it to A3 Nawabkhan. So he sold it to A3 for Rs.1,90,000/-. He received Rs.1,20,000/-. Even without receiving the balance of Rs.70,000/-, he gave possession of the workshop to A3. P.W.784, Bakkrudin also speaks of this transaction. P.W.839, Abdul Lathif belongs to Periya Pallivasal Jamath. According to him, 69 jamaths united and formed the Kovai Maavatta Anaithu Muslim Iyakka Koottam and its leader was Haji Abdul Hameed. They collected Rs.1,00,000/- with the intention of helping the Hindu Muslim victims who had suffered due to the riots. He also speaks of the sale of the worskhop. P.W.830, Mohan J. Thomas, the Branch Manager of Punjab and Sind Bank, has spoken of the opening of a Current Account in their branch for the Coimbatore Muslim Relief Fund. The evidence with regard to mobilization of funds really does not in any way advance the case of the prosecution.
III. CONSPIRACY (i) Conspiracy dated 30-11-1997 :
P.W.1132 is Senthil Kumar. He is a vegetable vendor, who would go to Kottaimedu in the course of his work and thus got to know the leaders of 'Al Umma'. He knew that Constable Selvaraj was murdered on 29.11.1997. On 30.11.1997, there were riots in many places in Coimbatore. That evening, he and his friend Ganesan went to Kottaimedu to Choice Tailor Shop in Appakara Street. A2 Ansari, A4 Nawab Khan and A161 Mujibur Rehman were standing there in front of a house. Then they went up the stairs of the house. The boy at the tailor shop told him that it was Kottaimedu Thangappa's sisters house. A5 Basith, who is Advocate Zakariya's clerk, also went upstairs. Then all of them came down. A2 told A5, "Start the work that I told you tomorrow itself", and he told A161, "There has been a lot of loss on our side. We have to teach them a lesson. Let our people be ready". On 14.2.1998, there was a series of bomb blasts and many people died. The police arrested many persons belonging to 'Al Umma'. The S.I.T. enquired him. He told them what he had seen. He realised that the accused had planted a set of bombs and that they had completed what they had planned that day. He identified A2, A4 and A5 in Court.
In cross-examination, he has stated that he does not know what 'Al Umma' is, nor had he gone to any meeting of 'Al Umma'. He had seen the photo of A2 and A4, but he does not remember whether they had beard then. There was agitation in the city after Shoba Cloth Centre was burnt. On 30-11-1997, since the market was closed, he did not do business. It looked as though it was a bandh. He stood near the tailor shop from 3.30 p.m. to 3.45 p.m. The name of the shop owner is Choice. In his statement before the policehe had not said that he had gone to get his cloth stitched at Choice Tailor. He took the pushcart on hire from one Doraisamy at Ukkadam. He had purchased the cloth that he wanted to be stitched two months earlier, and that was meant to make pant and shirt. He has stated in his cross-examination that only buses plied on the road for four days after 29.11.1997. He read from the papers that there was trouble in Ukkadam area, so he did not go to work. Two days after the blasts, he spoke to Ganesan (not examined) regarding what they had heard and agreed that the accused had executed their plot. He said so when he met Ganesan at Kempatti Colony. That was on 16.2.1998 and that was at the place where Ganesan does goldsmith work. Ten days after 14.2.1998, he resumed his vegetable business. The police examined him only in Vadavalli.
(ii) Conspiracy in the first week of December, 1997 :
P.W.1152 is Nataraj. He was an auto driver at the relevant point of time. In the first week of November 1997, he asked A4 Nawab Khan of Kottaimedu to help him buy an old auto. So, in the first week of December, he went to his house at 5 p.m. with his friend Muthu. The house is in Kottaimedu Ibrahim Kajiar Street, Door No.43. When he went near it, there was a loud conversation from inside where they heard people saying, "We must take revenge for the death of the 18 Muslims. We will consult Bashabai and take revenge". When he knocked the door, A4 came out. They went inside. A2, A9 and A6 were sitting there. A4 told them that he has not identified an auto and asked him to come after one week. They left the place, but after that, though they attempted several times, he could not meet him. After the blasts, he realised that they had executed their plan. This witness identified A2, A4, A6 and A9 in Court.
In cross-examination, he has stated that he knew his friend Muthu for six years, but he does not know his address. He has said that until police came and examined him on 20.7.1998, he never went voluntarily and told anyone. According to him, the Deputy Superintendent of Police alone had recorded his statement from beginning till end. People in Ratnapuri and in the second hand market, told him that A4 would arrange for purchase and sale of second hand autos. He could not exactly say who told him. He did not identify the house to the police. He has denied that he belongs to the Hindu Makkal Katchi and that he is fabricating the evidence.
(iii) Conspiracy dated 26-12-1997 :
P.W.1259 Gopalakrishnan belongs to Kerala and would frequently go to Coimbatore and Tiruppur. In November 1997, he had gone to Coimbatore with his friend Sivadasan to buy some spare parts. When they passed Easwaran Koil at Ukkadam, they saw a meeting at Iqbal Grounds. So, they stopped there. It was an 'Al Umma' meeting. A1 Basha was talking there. He saw A9 also there. He already knew A9. So, he asked him what was happening. He said that he was there as an 'Al Umma' cadre and then A9 pointed out the leaders of 'Al Umma', who are A2 Ansari, A4 Nawab Khan, A5 Basith, A10 Zakir Hussain and A13 Auto Siraj. After listening to the speech, they went away. It was about 7.30 p.m. Thereafter, they caught a bus at Ukkadam Bus Stand and went to Othapalam. On 26-12-1997, he went to Ulavukadu Railway Station. He was purchasing chips in a small shop near a pallivasal near the station. At that time, A4, A2 and A9 came there in a white Maruti car. They got down and went inside the Pallivasal. Behind them, A10-Zakir Hussain and A5-Basith went. It was about 12.30 p.m. then. When he was purchasing the chips, they went to Crown Hotel. The witness also went to Crown Hotel and ordered for food. At that time, A2, A9, A4, A10 and A5 came and sat at table and he was sitting in one of the tables. All of them ordered food that they wanted to the supplier. At that time, A2 told A5, "If you require, I will be able to supply 50 boxes of explosives". While they were eating A2 told A5, "With 50 bags, we can manufacture bombs and we can cause them to explode 20 explosions with this material. We should take revenge against the Hindus. After that, he returned to Othapalam. On 15-04-1998, he read about the bomb blasts. Seven months later, the police examined him. He identified A2, A4, A9, A5 and A10 in Court.
In cross-examination, it has been elicited that there was no necessity for him to go to Coimbatore if he did not have to buy spare parts. He has also admitted that there was high security in Coimbatore for the meeting. According to him, apart from A5 Basith, others were on the dais. While he was there, he only heard what A1spoke and not what others spoke. There were about 200 persons. It is not correct to state that Zakir Hussain was not here. A9 pointed out others to him from 10 feet distance. He had no work near the railway staion shop except to purchase chips. Even in Palakkad, he could get good chips. He had seen A9 one month before the meeting and before that, in the month of October. He had no enmity with A9. He did not tell the police or anyone about this incident. It was only after the bomb blasts that he realised what they had planned.
(iv) Conspiracy dated 15-01-1998 :
P.W.1199 is Ramesh who lived in West Venkatesan Road at that time. On 15-01-1998, at 11 a.m., he went near Kottaimedu along with his friend Palanivelu in connection with work. About 30 persons were standing in front of 'Al Umma' office and talking. He stood and listened to what they were talking. A4 Nawab Khan, A8 Siddiq Ali, A13 Auto Siraj, A9 Oom Babu and A6 Ozir were there. Along with them, 25 more persons were there. At that time, A4 stood up and said, "The time to take revenge has come, be prepared to give up your lives". Everybody said, "We are ready, we are ready". Thereafter, the witness finished his work and returned home via Vincent Road. On 14-02-1998, when Mr. L.K. Advani was to visit Coimbatore, there were bomb blasts. Many 'Al Umma' people were arrested. After six months, he was examined. He told them what he had seen and he identified A4, A6, A8, A9 and A13 in Court.
In cross-examination, he admited that he had not told anyone what he had seen and that only the police examined him. In the statement recorded by police, he had not told them why he went towards Kottaimedu. He has denied that he has seen the photographs of A6 and A9. After he saw them on the date of occurrence, he was seeing them only in Court. He could not remember when 'Al Umma' was started or what posts A6 and A9 and Siddiq Ali held therein. There is a road next to 'Al Umma' Office and a house. The meeting took place inside 'Al Umma' Office. That is a predominantly Muslim populated area. But for his work, there was no necessity for him to go there or attend the meeting. Thirty persons were siting and talking. He stood there from 11 a.m. to 11.05 a.m. and went away. His mother tongue was Malayalam. Normally he would speak in Malayalam. Muslims would speak in Urdu. He knew that what they were talking was wrong. Even two days before the meeting, the police checked the West Venkatesan Road where the meeting was going to take place. The area was under the control of police. At that time, he was residing there. The cross-examination of this witness threw up a discrepancy between his statement given to police and the court evidence regarding the words, "The time for revenge has come". He has denied that only with the help of police he is identifying the accused in court. He is not aware whether anybody else saw what he saw at the 'Al Umma' Office. He was asked specifically whether people like the accused were speaking on that day. The answer was, "Not people like the accused, but the accused themselves". Discrepancy was pointed out between his statements before the court evidence regarding the usage of the words "We are ready, we are ready". The cross-examination has also asked regarding his possession of auto permit etc. to show that he could not have been an auto driver. He has been asked about the location of 'Al Umma'. He knew that he should inform the police, but he did not do so.
P.W.764, T.P. Mohammed Haneefa has stated that he was the attender at Idayathulla Islam Saffiah Sunnat Jamath. There is a house belonging to the Jamath at Door No.790. One Rashid was living there. Thereafter, Abdul Jaffer and Islamil conducted a biryani shop. Thereafter, that place was given to 'Al Umma'. After the blasts, the building was sealed.
(v) Conspiracy dated 30-01-1998 :
P.W.1039 Jayakumar is a goldsmith. He knew A54 Abdul Rawoof and TADA Mujibur Rahman, the absconding accused. According to him, when he was having tea at the tea stall in Karumbukkadai, Saramedu on 30-01-1998, the above accused came there. The witness was reading the newspaper while he overheard their conversation. He heard the absconding accused tell A54 to be ready to take revenge and that it was necessary to do something under the leadership of A1, as otherwise, the entire community will be crushed. This witness was unable to identify A54, who is not an appellant.
(vi) Conspiracy dated 13-02-1998 P.W.1175 is a resident of Kempatti Colony and is a goldsmith. He and Muthuraj wanted to fix a house for rent in Bilal Estate. So, he went there on 13-02-1998. There was a hut facing north. Three two wheelers were parked in front of that hut. 'Al Umma' leaders were standing outside and talking. A2 Ansari, A9 Oom Babu, A4 Nawab Khan, A12 TADA Aslam, A11 Poochikann Aslam and A163 Mujibur Rehman, the absconding accused was talking. They said that we must show some opposition to L.K. Advani's visit. The witness and his friend were going along the path behind the house. When the blasts took place in Coimbatore, they realised what the accused had planned. He identified A2, A4, A6, A9, A11 correctly in Court, but he identified A12 TADA Aslam wrongly.
In cross-examination, he has admitted that he was examined six months later. He has admitted that if Muthuraj did not want a house for rent, there was no necessity for him to go to there. He has denied that he is not a broker for Bilal Estate. He said that the accused were standing on the road and talking and anybody walking past could have heard what they were speaking. But in cross-examination, it has been elicited that he had not said so in his statement given to police, nor had he said that they had planned to do something during Mr. L.K. Advani's visit to Coimbatore. According to him, the accused did not see him or Muthuraj. He did not see any police near Ukkadam Bus Stand. There is no direct connection between him and the accused. He has denied that he is identifying the accused only with the help of the police.
(vii) Conspiracy dated 07-02-1998 :
(a) P.W.854 is S. Rajan who was appointed as P.S.O. to A1 from February 1997. According to his evidence, he and P.W.855, Kalaiselvan, the other P.S.O., would be on duty on alternate days. According to him, when he first became A1's PSO, he was staying in the office of T.M.M.K. at Takkar Street, Purasawalkam, Chennai. He had a chocolate colour Ambassador bearing Regn. No.7975. Along with him, A156 S.M. Buhari, A144 Ashraf Ali, A104 Shafiq, Oosi Abbas and Taliban were there. Once there was a police raid in this office. Thereafter, A1 took on rent the house at No.34, Maroof Sahib Street, Triplicane, Chennai-5. This was arranged by one Afsar. According to this witness, A1 would go only in the car to the CBI Office and the TMMK Office. P.W.854 would also go with him. Along with him, A8 Siddiq Ali and A156 S.M. Buhari would also go. It is there that he started the 'Al Umma' Office. The person in charge of the office was Buhari. In May 1997, Driver Raja and A9 Oom Babu left a blue colour FIAT car and took the chocolate colour Ambassador car. The registration number of the FIAT car was MRD-3492. In June 1997, P.W.854 went on leave and returned in July. At that time, A21 Amanullah, A60 Valarndha Saleem, A156 Rafiq @ Shanmugam, A29 Shamsuddin, A28 Sharfudeen, A39 Hakeem, A163 Mohammed Ali, Saifullah, Abdul Rahman, Anees, Mustafa, Zulfi, A16 Keezhakarai Abbas, A11 Poochikkan Salam, Tailor Raja (the absconding accused), Munaf and Sadiq were with him. There were two phones in A1's office. Their numbers were 8569136 and 8529584. He had a cellphone. The number was 9840056896. Tailor Raja (absconding accused), who came from Coimbatore, taught driving to Siddiq Ali, Mohammed Ali and M.S. Hakkim. By that time, the Ambassadar car was returned and in September, A9 took back the blue colour FIAT car. Every Friday, A1 would go to some mosque. When he went, P.W.854 would also go along with him. There, Siddiq Ali, Rafiq, Hakkim and Buhari would distribute bit notices, bearing the words, "Al Umma is a movement which fights for the Muslim community and since the Muslim fighters are suffering in the jail, monetary assistance should be given for conducting the case Yours, S.A. Basha". This is how they mobilised funds. Similarly, Sikkandar, Afsar and Niamathullah would collect funds and remit it. When A1 announced in Madurai that 'Al Umma' would be a democratic movement, P.W.854 was with him. On 01-12-1997, when he went to duty, A1 was in a tense state of mind. He was receiving frequent phone calls relating to the Coimbatore clashes. Thereafter, A2 Ansari, A4 Nawabkhan, A6 Ozir and A161 Mujibur Rahman from Coimbatore would visit A1 and talk to him. A3 Tajudeen from Chennai would also frequently visit A1 and talk to him for a long time. The two daughters of A1 got married at the Pudupet Mosque. One daughter was given in marriage to Sultan and the other daughter to A161 Mohammed Ali. On 07-02-1998, A4, A2, A6 and A161 came from Coimbatore, as also A3 from Chennai. They were talking with A1 for a long time in the office. Along with them, A152 Buhari and A163 Mohammed Ali were also there. They spoke about the retaliation to the Coimbatore incidents. On 09-02-1998, A1, A152 Buhari and A163 Mohammed Ali went to the CBI Office to comply with the conditions. P.W.854 also went with A1. On 13-02-1998, Mohammed Ali went away with his wife. On 14-02-1998, P.W.855 was on duty. That was the day when there were bomb explosions in Coimbatore. P.W.854 came to know that on that night, A1 was arrested along with 13 others together with explosives. Thereafter, the ADGP, SIT enquired him and recorded his statement. He identified A1, A2, A3, A4, A6, A8, A9, A11, A21, A28, A29 Shamsuddin, A60, A152 TADA Moosa, A154 Hakkim, A156 TADA Buhari and A163 S.K. Mohammed Ali.
In cross-examination, P.W.854 has stated that there were no written instructions with regard to his duties, but he was told what he should do if there was danger to A1's life or properties. Similar duties and responsibilities were given to P.W.855 also. It is not his duty to take note of A1's visitors. Everyday, A1 had at least five/six visitors. There would be other visitors besides the accused mentioned by him above. He could not tell the name or the place of residence of such visitors. There were two rooms in the ground floor and the first floor of the house at Maroof Sahib Street. Both the phones were on the ground floor. He had no knowledge, who took the FIAT car or the Ambassador car, nor on what date A9 took the car back. He only remembered it was in September. When A1 visited the mosque, he would not go inside and would stand near the gate. He cannot know who spoke to A1 inside the mosque. He cannot say how much money was collected everyday from him. After the clashes at Coimbatore, the aforementioned accused had visited A1 at least twice or thrice, but he does not know on what date. Discrepancy had been pointed out in this regard between the statement before the police and the evidence in Court. Regarding retaliation to the incident at Coimbatore, they spoke from 10 am to 5 pm. P.W.854 could hear what they spoke, but they spoke behind closed doors. He has denied that he is giving false evidence. He has stated that it is only because of the conspiracy that the bomb blasts took place.
(b) P.W.855 Kalaiselvan is the other P.S.O. appointed for A1 from August 1997 to 14th February, 1998. According to this witness, he and P.W.854 had duty alternatively. He has spoken of the 'Al Umma' Office at Maroof Sahib Street and according to him, A8, A163, A156 Rafiq @ Shanmugam, A60 Valarndha Saleem, Shafiq, Saifullah, Munaf, Anees, A29 Oosi Abbas, A28 Sarfudeen, Poonaikkan Salam, Tailor Raja (the absconding accused), Zulfi, A21 Amanullah, Rafiq and Sadiq were with him. A152 was taking care of the 'Al Umma' Office. A1 would go in the car to TMMK Office and to the CBI Office. P.W.855 would accompany him. Along with him, Siddiq Ali, TADA Moosa, Buhari and Mohammed would also go. His evidence is almost on the same lines as the evidence of P.W.855 with regard to the FIAT car, Tailor Raja teaching the other accused driving, the exchange of cars by A9, the visit of A1 to mosque on Fridays, the distribution of bit notices, A1 being in a tense state on 30.11.1997, the marriage of A1's daughters etc. He has also stated that on the afternoon of the marriage, there was a feast at Afsar Bai's house and that evening, between 4 and 6 pm, A2 Nawabkhan, A6 Siddiq Ali, A3 Tajudeen, TADA Moosa, Buhari, A9 Oom Babu and A161 Mujibur Rahman were in A1's house in a discussion. They decided to retaliate for what happened in Coimbatore. In the first week of February 1998, A2 Nawabkhan, Mujibur Rahman, A9, A152 TADA Moosa, A156 Buhari, A3 and A163 Mohammed Ali visited A1 and were talking for a long time. They spoke about retaliation. He identified A1, A2, A3, A4, A6, A8, A9, A11, A21, A28, A29, A60, A152, A154, A156 and A163.
In cross-examination, he has described the location of the house at Maroof Sahib Street. According to him, at the time of the conspiracy, which took place on the first floor of the house and they were speaking in a loud, violent voice. He could not say who spoke what. But for two hours, he heard what they spoke. But he cannot say what decision they had arrived at. Discrepancy had been pointed out with regard to the participation of the specific accused in this conspiracy between his statement given before the police and the evidence given in the Court. It is he who gave the information regarding the conspiracy to P.W.854 and it is only from him that P.W.854 came to know about the details and his evidence on the basis of what he saw directly and what he heard directly and has also stated that he and P.W.854 were never on duty at the same time.
(c) (i) P.W.1195 Sanjay @ Saifullah is a friend of one Jayakumar @ Abdul Rahman who died in the blast at Thirumal Veedhi on 15-02-1998. His brother married a Muslim girl and converted to Islam. Before that, for one year, he was moving with A12 TADA Aslam, A11 Poochikkann Salam, A17 Zaffru and A19 Makkan Jaffar belonging to 'Al Umma'. Through his brother, he got the acquaintance of A12, A11, A17, A19 and A9 Oom Babu. Before November 1997, A9 went with A1 Basha in the Ambassadar car to Kerala and brought aruval and knives in gunny bags, which were unloaded at Karumbukkadai. In 1997, when A1 hoisted the flag at Coimbatore, TADA Aslam tied the 'Al Umma' band around his head. Thereafter, P.W.1195 took part in the flag hoisting. When A2 Mohammed Ansari came to Thirumal Veedhi, this witness became acquainted with TADA Aslam, Salam and Zaffru. After 15-12-1997, A12 gave him Rs.400/- and sent him to work at A1's house. A1's house was in Maroof Sahib Street. He gave him a watchman's job. His work was to clean the car and do household work. The 'Al Umma' Office was located there. A152 TADA Moosa belonging to Melapalayam would drive the car A1. Bilal (not examined) and Abu (not examined) from Melapalayam were the cooks. Abdul Khadar, Yasid, Sadif, Munees, Thoppai Ajiz (all not examined) were also there. A152 , A156 TADA Buhari or A163 Mohammed Ali would always be with A1. A27 Muthappa, who was involved in the murder of Kottai Amir and A8 Siddiq Ali, who is A1's son, would constantly be seen together. A28 Sarfudeen and A29 Samsudeen belonging to Coimbatore would frequently visit A1 at his house. On 07-02-1998, A2 came to Chennai to visit him. Along with him, A4 Nawab Khan, A6 Ozir, the absconding accused Mujibur Rahman and A3 Tajudeen of Madras came discussed with A1 together. They said that they must retaliate for the murder of the 19 Muslims after the death of Coimbatore Police Constable Selvaraj. They plotted a conspiracy to kill Hindus with bombs. They would play the videocassette relating to the death of the 19 Muslims. On 14-02-1998 at about 8 p.m., this witness went to A1's house from Arcot Nawab Pallivasal at Tiruvallikkeni. Then he heard that the police had caught hold of everyone there. Therefore, he went back to the Pallivasal. On 25-03-1998, he returned to Coimbatore. On 04-04-1998, he was examined by the C.B.C.I.D. who recorded the statement. One month later, he gave his statement under Section 164, Cr.P.C. (Ex-P.1240). He identified A1, A2, A3, A4, A6, A8, A9, A11, A12, A17, A19, A27, A28, A29 and A152. He said that TADA Buhari and Mohammed Ali were not there. At that time, A156 TADA Buhari was there, but there was no one by name Mohammed Ali. He identified the six signatures in Ex-P1240 as his.
(ii) In cross-examination, it was elicited that his wife was healthy. There was a surgery done on her. The summons to appear in Court was served on him on 09-02-2004. He could come whenever he was summoned. His health was all right. It is because he fell down two days ago that he limped at that point of time. He denied that the police used physical force to make him give evidence. It has also been elicited in his cross-examination that he had faced a trial for attempt to murder and he was awarded three years' imprisonment. He had not shown to the police where he went with A9. He did not have the habit of maintaining a diary. Even in his statement before the police, he had referred to transport of weapons from Kerala. He would sign as Sanjay @ Saifullah very often. He has admitted that his wife's name was Deepa. His father-in-law's name is Balu and his mother-in-law's name is Umarani. It has been elicited that he has not published in the Gazette that he should be known as Sanjay @ Saifullah. He had not officially given any name change. He has denied that he belongs to Hindu Munnani and that he hated Muslims because his brother had converted. He has also denied that the police had coached him. His statement under S.164 is also along the same lines
(iii) According to the defence, this witness is unbelievable. He has been examined belatedly and it is difficult to believe that a person who was living in A1's house would not have immediately gone and told the police about the conspiracy. Another relevant fact is that P.Ws.854 and 855, who were A1's P.S.Os., did not even mention the fact that P.W.1195 was working in A1's house. According to the defence, this evidence must be rejected because he is a tutored witness. According to him, he had been moving with the 'Al Umma' people after his brother got converted and it is possible that they had not sent him to work in A1's house. It is not an unbelievable version. Learned Public Prosecutor also submitted that it would be seen that there is corroboration between the evidence of this witness and the two P.S.Os. Further, his evidence is very much in line with what he has stated in the statement under Section 164, Cr.P.C. According to the learned Public Prosecutor, the factum of conspiracy stands established by the evidence of this witness.
(d) P.W.1063, Syed Ibrahim is the next witness. He supplies buttons and zips to the companies in Tiruppur. In 1995, he was doing propaganda for NDF and also selling books. NDF is National Defence Force. The headquarters are in Royapuram, where the "Ilakkiya Solai" magazine is published. The head is Ghulam Mohammed. The person in charge was A3 Tajudeen. He would buy books from there and go and sell them to Tiruchy, Madurai and other places. In that movement, A3 Tajudeen would give him books relating to reading of Quran etc. Because of some problems, he left that organisation. Thereafter, he joined a job in the STD Booth opposite Sudha Lodge on N.H. Road. During the day, he would go and take orders for screen-printing work. In the night, he would look after the STD Booth. At that time, Arif (not examined) was the Secretary of 'Al Umma'. According to the defence, this is factually incorrect. The witness would go to 'Al Umma' office along with him and he became acquainted with A2 Md. Ansari, A9 Oom Babu, A4 Nawab Khan, A6 Ozir and A164 Mujibur Rehman. A23 Shajahan is A2's sister's son. Along with him, he started Universal Screen Printing. At that time, there were posters stating that 'Al Umma' is a democratic outfit and that its Joint President is A3. They had announced that there would be a public meeting near Bilal Place in Kottaimedu. He asked his friend Arif about that. He told him to go and talk to A3 about it. He went o A3 and asked him why was he in that organisation. A3 replied, "This is a democratic organisation, I have faith that it would be run properly and that is why I have joined". He also said, "We also are making attempts to publish books like 'Ilakkiya Solai', please ask A2 about it". After that, P.W.1063 did not meet anyone. On the 15 night of Ramzan, he saw A2 near the ZAK Pallivasal. A2 told him, "Please come to the residence to discuss this". After that, he also saw A164 Mujibur Rehman near the Mujahid Pallivasal. He told him that he wanted to see A2. On 8.2.1998, he met A164 near the Mujahid Pallivasal. He gave him some cloth for dry washing and told him to go and meet A2 in his mother-in-law's house. So he went there and saw that A10 Zakir Hussain was also there. Then he told A2 that A3 had told him to discuss with him regarding publication of books. A2 told him that A2 is engaged in a very important work and that he would not be able to see anyone and that since L.K. Advani is coming to Coimbatore on February 14, they were planning to explode a bomb where he was going to address and also asked P.W.1063 if he could help them in this regard. The witness replied that since he was an epilepsy patient, he cannot do any work like this. Thereafter, he was given Rs.500/- as advance and 22 outstation addresses were given. He was asked to take print and bring it before the 10th and he was told that it should be made as a pocket diary. On 13.2.1998, he gave it to A164. He took it saying he would hand it over to A2. On 14-02-1998, he went to Salem and returned on 15-02-1998. By that time, the bomb blasts had taken place. On 28-02-1998, he went to Chennai. He met A3 in his house, who told him that the police is searching for him. So he should take A3's family and leave them at Kollangodu. That night, he stayed at A3's house. A10 Zakir Hussain was also there. At that time, A5 Basith took Rs.500/- from A3. The next day, he brought the family of A3 to Kollangodu and returned to Coimbatore. Later on, A3's father-in-law came in search of this witness. He told P.W.1063 that A3 had been arrested and therefore, he had to be released on bail. This witness and A3's father-in-law went and saw A3 in jail. A3 told them to go and see Advocate Sirajuddin in the High Court. Therefore, they went to see him in Madras. At that time, he had only Rs.300/- in his hand. The advocate said that only if they gave him Rs.10,000/-, he could move the bail application. So, they returned to Coimbatore. On 06-07-1998, the police examined this witness. He gave a statement on August 3rd. His statement under Section 164, Cr.P.C. was recorded (Ex-P.1014). This witness identified A2 and A3 in Court. There is nothing helpful to the prosecution in his evidence.
IV. PROCUREMENT OF EXPLOSIVES (a) Procurement from Karnataka
(1) P.W.1119 A. Rajagopal is a Gazetted Manager, but he was at the relevant point of time a Tahsildar at Mysore. He went to the premises of the Corporation at Shah Ali Khan Makkan Street at 10 a.m. along with the Revenue Inspector Chithaiah and another Revenue Inspector Vijayakumar, Mysore Commissionerate Inspector Purushotham and S.I.T. Inspector Sampath Kumar. At that time, Dastagir (deceased accused) was the salesman in the shop. The inventory was preparedand thereafter, the S.I.T. Inspector sealed the materials and documents. The requisition is Ex-P1150. The letter given by him to the S.I.T. Police after the inventory was taken is Ex-P1151. This is a certified letter. The seizure list is Ex-P1152. This is also certified. The seizure mahazar prepared by the S.I.T. Police is Ex-P1153, which is also certified. Ex-P1154 Series is the Notebook Register. Ex-P1155 Series is the Stock Register. Ex-P1156 is the Cash and Credit Book Bill-I. Ex-P1157 is the Cash and Credit Book Bill-IV Series. Dastagir told them that the company had its magazine in Ansyar Village. The inventory report taken there is Ex-P1158 and Ex-P1159 is the rough sketch, which are certified. The S.I.T. Inspector seized some objects from the magazine under a cover of mahazar, Ex-P1160, which is also certified. There are two entrances to the above magazine, one facing west and the other facing north. The objects seized under Ex-P160 were seized by going through the north entrance. Thereafter, the S.I.T. Inspector went through the west entrance and prepared a seizure mahazar, Ex-P1161. Thereafter, on 06-03-1998, the S.I.T. Inspector sent another requisition. He asked him to accompany him for seizing the relevant records from the above premises. They went there during the day. When they opened the shop, they found that no relevant records were there. Therefore, the shop was sealed again. His statement was recorded on both the dates by the S.I.T.
In cross-examination, he has stated that the magazine belongs to P.W.1293, Riaz-ur-Rehman, the approver. He surmised that on seeing the notebooks Ex-P1154 that they must be daybooks. He has denied that two registers were there at the time of preparing Ex-P1155 and he has added it later. He does not know about the arrest of Dastagir or his confession statement. In Ex-P1159, only the northern and eastern entrances are shown. He has denied tha his plan has been prepared only by the S.I.T. olffice and not at the spot.
(2) P.W.1054 is Raju, who is the manager of S.R.M. Lodge, Sathyamangalam claimed that he knew the owner of the cassette shop, A106 Samjid Ahmed and that many persons would be coming to see him and they would be talking of explosives and that A16 told him that he is procuring explosives through S.R.T. Bus Service and Modern Bus Service. He could not identify A106 in Court.
(3) P.W.1126 is A. Rama Konar. At the relevant point of time, he was working as the Karntaka Agent for the Tamil Nadu Industrial Explosives Limited belonging to the Government of Tamil Nadu. His undertaking had licence. Their magazine was 30 kilometers from Bangalore at Aanaikal. They would sell gelatin and detonators only to licence holders. They had sold the above explosives to Indian Explosives Corporation in 1998. They have the letter of authority for that sale. When the Inspector of Police examined him, he had given the letter Ex-P1166 to him. The stock book registers for 1997-98 for their shop is Ex-P1167. On 18-04-1997, as per Invoice No.22, they had sold to Indian Explosives Corporation 34,00 electrical detonators. On 19-04-1997, by Invoice No.23, they had sold to Indian Explosives Limited 10,000 ordinary and 3,00 electrical detonators. The carbon copy for the said invoice is Ex-P1168. It is not correct to state that as per Form-32 of the Indian Explosives Corporation and their Invoice No.32, 1750 gelatin sticks have been sold. Similarly, what is noted in Invoice No.23 regarding the sale of 1750 gelatin sticks is not correct. Form-32 and Form-33 Registers are marked as Ex-P1169. On the reverse of the first sheet, there are details of accounts dated 28-04-1997 and 30-04-1997, which is marked as Ex-P1170. On 07-09-1998, the S.I.T. examined him and the above records were seized under a mahazar by Parthasarathy and Murali Kumar.
The relevant portion of his evidence is that the detonators should be transported only in approved vehicles. There should be no iron near the place where the explosives are kept. They can be loaded and unloaded only by persons having experience. The reason for avoiding iron sheets is that, by friction or jerk, it is possible for the explosives to catch fire. They will never allow gelatin sticks and detonators to be tied together, because the risk of explosion is greater. They have purchased explosives from five or six firms. They have four years' association with Indian Explosives Corporation. The police did not ask them for the registers prior to 1997-98. They have not informed the Chief Controller of Explosives regarding Invoice Nos.22 and 23. But it has been shown in the monthly accounts. There is no mistake in their accounts. He has denied that he has other true documents besides Ex-P1167 and Ex-P1169.
(4) P.W.1193 A. Parthasarathy is a Mines Manager in Bellari. He has known P.W.1126 for thirty years. He runs a company called Konal Explosives selling explosives. On 07-09-1998, afternoon, the S.I.T. came to their company. They wanted the records pertaining to the sale of explosives by their firm to Indian Explosives Corporation. P.W.1126 handed over Form-50 invoice and the letter of authority given by the Joint Controller of Explosives. They prepared a mahazar for the seizure, which is Ex-P1404. The stock register is Ex-P1167. Form-50 invoice is Ex-P1405 Series. Two invoice Nos.22, 23 are Ex-P1168.
(5) P.W.866 is Narasimmamoorthy. At the relevant point of time, he was the owner of Sivaji Explosives. The licence number of his shop is 798/E. The magazine is in Bukshandra Village. In 1998, his shop licence was suspended by the Chief Controller of Explosives. Thereafter, he was asked to give records to show whether he is selling explosives to some one illegally and after looking at his licence, the relevant records and documents, they revoked the suspension order saying that everything was alright. In 1999, the order of suspension was passed. The police examined him. Nothing of relevance is obtained in his cross-examination.
(6) P.W.1148 is M.P. Jayamaruthi. He was the Police Inspector in Lashkar Police Station, Mysore City from July, 1997 to June, 2000. On 07-03-1998, around 11.45 a.m., when he was in the police station, one Suresh Jain of the same locality came there in connection with some personal problems. At that time, Sampath Kumar, the Inspector of Police investigating the bomb blast cases was also available in the police station. Around 12noon, P.W.1293 Riaz-ur-Rehman, who is the proprietor of Indian Explosives Corporation, came to the police station and produced records pertaining to explosive substances transactions of the shop. The Inspector, Sampath Kumar seized those records under the cover of mahazar, Ex-P1298. Those records are Forms-32 and 33 (Exs-P1169 and 1170), cash and credit bill books 3 in number and 4 rough sales transaction books written by one Mohammed Dasthagir (the deceased accused), of Indian Explosives Corporation. The cash and credit bill registers have been marked as Exs-P1143, 1267 and 1299. The invoice No.322 dated 07-03-1998 is marked as Ex-P1300. The rough daily book is marked as Ex-P1301 Series.
He has not seen the signature of Dasthagir. He did not obtain any statmeent from P.W.1293. He does not remember whether P.W.1293 signed in Ex-P1296.
(7) P.W.1293 is Riazur Rahman, who is carrying on the business of Mahathma Explosives. Their concern was involved in the manufacture of gunpowder. The magazine of the shop was in Mysore. He was dealing with electric detonators, ordinary detonators, gelatin, safety fuses and Ammonium Nitrate. They were procuring explosive materials from Konar Explosives, Bangalore and Deccan Explosives, Pune. One Mohammed Dasthagir (the deceased accused) was his salesman. He has denied that any police came to his shop. The Special Public Prosecutor showed him a hand-written record, Ex-P1681 and he denied that the handwriting is his. He is the accused turned approver. He was granted pardon by P.W.1296, Nambirajan, J.M.II, Coimbatore. His application is Ex-P1689. The order of P.W.1296 is Ex-P1693. He turned hostile.
(b) Kerala Operations (1) P.W.964, Rajesh is an Advisor in the Income Tax Department. He also works part-time in Hotel D.E. Orient. He was working as such in 1998. One Sambasivam was Hotel Manager and Radhakrishnan. On 10-05-1998, two Police Inspectors came in connection with the Coimbatore bomb blasts. They seized the two registers, Ex-P735, which is the seizure mahazar and the register is Ex-P736. They relate to dates from 08-10-1997 to 25-03-1998, which shows that on 11-12-1997, A3 stayed there. This is the main aspect in his evidence.
(2) P.W.965 Radhakrishan was the cashier. He too speaks about the seizure of the two registers.
(3) P.W.1017 P. Gopinath @ Gopi, who was Supplier at Sea Rock Hotel. On Srikumar was also a supplier at that time. On 10-05-1998, two policemen came to his hotel and asked him whether one Akbar Ali stayed in that hotel. Then they seized the register. The seizure mahazar is Ex-P924 and the register is Ex-P925. He identified A3 as the person who looks like the person who came to the hotel. The Court has recorded that his time, A3 was wearing a white cap.
In cross-examination, it has been elicited that the police had helped him identify the accused.
(4) P.W.1027 is Abdul Azeez. He was working as the receptionist in Mass Hotel at Ernakulam. Ex-P961 is Mass Hotel Register. According to him, Akbar Ali stayed in that hotel on 11-12-1997. He had vacated on 12-12-1997. When the police enquired him, he handed over Ex-P961, Register and Ex-P962, Receipt Book. The seizure mahazar is Ex-P963.
(5) P.W.1026 Aravindhan was also a receptionist in Mass Hotel at Ernakulam. He has also spoken of the seizure of the registers under the cover of mahazar. V. TRANSPORTATION According to the prosecution, the explosives were transported by bus and then by car from the State of Karnataka via Sathyamangalam.
(a) P.W.1214 is Yejas Basha. He is an auto driver and drives the auto bearing Registration No.MEG-4619. His auto stand is near Dasaprakash Hotel in Noor Alisha Makan Road, Mysore. Next to that stand, there is an explosives shop. The owner of the shop is Riaz-ur-Rehman, P.W.1293, the approver. Mohd. Dastagir, the deceased accused, was its manager. According to this witness, at the end of 1997 and the beginning of 1998, especially in the month of Ramzan, A106 Samjid Ahmed came to the explosives shop and would buy ET, OT, Gelatin, Plate Powder and White Powder etc. He had purchased these explosives like this four or five times. He would load it in this witness's auto and ask him to be dropped at the private bus stand. His practice was to pack the above materials separately in a cartonbox, put it in a gunny bag, stitch it and take it. He would go to Sathyamangalam by S.R.T. Bus. He would keep these materials under the bus seat. He would go by the 1.30 p.m. S.R.T. bus or by the 4.30 p.m. Modern Bus Service. Everytime, he would give him Rs.20/- for auto hire. The godown of this explosives shop was in the village called Ansiya. If there is an emergency, they would also take this witness's auto. This witness identified A106 correctly in Court.
(b) PW.1215 Syed Amanulla is also an auto driver. The registration number of his auto is KA17-1259. His auto stand is near Mysore Town Dasaprakash Hotel and the name of the road is Noor Alisha Makan Road. Next to his auto stand, there is an electrical shop, a laundry and also an explosives shop. P.W.1293, Riaz-ur-Rehman is the owner of that shop. Dastagir, the deceased accused and A106 would buy explosives from that shop, pack it in a card board box, stitch it in a gunny bag and load it in the auto to be unloaded near the private bus stand. They would go either in the 1.30 p.m. S.R.T. bus or in the 4.30 p.m. Modern Bus Service. They would keep the gunny bags under the bus seat. They would give him Rs.20/- as hire. When he is not there, they would go in the auto belonging to P.W.1214. The godown is in Village Ansiya. If the shop owner's car broke down, this witness would take the materials to the godown and bring materials from the godown to the shop. A106 had taken such materials in his auto in the end of 1997 and at the beginning of 1998. In connection with his, the T.N. Police enquired him. He identified A106 in Court.
He had admitted that he had seen the accused before only once and thereafter only now in the Court and that he is familiar with P.W.1214 since he is also an auto driver. He has denied that there is any court case against him. He has denied that he is not an auto driver and that he has no licence. In the statement before the police, he had not said that the explosive materials were taken in his auto in the end of 1997 and the beginning of 1998, or that the accused would take and pack the explosive materials in the cardboard box.
(c) P.W.1172 K. Chinnaswamy is a resident of Sathyamangalam. He is the driver of S.R.T. Bus Service for the past 20 years. Near the Sathyamangalam Bus Stand, Liyaqat Ali Khan has a bakery shop. He would frequently go there to have tea and therefore, he was familiar with A7 Mohammed Ali Khan Kuty, A157 Idayath Ali Khan, A108 Asibullah, A119 Amanulla and A132 Mir Shaffir Ahmed. They would frequently go in their bus to Samraj Nagar. He was also familiar with A106 Samjid Ahmed who works in Golden Granite in Samraj Nagar. He would frequently go to Mysore in their bus. This witness was continuously on duty from 08-12-1997 to 31-12-1997, from 01-01-1998 to 06-01-1998 and from 19-01-1998 to 31-01-1998. At that time, the conductor of the bus was Mahadevappa (not examined). The bus would leave Mysore at 1.30 p.m. and reach Sathyamangalam at 5.30 p.m. The above accused told him that they are doing cloth business and soap business. A106 would bring gunny bags under the bus seat and unload it in Samraj Nagar. In Samraj Nagar, any one of the above accused would unload the gunny bags and keep it in the Kuty Bakery. The conductor knew that they were bringing the luggage. They did not take luggage charge for these bags. In January 1998, they brought gunny bags like this for about eight times. On 14-02-1998, when he heard about the Coimbatore bomb blasts and the loss of lives, he learnt that he police had arrested the above accused. Only then he realised that they had transported explosives in his bus. The S.I.T. enquired him. He identified A7, A106, A108, A119, A132 and A157. We find from his evidence that, out of the nine buses belonging to their service, seven are local buses and two alone go on the Mysore - Sathymangalam route. The other driver who plies this route is Ayyasamy. There are three checkposts between Samraj Nagar and Bannari. One is Commercial Tax Checkpost, one is the Police Checkpost and the other is the Forest Department Checkpost. At these checkposts, the police will be armed. He could not remember whether there were more police this time because of Veerappan. The bus route has 27 hairpin bends. The bus route will be jerky. The Samraj Nagar-Sathyamangalam route was under the control of the Special Task Force (STF). At any time, any vehicle would be checked. Sometimes, the entire vehicular traffic would be stopped.
(d) P.W.1173 is Vasu. He was the bus driver for Modern Bus Service from 1995 to 1999. The buses of Modern Bus Service would leave Mysore at 4.15 p.m. and go to Erode via Samraj Nagar and Sathyamangalam and reach Erode at 10.15 p.m. It would reach Samraj Nagar at 6 p.m. and Sathyamangalam at 9 p.m. He is acquainted with A106 Samjith Ahmed who works in Samraj Nagar Golden Granite Company. He would frequently go to Mysore in their bus. The witness also knows Liaqat Ali Khan, who has a bakery near the Sathyamangalam Bus Stand and his brothers A7 Mohammed Ali Khan @ Kutty, A157 Idayath Ali Khan and also their friends A108 Asibullah, A119 Amanulla and A132 Mir Saffir Ahmed and Yusuf @ Shahjahan (A153). A106 would bring gunny bags from Mysore to Samraj Nagar by keeping it under the bus seat. From Samraj Nagar, any one of the accused would purchase the ticket, travel in the seat in which A106 had travelled and on reaching Sathyamangalam, they would unload the gunny bags in the bakery. When he asked A7, he would tell him that they were doing soap and clothing business. A7, A157, A108 and A119 would have brought such bags four times in January 1998. A108 and Yusuf @ Shahjahan would have brought such bags at least three times in December 1997. A132 alone brought such bags four times in 1997. They would bring only the bags brought by A106. On 14-02-1998, after the bomb blasts, the above said persons were arrested by the police. Only then, he realized that they had transported explosives in his bus. The police enquired him. He identified A7, A106, A108, A119, A132 and A157 in Court, but he wrongly identified A153.
It is elicited from his that the owner of S.R.T. Bus Service is Kathiresan. The police had not seized his bus, nor had they seized the bus ticket, the counterfoil and his driving licence. According to him, from 1994 to 1999, he was in Modern Bus Service and then, he left he job on his own. He has admited that about 11 times, A106 would get off the bus leaving the luggage. At no point of time, he enquired as to why he was leaving the luggage behind. From Thimbam to Chikkola, it is Guard Section. There were three checkposts on that route, viz., the Commercial Tax Checkpost, Motor Vehicles Checkpost and the Forest Checkpost. If there was any suspicion at any point of time, even the STF would enter the vehicle and carry out checks. On his route, there are about 10 police stations.
(e) P.W.1102 is Saravana Kumar, who is a car driver. He knows A7 Mohammed Ali Khan Kuty, who lives on Sathyamangalam Mariamman Koil Street. The brother of A7, Liaqat Ali Khan has a bakery at the Sathyamangalam Bus Stand. He and his brother Muniyappan would frequently visit the bakery. On 05-01-1998, he was standing at the Sathyamangalam Bus Stand to go to Erode on account of some work. At that time, his friend Muniyappan was also there. At about 12.30 p.m., near the pay toilet, where the Erode buses are parked, an Ambassador car bearing Registration No.MDS-8315 was standing. A person wearing spectacles was seated in the drivers seat and there were two other persons sitting next to him. At that time, A7s brother brought two parcels from the bakery and kept it in the rear seat of the Ambassador. The three were talking there for some time. Then, the car left on the Coimbatore route. When he asked A7 about it, he said that they are from Coimbatore and that they are his friends and that their names are A11 Abdul Salam and A17 Jaffru. The car driver was A146 Ubayathullah Rahman. A7 said that they were his close friends. The witness left the place after that. This was repeated about four times after a month. When he enquired A7 about the bags, he said that those were tamarind bags and that they were bringing it from Samraj Nagar to sell them in Coimbatore. But when the witness and his friends grew suspicious and made enquiries, they were told that A7 is transporting explosives. After the bomb blasts, he realised that they were not tamarind bags, but explosives. He identified A7, A11, A17 and A146 in Court. He also identified the vehicle as M.O.128 and said that the police had recorded his statement six months later.
He has admitted in cross-examination that he is a member of the Hindu Munnani and that his statement was recorded in front of the members of his family.
(f) P.W.1103 is A. Subramaniam, who is a resident of Sathyamangalam. He knew A7 Mohammed Ali Khan Kutty, a resident of Sathyamangalam Mariamman Koil Street. He also knew A108 Asibullah, and A119 Amanulla, who are his friends. A7 has a watch shop and his brother has a bakery in Sathyamangalam Bus Stand. In January 1998, he and his friend Chandrasekaran were walking along the Mysore Road. When they were coming near Charu Matriculation School, at about 2.30 p.m., they saw a tricycle cart parked near the tamarind tree and from that cardboard boxes wrapped in a gunny bag were unloaded and loaded into a white Ambassador car bearing Registration No.TN-41A-4514 (M.O.179). Three persons were inside the car. This witness and Chandrasekar spoke to A7. Then, A7 said that his friends A7, A11, A17 and A118 and driver Rafiq had come from Coimbatore and that they were doing soap business which they had purchased from Mysore and were now sending it to Coimbatore. After that, they got into the Yamaha bike, which was parked there and left by the Sathyamangalam Road. The car followed the two-wheeler. The tricycle cart remained where it was standing. Four days later, at about 3 p.m., he and his friend Chandrasekar were coming along the same route. At the same place near the school, he again saw the above persons packing cardboard boxes wrapped in gunny bags. They saw them and went away. Five days later at about 6 p.m., he and his friend were going to Bannari. They again saw the above said persons taking the gunny bags from the tricycle and loading them on to the car. They saw that and went away. One week later, when he and his friend were going along the same route, at about 1.30 p.m., they saw the same persons carrying on the same activity. At that time, along with the four persons earlier mentioned, A108 Asibullah and A119 Amanullah of Sathyamangalam were also there. One week later, he and his friend were going in the same route around noon and at that time also they saw these people unloading the cardboard boxes from the tricycle and loading them on to the car. Thereafter, Amanullah and Kuty went away in the Yamaha bike and the others left in the car. After three days, at around 10.30 p.m., when this witness went to Sathyamangalam Bus Stand to bring his friend Chandrasekar, near the pay toilet at the bus stand, the aforesaid car was standing. Inside the car, A17 Jaffru, A11 Salam and A118 driver Rafiq were standing near the car. From the bakery run by Kutty's brother, A7 Kutty and A119 Amanullah each brought a box and kept them in the car, after which the car went away with driver Rafiq and Amanullah, whereas Jaffru, Salam and Kutty went away to the bakery. When this witness enquired about this with his friends, he was told that Kuty is actually transporting explosives, though he is saying that he is selling soaps. Later, after the bomb blasts in 1998, he heard that Kutty and his friends have been arrested by the police. The witness identified A7, A11, A17, A108, A118 and A119 in Court. This witness has also given evidence in the Poonamalli Sub-court.
He has admitted that he had shared this information not only with Chandrasekar, but also with Selvam and Balu. In cross-examination, the discrepancy in the evidence given by this witness in this case and the other court case is elicited. He has admitted in cross-examination that he did not know Jaffru, Rafiq and Salam previously.
(g) P.W.1121 is Vadivel, who is an auto driver in Sathyamangalam. He knew A7 Mohammed Ali Khan Kuty who lives in Mariamman Koil Street. The brother of A7 runs a bakery in the Sathyamangalam Bus Stand. In the first week of January 1998, he was standing in the bus stand when a white Omni car bearing Registration No.CTW-7899 came and stopped in front of the bakery. It was between 2 and 3 p.m. The driver of the car was slightly fat and had a tilak on his forehead. He went out and spoke to A7. A7 brought two gunny bags and loaded them on to the car. He witnessed the same occurrence five times in January 1998. When he asked about this to A7s brother, he was informed that they were sending soap to Coimbatore for sale. When this witness asked him who the driver of the car was, he replied that it was A9 Oom Babu. He was informed by his friends that A7 was actually transporting explosive materials. He identified A7 and A9 in Court, but he could not identify A157 correctly. M.O.336, the car is also identified by this witness.
There is discrepancy between his statement before the police and in Court. He had never seen A9 before.
(h) P.W.552, Ramesh Kumar was the owner of the Ambassador Car that was allegedly used by the accused. His father-in-laws name is D. Ramachandran, who is a former Judge. He had given his Ambassador Car bearing Registration No.MDS-8315 for his own use. He was using it in 1996. His friend Suresh Kumar said that his relative Saravanan wanted to buy the car. Therefore, with his father-in-laws consent, he sold the car for a sum of Rs.50,000/- to Saravanan. When he sold the car, he handed over all the connected records to Saravanan. But, Saravanan did not transfer the ownership in his name for a long time after the sale. Saravanan purchased the car from him only in August, 1999. He would further say that at the time of purchase, it was green colour and this information is recorded in the RC book. After his father-in-law purchased the car, he scraped it and painted it white.
(i) The next witness, P.W.554 is R. Saravanan. He runs a business called Reliance Organic Chemical Industries. He had purchased the Ambassador car from P.W.552. According to him, he gave a sum of Rs.50,000/- as sale price. He also received at that time the RC book, P.O. form etc. It is a petrol driven car. In 1997, he sold the car for Rs.44,000/- to Raja, P.W.561, through a broker called Babu. The relevant records were also handedover. Until he sold the car he had not transferred the ownership to himself. He did not know the chassis number.
(j) P.W.560 is a car broker named Radhakrishnan stays in Alankar Hospital, Coimbatore. In February 1997, P.W.554 had asked him to sell his Ambassador car MDS-8315. When he saw the RC book, he found that it was in the name of one Ramachandran of Namakkal. After negotiating with one Raja of Emerald Automobiles and Muruganandam through one Edwin, the car was sold to Raja and Muruganandham. He handed over the RC book and P.O. Form by getting it from P.W.554. He received Rs.1000/- as commission. The car is Petrol driven car.
(k) P.W.561 is Raja. He is working as Branch Manager in Emerald Automobiles at Tiruchy Road. In February 1997, he purchased one car for his co-employee, Muruganandham. He purchased it through the car broker staying in Alankar Hotel. It was an Ambassador Car white in colour bearing Registration No.MDS-8315. He purchased it for Rs.80,000/-. Muruganandham gave the money. As soon as the delivery was completed and he paid the money, the RC book was handed over and the P.O. Form was also handed over, but was unfilled. The broker told him that it belonged to Judge Ramachandran of Namakkal.
(l) P.W.556 is Muruganandham. In 1997-98, he was working as Supervisor at Kovai Emerald Automobiles. P.W.561 was his friend at that time. He had told him to help him to buy a car. He purchased it with the help of the car broker in Alankar Hotel. The car number is MDS-8315. The sale price is Rs.50,000/-. It was marked as Petrol car. Along with the car they handed over the RC book and P.O. Form. The owner was the retired Judge Ramachandran. When they parked the car near the Temple in Coimbatore, the cleaner took out the lorry belonging to the brother-in-law and dashed against the car and the car became unmotorable. So he thought he could sell this damaged car and told Basheer, who gave information to one Samshudeen and came and examined the car. Thereafter, Samshudeen brought A9, Oom Babu and again examined the damaged car. A9 said the vehicle is awfully damaged. Therefore, he do not need the vehicle but he wanted to obtain for a price the RC book and PO Form. Though originally they agreed to pay Rs.15,000/-, finally, he paid only Rs.12,000/-. Thereafter, he handed over the R.C. book and P.O. Form to A9 on payment of Rs.12,000/-. Samshudeen knows this information. The damaged car was sold as scrap for weight for Rs.36,000/-. The Police examined him. At that time, there was a car MDS-8315 in the P.R.S. compound that was a diesel car. When he was using the same car it was a petrol vehicle. The chassis and the engine number had been punched. The witness identified A9 in Court. The Trial Judge had recorded that at that time A9 was wearing a white cap and some of the other accused were wearing colour caps. In cross-examination, he has said that A9 had visited his workshop several times and that he did not give this information in the Police Statement. He could not remember whether he gave the details in the Police Statement which he gave in evidence. He had stated that he did not give any Police Statement when the vehicle got damaged. He had removed the tyres and sold the remaining spare parts for Rs.36000/-.
This car is referred to in the evidence of P.W.1102, who identified the car, which is marked as M.O.128.
(m) P.W.539, Shyambhat is the next witness. He was the Joint Commissioner of Transport Enforcement (South) in Bangalore. At the relevant point of time, he received a letter from the SIT, Coimbatore on 06-07-1998 for details regarding the Maruthi Van CTW-7899. He verified the records at the three original transport offices. The engine number is 260726 and the chasis number is 759618. It is a 1988 model. Originally, it was registered in the name of Shri Rajasekaran. On 16-01-1988, the vehicle migrated to RTO, Gadak in the name of Adhappa Gounder. Then it was transferred to Mohan Seth. On 25-07-1990, RTO, Gadak gave clearance certificate to RTO, Dharwar to transfer the vehicle to Moinudeen S/o. Moosa. Then the registered owner obtained a clearance certificate in favour of Shri. Parasuram. It had been transferred thereafter to three persons and on 15-06-1995, the RTO, Belgaum issued a no objection certificate to transfer the vehicle to RTO, Kozhikode. According to the witness, there is no information from RTO, Kozhikode regarding migration of vehicle. This witness cannot remember all the details since he had not brought the relevant records. He has denied that Ex-P182, the reply to the communication from Additional Superintendent of Police, Crime Branch, Coimbatore has been subsequently prepared to prove the case.
(n) P.W.733, Sukumaran was the Sub-Inspector of Police in Kolathur Police Station, Malapuram District, Kerala. On 21-03-1998 at about 08:45 hours, the Maruthi Van CTW 7899 was driven in a rash and negligent manner and hit against one Asraff. He was admitted in the Hospital. As per the Police intimation and on the submission of Asraffs father, a case was registered in Crime No.52 of 1998. The car was seized and kept in the Police Station. It was produced before the Magistrate of Peruntilmanna. The SIT, CBCID of Coimbatore and Rajasekaran P.W.1300 gave him a requisition that the vehicle was involved in the bomb-blast case. In cross-examination, he has denied that the car was not driven in the manner spoken to by him.
(o) P.W.724, Sharfudeen has a grocery shop in HMPR Street, Coimbatore. He and his sister managed the shop. They have an Ambassador car, the Registration No.TN41-A-4515 (M.O.179). He purchased it from one Abdul Latheef for a sum of Rs.1,00,000/-. First, he used it for his own use. He appointed A118, Rafiq as his driver. The car was kept in the custody of A118. He would use it for local trips and pay to him the hiring charges. Most of the times he has not given him the hiring charges, instead he would adjust it in the repair charges. The RC book is Ex-P264. The insurance cover note is Ex-P265. He had pledged the car with Annamalai Finance and paid Rs.2500/- as monthly instalments. Most of the time the car would be in Perumal Koil Veethi Car Stand. Though A118 Rafiq was sitting in the Court, the witness could not identify him and he identified the car, M.O.179.
(p) P.W. 528 R.K. Dass is a broker and commission agent. According to him, on 27-12-1997, one Majid @ Oom Babu wanted to buy a car. He sold a second hand 1964 model Ambassador car, which he purchased from Chandran (not examined). He did not give the R.C. Book of the car to the accused, but handed over the delivery note. The police brought the accused and asked him if he knew him. He said that this was the person to whom he sold KLT-5690. He handed over all the documents pertaining to the car. The R.C. Book was marked as M.O.125. He could not identify A9 in Court.
VI. MANUFACTURE OF BOMBS According to the prosecution, there were several eyewitnesses for the manufacture of bombs by the accused. These witnesses claimed to have seen various accused manufacturing bombs in their houses at different points of time.
(i) P.W.1124, Rajan is a centering contractor. In connection with his work, he would go to Thirumal Street, Maniyar Thottam, N.H. Road, etc. In the course of his work, he had come to know A59, Kadar @ Yakoob who had a grocery shop and on those occasions, he had also seen A16 Valarndha Saleem, A12 Aslam and A11 Poochaikkan Salam. In May 1997, A59 borrowed Rs.2,000/- from P.W.1124 promising to return it in six months. In the second week of January 1998, he went to Yakubs store along with Manoj (not examined) and asked for return of the loan amount. At that time, A12 was also there. A59 promised to return it in one month. Two new persons had come to the shop then. They purchased beedi. When he asked A12 when these persons were, he was informed that they were A16 Keezhakarai Abbas and A7 Mohammed Ali Khan Kutty. P.W.1124 returned to his house after asking them to return the money as promised. On 11-02-1998, he and his friend Manoj had gone to Delight Theatre for the second show of some movie. When they were returning home, they thought they could go to the house of A59 asking him return to the loan amount. At that time, it was 1.00 a.m. after midnight. The light was burning in the house of A59. When he knocked the door, A59 opened it. P.W.1124 asked for return of the loan and A59 told him that he would return it in ten days. Then he asked A59 for some water. A59 went inside to fetch water. From the front room of the house, the witness smelt sulphur. He also saw PVC pipes, gelatin sticks and black wires. A11, A60, A12, A16 and A7 were sitting there. They were inserting gelatin sticks into the PVC pipes. After drinking water, he asked A59 what was the use of these materials, he was told that they were going to do business with these. He immediately asked for prompt return of the loan. On 14-02-1998, there were several serial blasts in Coimbatore and the papers carried the news that it was Al Umma Organisation which was behind it and after one week, he read in the papers that the police had seized gelatin sticks from the house of A59. Because of fear, he did not inform the police. It was later that the police made enquiries and this witness identified in Court A7, A11, A60, A59 and A16. This witness admitted that in order to go to his house from Delight Theatre, it is not necessary to pass through the house of A59.
The defence case is that it is very unlikely and improbable that a person would go in the middle of the night after returning from the second show of a movie to ask for return of a loan. It is also submitted that there is no explanation as to how this witness was located. Further, the non-examination of the friend Manoj renders the evidence uncorroborated. According to the defence, the evidence of this witness cannot be believed.
According to the learned Public Prosecutor, the explanation given by P.W.1124 for his presence is quite plausible here and in view of the seizure of the explosive material, the evidence of P.W.1124 gets strength and cannot be rejected.
(ii) P.W.1162 K.S. Satheesh has implicated A5 Basith, A153 Yusuf, A154 Hakeem, A28 Sharfuddin and A10 Zakir Hussain. He has a workshop. One Babu (not examined) is his friend, who does upholstery work. Through Babu, he got acquainted with Tailor Raja @ Sadiq (absconding accused). Babu had given to Tailor Raja Rs.1,500/- for fixing on rent an upholstery shop in Kuniyamuthur. In connection with this, P.W.1162 and Raja went to the Al Umma Office in September, 1997. There, they met Tailor Raja, who introduced the other accused mentioned above. On 12-01-1998, Monday night at 8o clock, he and Babu went to Vallal Nagar, where Tailor Raja was residing. When he knocked the door, he opened it. The two went inside. Tailor Raja asked them why they had come. At that time, they saw the other accused sitting on the floor manufacturing bombs. In front of them, there were switches, gelatin sticks, batteries, detonators, TVS side box and black boxes, which were kept open. There was a strong smell of sulphur in the house. The accused warned them that if the witness divulges it to others, SK (A163, S.K. Mohammed Ali) will kill them. So they came out. On 14-02-1998, there were serial blasts in Coimbatore. The police arrested people belonging to Al Umma and five months later, the Special Investigation Team examined this witness. He also identified A5, A10, A28, A153 and A154 in Court.
It is elicited that the friend Babu lives in Sivananda Colony, but the witness did not know the door number of his house etc. and also that thereafter, Babu did not fix up a shop on rent in Kuniyamuthur, nor did he get back the advance amount. The witness contradicted his own statement given to the police with regard to the knowledge of the door number and Tailor Rajas house.
According to the defence, again the prosecution has not explained how he was located and according to the witness, the shop was to be fixed for Babu, the evidence would have been acceptable if Babu had been examined, since it was for him that P.W.1162 went to Tailor Rajas house. There was no seizure from the house of Tailor Raja.
The learned Public Prosecutor submitted that the explanation given by this witness is quite plausible and further, the identification in Court of the accused would lend weight to the evidence.
(iii) P.W.1164 Muthusamy is an autorickshaw driver, who resides in Kattoor. A5 Basith is known to him; A5 works for a vakil clerk and he would always chews/takes pan parag. On Saturday, 10th January, 1998, he and one Suresh (not examined) went to Bismi Nagar. It was 8.00 p.m. then. There were four houses facing east. In front of the second house, A5 was standing. When he asked Basith why he was standing there, the answer was that he is going to see A16 Keezhakarai Abbas, who deals with old clothes. P.W.1164 told Fasid that he wants a house for rent. A5 told him that he would ask his friend and let him know and he went inside the house. P.W.1164 and the friend Suresh also followed him. There, he was introduced to A16 and Tailor Raja (absconding accused). Inside the house, there was TVS 50 side box, gelatin sticks and batteries. The witness realized that they were manufacturing bombs. A5 told him that if he revealed it, he would be killed. Therefore, fearing for their lives, they came out. On 14-02-1998, there were bomb blasts in Coimbatore and then the witness realized that these people had manufactured the bombs. The Special Investigating Team police examined him five months thereafter. He identified in Court A5 and A16.
According to the defence, the Combined Court Building in Coimbatore had come into existence only in the year 2000 and therefore, there is no possibility of this witness seeing A5 in the Court.
It is also elicited that he had seen A16 on 10-01-1998 for the first time for two minutes and thereafter, he had seen him only in the Court.
(iv) P.W. 1256 Ganesh Babu has implicated A6 Ozir, A105 Rafiq, A10 Zakir Hussain, A28 Sharfuddin, A36 Noor Mohammed @ Noor and A153 Kuniamuthur Yusuf. He resides in Kovai Rathinapuri. He is a businessman. On 12-01-1998, along with his friends Kumaresan (not examined), he went to the Old Market to buy spare parts for a car. There, they went to the shop of P.W.159 Noor Mohammed. He was informed that he was in Tipu Nagar. So, they went to Tipu Nagar. There, one boy showed him Door No.145 where P.W.159 was residing. When he knocked on the door, A6 opened the door and inside, he saw A105 whom he already knew and the other accused mentioned above. Apart from A6, all the others were sitting on the floor. It was 7.00 p.m. then. There was light in the house. In front of the accused, there were plastic pipes, roller, gelatin sticks, plastic caps and detonators. He realized that they were manufacturing pipe bombs. He enquired about P.W.159. A105 told them that no such person by such name was there. So, fearing for their lives, they came away. On 14-02-1998, there were serial blasts and the police arrested Al Umma people. It is only then that this witness realized that the persons he saw were involved in the bomb blasts. This witness was examined five or six months thereafter and he identified A6, A10, A28, A105, but he could not identify A153.
It has been elicited that even in his own area, there are many spare-parts shops. The defence also submitted that though the Court Summon was sent to his old address under Ex-D12, how he knew about the service of summons in his new address was not explained. It is also the suggestion of the defence that he is used very often by the Special Investigating Team Office and he is a stock witness.
P.W.1300, the Investigating Officer also has admitted that when recording the statement of P.W.159 Noor Mohammed, no questions were asked regarding this occurrence though P.W.159 is the person mentioned by P.W.1256. However, P.W.1300 recovered from P.W.159, the R.C. Book and the Insurance Policy regarding the FIAT Car MRD-3492, which was used for planting the bombs and apart from the endorsement that they were seized, there is no seizure mahazar with regard to this.
(v) P.W.1013 Rasool Beebis evidence that on 02-12-2003 and she had let out her house on rent at the request of two persons. One said that his name was Abdul Rehman and that he wanted the house for his friend. According to her, Abdul Rehman sent another person as the tenant. That young man would go out in the morning and return only in the evening. He would go in a motorbike. One night, he came in a white Ambassador card. They unloaded cloth bundles. She asked him what his name was and he said it was Abbas from Keezhakharai. There is no incriminating material against any accused in her evidence.
(vi) P.W.1158 Gangadharan, a salesman, said in his evidence that he is an auto rickshaw driver. He gave Rs.3,000/- to A9 Oom Babu who belonged to Al Umma as advance amount for buying a second hand auto rickshaw in August, 1997. In connection with this, he would go to Al Umma Office frequently. At that time, A9 introduced him to A5 Basith, A10 Yusuf, A53 Zakir Hussain and A39 Hakim. In November 1997, Constable Selvaraj was murdered. At that time, A9 had gone to Kerala. So he could not see him. On 15-09-1991, at about 8.15 p.m., he went to Oom Babus house in Tipu Nagar. He knocked at the door of the house and as soon as P.W.1158 went inside, A9 shut the door. The smell of sulphur pervaded the house. On the floor, there was a TVS side box, black wire and red wire and blue colour jeans bag. The accused mentioned above were in the next room. They were preparing bombs with gelatin sticks and detonators. Three other unknown persons were also there. A9 told him that he would give the money after two months and that if he revealed what was happening inside the house, he would kill him with the help of the three persons and then he asked him to go outside. The witness came out in fear. In February 1998, there were serial blasts in Coimbatore. The police arrested the people belonging to Al Umma and five months later, the C.I.D. police examined him. He told them the details and said that he would be able to identify the accused. The witness identified in Court, A5, A9, A10 and A153.
It is also elicited that he had only seen A9, but has no close acquaintance with him and that second hand autos could be obtained cheaply in Kerala and that till date, the amount of Rs.3,000/- given by him to A9 as advance was not returned to him.
(vii) P.W.1007 is one Rukaiya Beevi. According to her, she has a house in Tipu Nagar, where there are four residential accommodations in the ground floor and four on the first floor, which she would let out on rent. All these houses are in the name of her son Mohammed Sadiq, but it was she who would collect the rents. About five years ago, she had given to A9 Oom Babu, one of the houses on rent on receiving Rs.15,000/- as advance and Rs.700/- as rent. He stayed there for three months and left with his wife. Three months later, A9 vacated the house and took back the advance. During his period of tenancy, many people would come and go to the house. About four months after the occurrence, the police brought one person, whom she learnt was A5 Basith. He told the police that he would visit the place when A9 was residing there. This witness does not speak anything about the manufacture of bombs by the accused.
(viii) P.W.1018 Shahabuddin is a resident of Vallalar Nagar and has been in Coimbatore for more than 30 years. He had seen Abdul Hamid, A148 (acquitted) many years ago. He cannot identify him when. One day, he asked him to take up a house for rent and gave Rs.2,000/- as advance. He saw the house and did not like it. After that, he rented it to another person. The witness does not remember the name of the tenant. The tenant did flower business. Another house was let on rent to one Abdul Samad (not examined). The person who came to the house said that his wife would come. Later, he realized that the tenant was Tailor Raja (the absconding accused). He would out in the morning for business and come back in the evening. After two weeks, he left the place. Thereafter, the bomb blasts took place. The house was vacant and he let it out to somebody else. This witness does not speak of the manufacture of bombs.
(ix) P.W.1021 Mohammed Yakub is a resident of Saramedu. According to him, on the same road, in the last house, one Mohammed Rafique lived with his family. This was before the bomb blasts took place. He lived there for one year. The police enquired him. He asked him to vacate the house because he knew that he belonged to Al Umma. One month after the bomb blasts, Mohammed Rafique was arrested. This witness also does not speak of the manufacture of bombs.
So these are the materials before the Court for deciding whether the prosecution case for manufacture of bombs by the accused is proved or not.
VII. DISTRIBUTION & PLANTING Now we come to the topic of distribution of the bombs and the evidence of witnesses with regard to that aspect, and also as to the planting thereof at the scene of occurrence at various locations.
(1) P.W.663 Venkatesh is a resident of Selvapuram. He does building work and in this regard, he would go to places like Ukkadam, Athupalam, Kottaimedu, Al Ameen Colony etc. He used to have work in other places also. On 14.2.1998, at around 10.30 a.m., he had gone to Al Ameen Colony. He was standing next to the rice shop known as Suresh Traders. At that time, A45 Sait @ Santhu Mohammed came there in a red colour Yamaha. Along with him came A26 Jahangir and Abdul Rahman @ Jayakumar (deceased accused) in a red colour TVS Suzuki. A26 showed to A45 a black box, which was in his vehicle. Afterwards, he closed it. He also showed a white button, which was in between the seat and the box. Thereafter, they were talking to each other. Finally, A45 told A26 Without fail, I will place it at the post office and railway station. After saying so, A45 took the TVS Suzuki vehicle and went away. The others also left. That day, he did not get any job and so, he returned home. That afternoon, the serial bomb blasts took place in Coimbatore. On hearing this information and fearing his life, he did not leave his house. In the newspaper, he learnt that because of explosion of pipe bombs, huge damage had been caused in the railway station and posit office. Because of fear, he did not tell what he saw the previous day to anybody else. One and a half months later, the C.B. C.I.D. examined him. The witness identified only A26 and wrongly identified A44 as A45. He had admitted that some one asked him to go to Suresh Traders for work. Therefore, he boarded a bus and went there, but that he did not know that person previously. He waited there fore about 45 minutes, but no one came. According to him, one of the accused does plumbing works and the other deals in second hand articles. Thereafter, he never went to Suresh Traders.
(2) P.W. 448 Govindaraj is another witness who speaks of distribution. He is a resident of Sulur. He is a trader of old paper and old iron. His main area of business is in Athupalam, Kuniyamuthur, Saramedu, Kottaimedu and the adjacent places. On 14.2.1998, in connection with his work, he had gone towards Saramedu in his TVS-50 moped. When he neared Mattachalai Pallivasal, his vehicle broke down. It was about 2 p.m. then. On the south of the above pallivasal, there is a tiled house. In front of that house, A6 Ozir and Mujibur (absconding accused) were standing talking to each other. Near them, there was a pushcart fixed with cycle tyre. There were a lot of pineapples on that cart. At that time, A33 Abu Thageer and A32 L.M. Hakkim came out. A6 told them, Go and leave it at where R.S. Puram meeting takes place and do as I instructed you. Thereafter, those two persons pushed the pineapple cart away. In the mean time, inspite of much effort, this witness could not start the vehicle. Therefore, he pushed the vehicle and came to the main road to a petrol bunk. He found that there was no petrol in the vehicle at all. So he filled his vehicle with petrol and went away. It would have been around 2.30 p.m. when this happened. At that time, an auto was standing in front of the aforesaid pallivasal and one person was sitting in the auto. This witness had no knowledge of the person who was sitting in the auto. That evening, he returned to his place at Appanaickanpatti and he learnt through television about the bomb blasts and he also read Dhina Thanthi newspaper. He learnt that one pineapple cart burst in R.S. Puram. He had a doubt that there might some connection between what he saw the previous day and this blast. But because of fear, he did not mention this to anybody. He was examined by the police after five or six months. He identified A6, A32 and A33 in Court. He had seen the accused after the occurrence only in Court. He had not informed the Police. Learned Public Prosecutor, however, would submit that in such sensitive matters, the silence of the witness is understandable. No one is likely to volunteer information in cases of terrorism and further, with regard to these cases, the police have sources of information that helps them to locate the witnesses. Further, the identification in Court supports the oral evidence of this witness and that is enough to show that the witness is creditworthy.
(3) P.W.948 Kannan is an autorickshaw driver and is a resident of Bajanai Street, Ramanathapuram, Coimbatore. He would park his auto in the Gandhipuram Auto Stand. On Friday, 13th February, 1998, at 8.30 p.m., he went for a ride from Gandhipuram to Royal Nagar in Saramedu. After parking the auto in the shop, he waited for the next passenger. At that time, to the north, a white FIAT car was parked. Near the said car, Tailor Raja (absconding accused), A28 Sarfudeen and A6 Ozir were standing and talking to each other. At that time, A35 Video Rafiq and A34 Mohammed Rafiq, who are known to him and who belonged to Tipu Nagar, also came there. All the four talked to each other. A28 opened the car and took out two blue colour jeans bags. He gave one to A34 and the other to A35. Both of them took them and went away through a street on the northern side. Since no passenger came that way, he drove his auto and returned. On 14-02-1998, he learnt about the bomb blasts and the consequent arrests. He also learnt that the police had arrested A34 and A35 since these were people belonging to the Al Umma Organisation, but for fear of life, he kept quiet. After five or six months, police examined him. He identified A6 and A35, but wrongly identified A23 Shajahangir and A35 Mohammed Rasool as A33 and A34, though they were very much sitting in the Court at that time. There are discrepancies between his evidence and his statement under
Section 164 Cr.P.C. He does not know A6 and A34. When they exchanged the bags, he did not know what was in it.
(4) P.W.979 Shahul Hameed was a resident of Kurichikovai when he gave evidence, but at the relevant point of time, he was residing at Elahi Nagar in Saramedu. He is an auto driver and the number of his auto is TTC-6301, which belonged to Khaja Hussain. Khaja Hussain is the District Secretary of the A.I.A.D.M.K. Party. His auto stand is at Saramedu Main Road. It was called T.M.M.K. On 14-02-1998, about 3.30 p.m., a small boy came and told him that two persons were waiting at Tipu Nagar and asked him to go over there. Immediately he went there. At that time, A34 and A35 were standing there slinging two jeans bags on their shoulders. They got into the auto and asked him to go to Gandhipuram. They kept the bags near their feet. While they were going past Ukkadam near Prakasam, A34 got down and told A35, I will proceed to Rajendra Textriles, you get down at Gandhipuram and you do what I said. At that time, A35 was sitting in the auto. He asked the witness to drop him at Gandhipuram. He went via the bridge at Nanjappa Road. A little distance thereafter, A35 asked him to stop, i.e., about 10 feet afterwards. He told him, Let the bag remain here, I will go get some tools and asked the witness to stand near Ashoka Complex. So, he went and stood near Ashoka Complex. About ten minutes later, a bomb burst in Raja Rajeswari Hall and all the buses stopped. He learnt about the bomb explosion. So he returned to his auto stand at Saramedu with the bag. After parking the vehicle, he took the bag out and went to Tipu Nagar. He enquired where the house of A34 was. The persons whom he enquired told him that they did not know A34. He again took the bag and returned to Saramedu Stand. When he opened the zip bag, he saw a box inside where there was a switch with a tape affixed over it. Since no passenger came, he though that if the person who kept it came to reclaim it, he would return it and waited. About ten minutes later, A13 Auto Siraj came there. He asked him to return the bag stating that it contains a bomb and that it belongs to Al Umma. The witness got frightened. He said he will give it only if A34 asked for it and that he wanted to get back the fare for the trip from him. But since A13 threatened him, he returned the bag to him and went home. After he went home, his parents told him not to get out of the house. The next day, he went to the auto stand and learnt that six persons had died in the bomb blast that occurred at Rajendra Textiles and he also read about it in the newspapers. He thought that perhaps only the passenger A34 would have been responsible for the blast. About four or five months later, the police examined him and they brought A34 and A35 to the auto stand. He told the police whatever had happened and he also identified the two persons. But in Court, the witness was unable to identify the accused. He had admitted that in view of the visit of Mr. L.K. Advani, the police was carrying out checking of autos, but his auto was not checked. He did not know what the two accused spoke to each other. He had waited in Ashoka Complex for ten minutes.
(5) P.W.1060 Ganesh Kumar is a resident of Thirumalveedhi. He is a dealer of readymades and footwear. He had studied upto V Standard in Saveria School on N.H. Road and upto IX Standard in the Narasimhanaicken School. His schoolmates were A60 Saleem, A13 Siraj and A19 Makkan Jaffar. A17 Zaffru did Khallasi work for three years with him. A11 Poochikkan Salaam and A12 TADA Aslam were his neighbours from childhood in Thirumalveedhi. In November 1997, Constable Selvaraj was murdered. After that, Coimbatore faced a lot of disturbances. One white Ambassadar car would be parked in front of Saravanan Complex, Saaj Building and the house of A59 Yakub. He saw that on 14-02-1998, there were bomb blasts in several places. The C.B.C.I.D. police enquired him. He gave a statement before the police as well as under Section 164, Cr.P.C. The witness admitted the statement given by him before the police. The witness identified A12, A17, A19 and A60. He also says that there is no suggestion that A13, A60 and A19 were not his classmates or that he did not know A11 and A12. Of course, this witness had not disclosed to P.W.1300, the Chief Investigating Officer that he was a classmate of the above accused.
(6) P.W.1169 Balakrishnan is a coolie by profession and a resident of Kattur. In 1997-1998, he was selling lottery tickets on his bicycle. At the time of giving evidence, he had an iron shop. He would sell lottery tickets on his bicycle, going to Kattur, Saramedu, Matta Pallivasal etc. Since he did lottery business there, he knew about the Al Umma people. On 13.2.1998, at about 9.00 p.m., he was going via Mattachalai Pallivasal. At that time, in front of A15 Safoors house, in the vacant space, three pushcarts, a moped, one Ambassador car and one FIAT car were parked. A15 Safoor, A26 Jahangir and A5 Basith were loading some black boxes in the rear seat of the car. At that time, Safoor said, Be careful, it might explode. There were also some TVS-50 side boxes. A6 Ozir, A164 Mujibur Rahman and A28 Sarfudeen assisted them. At that time, there was a front light in Safoors house. Looking at this, the witness thought it was not his business to get involved in trouble and returned home. On 14-02-1998, bomb explosions occurred in Coimbatore. The police enquired him and he identified A5, A6, A15, A24 and A28. He also identified A104.
(7) P.W.1234 Karuppaiah, is an auto driver. In 1998, he was driving the auto at Lajapathirai Road. He would ride his auto on hire in Ukkadam and Kottaimedu. At that time, he had met A45 Sait @ Santhu Mohammed and A26 Jahangir. On 14-02-1998, he was going on Lajapathirai Road in his auto. At about 10 a.m., he went to Al Ameen Colony. He dropped the passenger at Suresh Rice Shop and waited for another passenger. At 10.20 a.m., A45 parked a red colour motorcycle in front of his auto. A little later, A26 also came in a red Suzuki with another person. There was a black box on the right side of the vehicle of A26. He showed it to A45 and closed it. There was a white button in that box. A45 took the vehicle from A26 and told him that he will place it in the railway station and post office as he said and went away. A26 took the motorcycle parked by A45 and went away with the other person. Since the witness got a passenger to go to Town Hall, he left the place. The next day, at 4 p.m., there were serial blasts in Coimbatore. The buses did not run and he was in his house. Two days later, he went to the auto stand. He saw the blast site at R.M.S. He realized that the aforesaid persons were responsible for the occurrence. He was examined by C.B.C.I.D. after six months. He identified A45 correctly, but wrongly identified A60 as A26 (A26 was very much present in the Court Hall). The only relevant cross-examination as far as this witness is concerned is that his address is not known. P.W.1270, investigating officer has not been specifically cross-examined in this regard either.
(8) The next witness is P.W.1240 Shyam Prasad. He is a resident of Saibaba Colony. He has a plastic industry in Nanjundapuram. When he had gone via Al Umma Office, he had seen A26 Jahangir. Once when he went to Chinthamani Market to stitch some gunny bags along with his friend Kumar (not examined), he had seen A63 Saaku Faruk. On 14-02-1998, he had gone to Royal Flats, which is behind the S.I.O. Mosque in Saramedu. At that time, A26 gave A63, one TVS-50 moped, which was green in colour. A63 took the moped and went towards Karumbukkadai. That day, there were blasts near Singanallur Police Station. The police seized a TVS-50 moped there and found bombs in it, which were diffused. The witness realized that this was the moped, which was driven by A63. He identified only A26 and not A63 in Court.
(9) The next witness to speak about distribution of bombs is P.W.1291 B. Vijayakumar. He is an auto driver. His evidence implicates A20 Amjad Ali and A54 Rawoof. According to him, on 11-02-1998 at about 11.30 p.m., his auto was engaged by two persons who wanted to go to Thirumal Street. He asked them where they wanted to go in Thirumal Street and they told that they wanted to go to Saravana Metal Mart. When they were sitting in the auto, they were talking to each other. A20 asked the other when did he come from Melapalayam. A54 asked A20 when did he come from Thanjavur. Then they were talking about their family matters. P.W.1291 dropped them at Saravana Metal Mart. On 14-02-1998, this witness went near Mattachalai Pallivasal from Kuniyamuthur for picking up passengers. At that time, one person told him, Please wait behind the Pallivasal for 15 minutes, you are required for another ride. He waited there. Then TADA Mujibur Rahman (absconding accused) came out with a blue colour jeans bag. A54 Rawoof, who has a goldsmith shop in Chetty Street and who is known to the witness also came there. The absconding accused told A54, Take this and make arrangements for leaving it near the Hindu Makkal Party Office. Thereafter, he left. On 14-02-1998, at 11.30 a.m., P.W.1291 went for a ride near the Kalavai Kabrasthan. He dropped a passenger there and came away. At that time, he was having tea near Gnanaselvi Tea Shop. A blue colour Ambassador came near the Kabrasthan gate. The absconding accused came out of the car wth two polythene bags and went inside. Along with him, there were four or five persons sitting near the burial place and they were A2 Ansari, A6 Ozir, A4 Nawab Khan, A20 Amjad Ali, A54 Rawoof and A5 Basith. At about 12noon, A2 and A54 came out. A2 sent A20 saying Finish the work properly at R.S. Puram Meeting. Thereafter, the witness was returning to the stand. The others, including A20 walked along with Athupalam. On 14-02-1998, there were bomb blasts in Coimbatore. For two or three days therafter, he remained in his house. Four or five months later, the C.B. C.I.D. Police examined him. He has stated that the investigating officer came to the stand and called him by name. He asked him whether he knew the details. He said yes. He asked him whether he could identify the accused and he said yes. But in Court, he could not identify the accused.
(10) P.W.352 is Sathar. In his evidence, he has implicated A18 Kathikuthu Ismail, A38 Adipatta Babu, A39 M. Hakeem and A95 Akbar. He is an auto driver. In 1998, he was driving the autorickshaw belonging to Muthusamy with Registration No.TAG-2077. At the time of giving evidence, however, he was driving the auto belonging to one Nagammal with Registration No.MDE-4301. He has acquaintance with the above four persons who belong to Karunanidhi Nagar. On 12-02-1998, at about 8.30 p.m., his auto was parked in the Saibaba Koil Auto Sand. At that time, A38 came with Sultan (not examined) and said that he wanted to go to Ukkadam. After going to Ukkadam, he asked them where did they want to go. A38 replied that they wanted to go to Al Ameen Colony. So, he took the auto to Al Ameen Colony. Near the Mosque, they asked him to turn the auto and park it there. A38 got down there and was talking to A39 and Tailor Raja (absconding accused). After that, Tailor Raja and A39 went away in a TVS-50 moped. A38 followed them behind. The witness remained there with Sultan. Thereafter, the aforesaid three persons came with two blue colour bags and kept it in his auto. A38 told him to take Sultan with the bags to Karunanidhi Nagar. So he went with Sultan to Karunanidhi Nagar. A38 and A39 followed him in another auto. Near Anna Finance on Mettupalayam Road, there was a traffic jam. At that time, they got down from the auto coming behind them, got into his auto and asked Sultan to get down from this auto and get into the auto that was coming behind them. Thereafter, the witness parked the near the Al Umma Flag Post. There, A18 and A15 were standing. The accused gave one bag out of the two to A15. A15, on receiving it, went inside the second lane of Karunanidhi Nagar. After some time, A15 took the other bag and went to the III Street. Then, A39 went and had tea. The witness asked A39 Rs.70/- as fare. He gave him Rs.50/- and told him that he would give him the balance at the auto stand. Then they returned. After two days, A15 and A38, along with two others, were standing near the tea stall belonging to Sottai Bai in Karunanidhi Nagar. He asked them for the balance Rs.20/-. A38 said that he would give it later. The witness states that he did not know what was inside the bag. After five or six months, the police enquired him. He also gave a statement under Section 164, Cr.P.C., which is marked as Ex-P98. He could not identify the accused in Court.
(11) The next witness is P.W.466 P. Vijayakumar, a goldsmith has implicated A164 Mujibur Rehman (released under the Juvenile Justice Act). If he had to repair his cycle, he would go to Ibrahims Cycle Shop in Kottaimedu, where A164 worked. His friend Ravi had introduced them to him and Ravi is also familiar with them. He and Ravi planned to go there. Therefore, Ravi came to his house at 2.15 p.m. They walked from R.S. Puram to T.V. Road. At that time, it was about 2.45 p.m. It was announced that by the time L.K. Advani arrives there, it would be 4.00 p.m. Therefore, thinking that they can have some tiffin by that time, they went to Lokamanya Street on the east and then to Sir Shanmugam Road on the north. At the junction of Sir Shanmugam Road and T.V. Sami Road, a person came riding a black Suzuki Samurai motorcycle. A164 was sitting in the pillion. They stopped the vehicle to the east of Sir Shanmugam Road. The registration number of the vehicle was KL-11/A4628. The driver of the vehicle parked the vehicle with the stand. At that time, A164 told the driver, Sirajbai, please go and stand there in the north, I will come there. A164 was wearing a saffron colour T-shirt and khaki colour pant with black shoes and was having kumkum on his forehead. After he parked the motorcycle, he opened the side box. He pulled a knob like thing and closed it again. The witness asked him What Mujib? but the accused did not reply and went towards the north. At the spot where the motorcycle was parked, there was a police bus, a police van and a few cars and autos were also there. At about 3.30 p.m., when the witness and his friend again went to eat to a bakery, in about 20 minutes, with a frightening blast, a bomb burst. When they came out, people were talking amongst themselves that there was a bomb blast at Sir Shanmugam Road. When the witness and his friend went to the scene of occurrence, the police bus and van were damaged. The rear side of the Suzuki Samurai was severely damaged. Since they were afraid, they immediately returned to their house. They told each other that they would not tell others what they saw. On 18-02-1998, Ravi came to his house. Both of them went and narrated the incident to the police. On 21-02-1999, the police asked him to come to P.R.S. and he went there with Ravi. There, he identified A164. The witness has also identified the shirt and the shoes, which he was wearing. According to him, M.O.116 are the shoes, which he was wearing and M.O.117 is the saffron T-shirt, which he was wearing. He has stated that he can identify A164 and accordingly identified A164 who was sitting in the Court. His evidence is attacked because he had identified A32 Hakeem in connection with Crime No.153 of 1998 which was the West Sambandam Road blast and so he could not have been in two places. His evidence need not be tested in this case since we have released A164. We will deal with this objection in Crime No.153 of 1998.
(12) P.W.537 Venkatasamy has implicated A32 Hakeem and A33 Abuthahir. He runs a canteen in the Social Club on Thadagam Main Road. He regularly goes to the market for purchasing the groceries for the canteen. If he wants to purchase fish, he would go to Ukkadam Fish Market. A32 has a fish stall there. Since he usually sells good quality fish, he would normally purchase fish only from A32. That is how he got well acquainted with him. In that shop, usually A33 would also be there, who would help A32. A33 had a scrap iron business. On 14-02-1998, by 2o clock in the afternoon, he finished his canteen work and went to his house. Then, at about 3o clock, he thought he would attend the meeting of L.K. Advani and he came out of the house. At that time, he saw his friend PW 450 Dhandapani near the auto stand. So he called him to join him to the meeting. Both of them walked along T.P. Road and were standing and talking near Iyer & Co. Some people were talking that the meeting would soon commence. At that time, the two accused pushed a tricycle carrying pineapples and they left it near Iyer & Co. building. They did something at the base of the tricycle, left it there and went westwards. As they were going, they kept turning back. The witness and his friend were talking to each other as to why they had left the tricycle behind. At about 4o clock, the pineapple cart burst. There was smoke all over. They could hear people screaming and falling down. Vehicles were damaged. These two persons gratefully thinking that their lives were spared ran away from that place. The witness identified A32 and A33 in Court. In cross-examination, he has explained that he noticed the conduct of the accused, particularly because he was puzzled why a person who sells fish and one who deals in scrap iron should push a pineapple cart. In the statement given to the police, he has not mentioned about the two accused meddling at the bottom of the pineapple cart. It is also elicited in the cross-examination that though in the vicinity there were many police stations, they did not mention anything about what they saw either in the Club or to the police.
(13) P.W.450 Dhandapani is an auto driver. He usually would park his auto in the Thadagam Road Auto Stand. P.W.537 is known to him. He would normally use his auto only if he wanted to go out and he would usually buy fish from A32 Hakeem who has a fish stall in Ukkadam Market. His evidence is also to the effect that he is familiar with A33 Abuthahir. On 14-02-1998, he was waiting at the auto stand. At about 3.15 p.m., P.W.537 came there. He said that he wanted to go to the meeting where L.K. Advani was going to speak. So, both of them went to the venue of the meeting via Sambantham Road. At that time, A32 and A33 came there pushing a pineapple cart. They went and parked it near Iyer & Co. building. Instead of selling the fruits, they were trying to turn something under the cart. Thereafter, they left the pineapple cart and went away. Soon thereafter, the fruit cart burst with a frightening noise. Many people got hurt, while some died. Many vehicles were damaged. The witness returned because of fear. Five days later, he was examined. He identified A32 and A33 in the Court. In cross-examination, it is elicited that he did not tell the police that because of fear they did not leave the house afterwards and that they were asked by their family members not to go out. He has also admitted that he did not tell the police any identifying marks. He is not aware of the number of the shop of A32. He has stated that he would have seen A32 about 10 or 15 times before the occurrence. He has admitted in cross-examination that he knew A33 only through P.W.537. He has also admitted in cross-examination that though the accused walked by with the fruit cart close to them, he did not talk to them.
(14) The next witness is P.W.575 Senthil Kumar. On 14-02-1998, he was standing near the junction at Gani Rowther Street and Ramar Koil Street. At that time, a pineapple cart was parked there, and a young man, about 25 years old, pulled something under the cart and ran away. Soon thereafter, the pineapple cart burst. The witness got hurt in the occurrence. No document is marked to show that he was injured in the blasts, nor has this witness identified any of the accused.
(15) P.W.631 Kumar lives in Karunanidhi Nagar. His job is painting. On 14-02-1998, he was proceeding from Kannappan Nagar via Sanganurpallam. It was around 3.45 p.m. then. At that time, A37 Ozir Basha, A38 Adipatta Babu and A36 Noor Mohammed were standing there. A37 gave A36 a cycle and A38 gave a blue colour jeans bag to A37, which he asked him to put up on the cycle carrier. He exclaimed, Keep it carefully, if it bursts, all of us will be finished. The witness was standing 10 feet away when this happened. A36 sat on the cycle for riding it and A38 sat on the carrier, with the jeans bag on his lap. Thereafter, both of them went away through Sivananda Colony. When P.W.631 thought he could go to the BJP meeting, it was 4o clock. When he was proceeding therefore through Saibaba Colony, he heard a blast from Sivananda Colony and also from Kannappan Nagar. So, he did not go anywhere and returned to his house and remained there. After some days, the police and the C.B. C.I.D. examined him. The witness identified A36 in Court. His mother Nalini has been examined as P.W.374, as also his uncle Vasu as P.W.425 and Suryaprakash, Sivaraman and Radhakrishnan. His mother Nalini was injured in the blasts and she has been admitted in the hospital on the same day. So according to the defence he is an interested witness. In his statement to the police, he had not stated that A36 gave the jeans bag. Before the police, he has not said A38 said If it bursts, we will all be finished.
(16) P.W.658 Sakthivel, implicated A43 Abdul Razak and A44 Mohammed Azam. He was working as a loadman in National Travels in 1998. In his travel company, the buses would go to Madras, Bangalore and Bombay. On 14-02-1998, one Baiju (deceased) was sitting in the booking counter in his office. The witness was sorting out the parcels for delivery. At that time, auto driver Siva, P.W.662, came and asked him if there was any parcel to be delivered. At that time, A43 and Kaja Mohideen (not an accused, not examined), who regularly come to National Travels, came there with a blue colour jeans bag. A43 took the bag from Kaja Mohideen and kept it on the table in front of Baiju. He asked him what would be the fare to Madras. Baiju replied that it would be Rs.160/-. He gave Baiju a hundred-rupee note and he asked him to give two tickets. At that time, A44 told A43, Selvi is standing outside, we will go out and come. Then, A43 opened the bag, did something and went out. This witness and P.W.663 also came out and they were sitting in the bus, which was parked outside. Five minutes later, Baiju called them and they got down from the bus. At that time, the bag burst with a frightening noise and in that blast, their office, Jain Travels which was adjacent to it and Dasarathans Mess got badly damaged. One Balakrishnan was thrown out. He too died. Another person who was going in a TVS and a pedestrian also died. There is a room above Dasarathans Mess. Four persons sitting their got injured. One Usman also got hurt. This witness thought that he could catch the two accused and therefore, he went and searched for them in TTC Bus Stand, signal and upto the Town Bus Stand. But he did not catch them and therefore, he returned. By that time, a big crowd had gathered there. The noise of another blast was heard. Fearing there might be a clash, this witness along with P.W.662 went to Mettupalayam and returned only on 16-02-1998. The Inspector of B-4 Police Station enquired them. He told them everything. He asked him if he could identify the accused. He identified only A43 and said he is not able to identify the other because of the lapse of five years.
(17) P.W.662 Siva @ Subramaniam is a friend of P.W.658 in whose evidence there is a reference to P.W.662. He is a resident of Pappanaickenpalayam and is an auto driver. The registration number of his auto is TAR-2975. He would usually park his auto near Gandhipuram R.V. Hotel. On 14-02-1998 at about 3.45 p.m., he went to National Travels to ask if there is any work. At that time, Baiju was at the booking counter and Sakthivel, P.W.658, the loadman was also there. He enquired with Baiju if there was any work for him. At that time, A43 Abdul Razak and A44 Mohammad Azam, who belong to Al Ameen Colony and who regularly come to National Travels, came there. A44 was having a blue colour jeans bag. A43 took the bag from A44 and kept it on the table in front of Baiju. A43 asked Baiju what will be the ticket fare to go to Madras. Baiju replied that it would be Rs.160/-. He gave Baiju a Rs.100/- note and he asked him to book two tickets for 10 p.m. bus. At that time, A44 told A43, Selvi is standing outside, we will go out and bring her. Then, A43 opened the bag, did something, closed the zip and then went out, leaving the bag there. This witness and P.W.658 also came out and they were sitting in the bus, which was parked outside. Five minutes later, Baiju called them and they got down from the bus and even as they were going in, the bag burst with a frightening noise and in that blast, their office, Jain Travels, which was adjacent to it and Dasarathans Mess got badly damaged. Baiju, one Balakrishnan and two persons passing by were lying injured. There is a room above Dasarathans Mess. Four persons sitting their got injured. One Usman also got hurt. This witness along with P.W.658 thought that they could catch the two accused and therefore, they went and searched for them in TTC Bus Stand, signal and upto the Town Bus Stand. But they could not trace them and therefore, they returned. By that time, a big crowd had gathered there. Amidst the ruins, Baiju, Balakrishnan and the two people were passing by on the road were lying dead. They were there for about 15 minutes. At that time, another blast was heard near Raja Rajeswari Towers. Fearing there might be a clash, this witness along with P.W.658 went to Mettupalayam where P.W.658s brother Moorthy (not examined) resides and returned only on 16-02-1998. The Inspector of B-4 Police Station enquired them. He told them everything. He asked him if he could identify the accused. He identified A43 and A44 in Court.
(18) The next witness is P.W.986 R. Murugan. He is a painter. On 15-02-1998, he and his friend Siva went to Bilal Estate. At about 1 pm, when they came near Bilal Estate ground, they saw A26 Jahangir, A19 Makkan Jaffar and another fair 20 year old boy. A24 had a rolled up white polythene bag in his hand. They went near the field and after looking around, they hid the polythene bag in the thorny bush. P.W.986 and his friend went away because they were Al Umma people and they thought that if they were seen, there would be some problems. On 17-02-1998, they read in the newspapers that four boys who were playing cricket in the field went to search for the ball in the thorny bush and died because of a bomb explosion. Then he realized that what the accused had hid there the other day was a bomb. He, however, did not say anything about it to anybody because he thought there would be problems. Later he realized that the person who was with A26 and A19 was A20 Amjad Ali and that he belonged to Melapalayam. After the city returned to normalcy, police enquired him. The witness identified A19 and A26, but could not identify Amjad Ali, who was there. He has admitted that the city continued to be in a state of shock after the previous days blasts (14-02-1998), but still, because they needed money, he and his friend Siva went to Bilal Estate, though they were afraid. On 15-02-1998, they did not get any work. According to the defence, it was extremely unlikely that these two persons would have gone out to seek employment when just on the previous day, there were a series of bomb blasts and it is highly unrealistic that they would have gone towards Bilal Estate.
(19) P.W.984 is one Siva accompanied P.W.986. His fathers name is Narayanan. According to him, on 15-02-1998, he and P.W.986 went towards Bilal Estate seeking some paintwork. It was about 1 pm. At that time, they saw A26 Jahangir, A19 Makkan Jaffar and a 20 year old fair boy. A24 had a white polythene bag rolled in his hand. All three went near the thorny bushes in the ground, hid the polythene bag in the thorny bush and went away. These two witnesses returned home. Two or three days later, he read that children who had played cricket died as a bomb exploded when they went in search of the ball in the thorny bushes. Then he realized that the three accused had hidden bombs there. He also realized that Amjad Ali is the cause for the death of the children. After the city returned to normalcy, police enquired him. This witness identified only A26 Jahangir, but could not identify others. He has admitted that in Al Ameen Colony and Bilal Estate, Muslims live predominantly and that when he reached Bilal Estate, it was about 1 p.m. and since there was no work. With regard to his evidence also, learned counsel for the appellants submitted that it is very unrealistic that anybody would have ventured out, especially in view of the previous days incidents (14-02-1998 blasts) and it unbelievable how the police had traced him.
(20) P.W.449 S. Ravi is an auto driver. He would normally park his auto near Gajapathy Street. Around the time of occurrence, he used to drive his auto near Karumbukadai, Athupalam etc. He would also park his auto in those stands. The name of the auto owner is Nagaraj. He lives in Velandipalayam. He knew A33 Abuthahir, A32 Hakeem, A164 Mujibur Rahman, A1 Basha and A2 Ansari. On 14-02-1998, around 1 p.m., he took a customer in his auto towards Saramedu. Near Saramedu Mattachalai Pallivasal, a tyre of the auto burst. The passenger in the auto got out of the auto saying that his destination is close by and that he would walk. So, P.W.449 called the auto owner from a STD Booth in Saramedu. He told him that a tyre had burst and that the owner should buy a new tyre and he also informed the owner where his auto was standing. After doing so, he returned to the place where the auto was standing and waited there. At that time, A6 Ozir, who is known to him and A164 Mujibur Rahman were standing outside a house and talking to each other. A32 Hakim and A33 Abuthahir came out of the house and were arranging pineapples on a cart. Then A6 went inside the house, brought two bags, which looked like TVS-50 side boxes and kept them underneath the pineapple cart. Then he did something with a wire. After doing so, he told A32 and A33, There is a meeting at R.S. Puram. Leave this cart there and do as I say. A32 and A33 agreed and went away pushing the fruit cart. It was about 2.30 p.m. then. Some time later, the auto owner came with a new tyre. They fixed the auto and returned to the auto stand. At about 4 p.m., he heard that a bomb had exploded in R.S. Puram and also in the nearby Rajeswari Toowers and Thiruvalluvar Bus Stand. He got afraid and went home with his auto. The next day, he learnt from the newspapers that in R.S. Puram, a bomb had exploded in a pineapple cart. Then he remembered what he saw the previous day and those persons, but because of fear, he did not tell anyone. Six months later, the C.B. C.I.D. police enquired him. He identified A6, A32 and A33 and also said that A164 is not in the Court. He admitted that he is not acquainted with the three persons and that he did not say before the police that A32 and A33 were standing outside the house. He has admitted that the checking was very strict near R.M.S., Ukkadam and Kottaimedu and mostly the police checked all the vehicles passing by. He has also stated that, he stood at that spot for one hour and 15 minutes. He heard what they were talking from 100 feet away.
(21) The next witness P.W.728 Muthukrishnan was selling watches on the platform in front of Anna Hotel near Central Bus Stand. His friend is Harikrishnan, P.W.794. Harikrishnan has a watch shop at Shop No.6, Corporation Complex, Gandhipuram Central Bus Stand. The name of his father is Mounasamy. A40 Hakim, son of Syed Mohammed would collect amounts from the shops of Muslims. Along with him, A28 Sharfudeen would also frequently come. Sharfudeen is an auto driver. On the date of occurrence, P.W.728 was standing near the basement of Raja Rajeswari Towers with his friend PW794. That was on 14-02-1998 at about 3 p.m. At about 3.30 p.m., a light blue colour FIAT car came there. The registration number of that car was TNN-7942. At about 4o clock, there was a huge noise from the T.T.C. Bus Stand. They ran from east to west. Ten minutes later, they saw the place from where the noise came and they saw that the FIAT car was covered in smoke. It was to the north in the underground. It was A28 Sharfudeen who drove the car. Many people were injured. Cars, two wheelers and some buildings were damaged. He returned home. Four days later when he was in his friends house, the police examined him. He identified A40 and A28 in Court. He has admitted that it is only by chance that he went to see Harikrishnan. He is not able to say the exact time when the car was parked, but says that it was roughly 3.30 p.m. Rajeswari Towers is about 400 feet from his shop. It was about 4 p.m. when he heard the explosion noise. People started running away when they heard the noise and shopkeepers there had started closing the shops. He has denied that he had never gone to Rajeswari Towers on that day and that he had not seen any of the occurrences and that the police have tutored him by showing the photographs of the accused.
(22) P.W.794 Harikrishnan, of whom P.W.728 spoke in his evidence, has studied upto IX Standard. He has a watch shop near the Central Bus Stand at Coimbatore. He has also said that A40 Hakim would collect amounts from the platform vendors. Along with him, A28 Sharfudeen would also come and he is an auto driver. On 14.2.1998, when he and P.W.728 were talking to each other in the ground floor, i.e., underground, a blue colour FIAT car came there and the registration number of that car was TNN-7942. A28 got down from the car. A28 alone drove the car. After that, they took a token from the watchman. Then the said that they were going to Aptech and went eastwards. The watchman said, You must go westwards to go to Aptech. Then they told the watchman that they had forgotten the direction. At about 4 p.m., a huge noise came from the T.T.C. Bus Stand. He and his friend came out. When they came out, a bomb had also exploded in Rajeswari Towers. Because of the explosion, the building got damaged. Many cars and motorcycles also got damaged. A bomb had also exploded near the FIAT car. Since there was tremendous commotion, he and his friend came away home. Thereafter, the police came and enquired. He also identified A40 and A28 in Court. He has admitted in cross-examination that he has never spoken to the two accused but that he has seen them about six or seven times and that he does not know the details about their address etc. Though he knew that the accused would come to collect the amount, he had no knowledge as to how much amount is collected. He said that he went there just after lunch and it is only on the way he saw P.W.728. According to him, it was about 3 or 3.15 p.m. when they were in Rajeswari Towers and they were there till 4o clock. He has admitted in cross-examination that the stairway is a narrow stairway, but that it is possible to see the underground from there. In his cross-examination, it is elicited that the person who gives token is called Perumal Thevar. Many questions have been asked as to whether the witness could have seen the accused parking the car or the car being parked underground where they stood.
(23) P.W.818 is one Nageswaran. He sells pump spare parts. He is a BJP party member. With the impending Parliamentary Elections, he had been doing election work on behalf of his party near Karunanidhi Nagar, Ratnapuri, Sivananda Colony and Kannappan Nagar etc. He would often go to Karunanidhi Nagar and therefore, he was familiar with many of Al Umma members. Specifically, he knew A36 Noor Mohammad and A38 Adipatta Babu. They had fixed an office for doing election work in Sivananda Colony on Raju Naidu Street near Anantha Bakery. The secretary of the party for that region was P.W.205 Purushothaman. The building belonged to Loganathan. On 14-02-1998, Mr. L.K. Advani was to address a public meeting in Coimbatore. They were sending BJP volunteers from the election office. At about 3.45 p.m., he and Saravanan were drinking tea in Anantha Bakery. A36 Noor Mohammad parked his cycle in front of the witnesss office, coming from the north-south direction. There was a blue colour jeans bag in the carrier of his cycle. He opened the zip of the bag and did something in the bag and then he closed it again. He went southwards. At that time, the witness and Saravana thought they would go to the meeting and they would have gone in their TVS-50 moped not even 200 meters when a frightening noise came from their election office. So they went back. It was about 4 p.m. and they found that about six or seven persons were lying with blood injuries in front of the office. The cycle brought by A36 was damaged. The BJP Office, Anantha Bakery and another building had been damaged. Two autos had also been damaged. He, Saravanan and PW205 took the injured persons to the auto and sent them to hospital. Because the situation was tense, he and Saravanan returned home. The witness has identified A36 in Court. He admitted that when he was talking to PW205, almost everyone had left for the meeting. He does not know who is the owner of Anantha Bakery nor the name of the tea master. There is another teashop in front of Anantha Bakery. He was standing outside Anantha Bakery drinking tea. Anantha Bakerys showcase also got damaged in the blast and a young boy also got injured. He saw A36 parking his cycle and that it was within four or five feet from the BJP Office and that he did not tell P W205 about it, but PW 205 also saw it and nobody tried to stop him.
(24) P.W.726 Venkataraj is doing painting work. His mother Bhagavathi Ammal was a cook in the Nurse Quarters in the Coimbatore Government Hospital. On 14-02-1998, he and his friend Muralidharan went on a moped to the hospital. They parked the moped in front of the T.V. Ward. It was about 2.30 p.m. A white Ambassador was standing outside. The registration number was KLT-5690. A8 Siddiq Ali, son of Kottaimedu Basha opened the bonnet of the car and was doing something. Along him, there was A27 Muthappa, who is involved in the Kottai Amir murder. The sticker Om was pasted in front of the car. Both of them were doing something in the car. He kept seeing what they were doing from where he had parked his moped. After that, they raised the windows and locked the door and went away. Then he went to see his mother. He was waiting for one hour for his mother to come. But since there was a delay, he and his friend Muralidharan decided to go outside and take tea. They took out their moped and went out to the Andal Tea Shop. While they were returning after having tea at about 4.15 p.m., the car left behind by A8 and A27 exploded with a frightening noise. He rushed in fear to call his mother. At that time, his mother came running and she told him that because of the bomb blasts, there will be some problem and that they should go back to their house. Thereafter, they returned. On 16-02-1998, when he went to see his mother to the hospital, police were examining his mother and he gave his statement to the police. He identified A8 and A27 in Court. The witness admitted that he went to call his mother because his son who was 1= year old was very serious and his wife was also not well. His son was suffering from diarrhea and therefore, he thought if he went to CMC Hospital, the child would get good treatment and because his mother was working there, she knew all the big doctors. Since his wife alone could not keep the child, he thought it would be better if his mother is there for assistance. He did not think of taking the child directly to the hospital. All that he felt was that since the child was serious, he should bring his mother.
This evidence was strongly attacked by the counsel for the appellant. They said if his object was to go there to bring his mother back, there was no justification to take Muralidharan along with him. And if his child was serious, it is hardly likely that he would go there and had tea. Also, if the child was serious, the more likely human conduct would be to take the child, rush to the hospital and with his mothers assistance, get him examined by the doctors. It is also contend that when the TVS moped was parked in the parking lot of the hospital, there is no explanation why they took it out on the busy road to go to the teashop. The more natural action would be to leave the two-wheeler in the parking lot and go, have tea and return. But this unbelievable explanation that they took the TVS moped to the tea shop, which is just opposite the hospital, is only to cover up the fact that the vehicle had not been damaged, for if they were really there, it would have been damaged in the blast. So they had cooked up some story to give some explanation.
(25) P.W.734 Abdul Khader, was working with Velumani who was having the license for the motorcycle parking before the RMS Office. His job was to give tokens and his duty hours was from 9 a.m. to next morning 9 a.m. and one days salary was Rs.80/-. Next to the motorcycle stand is the car park stand. On 14-02-1998, he went for duty as usual at 9 a.m. At about 2.45 p.m., he was talking to Dhandapani, P.W.696. At that time, one person came there with Suzuki Moped and asked for token. He took Re.1/- and gave him the token. He took the token and parked the vehicle in the first row. The witness asked him when would he take back the vehicle, for which he replied that it would be late. The witness, therefore, asked him not to park the vehicle in the first row and to park it in the second row. Thereupon, that person moved the bike and parked it in the second row and locked it, left the key on top of the fuel tank and went away. This witness told PW 696 that it is very odd that he was leaving the bike key on the vehicle. At about 4o clock, the same person came back, did something in the side box and then he again went away. The witness asked him if he was not taking the vehicle. The person replied that there was some work and that he will pick it up later. Five minutes thereafter, the bike burst and the thatched roof put up nearby caught fire. Persons got hurt. In front of him, one person died and he got severely injured. The person who left the bike was lean and tall with a sharp nose and a side crop. The witness was taken to the Government Hospital nearby and since at the Government Hospital, a bomb had exploded, they took him to K.G. Hospital. There too, there was no place and so, they merely put a bandage and sent him to P.S.G. Hospital at Peelamedu. There, he was admitted as an in-patient and was there for about 40 days. Two minutes later, he got a summons and in the Test Identification Parade, he identified one person who was noted down as A45 Said @ Santhu Mohammed. He also identified A45 in Court.
In cross-examination, it has been elicited that he does not have the counterfoil for his token and he has denied that the police brought the accused to his house to enable him to identify him and that he had given in the statement to the police that one person was thrown up because of the blast. He has said that though he cannot say exactly where the Suzuki motorcycle was parked, he can say that it was in the second row.
(26) P.W.696 Dhandapani, to whom P.W.734 has referred to in his evidence, has studied upto VII Standard. In his evidence, he has said that he used to issue tokens in the car park at the Railway Station RMS. His duty hours are between 9.30 a.m. and the next day 9.30 a.m. He was working for one Mahesh who had taken the sub-contract. His daily wages were Rs.80/-. On 14-02-1998, as usual, he went to work. At that time, P.W.734 was already there on duty. At about 2.30 p.m., since there were not many cars, he was standing and talking to P.W.734. At that time, a person came there with Suzuki Moped and asked P.W.734 for token. P.W.734 took Re.1/- and gave him the token. He took the token and parked the vehicle in the first row. P.W.734 asked him when will he take back the vehicle, for which he replied that it will be late. P.W.734 asked him not to park the vehicle in the first row and to park it in the second row. Thereupon, that person moved the bike and parked it in the second row and locked it, left the key on top of the fuel tank and went away. So, both of them felt suspicious, but still they did not do anything. At about 4.14 p.m., that person came back, opened the side box, did something thee and went away. Five minutes thereafter, the motorcycle burst. The RMS Office got damaged. Four or five persons got injured and 20 vehicles were damaged. P.W.734 also got injured. This witness helped him to be taken to the hospital. Since he himself felt giddy thereafter, he returned home. On 15-02-1998, he did not report for duty. He went to work only on 16-02-1998. On 08-05-1998, he received summons for Test Identification Parade and there, he identified the person who parked the motorcycle the other day. He described him as having a side crop, sharp nose, aged about 19 or 20 and identified A45 Sait @ Santhu Mohammed in Court.
(27) P.W.424 Ramachandran is a resident of Thillai Nagar. He is a vegetable vendor and is a member of Hindu Munnani. He is also the General Secretary of the Hindu Vyabarigal Sangam. On 14-02-1998, his organisation asked all its members to attend the meeting of Mr. L.K. Advani. So, he was waiting in Kannappan Nagar near their office between 3.45 p.m. and 4 p.m. expecting his friends. At that time, P.W.425 Vasu came there. When they were talking there, A46 Riaz came with an old cycle wearing white shirt and black pants. A blue colour jeans bag was hanging from the cycle carrier. He went past them, stopped the cycle and did some repair. He is a resident of Kurukkuvattaram in Coimbatore. After he went past them, he went to the IX Cross Street and rested the cycle on the electric post in front of the Hindu Munnani Office. The witness and his friends were waiting for PW319 Kumar to come, but he was coming late. Therefore, they waited for him for some time. They went to the teashop and then went to the meeting. Thereafter, they told PW 319 and went away to the meeting. They went by the two-wheeler belonging to P.W.425. On the way, they saw M.G. Rajan who said that at the meeting a bomb had exploded and therefore, the meeting was cancelled. So they returned. When they came back, they learnt that the cycle which was placed by A46 Riaz had burst. So, the witness was afraid and he returned home. After a few days, he was examined by the police. According to the witness, he had seen A46 several times in N.H. Road in the 'Al Umma' functions. He had also seen him along with Kathikuthu Ismail, A18. He identified A18 and A46 in Court.
In cross-examination, it was elicited that even after Vasu, P.W.425 came, they waited for some time to tell PW319 and there is no entry register in the Hindu Munnani Office. It is also elicited that A46 is about 24 years old and that when he parked the cycle, he did something with the cycle chain and since he remembered what he was wearing, he has said that. He has denied that he Deputy Superintendent of Police had asked him to identify A46earlier.
(28) P.W.425 is Vasu, about whom P.W.424 had referred to in his evidence. He lives in Kannappan Nagar. He works as a welder in Baburaj Workshop. He has been a Hindu Munnani party man for three years and whenever he had time, he would do party work in Kannappan Nagar, Thillai Nagar, Gajapathy Road areas. He has seen A46 Riaz and Kathikuthu Ismail several times going here and there, especially when he goes to Kannappan Nagar. On 14-02-1998, Mr. L.K. Advani was going to preside over a meeting in Coimbatore and their party people had said that everybody should attend the meeting. So, he went to the party office at Kannappan Nagar and was talking to P.W.424. At that time, A46 came with an old cycle wearing white shirt and black pants. A blue colour jeans bag was hanging in front of the cycle. After he went a little further, he was doing something like repairing the cycle. Thereafter, he turned into the IX Cross Street and rested the cycle on the electric post, he did something in the bag and then looked as if he was rotating the pedal. There was four feet distance between the electric post and his party office. P.W.319 had gone to drink tea. He is the complainant with regard to this occurrence. Therefore, they told Kumar that they were going to the meeting and went away. At that time, as they were going, they met M.G. Rajan of Lakshmi Nagar who told them that a bomb blast had occurred in front of the office. They rushed to the office and found that the cycle placed by A46 had burst. There was heavy damage to the nearby houses and buildings. One Seethalakshmi had also been injured and others also suffered injuries. He identified A18 and A46 in Court.
(29) P.W.361 M.G. Rajan was residing at No.31, Lakshmi Nagar, Sanganur at the relevant point of time. He was at that time a cable operator. But from 1992 to 1996, he and his father were doing bearing and re-conditioning work on Thirumal Street. For the last two years, he has been the District Secretary of Hindu Makkal Katchi. Between 1995 and 2001, he was Hindu Munnani's District Organiser. Their office is in the end of IX Street, Kannappan Nagar, Coimbatore. The entrance to the office faces Narayanasamy Street. Everyday, he would look after the organisation's work from this office. He would also go to meet the responsible persons in the organisation in Ganapathy, Thillai Nagar and Karunanidhi Nagar. He knew A18 Kathikuthu Ismail. When he was going on behalf of his organisation to Karunanidhi Nagar, A18 was the Amir of Karunanidhi Nagar. He has seen A46 and A18 near the teashop of Sottabai. He and other Muslim youth were committed workers of 'Al Umma'. On 14-02-1998, he was going to the meeting where Mr. L.K. Advani was going to participate. The BJP people had informed all the Hindu Munnani people to attend the meeting. On 14-02-1998 at about 11 a.m., he went to the party office at Kannappan Nagar. He was standing opposite to his office near Nagoor Tailor Shop for his friend. At that time, A18 came in a scooter. A46 was sitting in the pillion. When they were speeding past Narayanasamy Street, they slowed down near the Hindu Munnani Office. They kept looking at he office and talking to each other. When they crossed the office, they again sped away. Ten minutes later, P.W.361 went back to the office and told PW319 that he was going to the public meeting. Then, he went to Lakshmi Nagar to his house, had his meals and at about 3.45 p.m., went to R.S. Puram at the meeting point of Kamarajar Street and Thiruvengadam Street. There he saw people rushing in great agitation. When he asked them, he was informed that a bomb had exploded at the meeting place. He parked his motorcycle and stood there. At about 4.30 p.m., P.W.425 and P.W.424 came there. He told them about the bomb explosion. The police did not allow anyone to proceed beyond that point. They were getting information that at more places bombs had exploded and the police were also saying that in Kannappan Nagar also, a bomb exploded. When he got this information, he told P.Ws.424 and 425 about that. Thereafter, all the three went to Kannappan Nagar. When they came to Kannappan Nagar near the IX Street, the whole electric post had fallen down. The northern sidewall of the Hindu Munnani Office had got damaged. The adjacent toilet had also got damaged. The earth had become black as though crackers had burst. A cycle was lying shattered. Aluminium and iron pieces were spread around. The front wheel of the cycle was lying on the southern side near the sewage canal. The rear wheel was lying on the western side in front of the Hindu Munnani Office. The seat was lying on the roof of Boopathys house opposite the Hindu Munnani Office. There were bloodstains in the verandah of Seethalakshmi's house on the IX Street. Their house on the IX Street also got damaged. When he enquired, he was informed that there was a bomb explosion near the electric post. Thereafter, he went home since his family asked him to leave the place since they felt that there would be attempt to kill BJP, RSS and Hindu Munnani people. Therefore, he went to Palakkad to his uncle's house and stayed there for nearly 5= months and returned only after the situation reached normalcy. He identified A18 and A46 in Court. Neither he nor P.W.424 or P.W.425 gave complaint to the police. He has denied that his statements regarding the movement of A18 and A46 are false. He has also denied that he is stating falsehood because he is inimically disposed towards 'Al Umma'. He has admitted that there were four or five cases against him prior to 14-02-1998, of which one related to the attack on Muslims.
(31) P.W.677 is Rajamanickam. He is a plumber. On 14-02-1998, he and his friend P.W.709, Navaneetham were standing in front of S.B. Towers, Sundarapuram. At that time, he saw A41 Monappa @ Mohd. Hassan and A42 Ashraf of Muthu Colony, Karumbukadai, whom he knew earlier. They came in a TVS-50 moped. A 41 was riding the vehicle. A 42 was sitting in the pillion. He held two jeans bags in his hand. They were blue in colour. After parking the vehicle in front of S.B. Towers, A 41 took one jeans bag from A 42 and went towards Gokul Medicals. A 42 took the other jeans bag in his hand and went towards Gokul Stationery. Ten minutes later, they came away. When they returned, they were not having the bags in their hands. Thereafter, A 41 started the vehicle and A 42 sat behind him and they went away. The witness stood there for ten more minutes. Then they went to Ganesha Bakery to drink tea. After they ordered tea, he saw the time and it was 4'o clock. At that time, a frightening noise came from S.B. Towers. People ran out screaming in fear. They went and saw the burnt dead bodies of two men and one child in front of Gokul Medicals. Many people were injured. Properties lay scattered. Crowd went saying that there is another bomb in another bag near Gokul Stationery (this was defused on 15.2.1998). The two left that place in fear because the bag that A 41 had brought had burst and they told each other that the bag had contained bomb. Since the two accused belonged to 'Al Umma', the witness and his friend did not tell anybody. When the city returned to normalcy and the C.I.D. police enquired them, they stated to the police what they had seen earlier. The witness identified A41 correctly, but said that he could not identify the other saying that because of passage of time, he is not able to identify him.
The police had examined him and P.W.709 separately. He has said that it is because he saw the watch after ordering tea that he knew the time. There is discrepancy regarding this between his evidence and his statement before the police. He had read in the papers that the accused belonged to 'Al Umma' from the papers. He was standing in the place for ten minutes after the bomb had exploded and that is why he realised that it is only the two blue bags that had burst. After the 15th of that month, both of them went to work normally, but he did not go near S.B. Towers. He denied that if he had really seen it, he would have told the police immediately and the fact that he did not tell the police immediately proved that he did not really see anything. He has denied that the police had shown him the photograph of the accused to enable him to identify him in Court. He admitted that he is unable to say in which direction the dead bodies were lying.
(32) P.W.709 is Navaneetham, who is mentioned by the previous witness in his evidence. He is an electrician. He carries on a business called Chitra Sound Service from his house. On 14-02-1998, he and P.W.677 were standing in front of Sundarapuram S.B. Towers. At that time, he saw A41 Monappa @ Mohd. Hassan and A42 Ashraf of Muthu Colony, Karumbukadai, whom he knew even before, coming on a TVS-50 moped. A 41 was riding the vehicle and A 42 was sitting behind. There were two jeans bags on A 42's lap. When they came near the northern side of the main gate of S.B. Towers, they stopped the moped. A 41 took one jeans bag from A 42 and went towards Gokul Medicals, which is located in S.B. Towers building. Ashraf took the other jeans bag in his hand and went towards Gokul Stationery, which is also located in the same building. Ten minutes later, they returned and when they returned, they did not have the bags in their hands. After that, they started the vehicle and went away. He and PW677 stood there for ten minutes talking to each other. At that time, they decided to have tea and went to Ganesha Bakery. He ordered tea. At that time, Pw 677 saw the watch and the time was 4 p.m. At that time, there was a bomb blast in S.B. Towers. Everyone ran with fear. He went near S.B. Towers. There was a burnt smell. Two men and one child lay dead. Their faces had become black. Five or six people had got injured. Since there was another bomb on the southern side and people warned them not to go there. When he looked around, he saw that here was a bag in front of Gokul Stationery. This was a blue colour jeans bag, just like the one that A42 had in his hand. So, they thought that the bag brought by A41 had burst and this bag may also explode. So, they went back to their houses. Six months later, the police examined him. He identified A41 and A42.
He admitted that that he met P.W.677 only by chance and that they went to the bakery only to have tea and for no other reason and that they did not see anybody else whom they knew except the accused. He has admitted that it was only a guess that the bag, which was near Gokul Stationery looked like the one which A 42 had brought. It was only because he was very frightened that he did not tell the police about it earlier. He has denied that he did not know the two accused before and that he is identifying them only because he is prompted by the police.
(33) P.W.627 is one Sivakumar. He is working as a coolie in a dyeing unit belonging to one Senthil. At that time, he had seen A13 Siraj of Karumbukadai Azad Nagar frequently near his shop. They were acquainted with each other. One day, A13 had borrowed from him Rs.100/- promising to give it back in one week, but he did not return it even after a month. Therefore, he went with Parameswaran (not examined) to the house of A13 at 3 p.m. on 14-02-1998. At that time, A13 was talking to two other persons. When he saw P.W.627, he told him to wait there. He returned with three blue jeans bags. It looked as if they were carrying a heavy load. After coming out, he called one of the two persons present there as Monappa, A41 and gave him the three bags. Two TVS-50 mopeds were standing there. A13 told A41, giving him one of the vehicles, to place the bag at 3.30p.m. in S.B. Towers. Monappa took the bag and went away. The two persons went in the same vehicle. Thereafter, A13 told him that he would return the money in one week. At that time, two more persons came there. A13 told P.W.627 that he will come back immediately and went in. When he came out, he brought one blue jeans bag. That also looked heavy. He called one of those two persons by name Abbas, A53 and gave him the other vehicle and the bag. He told them to keep it near Pongaliamman Temple in the evening. Then those two persons went in the other TVS-50 moped. Then A13 asked P.W.627 to go. He and Parameswaran went back to their house. In the evening, through TV and in the next morning from the newspapers, he learnt about he bomb blasts. He also realised that there were bomb blasts in S.B. Towers and Pongaliamman Temple. He felt like telling the police, but since the entire city was in a state of shock, he did not tell anyone. The police came and asked him. He told them what he had seen. He identified A13, A41 and A53. He admitted that when he lent Rs.100/-, he did not take the address of A13. He has said that it is because there were only ten houses on the two where A13's house is, that he could identify his house easily and because there had been no money problem between the two, he was confident that A13 would return the money. He has denied that he is stating falsely that he took Parameswaran along with him to meet A13. In cross-examination, he has stated that he stood near A13's house for about 15 minutes. In the statement before the police, he has not stated that the bags looked heavy. He did not remember the registration numbers of the TVS-50 mopeds. Before the police, he had not stated that A13 said, "Monappa, place this at 3.30 p.m.".
(34) P.W.832 K.P. Kumaran was living in Door No.56, Raju Chetiar Street, South Ukkadam in 1997. He had taken a shop belonging to Kunju Abdullah and was doing grocery business where Gani Rowther Street and Ramar Koil Street meet. On 14-02-1998, as usual, he was taking care of his shop. At around 3.45 p.m., one young man about 22 years old came in front of his shop moving a pineapple tricycle cart. He bought one 10 Number Beedi from his shop and lighted it up. He stood there smoking the beedi. At that time, from the northern side, a loud sound, as if a bomb had exploded, was heard. People started running hither and thither in fear. Then, this young man who was smoking went near the pineapple cart, did something underneath the cart and went towards the crowd on the northern side. P.W.832 got scared and closed his shop. Nearby, the owner of a tiffin shop was also locking his shop. Opposite his shop, Ragavendra Medical Shop was also being closed. After leaving his shop, he went a little distance and stood there, when the pineapple cart near his shop burst with a loud sound. Fearing more blasts, he went home. There was black smoke in the place where the bomb had burst. After he went to his house and returned, he learnt that Chokkanathan, Ranganathan, Vijaya, Ramakrishnan, Murugesan, Devaraj and Surulirajan had died and that 14 persons including Ganesh Kumar, Mohan, Padmanabhan, Arumugam, Anandakumar, Anand and Balasubramaniam got injured. The injured people were being taken to hospital. The dead bodies of the deceased were also being taken away. Since there was commotion, he again went back to his house and because of fear, he went with his family to Thalacheri, which is his native place. When he returned, he was examined by the C.B. C.I.D. police on 22-04-1998. He said that he could identify the person who caused the bomb explosion in front of his shop. There was a Test Identification Parade on 5.1.1999. He identified the person who parked the pineapple cart near his shop. In Court, he identified A165 Sivakumar @ Abdullah instead of A161 Mujibur Rehman, who was there. In cross-examination, he was asked whether he went slowly from his shop after closing it and whether he locked his shop only after the accused turned something in the pineapple cart. He did not remember whether he had said so in the statement. He has denied that in order to co-operate with the police, he is adding fresh details. He has said that he has only one employee in his shop, who is Shaji, but at that time, Shaji was not in the shop. Ganesh, the owner of Raghavendra Medicals was also closing his shop. He returned from his house only to see if his shop was damaged in the blast. He had admitted that he had known the identity of the deceased and the injured. Ganesh Kumar, the owner of Raghavendra Medicals, was also an injured person.
(35) P.W.1050 Mohan is the owner of the Tiffen Shop mentioned by P.W.832. He closed his business at 3:45p.m. on Saturday 14-12-1998 and left home. He saw a young man about 22 years old, 5 tall moving a tricycle cart bearing pineapples. In a short-while there was a blast from the North. There was a crowd on the street. This man smoking beedi came near the cart turned something in the cart and ran away. At that time, the witness saw P.W.832 closing his shop. The medical shop owner also closed his shop starting the scooter when he locked his shop and turned round the pineapple car burst. The splinters entered his body and he was hurt. He took treatment in Vasuki Clinic and in Kerala. He attended the TIP along with P.W.832. He identified the accused. He was told his name was Mujibur Rahman, but he was unable to identify him in Court.
(36) P.W.889 R. Kadirvel has been selling fruits on a cart for 15 years and his main area of operation is Periakadai Street. As usual, on 14-02-1998, he was doing his fruit vending in front of Rajendra Stores on Periakadai Street. At that time, at 3.45 p.m., A34 Mohammed Rafique, who is a plumber in Tipu Nagar, Karumbukadai, stood there with a blue colour jeans bag on his shoulder. He looked this way and that way, went inside Rajendra Stores and after ten minutes, came out. When he came out, he did not have the blue bag. He looked agitated. He again looked this way and that way and went into Shoba Stores. Five minutes thereafter, a bomb exploded in Rajendra Stores. Many got injured, some lost their lives. The shop was also damaged. After seeing this, he pushed his cart and went o his house. He felt that his life was in danger if he told this to the police, because that person was belonging to 'Al Umma'. He identified A34 in Court. In cross-examination, he had said that there is Vinod Textiles in front of Rajendra Stores and he knows the owner of that shop and as there was an injunction by Court that there should be no cart or roadside shop that he did not sell fruits in that area for two months, but thereafter, he again resumed his vending there. He has admitted that he did not tell the police that he was keeping his fruit cart near Rajendra Stores. In cross-examination, he had also stated that he witnessed the bomb blast from a 20 feet distance and that it is only after the smoke rose that he left the place. He has denied that he is giving evidence at the instance of the police.
(37) P.W.1062 is Senthil Kumar. He is a coolie near Paul Company. In 1998, he was selling lottery tickets near the auto stand near Ukkadam Bus Stand. In the course of that, he knew A28 Sharfudeen and his friend A62 Palani Babu @ Abdul Kareem. Once he had asked A62 whether it was possible to do lottery business in Palani. He said that there won't be any sales and that he is doing only fruit vending business there. On 14-02-1998, by noon, his work was over. Thereafter, he decided to attend the BJP meeting. He went by Bus No.7. When he got off the bus near the Top Notch Shop, one white FIAT car with registration number MSQ-1347 came behind him, turned into Lokamanya Street and it was parked near Quality Ice Cream Shop at 12 noon. This was driven by A28 and A62 was sitting next to him. He went near the car because both of them were known to him. But they got out of the car, locked it and went eastwards towards Lokamanya Street. Therefore, he came near the public dais. About 10 to 20 persons were standing there. He asked them when would the meeting commence and they told him that it would start at about 3.30 p.m. So he thought he would go to his house, eat and come back at about 3.30 p.m. By that time, 300 persons had gathered. He though he would stand away from the crowd. The white FIAT was still standing there. At that time, A62 was having difficulty in opening the car. When he saw him, he felt that A62's face was very agitated. He tried again and again to open the car door, but he could not. Then he went away through Lokamanya Street. The witness sat near the public dais. It was about 4 p.m. At that time, there was a bomb blast in Sir Shanmugam Road. Everybody started screaming and ran in that direction. Within five minutes, there was another bomb blast in West Sambantham Road. People ran in fear. He also came back to his house. The next morning he saw the newspaper and realised that the white Ambassador (as mentioned) car, which A62 and A28 had burst. After that, he never went anywhere. The witness said that he could identify the car even now and he identified M.O.1. He also identified A62 in Court. A28 was not present in Court on that date. The next day, he identified A28 also. He had no direct acquaintance with A28 and nobody had introduced him to A28. He has said that he has seen and spoken to A28. He denied that he has never seen him. It is only from "Dhina Thanthi" that he came to know that Mr. L.K. Advani was coming to the meeting. The other details, he did not know. Again in cross-examination, he has stated that it is only because A28 Sharfudeen was riding an auto that he got to know him. He has stated that when the police came to enquire him, they did not bring the accused along and he also did not ask them whether they were arrested. He has said that it was because the meeting was not going to be held that he walked away and it is at that time that he saw the car.
VIII. INCIDENT AT BABULAL BUILDING Crime No.151 of 1998:
This case is treated as the base case. Hence we are dealing with this separately. According to the defence, the case of the prosecution as to the occurrence at Babulal Building cannot be believed. An incident is said to have taken place on top of Babulal Building, where allegedly one of the accused threw a bomb on the police party and the Sub-Inspector of Police, P.W.1041, Chandrasekaran, fired in the air. The complainant with regard to this incident is P.W.1288, Murali. But the presence of P.W.1288 is not spoken to by P.W.1041, who is an injured witness. However, it is only P.W.1288 who gave the complaint. It was also pointed out on behalf of the defence that at the time when P.W.1288 is supposed to have been in Babulal Building, he was conducting inquest elsewhere. It was also submitted that when there was an attack and a counter attack, it is surprising that P.W.1288 did not get injured and hence, if the complaint were disbelieved, then the entire case would have to be rejected.
(i) P.W.1041, N. Chandrasekaran, who is an Inspector of Police now, was the Sub Inspector (Law & Order) at B-1 Police Station, Coimbatore between 23-09-1997 and 08-05-1998. On 29-11-1997 at about 7.30 p.m., he was carrying out vehicular checking in front of B-1 Police Station near Vysyal Street. A Bajaj M-80 two-wheeler came from east to west at about 8 p.m. He asked the driver whether he had licence and he also asked him for his name and address. The driver refused to give his name and address and said in a threatening voice that he belonged to 'Al Umma'. Later, he learnt that the person was A26 Jahangir. He took Jahangir to the police station for enquiry. At that time, A2 Ansari belonging to 'Al Umma' and A29 Shamsuddin (name learnt later) came to the police station and complained to P.W.941, Inspector Muthusamy. P.W.941 told P.W.1041 to let Jahangir go. Then A2 and A29 came to him. A2 told P.W.1041 that he had been watching him for some time and that the conduct of P.W.1041 was not good and that he did not know about A2 and his movement and that it was possible for him to kill him within 24 hours and to split Coimbatore into two. He threatened him with abusive language also. Then, gritting his teeth, he went away saying, "Come all of you, break the buses". Then they went away in the vehicle in which they came. P.W.1041 gave a special report to P.W.945 and on the basis of that, a case was registered in Crime No.2204 of 1997 and the F.I.R. relating to that case is Ex-P.697. Thereafter, the fundamentalists belonging to 'Al Umma' organisation killed Constable Selvaraj, who was doing his traffic duty near Ukkadam, by a knife. Thereafter, there were clashes between the Hindus and the Muslims and as a result, 18 Muslims got killed. On 14-02-1998, there were serial bomb blasts in Coimbatore.
(ii) On 14-02-1998, in view of Mr. L.K. Advani's visit, the Commissioner of Police, Coimbatore appointed him as Security Officer and deputed him to the Peelamedu Airport. He reported for duty to Assistant Commissioner Chellaiah, P.W.1141 and was on duty from 10 a.m. to 3.45 p.m. At that time, the Deputy Commissioner (Law & Order), Coimbatore orally ordered him to go to R.S. Puram where the meeting was to take place with 30 C.R.P.F. jawans. As per the order, he went with the team in the vehicle. Then, there was a traffic block near Coimbatore Kope College and there was a tense situation. It was about 4 p.m. then. When he enquired, he was informed that bombs had exploded at several places in Coimbatore and therefore, there was a tense situation. Thereafter, he arrived at R.S. Puram where the public meeting was to take place. Bombs had also exploded at Sir Shanmugam Chettiar Road and West Sambantham Road, and there was tension in those areas too. He stayed there till 7 p.m., supervising the security arrangements. Thereafter, as per orders issued, he was engaged in duty in the jurisdiction of the Kattur Police Station till 11 p.m. Then, as per the order of the Deputy Commissioner (Law & Order), he left that place and went to Ukkadam. The Deputy Commissioner divided the police personnel into several teams and directed them to conduct storming operation. Therefore, he went to Thirumal Street in the early hours of 15-02-1998. When he began the operation, it was 1.30 a.m. There was a tall building, on which the light kept flickering on and off. He was told that that building was called Saaj Building. He opened the iron grill gate and when he went up, on the last step, there were bloodstains. The door opposite was locked and he felt that there was movement of persons behind. The next building was Babulal Building. So he decided to go there. He came down and went up the Babulal Building. P.W.1045 Pachaiyappan and Havildar Sivasakthi Selvam were with him. He climbed up Babulal Building. The terrace floor was open. Lights were glowing. When he entered the terrace, on his right, to the south, sand bags were piled up. On top of the sand bags, there were two white polythene bags full of pipe bombs. The bag was open and in that light, he could see the pipe bombs. He did not examine then and he told the constables who came behind them not to touch it. Right above the sand bags, there was the water tank. A ladder was resting against the water tank. He climbed up the ladder. There was nobody. He climbed down. On the right hand side of the terrace, there was a bathroom. This was locked from the inside. Lights were burning. There was no roof for the bathroom. Suspecting something, he pushed the door. There was resistance from inside. So he kicked it with his foot. Thereupon, the door opened and inside, there were seven to eight persons. They had bombs and other weapons in their hands. At that time, one of them lit up the bomb in his hand with cigarette lighter and flung it at him. As soon as he lit the cigarette lighter and was preparing to throw the bomb at him, P.W.1041 took the service revolver, which he had for his protection and shot in the air. When he realised that the person would throw the bomb at him, he swiftly shut the bathroom door. Bombs exploded and a result of it, he and his two-team members got injured. He had injury on his right shoulder, right thigh, behind the knee, in the ankle, on top of the right leg and the left knee. The splinters from the bombs entered his body. At the same time, he heard bombs exploding in the bathroom. It was about 4 a.m. Thereafter, he and his team came down. He informed this to the authorities. At 4.30 a.m., he was sent to K.G. Hospital for treatment. Exs.P.665 and 666 relate to the treatment given to him at the hospital. Thereafter, on 19-02-1998, he gave P.W.1141, Assistant Commissioner Chellaiah his blood stained clothes, his service revolver, the empty shells and also a single socks. These were seized under Form-95, which is Ex-P.1000. The revolver is M.O.304, the empty shells are M.O.305, the pants are M.O.306, the khaki shirt is M.O.307 and the socks is M.O.308.
(iii) In cross-examination, it has been suggested to him that the previous incident relating to A2 is not true and that if it had really happened, he would have arrested A2 on the spot. He has denied that there were no pipe bombs on top of Babulal Building and that is why he did not seize anything. He has stated that during the time of the occurrence at Babulal Building, he was the only Sub Inspector. P.W.1141 is the Assistant Commissioner of Police. He has stated that there was light on top of Babulal Building. He is unable to remember whether the bathroom door opened from inside or outside. He has stated that he does not know whether P.W.1288 Murali asked him to call the persons inside the room and enquire them. The witness states that he does not remember whether P.W.1288 came to the top of the stairs and whether he took part in the operation and he is also unable to say at present whether P.W.1288 Murali and P.W.1099 Rajamanickam were also with them in the patrolling duty. He cannot remember whether the person who attempted to throw the bomb at him said, "Police dogs, get lost". He does not remember whether he informed his superiors about the bloodstains in Saaj Building.
(iv) P.W.1045, D. Pachaiyappan, was in the Special Action Force in 1996-1997. On 27-01-1998, he was transferred from Chennai to Coimbatore. On 14-02-1998, at about 12noon, all the personnel belonging to the Special Action Force assembled with the Sub Inspector Gopi as their head and as per the orders of the police control, they were on duty at the R.S. Puram meeting place. At about 3.45 p.m., there was a bomb blast at the east of the dais. When they went towards that spot with the Sub Inspector leading them, again there was another blast from southern side. The crowd ran helter skelter because of fear. At time, the local police warned the people that the bomb was probably kept in the pineapple cart and that nobody should touch it. Therefore, they dispersed the crowd. The Bomb Squad came, inspected the cart and found that there was bomb. Thereafter, for defusing the bomb, they tied the cart on to the tree and exploded it. Till 11 p.m., they were engaged in duty at the scene of occurrence and on orders, they went to Ukkadam for security duty. Then the Deputy Commissioner divided the force into special groups and they went to Ukkadam Bazaar with the local police party. There, under the lead of the local Sub Inspector Chandrasekaran P.W.1041, Sivasakthi Selvam and their party went to Thirumal Street at about 1.30 a.m. on 15-02-1998. They checked many places. On a two storeyed building, the light was flickering on and off. Therefore, this witness, P.W.1041 Sub Inspector Chandrasekaran and Sivasakthi Selvam climbed up the building. The door at the terrace was locked from inside. Then Chandrasekaran said that they should go to the next building. Then they went to the three-storeyed building nearby. They opened the grill gate and climbed up. The light was burning on the top floor. The door at the terrace was also opened. On the terrace, on the southern side, there were sand bags. Two plastic bags containing pipe bombs were there. Immediately, Chandrasekaran said, "Don't touch it, there are bombs inside". Then he climbed up the ladder, which was rested near the water tank and came down. To their left side, there was a room without a roof. The light was burning inside. The Sub Inspector tried to open the door. When it did not open, he kicked it open. Inside, there were seven to eight persons having pipe bombs, knives etc. One person tried to light the pipe bomb with his cigarette lighter. Then, Chandrasekaran, in order to warn the person, took out the revolver and shot in the air and while doing so, he shut the door and asked others to run away as the bomb is going to explode. The bomb exploded and he got injuries on the left side of his chest, left thigh, left ankle and right thigh. When he climbed down, another bomb exploded. Thereafter, they were sent to K.G. Hospital for treatment, which was around 4.30 a.m. The splinters, which had pierced his body, were removed.
(v) In cross-examination, this witness has stated that he cannot remember whether P.W.1041 Chandrasekaran continued to be in the team and that many persons who went on the patrolling party had revolvers, but no one else holding revolver came upto the top floor and at the time of the occurrence, apart from Sub Inspector Chandrasekaran, no other officer was there. It is specifically stated that apart from the three of them, there was no one else and he cannot remember whether they arrested or enquired anybody on suspicion.
(vi) P.W.1099, C. Rajamanickam, in his evidence states that they were doing patrolling work in Oppanakkara Street with P.W.1288, Law & Order Inspector Murali, P.W.1041, Inspector Chandrasekaran, P.W.1045 Special Action Force Constable Pachaiyappan, Havildar Sivasakthi Selvam, Encoba, Palanisamy, Kannappan, Head Constable Babu, Constable John and others. On 15.2.1998, they went to Thirumal Street, which is predominantly occupied by Muslims. They saw a light on top of Babulal Building and they saw the movement of certain persons and they could see that persons were hiding when they saw them. Therefore, they went up the building with David Raj (not examined) of Ukkadam. They saw that some persons were there in the bathroom to the left of the terrace door. P.W.1288 told them, "Who are you, come out, we want to enquire you". Then one person from inside said, "Police dogs, get lost" and threw a pipe like object, which burst with a terrific noise. Sub Inspector Chandrasekaran, with his revolver shot once. Sub Inspector Chandrasekaran, Pachaiyappan and Sivasakthi Selvam got injuries on their hands and legs. At the same time that he shot, there was an explosion in the bathroom. Some time later, P.W.1288 went near the bathroom and shone the torchlight to see if any more bombs were there. A101 Sarthaj, A102 Salahuddin and A103 Sheriff came out from the bathroom with blood injuries. Six shattered dead bodies were lying in the bathroom. P.W.1288 enquired the three accused. At the same time, he also took into custody A16 Abbas, son of Kaufathulla @ Zakir Hussain; Shahul Hameed, son of Shaik Mohammed; Riyaz, son of Shahul Hameed; Raja Sharfuddin, son of Mohammed Ali; and Babu, son of Shaik Fareed, who were hiding in a corner of the terrace and enquired them. They confessed that they and their accomplices had planted bombs in the city of Coimbatore and that they had hidden the pipe bombs in the sand bags. Thereafter, they arrested all the accused at 5 a.m., brought them to the police station and after assisting the Inspector in registration of the case, he went to security duty. On 23-02-1998, he took up the case for investigation. He prepared the observation mahazar Ex-P.193, the rough sketch Ex-P.1112 and recorded the statement of the accused. This witness identified A16 Keezhakarai Abbas, A64 Khaja @ Hakkim, A101 Sarthaj, A102 Salahuddin and A103 Sheriff in Court.
(vii) With regard to this evidence, in the cross-examination, he has stated that when they went to Thirumal Street, it would have been about 4.45 a.m. and that they did not go to Saaj Building and that he was there when P.W.1288 was examining the accused and he does not remember whether when A16 asked, he said that his father's name was Zakir Hussain. He has denied that since there were six mysterious deaths, a fabricated case has been produced by the prosecution.
(viii) P.W.1001 Ravi, was there in Thirumal Street at about 7.30 a.m. on 15-02-1998 along with his friends. There was a crowd near Babulal Building and he heard that six Muslims had died. They went to the top floor and they signed in the observation mahazar. He is a mahazar witness for Ex-.P793 and 794 and he identifies M.Os.291, 292 Series, 293, 294, 295 and 296.
(ix) He has stated in his cross-examination that he would have been in the scene of occurrence at about 5'o clock and he along with Inspector Murali, P.W.1288 went to the top. He has denied that he is giving evidence as per the coaching of the police.
(x) P.W.1141 is R. Chellaiah. He was the Assistant Commissioner of Police (Crimes). On 16-02-1998, he took up investigation in Crime No.151 of 1998, which relates to the occurrence at Babulal Building. He recorded the statement of David Raj, Ravi, N. Subramani, Inspector Murali and Inspector C. Rajamanickam. He also recorded the statement of the witnesses, including P.W.931 Shakila Begum and P.W. Sonaiyan, Constable.
(xi) In his cross-examination, he has stated that they could not seize the clothing of the deceased because their bodies got charred completely. He had not seized the remaining bullets in Inspector Chandrakseran's revolver. According to this witness, from the records, it is seen that only one Sub Inspector was there and that was P.W.1041 and that P.W.1288 had said that on 15-02-1998, at about 6.30 p.m., he had brought the accused to the police station. He had denied that the witnesses had said that in Babulal Building, it was the police who attacked and destroyed the belongings.
(xii) P.W.1073, V. Natarajan is the Revenue Divisional Officer who conducted the enquiry in respect of the six bodies recovered from Babulal Building. He conducted the inquest on 17-05-1998. The details of four of them were Iqbal, Saleem, Abdul Rahman @ Jayakumar, Bilal and the other two were unidentified. It was concluded that the cause of the death was the explosion, since the bodies were shattered and burnt. His report is Ex-P1023 given to the District Collector of Coimbatore. He did not proceed further since he did not receive any order from the District Collector and further, a one man Commission had already been appointed.
(xiii) In his cross-examination, he has claimed that he did not examine A101 to A103 who are mentioned in the third page of his report. (xiv) Ex-P1023 is the report where he has recorded that during the patrolling, the police saw some suspicious movement on top of Babulal Building and there were some persons inside the bathroom and when the Inspector, P.W.1288 asked, "Who are you, we want to examine you", one of them said, "Police dogs, get lost" and threw an object on the police party. The police team stepped away and this object fell down and exploded and therefore, P.W.1041, P.W.1045 and Sivasakthi Selvam were injured. P.W.1041 shot towards them. At the same time, the bathroom where the persons were hiding burst with a loud explosion. When the police switched on the torchlight, three persons came out with injuries and when the police explored whether there was a possibility of further explosion, they found the six shattered dead bodies. In the report, the injuries found on the bodies of the four identified and two unidentified dead are referred to. The report further says that on the terrace, in the northeastern corner, four persons had hidden and they were A101 Sarthaj, son of Salam, A102 Salahuddin, A103 Sheriff and A16 Abbas. When it was enquired, it was stated that three of the dead belonged to Coimbatore and the other three did not belong to Coimbatore. They also showed the white colour bags in which there were pipe bombs. The report ends with the statement that the final report will soon be sent and the interim conclusion of this witness is that this firing was necessary for the self-defence of the police.
(xv) P.W.822, Dr. P. Ravikumar, who was working at a Casualty Medical Officer on 14-02-1998 stated, that on 16-02-1998 at about 3.30 a.m., A102 Salahuddin was brought by one Dhanasekaran, Police Constable, with a police memo. Salahuddin said that at about 4 a.m. on 01-05-1998, one of his friends turned a black colour button system bomb and when he tried to throw it on the police, it exploded and caused injuries. The Accident Register copy is Ex-P441. On the same date, at about 3.30 a.m., A101 Sarthaj was also brought and he too said that at about 2'o clock on 15-02-1998, three unknown persons who are not locals tried to explode a bomb and he sustained injuries. The Accident Register copy is Ex-P442. Ex-P441 shows that at about 4'o clock, on Thirumal Street, a person who him switched on a black colour button system bomb and threw it on the police and it exploded. Ex-P442 shows that the injured had stated that at about 2'o clock on 15-02-1998, some unknown persons triggered a black colour bomb and it exploded, as a result of which, he was injured.
(xvi) According to the defence, P.W.1041 and P.W.1045 had categorically stated that P.W.1288, Inspector Murali, was not present at Babulal Building. They also did not mention the presence of A16 there. On the other hand, according to the prosecution, P.W.1041 merely says in his cross-examination that he does not know about the presence of P.W.1288 and that they must enquire the persons inside or whether he came to the terrace or whether he took part in the proceedings. P.W.1041 would also state that he did not hand over the unused cartridges to Chellaiah, but he did not know to whom it was given.
(xvii) The defence case regarding the occurrence at Babulal Building is that Crime No.151 of 1998 was fabricated so as to hide the mysterious death of six Muslims and in order to avoid the filing of a F.I.R. against the police for the encounter killings, and that is why the final report of the R.D.O. has not been filed till date and Crime No.151 of 1998 was created to suit the convenience of P.W.1288.
(xviii) The evidence of P.W.1288, Murali, the Inspector of Police, is to the effect that at about 4 a.m. on 15-02-1998, under the command of the Commissioner of Police, Coimbatore City, he, P.W.1099 Rajamanickam, P.W.1041 Chandrasekaran, Encoba, Sivasakthi Selvam and others went for carrying out the combing operations in respect of the 'Al Umma' cadres and also for explosives at Thirumal Street, which came under the jurisdiction of B-1 Police Station. At that time, he saw some suspicious movement of persons on the terrace of Babulal Building. When those people saw the police party, they switched off the light. Therefore, the police party proceeded to the top floor of the Babulal Building. People were hiding there. He switched on the torchlight and asked them to come out. One of them said, "Go away you police dogs, get lost" and threw a pipe bomb. When that burst, Chandrasekaran (P.W.1041), Pachaiyappan (P.W.1045) and Sivasakthi Selvam got injured. Immediately, Sub Inspector Chandrasekaran (P.W.1041) fired a round at the sky with his weapon. Within a few seconds, a bomb exploded in the bathroom. A little time later, A101 Sarthaj, A102 Salahuddin and A103 Sheriff belonging to 'Al Umma' came out from the bathroom in injured state. On the same terrace, A16 Abbas, Zakir Hussain, Shahul Hameed, Riyaz, Raja Sharfuddin and Babu, who were hiding at a different place on the terrace were arrested and they enquired the accused. In the bomb explosion, six dead bodies were found scattered in the bathroom. When the accused were enquired, they identified three of the dead as Iqbal, Saleem and Abdul Rahman and said that three others were outsiders, whose names they did not know. P.W.1288 appointed constables to guard the place. There were pipe bombs on top of gunny bags. With the help of Ravindran, BDDS Squad Assistant Inspector, the bombs were defused. The above accused were brought to B1 Police Station at about 6.30 a.m. and a case was registered under the relevant Section, in Crime No.151 of 1998. The F.I.R. is Ex-P.1644. Since there was firing, he sent the six dead bodies to P.W.1073 for enquiry. After placing the accused in police custody, he went at about 8'o clock to the scene of occurrence and in the presence of P.W.1001 Ravi and Subramanian, prepared the observation mahazar, Ex-P.792 and a rough sketch, Ex-P.1645. Before the same witnesses, he seized a white colour cement polythene bag, diffused PVC pipe pieces (16 nos.), 42 nos. gelatin sticks and 16 nos. non-electrical detonators under Ex-P.793, mahazar. M.Os.291, 292 and 296 being the blood stained earth, sample earth and PVC pipe respectively were also seized under mahazar, Ex-P.794. The F.I.R. was sent to the higher authorities for further investigation. Since there were other bomb explosions and he was on duty, he did not take up the case immediately for investigation. Therefore, he sent the eight accused to Judicial Magistrate No.5 for being remanded to judicial custody. Before that, he sent the injured accused to C.M.C. Hospital. He recorded the statements of Davidraj, Chandur, Ravi and Subramanian. Since the accused had to be enquired, he filed an affidavit before the Court and took them back in police custody.
(xix) Ex-P1644 is the F.I.R., which was recorded at 6.30 a.m. on 15-02-1998 and the incident is said to have taken place at 4 a.m. In this, the complainant is P.W.1288. It was received by the Court on the same day at 9 a.m. In the F.I.R., the narration of events is not very different from what P.W.1288 has stated in the evidence, except for stating that Chandrasekaran fired at the 'Al Umma' cadres. In this Ex-P.1644, he refers to shining the torchlight and three accused coming out from the bathroom with injuries, A101 Sarthaj, A102 Salauhiddin and A103 Sheriff. He inspected the bathroom with the aid of the torchlight to ascertain whether there were any more bombs. Six dead bodies were found and five persons were hiding on the terrace at the northeastern corner. On enquiry, they found that they were A16 Abbas, Shahul Hameed, Mohammed Riyaz, Raja Sharfuddin and Babu. It is also stated that of the six dead, three were identified as Iqbal, Saleem and Abdul Rahman and the other three were outsiders and they also found unexploded bombs and pipe bombs on the cement bags, which were intended to be exploded in the city.
(xx) The defence pointed out Ex-D.29, which is the history of the case with regard to Crime No.151 of 1998, which refers to the raid of Saaj Building at 4 a.m. to secure the terrorists; the attack by the accused Sarthaj and others at the police party with bombs and the police opening fire in retaliation; the arrest of nine persons; and the death of the remaining accused in the building on account of the explosion. Therefore, according to them, this is a crucial discrepancy.
(xxi) On the side of the defence, Ex-D.39 is also marked, which is stated to be a statement recorded under Section 161, Cr.P.C. In Ex-D39, P.W.1288 has stated that he Rajamanickam, Chandrasekaran, Encoba, Palaniswamy, Kannabiran, Paulraj, Kannappan, Thillairaj, Sivasakthi Selvam and Pachaiyappan went on patrolling duty at Oppanakkara Street and when the bombs burst on the terrace, it was about 4'o clock; he arrested the accused and came to the police station. According to the defence, since this is a signed document, this alone would be the first complaint and this has been suppressed and Ex-P.1644 has been brought about at a later point of time.
(xxii) P.W.1298, Jayachandra Bose, has stated that he prepared the rough sketch of the scene of occurrence at Babulal Building on 20-02-1998 and recorded the confession statement of A16, who was in P.W.1288's custody, in front of the witness, i.e., P.W.772. A16 showed him his house at Bismi Nagar. He prepared Ex-P.771, observation mahazar and rough sketch, Ex-P.1709. Then on 21-02-1998, he recorded the confession statement of A103 who was in P.W.1288's custody. On 22-02-1998, he recorded the confession statement of A102, who was also in police custody. He also recorded the confession statement of A103. He has stated that he did not send A102 to A103 for medical examination.
(xxiii) In the observation mahazar Ex-P.792, the relevant portions show that on the eastern side of the terrace at Babulal Building, there were sand bags and bombs on them and there is a bathroom on the northern side. There were six bodies and bloodstains on the others inside the bathroom showed signs of sharpnels falling on them. Under Ex-P.793, seizure mahazar M.O.291, the white colour cement bag and M.O. 292, the diffused PVC pipe bombs and gelatin sticks have been seized. Under Ex-P.794, the sample earth M.O.294, the blood stained earth P.W.293 and also shattered PVC pipe pieces were recovered.
(xxiv) P.W.926, Dr. Sekar, was working as Senior Medical Officer at the relevant point of time. He had examined Chandrasekaran, who was brought on 15-02-1998 at 4.30 a.m. He refers to multiple abrasions and a punctured wound. The wound certificate issued by him is Ex-P.665. Chandrasekaran, Pachaiyappan and Sivasakthi Selvam have given the reason for the injuries as the bomb explosion at Thirumal Street and their wound certificates are Exs.P.666, 667 and 668. The discharge summary shows that the diagnosis is 'bomb blast injury'.
(xxv) Ex-P.665 shows multiple pellet implantations. It was submitted on behalf of the defence that if the injuries were as a result of what is stated by the witnesses, i.e., as having been caused by a pipe bomb, then there is no possibility of pellets entering the bodies of the injured. Therefore, according to the defence, the occurrence in Babulal Building as projected by the prosecution must be rejected.
IX. RIOTING The case of the prosecution is that there was rioting on 14-02-1998 at about 4 p.m. at Thirumal Street. The following are the witnesses examined in this regard. (i) P.W.1117, Sathiyaseelan, runs a grocery shop at Door No.39, Thirumal Street. It is also his residence. At about 70 feet to the north of his house is Babulal Building. He would open his shop at 7 a.m. and close it at 1 p.m. On 14-02-1998, at about 5 p.m., 10 or 15 young Muslim men were engaged in rioting with pipe bombs and they were A12 Aslam, A11 Salam, A17 Zaffru, A109 Naimu, A101 Sarthaj, A103 Sheriff and A102 Salahuddin. So he closed his shop and went away. In the evening, he heard 2 or 3 blasts. On 15-02-1998 at 4 a.m., he heard an explosion from Babulal Building. When he went here at 7 a.m., there was a big crowd and he learnt that six young Muslim men had died because of the explosion. He is unable to identify any person. According to him, since several years have gone by, he has not identified them. (ii) P.W.1123, Balakrishnan, has a tailoring shop in Door No.17/41, Thirumal Street and he lives there with his wife and son. He also states that Babulal Building is to the north of his house. On 14-02-1998, when he was stitching clothes at about 4 p.m., he heard the noise of rioting. When he came out, he saw A12 Aslam, A114 Haroon, A11 Salam, A109 Naimu, A17 Zaffru, A103 Sheriff, A101 Sarthaj and A102 Salahuddin, all belonging to that street, having pipe bombs and knives in their hands. They were engaged in rioting and were moving towards Variety Hall. He got scared, so he closed doors and stayed inside. The next morning at 4 a.m., he heard an explosion at Babulal Building. Since it was dark, he did not come out. There was a crowd outside Babulal Building and he heard that six young Muslim men died because of the explosion. He too is unable to identify any person because of the passage of time. (iii) P.W.1125, Selvam, does rewinding work in Perumal Koil Street. On 14-02-1998, he opened his shop and was doing his work. At that time, a group of young Muslim men in Thirumal Street were assembled in a crowd and held pipe bombs, knives and aruvals which they threw on the road and went towards V.H. Road. About five Muslim boys known to him were among the crowd. They were A12 Aslam, A11 Salam, A114 Haroon, A109 Naimu and A17 Zaffru. Since there was rioting, he went inside. On 15-02-1998, he opened his shop at 9 a.m. and he learnt that six persons had died in Babulal Building at 4 a.m. because of an explosion. He too is unable to identify anyone. (iv) P.W.1129, Sundaram, was a sales representative in Ammal Cycle Stores, Variety Hall. At the relevant point of time in 1998, he was living in Door No.70, Thirumal Street on a monthly rent of Rs.1,000/-. On 14-02-1998, when he was sitting in his shop at about 4 p.m., a crowd came running saying that a bomb had exploded. He closed his shop and went to his house at Thirumal Street. At that time, young Muslim men with weapons in their hands were going shouting slogans. He was scared and stayed by the side. After the crowd had crossed him, people told him that their names were A12 Aslam, A114 Haroon, A109 Naimu, A17 Zaffru and A11 Salam. The next morning, he heard an explosion at 4 a.m. He heard that six persons had died in that explosion and one belonged to Thirumal Street. He too is unable to identify anyone. (v) P.W.942, N.K. Rathnakumar, was a resident of Thiruvananthapuram at the time when he gave evidence. But in 1998, he ran a shop called Gopi Tea Stall on Thirumal Street. He had studied upto X Standard in Coimbatore. The Saravana Metals building is located 50 feet from house and behind that, his Makkan Dargah. After the murder of Constable Selvaraj, people would be assembling and discussing in crowd in that place and amongst them, A12 Aslam and other people belonging to the same community would be talking. They were coming to his shop and have tea and snacks. On 14-02-1998, he had opened his shop at 4 p.m. A crowd came and many were holding knives and bombs. A12 Aslam, A11 Salam, A17 Zaffru, A101 Sarthaj and others were in that crowd. They all went to the end of Thirumal Street. Some commotion happened there. There was an explosion and then they ran towards Maniya Thottam. So, he closed his shop and went away. That night, police raided Maniya Thottam. In the morning, he learnt that six Muslim persons died in an explosion Babulal Building. When asked to identify, this witness had said with tears in his eyes that all of them had been known to him from childhood and that he had grown up with them and studied with them and therefore, he did not wish to identify anyone. (vi) In cross-examination, the defence had challenged that all these witnesses had never seen any occurrence as narrated by them. (vii) In addition to the above, the prosecution has also examined some more witnesses in this context. In any event, since we find that the evidence adduced by the prosecution is not so relevant as to implicate any accused with regard to the case of rioting. We have to reject the case of the prosecution on this score. Further the period of sentence prescribed for the offence rioting has already been undergone by the accused concerned, we. X. ARREST & RECOVERY
We will first deal with the arrest of A8, A2, A4, A155, 156 and A157 at Rajahmundry. P.W.1262 Lakshmanasamy, who at that point of time was the Inspector of Police, attached to Special Investigation Team of CBCID, deposed in his chief-examination that on 11-10-1998 at about 3.15 P.M. he effected the arrest of Accused No.8 Siddiq Ali and on arrest, the said accused voluntarily gave confession statement which was recorded in the presence of P.W.1205 Perumal and another. At about 4.00 P.M. on the same day A8 from the right side of his pant pocket took a brass revolver which was loaded with 6 cartridges. He also produced a knife, a letter signed by A1-Basha. The said articles were marked as M.Os.410 to 412, which were recovered under the cover of seizure mahazar Ex-P1479, which was attested by P.W.1205 and another.
(i) P.W.1205 is one of the attesting witnesses to the arrest and recovery of the above said Material Objects from Accused No.8. P.W.1205 in his chief examination deposed that he has gone to Rajahmundry Railway Station to receive his friend on 11-10-1998 at about 3.00 p.m. and at that time, some people came and arrested two people. The said accused was arrested by Tamil Nadu and Andhra Police and the arrested persons were A8 and A153. He further deposed that A8 gave a statement to P.W.1262, which was recorded by him and he signed the said statement as a witness. His friend namely Sathyanarayana had also signed the same as a witness. Thereafter, A8 from his personal possession took out a brass revolver, which on inspection found containing 6 cartridges. A8 also produced a green colour pouch from his left side pant pocket, which contained a knife and he also produced a letter, which was written in Tamil. A perusal of mahazar under Ex-P1479, it was signed by this witness and his friend. The signture of P.W.1205 was marked as Ex-P1480. The witness identified M.Os.410 to 412. This witness identified A8 in the open court, but wrongly identified A89 as A153. In the cross-examination this witness has deposed that the when the police came in two vehicles and effected arrest of both A8 and A153 and the entire portion of arrest, recording the statement and recovery took about one hour and ten minutes and police did not compel him to be there. It is further deposed by him that he signed as a witness along with his friend. A careful perusal of the above said testimony reveals that nothing was elicited against the prosecution and nothing useful was elicited in favour of the Accused No.8 and we find no reason to discredit his testimony.
(ii) On the information by Accused No.8, P.W.1262 proceeded to Vamsi Apartments, Panduranga Street, Danuvaipet, Rajahmundry. Search was made in flat bearing No.46-16-2/8, Vamsi Apartments and A2, A4, A155, A156 and A157, who were present in the said flat were arrested at about 4.30 P.M. on 11-10-1998. It is further deposed by P.W.1262 in the chief-examination that A2 voluntarily gave a confession statement, which was recorded in the presence of P.W.1203 Subbarao and another. Admissible portion of the same has been marked as Ex-P1549. As per the admissible portion of confession, the accused informed the witness that he will produce pistol etc. The flat in which the said accused were staying were seen and a scene mahazar was prepared under Ex-P1477 and a sketch was also prepared under Ex-P1550. At about 8.00p.m. on 11-10-1998, along with A155, A4, A157 and A156, A2 produced 10 Material Objects which were marked as M.Os.403 to 409. On 12-10-1998, the arrested Accused were kept in custody at Rajahmundry Police Station and at about 12.45 P.M. on the same day, they along with Materials Objects seized were produced before the learned II Additional I Class Judicial Magistrate at Rajahmundry and after obtaining transit warrants they were taken to Coimbatore and were produced before the learned Judicial Magistrate No.V, on 14-10-1998. The concerned witnesses were also examined and their statements were recorded on 12-11-1998. On 12-12-1998 at about 10.00 p.m., the above said apartment was once again searched. M.Os.384 to 402 namely television and other articles were seized.
(iii) In the cross-examination P.W.1262 has deposed that on receiving secret information he along with his party proceeded to Rajahmundry and they have taken assistance of the local police. The witness would further depose that they have not obtained permission from the local jurisdictional Court for effecting the arrest of the accused since they felt insufficient time was available and in the interregnum the accused may flee away. The witness denied the submission that no arrest of the accused was effected at Rajahmundry and they have not given any statement. Arrest of A2 and others and recovery was effected in the presence of P.W.1203 and another and this witness would deposed that there are 5 occupants in the said apartments and the Tamil Nadu police arrested them. One among 5 persons Accused No.2-Ansari voluntarily gave statement and it was recorded by P.W.1262 and he has signed the said statement as a witness along with one N.Srinivasan. In the observation mahazar under Ex-P1477 also this witness has signed. Ansari voluntarily handed over various articles in the cupboard in the said apartments, which were seized under the cover of mahazar Ex-P1478 and marked as M.Os. 403 to 409. The witness has also identified the above said Material Objects in the Court. The witness also identified A2, A151, A156 and when he was called upon to state the names of the persons, he stated A2 as Anwar, A151 as Idayat Alikhan and A156 as Tada. But he has not identified A4 and A155 who were siting in the Court. In the cross-examination this witness has deposed that he has not visited the flat at any point of time. For about 4= to 5 hours he was with P.W.1262. The witness further deposed that he did not know the contents of Ex-P1478 and do not know Tamil also. Accordingly, a perusal and analysis of the above said testimony would disclose that his testimony is cogent and inspires confidence and he corroborates the version of P.W.1262. The Material Objects recovered under Ex-P1478 were also identified by him in the Court and he also identifies A2, A151 and 156. Though the witness deposed that he was not aware of contents of Ex-P1478, which was recorded in English since he identifies the articles seized under the above said Exhibit, we cannot discredit the testimony in so far as recovery is concerned. It is to be remembered at this juncture that the arrest of the above said accused was on 11-10-1998 and the witness was examined on 19-02-2004. Therefore, there is bound to be some memory lapse and due to said lapse of time, the witness would not have remembered the names of A2, A151 and A156 and due to change in physical appearance also, he would not have been identified A4 and A155. The same would not in any way discredit his testimony and we believe the same.
(iv) Insofar as Accused No.2 is concerned, he was arrested at Rajahmundry was brought to Coimbatore on transit warrant and was interrogated on 22.10.1998 at SIT office by P.W.1300, Chief Investigating Officer, in the presence of one Balan-P.W.1269 and one Krishnan. At the time of interrogation A2 produced M.Os. 422 to 431. The said Material Objects were recovered under the cover of seizure mahazar pertaining to the said articles were marked as Ex-P1561. The said Material Objects were marked by the trial Court subject to objection raised by the counsel appearing for the Accused.
(v) It is the submission of the learned senior counsel appearing for the Accused that if A2 was really arrested at Rajahmundry on 11-10-1998, it would not have been possible for A2 to be in possession of M.Os. 422 to 431 at the time of his interrogation by P.W.1300 and also that A2, in his statement under Section 313, Cr.P.C., had said that he was arrested in Coimbatore. The submission of the learned Public Prosecutor was also heard. P.W.1203 has cogently spoken about the arrest of accused No.2 and others at Vamsi Apartments, Rajahmundry and in pursuant to the confession statement made by Accused No.2, he along with other accused took M.Os.403 to 409 and the recovery mahazar was also signed by P.W.1203. As the testimony of P.W.1203 inspired confidence, we feel no ground to reject his testimony. We accept the arrest at Rajahmundry and the recovery of M.Os.403 to 409. With regard to the recovery of M.Os. 422 to 431, in pursuant to the confession made by Accused No.2 before P.W.1300 at Coimbatore in the presence of P.W.1269, we are of the opinion, that the said confession and recovery lacks credence. As per the prosecution version, Accused No.2 was arrested on 11-10-1998 at Rajahmundry by P.W.1262 and after obtaining transit warrant from the Court of Additional First Class Judicial Magistrate No.II, at Rajahmundry, he was produced before the jurisdictional Magistrate at Coimbatore and was remanded to judicial custody and thereafter, was taken into police custody. Therefore, right from 11-10-1998, A2 was in custody and therefore, it would not have been possible for him to retain M.Os.422 to 431 in his possession. Therefore, we are not sustaining the case of the prosecution in so far as the said recovery effected on 22-10-1998 at Coimbatore.
(vi) It is the further submission of the counsel appearing for the Accused that the confession given by A2 cannot amount to joint confession and assuming the said confession is believable, it can implicate only A2 and not other Accused who were said to have been arrested along with him. In support of the said submission, reliance was placed on Oudh Ram Vs. State (Delhi), (1982 Crl. L.J. 1656) and K. Yanadi vs. State of (A.P.) (DB), (1985 Crl. L.J. 1822). In the former, it has been held as follows :
Where several accused were charged with the offence of dacoity and no separate statements were recorded from them, a joint statement recorded from them, leading to the recovery of stolen articles is inadmissible in evidence and no reliance can be placed upon any recoveries alleged to have been made in pursuance of the joint statement. In the latter, the Andhra Pradesh High Court held, where several accused were charged with the offence of dacoity and no statements were recorded from them, a joint statement recorded from them, leading to the recovery of stolen articles, is inadmissible in evidence and no reliance can be placed upon any recoveries alleged to have been made in pursuant to the joint statement.
(vii) This Court, in Senthil Kumar and Another vs. State rep. by Inspector of Police, Kilkodungalur Police Station, (2009 (3) MLJ (Cri.) 917 (DB)), has taken into consideration the Parliament Attack case in State (NCT of Delhi) Vs. Navjot Sandhu, (A.I.R. 2005 S.C. 3820) and held as follows:
Yet another circumstance relied upon by the prosecution is the arrest, recovery of M.O.1-Car as contemplated under
Section 27 of Indian Evidence Act. Accused 1 and 2 were arrested on 7.10.20205 while they were proceeded in a motor bike without number plate (M.O.7). Motor-bike (M.O.7) was also seized. On being interrogated, accused No.1 and 2 had voluntarily given confession statement and their joint statement was recorded by the Investigating Officer which led to the recovery of car bearing registration No.TN-07 V 2104 (M.O.1).
Confession and recovery is assailed contending that the exact word used by each of the accused were not recorded and the Investigating Officer has recorded joint statement of the accused No.1 and 2 which led to the recovery of M.O.1-Car and recovery based on that joint statement of both the accused cannot be relied upon. No doubt, when the Investigating Officer dealing with more than one accused it is obligatory upon the Investigating Officer to record the exact words used by each of the accused so that recovery pursuant to the information received may be connected to the person giving information. When both of the accused gave the same information, recording of joint statement which led to recovery of M.O.1-Car cannot said to have caused prejudice to the accused.
Observing that joint disclosures/simultaneous disclosures per se are not inadmissible under
Section 27 of Indian Evidence Act in State (NCT of Delhi) vs. Navjot Sandhu, A.I.R. 2005 S.C. 3820 Supreme Court held as under :
"145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. The point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs.10 lakhs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr.Shanti Bhushan and Mr.Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the ken of Section 27, whereas it is the contention of Mr.Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the accused informants. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures, to be more accurate, simultaneous disclosures, per se, are inadmissible under Section 27.
"A person accused" need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr.Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefatory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel."
Distinguishing Ramakishan Mithanlal Sharma vs. The State of Bombay, A.I.R. 1955 S.C. 104 and the judgment of Bombay High Court Gokulchand Dwarkadas case AIR 1948 PC 82 : 49 Cri LJ 216, in Para 147, Supreme Court held as under :
"147....... The admissibility or otherwise of joint disclosures did not directly come up for consideration in that case. However, while distinguishing the case of Gokulchand Dwarkadas AIR 1948 PC 82: 49 Cri LJ 216 decided by the Bombay High Court, a passing observation was made that in the said case of High Court had "rightly held that a joint statement by more than one accused was not contemplated by Section 27" (SCR p.925). We cannot understand this observation as laying down the law that the information almost simultaneous furnished by the two accused in regard to a fact discovered cannot be received in evidence under Section 27. It may be relevant to mention that in case of Lachman Singh v. State (1952 SCR 839: (1952) Cri LJ 863 this Court expressed certain reservations on the correctness of the view taken by some of the High Courts discountenancing joint disclosures."
Applying the ratio of the above decision, there is no difficulty in placing reliance upon joint confessional statement of the accused No.1 and 2 which led to recovery of M.O.1-Car. Pursuant to the confession statement of the applicants/accused No.1 and 2, recovery of M.O.1-Car is a strong circumstance connecting the accused with the offence."
(viii) In the light of the ratio laid down in the above cited decision of the Hon'ble Supreme Court of India, and the other decisions rendered by the High Courts of Delhi and Andhra Pradesh, we hold that the recovery of M.Os. 403 to 409 made consequent upon the admissible portion of the confession of A2 will bind only on him and not the other accused. Admittedly, the Accused No.2 in the admissible portion of the confession statement said that he had hidden the said articles in the cub-board at Vamsi Apartments and it is the version of the prosecution that he along with other arrested accused took the above said Material Objects. It is extremely difficult to believe the said version. The recovery of M.Os. 403 to 409 would implicate only Accused No.2 and not other accused, who were also arrested along with him at Vamsi Apartments at Rajahmundry.
(ix) In so far as Accused No.3 -Tajudeen @ Abu Mujahith, is concerned, though he was said to have given confession on 26-04-1998 to P.W.1300-Chief Investigating Officer, no recovery was effected. The fact remains he was produced before the jurisdictional Magistrate and he was remanded to judicial custody. Therefore, we see no reason to disbelieve the version of the prosecution regarding his arrest.
(x) Accused No.4 - Nawab Khan was also arrested along with A2, A8, A155, A156 and A157 at Rajahmundry on 11-10-1998 by P.W.1262-Lakshamanasamy, in the presence of P.W.1203-Subba Rao and another. As already discussed, in the forgoing paragraph that A2 gave confession statement and as per the admissible portion of the confession statement, M.Os.403 to 409 were recovered and according to prosecution, all the above said accused together took those Material Objects from the cub-board in the Vamsi Apartments. We already held that confession statement given by A2 and the recovery made in pursuant to the admissible portion of the said statement can be put against A2 alone and not against other accused. A4 was also produced before the Court of Additional Judicial I Class Magistrate No.II, Rajahmundry and after obtaining transit warrant, was produced before the jurisdictional Magistrate at Coimbatore and was remanded to judicial custody. Thereafter, he was given police custody to P.W.1300. On perusal of the testimonies of P.W.1203, P.W.1262 and P.W.1300 we accept the arrest of A4 at Rajahmundry.
(xi) Accused No.5-Basith @ Mohamed Basith - was arrested on 09-06-1998 by P.W1139 Ramasamy near Sathyamangalam. P.W.1139 would depose that since he was not the investigating officer, he has not obtained the confession statement from A5, except from A160 who voluntarily gave confession statement. He would further depose that A5, A21 and A10 were declared as absconding accused and a Reward of sum of Rs.2 lakhs was also announced by the Government of Tamil Nadu to secure the custody of the accused. P.W.1139 further deposed in the cross-examination that while effecting arrest of A5, the reasons for arrest has not been given in writing, but it was orally informed to him and regarding information of his arrest to his relatives, the said fact was submitted by way of report to the Investigating Officer.
(xii) P.W.837-Sivakumar would depose that on 14-08-1998 at 10.00 A.M. he went to B7-Ramanathapuram Police Station at Coimbatore and at that time, police was interrogating A5. A5 indicating his intention to give statement voluntarily and it was recorded by police. As per the admissible portion of the confession marked as Ex-P500, A5 took the police party to Thippu Nagar and identified the house of A9-Oombabu and scene mahazar was prepared. A5 also identified the house of A16 Keelakarai Abbas and scene mahazar under Ex-P503 was prepared. Thereafter, the accused took them to Sathyamangalam - Mettupalayam Road, where in that road to the north of milestone 18/2, two cement towers were situated and to the opposite direction of two cement towers they proceeded further by 3 Kms. In a particular spot A5 pointed out that they used to explode bomb for trial. A scene mahazar was prepared under Ex-P504. The police party also took the sample earth and ordinary earth under the cover of mahazar Ex-P505.
(xiii) The witness also identified A5 in the Court. In the cross-examination the witness would depose that he used to go to B7-Police Station and in view of the acquaintance, his name and address was not asked. On entering the police station he found that the police was interrogating A5 and he enquired about the interrogation. Thereafter, police started recording the statement of A5. The witness would further depose that the entire portion in the confession statement was told by A5 and he only seen A5 giving the statement but he has not read the said statement. He has no earlier acquaintance with A5. It was suggested to the witness that no confession was given by A5 and no scene mahazar, seizure mahazar was prepared and this witness denied it. It is to be pointed out at this juncture that P.W.837 submitted before the Court that if he has to disclose the place in which he worked, he may not be in safe and the trial Court has assured him that he will be given sufficient protection and thereafter he continue to give evidence. A careful perusal of the testimony of P.W.837 shows that nothing useful was elicited in favour of the defence and we are of the opinion that his testimony is credible and believable and we accept the arrest.
(xiv) Accused No.6-Ozir @ Abdul Ozir @ Tada Ozir: A6 had surrendered before the Court and he was taken into police custody by P.W.1300 and before him, A6 gave a statement on 01-06-1998. However, the said statement does not led to any recovery. Admittedly, A6 surrendered before the Court. Therefore, it cannot be said that his surrender was stage-managed.
(xv) Accused No.7- Mohammed Ali Khan @ kutty. This Accused was arrested by P.W.1299 - Jeyachandra Bose, Deputy Superintendent of Police, attached to Special Investigation Team on 24-02-1998 at about 9.00 P.M. at Sathyamangalam, in the presence of P.W.1266-Sampath Kumar, Inspector of Police, attached to SIT and the said Accused was arrested in front of his house at Sathyamangalam. After arrest, he was produced before the jurisdictional Magistrate for remand and thereafter, police custody was taken. On 27-02-1998, he voluntarily gave a confession statement and the admissible portion of which has been marked as Ex-P719. On 28-02-1998, A7 took the police party to his house at Sathyamangalam and produced Yamaha Motorcycle bearing Registration No.TN37 H 9725 (M.O.258), Cardboard Box (M.O.257) and the same were recovered in the presence of P.W.958 and another under the cover of Mahazar Ex-P720. Driving licence of the accused and other incriminating articles including Ex-P261-visiting card of this accused A7 was recovered and all the Material Objects recovered in pursuant to the admissible portion of the confession given by A7 were marked as M.Os.250 to 256. On 09-03-1998 A7 was produced before the Court and he was remanded to judicial custody.
(xvi) P.W.1299 in his cross-examination has deposed that the witnesses came to the police station at about 8.45 P.M. on 20-02-1998 and they were informed if the witnesses are not available they should act as witness. On the next day P.W.1299 came to know that no witnesses were available and therefore P.W.958 and another were informed to act as witnesses. P.W.1299 would further depose that only mahazar prepared under Ex-P718 and the search list was not prepared. He denied the suggestion that he did not went to Sathyamangalam and all the documents were prepared in the office of SIT at Coimbatore. He has also further deposed in the remand the fact of A7 gave a statement has not been disclosed. The defence has also elicited from P.W.1299 that the statement recorded from A7 on 24-02-1998 under Ex-D22 is in the nature of statement under
Section 161 of Cr.P.C. and in the said statement, the word confession has been inserted and he has not initialed it. In the remand report it has not been indicated that A7 has voluntarily given a statement. As regards the suggestion that the seized articles have to be recovered under one serial number the witness has denied the same. The role of A7 came to the light only on the interrogation of Shajahan only on 15-02-1998. P.W.1299 would further depose that the office of SIT was temporarily functioning in B7-Ramanathapuram Police Station. In the statement of A7 the word concealed/hidden has not been stated and it has not been stated in his confession statement that he will produce something from Zia Lodge. The statement of P.W.958 one of the recovery witnesses was recorded on 28-02-1998. It is further deposed by P.W.1299 that A7 was produced from Salem Central Prison by means of P.T. Warrant and he was remanded to judicial custody in Crime No.159 of 1998. He has also denied the suggestion that even prior to 20-02-1998 A7 was kept under illegal custody. He has also denied that confession of A7 was given in Crime No.151 of 1998.
(xvii) P.W.958 has spoken about the arrest and recovery of Material Objects pertaining to A7. P.W.958 at the relevant point of time was working as Village Administrative officer in Sathyamangalam and he along with R.I were summoned by police and they were present on 24-02-1998 at about 8.30 P.M. Thereafter, they proceeded and effected the arrest of A7 from his house and A7 on his arrest produced a green colour bag from which gelatin sticks, detonators, fuse and a magazine were recovered under the cover of mahazar Ex-P718. Other articles namely visiting card etc., were also recovered and the Material Objects recovered were marked as M.Os.250 to 256. On 27-02-1998, A7 gave a confession statement and as per the admissible portion under Ex-P317, Yamaha Motor Cycle and Cardboard were recovered under Ex-P720 and the same were marked as M.Os.257 and 258. A7 took them to his friend's house from where his driving licence, Gold Flake cigarette outer cover and visiting card were recovered under Ex-P721 and the Material Objects were marked as M.Os. 259 to 261 and thereafter, A7 took them to Zia Lodge and the ledger was recovered under the cover of mahazar Ex-P722 and the lodge ledger was marked as M.O.262. In the cross-examination the witness would depose that he did not enter the house and also denied the suggestion that detonators, gelatin sticks and fuse cannot be put together. The witness also would depose that till he was there the police did not make the house search. At Ramanathapuram police station on 27-02-1998 no recovery was effected in the place in which confession was given and the accused had signed in all pages and he has also signed it.
(xviii) The learned counsel appearing for the Accused No.7 would submit that as per Ex-D21 and D22 statement of A7 his address was shown as Door No.44, Mariamman Koil Street, Sathyamangalam and it is hit by
Section 162 of Cr.P.C. As per Ex-D21 arrest card, the accused was arrested from Fathima Beebi Nagar, Kumarapalayam, Sathyamangalam since the arrest card - Ex-D21 and statement Ex-D22 show two places, the learned counsel appearing for A7 would submit that the arrest cannot be believed so also the recovery and the presence of P.W.958 at the time of alleged arrest and recovery cannot be believed at all. In Ex-D22 the word confession has been inserted and according to P.W.1299 he has not made any insertion and he has not initialed it. Even in the statement the word concealed is not stated.
(xix) This Court on a consideration of the said materials is of the view that A7 was arrested in the presence of P.W.958. In so far as Ex-D22 is concerned, the same will not in any way aid the prosecution as it is hit by
Section 162 of Cr.P.C. This Court on a perusal of the Ex-D22, has found that the word confession has been added/inserted and according to P.W.1299 he has not made the said correction and not initialed it. No doubt the arrest card shows some other address at Sathyamangalam but the fact remaains A7 was arrested at Sathyamangalam and P.W.958 Village Administrative Officer has categorically deposed that A7 was arrested in his presence. The recovery of register from Zia Lodge has not been stated in the confession statement of A7. But P.W.958 would depose that the accused took them to Zia Lodge and the register was seized. In pursuant to the admissible portion of confession under Ex-P719 dated 27.2.1998 Yamaha Motor bike was seized under the cover of mahazar Ex-P720. The prosecution would argue that M.O.461-visiting card of P.W.1293 Riaz-ur-Rahman who is said to have supplied gelatin sticks, which have been used in the serial bomb blasts at Coimbatore. It is the further submission of the prosecution that the testimony of P.W.958 Village Administrative Officer is cogent and trustworthy and he is stick on to his version in spite of lengthy cross-examination by the defence.
(xx) P.W.961 has corroborated the version of the prosecution that the Motorbike, which was recovered in pursuant to the admissible portion of the confession of A7 belongs to A7. Therefore, the arrest and recovery made in pursuant to the admissible portion of the confession statement of A7 is believable. However, this Court is of the opinion that Ex-D22-statement of the Accused No.7 dated 24-02-1998 cannot come to the aid of the prosecution as it is hit by
Section 162 of Cr.P.C.
(xxi) Accused No. 8-Siddiq Ali was arrested at Rajahmundry Railway Station by P.W.1262 Lakshmanasamy in the presence of P.W.1205. P.W.1205 would depose that A8 and A153 were arrested by P.W.1262 and A8 gave a confession statement, which was taken down by P.W.1262. A8 took out a brass revolver from his right side pant pocket and from left side pant pocket produced a green colour pouch, which contain a knife. Those articles were seized under Ex-P1479 and the Objects seized were marked as M.Os.410 to 412. In the cross-examiation of P.W1262, the testimony of the witness has not been discredited.
(xxii) Accused No. 9 - Oom Babu: This accused was arrested by P.W.732 on 29-03-1998. He was interrogated at B7-Ramanathapuram Police Station on 03-04-1998 and at that time P.W.799, who is an Assistant attached to the office of the Coimbatore South Taluk Office was present and according to his testimony, A9 gave a statement and also took them to his house and various places which led to the recovery of various documents which were marked as Exs.P367, Ex-P.369 to 375. The accused also took them to Panagangara at Kerala State and from the house bearing Door No.64, the accused produced a yellow colour plastic bag and 7 cartridges which were marked as M.O.198 series. This was also identified by the said witness in the Court. A perusal of Ex-P378, 376 and 368 would disclose that certain material documents were seized by the police party as the accused took them to various places and produced those documents. In the cross-examination the testimony of P.W.799 remained unshaken and we see no reason to disbelieve his testimony.
(xxiii) Accused No.10-Zahir Hussain: He was arrested by P.W.1139 Ramasamy along with A116 on 07-09-1999. P.W.1139 would depose that since he was not the investigating officer he did not record the confession statement of A10. However, he recorded the confession statement of A116 since he volunteer it. P.W.1295 was carrying on the avocation as a Real Estate broker and he has deposed that on 8, 9 and 10-09-1999, A10 was in the custody of SIT and in his presence and in the presence of his friend Sivakumar, A10 gave a statement. In pursuant to the said statement the accused identified the place in which explosive substance was hidden and it was recovered under the cover of mahazar Ex-P1687. The recovered material was marked as M.O.449. This witness would further depose in his cross-examination that he is not having acquaintance with the police, but his friend Sivakumar is having good acquaintance with police and since he was called by Sivakumar, he went to the office of SIT. He would further depose that seizure mahazar was routinely written and no insertion/interpolation was done. He denied the suggestion that he and his friend Sivakumar are acted as agents of the police. On a careful analysis of testimony of P.Ws.1139 and 1295 would disclose that nothing useful was elicited in favour of the accused with regard to the recovery.
(xxiv) Accused No. 11-Abdul Salam @ Salam @ Poochaikan Salam @ Babu: This accused was arrested by P.W.1299 - Jeyachandra Bose on 24.2.1998 in connection with Crime No.151 of 1998 and he was remanded to judicial custody on the same day. No recovery was effected from him.
(xxv) Accused No.12-Aslam @ Tada Aslam: This accused was arrested by P.W.1300 - Rajasekaran Chief Investigating Officer on 05-05-1998 and he gave a statement in the presence of the witnesses. No recovery was effected from him.
(xxvi) Accused No.13-Siraj @ Auto Siraj: This accused and A51 were arrested by P.W.1262 Lakshmanasamy at Sellodu Mattu Manda Malampula Taluk at Kerala on 15-03-1998 in the presence of P.W.875 and another. The accused gave a confession statement. In pursuant to the admissible portion of the confession marked as Ex-P549. Four empty PVC pipe bombs were recovered on 16-03-1998 under the cover of mahazar. Ex-P550 and the recovered materials were marked as M.O.222 series. In the cross-examination the witness deposed that the confession statement given by A13 was written by a Sub-Inspector and in the mahazar also A13 has put his signature. According to P.W.1300 - Chief Investigating Officer, the confession statement was written by him. He further deposed that in the arrest card some corrections were made. Though initially A13 conceded to give statement under
Section 164 of Cr.P.C. when he was produced before the Court, he refused to give statement. Though there is some discrepancy with regard to the person who has written the confession statement, the fact remains that P.W.875 has spoken about the recovery of M.O.222. The submission made on behalf of A13 that since the confession statement was not recorded by Sub-Inspector, it was recorded only by P.W.1300 and therefore the entire recovery is vitiated cannot be sustained as the testimony of P.W.875 is believable and trustworthy.
(xxvii) Accused No.16 Abbas @ Keelakarai Abbas: This accused was arrested by P.W.1288 K.N.Murali, Station House Officer, B1 police station, Coimbatore on 15-02-1998 early morning hours at Babulal building. His arrest will be discussed in detail under Crime No.151 of 1998. On 20-02-1998 the said accused in the presence of P.W.990-Mayilsamy, Irudayaraj and Balasubramaniam- Revenue Officials gave a confession statement, the admissible portion of which was marked as Ex-P770 and the accused took them to the house at Bismi Nagar which was owned by Tmt.Razool Bibi and identified the place in which the bombs were manufactured. Scene mahazar was prepared by P.W.1299 and the same was marked as Ex-P771. The articles found in the house were listed under Ex-P772 and the articles seized in that house was marked as M.Os. 263 to 287 and two bulbs were recovered which was subject to fingerprint test by P.W.1112. According to the prosecution in one of the bulbs M.O.286, fingerprint of A16 was found and therefore according to them, A16 was staying in the house owned by Razool Bibi and manufactured bombs.
(xxviii) P.W.1112 who took the fingerprint from M.O.286 and analyzed would depose that the fingerprint found in M.O.286-bulb tallied with the fingerprint of A16. P.W.1112 in his cross-examination would depose that there was no direct requisition to lift the fingerprint and prepare to the lifting of the same, sample fingerprint of A16 was not handed over to him and only after he lifting the fingerprint from M.O.286, the sample fingerprint was given to him. The witness would further depose that he was informed that the fingerprint of A16 was taken by one Dhanasekaran on 16-02-1998. The witness would further admit that the sample fingerprint was not sent to the Court and for regarding the removal of M.O.286-bulb, he was not aware whether any mahazar was prepared. In the house of Razool Bibi the fingerprint of A16 was not handed over to him. P.W.1300-Chief Investigating Officer in the cross-examination would depose that A16 took the house on lease from P.W.1013-Razool Bibi on the 20th day of fasting of Ramzan the corresponding on 19-01-1998. In Ex-P770-father's name of A16 was stated as Kaja moideen, but on 20-02-1998 only the investigatigation team came to know the father's name of A16 as Kowbathullah.
(xxix) The prosecution wants to nail A16 since the fingerprint was lifted from M.O.286-bulb from the house of Razool Bibi in which he was residing as a tenant and by virtue of seizure of other articles the prosecution want to establish that he manufactured bombs in the said house. The testimony of P.W.1112 would disclose that the sample fingerprint of A16 was not given to him at the earliest point of time and that he has also not sent the sample fingerprint to the Court. Therefore, connecting the Accused No.16 with the manufacture of bomb primarily with the help of the fingerprint found in M.O.286-bulb which was seized from his tenanted house belong to Razool Bibi on the face of it appears to be too artificial and unbelievable. The testimony of P.W.1013 in no way help for advance the case of the prosecution with regard to the staying of A16 in her house as a tenant.
(xxx) A perusal of other articles cannot in any way connect the Accused No.16 with the manufacture of bomb and therefore, we hold that the prosecution has failed to establish that A16 was staying in the house of P.W.1013-Razool Bibi and manufactured bombs.
(xxxi) Accused No.17-Zaffru @ Syed Zafar Ahamed @ Zafeer: This accused was arrested by P.W.1299-Jeyachandra Bose on 26-02-1998 in the presence of P.W.881 and another. The said accused voluntarily gave a confession statement and the admissible portion of the same was marked as Ex-P557. As per the admissible portion of confession statement, M.Os. 224 and 225 -Four cement colour PVC pipes and two caps of PVC pipes were recovered under the cover of mahazar Ex-P559 and house of A17 was searched in the presence of the above said witness and another. In the house search certain articles were recovered namely cheque book, passport application, 12 bus tickets of KSRTC, 6 bus tickets of TNSTC and the books etc., were seized and the same were marked as Ex-P.561 to 571. A perusal of the testimony of P.W.881 who was employed as a Deputy Tahsildar on the face of it appears to be cogent and it was attacked on the ground that no independent witnesses were summoned and the help of the Revenue officials were sought and according to the defence they will always support the version of the police. The said submission cannot be taken as an universal rule as the Revenue officials being the Government servants had no axe to grind against the accused. Therefore, we believe his testimony.
(xxxii) Accused No.18 Ismail @ Kathikuthu Ismail: This accused was arrested by P.W.1298-Varadaraju Deputy Superintendent of Police attached to SIT CBCID on 27-05-1998 and according to the prosecution pursuant to the confession Iron Axe M.O.166 was recovered from him under the cover of mahazar Ex-P229. It is the primary contention of the prosecution that all the accused had participated in the conspiracy, which ultimately led to serial bomb blasts in Coimbatore on 15-02-1998 and on 14-02-1998 evening hours. The prosecution has failed to come out with any explanation as to how the recovery of M.O.166 Iron Axe is useful in the serial bomb blast and therefore the recovery of the said M.O. is of no help to the prosecution.
(xxxiii) Accused No.19 Zaffer @ Makkan Zaffer: This accused was arrested on 10-05-1998 in pursuant to execution of Non-Bailable Warrant issued in Crime No.1038 of 1996 registered by B1 Police Station, Coimbatore and he was remanded to judicial custody on 11-05-1998. As per the admissible portion of confession recorded in the presence of P.W.821-Sivakumar and another, M.Os. 206 to 209 namely Sword, Iron plates, blue colour plastic bedding and rusted iron balance were used for manufacture of bombs. Mere possession of the above said articles by A19 cannot led to an inference that he was involved in the process of manufacturing the bomb.
(xxxiv) Accused No.20 Mohammed Amjath Ali: This accused was arrested on 15-04-1998 by P.W.1283 A.G. Manickavel, the then DGP attached to CBCID in connection with Crime No.151 of 1998 and he was remanded to judicial custody on 16-04-1998. After taking him into police custody he was interrogated. The accused voluntarily gave a confession statement and the same was recorded in the presence of P.W.1143 Murugan and others. The admissible portion of which has been marked as Ex-P1296 and in pursuant to the same the accused took the police party to the house of Noorjagan and in the house, and produced the garland made on spatikam, and other Material Objects and the same were recovered under the cover of mahazar Ex-P1297 in the presence of P.Ws.1143 and others and the same were marked as M.Os. 340 to 342. The accused was charged with the offence of conspiracy and allied offences and was convicted. Before the trial Court a plea was taken that this accused was a juvenile. However, the trial Court has rejected it on the ground that as on the date of commission of the offence he has crossed the age of 16 and he is not entitled to the benevolent provision of Juvenile Justice Act. Thereafter, in 2006 an amendment came and an application was moved before this Court for treating this accused as a juvenile and for his release. This Court after considering the submissions made by the counsel appearing for this accused and after hearing the objections raised by the learned Public Prosecutor and after applying the ratio laid down in a decision reported in Hari Ram vs. State of Rajasthan (2009(6) Scale 656), has ordered the release of this accused.
(xxxv) Accused No.21-Aman @ Amanullah: This accused was arrested by P.W.1139-Ramasamy, on 14-10-1998 in the presence of P.W.897-Rajendran and M.Os. 229 to 232 namely, one Spatika Maalai, a copper ring, a pair of Ankle Black Shoes, an Yellow colour Polythene bag were seized on 15-10-1998 in the presence of P.W.897.
(xxxvi) The learned counsel appearing for A21 would submit that when the accused was in police custody for 7 days the above said recovery was effected and there is no incriminating materials made out against this accused under
Section 120-B of IPC. The witness admittedly an accused in another case and therefore he is obliged to the police. Mere recovery of the above said articles would not help the prosecution to sustain their version that the said accused by disguising himself as a Hindu may attempt to plant bomb. We also found that the evidence against this accused in so far as the recovery is concerned appears to be very feeble.
(xxxvii) Accused No.26-Jahangir @ Jahir: This accused was arrested by P.W.1298-Varadaraju the then DSP attached to CBCID SIT on 20-04-1998 and as per the testimony of P.W.809 and another under the cover of mahazar Ex-P390, M.O.199 wooden box and M.O.200 cycle load carrier and the were recovered on 20-04-1998. The prosecution want to establish that the bombs placed in side box fitted in bi-cycle were used for bomb blast and one such bomb blasts took place near Hindu Munnani Officer. Mere recovery of green colour cycle carrier and the box cannot establish that A26 had indulged in the conspiracy to effect the serial bomb blast unless there are other circumstances with regard to his involvsement. The said aspect has been discussed in the other portion of this judgment. In so far as Accused No.27 - Mohammed Muthu @ Musthafa and Accused No.28 - Safru @ Sarfudeen are concerned there was no recovery.
(xxxviii) Accused No.32 - L.M.Hakkim: This accused was arrested by P.W.1300 - Chief Investigating Officer on 22-03-1998 and M.O. 184 series 9" - 6 PVC pipe bombs were recovered under the cover of mahazar Ex-P357. A perusal of the testimony of P.W.786 in whose presence the recovery was effected would disclose that in pursuant to the confession made the recovery of articles were effected and the recovery was effected from a bush. The defence would submit that after recovery the bombs were defused for which no mahazar was prepared. But in Ex-P357 signature of P.W.786 has been found. However, P.W.1300 in his cross-examination has deposed that P.W.786 in his statement has not stated about A32 producing 3 bombs as well as A12 and the bombs were separated and folded in a paper. Since it is an improvement on the part of P.W.786 with regard to the recovery aspect, in so far as A32 is concerned, we are not in a position to place reliance upon his testimony.
(xxxix) Accused No.33-Abu @ Abuthageer: This accused was arrested by P.W.1300-Rajasekaran, Chief Investigating Officer on 19-04-1998 and recovery of M.O.127-defused PVC pipe bomb was effected under the cover of mahazar Ex-P181 in the presence of P.W.538 and another. P.W.538 while being examined identified M.O.127 in Court. The defence would submit that since recovery was effected from an accessible place open to all, it cannot be believed and that though the accused A33 in his confession statement said about the effect of recovery from the rear portion of the house, the recovery was effected from a place which is 40 feet away from his house cannot help the version of prosecution. The Public Prosecutor would submit that the M.O.127 was subject to chemical analysis test and as per Ex-P1035 given by P.W. 1078, item No.12 of the report indicates that it contains some explosive substances. It cannot be said that the place from which M.O.127 recovered is an accessible to all as admittedly it was a bush and M.O.127 was hidden there. Hence A33 alone could have the knowledge and therefore in pursuant to the admissible portion of the confession M.O.127 was recovered. We find no reason to reject his testimony and consequent recovery.
(xxxx) As far as A34-Mohamed Rafiq @ Rafiq is concerned no recovery was effected.
(xxxxi) Accused No.36 - Noor Mohamed: This accused was arrested by P.W.1290-Sambantham, DSP attached to CBCID SIT on 22-07-1998 and in pursuant to the admissible portion of the confession and in the presence of P.W.1044-Kangaraj and Irudhayaraj M.O.309-one citizen quartz wrist watch was recovered under the cover of mahazar Ex-P1003. The prosecution wants to establish that the said watch is to be used as a timer in the bomb for which, there is no credible evidence. Therefore, we disbelieve the recovery.
(xxxxii) A37-Basha @ Hussain Basha, A38-Ibrahim @ Adipatta Babu and A39-M.Hakkim no recovery was made. (xxxxiii) Accused No.40 -N.S.Hakim: This accused was arrested by P.W.1300 Rajasekaran, Chief Investigating Officer on 18-04-1998 and as per the evidence of P.W.785, M.O. 182- Revolver and M.O.183- 5 cartridges were recovered under the cover of mahazar Ex-P355.
(xxxxiv) P.W.1300 would depose that A40 was arrested and it was not informed that he was arrested in connection with Crime No.195 of 1998 registered by B3 police Station regarding Raja Rajeswari Tower blast and instead it has been stated that he has been arrested in connection with Crime no.159 of 1998 and no special report has been sent in this regard. It has not been ascertained whether M.O.182-Revolver was in working condition. It is deposed by P.W.1300 that P.W.785 in his statement has not stated anything regarding his signature in the recovery mahazar and in M.O.355. We perused Ex-P355 in which P.W.785 has subscribed his signature. Simply because P.W.785 in his statement has not said anything regarding his signature in Ex-P355 but it does not led to the conclusion that no recovery was effected. Therefore, we believe the testimony of the said witness regarding the arrest and recovery.
(xxxxv) Accused No.41-Mohammed Ashraf @ Monappa: This accused was arrested by P.W.1300-Rajasekaran, Chief Investigating Officer on 12-03-1998. As per the testimony of P.W.676, M.O.165 -one PVC pipe bomb was recovered on the same day under the cover of mahazar Ex-P 225. Defence would argue that regarding defusal of the said bomb no witness has spoken to that effect. The defence would submit that since he is employed as Village Administrative Officer, he is obliged to police and he has not noted down in his diary about the police calling him to act as a witness. It is further submitted by the defence that A41 was arrested in Crime No.151 of 1998 and not in SB Towers blast case. P.W.676 in his cross-examination deposed that A41 did not enter his house where the said pipe bomb was recovered and so also himself. But in the chief examination he has deposed that A41 took them to the house and from among old articles he recovered PVC pipe bomb M.O.165. The defence placed reliance upon the said contradiction. But we are of the opinion that it was a snap answer. We have gone through the testimony of P.W.676 and even though it was attacked primarily on the ground that as a Village Administrative Officer he is always obliged to the police, we feel that the said submission lacks substance and merit as a Government official it is the duty of P.W.676 to help and assist the police and it is pertinent to point out at this juncture that there is no personal grudge against A41. We also perused the remand report pertaining to A41 and he was remanded in connection with SB Towers blast case. The fact that in remand report there is no indication whether the arrest of A41 was informed to his relative that would by itself cannot vitiate the arrest and recovery as A41 was subsequently produced before the jurisdictional Magistrate and remanded to judicial custody. The testimony of P.W.676 inspires evidence and therefore we believe his testimony.
(xxxxvi) In respect of A43-Abdul Razak, A44-Mohamed Azam and A45-Sait @ Sandhu Mohamed, there was no recovery.
(xxxxvii) Accused No.46-Riyaz Ahmed: This accused was arrested by P.W.1290-Sambantham, then DSP attached to CBCID, SIT on 03-08-1998 and as per the testimony of P.W.684-Nagarajan and P.W.1252-Mohan, M.O.167- one Electronic cell watch was recovered under the cover of mahazar Ex-P381. Mere recovery of M.O.161 in the absence of any connected materials cannot indicate that it is to be used as a timer for effecting the bomb blast.
(xxxxviii) Accused No.60-Saleem @ ValarndhaSaleem: This accused was arrested by P.W.1300 - Rajasekaran, Chief Investigating Officer on 25-05-1998 and as per the testimony of P.W. 1242 - Mani and another M.Os. 415-one brass Revolver and M.O.417-7cartridges were recovered under the cover of mahazar Ex-P1523. The defence would submit that in Ex-P1523 there was some alteration and we have seen the original and we found that some alteration has been done. The recovery was effected from the Antenna of Hotel Bangalore and the said room was occupied by one Rafiq and the said Rafiq has not been examined. The antenna room at the time of search was opened from inside by a boy and he was not examined and the owner of the said hotel Bangalore and Manager of the Hotel Bangalore in which the antenna room is there, were not examined. Since there are too many loose ends even in the testimonies of P.W.1252 coupled with the fact that the antenna room was also occupied by another, we cannot believe the recovery of M.Os.415-Brass Revolver, M.O.416-7 cartridges and 417-Rose colour polythene cover.
(xxxxix) Accused No.102-Salavudeen: This accused was arrested by P.W.1288-K.N.Murali, Station House Officer, attached to B1 Police Station, Coimbatore on 15-02-1998 and as per the testimony of P.W.1133, confession was given which led to the recovery of M.O.458-Veecharuval under the cover of mahazar Ex-P1228. This accused was one of the injured along with A101 and A103 who sustained injury due to bomb blast effected by one of the occupants of Babulal building. The recovery of veecharuval will not in any way implicate this accused with regard to the manufacture and storing of bombs and the role played by this accused is discussed in the other portion of the judgment.
(xxxxx) Accused No.152 Moosa @ Tada Moosa and A155-Mohamed Subair and A156-Syed Mohamed Buhari @ Tada Buhari there was no recovery.
(xxxxxi) Accused No.161-Mujibur Rahiman @ Anna colony Mujibur Rahiman was arrested by P.W.1139-Ramasamy on 29-11-1998 and as per the testimony of P.W.1095-Samuval Paul and another, M.O.315 black colour electronic wrist watch on which Al-umma sticker has been pasted was recovered under the cover of mahazar Ex-P1098. A perusal of the testimony of P.W.1139 and P.W.1095 would indicate that the said watch is not put to be used as a timer but only for the purpose of knowing the time and according to the prosecution it was to be used to fix the time for triggering the blast. We find from the said testimonies that the prosecution has not substantiated the said version and therefore the recovery was effected is of no help to the prosecution.
(xxxxxii) Accused No.163-S.K.Mohamed Ali: This accused was originally arrested on 11-05-1998 by Alwal Police, Andhra Pradesh in connection with a case registered by them in Alwal P.S. Cr.No. 154/98. Thereafter P.T.Warrant was issued on 07-12-1998 and was remanded to judicial custody. No recovery was effected.
With this, we come to the end of the narration of evidence regarding the various aspects of the case.
43. Now we will deal with the subject of release of prisoners, which we have referred to earlier.
I. Release of Prisoners Even when the appeals were being heard, the following accused were released by the State: A42, A51, A52, A53, A54, A55, A56, A60, A63, A101, A103, A153, A160 and A162. We asked Mr. N. Natarajan, learned senior counsel appearing for the accused whether the release was in accordance with law and though he was a senior counsel for the accused, as a friend of Court, he assisted the Court in deciding whether this grant of pardon and release was an act of impropriety or whether it was illegal or whether it was perfectly in order.
(ii) Learned senior counsel fairly and objectively submitted that the power of the Government to suspend or remit the sentence is contained in
Sections 432,433 and
433-A of the Code of Criminal Procedure, but the opinion of the Court hearing the case should be obtained as to whether the application of the accused for suspension or remission of a sentence should be granted or refused and that as regards Section
433-A, the power to remit or commute is restricted and where the sentence of imprisonment for life is imposed on a person for an offence for which death is one of the punishments provided by law, such person shall not be released unless such person has served at least 14 years of imprisonment. But the power of the Governor of the State under
Article 161 of the Constitution of India is not fettered by those restrictions, which are imposed by
Sections 432,433 and
433-A of the Code and it may be granted at any time with regard to any person.
(iii) Learned Public Prosecutor submitted that the prisoners who were released had been imposed with imprisonment for a term and not for life and in any event, they had almost served the entire period of sentence as imposed by the trial court and there were only few months remaining to be served and that they were released prematurely by the Governor under
Article 161 of the Constitution.
(iv) The Government Order under which the above prisoners were released was produced. Though in paragraph 4 thereof, it is categorically stated, In exercise of the powers conferred under
Article 161 of the Constitution of India, the Governor of Tamil Nadu hereby remits the unexpired portion of the sentence of the ten convicts named in paragraph 2 of this order and who have been imprisoned for a fixed term, the earlier paragraphs were not so satisfactorily worded and therefore, we pointed this out to both the learned senior counsel as well as the learned Public Prosecutor. Learned Public Prosecutor immediately stated that the Government has the greatest respect for this Court and had no intention of disregarding or acting in disrespect to the Court, and if the phraseology of the Government Order was not correct, that was neither willful nor by design and that an affidavit would be filed. Accordingly, an affidavit was filed on 12.10.2009 where it is stated that it was only in obedience of the order of the Governor of Tamil Nadu that the remaining sentence of the 10 convicts mentioned in the Government Order was remitted and that it was only by inadvertence that a mistaken expression had been used in paragraph 2 of the Government Order. They have expressed their regret and regret the oversight.
(v) In this context, the decision of the Supreme Court in Epuru Sudhakar vs. Government of A.P., ((2006) 8 S.C.C. 161) can be usefelly referred to, where the Supreme Court has criticized the release of prisoners by the State Governments invoking the Governors powers of granting pardon pending adjudication of the cases. The following paragraphs are relevant in this regard :-
64. The power to grant pardons and reprieves was traditionally a Royal prerogative and was regarded as an absolute power. At the same time, even in the earlier days, there was a general rule that if the King is deceived, the pardon is void, therefore, any separation of truth or suggestion of falsehood vitiated the pardon. Over the years, the manifestation of this power got diluted. The power to grant pardons and reprieves in India is vested in the President and the Governor of a State by virtue of Articles 72 and 161 of the Constitution respectively.
65. Exercise of Executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public consideration alone. The President and the Governor are the sole judges of the sufficiency of facts and of the appropriating of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of Exclusive Cognizance would not apply when and if the decision impugned is in derogation of a Constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutation.
66. Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an Executive action that mitigates or set aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendants guilt or innocence. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter. It can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be the subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of "Government according to law". The ethos of "Government according to law" requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future. 68. As stated above, exercise or non-exercise of the power of pardon by the President or the Governor is not immune from judicial review. Though, the circumstances and the criteria to guide exercise of this power may be infinite, one principle is definite and admits of no doubt, namely, that the impugned decision must indicate exercise of the power by application of manageable standards and in such cases courts will not interfere in its supervisory jurisdiction. By manageable standards we mean standards expected in functioning democracy. A pardon obtained by fraud or granted by mistake or granted for improper reasons would invite judicial review. The prerogative power is the flexible power and its exercise can and should be adapted to meet the circumstances of the particular case. The Constitutional justification for judicial review, and the vindication of the Rule of Law remain constant in all areas, but the mechanism for giving effect to that justification varies.
69. In conclusion, it may be stated that, there is a clear symmetry between the Constitutional rationale for review of statutory and prerogative power. In each case, the courts have to ensure that the authority is used in a manner, which is consistent with the Rule of Law, which is the fundamental principle of good administration. In each case, the Rule of Law should be the overarching constitutional justification for judicial review. The exercise of prerogative power cannot be placed in straightjacket formulae and the perceptions regarding the extent and amplitude of this power are bound to vary. However, when the impugned decision does not indicate any data or manageable standards, the decision amount to derogation of an important Constitutional principle of Rule of Law. This principle must be remembered, viz., the power of executive pardon is subject to the rule of law. It cannot be exercised on grounds of political expediency. It cannot be granted merely as a grand gesture. It is not for the benefit of the convict alone. The executive should equally bear in mind the victims, the society and the message it means to the community. We, however, accept the affidavit filed by the State and leave it at that.
44. Before we begin our analysis of the evidence that has been narrated so far, we will refer to the submissions made regarding conspiracy and appreciation of evidence and the relevant case laws.
(i) Conspiracy and Appreciation of Evidence:
The submission relating to the specific evidence for a conspiracy, manufacture of explosives, distribution of explosives and planting of explosives will be dealt with separately. But on the whole, without going into the specific topics, several points were raised on behalf of the appellants for rejection of the entire case and for allowing the appeals.
(ii) It was submitted that whatever may have been the situation that prevailed in Coimbatore before and after 14-02-1998, the entire top brass of the police force was present and there is no justification for slipshod investigation or lapses in the investigation. The General Diary has not been maintained and this itself should draw suspicion to the entire police case since there is nothing to prevent the investigating officer from introducing or interpolating materials as he pleased.
(iii) The reference was made to 1981 Law Weekly (Criminal) 63(State of Andhra Pradesh Vs. P.V. Pavithran). It was also submitted that the prosecution case cannot be accepted merely because there is automatic repetition of words such part of the same transaction and in the course of unless there is actual material to support that several offences were committed in the course of the same transaction. Further, it was submitted that unless the object of the conspiracy was with malice, malice cannot be imported. Further, when there is no evidence for the planting of the bombs and there is absolutely no acceptable evidence for manufacture of bombs, the continuous chain that is necessary to be established in cases where the prosecution depends on circumstantial evidence is not available.
(iv) Reference was made to Yash Pal Mittal vs. State of Punjab, (1977) 4 S.C.C. 540, where the Supreme Court refers to the various conspirators have interest in the ultimate object in paragraph 9 as follows :-
9. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences, may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under Section 120A is brought out pithily by this Court in Major B. G. Darsay v. The State of Bombay , 1961 Cri. L.J. 828 thus :
The gist of the offences is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to dc a single illegal act. It may comprise the commission of a number of acts under
Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with have conspired to do three categories of illegal acts and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They ate all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.
The offence of criminal conspiracy under Section 120A is a distinct offence introduced for the first time in 1913 in Chapter VA of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences, may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspiratOrs. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under Section 120A is brought out pithily by this Court in Major B. G. Darsay v. The State of Bombay (1961CriLJ828) thus:
The gist of the offences is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to dc a single illegal act. It may comprise the commission of a number of acts. under
Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with have conspired to do three categories of illegal acts and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the '-& offence of conspiracy has been committed. They ate all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.
(v) In AIR 1987 SC 773 (State of Himachal Pradesh Vs. Krishnan Lal Pardhan), the Supreme Court held:
The first grievous error committed by him is in failing to comprehend the offence of criminal conspiracy and mistakenly treating the acts done in pursuance of the conspiracy as the offence of conspiracy itself. Because of this erroneous perception the Special Judge has vivisected the conspiracy into three different sets of acts and viewed in isolation the conspiratorial acts of the accused involved in each transaction and concluding that the other conspirators stood absolved of the offences. In the opinion of the Special Judge every one of the conspirators must have taken active part in the commission of each and every one of the conspiratorial act 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 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. The learned Judge is, therefore, wrong in taking the view that the offences complained of constitute three different sets of acts and should, therefore, be treated as individual acts and judges in that limited perspective.
(vi) In AIR 1994 SC 2420 (Suresh Chandra Bahri Vs. State of Bihar), the Supreme Court held:
A conspiracy from its very nature if generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material in fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto. If the interest and awareness is not there, then he is not a co-conspirator and the mere fact that one witness, without any corroboration, states that he saw a particular accused turning on some switch in the pineapple cart would not be sufficient to convict him of the offences charged. There must be evidence to show that he had knowledge that turning on the switch would result in blasting of bombs. Practically all the witnesses say that when they read in the papers about the bomb explosions, they realized that the action of the accused must have been the switching on of the bomb. Such evidence will not satisfy the test of acceptable evidence.
(vii) In AIR 1988 SC 696 (Appabhai and another Vs. State of Gujarat), the Supreme Court held, Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
11. These may be some of the reactions. There may be still more. Even a man of prowess may become pusillanimous by witnessing a serious crime. In this case, the courts below, in our opinion, have taken into consideration of all those respects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants.
12. On the second contention, the learned Counsel highlighted many of the contradictions in the evidence of Devji (PW-4) as against his previous statement; one recorded by the Executive Magistrate (Exh. 66) and another by the police during the investigation. We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eyewitness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies, which do not shake the basic version of the prosecution case may be discarded. The discrepancies, which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagamohan Reddy, J., speaking for this Court in Sohrab and Anr. v. The State of Madhya Pradesh(1972 CriLJ 1302) observed :
This Court has held that falsus in no falsus in omnibus is not a found rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.
13. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat MANU/SC/0090/1983 : 1983CriLJ1096 , M.P. Thakkar, J. observed :
A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies, which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses.
(viii) In AIR 1988 SC 1998 (State of U.P. Vs. Anil Singh) the Supreme Court held:
On late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini 24 C.W.N. 626 PC, the Privy Council had this to say (at 628):
That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence.
In Abdul Gani v. State of Madhya Pradesh (AIR 1954 SC 31) Mahajan, J. speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.
19. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.
(ix) In 1996 SCC (Cri) 657 (Pattu lal Vs. State of Punjab), the Supreme Court held:
It will be appropriate to indicate here that corroboration is a rule of prudence. Evidentiary value of a deposition, which is otherwise admissible is not just wiped out in the absence of corroboration. Even in the absence of corroboration, a deposition for its quality may be safely accepted to be correct. It will be unfortunate if on account of over emphasis for corroboration, a crime goes unpunished by not giving due weight, on uncorroborated evidence when such evidence is otherwise reliable. We, therefore, find no reason to interfere with conviction and sentence passed against the appellant and the appeal is accordingly dismissed. The appellant has been released on bail during the pendency of this appeal. He should be arrested forthwith to serve out the sentence.
(x) In 2000 (1) SCC 247 (State of Himachal Pradesh Vs. Lekh Raj) the Supreme Court held:
The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt of innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal Jurisprudence cannot be considered to be a Utopian though but have to be considered as part and parcel of the human civilisation and the realities of life. The courts cannot ignore the erosion in values of life, which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind.
(xi) In AIR 2003 SC 1311 (Karamjit Singh Vs. State) , the Supreme Court held, Shri Sinha, learned senior counsel for the appellant, has vehemently urged that all the witnesses of recovery examined by the prosecution are police personnel and in absence of any public witness, their testimony alone should not be held sufficient for sustaining the conviction of the appellant. In our opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. PW11 Pratap Singh has clearly stated in the opening part of his examination-in-chief that ACP Shakti Singh asked some public witnesses to accompany them but they showed their unwillingness. PW10 Rajinder Prasad, SI has given similar statement and has deposed that despite their best efforts no one from public was willing to join the raiding party due to the fear of the terrorists. Exactly similar statement has been given by PW9 R.D. Pandey. We should not forget that the incident took place in November 1990, when terrorism was at its peak in Punjab and neighbouring areas. The ground realities cannot be lost sight of that even in normal circumstances members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. At the time when the terrorism was at its peak, it is quite natural for members of public to have avoided getting involved in a police operation for search or arrest of a person having links with terrorists. It is noteworthy that during the course of the cross-examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel, should not be relied upon the hardly any substance and cannot be accepted.
(xii) In AIR 1992 SC 840 (State of Uttar Pradesh Vs. Ashok Kumar Srivastava), the Supreme Court held, This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however farfetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.
(xiii) In 2001 SCC (Cri) 1504 (Chandrasekhar Sureshchandra Bhatt) Vs. State of Maharashtra) the Supreme Court held, Learned Counsel for the appellants contended that PW-2 cannot be believed for so many reasons, main among which is that he made improvements on his version to suit the prosecution case. He stated instances of such improvements. We have applied our mind and noticed that though there was some marginal variations on certain aspects as between his statement recorded under
Section 161 of the CrPC and the testimony given in court, such variations cannot be dubbed as improvements made with any sinister motive. They are elaborations elicited by the public prosecutor during examination-in-chief. It is the prerogative of the public prosecutor to elicit such points from a witness as he deems necessary for the case. No public prosecutor can be nailed to the statement recorded under
Section 161 of the Code. We scrutinised the so-called improvements from that angle and we are satisfied that PW-2 had basically remained at the same position which he has stated in the FIR.
(xiv) In State through Superintendent of Police, CBI/SIT Vs. Nalini ((1999) 5 SCC 253), the Supreme Court held, Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.
1. Under
Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.
2. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
4. Conspirators may, for example, be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrellAspoke enrollment, where a single person at the center doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.
6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
7. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".
8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy .
9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is in contemplation of law, the act of each of them and they are jointly responsible therefore. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.
(xv) When we asked the learned senior counsel whether even if conspiracy is not proved, if there is acceptable evidence to prove the overt acts, will not the accused be liable, it was submitted that even if the overt acts are proved, it would not be per se sufficient, and the prosecution should prove that there was knowledge that there was bomb inside the pine apple cart. It was submitted that the prosecution case must be in accordance with (i) rules of evidence, (ii) they must show that these occurrences would have taken place in the common course of events, and (iii) also the probability of human nature. The learned Public Prosecutor submitted that if the evidence leads to an unmistakable inference of conspiracy that is enough.
(xvi) We do not agree with the submission of the defence. We accept the submission of the learned Public Prosecutor with regard to inference since that will be in accordance with Nalinis case. We have already referred to the case law on conspiracy. If conspiracy is proved then those appellants who are found to have taken part in the conspiracy must be found guilty as charged, since the blasts were only the consequence of the plot. We have also given our reasons for holding that the events on 14-02-1998 were the result of conspiracy. Similarly, if there is proof for planting of bombs against a particular appellant then he will be found guilty as charged since his act is only in execution of the conspiracy. So, merely because the intermediate links are not specifically proved we will not reject the case. The only result will be that in that event, those appellants who are only implicated in the middle stages like transport or manufacture will succeed in the appeals. It is also not necessary that there should be evidence as regards the specific details of the manner in which the plot would be executed. As held by the Supreme Sourt in Nalini extracted above, conspiracy being an offence in secrecy, the existence and objects may have to be inferred from the circumstances and conduct.
45. CONCLUSION:
We will now reassemble and analyze the evidence. On a reading of the entire evidence, we find that the prosecution has assigned to A1 the role of the leader, who along with his allies decided the course of action, and A2, his brother, is not far behind these two are at the apex. At the other end are those who do the nitty gritty jobs to execute the decision. In the middle are the facilitators who have ensured that the plan does not go away. They in fact form a brooding presence here, there and everywhere like A5 Basith, A6 Ozir, A8 Tajudeen, A9 Oom Babu and A7 Kutty to name some. This is the picture that forms before us. But the picture will take us nowhere if the evidence in Court against the particular accused does not ring true or is inadequate. We will have to see if the prosecution has built its case on believable evidence against each of them.
The various stages of the prosecution case are, (i) conspiracy,(ii) procurement, (iii) transport, (iv) manufacture, (v) distribution, (vi) planting, (vii) arrest and (viii) recovery. We have already referred to the evidence, now we will assess if the evidence can be accepted or rejected.
I. Conspiracy A. Conspiracy at Kottai Thangappas sisters house on 30-11-1997.
P.W. 1132 Senthil kumar has implicated A2, A4, A5 and A161. On 30-11-1997, he had gone to Choice Tailors House. It was the day after the murder of Selvaraj. He admitted that it was almost like there was a bandh in the city, and most shops were closed. He had gone with his friend Ganesan who was not examined. There he saw the above accused standing in front of a house. A2 told A5 Start the work that I told you about tomorrow itself, there has been a lot of loss on our side. We have to teach them a lesson. Let our people be ready. The witness had not mentioned the name of the tailor shop in his statement to the police. When the entire city was in a state of bandh, we cannot believe that he went to the tailor shop away from his house. Admittedly, even he did not have work as the shops were closed. It is unlikely and does not pass the test of normal human conduct. The reason for his presence at that place is not very natural and further there is no supporting evidence. He has not said that he knew the accused earlier. So his identification in Court after months is also not believable. The words allegedly uttered by A2 are also not free from ambiguity. So this evidence is rejected.
B. Conspiracy at A4s house 1st week of December 1997. The witness is P.W. 1152 Natraj and he has implicated A2, A4 A6 and A9. In the first week of December, he had gone to A4s house at Door No 43, Ibrahim Kajiar Street, Kottaimedu. He had asked A4 to identify a secondhand auto in November and that is the reason for his presence. This is doubtful because he did not know A4 before that. He could not remember who told him that A4 would help him to purchase the auto. He admitted that he had seen the accused for the first time on that day. The words speaking of revenge were uttered by the accused inside the house. The witness was standing outside. He admitted it was a busy road so the words spoken inside the house would not have been audible and understood from outside. He admitted he just stepped in the house when A4 came out and asked him to return after a week. If so, he could not have seen the other accused allegedly sitting inside. His identification in Court is also suspect because he had no acquaintance with them earlier. So this evidence is also rejected. C. Conspiracy at Olavakkot railway station.26-12-1997.
The witness is P.W.1259, Gopalakrishnan. He has implicated A2, A4, A5, A9 and A10. To establish that he already knew the accused he referred to a meeting in November 1997 where A1 spoke, and the above accused had been present. Someone told him who they were. He listened to A1s speech at about 7-30 Pm and then he went away. This is not true because P.W.758 Ravikumar, the Reporter had taken down the notes of the speech, and he said that the meeting started only at 8:45p.m. So P.W.1259 had not attended the meeting, nor did anyone point out the accused to him. Then on the date of the conspiracy i.e. 26-12-1997 he went to the station and there he bought chips at a small shop and then went to Crown Hotel where he heard the accused. They had been sitting in a near by table and were talking about manufacture of bombs and planting them. He admitted that he would not have gone to the Railway Station, except to buy chips. The store is a small one not even a reputed one, so this witness could not have gone there to buy chips especially when he has admitted he could get them in plenty in Palghat itself. So his reason for his presence at Crown Hotel is contrived. And conspirators are hardly likely to talk so loudly about bombs in a hotel, where anyone can hear them. This evidence is also rejected.
D. Conspiracy at Kottaimedu on 15-01-1998.
P.W. 1199 Ramesh has implicated A4, A6, A8, A9 and A13. He had gone to Kottaimedu on work on that day. These accused along with many others were in front of Al Umma office, when A4 had spoken the words of revenge and the others said They were ready. It is admitted by him that all the accused were sitting inside the Al Umma office when the words were uttered. If so, this witness who was standing on the road could not have heard the exact words spoken and could not have known who were inside and who spoke the words. It is not his evidence that thereafter they all came out. If he had said so we might have given some weight to his evidence. He admitted that but for his work, he had no reason to go to that area. He went with one Palanivelu who was not examined. After that date he saw the accused only in Court. His evidence without any corroboration cannot be accepted and rejected.
E. Conspiracy on 30-01-1998 at Tea stall in Karumbukadai Saramedu.
PW1039 Jayakumar had spoken about conspiracy implicating A54 and Tada Mujibur Rahman, the absconding accused. He claimed he heard them talk about revenge. He is unable to identify A54. Conspirators are not likely to talk of their plans at teAstalls for the entire world to hear. We cannot believe his evidence.
F. Conspiracy at A4s house on 13-02-1998.
P.W.1175 Veluswamy is the witness. He has implicated A2, A4, A9, A11 and A12. He is a goldsmith. On 13-02-1998, he saw the accused talking outside A4s house at 5-30 pm. They said that some action must be taken on the day of Mr. Advanis visit. The reason for his presence is to look for some house for rent for his friend Muthuraj. But Muthuraj has not been examined. The witness when asked has admitted that he does not know Muthurajs address or other details. We reject the evidence because, there is no corroboration, the reason for his presence is weak, conspirators are hardly likely to talk about their plans loudly out on the road. Further the prosecution case is that the serial blasts were the result of a very well laid out plan. If so by 13-02-1998 the details would have been meticulously worked out. It is not believable that they should be talking that they should take action on the eve of the occurrence. Suppose the words uttered were: So, all details are in place, tomorrow it will go off as per plan, it would have been natural and perhaps believable. As it is, it is not natural. This is rejected.
G) Finally, we will take up the conspiracy at Chennai on 07-02-1998. This had taken place at A1s residence. We have accepted the evidence for reasons, which we will set out below:
(i) The main witnesses for the conspiracy at Chennai in the residence of A1 are P.Ws.854 Rajan, 855 Kalaiselvan and P.W. 1195 Sanjay @ Saifullah. The former two are A1s PSOs and the third claims to have been a household help in A1s house sent by A12 Tada Aslam from Coimbatore. All the three witnesses have not been examined immediately. According to the Public Prosecutor, initially the investigation was concentrated in Coimbatore and only later the witnesses from other places were examined. The defense attacked this evidence on the ground that the two witnesses were policemen and therefore the fact that they did not volunteer to give the information is unbelievable. The defense also attacked the other witness Sanjay @ Saifullah, P.W.1195 on the ground that there is nothing to show e.g.a gazette notification that he had converted to Islam and it is unlikely that A1 would have engaged a Hindu as house help. Further P.Ws.854 and 855 do not mention P.W.1195 and vice versa. These are all factors we will bear in mind while assessing the evidence of PW 1195. If his evidence is doubtful then the conspiracy case will fail.
(ii) P.W.1195 has stated that his brother had converted to Islam. This is not rebutted in cross-examination. Further it is no ones case only Muslims were engaged to do domestic work at A1s house. In any event this witnesss brother was a convert. He too has claimed he is a convert. The fact that he had not made a public notification is not a reason to disbelieve his conversion. He has also said that his brother as closely acquainted with the accused and he too knew them. This may be one reason why he was accepted in A1s house. His statement that A12 sent him to Chennai in A1s house is also not countered. His case that after his brothers conversion he moved closely with some of the accused is not assailed. It is obvious that he had gained the confidence of members of this group sufficiently. So we believe his presence in Maroof Sahib Street house. Further P.W.1195 has given certain particulars, which only a person working in the house will know, like Bilal and Abu being the cooks. He has also mentioned that Tada Moosa A152 would drive A1 around. Specific details like these make his evidence credible. But yet we cannot ignore the fact that he was examined under S.164 and his statement was recorded. So we have to be doubly cautious and look for satisfactory corroboration.
(iii) When P.W.1300 was asked whether P.Ws.854 and 855 were really the PSOs for A1, his answer is that they were on duty on alternate days. He had also said that he had made efforts to get the records, but he could not obtain them. He has said that he got their duty details from the Assistant Commissioner, A.R., Chennai. It is his evidence that P.W. 854 was on duty on 7-2-98,amd PW 855 was on duty on 08-02-1998. This tallies with P.W.854s evidence that he was on duty on 01-12-1997 and again on 07-02-1998. If we work out the alternate day duty this fits in. Admittedly they were on duty on alternate days. Though P.W.855 has stated that it was he who told P.W.854 about the events that took place, it cannot be with regard to 07-02-1998, but it can only be with regard to some other day. So, for corroboration of P.W. 1195s evidence we only have to see P.W. 854s evidence for it was he who was on duty on 07-02-1998, as seen from his own evidence which is corroborated by P.W.1300.
(iv) In P.W. 854s evidence we find that A1 had a chocolate colour car 7975, that Afsar fixed the Maroof Sahib Street house for A1, that A1 had a blue Fiat MRT 3492, that A 1 had 2 landline numbers and one mobile phone, and that after June 97 the Fiat car was replaced by the Ambassador car. He has also given details of who was there in the Al Umma office, and who would accompany A1 etc. P.W. 855 also speaks of these details. We do not see material differences in this regard between the evidence of the 2 PSOs. So we accept that both were A1s PSOs. Now we will see whether P.W. 854 corroborates the evidence of P.W.1195.
PW1195:- Al umma office functioned there. ..PW152 drove the car. ..A152, A156 and A163 would always be with A1.. A2 Ansari came from Kovai on 7-2-98 to see A1. A3 of Madras, A4, A6, and Mujibur Rahman along with A2 spoke together with A1 PW854 :- PW152 took care of Al Umma office A152 A156 and A163 would always go in the car with A1.On 7-2-98 , A2,A4, A6 and Mujibur Rahman came from Kovai. A3 of Chennai had come. They were in conference for a long time in the office. A152, A156 and A163 were with them. They were discussing about revenge for what happened at the Kovai riots.
PW 1195 identified A1, A2, A3, A4, A6, and A152 in Court. He did not identify the other two. He was examined 6 years after the occurrence. PW 854 identified all the accused mentioned above in Court. He was examined 5 years after the occurrence. Considering the nature of their work, we need not doubt they knew the identities of the persons who visited A1 and the co-conspirators.
(v) The small contradictions between the statements during the investigation and the evidence in Court have been put to P.W.1300. But on reading the evidence as a whole it is believable. The PSOs have said they would not enter the house. So if the persons doing duty outside are not aware of the presence of household help it is quite natural. The police could have easily made the witnesses mention each others names. The evidence of P.Ws. 854 and 855 is also not parrot like repetition of the evidence of P.W.1195. The latter has mentioned the names of those who worked inside the house, while the former two have spoken of the persons who would always accompany A1 when he went out. So it hangs together very well. It is only P.W.1195 who has given the details of what was spoken. According to him they said that they should hit back for the deaths of the 18 Muslims, which took place after Selvarajs murder; and that they hatched a plot to kill the Hindus by means of bombs. According to him, they played the video films of the Dead Muslims. Only this witness gives these details. P.W.854 merely said they talked for a long time. Of course he has added the bit about revenge. But his duty was to stay outside so it is quite acceptable that he cannot give the details which P.W.1195 moving around inside the house would have heard. The evidence shows that the persons who came from Kovai, A3 of Madras, A1 and the persons who were constantly with him had participated in the conspiracy. It is difficult to get a more direct evidence of conspiracy, because conspiracy and secrecy are inseparable. We have already given our reasons for holding that the bomb blasts were the product of one single plot. So this evidence proves that what happened on 14-02-1998 was the result of this conspiracy. So the prosecution case of conspiracy on 07-02-1998 at Chennai with regard to A1, A2, A3, A4, A6, A152, and A156 and A163 is accepted.
II. PROCUREMENT:
The case of the prosecution is that the explosives were procured from Karnataka for which they heavily relied on the approver evidence of P.W.1293 Riaz-ur rehman. But he has not supported the prosecution in the witness box, and his evidence is of no use. The documents seized will be of no use even if they refer to sale of explosives unless they are connected unmistakably with the occurrence. The prosecution has not been able to prove that explosives sold by P.W.1293 were used for the occurrence.
The evidence relating to procurement from Kerala is even less incriminating.
The prosecution has not proved procurement.
III. TRANSPORT The case of the prosecution is that the explosives were transported by auto from Mysore then loaded in the two transport buses, then unloaded at Satyamangalam and sent to Coimbatore from there. We have dealt with the evidence in detail above. The eyewitnesses have uniformly spoken about A7 being there, and the activity of the accused at the bakery of A7s brother. But it is difficult to believe this evidence. The transport is said to have taken place in Jan/Feb 1998. We must remember that by this time the murder of Selvaraj had taken place and the murders of the 18 Muslim men. The bus route admittedly passed through several check posts. The witnesses had admitted that there was regular checking because of the presence of Veerappan. The case of the prosecution is that the accused brought the explosives in 4 or 5 consignments by buses in bulky bundles. It is unbelievable that the buses were not checked even once at the check posts. Further P.W.1126 Rama Konar had said that explosives cannot be transported in any vehicle. There should be no iron material near the explosives, since by friction or by a jerky movement they may catch fire. And gelatin and detonators will never be tied together as it would be highly risky. Only persons with expertise in that regard can load or unload the explosives. When this is the position the accused could not have casually transported the materials placing them near the drivers seat in front where the radiated heat is more intense. The accused would have known the high risk involved in such a casual approach. When the witnesses had asked the accused what was in the bags/boxes, the accused have said that they contained tamarind/soap. The evidence would indicate that they had unloaded the bags and handled high-risk materials as though they really contained only tamarind/soap. This is not normal human conduct and it is difficult to believe it. The evidence of the witnesses who have spoken of transport is not very believable.
IV. MANUFACTURE One of the tests for acceptability of evidence is whether when tested in the context of normal course of events, or probability of human nature it will pass the test. All the witnesses who have spoken of manufacture, were examined much later. They are not residents of the locality where the manufacture allegedly took place. They have given some reason or the other for being at the scene. This may be one reason for the delay in recording their statements. Had they been living in the neighbourhood the police may have examined them earlier. So the delay can be explained and accepted if their evidence is believable. But their evidence is difficult to believe. P.W.1124 had gone after the second show of a movie from the cinema hall to his house by a circuitous route, and had knocked on the door to ask for water. Even a person who is innocent of any illegal activity will be irritated and annoyed at being disturbed in the night. No one will go in the night and knock on the door for water. Further if really the accused were manufacturing bombs then the accused would not have opened the door to let a stranger in. P.W.1162s case of going to Tailor Rajas house for fixing a shop on rent, and seeing the illegal activity when the door was opened is also not natural. P.W.1164 had seen the manufacturing activity when he entered A5s house. This is also unreal for the same reason. P.W.1256 has gone to Tipu Nagar to buy car spare parts though they are available in his own area, and there, A6 opened the house and inside the witness saw the accused engaged in the illegal act. P.W.1158 had given loan to A9, which he went to demand. So that is how he claimed to have seen the manufacture. Manufacture of bombs for setting a city on fire will surely be done carefully, secretly and without fanfare. No one is likely to open the door to an unexpected visitor to expose his friends busying themselves with gelatin sticks, sulphur etc. It is very artificial. The evidence of the witnesses who have spoken of manufacture cannot be believed.
So the case of the prosecution with regard conspiracy barring the 07-02-1998 conspiracy, procurement, transport and manufacture is rejected. The intermediate events must have taken place because the object of conspiracy was achieved, but they have not been proved.
V. Next we will examine the evidence with regard to planting the explosives with reference to the relevant Crime numbers. (a) Gokul Medicals (SB Towers) Blast (Crime No.91 of 1998) (R1-Podanur Police Station)(A41 Monappa):
P.Ws.627 Sivakumar, 677 Rajamanickam and 709 Navaneetham are the witnesses. P.W.627 was doing coolie work in a dyeing unit. At that time, A13 of Karumbukadai Azad Nagar would frequently come in his auto to his shop. Both of them were acquainted with each other. He had also borrowed Rs.100/- from him, but he did not return it. On 14-02-1998, at about 3o clock he went to his house, where he saw A13 and two others talking to each other. A13 brought two blue jeans bags, which looked heavy, gave it to A41 and A42. There were two TVS-50s standing there. He told him to place it in S.B. Towers. A41 left the place. A13 told the witness that he would return the money in one month. Later, two more persons came. A13 again went inside, brought two blue jeans bags were heavy, called out one of them as Abbas and told him to keep it in Pongali Amman Koil. After that, the witness returned. When he heard about the blasts at both the places, he realised what had happened. He did not tell the police. He identified A13, A15 and A53. In cross-examination, he has stated that it was A41 who took three bags and that he was standing near A13 when the other two persons came.
(ii) P.W.677, P. Rajamanickam is a plumber. He and his friend P.W.709 were standing in front of SB Towers at 3.30 p.m. on 14-02-1998. At that time, he saw A41 who is already known to him and residing at Kurichi Weigh Bridge and A42 who resided in Karumbukadai Muthu Colony. Both of them came in TVS-50. A 41 drove the vehicle. They carried two blue jeans bags. After parking the vehicle in front of SB Towers, A41 took the jeans bag from A42, went near Gokul Medicals. A42 went near Gokul Stationery. After ten minutes, they came away. When they returned, the bags were not with them. A41 started the vehicle. A42 sat at the pillion and both of them went away. After that, the witness and his friend went to Ganesha Bakery to have tea. At that time, it was about 4o clock. There was a blast in SB Towers. Everyone ran in fear. Two men and a child died. Everyone kept saying that there is another bag with a bomb near Gokul Stationery. These two went and saw the bag left by A42. They realized that it was the bag brought by A41 that had burst. They went away. He identified only A41 in court.
(iii) P.W.709 is Navaneetham who went with P.W.677. He is an electrician who runs Chitra Sound Service. His evidence supports the evidence of P.W.677. He has identified A41 and A42.
(iv) From the cross-examination of P.W.709, it is clear that he knows of the topography of SB Towers. He has stated that he and P.W.677 are friends.
(v) In the cross-examination questions have been asked whether P.W.13 really drove an auto and whether there was proof that he drove an auto and regarding the words used by P.W.627 as to the instructions given by P.W.13 to the two accused. Further, questions have been asked of this witness as to whether P.Ws.677 and 709 looked at their watch after ordering tea and the fact that people ran away crying in fear. But there is no real cross-examination regarding these witnesses knowing the accused. In their evidence, they have stuck to their stand that they knew the accused. The reason for P.W.627 to go for the return of Rs.100/- lent by him to the accused is very weak for us to accept. So the case of the prosecution that A13 handed out the bombs is not proved. But we do not find any reason to disbelieve P.Ws.677 and 609. They knew the accused. They have explained their presence. They corroborate each other. The fact remains that the bag left in Gokul Stationery was defused on 15-02-1998. P.Ws.677 and 709 were examined on 20-08-1998 and their statements were sent to court on 28-09-1998. We have already dealt with the arrest and recovery regarding A41 and found that it is believable. Further in the observation mahazar, Ex-P220 relating to the bomb left in Gokul Stationery there is reference to the bomb in the bag. These are minor details, which cannot be stand-alone evidence to justify conviction. But these details support the eyewitnesses whose evidence is natural and believable. The prosecution case regarding A41 is accepted.
(b) Hindu Munnani Office Blast Cr. 125 of 1998 (B-9 Saravanampatty Police Station) (A46 Riyaz and A18 Ismail @ Kathikuthu Ismail):
P.W.424 Ramachandran is a member of the Hindu Munnani. Their organization had asked all the members to attend the meeting where Mr. L.K. Advani would be present. So, he was waiting for his friends near their office in Kannappan Nagar between 3:45 to 4:00 p.m. on 14-02-1998. He met P.W.425 Vasu and they were chatting. Then A46 a resident of Kurukku vattaram came that way in a cycle. A blue colour bag was hung on the handle bar. He passed them and then parked his cycle and was doing some repair work on the cycle. Then he rested the cycle near the lamppost and did something in the bag. The witness was waiting for P.W.319 Kumar. So they waited for a while. Then they went to a teashop, Kumar was there, and they told him and left. On the way P.W.361 M.G. Rajan told them that the meeting was cancelled because there was a blast. So they returned. There they learnt that the cycle brought by A46 had burst. He identified the accused and also A18 whom he had seen with A46. P.W.425 a welder is also a Hindu Munnani member. He had also seen A18 and A46 together often traveling on a scooter especially when he ahd gone to Karunanidhi Nagar. He too has supported what P.W.424 had said. In addition he said that the distance between the lamppost and the office would be 4 feet. P.W.319 had gone to have tea, so after waiting for a while they went to the teashop told him and left. He too has repeated that P.W.361 told them about the blast and they returned. He identified the accused. P.W.361 is the District Secretary of Hindu Makkal Katchi. He claimed that he is familiar with both the accused. According to him, the accused had earlier come on a scooter and gone past their office. Then he told P.W.319 that he was planning to go the meeting. At 3-45 pm when he went towards R.S.Puram people told him there was an explosion. So he told P.Ws.424 and 425 what he knew. When they returned to the office they found the cycle exploded in front of the lamppost. He also identified the accused. P.W.319 was in the office at 2 pm. At about 3-45a.m., he went to drink tea. When he returned he saw a cycle resting on the lamppost. He went inside the office. Later he heard the blast. He came out and saw the burst cycle. He lodged the complaint Ex P95. He has also referred to the victims by name. P.W.322 is Boopathy the witness to observation Mahazar Ex-P96. Ex-P96 indicates that the lamppost was only a few feet from the office, which supports the evidence of P.W.425. The witnesses also mention the names of Seethalakshmi and others who died or were injured. The defense said that this evidence is not believable since they are Hindu Munnani members they had enmity to the accused. But when the occurrence is in front of the office, only the members will be the natural witnesses. The defense said that P.W.319 had not spoken of the presence of P.Ws.424 and 425. But P.W.319 had said that he was in the teashop just before the occurrence, and he was sending all the members to the Advani meeting. So these two were among the many he would have sent, and the non-mention of their names is really not fatal. The documentary evidence supports the details regarding the location of the cycle, or the position of the lamppost with regard to the office as spoken in the oral evidence. We can also see how the evidence of each witness meshes with the other. P.W.319 had gone out to have tea. P.Ws.424 and 425 waited in front of the office for his return. It is then that they saw the accused park the cycle against the lamppost. They decided to go to the tea stall to tell P.W.319 that they were going. P.W.361, who had already gone ahead, had heard the news of the blast and was returning. Then he met the other two, and told them that the meeting was cancelled. So they returned and saw the blasted office and the burnt cycle. The sequence rings true. But at the same time, the mere mention of A18 as a friend of A46, or that they were seen together on the scooter frequently and even earlier on the fateful day is not enough to find A18 guilty. It may arouse very strong suspicion, but does not provide proof. The prosecution case against A46 is believable but the same is not proved against A18.
(c) National Travels Blast (Crime No 132 of 1998) (B4-Race Course Police Station)( A43 Abdul Razaak and A44 Azam ):
4 persons died and 14 were injured in this blast. The eyewitnesses are P.W.658 Sakthivel, and P.W.662 Sivasubramaniam. Both of them speak of the incident in almost the same way. Baiju(deceased) was sitting in the booking counter on 14-02-1998. Both the witnesses went to the office at 3-45 pm to see if there was any parcel for delivery. A43 came there with a blue jeans bag. The blue bag was kept on the table. Then A44 told A43 that since Selvi is waiting outside they should go out. A43 turned something in the bag and both of them went out. Both the accused would regularly book parcels with the Travels. Since at that time there was no work for them the witnesses also went out and were sitting in a stationary bus that was there. 5 minutes later, Baiju called to the witnesses. When they were getting down the bus, there was a blast. The buidings got damaged and Baiju and others were killed and some were injured. Both the witnesses ran in search of the two men since they felt it was their handiwork. But they could not capture them. Fearing disturbance they went away. On 16-02-1998 police examined them. 3 months later (i.e.08-05-1998) the police called them to B7 station. They identified the accused. The accused were arrested on 07-05-1998.
(ii) P.W.294, Dasarathan is the booking agent for National Travels. He has stated in his evidence that P.W.658 and 3 others were the loading and unloading workers. He has also stated that they had engaged P.W.662 to deliver the parcels. He has also referred to Baiju working at the booking counter. So this supports the evidence of P.Ws. 658 and 662 and also justifies their presence at the scene of occurrence. P.W.295 Balakrishnan was working along with P.W.295. He is the complainant. But he had gone to his house at 2:00 pm and returned only after the blast.
(iii) The main attack of the defence is that P.W.658 had said that the accused had come to book parcel to Chennai, while P.W.295 had said that their service was only on the Coimbatore-Bangalore route, and no other route. So they contend that the witness cannot be believed. Further other witnesses who were present were not examined as seen from P.W.1287 Chinnaswamy (SP)s evidence. It is not necessary that the prosecution should examine every one whose statement was recorded. It is true that this discrepancy regarding the bus route is there, but these are the embellishments that an ordinary witness gives to his evidence. If the main evidence rings true, then the value addition made can be ignored. But if there are serious doubts about the evidence, then the embellishment renders the evidence weaker. We have to see whether the embellishment affects the prosecution story as a whole (vide 2002 4 SCC 679 (Dharmendrasinh @ Mansing Ratansinh Vs. State of Gujarat). The small details given by both the two witnesses like reference to Selvi, and to Baiju calling them after they went out, and to the witnesses running after the accused, make the evidence natural. The evidence of P.W.295 reinforces their presence. Their familiarity with the 2 accused has been explained. This makes their identification of the accused acceptable.
The prosecution has proved the case against A43 and A44.
(d) C.M.C. Hospital Blast (Crime No.133 of 1998) (B4- Race Course Police Station)(A8 Siddiq Ali, A27 Musthafa @ Monappa):
P.W.726 Venkataraj is the eyewitness to the CMC Hospital Blast. P.W.726s mother Bhagavathi Ammal was a Cook in the Nurses Quarters in CMC Hospital. She died during the trial. On 14-02-1998 he went to the hospital with his friend Muralidharan(not examined) to bring his mother to take care of his sick child. It was about 2.30 p.m. and a white colour Ambassador was standing there. A8 got out of the car and A27 was there along with him. They did something to that car and went away. At about 4.15 p.m., the car exploded. The police had recorded his statement on 16-02-1998 and his mothers statement was also recorded on the same day. He identified both the accused. The difficulty in believing his evidence is the reason he has given for his presence. He claims he had gone there to bring his mother back because his son was very serious. Therefore, he felt that if he could bring his mother back, she could take care of the child. But if his intention was really to bring his mother back, he would not have taken his friend along with him in the moped. He would have gone alone so that his mother can sit in the pillion seat. Further, his evidence shows that he was waiting for his mother to come out for about an hour, But he has made no attempt to send a message to her to come urgently. Further he claims that, since she was getting delayed, he and his friend took their moped and went to Andal Tea Shop to have tea. It was at this juncture the explosion took place. In cross-examination, it is elicited that his child was critical and that he does not know the Nurses Quarters direct number. If the child was so critical, the father was hardly likely to have waited and lingered around drinking tea. A person who had got a parking space in the hospital parking lot was not likely to take his moped across a busy road to have tea in the tea stall located just opposite the hospital. The defence submitted that the reason why the witness had deposed that he took his moped along was because otherwise, the prosecution would have been asked to explain the absence of the moped at the scene of occurrence. We cannot brush aside this easily.
(ii) P.W.1081, V. Ramasamy who took up for investigation initially the case in Crime No.133 of 1998, prepared the rough sketch, Ex-P.1058. It has been elicited from him that no attempt was made by him to find out from P.W.726 who was the owner of the moped. Nor had he examined the three watchmen at the CMC Hospital, only because the real truth would come out.
(iii) P.W.302, K. Muthuswamy is the Head Constable who was on duty in the Outpost Police Station at the CMC Hospital on 14-02-1998. At about 4.15 p.m., there was a huge explosion at the main gate of the hospital. A white Ambassador car had exploded and a trainee nurse had died. In cross-examination, it had been elicited that there is discrepancy between his evidence in Court and his statement given under Section 161, Cr.P.C. regarding the place where the Ambassador car was parked. As regards this discrepancy in the place of occurrence P.W.1300 has been cross-examined and his answer is not satisfactory.
(iv) P.W.1100, P.T. Jayaprakash, the Asst. Director of Forensic Science, has referred to one Ambassador car Engine No.OEB/26C6642.
(v) There is no other witness to support the evidence of P.W.726. The friend Muralidharan has not been examined. The behaviour of the witness is unnatural and it is difficult to believe. We have elsewhere considered that not every human being is likely to react in the same manner and therefore witnesses may divulge what they saw to Court after much delay or witnesses may be silent without reporting to police when the police station was nearby. Such reactions would be believable and come under normal human conduct, because many persons are afraid to get involved in criminal cases, especially in cases of terrorism. But here, the witness is a father whose child was critically ill and his behaviour does not appear natural and it does not conform to normal human conduct. His presence is very doubtful. We have already rejected the case of the prosecution regarding A8 and conspiracy.
The prosecution has not proved their case against A8 and A27.
(e) RMS Blast (Crime No.139 of 1998) (B4-Race Course Police Station) (A45 Sait @ Santhu Mohammed and A26 Jahangir) :
On 14-02-1998, at 10.30 a.m., PW 663 Venkatesh saw A45 approaching in a red Yamaha motorcycle near Suresh traders at Al Amin Colony. At the same time A26 and Abdul Rahman @ Jeyakumar came there in a TVS motorcycle. A26 showed a black box that was in the motorbike to A45. Then he shut it. He showed a white button between the seat and box. Then they spoke to each other. Finally, A45 told A26 that he would keep it in post office and railway station. They exchanged vehicles. And A26 went away in the Yamaha while A45 went away in the Suzuki. The witness identified A26 correctly but wrongly identified A45.
(ii) P.W.1234 Karuppiah was driving his auto near Al Amin Colony on 14-02-1998 at about 10 a.m. He would often go to the areas near Ukkadam, Kottaimedu etc so he knew A26 and A45, He was near Suresh Traders after dropping a customer and waiting for another. He has also spoken of the two accused coming on a red vehicle each, about the black box and the white button. He has also mentioned the words spoken by A45 to A26 about keeping it in the RMS without fail. He has also spoken about the subsequent exchange of vehicles. He identified A45 but wrongly identified A26.
(iii) P.W.696 Dhandapani issued tokens at RMS parking area. On 14-02-1998, he and P.W.734 Abdul Khader were talking to each other. The peculiar behaviour of one person drew his attention. A person parked a red colour TVS motor cycle, told him that he will return only much later. So the witness asked him to park the vehicle in the second row. Then he saw the person leaving the vehicle with the token and the key. Again the person returned at 4:45 pm twisted something in the side box and went away. Again he left the key behind and went away. Later the cycle burst with a terrible noise. He identified A45 in the TIP and also in court.
(iv) P.W.734 also has spoken of being with P.W.696 at the relevant point of time. He has also spoken about the peculiar behaviour of the man with the red TVS. He identified A45 in the TIP and in Court. In fact, both these witnesses have commented that the accused was fair, tall, slim with a sharp nose.
(v) Regarding the above witnesses the defence raised several doubts. P.W.663 a building worker claimed he had gone to Suresh Traders only because someone told him that some building work was there. He had never been to that area before or after. Though he waited there he did not ask anyone regarding the work. Though he had said that one of the accused was a plumber and the other a second-hand articles dealer, it was suggested he had been briefed by the police. About P.W. 1234, the only attack made is that he had not identified whether the same box was found in the scene of occurrence and that the police did not know his address. Even P.W.1300 has not been cross-examined regarding this witness. So P.W.1234 is believed, it only gets more support from P.W.663. About the other two witnesses, the attack is that they did not have the counterfoil of the token, and the other witnesses at the stand were not examined. But we find that on the whole, the evidence of all the 4 witnesses is believable. If we dissect any evidence into small fragments, no ones evidence will be worthy of acceptance. We must see if it rings true, and if there are supporting materials. The former two witnesses, unconnected to each other had spoken in like manner of the exchange of vehicles .The latter two have also spoken of the accused planting the bomb in like manner. The reason for their remembering the incident is plausible. In one case, it is the exchange of vehicles and in the other, the fact that the person left the key in the vehicle could very well have stayed in the memory. Another feature is the colour of the vehicle, which is referred to by all the witnesses. Both of them had commented to each other that the mans behaviour is peculiar. So the fact they remembered his physical features is natural. We must remember that the blast had taken place soon after the accused left. We cannot accept that the prosecution has proved the charges against A26 merely on the evidence of the witnesses who speak of the exchange of vehicles. The one witness does not speak of the other. Their reason for being near Suresh Traders is also quite tenuous. Therefore, while both of them speak of the exchange in like manner it would not be correct to convict A26 only on the basis of their evidence. Further, only P.W.1234 of four witnesses had identified A26.
The planting of the bomb by A45 alone is established by the evidence. So the prosecution case is proved against A45 and not against A26.
(f) Gani Rowther Street Blast Crime No. 147/98 (B1-Bazaar Police Station) (A161 Mujibur Rahman):
According to the prosecution, A161 had planted a bomb at the Ramar Koil Street-Gani Rowther Street. The eyewitnesses are P.Ws.1050 Mohan and P.W.832 Kumaran. According to them, they had seen a young man about 22 years old pushing a pineapple cart at about 3:45 pm on 14-02-1998. In a short while, they heard a blast. Thereafter, this young man twisted something under the cart and then the cart exploded. P.W.1050 was injured. Out of fear both of them went away to Kerala. Both of them have mentioned the medical shop owner closing his shop. P.W.832 has referred to P.W. 1050 as the tiffin shop owner whom he saw closing the door. Their evidence is not fully convincing because they have stated that the shop owners had started closing the shops even before the bomb burst. This is natural, because the first blast had gone off at 3:45 pm, everyone would have been concerned with his or her safety. The witnesses admittedly closed their shops too out of fear, if so, their slow departure from the scene is hard to believe. But even if we accept their evidence to this extent and assume that out of curiosity they lingered on the scene, their inability to identify A161 in Court is the missing crucial link. No doubt both of them had identified them in the Test Identification Parade, but for us it is the evidence in Court that is vital. So the prosecution case can be accepted to the extent that a young man brought a pine apple cart to the scene of occurrence and twisted something under the cart and detonated it. That is all. The prosecution has not proved that it was A161 who was responsible for the Gani Rowther Street Blast.
(g) Rajendra Textiles Blast- Crime No.148/98 (B1 Bazaar Police Station)(A 34 Mohammed Rafeeq):
P.W.948 Kannan, P.W.979 Shahul Hameed and P.W.889 R. Kathirvel are the witnesses. The sequence of events goes like this the bag containing the explosives was handed over to the accused, the accused had taken it to the scene of occurrence and had planted it.
(ii) P.W.1300, the Chief Investigating Officer has stated in his cross-examination that he knew about P.W.889 only from other persons who are engaged in fruit vending business. So this would show that he was a fruit vendor who carried on his business there and explain his presence at the scene.
(iii) On 13-02-1998 at 8.30 pm, P.W.948, an auto driver went on a trip to Karumbukkadai, Saramedu from Gandhipuram. He dropped his customer and was waiting to see if he would get any other customer. A white Fiat car was standing there. He saw A28 and A6 with Tailor Raja. A28 had handed over 2 blue jeans bags to A34 and A35 who were known to him. But his familiarity with the accused is doubtful, as he has admitted in the cross examination that he has no connection with them. He identified only A6 and A 35 but not the other two in Court.
(iv) Next stage is the evidence of P.W.979. He has been examined under S.164. The statement is Ex-P.760. He is an auto-driver. His evidence is not clinching since he was unable to identify A34 or A35. But, according to him a boy asked him to go to Tipu nagar since two persons were waiting for him. He went there and found two men whom he had named as A34 and A35, and that they carried two blue jeans bag and one of them said that he would go to Rajendra Textiles. This was at 3.30 p.m. on 14-02-1998.
(v) The last stage is the evidence of P.W.889. He has referred to A34 as the plumber who belongs to Karumbukkadai Tipu Nagar. When the witness was selling fruits in front of Rajendra Textiles he saw A34 with a blue jeans bag. He saw A 34 entering Rajendra Textiles. A34 looked agitated, he came out leaving the bag behind and five minutes after that the place exploded. The defence pointed out to some weaknesses in his evidence, he could not give the address of the accused, there was a Court order of stay against street vending; he did not know the watchman of Rajendra Textiles. So according to the defense he could not have been there. But in crossexamination he had said, I saw the bomb blast at Rajendra Textiles. I was standing 20 feet away. I saw the jeans bag bomb burst. I saw A34 going inside. I saw him leave the bag behind. He has stood firm. Merely because there is a Court order of stay would not mean that street vending would cease. His evidence is believable. His identification of the accused is credible since he already knew him as the plumber. To support him we have the evidence of the other two witnesses, which refer to the blue jeans bag. P.W.979 s evidence would show that he went to Tipu nagar to pick up the two men and a person carrying a bluejeans bag from Tipu nagar went to Rajendra Textiles. This supports the evidence of P.W.889 who said that A34 is the plumber from Tipu Nagar who carried the jeans bag inside. We have also given our reasons for accepting his presence.
(vi) Ex-P154 is the FIR with regard to the Crime No.148 of 1998. The complainant is D. Francis Xavier (P.W.458). The complaint was given at 20 hours. The Magistrate received it on the next day (Sunday) at 10:00a.m. P.W.458 the salesman of Rajendra Textiles in his evidence has said that his owner Ravindran also came out on hearing the blast. His wife had got hurt and before admitting her in the Hospital, he had given the complaint. P.W.462, Ravindran is the owner mentioned above. He had given a complaint after two days because of the loss caused to his property and in his evidence he has stated that he realized that P.W.458s wife had died. On receipt of the FIR a case was registered in Crime No.200 of 1998. The defence has cross-examined P.W.1298, Varadarajulu with regard to the non-investigation of Crime No.200 of 1998. In fact the defence submitted that this would vitiate the entire case. But however, P.W.1298 has stated that because Crime No.148 of 1998 was being investigated he did not question why Crime No.200 of 1998 was not proceeded with. We accept this explanation.
The various links in the chain from the time the bags were handed over and transported in the auto may not be sufficient to nail the charge on A6, or A28 or A35, but definitely the evidence is complete as far as A34 is concerned.
The prosecution has proved the case against A34 Mohammed Rafeeq.
(h) Babulal Building Crime No.151/98 (B1 Bazaar Police Station) (A102 Salavudeen):
Ex-P794 is the seizure mahazar relating to Babulal complex, where according to the prosecution, A16 and A102 were arrested. There are several defects pointed out by the defence. Some of the police witnesses excluded the presence of P.W.1288. P.W.1041 chandrasekaran is the injured witness. Six muslim men were killed in that explotion. There was a report of the Revenue Divisional Officer by P.W.1073. The defence pointed out that since there was a R.D.O. enquiry, the case of the prosecution that there was an explosion in that bathroom cannot be believed. According to them, there is evidence to show that P.W.1288 was conducting inquest with regard to the C.M.C. blast. If so, he could not have been in two places at the same time, therefore, the entire prosecution case with regard to the occurrence relating to Babulal Complex is a false one. Ex.P.792 is the observation mahazar. It refers to Saaj Building to the east of Babulal Complex; refers to the toilet which stands north-south to the north of the corridor with an east facing wooden door and the dead bodies of the siz persons and indications of explotion on the wall (this was received by the court on 19-02-1998). The seizure mahazars are Exs.P.793 and P.794.
(i) P.W.1099 Rajamanickam accompanied P.W.1041 Chandrasekaran and others and at 4 a.m. on 15-02-1998 referred to the incident. According to him, at 11o clock, P.W.1288 Murali, P.W.1041 Chandrasekaran, P.W.1045 pachaiyappan, Sivasakthi selvam, Encoba and others went on a patrol duty and when they went to the terrace of Babulal Building, they saw some persons huddling in the bathroom and P.W.1288 asked them to come out, to which one person had said, Police dogs, get lost and threw a pipe bomb at them. P.W.1041 shot once, and he got injured in the explosion. When the torchlight was shone, A101, A102 and A103 came out of the bathroom with injuries. Then, he has referred to the arrest of A16 Abbas, s/o. Kaufathullah @ Zakir Hussain, who was hiding in a corner of the terrace. He identified both A16 and A102. In the cross-examination, he had said that P.W.1288 had arrested the accused between 4:30 and 5:00 a.m. and that they had returned to the Police Station at about 5:30 a.m. and that P.W.1041, Chandrasekaran did not come with them.
(ii) P.W. 1288 Murali has also mentioned the same persons mentioned by P.W.1099 as being members of the patrol party and since there was suspicious movement on top of the Babulal Building, they had gone there. He asked the persons who were hiding inside the bathroom to come out and when all of them said, Police dogs, get lost and threw a pipe bomb at them, P.W.1041 Chandrasekaran fired, but got hurt because of the bomb explosion. Then there was a blast in the bathroom. The three accused mentioned came out and then the other accused, including A16, who were hiding there were arrested. In cross-examination, he had said that it is not possible to say how long it took to seize the objections mentioned in Ex-P794 nor to say how long he was there. He had also stated that on his advice and supervision, his team effected the seizure and only after satisfying himself that it was alright that he had signed the seizure mahazar. He had also stated that it was not possible for him to prepare all the documents, nor to effect all the seizures, since at that time, he alone was conducting investigation for all the 19 bomb blast cases. He has denied that the accused A101, A102 and A103 were injured only because of police violence. He has denied that he was at that time in CMC Hospital conducting the inquest for Crime Nos.147 and 148 of 1998. According to him, at his instance the other policemen did it.
(iii) P.W.1041 Chandrasekaran had gone up Babulal building. According to him, he kicked the door and it opened and one person threw a bomb, so he shot. When he realized that they were trying to throw a bomb at him, he quickly closed the bathroom and the bomb exploded and there was injury at him and two others and this was about 4o clock in the morning. As regards the discrepancy with regard to the presence of P.W1288, we find that P.W.1041 had only said that he does not remember the Police Officer to whom he gave the information and that there were other policemen, but he cannot remember the name and he cannot remember whether the bathroom opened from inside or from outside and when he specifically asked about the presence of Murali, he has not denied that P.W.1288 was not there. He has merely said that he does not know if P.W.1288 Murali said that the persons inside the bathroom must be examined. He does not remember whether Inspector Murali came there or whether he took part in the ambush or whether Rajamanickam took part and that he cannot remember at the time of giving evidence whether they were with him in the patrol party. The answer is ambiguous. He has also said in the cross-examination that he did not attempt to arrest the accused who were there.
(iv) P.W.1045 is Pachaiyappan. He has mentioned only the presence of P.W.1041 Chandrasekaran and Sivasakthi Selvam. He has said that when the persons inside the bathroom attempted to throw the bomb, Chandrasekaran tried to shut the bathroom door and it was thereafter that the bomb exploded and they got injured. He has said that apart from the three of them i.e., himself, P.W.1045 Chandrasekaran and Sivasakthi Selvam, there was no one else.
(v) In cross-examination, P.W.1300 has said that P.W.1288 had arrested the three accused.
(vi) The question is, has the prosecution proved the presence of P.W.1288 at the scene of occurrence in Babulal Building
(vii) The evidence of P.W.1073 V. Natarajan, who is the Revenue Divisional Officer and his report Ex-P1023 would support the presence of P.W.1288 and though a strong objection was taken by the defence with regard to the this witness and the unsatisfactory manner in which the enquiry was conducted, we find in his evidence the explanation for not giving the final report. He had stated that because Justice P.R. Gokulakrishnan, the One Man Commission was appointed, he was asked not to give the complete report. He has also stated that the firing was necessary for self-defence. P.W.822, the Casualty Medical Officer, had also recorded in his Accident Register, the cause for the injury, which is in line with the evidence of P.W.1288 and P.W.1099. We have also seen that P.W.1041 Chandrasekaran is vague when he is asked to categorically stated whether P.W.1288 was there or not. Ex-P1644, the FIR shows, that the complainant is P.W.1288. It is received on the same day. This is the earliest statement and not Ex-D39. The defence also marked Ex-D29 where the building is referred to as Saaj Building and Ex-D39, which is the statement of P.W.1288. Here again, P.W.1288 has referred to all the members of the patrol party. Ex-P1288 was examined on 16-02-1998. We also find that the Judicial Magistrate had received this FIR at 9:00a.m., on 15-02-1998 which is a Sunday, but the Court seal is dated 16-02-1998. Therefore, though admittedly there are some discrepancies, we have no reason to disbelieve Ex-P1644, which records the earliest narration of the complaint. So we accept the presence of P.W.1288 at Babulal Building, since he is the complainant relating to that case which was given at 6:30 a.m., and received by the Magistrate at 9:00 a.m. The presence of A102 at the scene of occurrence is also reinforced by the injury. However, we have already, in our discussion relating to Arrest and Recovery disbelieved the recovery of the fingerprint of A16, which is too artificial. There are also major doubts with regard to his arrest in view of the discrepancy relating to the name of the father of A16. P.Ws.1041 and 1045 have not mentioned that some accused were hiding in the corner, so that benefit of doubt should go to A16. Consequently, the case against A102 is proved , but the case against A16 is rejected.
(i) Sir Shanmugam Road Blast Crime No. 152/98 (B2 RS Puram Police Station)( A 164 Mujibur Rahman):
The accused in this case, was a juvenile and has been released as stated earlier. So it is not necessary to deal with this Crime Number. We mention it because of the eyewitness PW 466 P. Vijayakumar. According to the defence, the prosecution had shown him as a list the witness both in this Crime Number and in Crime Number 153/98. Both have the same name. P.W. 1300 has denied it. In the TIP conducted for A32 Hakkim(Crime No.153 of 1998). P.W.466 identified him. So since it was not possible for him to be at Sir Shanmugam Road and West Sambandam Road at the same time, both the cases should be rejected. We will deal with this objection in Crime No.153 of 1998. A164 is already released.
(j) West Sambandam Road Blast Cr. No: 153/98 (B2 RS Puram Police Station)(A32 L.M. Hakkim A33 AbuThagir):
P.W. 450 Dhandapani an autodriver is a friend of P.W. 537 Venkataswami, who ran the Social Club. This witness has claimed he knew A32 who sold fish in the Ukkadam Fish market, because he went in P.W. 450s Auto when he went to bring fish. He also knew A32s friend A33 who was in iron business. On 14-02-1998, P.W.537 asked him if he would go with him to the Advani meeting. So he decided to take a day off and they went walking to the meeting via Sambandam Road. They heard that the meeting was cancelled. They saw the two accused with a fruit cart. Instead of selling fruit they were meddling with and twisting something underneath the cart. Then the accused left the cart and went away. Soon after, the cart exploded. Many died. 5 days later, the police examined P.W.450. This is his narration of the overt act. P.W. 537 has corroborated this evidence. He would further say that he used to buy fish from A32 and A33 would assist A32. That is how he knew them. He has also added that they commented to each other the peculiar conduct of the accused leaving the pineapple cart and walking away. A very natural response is elicited from this witness in cross-examination. He has stated that he thought that it was very odd and strange that an iron merchant and a fish vendor should be selling fruits. This lends weight to the witness remembering the accused and the overt act. P.W.448 Govindaraj was near Mattachalai Pallivasal when his TVS Moped broke down at about 2 pm. He saw A6 and the absconding accused Mujibur Rahman coming out of a house and handing over a box to be hidden amidst the pineapples on the pushcart. A32 and A33 also came out. A6 gave them instructions to park the cart near the meeting place. At that time he saw someone sitting in an auto nearby. He was examined months later. He identified the accused and A6. There is nothing to indicate that he knew the accused earlier. There are also discrepancies with regard to certain details between his evidence and statement before the police. But we can accept his evidence to a limited extent because of P.W.449 S.Ravi. He is an auto driver who plied his vehicle in the Karumbukkadai, Athupalam areas and was familiar with the accused. The tyre of his auto burst after he had dropped a passenger near Mattachalai Pallivasal. He called his owner and gave him the information and was waiting in the Auto. So he was the person seen by P.W.448. P.W.449 also saw A6 handing over two black boxes and fixed them underneath a pineapple cart. He gave instructions to A32 and A33. Sometime later P.W.449s owner came with the tyre and then he left the place. This witness identified the accused in Court. Though some discrepancies are found from the cross examination, the two witnesses to an extent corroborate each other. P.W.448s identification of the accused is unnatural, but his presence there is believable because he noted a man in a parked auto who is none other than P.W.449. So both their presence is established. The narration of what one saw corroborates the others narration regarding the accused handing the box and fixing it in the pineapple cart. In P.W.449s evidence, in cross-examination, he had said that he is not acquainted with the other. This was picked up by the defence to show that he could not have identified the accused without prompting by the police. But later in cross-examination he had said that he knew them because he was a frequent visitor in that area. So we must read the evidence as a whole. It only shows that though he knows them by sight, he is not acquainted with them. Further, this evidence is added proof that the blasts were a consequence of the conspiracy. A6 who was one of the conspirators on 07-02-1998 had handed out the explosives here. P.W.1300 has been cross-examined in detail regarding this Crime number. One defect pointed out is that the arrest is made in Crime No.151 of 1998, and not in Crime No. 153 of 1998. The arrest is attacked as false and the recovery. The suggestion that P.W.1300 has falsely implicated the two accused was denied. The discrepancy relating to the numbers is explained by the CIO that since Crime No.151 of 1998 was used as the base case the records show only that number. This explanation is accepted. The other defect pointed out is the identification of A32 by P.W.466 in the TIP conducted by P.W.1131 Srinivasan. The defence contended that P.W.466 could have witnessed the Sir Shanmugam Street blast or West Sambandam Street blast, but not both. The defence contended that since he had identified A32, when actually he is brought in as an eyewitness for Crime No.152 of 1998 relating to A164, we must reject the case against both the accused. He is unreliable and we have held so while discussing Crime No. 152 of 1998 but we are not relying on his evidence in this crime number. We have only evaluated the evidence of P.Ws.450 and 537 in this crime number. If they are believable, we do not think we should reject the case against A32, merely because the evidence of some other witness is false. In any event, the identification in TIP has limited weight. On reading the evidence with regard to A32 and A33 as a whole, we find that the evidence is acceptable. In particular P.W.450 and P.W.537 who are the eyewitnesses to the planting sound very plausible.
The prosecution has proved its case against A32 and A33.
(k) Bilal Estate Blast (Crime No.161 of 1998)(B1-Bazaar Police Station) (A 19 Makkan Jaffer, A 20 Mohammed Amjath Ali, A26 Jahangir ):
Of these 3 accused A20 has been released invoking the Juvenile Justice Act. The witnesses P.W.986 R. Murugan and P.W.984 N.Shiva have implicated the above accused. P.W.986 Murugan went with P.W.984 Shiva to Bilal Estate with regard to painting work on 15-02-1998. At about 1o clock, they saw A19 Makkan Jaffer A26 Jahangir and another twenty year old boy. A26 had a white polythene bag that had been rolled up. All the three came to the open space and after looking around, placed the bag near a thorny bush. The two witnesses went away because they were Al Umma people and they felt there would be trouble. On 17-02-1998, when four boys who were playing cricket in the field searched among the bushes for the ball and died of bomb blast, they realized it was the work of the above accused. P.W.986 identified A19 and A26, while P.W.984 only identified A26, but not the other. It is difficult to accept the evidence of these two witnesses. Both of them were allegedly short of cash and that is the reason why they had gone out looking for work the day after 14-02-1998, the day of the blasts. They have said that gone in search of work though they were afraid. During the whole of 15th, they did not get any work. For two days thereafter, they did not go for work. They also admitted that they have no acquaintance with the accused. We have doubts whether these two witnesses would have gone to Bilal Estate on the day after the bomb blasts. Their presence is doubtful. Their identification of the accused is doubtful. The persons responsible for the tragic young deaths in Bilal Estate deserve to be punished, but the case of the prosecution is not satisfactory.
The prosecution has not proved its case against A19 and A26. A20, the juvenile has already been released.
(l) RajaRajeswari towers Blast Cr. 195/98 (B3-Kattur Police Station): (A28 Sarfuddin and A40 Hakim)
The witnesses here are P.W.1169 Balakrishnan, P.W.728 Muthukrishnan, P.W.794 Harikrishnan, P.W.157 Sanaollah, P.W.158 Palaniappan, P.W.159 Noor Mohammed, and P.W.160 Saravanan. According to P.W.1169, a lottery ticket seller, he had seen A5, A6, A15, A24, A28 and A104 on the night of 13-02-1998 near Mattasalai Pallivasal at Saramedu. He saw a Fiat Car, an Ambassador car, 3 pushcarts and mopeds in front of A15s house. The accused were loading black boxes, and A15 had said, Be careful, it will explode. There is some doubt if he would have seen the accused in the dark well enough to identify them. His statement is that a light was burning in the house, and but for that he could not have seen them. We have our doubts whether he saw the A15 or whether he heard him speak. But his evidence that he saw these particular vehicles parked together supports the prosecution case because a Fiat car was used for planting the explosives in Rajarajeswari Towers Blast, an Ambassador was used in the CMC Blast, Push carts were used in West Shanmugam Road, and Gani Rowther Street, and Two wheelers were used in SB Towers and RMS blast. The odd grouping of these particular vehicles is a circumstance in support of the prosecution case. At the same time unless there is strong evidence to link A-15 with the vehicles, the mere parking of the vehicles in front of his house is not enough to link him with the crime.
(ii) P.W.728 and 794 had met at the towers. P.W.728 is a watch seller on the platform in front of Annapurna Hotel. P.W.794 his friend has a watch shop in Shop 6 Corporation Complex. Both their work spots are very close to the Scene of occurrence. They knew A40 as the person who collects money from the Muslim shop owners, and A28 as the Auto owner who would accompany him. At about 3.00 m on 14-02-1998 they had met at the towers. At 3:30p.m, they saw a blue Fiat-car bearing no. TNN 7942. It was driven by A28. A40 was with him. They parked the car in the basement. They heard a fearful blast near the TTC bus stand. (This is the National Travels Blast). So they ran upstairs and came out. Then they heard a blast in the basement. The place was covered with smoke especially around the Fiat car. They were examined 4 days later. In spite of detailed cross-examination, they have stood firm with regard to the crucial details. The defense has attacked their evidence that from where they stood on the steps they could not have seen the accused. But PW 794 has maintained his stand. The fact that they say they ran out when they heard the nearby blast, which was the National Travels Blast, makes their evidence natural. Since both of them carry on business nearby explains their presence. The reason they have given for their familiarity with the accused is also be accepted.
(iii) P.W.158 the accountant at the towers is the complainant. P.W.160 the Supervisor at the towers is the Mahazar witness for the seizure Ex-P33, and also the observation Mahazar witness Ex-P32.He also has stated that the explosion was from the car. The exhibits also indicate the said fact. The other two witnesses have been examined to implicate A9 with the car by proving sale of the car. But P.W.159 turned hostile. The link is not established.
(iv) However, we find the evidence of the eyewitnesses believable. The prosecution case against A28 and A40 is accepted. (m) BJP Election office Blast Crime No.196 of 1998(B3-Kattur) (A36 Noor Mohammed)
P.W.818 Nageswaran is a member of the BJP party. In February 1998, he was engaged in election work in the areas of Karunanidhi Nagar, Rathnapuri, Sivananda Colony and Kannappan Nagar. He would frequently go to Karunanidhi Nagar, so he knew the Al Umma members there particularly A36 Noor Mohammed and A38 Adipatta Babu. An office was fixed for election work near Ananda Bakery in Raju Naidu Street and Sivananda Colony. P.W.-205 Purushotaman is the Regional Secretary. The building belonged to one Loganathan. They were sending workers to the Mr. Advani Meeting. At 3-45pm, he and Saravanan(not examined) were having tea in Ananda Bakery. Then, A36 parked a cycle near the office. There was a blue jeans bag. He meddled with it. Then the witness and Saravanan went to the meeting in their TVS 50. They would not have gone even 200 metres ahead when they heard a blast. They returned and saw the mangled cycle. He, Saravanan and P.W.205 took the injured to the hospital. In cross-examination he had said that he and P.W.205 were talking to each other when A36 came. P.W.205 the person in charge, was also there, but in his evidence there is no mention of P.W.818. According to P.W.205, he was there near the office from 3:30p.m. He and Loganathan were talking to each other when the blast occurred. They helped to send the injured to the hospital. P.W.270 is the owner of Ananda bakery. He mentioned the presence of P.W.205, but not the presence of P.W.818. He also deposed that tea is not sold in his bakery. But there is a teashop near-by. The prosecution tried to take advantage of this piece of evidence to prop up their case. But neither P.W.205 nor P.W.270 has mentioned the presence of P.W.818. If P.W.818 had really seen the accused park the cycle at the scene of occurrence, P.W.205 who was there would have also seen him. These factors raise serious doubts about PW818s credibility.
(ii) There are other witnesses who have spoken of this accused. P.W.157 Sanaollah said that he sold a Fiat car MRD 3492 to one Noor Mohammed, but he has not identified the accused. P.W.159 who spoke of the car turned hostile. P.W.376 V.N.Rajan is the eyewitness for the rioting. We have not accepted his evidence as we will later explain in connection with A38. P.W.631 Kumar is the eyewitness for distribution of explosives. According to him, he saw A36, 37 and 38 on 14-2-98 at about 3-45pm, near Sanganur pallam. A37 gave A36 a cycle and placed a blue jeans bag. The witness was standing 1o feet away. A38 told A36, Be careful with the bag or else we will die But according to P.W.818 at 3-45 pm A36 was already at the BJP election office planting the bomb. So both have to be disbelieved In the result there is no credible evidence against A36.The prosecution case against A36 fails.
We have dealt with the accused who were said to have planted the bombs connected to the specific crime numbers, now we will deal with other accused not dealt with above.
(n) A5 Mohamed Basith @ Basith.
The witnesses who have been examined in regard to this accused are P.W.1132 has spoken of his part in the conspiracy at Kottai Thangappas sisters house, P.W.1259 of his part in the conspiracy at Olavakode. P.Ws.1158, 1162, and 1164 have spoken of his part in the manufacture of bombs at A9 residence, at Tailor Rajas residence and at Bismi Nagar respectively. P.W.1169 has spoken of his part in the transport of explosives. We have already given our reasons for not accepting the prosecution case with regard to the conspiracy at the above 2 places and with regard to transport and manufacture. So these witnesses do not help the prosecution. P.W.750 Devendran had said that he A5 was his tenant in Omalur. This is of no use. P.W.981 Shabir Ali had said that A5 wanted to sell an Ambassador car, which was parked at Omalur. Some amount was paid towards Advance. He once saw the accused in the company of A7 Kutty. By the time the RC book was made ready, the accused was arrested in connection with the Bomb blast. Then the prospective buyer backed off. This witness identified A5 and A7. P.W.837 Sivakumar is the witness who has attested his confession. According to him, the A5 led them to the residence of A9 Oom Babu. There is nothing to implicate A5 in the evidence of these witnesses. At best we can say that A5 was acquainted or closely connected with the accused in whose company was seen. The prosecution has not proved its case against A5.
(o) A7 Mohammed Ali Khan Kutty @ Kutty.
P.W.442 P. Devadasan had stated that one Kutty purchased an Auto KL 11 A 4628. But he did not identify the accused, nor did he produced the RC book. The vehicle bearing this number is the one in which the bomb was planted as per the evidence of P.W.466 Ravi, who is the eye witness for Sir Shanmugam Road Blast which we have already dealt with earlier. But that fact cannot improve the case of the prosecution since the connection with or purchase by A7 is not proved.
(ii) PW 958 is the VAO, whose evidence relates to confession, it has been dealt with in the Arrest and Recovery paragraphs. (iii) P.W. 961 is the bike mechanic at Sathyamangalam to whom A7 had given a motor cycle TN 37 H 9725 for repair. (iv) P.W.968 Alaudeen is the lodge owner where A7 stayed. (v) P.W. 975 Zakir Hussain spoke of the arrest. (vi) P.W. 992 Azmathullah made 40 tin boxes on the order placed by A7. (vii) P.W.1102,1103, 1172 and 1173 have been dealt with earlier while relating the evidence about transport. We have also given our reasons for not accepting the evidence of the witnesses who spoke about transport. (viii) PW 1124 is the witness who has spoken of manufacture. We have also given our reasons for not accepting the evidence relating to manufacture. (ix) PW 1166 Dakshinamoorthy is the mahazar witness for A7s confession. (x) These are the witnesses who have spoken about A7s involvement. The prosecution has wanted to put up a case against A7as one of the persons who made sure that the plot succeeded. May be he was, but the evidence is inadequate, and suspicion is not equivalent to proof. The evidence is not strong enough to sustain the case. The prosecution has failed to prove their case against A7 . (p) A 8 Siddiq Ali, A155 Mohammed Subair:.
A8, A155 and A156 were found with A2 at Rajamundry and arrested there. We have already given our reasons under the paragraphs dealing with Arrest and Recovery, why we have accepted the arrest and recovery regarding A2 and also that the confession of A2 cannot bind the other co-accused. So the arrest of the above accused along with A2 will not be sufficient to pin them with guilt. The arrest was after the object of the conspiracy had been fulfilled, so they cannot be implicated merely because they were found with A2 and A156 whose involvement in the conspiracy we have accepted as proved. There must be some other evidence to show that A8 and A155 were guilty of the offences charged. In the paragraph dealing with conspiracy we have held A8 and A155 not guilty, though the witnesses have mentioned the presence of these two accused in A1s house. Their presence is not mentioned by P.W.1195 on 07-02-1998 when the conspiracy was hatched. So without any other evidence to prove the charge, the arrest alone will not help. We have also held that the prosecution has not proved its case as against A8 with regard to CMC blast. The fact that A2 and A156 had left Coimbatore after the occurrence is one additional factor, which links the conspiracy with the blasts.
The prosecution has not proved its case with regard to A8 and A155 alone.
(q) A9 Oom babu. This accused is mentioned by many witnesses. The prosecution case is that he arranged for the cars either for transport or for planting. (i) P.W.528 R.K.Das had deposed that this accused purchased the Ambassador car KLT 5690 but he could not identify the accused and hence his evidence is not relevant. (ii) P.W. 113 Murugesan had spoken of the Fiat car MSQ 1347 M.O.1 in Crime No 170/98 . The police suspected that there might be a bomb in this car, hich was parked in Lokamanya Road. Later it was defused. He identified the car. (iii) P.W.114 C.N.Nagarajan merely said a car was parked. (iv) P.W.115 Shah merely spoke of an abandoned white Fiat car. (v) P.W.116 Abdul Majeeth said that a white Fiat car bearing No. MSQ 1347 was near his house around 6-30 or 7-00 a.m on 14-02-1998 thereafter it was not seen. (vi) P.W.120, a car broker had sold a Fiat car KLQ 6225 to A9 whom he identified in Court. But since there was balance amount due, he did not give the T.O. forms. He went in search of him at the address given, but it was a false address. When he tried to make enquiries with Nawab Khan who was there, he was threatened. He also identified the car and said that the name late had been changed. (vii) P.W.127 A. Santhu was the owner of the lorry which had the Reg No. MSQ 1347 which she sold later. (viii) P.W.128 Khader Mohideen a Deputy Transport Commissioner had said that the Above number was not given for a car. (ix) P.W.313 an Auto driver said that on that date the police had cordoned off the area because there was a care in which an explosive had been planted.
(x) P.W.1062 Senthil Kumar used to sell lottery tickets near the Auto Stand beside Ukkadam Bus Stand. That is how he knew A28 Sharfuddin and A62 Palani Babu @ Abdul Kareem. On a Saturday in the year 1998, by afternoon, his business was over. So he went by bus to R.S. Puram to attend the BJP Meeting. He got near the Top Notch Shop and while he was walking, A28 who was driving the white FIAT car bearing Regn. No. MSD-1347 came from behind him, turned into Lokamanya Street and parked the car near the Quality Ice Cream Shop. A62 was sitting next to him. He went near the car because he knew them. By that time, they hastily locked the doors of the car and walked along East Lokamanya Street. Because they had left, he returned near the dais. About 10 to 20 persons were gathered there. He asked them when the meeting would start, they said that it would be 3.30 p.m. So he went to his house to have lunch. He returned to the meeting place at 3.30 p.m. 300 persons were standing there. He stood away from the crowd. The white FIAT car was still parked there. A62 was trying to open the door of the car with great difficulty. He looked agitated. A62 could not open the door and therefore, he went away. The witness went close to the dais and sat there. At about 4o clock, there was an explosion at Sir Shanmugam Road. Within five minutes, there was another blast at West Sambandam Road. Only after reading the newspapers of the next day, he realised that the white FIAT car parked by A62 and A28 had burst. He identified M.O.1, the FIAT car as well as A62 and A28. His evidence is difficult to believe, because in his statement to the police, he had not stated that he went to the meeting after his work was over. He could not have gone near the dais because the evidence of all the police officers indicate that they had decided to provide high security for that meeting anticipating trouble. He had also admitted in his cross-examination that he did not know the time and other details of the meeting. It is also his evidence that his work will commence at 7.00 a.m. and be over by 11.00 a.m. A doubt is also raised with regard to his evidence since there is no bus stop near Top Notch Shop. We may have considered these infirmities as not material because of passage of time and witnesses tendency to embellish if there had been strong corroboration with regard to the vital aspect, but there is none. This is one of the links that the prosecution has tried to prove for implicating A9, viz., that he was the one who bought the car and therefore, the accused using that car for planting the bomb must have been with his knowledge. But as we have seen, there is very weak evidence even with regard to purchase of the car and there is equally weak evidence with regard to planting of the bomb, though according to the prosecution, the bombs placed in M.O.1 were diffused. We have also referred to A9 in our discussion of the evidence relating to transport and we have also rejected the evidence as insufficient. As in the case of A7, in the case of A9 also, the prosecution has attempted to establish a case against him as a person who had taken all the steps to ensure the success of the conspiracy. Perhaps that is correct, but the evidence in that behalf is insufficient, and the fact that a strong suspicion is created is not sufficient to find him guilty. So, the prosecution has not proved its case against A9.
(r) A10 Zakir Hussain @ Ismail @ Abdul Anus.
A10 is alleged to have taken part in the conspiracy at Olavakot, manufacture at A9s residence, Tailor Rajas residence and at Tipu Nagar. The witnesses are P.Ws.1259, 1158, 1162 and 1256. We have already found that the evidence. In this regard is not natural. The other witnesses are the Arrest and Recovery Witnesses P.W.1139 and P.W.1295, who have been referred to in the paragraphs relating to Arrest and Recovery. Without acceptable evidence regarding actual involvement in the offences charged, we cannot sustain the prosecution case only on the basis of arrest and recovery. The prosecution has not proved its case against A10.
(s) A11 Abdul Salaam @ Poochaikkan Salaam, A12 Aslam @ Tada Aslaam, A 60 Saleem @ Valarndha Saleem :
According to the prosecution, the accused were participants in the conspiracy at Maoof Rowther Street. The witnesses in this regard are P.Ws.854, 855 and 1195. P.W.1195 had deposed that he got acquainted with A11, A12 and A17 Zaffru, when A2 Ansari came to Thirumal Veedhi. But with regard to the conspiracy dated 07-02-1998 which is the main plank of the prosecution case, the names of the accused do not find a place. Of course, he had identified A11 and A12 in Court. But without any evidence regarding any overt acts as to conspiracy or manufacture or planting, the identification in Court alone will not help the State.
(i) As regards A60, it is only P.W.855, who has mentioned his name in his evidence, but he has referred to this accused along with others in the context of Al Umma office being at Maoof Rowther Street and the above-mentioned accused being with A1 Basha. When he refers to the conspiracy in February 1998, A60s name has not been mentioned. So witnesss identification of the accused in Court is of no use to the State for the same reason as above.
(ii) The other witness who has implicated A12 and A60 is P.W.1060 Ganesh Babu in Thirumal Veedhi. According to P.W.1060, one Ambassador car driven by A34 would be parked in front of Saj Building and Yakoob house. A11 and A17 would unload cardboard cartons from the car. When he asked A34 why they were doing this, he answered It is none of your business. Two days before the bomb blast A12, A19, A60 stayed in Yakoob s house. Then he realized that the accused were the cause for it. He had given his statement under S.164, so we are bound to assess his evidence with care and caution. He identified A12 and A60 and others in Court. The mere unloading of the cartons without anything to connect the car or cartons with explosive materials is not sufficient. At the most we might say that the movements of these accused were suspicious but suspicion is a poor substitute for proof. PW 1124 has implicated A11 and A60 with regard to manufacture. This has already been discussed and the evidence is rejected.
(iii) A11 is said to have loaded explosives at Satyamangalam and the witnesses in this regard are P.W.1102 Saravanakumar, and P.W.1103 Subramaniam. According to P.W.1102, on 05-01-1998, he saw the Ambassador car MDS 8315 near the Erode bus stand at Satyamangalam. A spectacled person was seated at the drivers seat. And two persons near him. Parcels were unloaded. He asked A7 S.A. Mohammed Ali Khan @ Kutty whose brother had a bakery near the bus stand, about this. A7 told him that they were his friends from Coimbatore and he had named A7, A11 and A17 and that the driver was A146. When the same unloading happened four or five times, the witness became suspicious and asked A7 again and he was told that they were tamarind parcels. Later after the bomb blast, he realized that the parcels were bombs. He identified the accused in Court. The witness was probably curious and suspficious about these activities and that is how he recognised them, but the evidence by itself is not enough to prove that the parcels contained explosives we need something more specific to prove that the parcels unloaded by them had contained explosives and not tamarind. The prosecution case is not satisfactorily proved with regard to A 11, A 12 and A 60.
(t) A13 Auto Siraj (i) P.W.385 Kesavan Kutty had said that on 14-02-1998, A13 and others had indulged in rioting, but he could not identify A13.
(ii) P.W.627 has already been dealt with in regard to the SB Towers Blast. He had lent Rs.100 to A13 a month before the date of occurrence and he went to A13s house at 3.00pm on 14-02-1998 ask for it. He saw A13 handing over the explosives to A41. This evidence is little weak. He got to know A13 only a month before the date. He had allegedly gone with his friend Parameswaran who has not been examined. He had lent the money without getting his address. When his evidence is uncorroborated these factors make him unbelievable.
(iii) P.W.875 Nanjappan is the attesting witness for his confession. (iv) P.W.979 Sahul Hameed had also spoken of A13 handing over the explosives to A34 and A35, but he could not identify the accused in Court. (v) P.W.1199 had implicated A13 and others in the conspiracy at Kottaimedu. His evidence has already been discussed in the paragraphs relating to conspiracy. His uncorroborated evidence is not worthy of acceptance. (vi) P.W.1262 Lakshmanaswamy is the officer who arrested him. These are the witnesses who have spoken of A13. (vii) The evidence is not sufficient. (viii) The prosecution has not proved its case against A13. (u) A16 Abbas @ Keelakkarai Abbas
We have already disbelieved his arrest in Crime No. 151/98. That was how the prosecution projected his involvement, that A16 was there in Babulal Place Terrace where the accused had explosives and he was arrested. But that has not been proved satisfactorily. The other witnesses are P.W.1124 M. Rajan and P.W.1164 Muthuswamy.
(ii) P.W.1124 M. Rajan and P.W.1164 Muthuswamy have spoken of A16 being involved in manufacture of bombs. But we have already given our reasons for rejecting the evidence relating to manufacture. The prosectution case is rejected as against A16.
(v) A17 [email protected] Syed Zafar Ahmed.
P.W.1195 who is the eyewitness for conspiracy on 07-02-1998 has mentioned that his brother was a friend of A17. But he did not implicate him as participating in the meeting on that date.
(ii) P.W.1060 also implicated A17. But his evidence has already been assessed with regard to A12 and A60 and we found that the mere loading and unloading of boxes without anything more cannot be enough to implicate him.
(iii) The evidence of P.Ws.1102 and 1103 has already been assessed with regard A7 and A11. A7, A11, A17 and others are supposed to have transported the explosives from Satyamangalam to Coimbatore. We have already rejected the evidence as insufficient.
(iv) P.W.1125 Selvam is the witness who has spoken of A17s partcipation in rioting on 14-02-1998. The occurrence had taken place at night. There were admittedly 100 Muslims rioting. Without any evidence to show that the witness was familiar with A17, his evidence and identification is unacceptable.
(v) These are the witnesses who have spoken of A17. P.W.818 Ananchaperumal is the witness for arrest and recovery. The prosecutions case against A17 is not proved.
(w) A21 [email protected] Amanullah (i) P.W.750 Devendran had said that A21 and A5 stayed in his house for sometime under a different name. He identified them in Court. There is nothing incriminating in his evidence. (ii) P.Ws. 854 and 855 have mentioned him in their evidence, which has already been discussed under the head of conspiracy. Their evidence only mentions his presence in A1s house, but does not fix him with any overt act. (iii) P.W.988 G. Jeyakumar, had employed this accused. He had given his name as Yasin. He could not identify A21. (iv) P.W.1139 Ramaswamy arrested the accused. (v) P.W.897 Rajendran is the recovery witness. He could not identify the accused. (vi) P.W.1219 R.Babu manufactures welding rod. He and his friend Santhosh P.W.1265 would go to Ukkadam, Kuniamuthur and Pothanur on work. He had seen A21 near the Al Umma office. On 14-02-1998, both of them went to attend the meeting. The platform was up at the junction of D.B.Road and T.V.Swami Road. Both of them were standing at the rear of the platform because they thought that Mr. Advani would come that way. So they were standing behind the dais. They saw A21 and two others there. They were suspicious because Al Umma members had come to attend the BJP meeting. So they went near them. Then A21 said to the other, Rafiq and I will go ahead, let Amjad Ali come behind. Amjad Ali be careful. If the police stop you switch on the bomb. They went to the southern side of the dais, and then disappeared in the crowd. The two witnesses stood there and later they heard the blasts at Sir Shanmukham Road and West Sambandam Road. He was examined 6 months later. He identified A21 alone correctly. (vii) P.W.1265 repeats all the above details almost entirely. But in spite of the 2 witnesses implicating the accused we cannot believe them. (viii) In the first place, there was must have been high security for Mr. Advani. Many of the police officers in their evidence had said that they were asked to be on special duty because of the meeting. Even other wise ever since the Selvaraj incident there had been trouble and undoubtedly Mr.Advanis security must have been high priority visit. In that situation the police would hardly have allowed anyone to go so close to the dais. The presence of the witnesses near the dais is unbelievable. The area would have been cordoned off. With the strong police presence the accused would not have uttered the words as spoken by the witness. In cross-examination, P.W.1219 had said that no policeman stopped him when he neared the dais. This is improbable. P.W.1219 also said that all shops were closed because of the meeting. There was no teashop near or behind the dais. But P.W.1265 in his cross-examination had said that there was a teashop five feet from the dais and that they had tea there. He had also said that police officers were standing in teams around the dais. On a total appreciation of the evidence we must say that the witnesses are unreliable. The improbabilities are too many. (ix) The prosecution had examined the above two witnesses to implicate A21 and also A20 Amjad Ali. But the latter has already been released because he was a juvenile on the date of the occurrence. (x) None of the witnesses examined with regard to A21 convince us about his guilt. The prosecution has not proved its case against A21. (x) A37 Basha @ Ozeer Basha. (i) P.W.631 Kumar is the witness relating to distribution and has already been dealt with in Crime No.196/98 as regards A36.
(ii) P.W.987 Ravi has spoken of rioting at the Madrasa Pallivasal in Karunanidhi Nagar. According to him, 100 Muslims were standing with deadly weapons and among them he has mentioned about 15 names. He has stated that A37 threw pipebombs. There is nothing to indicate he knew the accused earlier. In fact, though he mentioned 15 names he could not identify several of the accused named by him, though he identified A37. At night amongst a crowd of 100 men it is doubtful if anyone can be seen so clearly that he has identified years later. These are the witnesses for A37. The prosecution has not proved its case against A37.
(y) A38 Babu @ Adipatta Babu P.W.352 Sathar drove an auto bearing Reg No. TAG 2077. He knew A18, A38 A39, and A95. On 12-2-98 A38 called him to go to Ukkadam. There he saw the other accused. They loaded 2 blue jeans bag in the auto. A38 asked him to go to Karunanidhi Nagar.Then they unloaded the bags and went away. Though the auto charges were Rs 70, they gave him only Rs 50. He asked them for the balance when he saw them two days later. His statement was recorded under S.164 Cr.P.C. he could not identify the accused in Court. Though he has spoken of the blue jeans bags, and we find that witnesses have spoken of blue jeans bags in connection with bombs and in fact the bomb which was defused was found in the blue jeans bag in SB Towers, the link with the accused is absent.
(ii) P.W.376 V. N. Rajan is the witness for rioting at Karunanidhi Nagar on 14-02-1998 at 9.00 pm. According to him 100 Muslims had gathered with deadly weapons and explosives. He had noted the presence of atleast 35 persons and he identified many of them. According to him. A18 directed that the group should split into two. Among the persons, who went towards his house, A38s name is not found. In any event, it is quite impossible for a person to identify so many persons in a riotous crowd of 100 persons.
(iii) P.W.377 Radhakrishnan is also a witness for the rioting and for the same reasons as above we reject this evidence too.
(iv) P.W.631 Kumar has beenexamined with regard to this accused and distribution, and has already been rejected while dealing with A36 and A37. The evidence of none of these witnesses is strong enough. The prosecution has failed to prove the case against A38 (z) A39 M. Hakkim The only witness for this accused is PW 352. We have already found that his evidence is not good enough while discussing A 38. The prosecution has not proved its case against A39.
We have therefore, accepted the prosecution case with regard to the following accused, A2, A3, A4, A6, A152, A156 and A163(conspiracy) and A41(Cr.No.91/98), A46(Cr.No.125/98), A43 and 44 (Cr.No.132/98), A45 (Cr.No.139/98), A34 (Cr.No.148/98), A32 and 33 (Cr.No.153/98), A28 and 40 (Cr.No.198/98) and A102(Cr.No.151/98). We have rejected the prosecution case with regard to A8 and 27(Cr.No.133/98), A26 (Cr.No.139/98), A161(Cr.No.147/98), A19 and A26(Cr.No.161/98), A36 (Cr.No.196/98, A18(Cr.No.125/98), A16 (Cr.No.151/98) and also A5, A7, A155, A9, A10, A11, A12, A60, A13, A17, A21, A37, A38 and A39.
46. This has been a unique case for us in many ways. We heard it almost everyday for nine weeks. It was a real learning experience.
47. At first we would like to record our appreciation at the way the arguments in the case were put forth by Mr. P. Kumaresan, learned Public Prosecutor and Mr. Balasundaram, the learned Spl. P.P.(Trial of Bomb Blast Cases) who assisted him and by Mr. N. Natarajan, learned Senior Counsel, Mr. Gopinath, learned Senior Counsel, Mr. M. Venkataraman, learned Senior Counsel, Mr. Yashodvardhan, learned Senior Counsel, Mr. Jayakumar, learned counsel, Mr. Thirumalairaj, learned counsel, Mr. Xavier Felix, learned counsel, Mr. Sathiachandran, learned counsel, Mr. Raghavan, learned counsel, Mr. N. Manoharan, learned counsel, Mr. Jyothiraman, learned counsel, Mr.B.Mohan, learned Counsel Mr. Abu Bakkar, learned counsel, for the appellants and Mr. Rabu Manohar for the revision petitioners. The case had such a violent background, but the submissions were made by all with great responsibility and fairness and only with a view to assist us to arrive at the correct decision. The factual details were narrated correctly, and the relevant law and the decisions were explained clearly.
48. The learned Trial Judge had commented about the attitude of all the accused while the trial was on. We have extracted the comments earlier. The fact that the accused did not have faith in the system is a sad commentary on the state of affairs. The psyche of any minority group is easily injured. It was with great effort that the Trial Judge has tried to make them understand that only by co-operating in the legal process, they would benefit. During the trial, he appears to have made accommodation for their prayers and for breaking their fast during the Holy month of Ramadan. But, slowly they seem to have understood the need to cooperate in the trial. One of the witnesses had stated that on the night of February 14th, the police arrested many young Muslim men. We also saw in the video M.O.300 that young men belonging to the community were made to stand in rows of 8 or 9 and photographed. This was done only because they belonged to the community. It must have affected the innocent ones and diminished them very much.
49. But, nothing can justify what happened. We bemoan the violence and the futility of it all. After all, what did the plotters achieve by the deaths of Baiju and Seethalakshmi and the others? Was there any triumph in the senseless killing of young Abdul Rahman and his three young friends Mohammed Sunnath, Muhammed Subair, and Shamsudeen, who went in search of a cricket ball only to see death smiling amidst the bushes in Bilal Estate? It could not have given anyone any cause to cheer. We do not think even the plotters would have felt happy after the event. A great deal more can be achieved if the yuddha, the jihad, the crusade is launched on injustice and evils like poverty and illiteracy.
50. One of the causes for the tragedy was the death of the 18 young men. The community felt wounded and angered. But, to paraphrase the words of Robert Johnson, a professor of Justice and Law:- Violence is, A place where guns and bombs And hijacked planes Can be weapons of terror Wielded by the wounded Who make it their lifes work To annihilate innocents at will In numbers beyond comprehension.
51. And we come to the innocent victims who lost their loved ones, or their limbs or their properties. For them it was really a bolt from the blue, undeserved and incomprehensible. It is very natural for them to want those responsible for the carnage to suffer, like they did. But in the words of a Nazi victim, What the victims do does not change what happened. And the best thing about the remedy of forgiveness is that there are no side effects. And everybody can afford it.
52. We must mention the witnesses. They have been uniformly dubbed as obliged witnesses or partisan witnesses. It may not be a fair comment. The members of the civil society are very reluctant witnesses, though law obliges a citizen to report a crime when they see it. The reasons are many, and one is the lack of effective witness protection. In this scenario it is a wonder that so many came forward to give evidence especially in the context of this case. A senior police officer of Tamilnadu, paying his homage to the police officers who died in the Taj terrorist attack in Bombay, had written in a recent article, that no such crime takes place without local support. So the local people will know and the police should strengthen their effort in this regard. He has also stressed the need for multi disciplinary cooperation and multi-pronged protection against recurrence of such incidents.
53. Before we close, we would refer to the policemen. According to the defence there were many lapses in the investigation. They may have had warnings about some impending event, but they were clearly taken aback by this. In the face of personal danger, pressure and constraint of time the police force had done their duty, both during the investigation and at the trial. That is not all. We noticed that a few senior police officers, while giving evidence, had declared their religion was Indian, and regarding their caste too they said Indian or wrote a blank. We were quite moved when we noticed this especially in the background of this case and in the context what is happening around us in this country. When the policemen are found guilty of lapses, we condemn them loudly. We thought then, it was our duty to commend those officers for this spirit. We hope that soon, this spirit will spread to every citizen of this great country. Then occurrences such as this bloody horror will never recur.
54. And we pray with Gurudev Tagore, Where the world has not been broken into fragments, by narrow domestic walls;
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Into that heaven of freedom, my Father, Let my country awake. 55. In the result, (i) the appeals filed by A2, A3, A4, A6, A28, A32, A33, A34, A40, A41, A43, A44, A45, A46, A102, A152, A156 and A163 are dismissed.
(ii) The appeals filed by A5, A7, A8, A9, A10, A11, A12, A13, A16, A17, A18, A19, A21, A26, A27, A36, A37, A38, A39, A60, A155, A161 are allowed and they shall be released forthwith unless they are required to be in custody otherwise.
(iii) The appeals filed by A42, A51, A52, A53, A54, A55, A56, A60, A63, A101, A103, A153, A160 and A162 are closed as they are released on 15-09-2009 as per G.O.Ms No 792 dated 14-09-2009. (iv) The appeals filed by A20 and A164 stands closed as they are also released as per order dated 05-10-2009 in M.P.Nos.1 & 2 of 2009 in Crl.A.No.1111 of 2007 under the Juvenile Justice Act. (P.S.D.,J.) (M.S.N.,J.) 18-12-2009