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

2. The prosecution case in brief was as follows:After the demolition of the Babri Masjid in the month of December 1992, there were numerous violent incidents in various parts of the country attributed to Muslim fanatics against Hindu organizations, places of religious worship and other institutions. During the period from December 1992 to October 1993, the appellants entered into a criminal conspiracy at Madras, Vaniyam Padi Melapalayam, Madurai, Bangalore, Tumkur, Anchal and other places to commit illegal acts by inciting Muslim youths to commit acts of violence and terrorism. Such acts included manufacturing of bombs, exploding them in various Hindu organizations, places of worship and other religious institutions, committing murder of persons likely to be present in the offices of such organizations and places of worship, to cause hurt to the inmates therein, to escape after the commission of such acts, to provide accommodation and shelter to the conspirators to carry out the object of the conspiracy, to go into hideouts, to harbour the offenders involved in such violent acts and to screen the offenders from the clutches of law. Ahmad Ali (A9) addressed public meetings and incited Muslim youths to fight against Hindu Munnani and RSS leaders and also to indulge in acts of violence to promote enmity between Hindu and Muslims3. On 8th July, 1993, A14 Hyder Ali (posing himself to be Ravi) and A15 Imam Ali (posing himself to be Sivakumar) visited Vadacherry (located in the outskirts of Vaniyambadi-Vellore District, Tamil Nadu) with the intention of causing bomb blasts at a public meeting addressed by one of the Hindu Munnani leaders Sridhar (PW 118). However they could not execute their plan since the meeting was over by the time they reached Vadacherry and the bomb remained unused. However they met Sridhar and after introducing themselves as Ravi and Sivakumar, expressed their desire to meet him at Chennai. The unused bomb was dismantled and kept in the house of A18 Mushtaq Ahmed at Jaffarbad in Vaniyambadi which is nearer to Vadacherry. Afterwards the duo returned to Chennai. On 29th July, 1993, A5 Abubucker Siddique, A14 Hyder Ali, A15 Imam Ali and A17 Kaja Nizamuddin went to a house in Porur and ordered a remote control device. Thereafter they went to the house of A18 Mushtaq Ahmed (absconding accused) at Jaffarabad. Together all the aforesaid accused went to Gudiyatham and purchased gelatin and detonators and brought it to the house of A18 Mushtaq Ahmed. It is further the case of the prosecution that A15 Imam Ali conducted a trial blast at the house of A18 Mushtaq Ahmed and thereafter left for Chennai on the following day. They collected the remote control ordered earlier from the Porur house and checked the same. They then purchased pen torch cells, one battery box, quartz timer, switch and some other items required for blasting suitcase bomb. On 30th July, 1993 A15 Imam Ali and A17 Kaja Nizamuddin along with A5 Abubucker Siddique and A14 Hyder Ali went to the RSS office Chennai for surveying the place. While A15 Imam Ali and A17 Kaja Nizamuddin were inside the RSS office A5 Abubucker Siddique and A14 Hyder Ali remained outside. A15 and A17 could not meet Sridhar as he was out of office. However they met other office bearers and informed him that they were running a cassette recording company in Alandur, Chennai and made an official entry of an incorrect/ non-existent address in the register kept as a record of visitors to the RSS office. On 6th August, 1993 all the above four accused went to RSS office, Chennai with suitcases containing bombs. On the way, A15 and A17 got down near a temple, applied Vibhooti (white ash) and kum (tilak) on their forehead, stuck photos of Lord Krishna on their suitcases. Again A15 and A17 went inside the RSS office carrying the suitcases containing bombs and A5 and A14 remained outside. A5 and A17 enquired about Sridhar from Shanmugam, a RSS worker. A15 and A17 had also talked to Jawahar, another RSS worker and handed over a letter addressed to Sridhar. Thereafter they came out of the office leaving behind the suitcase bombs and waited for about half an hour at a tea shop. However the bombs did not explode. A15 and A17 went inside and brought the suitcase bombs outside and took it back to the godown of A1 Rafiq Ahmed. On 7th August, 1993, they purchased new battery cells, cells for torch light and plastic covers which do not conduct electricity. These were brought for rectification and then the bombs were again kept ready in both the suitcases. On 8th August, 1993 at about 11-12 am all the above four accused went again with the two suit cases containing the bombs. Again A5 and A14 remained outside, A15 and A17 went inside the RSS office carrying the suitcases the bombs. Inside the RSS office they met PW1 Srinivasan and asked about Sridhar. After that they came out of the building leaving behind the suitcase bombs. At about 1:45 pm there was loud explosions which resulted in the death of 11 persons, injuries to 7 others and also complete demolition of the building4. Instant case was registered by Mr. A. Rajaram, Inspector, Chetput, F-5, Police Station, Chennai in crime No. 1137 of 1993 under Section 120-B, 302 326, 153 A IPC, Section 9B(1)(b) of The Indian Explosive Act, 1884 and Sections 3 And 4 of The Explosive Substances Act, 1908 against unknown persons. Initially the investigation was started by CBCID, Metro, Chennai. Later on, the investigation was transferred to CBI on 26th August, 1993 and registered in R.C No. 16 (S) 93- CBI/SCB/Chennai and investigated by Mr. M.S. Sundarajan DSp, CBI/SCB/Madras. After the completion of the investigation, charge sheet dated 8th June, 1994 was filed against 18 accused under Sections 120-B IPC read with Sections 153-A,201,302,326,324,419,436 IPC, Section 9(B)(1)(b) of the Explosives Act, Sections 3, 4, 5 and 6 of the Explosives Substances Act and Section 3 of the TADA Act5. The Designated Court No. II TADA Act, 1987 (hereinafter referred to as the Trial Court) by order dated 21st June, 2007 convicted A1 Rafiq Ahmed under Section 153A read with Section 109 IPC, A2 Shahabudeen under Section 201 IPC, A4 Abdul Rahim under Section 3(4) TADA Act, A5 Abubucker Siddique under Section 120B read with Sections 153 A, 201, 302, 326, 324, 419, 436 IPC, Section 9(B)(1)(b) of Explosive Act, Sections 3, 4, 5 & 6 of Explosives Substances Act, Sections 3(2) and 3(3) of TADA Act, A7 Ahmed Gnaiyar under Section 3(4) TADA Act, A10 Md. Moosa Mohideen under Section 3(4) TADA Act, A11 Syed Md Buhari under Section 3(4) TADA Act, A12 S.K. Md.Ali under Section 3(4) TADA Act, A14 Hyder Ali under Section 120B read with Sections 153A,201,302,326,324,419,436 IPC, Section 9 (B)(1)(b) of Explosive Act, Sections 3, 4, 5 & 6 of Explosives Substances Act, Sec 3(2), 3(3) of TADA Act, A15 Imam Ali (dead), A17 Kaja Nijammudin under Section 120B read with Sections 153 A,201,302,326,324,419,436 IPC, Section 9 (B)(1)(b) of Explosive Act, Sections 3, 4, 5 & 6 of Explosives Substances Act, Sections 3(2), 3(3) of TADA Act. The following persons were acquitted namely A3 Mukhtar Ahmed, A6 S.A.Basha, A8 Ameenuddin Sheriff and A13 Abdul Aslam. Aggrieved by the said judgment, A5 Abubucker Siddique and A14 Hyder Ali filed Criminal Appeal No. 1374 of 2007. A17 Kaja Nizamuddin filed Criminal Appeal No. 552 of 2008 and the State filed Criminal Appeal No. 1271 of 2009

Reasoning: 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.