IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27-06-2006 CORAM: THE HON'BLE MR.JUSTICE M.KARPAGAVINAYAGAM AND THE HON'BLE MR.JUSTICE AR. RAMALINGAM CRIMINAL APPEAL NO.753 OF 2001 1. Abdul Kareem @ Palani Babu 2. Abdul Kayum @ Chellappa 3. Sulthan Nazar 4. S.A.Mohamed Ali Khan @ Kutty 5. Mohamed Bashith @ Bashith 6. Abdul Ozir @ Ozir 7. Samjith Ahmed 8. Shajahan @ Yusuf 9. Jahangir @ Jahir .. Appellants Vs. Inspector of Police, CB CID SIT, Coimbatore. .. Respondent Criminal Appeal under sec.374 of Crl.P.C. filed against the judgment dated 15.5.2001 made in S.C.No.1 of 2000 on the file of the Court of Sessions Judge for Bomb Blast Case, Coimbatore. For Appellants : Mr. S. Xavier Felix For Respondent : M/s. K.Doraisamy and S.Jayakumar, Public Prosecutors for Mr. E. Raja, Addl.P.P. ---- https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T M. KARPAGAVINAYAGAM, J. A1 to A7, A9 and A10 are the appellants. They have been convicted for the offences under Section 120(B)(1) read with 302 and 307 of I.P.C., under Sections 3, 4(b) and 6 of the Explosive Substances Act, 1908 and under Section 4 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992. Challenging the same, they have filed this appeal. 2. The short facts leading to the conviction are as follows: (a) On 29.11.1997, one Selvaraj, Traffic Constable, was murdered at Ukkadam, Coimbatore, in retaliation of the demolition of Babri Masjid at Ayodhya on 6.12.1992. In reaction to the said incident, 18 Muslims were murdered on 30.11.1997 and 1.12.1997 at Coimbatore. (b) In order to avenge the death of 18 Muslims, all the accused conspired together in between the third week of August and 3rd December,1997, at Coimbatore District of Tamil Nadu State and Mysore District of Karnataka State to procure explosives from A11 Riyaz Ur Rahman (approver) through his employee A8 Mohamed Dastagir. Accordingly, A7 Samjith Ahmed procured the explosive materials and handed over to A4 Mohamed Ali Khan at Samraj Nagar, Karnataka. A4 Mohamed Ali Khan transported the same from Samraj Nagar to Sathyamangalam and handed over to A9 Shajahan @ Yusuf at Sathyamangalam. A9 Yusuf kept the explosives at the office of Arivoli Iyakkam, as per the advice of A12 Mujibur Rahman, who is absconding. Then, the explosives were converted into bombs by A5 Mohamed Bashith and A10 Jahangir. The explosives were further handed over to A6 Abdul Ozir. Thereupon, A6 Abdul Ozir handed over the same to A1 Abdul Kareem on 01.12.1997. A1 Abdul Kareem, along with A2 Abdul Kayum and A3 Sulthan Nazar, kept the same at the Gym on 2.12.1997. On 3.12.1997 at about 4.00 p.m., the same was taken out from the Gym and kept in the cycle belonging to P.W.6 Manikavasagam. At about 8.15 p.m., A2 Abdul Kayum and A3 Sulthan Nazar took the said cycle and rolled it up to the scene of occurrence at U.K.P.N. Shopping Complex, Udumalpet. A1 Abdul Kareem also went along with them. Having kept the cycle near the wall of the complex, A1 put a bag containing bombs on the cycle handle bar and left. Then, within a few minutes, the bomb exploded, as a result of which, Pappammal, Nachammal and Vijayalakshmi, who were standing near the fruit stall of the complex, sustained injuries and died. The explosion caused injuries to four other persons namely, P.W.9 Latha, P.W.10 Gandhimathi, P.W.11 Satish Kumar and P.W.12 Raju. It also caused heavy damage to the complex premises. (c) On 03.12.1997 at about 10.30 p.m., P.W.3 Sivaraj, fruit stall owner, went to Udumalpet Police Station and lodged a complaint. P.W.60, Sub-Inspector of Police, registered the complaint for the https://hcservices.ecourts.gov.in/hcservices/ offences under Sections 302, 307, 324 and 427 IPC read with Section 3 of Explosive Substances Act. (d) On the same day at about 10.45 p.m., P.W.62 Inspector of Police took up investigation. He went to the scene of occurrence, prepared observation mahazar Ex.P3 and drew rough sketch Ex.P82. (e) On 4.12.1997, P.W.62 Inspector of Police conducted inquest over the dead bodies of the deceased Pappammal, Nachammal and Vijayalakshmi. He handed over the dead bodies to P.W.40 Doctor for conducting autopsy. (f) P.W.40 Doctor conducted autopsy on the dead body of Vijayalakshmi and P.W.41 Doctor conducted autopsy on the dead bodies of Pappammal and Nachammal. Ex.P48 is the post-mortem certificate issued by P.W.40 and Exs.P50 and 52 are the post-mortem certificates issued by P.W.41. The doctors opined that the deceased would appear to have died of shock and haemorrhage, due to multiple blast injuries. (g) Similarly, the injured persons, namely, P.Ws.9,10,11 and 12 were treated by Doctors, P.Ws.39, 40, 41 and 42. (h) On 8.12.1997, P.W.62 arrested A2 Abdul Kayum @ Chellappa and A3 Sulthan Nazar and recovered M.Os.3 and 4, namely, bunch of keys and banner with writings, on the confession of A2. On 17.2.1998, A2 and A3 were taken into police custody and examined. (i) On coming to know of the involvement of A1 Abdul Kareem @ Palani Babu, he was arrested by the Kolangodu police under Section 41 (1) (a) Cr.P.C on 16.2.1998 and the information was conveyed to the Tamil Nadu Police. Then, P.W.62 took A1 into police custody and interrogated him. (j) On 4.3.1998, a requisition was filed for conducting identification parade in respect of A1. On 5.5.1998, identification parade was conducted by P.W.44 Judicial Magistrate, in which A1 was identified by P.Ws.1, 2, 4 and 5. Exs.P54 to P57 are the identification parade proceedings. (k) When P.W.62 came to know that A4 to A6 were remanded in some other case, he filed an application for police custody. Accordingly, on 3.8.1998, police custody was granted for A4 to A6. (l) On 21.8.1998, the case was transferred to the file of CBCID Special Investigation Team. (m) On 10.9.1998, P.W.63 Inspector of Police, CBCID continued the investigation. On 15.9.1998, A7 and A8 were taken into police custody. On 20.10.1998, A9 and A10 were taken into police custody. (n) On 19.12.1998, a requisition was given to P.W.47 to accord consent to prosecute A1 to A12, under Section 4(1) of Explosive https://hcservices.ecourts.gov.in/hcservices/ Substances Act. Accordingly, P.W.47 accorded consent to prosecute the accused. (o) On 27.12.1998, a final report was filed in P.R.C.No.1 of 1999. A11 and A12 were absconding. (p) In the year 2000, the case was committed to the Sessions Court at Coimbatore and it was taken on file in S.C.No.1 of 2000. (q) During the pendency of the matter before the Sessions Court, on 2.3.2000, A-11 Riyaz Ur Rahman was arrested. (r) On 29.5.2000, statement under Section 164 Cr.P.C. was recorded from A11. Then, pardon was granted to him on 30.5.2000. He was treated as witness. A12 was absconding. So, the trial was continued as against A1 to A10 alone. (s) During the course of trial, on the side of the prosecution, P.Ws.1 to 63 were examined, Exs.P1 to P89 were filed and M.Os.1 to 32 were marked. (t) When the accused were questioned under Section 313 Cr.P.C., they denied their complicity in the crime. On their behalf, Exs.D1 to D4 were marked. (u) The trial Court convicted A1 to A7, A9 and A10 for various offences and acquitted A8. Challenging the same, the accused, who have been convicted, have filed this appeal before this Court. 3. Mr.S.Xavier Felix, the learned counsel for the appellants, took us through the entire evidence and pointed out various discrepancies in the materials placed by the prosecution and contended that the case of prosecution bristles with various infirmities and consequently, all the accused are liable to be acquitted. 4. On the other hand, Mr.K.Doraisamy and Mr.S.Jayakumar, the then learned Public Prosecutors, while justifying the judgment of the trial Court, would contend that there are enough materials to find the accused guilty of the offences referred to above and as such, no interference with the finding by the trial Court is called for. 5. We have heard the submissions made by the counsel for the parties and gone through the records. We have also given our anxious consideration to the respective contentions. 6. The case of the prosecution in short is as follows: "As a reprisal to the demolition of Babri Masjid at Ayodya and also to wreak vengeance to the death of 18 Muslims, the accused 1 to 10 along with the absconding accused by name Mujibur Rahman and the approver by name Riyaz Ur Rahman (P.W.61) hatched a criminal conspiracy in between 3rd week of August, 1997 and 3rd December, 1997 https://hcservices.ecourts.gov.in/hcservices/ at Coimbatore District and in pursuance of the said conspiracy, A7 Samjith Ahmed, who had no licence to deal with the explosive materials, purchased explosive materials from A8 Mohamed Dastagir, the Manager of Riyaz Ur Rahman, the approver, who is the owner of the Indian Explosives Corporation at Mysore and handed over the same to A4 Mohamed Ali Khan @ Kutty to take it to Samraj Nagar from Mysore and from Samraj Nagar to Sathyamangalam, who in turn, handed over to A9 Shajahan @ Yusuf, at Sathyamangalam and in turn, A9 Yusuf handed over the same to A12 Mujibur Rahman, the absconding accused and the same was converted into bombs by name A5 Mohamed Bashith @ Bashith and A10 Jahangir @ Jagir and the same was further handed over to A6 Abdul Ozir @ Ozir and in turn, A6 handed over to A1 Abdul Kareem @ Palani Babu on 1.12.1997. Thereupon, A1 Abdul Kareem took the improvised bombs with time-device to Udumalpet on 2.12.1997 and handed over it to A2 Abdul Kayum @ Chellappa and A3 Sulthan Nazar and A2 and A3 kept at the Gym run by them. On 3.12.1997 at about 4.00 p.m., A1 to A3 took out and placed the same in a bag and brought the same with the cycle and A1 in between 8.15 p.m. and 8.30 p.m. parked the cycle after putting the bag in the handle bar in U.K.P.N. Complex, Udumalpet, which belongs to U.K.P.N. Kandasamy and left. At about 8.30 p.m., the bomb exploded. As a result, three women, viz., Pappammal (D1), Nachammal (D2) and Vijayalakshmi (D3), who were taking juice in a fruit stall, died and four persons viz., P.W.9 Latha, P.W.10 Gandhimathi, P.W.11 Satish Kumar and P.W.12 Raju sustained injuries and further damage caused to UKPN Complex premises to an extent of Rs.2,27,500/-." 7. On the basis of the materials projecting the case of the prosecution, as indicated above, the trial Court convicted the accused except A8. 8. A8 Mohamed Dastagir, the Manager working in the Indian Explosives Corporation owned by Riyaz Ur Rahman, the approver, has been acquitted. Riyaz Ur Rahman, originally arrayed as A11, was made as an approver and examined as P.W.61. 9. The first charge relates to the offence under Section 120(B) I.P.C. As per this charge, all the accused including the approver (P.W.61), A8 (acquitted accused) and A12 (absconding accused) hatched a conspiracy to procure explosive substances from A11 through A8 and in pursuance of the same, they caused explosion in various places for causing death of the persons in retaliation to the demolition of Babri Masjid at Ayodya and to the death of 18 Muslims. 10. While dealing with the said charge, it would be better to refer to the judgments of the Supreme Court, wherein the guidelines have been given for appreciation of the evidence relating to the charge of conspiracy. 11. In SHIVANARAYAN LAXMINARAYAN JOSHI v. STATE OF MAHARASHTRA (A.I.R.1980 S.C.439), it is held as follows: https://hcservices.ecourts.gov.in/hcservices/ "A conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design." 12. In STATE (DELHI ADMINISTRATION) v. V.C. SHUKLA (A.I.R.1980 S.C.1382), it is observed thus: "In order to prove criminal conspiracy which is punishable under Section 120-B, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence." 13. In K.R. PURUSHOTHAMAN v. STATE OF KERALA (2005(12) S.C.C.631), the Apex Court has held as under: "While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible." 14. From the above decisions, it is clear that it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence and that each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a complete chain of events. 25. Bearing in mind the above principle, let us now deal with the circumstances proving the charge of conspiracy. 26. The case of the prosecution is this: "In pursuance of the conspiracy that A1 to A12 hatched, A7 Samjith Ahmed purchased explosive materials from A11 Riyaz Ur Rahman, the approver (P.W.61) through A8 Mohamed Dastagir and handed over the same to A4 Mohamed Ali Khan @ Kutty, who in turn passed on to A12 Mujibur Rahman through A9 Shajahan @ Yusuf who made the materials as https://hcservices.ecourts.gov.in/hcservices/ improvised bombs with time-device with the help of A5 Mohamed Bashith @ Bashith and A10 Jahangir @ Jahir. Thereafter, it was passed on to A6 Abdul Ozir @ Ozir, who in turn handed over the same to A1 Abdul Kareem @ Palani Babu, who caused explosion in the UKPN Complex, Udumalpet, with the assistance of A2 Abdul Kayum @ Chellappa and A3 Sulthan Nazar." 27. Let us now see the chronological factors and evaluate the available materials. 28. P.W.61 Riyaz Ur Rahman, the approver, who was originally arrayed as A11, is owning an Explosives Corporation having a licence to deal with explosives. He used to get supply of explosives from P.W.36 Ramkumar who is running an explosive company in Bangalore. Between August and December 1997, the conspiracy was hatched by A1 to A12. In pursuance of the conspiracy, the accused wanted to procure the explosive materials from A11, the approver (P.W.61). 29. According to the prosecution, in the 3rd week of August, 1997, A7 Samjith Ahmed came to the shop of P.W.61 and obtained the supply of explosives from his Manager A8 Mohamed Dastagir. The same was packed in the shop situated at Mysore. After packing, the parcel was taken to the private bus stand at Mysore. P.W.38 Yejas Basha @ Mubarak, the auto driver used to take those packed materials from the shop to the bus stand in his auto. Thereafter, he used to unload the explosive substance in the SRT Bus Service. A7 Samjith Ahmed unloaded the parcel from the auto rickshaw driven by P.W.38 and kept the parcel behind the seat of the driver, P.W.32 Chinnasamy in the bus. The luggage was loaded in the bus as if the packed bag containing soap boxes and tamarind boxes. A7 Samjith Ahmed travelled in the bus along with the luggage up to Samraj Nagar from Mysore. 30. For the purpose of proving this aspect of the matter, the prosecution examined P.W.61, the approver, the owner of the Indian Explosives Corporation, P.W.38, the auto driver and P.W.32, the bus driver. Though the said owner was arrayed as A11 as he was one of the conspirators, on the application filed by the prosecution, the said A11 was made as an approver and was examined as P.W.61. 31. Strangely, all the accused including the approver were committed by the committal court to the Sessions Court. Only the Sessions Court granted pardon under Ex.P80 and he was made as a witness. Ultimately, he was examined as P.W.61. P.W.61, the approver was examined to speak about the conspiracy hatched by all the accused. Curiously, he did not whisper anything either in his statement (Ex.P80) made before the Judicial Magistrate or in the deposition before the Court relating to conspiracy. As a matter of fact, he does not speak anything about the conspiracy nor his participation in the conspiracy. His evidence would indicate that he never met A7 personally, but A8 told him that A7 was a quarry worker and he supplied the materials to A7 through bills. Though Ex.P81, the written statement filed by A11 before the Magistrate before grant of pardon, would indicate that he has mentioned in that that he knew A7, https://hcservices.ecourts.gov.in/hcservices/ the said statement would not be of any use to the prosecution, since he stated in the deposition that he never gave the said written statement Ex.P81 to the Judicial Magistrate and only at the instance of P.W.63, the Inspector of Police, he put his signature in Ex.P81. Therefore, the evidence of P.W.61, the approver and his statement in Ex.P80 pardon proceedings do not connect P.W.61, who was originally arrayed as A11, with the crime and also did not say anything about the involvement of any other accused in the alleged conspiracy. As such, the perusal of the deposition and Ex.P80 pardon proceedings would clearly indicate that there is no material placed by the prosecution with reference to the conspiracy among A1 to A12. 32. As indicated above, the bills recovered from A8 Mohamed Dastagir, who is the Manager of the approver P.W.61 Riyaz Ur Rahman, would clearly show that it was sold by A8 on behalf of P.W.61 who is a licensed dealer in explosive materials and this was informed by A8 to P.W.61 immediately thereafter. According to P.W.61, he being the licensed dealer can sell some limited quantity to the retailer with the licence. The sale through bills to A7 has been admitted by A8 in his statement under Section 313 Cr.P.C. Therefore, the sale of explosive substance by A8 to A7 cannot be said to be in pursuance of the conspiracy hatched by all the accused. On the other hand, from the evidence of P.W.61, it is clear that the sale was made by A8 to A7 after he was made to believe that the explosive materials were purchased by A7 for quarrying purpose. As such, the approver neither stated that he involved in any crime nor indicated that he was aware that others indulged in the crime. Moreover, it is to be noted that A8 has been acquitted by the trial Court. 33. P.W.38 is an auto driver. He has been examined to speak about the fact that A7 Samjith Ahmed purchased explosive materials from A8 Mohamed Dastagir at Mysore and loaded in the auto driven by him through which the explosive substance was taken to SRT bus. It is true that P.W.38 had stated that the packing materials were taken from the shop of A8 and brought to SRT Bus Stand. However, he stated in the chief examiantion that he did not know as to whether the packing contained any gelatine materials. At the same breath in cross-examination, he improved his version by stating that he went inside the shop of A8 and assisted in packing the gelatine materials. According to him, at the time of packing, P.W.61 was present and he introduced him to A7. However, this is not supported by P.W.61. On the other hand, P.W.61 would say both in Ex.P80 pardon proceedings and in the deposition before the Court that he did not meet A7 in person. 34. The next witness who speaks about the transport of the explosive materials from Mysore to Samraj Nagar is P.W.32, the Driver of the bus. According to him, the parcel was put behind his driver seat and he was informed by A7 that the parcel contained only soap bars and tamarind bars. In the cross-examination, he admitted that normally, the luggage would be kept at the top of the bus only and not behind the driver seat. P.W.31, the Driver was unable to say whether the luggage charge was collected or not. The person who is to https://hcservices.ecourts.gov.in/hcservices/ verify about the luggage and collection of charge is only Conductor. Therefore, the Conductor is a proper witness to speak about the luggage being loaded in the bus. Admittedly, the Conductor was not examined. Though the alleged purchase was in the year 1997 and A7 was arrested on 28.2.1998, these witnesses (P.Ws.32 and 38) were examined only on 28.11.1998 by P.W.63. There is no reason given for their belated examination. 35. The next event is with reference to the part played by A4 Mohamed Ali Khan. According to the prosecution, A7 Samjith Ahmed travelled in the bus up to Samraj Nagar from Mysore and at Samraj Nagar, he used to get down and A4 Mohamed Ali Khan @ Kutty used to get into the bus and travel with the luggage up to Sathyamangalam. When SRT bus stopped at Sathyamangalam, he would alight from the bus and call the boy A9 Shajahan @ Yusuf to unload the parcel. Accordingly, the parcel would be unloaded from the bus and loaded in another bus which is bound for Coimbatore. Thereupon, A9 would be in charge of the parcel and he would travel in the Coimbatore bus. 36. Though PW.32, the Driver has been examined to speak about A7 accompanying the luggage up to Samraj Nagar and thereafter, A4 would get into the bus at Samraj Nagar and it would go up to Sathyamangalam, P.W.32, the Driver did not choose to say anything about the same. There is no reference about A4 in his evidence. 37. P.W.33 Palanisamy has been examined to speak about the fact that the packed materials were unloaded from the SRT bus at Sathyamangalam by A4 with the help of A9 and from there, A9 took the materials in the Coimbatore bus. P.W.33 was a lorry cleaner. According to him, the packed materials were loaded in the bus to go to Coimbatore accompanied by A9 and A4 told him that A9 is doing business in banian and the packed materials are banian and jatti. So, the prosecution has examined these witnesses only to speak to the fact that A9 took charge of the packed materials and then travelled in the Coimbatore bus. P.W.33 is neither the Conductor of the bus bound for Coimbatore from Sathyamangalam nor the Driver of the said bus. He has not given any direct evidence that A9 carried explosive substance from Sathyamangalam to Coimbatore and no evidence has been adduced that A9 reached Coimbatore with explosive substance. 38. Even though it is a case of the prosecution that the packed materials were ultimately handed over to A12 Mujibur Rahman, the prosecution has not chosen to examine any other witnesses as to how the packed materials were handed over to A12 by A9. In other words, the prosecution has produced materials to show that the explosive materials were purchased from A8 and brought and loaded in the Coimbatore bus. The fact that what happened to the packed materials subsequent to that has not been explained by the prosecution through any evidence. 39. Let us now see the next event relating to the participation of A12, A5 and A10. According to prosecution, A12 with the help of A5 and A10 made the bomb in Vallal Nagar premises. P.W.29 Abdul Majeeth https://hcservices.ecourts.gov.in/hcservices/ is the owner of the premises at Door No.26 at Vallal Nagar. The said premises was let out to Mujibur Rahman (A12), the absconding