Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1272 OF 2012

Periyasami s/o. Duraisami Novanagar … Appellant

Vs.

State represented through

the Inspector of Police, ‘Q’ Branch

CID, Tiruchirappalli, Tamil Nadu. …

Respondent

WITH

CRIMINAL APPEAL NO. 787 OF 2013

Senthilkumar … Appellant

Vs.

State of Tamil Nadu … Respondent

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

Page 2 1. The present appeals filed under Section 19 of the

Terrorist And Disruptive Activities (Prevention) Act, 1987

(“the TADA”) are directed against the judgment and order

dated 27/06/2012 passed by the Principal Sessions Judge

and Designated Judge under the TADA, for Tiruchirapalli in

Calendar Case No.45 of 1995 in Crime No.307 of 1992 of

Vridhachalam Railway Police Station. The appellant in

Criminal Appeal No.787 of 2013 is Senthilkumar @ Kumar

(‘A1-Senthilkumar’ for convenience). The appellant in

Criminal Appeal No.1272 of 2012 is Periyasami (‘ A2-

Periyasami’ for convenience).

2.According to the prosecution, on 24/10/1992, PW-10

Ramasamy was driving Quilon Express (Train No.6105).

When the train reached near Maruvathur Peria Odai Bridge

No.276, he noticed some object over the railway track. He

immediately applied emergency brake and stopped the

train. PW-11 Rajendran Raja, who was the Assistant Driver

stepped down from the train along with the guard and

proceeded to inspect the track. They saw some boulders

2

Page 3 placed on the track covered with green leaves. At that time,

they heard a loud noise near the bridge situated at a

distance of 1 K.M. In the meantime, PW-2 Ganapathy,

Station Master 3 of Sillakudi Station received information

that Quilon Express had started from Kallagam Station after

crossing of Pearl City Express, but had not reached

Palanganatham. He instructed PW-1 Antonisamy, PW-4 Hazi

Salahudeen, PW-6 Thangaraj and PW-7 Ponnaian to find out

the reason for the delay of the Quilon Express. They found

at the place of occurrence the rails bent upwards and the

gravel stones and the sleepers broken and dislocated.

Under the bridge, they saw some papers containing slogans.

They saw some slogans written on the bridge walls. Some

boulders were also found over the railway track covered with

green leaves. PW-8 Raja Chidambaram, SEP at Kallagam

Station also went in search of the train along the track and

found the train on the northern side of Bridge No.276. He

found boulders placed on the track covered with green

leaves. The sleepers were found broken and dislocated and

rails found bent upwards.

3

Page 4 3.On information being received from the control room

about the bomb blast on the railway line, PW-29 Hyder Ali

Khan, Sub-Inspector of Police, Railway, Vridhachalam rushed

to the place of occurrence. He received complaint [Ex-P1]

dated 24/10/1992 from PW-1 Antonisamy and registered a

case being Crime No.307 of 1992 against unknown persons

under Section 150 of the Indian Railways Act and under

Sections 3 and 5 of the Explosives Act and Sections 120-B

and 124 of the IPC. The printed version of First Information

Report [Ex-P11] was forwarded to Judicial Magistrate No. V,

Tiruchirappalli and a copy was forwarded to the Inspector of

Police, Railways, Villupuram for necessary action.

Investigation was started. It appears from the evidence of

PW-40 Pattabiraman, the Inspector of Police of “Q” Branch

CID, Tiruchirappalli that after he took over investigation, he

interrogated PW-15 Sevi Periyasamy. He got the leads.

Involvement of A1-Senthilkumar, A2-Periyasami and other

accused was disclosed. A1-Senthilkumar was arrested on

17/12/1993. On his search, five gelatin sticks concealed in

4

Page 5 his right side waist, five electric detonators concealed in his

left side waist and two pen torch cells from his pocket were

recovered. They were seized under Mahazar [Ex-P5]. On

19/12/1993, the confessional statement of A1-Senthilkumar

was recorded by PW-37 Ramanujam, Superintendent of

Police, “Q” Branch CID under Section 15 of the TADA, after

following the necessary procedure. A2-Periyasami was

arrested on 9/1/1994.

4.Upon completion of investigation, PW-40 PI

Pattabiraman filed a police report under Section 173 of the

Code of Criminal Procedure (for short ‘Cr.P.C.’) against A1-

Senthilkumar, A2-Periyasami, absconding accused Rajaram

@ Madhavan alleging that A1-Senthilkumar, A2-Periyasami

along with absconding accused Rajaram @ Madhavan and

deceased Lenin and Karalan @ Nagarajan are members of

“Tamil Nadu Viduthalai Padai” and “Thamizhaga Makkal

Viduthalai Padai”, the main object of which was to strike

terror in the people by planting bombs to cause derailment

of trains and to cause damage to Central and State

5

Page 6 Government properties by such acts and to secede Tamil

Nadu from the Indian Union. It was alleged that A1-

Senthilkumar, A2-Periyasami, along with the absconding

accused Rajaram @ Madhavan and deceased Lenin and

Karalan @ Nagarajan conspired together and A2-Periyasami

introduced witness Sevi Periyasamy to them at

Duraimangalam and they manufactured explosive bombs

and caused blast of the rails of Bridge No.276 in between

Kms. 292/6 and 7 situated between Kallakudi

Pazhanganatham and Kallagam railway stations on

24/10/1992 at 2.45 hours with intention to endanger the life

of passengers of Quilon Express which usually crosses the

bridge at or about the same time and the explosion

damaged 20 wooden sleepers and rails to a length of 20 feet

and portion of concrete structures. The disaster was averted

because the engine driver stopped the train noticing the

boulders on the rails. It was also alleged that on 17/12/1993

A1-Senthilkumar was in unathorised possession of

detonators and gelatin sticks without any permit. The report

alleged various charges under the TADA, the Explosive

6

Page 7 Substances Act, the Prevention of Damage to Public Property

Act and the Railways Act against the accused.

5.As accused Rajaram @ Madhavan was absconding, the

case against him was split. Since it was reported that he

had died, his case was disposed of as having abated.

6.The trial court framed charge against A1-Senthilkumar

for offences under Section 120(B) IPC read with Section 3(3)

and Section 4(1) of the TADA, Sections 3(2) (ii), 4(1) and 5 of

the TADA, Sections 3 and 5 of the Explosive Substances Act,

Section 150(2) (b) of the Railways Act and Section 3 read

with Section 4 of the Prevention of Damage to Public

Property Act. As against A2-Periyasami the trial court framed

charge under Section 120(B) IPC read with Sections 3(3) and

4(1) of the TADA, Sections 3(3) and 4(1) of the TADA, Section

3 of the Explosive Substances Act, and Section 3 read with

Section 4 of the Prevention of Damage to Public Property

Act.

7

Page 8 7.A1-Senthilkumar and A2-Periyasami pleaded not guilty

to charges. Two defence witnesses were examined to

establish that the police threatened them and asked them to

produce A1-Senthilkumar thus suggesting that A1-

Senthilkumar was falsely implicated. The prosecution

examined 41 witnesses.

8.After perusing the evidence, the trial court convicted

A1-Senthilkumar under Section 120(B) IPC read with Sections

3(3) and 4(1) of the TADA, Sections 3(2) (ii), 4(1) and 5 of

the TADA, Sections 3 and 5 of the Explosive Substances Act,

under Section 150(2) (b) of the Railways Act, 1989 and

under Section 3 read with Section 4 of the Prevention of

Damage to Public Property Act and sentenced him to

undergo life imprisonment for offence under Section 150(2)

(b) of the Railways Act; rigorous imprisonment for a period of

5 years and to pay fine of Rs.1,000/- and in default to

undergo rigorous imprisonment for a further period of 6

months for offence under Section 120(B) of IPC read with

Sections 3(3) and 4(1) of the TADA; rigorous imprisonment

8

Page 9 for a period of 5 years and to pay fine of Rs.1,000/- and in

default to undergo rigorous imprisonment for a further

period of 6 months for offence under Section 3(2) (ii) of the

TADA; rigorous imprisonment for a period of 5 years and to

pay fine of Rs.1,000/- and in default to undergo rigorous

imprisonment for a further period of 6 months for offence

under Section 4(1) of the TADA; rigorous imprisonment for a

period of 5 years and to pay fine of Rs.1,000/- and in default

to undergo rigorous imprisonment for a further period of 6

months for offence under Section 5 of the TADA; rigorous

imprisonment for a period of 10 years and to pay fine of

Rs.1,000/- and in default to undergo rigorous imprisonment

for a further period of 6 months for offence under Section 3

of the Explosive Substances Act; rigorous imprisonment for a

period of 5 years and to pay fine of Rs.1,000/- and in default

to undergo rigorous imprisonment for a further period of 6

months for offence under Section 4 of the Explosive

Substances Act and rigorous imprisonment for a period of

one year and to pay fine of Rs.1,000/- and in default to

undergo rigorous imprisonment for a further period of 2

9

Page 10 months for offence under Section 3 read with Section 4 of

the Prevention of Damage to Public Property Act (Total fine

Rs.7,000/-). Substantive sentences were to run

concurrently.

9.The trial court convicted A2-Periyasami under Section

120(B) of the IPC read with Sections 3(3) and 4(1) of the

TADA, Sections 3(3) and 4(1) of the TADA and under Section

3 read with Section 4 of the Prevention of Damage to Public

Property Act and sentenced him to undergo rigorous

imprisonment for a period of 5 years and to pay fine of

Rs.1,000/- and in default to undergo rigorous imprisonment

for a further period of 6 months for offence under Section

120(B) of the IPC read with Sections 3(3) and 4(1) of the

TADA; rigorous imprisonment for a period of 5 years and to

pay fine of Rs.1,000/- and in default to undergo rigorous

imprisonment for a further period of 6 months for offence

under Section 3(3) of the TADA; rigorous imprisonment for a

period of 5 years and to pay fine of Rs.1,000/- and in default

to undergo rigorous imprisonment for a further period of 6

10

Page 11 months for offence under Section 4(1) of the TADA; and

rigorous imprisonment for a period of one year and to pay

fine of Rs.1,000/- and in default to undergo rigorous

imprisonment for a further period of 2 months for offence

under Section 3 read with Section 4 of the Prevention of

Damage to Public Property Act (Total fine Rs.4,000/-).

Substantive sentences were to run concurrently. Both the

accused have challenged the said judgment in these

appeals.

10.Mr. M.S. Ganesh, learned counsel for A1-Senthilkumar

submitted that the prosecution case entirely rests on the

confessional statement of A1-Senthilkumar. The said

statement is not voluntarily made and is retracted by him. It

is, therefore, not safe to rest conviction on it. Besides, it is

not corroborated. Counsel submitted that it is also not

properly recorded. Counsel further submitted that reliance

also cannot be placed on the evidence of PW-15 Sevi

Periyasamy and his wife PW-14 Chandra because both of

them have turned hostile. The prosecution has not

11

Page 12 examined any independent witness. The evidence on record

shows that PW-15 Sevi Periyasamy is, in fact, involved in this

crime. There is no explanation as to why he has not been

made an accused. The prosecution case has therefore,

become suspect. Counsel submitted that no reliance can be

placed on PW-15 Sevi Periyasamy who is himself an accused.

Counsel submitted that in the circumstances, the conviction

of A1-Senthilkumar deserves to be set aside.

11.Mr. Gowthaman, learned counsel for A2-Periyasami has

submitted written submissions which we have perused. He

submitted that the prosecution has not proved that A2-

Periyasami was a member of any banned organization.

Relying on Pulin Das @ Panna Koch v. State of Assam

1

,

counsel submitted that conviction of A2-Periyasami cannot

be sustained. Counsel submitted that A2-Periyasami was

arrested one year after the incident because there was

confusion about his name. Because of the similarity of

name, he is implicated in this case though he is in no way

concerned with the offence. Counsel submitted that no

1

(2008) 5 SCC 89

12

Page 13 reliance can be placed on the evidence of PW-15 Sevi

Periyasamy, because he himself is an accused. He procured

sulphur for the preparation of bomb. Counsel further

submitted that statement of this witness is recorded under

Section 164 of the Code after a prolonged police custody

hence, no reliance can be placed on it. In any case, it is

uncontroverted that A2-Periyasami had asked PW-15 Sevi

Periyasamy to only provide food for the four persons who

were likely to come for a function. Relying on Prakash

Kumar @ Prakash Bhutto, etc. v. State of Gujarat

2

,

counsel submitted that considering the role assigned to A2-

Periyasami, his conviction must be set aside. There is

absolutely no evidence on record to establish that A2-

Periyasami had any prior knowledge of the offence which

was committed by the accused and, therefore, even if it is

found that he had some contact with PW-15 Sevi Periyasamy

it cannot be said that he was a part of the conspiracy. In this

connection, he relied on Vijayan, etc. v. State of

Kerala

3

. Counsel submitted that no witness has made any

2

(2007) 4 SCC 266

3

(1999) 3 SCC 54

13

Page 14 specific allegation against A2-Periyasami. PW-15 Sevi

Periyasamy turned hostile and A1-Senthilkumar retracted his

confessional statement. Therefore, there is no evidence on

record to connect the accused with the crime. He deserves

to be acquitted. Counsel submitted that A2-Periyasami has

undergone two years and nine months sentence and this

fact may also be taken into consideration.

12.Mr. Subramonium Prasad, Addl. Advocate General, for

the State of Tamil Nadu on the other hand submitted that

the validity of Section 15 of the TADA has been upheld by

this Court. Therefore, conviction can be based on a

confessional statement recorded under Section 15 of the

TADA. If a confessional statement is found to be truthful

then, despite its subsequent retraction or its denial in

statement recorded under Section 313 of the Code, it can be

relied upon. In this connection, counsel relied on State v.

Nalini & Ors.

4

and Yakub Abdul Razak Memon v. State

of Maharashtra

5

. Counsel submitted that in this case apart

4

(1999) 5 SCC 253

5

(2013) 3 SCALE 565

14

Page 15 from the confessional statement of A1-Senthilkumar, there is

other evidence on record to establish complicity of the

appellants. In support of this submission, counsel took us

through the evidence of PW-13 M. Paramasivam, the then

Chief Permanent Inspector of Peralam and the evidence of

PW-32 K. Ramakrishnan, the then Assistant Director of

Forensic Department. Evidence of these witnesses show

that the handwriting on the incriminating posters found at

the scene of occurrence is that of A1-Senthilkumar. Counsel

also relied on the evidence of PW-15 Sevi Periyasamy who

has turned hostile at a very late stage. Counsel submitted

that hostile witnesses’ evidence need not be totally ignored.

Part of the evidence which is consistent can be relied upon.

Counsel submitted that sufficient corroboration is available

to the confessional statement of A1-Senthilkumar. Counsel

urged that since the involvement of the appellants is proved

beyond doubt, the appeals be dismissed.

13.The prosecution’s claim that on 24/10/1992 at or

around 2.45 a.m. there was a blast at rails of Bridge No.276

15

Page 16 in between Kms. 292/6 and 7 situated between Kallakudi

Pazhanganatham and Kallagam Railway Stations, which

damaged 20 wooden sleepers and rails to a length of 20 feet

and a portion of concrete structures is not disputed. The

engine driver of Quilon Express, which was to cross Bridge

No.276, stopped the train as he saw boulders on the track.

Thus, a great disaster was averted. So far as the occurrence

of the blast is concerned, the prosecution has examined PW-

1 to PW-13, who are railway employees. It is not necessary

to deal with their evidence because there is no serious

challenge to that part of the prosecution story.

14.At the outset, we must deal with the submission that

the prosecution has not examined any independent

witnesses. It is common knowledge that when the terrorists

unleash a way of terror, no independent witnesses are ready

to come forward and depose against them. Prosecution case

cannot be rejected on this ground. In any case, the evidence

on record is cogent and reliable and, therefore, non-

examination of independent witnesses does not have any

adverse impact on the prosecution case. We may also note

16

Page 17 that the evidence of defence witnesses does not inspire

confidence and has rightly not been taken into consideration

by the trial court. PW-14 Chandra wife of PW-15 Sevi

Periyasamy turned hostile. Some other formal witnesses also

turned hostile. This, however, has not affected the core of

prosecution case which is established by reliable evidence.

We shall now deal with the evidence which, in our opinion,

bears out the prosecution case.

15.PW-15 Sevi Periyasamy appears to have given the leads

to the investigating agency to unearth the crime. His

statement was recorded under Section 164 of the Code by

the Judicial Magistrate Perambalur on 31/12/1993. He stated

that he is a member of Ambedkar Narpani Mandaram. They

had celebrated Ambedkar birthday function in 1991. He met

A2-Periyasami in that function. On 23/10/1992, A2-

Periyasami came to his house and told him that one Lenin

and 3 other persons will visit him, they will stay in the house

till night and that he should provide food to them. Lenin

came to his house at 1.30 p.m. Lenin introduced him to the

17

Page 18 other person who had come with him as Kumar. Thereafter,

two other persons came there. They were introduced to him

as Karalan and Rajaram. He asked them as to for what

purpose they had come to his house. They told him that

they had come to participate in the function and they will

stay in his house till night. He put a cot in the cattle shed

and asked them to sit. He and his wife prepared food for

them. He saw both Lenin and Karalan removing the gelatin

sticks. They applied flour like powder over the same. He

suspected them. He asked them as to what they were doing

with gelatin sticks. Karalan stated that he should not ask

any questions about what they were doing. Then A1-

Senthilkumar and Rajaram @ Madhavan wrote slogans on

white colour paper with black ink such as “Veera Vanakkam”

(royal salute) and ‘Withdraw the cases filed against the

Tamilian leaders’. Karalan then asked him to get two empty

glass bottles. He gave two bottles to them. They broke the

glass bottles into powder. Thereafter, Karalan gave him

Rs.12/- and asked him to purchase sulphur powder. Since

they threatened him, out of fear, he went to Perambalur and

18

Page 19 purchased 100 gms. sulphur powder. He came to his village

and handed over the sulphur powder to Karalan. After

taking food, they left keeping their goods in the cattle shed.

After some time, all of them returned with tin bottles and

inserted gelatin sticks in tin bottles. They left the house.

When he asked them, where they were going, Lenin told him

that he would come to know when he reads the newspaper

on the next day. Next day, he read the newspaper and

came to know that the railway bridge situated at Kallakam

Muthuvathur village had been destroyed due to a bomb

blast. He asked A2-Periyasami, who had caused the blast.

A2-Periyasami told him that Lenin, Karalan and Rajaram @

Madhavan were responsible for the blast and if he discloses

this to anybody, his family would be killed. Thereafter, he

met A1-Senthilkumar at Thuraimangalam junction road. A1-

Senthilkumar told him that he, Karalan, Lenin and Rajaram

had destroyed the railway bridge. He told A1-Senthilkumar

that he cannot give him shelter in his house. A1-

Senthilkumar went away telling him that if he discloses this

to anybody, they will finish his family. Therefore, in the

19

Page 20 interest of his family, he did not disclose to anybody what he

was told. Thereafter, police interrogated him and he

disclosed the facts which were known to him. He also

identified the photographs of Karalan, Rajaram and Lenin.

16.He was examined in the Court on 13/9/1996 and on

3/11/1997 when he reiterated his statement given under

Section 164 of the Code. He was recalled on 5/2/1998 when

he stated that MO 5 series (wall posters) were written by

A1-Senthilkumar in his cattle shed. He was again recalled on

25/9/1998 when he acknowledged that on 31/12/1993 he

had given statement before the Judicial Magistrate at

Perambalur. He was again recalled on 19/9/2001. On that

day, he resiled from his earlier statement to some extent.

He stated that he did not remember whether A2-Periyasami

had personally informed him that four persons would come

and he should feed them. He, however, stated that the four

persons did come and they informed him that they hail from

the similar organization and he should provide food for them.

He was again recalled on 28/9/2001. On that day, he stated

20

Page 21 that he saw Lenin when he came to his house and he came

to know about Karalan when he visited his house. He then

stated that he was detained at Q Branch Police Station and

he was told by the Investigating Officer that he would be set

at liberty after he gave his statement before the Judicial

Magistrate. He, however, denied the suggestion that A1-

Senthilkumar did not meet him at his residence. He stated

that the person, who accompanied Lenin, informed him that

his name was A1-Senthilkumar. He stated that it was

incorrect to state that he was intimidated by the police from

10/12/1992 to 30/12/1992. He stated that he was tutored by

the Investigating Officer to make the statement before the

Judicial Magistrate. He stated that he used to render help to

any Dalit guest and he would not have given food and

shelter to Lenin, if he had knowledge that he belonged to

that organization. He then stated that he had not met A1-

Senthilkumar earlier and he was seeing him in the court for

the first time. Thus, it is apparent that on 28/9/2001, though

he stuck to several assertions which he had made earlier, he

resiled from his statement to some extent. The public

21

Page 22 prosecutor, therefore, sought permission to cross-examine

him. The public prosecutor cross-examined him. In the

cross-examination, he stated that he gave this statement at

the dictates of the Investigating Officer.

17.PW-40 PI Pattabiraman stated that after he took

custody of A1-Senthilkumar, he took his specimen signatures

which are Ex-P/6 series. He further stated that on

19/12/1993, he took A1-Senthilkumar to Chennai and

produced him before PW-37 Ramanujam, Superintendent of

Police, Q Branch CID, Chennai and gave a written requisition

for recording confessional statement of A1-Senthilkumar

under Section 15 of the TADA. On 20/12/1993, at 1800

hours PW-37 Ramanujam after ascertaining that A1-

Senthilkumar was not threatened or induced to give his

confessional statement, recorded his confessional statement

and obtained his signature on each page.

18.In his confessional statement, A1-Senthilkumar has

stated how he came in contact with one Murugesan, who

was running an association to spread the ideology of

22

Page 23 Ambedkar. It is through Murugesan that he got acquainted

with the activities of Tamil Nadu Liberation Force and

associates of Murugesan like Lenin and Ravi. He stated that

in the house of Ravi, Murugesan, Lenin and others used to

hold secret meetings; they used to say that Tamil Nadu

should secede from India and for that purpose, they have to

fight with weapons. He further stated that Lenin took him to

the house of PW-15 Sevi Periyasamy. Lenin told him that

they had been sent by A2-Periyasami. Within short time,

Rajaram @ Madhavan and Karalan @ Nagarajan also came

there. Karalan brought a bag containing 40 gelatin sticks,

one long green colour wire, 5 to 6 detonators and jute

thread. The bag brought by Rajaram @ Madhavan contained

an empty tin of five litre capacity, two large drawing papers

and two black and red colour sketch pens. They had brought

wall papers and as instructed by Lenin and Karalan A1-

Senthilkumar wrote slogans such as ‘Bravery salute.

Bravery salute’, ‘Let the liberation struggle of Kashmiri

people win’, ‘Withdraw the cases filed against Tamil leaders’,

etc. He further stated that in between, Lenin and Karalan

23

Page 24 took out gelatin sticks wrapped in a paper and mixed in a

dough. They got two empty glass bottles from PW-15 Sevi

Periyasamy, broke them into pieces and mixed that also in

the dough. He stated that Karalan got sulphur powder

through PW-15 Sevi Periyasamy and applied sulphur to the

wire. In the evening, they went near the lake area and Lenin

told them that they are going to demolish the railway track

so that panic would be created among the public. Then they

went ahead, had dinner in a hotel. They came to PW-15 Sevi

Periyasamy’s house and took all articles which were kept

there and left that place. While leaving the place, Lenin told

everyone that they should read tomorrow’s newspaper.

From there, they went to Ariyalur by bus. From there, they

went by bus to Dalmiapuram. They walked through a canal

and reached a railway bridge. Sitting below the bridge,

Karalan put the gelatin and sulphur in the tin. He tied the

detonator together and inserted the same in the tin which

had gelatin mixture. He connected the wire with the

detonator and, through the hole in the tin cover, he took out

the wire and closed the tin. Thereafter, all the four climbed

24

Page 25 over the bridge. Karalan kept the bomb in the southern

corner of the bridge in the middle of the rails. They put a

huge stone between the rails. They kept the branches of

trees over the rails. They wrote slogans on the pillars. They

also kept posters prepared on drawing papers and notices at

the scene of offence. Karalan lit a wire with a match stick

and they ran away. Within a few seconds, there was a blast.

He, thereafter, narrated how he went from place to place till

he was arrested on 17/12/1993.

19.The confessional statement of A1-Senthilkumar reveals

that he had accompanied other accused to the house of PW-

15 Sevi Periyasamy, that he had actively participated in the

activities of Karalan, Lenin and Rajaram @ Madhavan and

they had joined him in manufacturing explosive substances.

His confession further reveals that he wrote slogans on

papers and he was party to preparing, carrying and planting

of bomb and causing of the blast. It must also be stated here

that A1-Senthilkumar retracted his confessional statement.

We shall advert to that a little later.

25

Page 26 20.Having referred to the relevant evidence, we shall now

consider whether the prosecution has established its case

against A1-Senthilkumar. His confessional statement is a

major piece of evidence against him. The question is what is

the evidentiary value of a confession recorded under Section

15 of the TADA.

21.In Yakub Abdul Razak Memon, after referring to

several judgments of this Court on the evidentiary value of

confession particularly judgment of this Court in Nalini, this

Court summed up the position of law on the evidentiary

value of confession. The relevant conclusions could be

quoted.

“105.To sum up, it can easily be inferred that the

position of law on the evidentiary value of

confession is as under:-

(i)If the confessional statement is properly

recorded satisfying the mandatory provision

of Section 15 of TADA and the Rules made

thereunder, and if the same is found by the

court as having been made voluntarily and

truthfully then the said confession is

26

Page 27 sufficient to base conviction on the maker of

the confession.

(ii)Whether such confession requires

corroboration or not, is a matter for the court

to consider on the basis of the facts of each

case.

(iii)With regard to the use of such confession as

against a co-accused, it has to be held that

as a matter of caution, a general

corroboration should be sought for but in

cases where the court is satisfied that the

probative value of such confession is such

that it does not require corroboration then it

may base conviction on the basis of such

confession of the co-accused without

corroboration. But this is an exception to the

general rule of requiring corroboration when

such confession is to be used against a co-

accused.

(iv)The nature of corroboration required both in

regard to the use of confession against the

maker as also in regard to the use of the

same against a co-accused is of a general

nature, unless the court comes to the

conclusion that such corroboration should be

on material facts also because of the facts of

a particular case. The degree of

corroboration so required is that which is

necessary for a prudent man to believe in the

existence of facts mentioned in the

confessional statement.

(v) xxx xxx xxx xxx”

27

Page 28 It is clear, therefore, that a confessional statement

recorded under Section 15 of the TADA, if found to be

voluntarily made and is truthful and properly recorded, can

form the basis of conviction.

22.We have already stated that PW-40 PI Pattabiraman

produced A1-Senthilkumar before PW-37 Ramanujam,

Superintendent of Police “Q” Branch CID, Chennai for

recording his confessional statement. On 22/12/1993, PW-37

Ramanujam recorded confessional statement of A1-

Senthilkumar after ascertaining that he was not threatened

or induced to give his confessional statement. PW-37

Ramanujam obtained A1-Senthilkumar’s signatures on each

page of the confessional statement. A1-Senthilkumar signed

on the said confessional statement acknowledging that he

was giving the statement voluntarily without any coercion

and compulsion and knowing its consequence. We have

carefully read the evidence of PW-40 Pattabiraman and PW-

37 Ramanujam and the confessional statement of A1-

Senthilkumar, which is at Ex-P/24. We are satisfied that the

28

Page 29 confessional statement was properly recorded; that A1-

Senthilkumar was not forced or coerced into giving

statement; that the statement is given voluntarily and that it

is truthful. In our opinion, therefore, it can form the basis of

conviction.

23. We must now come to the retraction. It is argued

however that A1-Senthilkumar has retracted his confession

and, hence, it has no evidentiary value. It cannot be relied

upon. It is not possible to accept this submission. Retraction

does not always dilute or reduce or wipe out the evidentiary

value of a confessional statement. Quite often retraction is

an afterthought. It could be the result of legal advice or

pressure exerted by those whose involvement may be likely

to be disclosed or confirmed by the confessional statement

of the accused. Therefore, in each case, the court will have

to examine whether the confession was voluntary and true

and whether the retraction was an afterthought. In

Kalawati v. State of Himachal

6

, this Court stated that the

amount of credibility to be attached to a retracted

6

AIR 1953 SC 131

29

Page 30 confession would depend upon the facts and circumstances

of each case. Again in State of Tamil Nadu v. Kutty

7

,

this Court stated that a retracted confession may form legal

basis for conviction if the court is satisfied that the

confession was true and was voluntarily made. Following

these judgments in Yakub Abdul Razak Memon , this Court

held that where the original confession was truthful and

voluntary, the court can rely upon such confession to convict

the accused in spite of a subsequent retraction and its denial

in statement under Section 313 of the Code. The law is thus

crystallized. A retracted confessional statement is therefore

not always worthless. We have no hesitation in reiterating

that A1-Senthilkumar’s confessional statement was recorded

after following the correct procedure; that it was voluntary

and truthful; that A1-Senthilkumar was not forced or

compelled to give his statement and that the retraction of

the said statement is clearly an afterthought and should be

ignored.

7

AIR 2001 SC 2778

30

Page 31 24.In any case, there is sufficient corroboration available

to the confessional statement of A1-Senthilkumar from the

other evidence on record. In this connection, it is necessary

to turn to the evidence of PW-13 M. Paramasivam, who was

working as Chief Permanent Inspector at Peralam at the

relevant time. He stated that on 24/10/1992, in the early

morning at 3.00 a.m. when he got the news that a train had

halted, he went to the place of occurrence. He found that

the train was reversed and kept at Kallagam Railway Station.

He went to the southern part of the bridge and found that

the fish plates and the concrete portion of the bridge were

broken. He got down from the bridge. He saw wall posters

(MO 5 series), bit notices and other articles. They were

taken charge of under Mahazar [Ex-P/3]. PW-32 K.

Ramakrishnan, who was working as the Assistant Director in

the Photography Division of the Forensic Science

Department, Chennai, at the relevant time, stated that he

had received the requisition of Inspector of Police, Q Branch,

CID, Trichy. He further sated that along with the requisition,

he had received two disputed wall posters marked as MO 5

31

Page 32 series and four disputed wall posters marked MO 22 series.

For comparison of the disputed handwriting on the wall

posters, he had received 30 wall posters and four full sheets

containing specimen handwriting, which were marked Ex-P/6

series. He compared the specimen handwriting with the

handwriting appearing on the wall papers [MO 5 series and

MO 22 series] and found that the writings on MO 5 series and

MO 22 series were of the person who wrote writings marked

Ex-P/6 series. Ex-P/6 series are the specimen handwritings

of A1-Senthilkumar taken by PW-40 PI Pattabiraman. Thus,

evidence of PW-13 M. Paramasivam and PW-32 K.

Ramakrishnan provides necessary independent

corroboration to the confessional statement of A1-

Senthilkumar. The fact that the incriminating wall posters

found at the scene of offence bear handwriting of A1-

Senthilkumar is a clinching circumstance and goes a long

way in establishing his guilt.

25. So far as evidence of PW-15 Sevi Periyasamy is

concerned it is argued that he was himself involved in the

32

Page 33 offence. His evidence is tainted evidence and, hence, it

should not be relied upon. It is not possible to accept this

submission. The evidence of this witness clearly indicates

that he did not know anything about the activities of the

accused. He is an active worker of Ambedkar Welfare

Association. He stated that he is a Dalit and he works for the

cause of Dalits. According to him, it is A2-Periyasami, who

told him that four persons would be coming to him and he

should provide food to them. He accordingly gave them

lunch. When they were busy preparing wall posters and

manufacturing bombs, he asked them what they were doing

and they told him that he should not ask them any question

and he would come to know about it if he reads next day’s

newspaper. According to him, when A1-Senthilkumar met

him, he asked him who had caused the blast. A1-

Senthilkumar told him that blast was caused by him and his

associates and if he informs anyone about it, all members of

his family will be killed. It is difficult therefore to come to a

conclusion that PW-15 Sevi Periyasamy was involved in the

offence. He appears to be a victim of circumstances. He was

33

Page 34 used by the accused. He did not know the nature of

conspiracy hatched by the accused. His evidence,

therefore, cannot be discarded as tainted evidence.

26.It was submitted that the evidence of PW-15 Sevi

Periyasamy must be rejected because he turned hostile. It

is trite that evidence of a hostile witness need not be

completely discarded. The prosecution can use that part of

his evidence which is corroborated by other evidence on

record [See Bhajju @ Karan Singh v. State of Madhya

Pradesh

8

]. Moreover, in this case, the facts are peculiar.

From 13/9/1996 when PW-15 Sevi Periyasamy was first

examined in the Court till 25/9/1998, he supported the

prosecution. When after five years he was recalled on

19/9/2001, he resiled from his previous statement only to

some extent. On 28/9/2001, he confirmed some portion of

his earlier statement but resiled to a large extent from his

earlier statement. It is obvious that the recording of his

evidence was not continuous. There was huge gap of five

years between recording of his examination and re-

8

(2012) 4 SCC 327

34

Page 35 examination. It is also pertinent to note that on 13/9/1996,

3/11/1997, 5/2/1998 and 25/9/1998, when he narrated the

sequence of events and explained the role of the accused,

he was not cross-examined at all. It is clear from this that

recording of his evidence was unduly prolonged, and in that

period, an effort was made to win him over. These facts will

have to be taken into consideration while considering the

evidentiary value of his evidence. We are of the opinion that

it would be safe to rely on that part of the evidence of this

witness, which is corroborated by other evidence on record.

27.We have extensively referred to the evidence of PW-15

Sevi Periyasamy. He stated how A1-Senthilkumar came to

his house along with Lenin and how two other persons joined

him. He further stated how they prepared the dough with

gelatin sticks and broken glass pieces. He has further gone

on to say that they left the house telling him that he should

not ask them anything about their activities and he should

35

Page 36 read the next day’s newspaper to know what they were

doing. He has further stated that after the blast, he met A1-

Senthilkumar at Perambalur-Thuraimangalam Junction Road

and he told him that he, Karalan, Lenin and Rajaram had

destroyed the railway bridge. A1-Senthilkumar left the place

telling him that if he discloses it to anyone, all members of

his family will be killed. This portion of his evidence finds

sufficient corroboration from other evidence on record and,

therefore, we are of the opinion that reliance can be placed

on it. Thus, A1-Senthilkumar’s involvement in the crime is

proved to the hilt by his confessional statement recorded by

PW-37 Ramanujam; by the evidence of PW-13 Paramsivam

who stated that posters were seized from the place where

blast occurred; by the evidence of PW-32 Ramakrishnan

which indicates that those posters were in his handwriting

and the statement of PW-15 Sevi Periyasamy which indicates

his role. The trial court, therefore, has rightly convicted him.

36

Page 37 28.So far as A2-Periyasami is concerned, in his

confessional statement A1-Senthilkumar has only stated that

Lenin took him to the house of PW-15 Sevi Periyasamy and

others joined him there in that house. When he reached

there, Lenin informed PW-15 Sevi Periyasamy that they have

been sent by A2-Periyasami. Apart from this, there is no

reference to A2-Periyasami in the confessional statement of

A1-Senthilkumar. PW-15 Sevi Periyasamy has stated that on

22/12/1993 A2-Periyasami came to him and stated that

Lenin and others will visit him and they will stay till night and

food should be provided to them. It appears from the

confessional statement of A1-Senthilkumar and evidence of

PW-15 Sevi Periyasamy that A2-Periyasami did not

participate in manufacturing of bombs, carrying them to the

scene of offence, planting them under the railway bridge and

causing the blast. There is a passing reference in PW-15

Sevi Periyasamy’s evidence that after the blast when he

asked A2-Periyasami about the blast, he told him that Lenin,

Karalan and Rajaram were responsible for the blast and if he

discloses this to anyone, all members of his family would be

37

Page 38 killed. This part of the statement of PW-15 Sevi Periyasamy

is not corroborated by any evidence on record. Thus, it

would not be safe to rely on it. We are, therefore, of the

opinion that the prosecution has not been able to establish

its case against A2-Periyasami beyond reasonable doubt. He

must, therefore, get benefit of doubt. In the circumstances,

the impugned judgment and order so far as it convicts and

sentences A1-Senthilkumar is confirmed. Conviction and

sentence of A1-Senthilkumar is confirmed. The impugned

judgment and order so far as it convicts and sentences A2-

Periyasami is set aside. He is acquitted. A2-Periyasami is on

bail. His bail bond stands discharged.

29.In the result, Criminal Appeal No.1272 of 2012 is

allowed and Criminal Appeal No.787 of 2013 is dismissed.

38

Page 39 …….……………………………..CJI.

(P. Sathasivam)

…………………………………… J.

(Ranjana Prakash Desai)

…………………………………… J.

(Ranjan Gogoi)

New Delhi;

April 11, 2014.

39