Case: Abubucker Siqqique &amp; Others Vs. The State represented by The Deputy Superintendent of Police, CBI/SCB/Chennai, Tamil Nadu &amp; Others

explosive substance as gelatin as opposed to RDX would not be fatal. According to him, the confessional statements should be read from the point of view of a layman. We may refer to certain extracts from the confessional statement of A5 Abubucker Siddique, which is as follows:- "Afterwards, we four went to see Mustaq of Vaniyampadi to purchase gun powder for the preparation of bomb. They went to Gudiyatham and bought 8 Kgs. of Gelatin and some detonators. Imam Ali and Mustaq went outside and bought an iron box to be suitable for fitting in a two wheeler. At the house of Mustaq, Imam Ali conducted a Trial of blasting the gun powders by setting a timer. On the same day, we all of us along with Mustaq and his friend Shakil went to a theatre at Vaniyambadi and saw an English Film called "Armour for the action". While going to the cinema, Mustaq and Shakil kept the gun powder and other items in a house near the Theatre and after seeing the cinema, we took the items from that house and left for Chennai in the night and reached Chennai in the next day morning i.e., 30.07.93." "On the next day after our return from Vaniyambadi, we went to Riche Street and bought the following items: some pen torch cells, one battery box, quartx timer, switch and some items which are required for blasting the bomb from a box/ suitcase." "On 1.8.93, Imam Ali sent me to purchase 5 kgs of gun powder, a box made of iron for the purpose of making the second bomb and also told me to meet Mustaq at Jafrabad. He gave me Rs.275 for this purpose. He also told me to bring the gun powder from Mustaqs house which was bought form Mustaqs house which was bought for planting bombs at Hindu Munnani meeting at Vadacherry." 26. We are of the considered opinion that the observations of the trial court that `other materials could have been RDX and PETN is perverse. In our opinion, Mr. Natarajan had correctly submitted that the other items in addition to gun powder were the iron box, suit case, battery box, quartz timer, switch etc. The confessional statement of A5 Abubucker Siddique reveals that they had gone to Vaniyampadi to purchase "gun powder" for the preparation of the bomb. Then they went to Gudiyatham and procured 8 kgs of gelatine on 29.7.93. Later they had procured 5 kgs of "gunpowder" on 1.8.93. We are of the considered opinion that the confessional statement of A5 Abubucker Siddique only reveals that they had procured gelatine, gunpowder and certain other accessories required for blasting a bomb viz. detonators, switch, battery box, pen torch cells, quartz timer etc. It is not mentioned in the confessional statement as to how and when the appellants had procured RDX and PETN i.e. the materials with which the bomb made for blasting the RSS building situated at No.1 M.V. Naidu Street was made. 27. It was vehemently argued before us by Mr. Malhotra that the charge has to be read along with the confessional statements. We may notice an extract of the charge relied upon by him. It reads as follows: "Fifthly: that you A-1, A-2, A-5, A-5 and A-8 in pursuance of the said criminal conspiracy during the said period and in the course of the same transaction and in the furtherance of the common intention of you A-1, A-2, A-5 and A- 8 and the absconding accused Imam Ali, Hyder Ali and Kaja Nizamuddin to commit murders and cause injuries to RSS and Hindu Munnani leaders and others who were likely to be present on 8.8.93 at about 1.45 pm at the RSS Headquarters building procured explosives and other materials required for preparing the two suitcase-bombs at godown no 21, Subaiah Street, Periamet, Madras belonging to A1......... ......... " We are of the considered opinion that the most important portion of the aforesaid charge is "procured explosives and other materials". We have considered the confessional statements in extenso. It is not in dispute that explosives were procured from Gudiyatham. The confessional statement of A1 Rafiq Ahmed and A5 Abubucker Siddique are unequivocal that only gelatin sticks and detonators were bought from Gudiyatham form a licensed shop owner PW 112 Kamalnathan (declared hostile). The prosecution has not been able to ascertain as to how the appellants had access to RDX. The Trial Court had accepted that as only two persons namely A15 Imam Ali (died) and absconding accused Mustaq Ahamed knew about the source from where RDX was procured, the other three accused namely A5 Abubucker Siddique, A14 Hyder Ali and A17 Kaja Nizamuddin who were closely associated with them also knew about it. The observation of the Trial Court is merely conjectural. In our opinion, the conclusion of the Trial Court that the "other materials" as mentioned in the charge sheet brings in its sweep other explosives like RDX and PETN is wholly without any basis. The evidence on the record clearly militates against such a conclusion. Thus even if the charges are read along with the confessional statement, it would not, in any manner, improve the intrinsic value of the evidence led by the prosecution. Suspicion no matter how strong cannot take the place of legal proof. 28. As submitted by Mr. Malhotra, it is true that the prosecution case was that explosive substances were used to make bombs. It is not in dispute that the present case was registered against the 18 persons for blasting the RSS building situated at No. 1 M.V. Naidu Street. As noticed hereinabove the bomb was made of RDX and PETN but no trace of gelatin was found form the scene of crime. The prosecution could only prove that the appellant had procured gelatin sticks and detonators form Gudiyatham but the traces of said explosives could not be found from the scene of occurrence. Thus there is clearly no evidence to link the appellants with the explosion.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. In our opinion, the contents of the confessional statements if true, would indicate that all the accused mentioned above and the appellants, in particular, had entered into a conspiracy for committing the violent and terrorist acts against a particular Hindu organization and Hindu places of religious worships, religious institutions and places frequented by Hindus in general. In order to strike terror in the minds of the Hindus, they had decided to cause explosions and commit crimes of violence, such as murder. They were also intent to cause destruction to the property belonging to the Hindu community. In furtherance of this aim, the participants in the conspiracy, the appellants in particular, and their accomplices had been charged with the task of procuring high explosives. For that purpose, they went to Gudiyatham and procured 13 kgs of gelatin as narrated herein above. From the explosive material collected by the conspirators, two dangerously explosive bombs had been assembled. The first attempt to explode such a bomb did not fructify as the intended target had already left the premises in which the bomb was to be exploded. The bomb was dismantled and kept in the house of A18 Mushtaq Ahmed (absconding). The second attempt for exploding these bombs also failed as the detonator was short circuited. It was the third attempt in which the conspirators succeeded. This attempt took place on 8th August, 1993 when A15 Imam Ali and A17 Kaja Nizamuddin carried the two bombs into the building. They deposited the bombs in the building and exited there from. They waited outside for half an hour till the bomb exploded. This is the sum total of the sequence of events leading upto the explosion that destroyed the RSS, Headquarters on 8th August, 199315. Quite some time after the explosion, upon investigation, certain arrests were made. A5 Abubucker Siddique was arrested on 24th October, 1993. A14 Hyder Ali was arrested in some other case but was produced before the Trial Court on PT warrant on 16th August, 1995. A15 has died. A17 Kaja Nizamuddin was arrested in some other case and produced before the Trial Court on 13th March, 2000 on PT warrant. We may notice here that A14 Hyder Ali and A17 Kaja Nizamuddin were also arrested in some other case and that too after two years and 7 years respectively. On interrogation, they made confessional statements16. Excepting for the confessional statements, admittedly, there is no other independent evidence with regard to the participation of the accused in the conspiracy and the particular role played by them. According to these confessions, A15 Imam Ali and A17 Kaja Nizamuddin had carried the two suitcases inside the building. Therefore, it is apparent that even according to the prosecution version, they could have only carried bombs made from gelatin. The lid on the prosecution case is blown away by the report of forensic experts and the traces of the explosive material collected at the Bomb site17. Upon investigation and according to the evidence, which has been recorded in the trial court itself, it has been established that the bomb which caused the damage consisted only of RDX and PETN. This is also the conclusion in the `Report on the Investigation of the Bomb blast which occurred at Chetput, Madras on August 8th, 1993 submitted by T.R. Baggi, Director, CFSL, Hyderabad20. Having recorded the aforesaid conclusion, the trial court, without any cogent evidence, accepted the submission of the prosecution that only two persons knew about the procurement of RDX, PETN etc, namely A15 Imam Ali and A18 Mushtaq Ahmed (absconding accused). Thereafter, the trial court quite erroneously observed that A5 Abubucker Siddique in his confessional statement had indicated that gelatin sticks, detonators and "other explosives" were procured. Having said so, the trial court without any basis goes on to accept the contention of the prosecution that other explosives could have been RDX, PETN and merely because the source could not be proved it cannot be said that such explosives were not used22. The aforesaid conclusion does not explain as to what happened to 13 Kgs of Gelatin, which was procured from Gudiyatham. It also does not explain as to why only traces of RDX were found in dead bodies, clothes and parts of the building. Not a trace of Gelatin was found in the building. It is worth noticing here that in none of the confessional statements, has it been stated about any other explosives being procured, yet the trial court concludes that other explosive material has also been procured. The conclusion is clearly without any factual basis nor supported by any evidence23. We may reiterate here that it is admitted by Mr. Sundarrajan that the origin from where the RDX or PETN was obtained by the accused were not discovered. He also emphatically stated that PETN and RDX are different articles. It is also stated in hisn that in Gelatin sticks, RDX will not be found. On a conjoint reading of the entire evidence, the trial court clearly recorded the conclusion that only RDX and PETN and not Gelatin sticks as claimed by the prosecution were used for the explosion. It is also noticed that the confessional statements reveals that what was purchased were only Gelatin sticks from Gudiyatham and not RDX and PETN. Such evidence would clearly destroy the very foundation of the prosecution case, which proceeds on the basis that the gelatin and the detonators were procured in Gudiyatham was the material from which the bombs were manufactured, which were responsible for the explosion on 8th August, 1993. Even according to the trial court, the exploding bomb consisted of RDX and PETN. Having recorded the aforesaid conclusion that trial court without any justification concludes such evidence would only affect the evidentiary value and truthfulness of the confessional statements24. In our opinion, the trial court having correctly recorded the conclusion in the earlier part of the paragraph, unnecessarily and without any basis diluted the same and restricted it only to the reliability of the confessional statement. We are of the considered opinion that the Trial Court correctly observed that "the prosecution ought to have investigated the case in the angle of the usage of the RDX, PETN etc." Even after making such an observation, the Trial Court erroneously goes onto convict the appellants who had procured only Gelatin and Detonators from Gudiyatham25. We are unable to accept the submission of Mr. P.P. Malhotra that the appellants not being scientists, referring to the explosive substance as gelatin as opposed to RDX would not be fatal. According to him, the confessional statements should be read from the point of view of a layman26. We are of the considered opinion that the observations of the trial court that `other materials could have been RDX and PETN is perverse. In our opinion, Mr. Natarajan had correctly submitted that the other items in addition to gun powder were the iron box, suit case, battery box, quartz timer, switch etc. The confessional statement of A5 Abubucker Siddique reveals that they had gone to Vaniyampadi to purchase "gun powder" for the preparation of the bomb. Then they went to Gudiyatham and procured 8 kgs of gelatine on 29.7.93. Later they had procured 5 kgs of "gunpowder" on 1.8.93. We are of the considered opinion that the confessional statement of A5 Abubucker Siddique only reveals that they had procured gelatine, gunpowder and certain other accessories required for blasting a bomb viz. detonators, switch, battery box, pen torch cells, quartz timer etc. It is not mentioned in the confessional statement as to how and when the appellants had procured RDX and PETN i.e. the materials with which the bomb made for blasting the RSS building situated at No.1 M.V. Naidu Street was madeWe are of the considered opinion that the most important portion of the aforesaid charge is "procured explosives and other materials". We have considered the confessional statements in extenso. It is not in dispute that explosives were procured from Gudiyatham. The confessional statement of A1 Rafiq Ahmed and A5 Abubucker Siddique are unequivocal that only gelatin sticks and detonators were bought from Gudiyatham form a licensed shop owner PW 112 Kamalnathan (declared hostile). The prosecution has not been able to ascertain as to how the appellants had access to RDX. The Trial Court had accepted that as only two persons namely A15 Imam Ali (died) and absconding accused Mustaq Ahamed knew about the source from where RDX was procured, the other three accused namely A5 Abubucker Siddique, A14 Hyder Ali and A17 Kaja Nizamuddin who were closely associated with them also knew about it. The observation of the Trial Court is merely conjectural. In our opinion, the conclusion of the Trial Court that the "other materials" as mentioned in the charge sheet brings in its sweep other explosives like RDX and PETN is wholly without any basis. The evidence on the record clearly militates against such a conclusion. Thus even if the charges are read along with the confessional statement, it would not, in any manner, improve the intrinsic value of the evidence led by the prosecution. Suspicion no matter how strong cannot take the place of legal proof.28. As submitted by Mr. Malhotra, it is true that the prosecution case was that explosive substances were used to make bombs. It is not in dispute that the present case was registered against the 18 persons for blasting the RSS building situated at No. 1 M.V. Naidu Street. As noticed hereinabove the bomb was made of RDX and PETN but no trace of gelatin was found form the scene of crime. The prosecution could only prove that the appellant had procured gelatin sticks and detonators form Gudiyatham but the traces of said explosives could not be found from the scene of occurrence. Thus there is clearly no evidence to link the appellants with the explosion.