Delip Chordia (PW-88) is a dealer of tyres and batteries. The name of his firm is International Tyres Service from whose shop Arivu (A-18) purchased the battery. He identified the battery (MO-209) sold to one Rajan on 3.5.1991. Battery (MO-209) was seized by M. Narayanan (PW-281), D.S.P. from the pit dug in the kitchen of the house occupied by Vijayan (A-12). Mohanraj (PW-254), wireless expert, stated that a wireless set could be operated using the 12 volt battery like MO-209. Wireless set was installed in the house of Vijayan (A-12) by making use of battery MO-209 for communication with LTTE leaders in Sri Lanka which was operated by deceased accused Nero, who was a wireless operator and came to India in nine member group on 1.5.1991.
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R. Ravichandran (PW-95) is a salesman of the showroom from where Kawasaki Bajaj motorcycle (MO-82) bearing registration No. TN-07-A-5203 was purchased by Arivu (A-18). The address which Arivu (A-18) gave while buying motorcycle was the address of Padma (A-21) when she was staying in Kalyani Nursing Home quarters. At the relevant time of purchase of motorcycle she was, however, staying in Royapettah house.
N. Moideen (PW-91) was working as a salesman in a shop in Royapettah High Road. He said that in the second week of May, 1991 he sold two golden power batteries for Rs.46. He was asked if he could identify the man whom police officers had brought to the shop as the person to whom he sold the batteries. He identified Arivu (A-18).
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G.J. Srinivasan (PW-252), Assistant Director, Tamil Nadu Forensic Science Laboratory, Madras after examining the portion of 9 volt golden power battery (MO-678) recovered from the scene of the crime gave opinion that these were the portions of 9 volt golden power battery.
Lt. Col. Manik Sabharwal (PW-157), Bomb expert and Dr. P. Chandrasekaran (PW-280), Director, TNFSL, Madras gave opinion that 9 volt golden power battery was used as power source in the belt bomb used by Dhanu. From the statement of N. Vasantha Kumar (PW-75) it was seen that Arivu (A-18) was connected with the printing and publication of propaganda material for LTTE including the book "Satanic Force". Dr. R. Kuppusamy (PW-194) said in his statement that after examining the exposed frames of negatives used by Haribabu at the scene of crime (Exh.P-735) that these were from Kodak colour film and that was used for camera (MO-1). The unexposed portion of the Kodak colour film is MO-542 which was cut and removed from Exh.P-735. The material which had been removed by Arivu (A-18) from the house of Padma (A-21) after learning the assassination of Rajiv Gandhi, was subsequently recovered on the basis of disclosure statement (Exh.P-1343). In his letter (Exh.P128) written by Trichy Santhan to Irumborai (A-19) he mentioned about the mistake committed in LTTE with the supporters of Sivarasan like Arivu (A-18) connected with Baby Anna.
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Mohanraj (PW-254) was working as officer-in-charge of International Monitoring Station at Perungudi, Madras. He has testified that wireless Trans receivers (MO-770) could be operated by using 12 volt D.C. battery like MO-209.
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Mr. Natarajan said that there was no evidence against any of the accused to bring home charge either under Section 3 or Section 4 of TADA, yet the prosecution wrongly alleged that there was conspiracy to commit acts of terrorism and disruptive activities under TADA and in that process Rajiv Gandhi was killed. He said apart from the killing of Rajiv Gandhi no other terrorist act had been shown to have been committed or disruptive activity shown to have been committed. There is no such act till May, 1991 though the prosecution has alleged the period of conspiracy being 1987 to 1992. Killing of Rajiv Gandhi could not be a terrorist act under Section 3 of TADA. Also there is no disruptive activity falling under Section 4 of TADA. Only Nalini (A-1) and Arivu (A-18) have been charged for offence under Section 4 of TADA. Charge No. 121 is against Nalini (A-1) and it says that in pursuance of the criminal conspiracy referred to in charge No. 1 and in furtherance of the common intention of Nalini (A-1) and deceased accused Sivarasan, Dhanu, Subha and Haribabu to commit disruptive activity at a public meeting at Sriperumbudur, where Nalini (A-1) was physically present at the scene of crime and provided assassin Dhanu (since deceased) with necessary cover from being detected as a foreigner, which enabled the assassin to move freely in the scene of crime and gained access nearer to Rajiv Gandhi where she (Dhanu) detonated the improvised explosive device concealed in her waist belt resulting in the bomb blast and killing of nine police officials who were public servants and who were at that time with Rajiv Gandhi on duty and Nalini (A-1) thereby committed an offence under Section 4(3) of TADA punishable under Section 4 (1) of TADA read with Section 34, IPC.
Charge No. 228 is against Arivu (A-18) and it is alleged against him that in pursuance to the criminal conspiracy and in course of the same transaction he abetted the commission of disruptive activity by purchasing two golden power battery cells during the first week of May, 1991, which were used by Dhanu (since deceased) to detonate improvised explosive device at Sriperumbudur on 21.5.1991 resulting in bomb blast and killing of nine police officials, who were public servants and were on duty at that time with Rajiv Gandhi and Arivu (A-18) committed an offence under Section 4(3) of TADA punishable under Section 4(1) of TADA and Section 109, IPC.
Mr. Natarajan said these two charges 121 and 228 showed as to how the court considered the disruptive activity and there is no mention in these charges if it was the killing of Rajiv Gandhi which could be termed as disruptive activity. Charges referred to the killing of police officers on duty. He said there is no discussion whatsoever in the judgment of the Designated Court as to how it considered that the case fell under Section 4(3) of TADA. There is no evidence to show propagation of anything as mentioned in Section 4(3) of TADA. Under Section 4(3) of TADA an accused can be said to have committed disruptive activity if he in any way (a) advocates, etc. or (b) predicts, etc. the killing or destruction of any person bound by oath under the Constitution to uphold the sovereignty and integrity of India or any public servant. The charges do not name Rajiv Gandhi as at the time he was killed he was not bound by any oath under the Constitution. He was not the Prime Minister. He was not an M.P. as Parliament stood dissolved and general elections in the country were in process. There is no evidence on record to show that Rajiv Gandhi was bound by any oath under the Constitution in any capacity whatsoever. As regards nine police officers who were killed they were not killed on account of any of the grounds mentioned in clauses (a) or
(b) of sub-section (3) of Section 4 of TADA. Subsection (2) of Section 4 of TADA defines disruptive activity and, in so far as it is relevant to sub-section (1), means any action taken whether by act or by speech or through any other media or in any other manner whatsoever which questions, disrupts or intended to disrupt directly or indirectly the sovereignty and territorial integrity of India. Mr. Altaf Ahmad said that the accused did question the sovereignty and integrity of India inasmuch as they expressed their resentment to the Indo-Sri Lankan Accord which had been approved by the Parliament. But then questioning or disapproving the Indo-Sri Lankan Accord would not mean that that would be questioning the sovereignty and integrity of India. When a member of the Opposition whether in Parliament or outside criticizes the Accord in public it could not be said that he is questioning the sovereignty and integrity of India. According to Mr. Altaf Ahmad the accused had chosen the target being Rajiv Gandhi and struck the target thus questioning the very ability of the country to take sovereign decisions. Mr. Natarajan said that death of Rajiv Gandhi as target did not find mention in any charge under Section 4 of TADA and no such question was put to any accused under Section 313 of the Code. Death of nine police officers though public servants was not on account of any of the grounds mentioned in sub-sections (2) or (3) of Section 4 of TADA but since target was Rajiv Gandhi and the intensity of the blast was so vast that the police officers died and so also the assassin Dhanu and photographer Haribabu. Mr. Natarajan, in our view, is right in his submission that no case under Section 4 of TADA has been made out in the case.
Under Section 3 of TADA in order there is a terrorist act three essential conditions must be present and these are contained in sub-section (1) of Section 3 - (1) criminal activity must me committed with the requisite intention or motive, (2) weapons must have been used, and (3) consequence must have ensued. It was contended by Mr. Natarajan that in the present case though the evidence may show that weapons and consequence as contemplated by Section 3(1) is there it is lacking so far as the intention is concerned. Prosecution had to prove that the act was done with the intention to over-awe the Government or to strike terror in people or any section of people or to adversely affect the harmony amongst different sections of people. There is no evidence that any of the accused had such an intention.
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