PERIYASAMI S/O. DURAISAMI NOVANAGARversusSTATE REPRESENTED THROUGH THE INSPECTOR OF POLICE, Q B.RANCH CID, TIRUCHIRAPPALLI, TAMIL NADU

•
'..

                    [2014) 11 S.C.R. 483


         PERIYASAMI S/O. DURAISAMI NOVANAGAR                      A
                              v.
    STATE REPRESENTED THROUGH THE INSPECTOR OF
     POLICE, 'Q' B.RANCH CID, TIRUCHIRAPPALLI, TAMIL
                           NADU.
             (Criminal Appeal No. 1272 of 2012)                   B
                       APRIL 11, 2014
      [P. SATHASIVAM, CJI, RANJANA ·PRAKASH DESAI
                . AND RANJAN GOGOi, JJ.]
                                                                  c
     Terrorist And Disruptive Act~vities (Prevention) Act, 1987
- ss. 3(2), 3(3), 4(1), 5 and f5 - Criminal conspiracy -
Accused allegedly manufactured explosive bombs and
caused blast of the rails of a bridge - Confessional statement
of A 1 - Conviction of A 1 and A2 - Sustainability - Held:        D
Confessional statement of A 1 was a major piece of evidence
against him - Evidence of PW-13 and PW-32 provided
necessary independent corroboration to the confessional
statement of A 1 - Incriminating wall posters found at the
scene of offence bore handwriting of A 1 which was a clinching    E
circumstance and established his guilt - However,
prosecution not able to establish case against A2 beyond
reasonable doubt - Conviction of A 1 confirmed while A2
acquitted - Penal Code, 1860 - s.1208 and 124 - Explosive
Substances Act- ss.3 and 5- Railways Act, 1989- s.150-            F
Prevention of Damage to Public Property Act - s.3 rlw s.4.

     Terrorist and Disruptive Activities (Prevention) Act, 1987
- s. 15 - Confessional statement under - Retracted
confessional statement - Evidentiary value of - Held:
Retraction does not always dilute or reduce or wipe out the       G
evidentiary value of a confessional statement - In each case,
the court will have to examine whether the confession was
voluntary and true and whether the retraction was an
afterthought - Evidence - Confession.
                              483                                 H
    484      SUPREME COURT REPORTS              [2014] 11 S.C.R. •


A       Evidence - Witness - Hostile witness - Appreciation of
    - Held: Evidence of a hostile witness need not be completely
    discarded - Prosecution can use that part of his evidence
    which is corroborated by other evidence on record.

          Disposing of the appeals, the Court
B
       HELD:1.1. The confessional statement of A1 is a
  major piece of evidence against him. A confessional
  statement recorded under Section 15 of the TADA, if
  found to be voluntarily made and is truthful and properly
C recorded, can form the basis of conviction. The
  contention that A1 has retracted his confession and,
  hence, it has no evidentiary value, cannot be accepted.
  Retraction does not always dilute or reduce or wipe out
  the evidentiary value of a confessional statement. In each
D case, the court will have to examine whether the
  confession was voluntary and true and whether· the
  retraction was an afterthought. In the case at hand, A1 's
  confessional statement was recorded after following the
  correct procedure; it was voluntary and truthful; A1 was
E not forced or compelled to give his statement and the
  retraction of the said statement is clearly an afterthought
  and should be ignored. [Paras 20, 21] [499-B; 500-E; 501-
  C-D; 502-A-B]

       1.2. The evidence of PW-13 and PW-32 provides
F necessary independent corroboration to the confessional
  statement of A1. That the incriminating wall posters found
  at the scene of offence bear handwriting of A1 is a
  clinching circumstance and goes a long way in
  establishing his guilt. The trial court, therefore, has rightly
G convicted him. [Paras 24, 27] [205-H; 503-A; 505-B]

      Yakub Abdul Razak Memon v. State of Maharashtra
  (2013) 3 SCALE 565; Kalawati v. State of Himachal AIR 1953
  SC 131: 1953 SCR 546; and State of Tamil Nadu v. Kutty
H AIR 2001 SC 2778: 2001(11) Suppl. SCR 433 and Bhajju
•    PERIYASAMI v. STATE REP. THR. THE INSt'. OF POLICE, 'Q' BRANCH   485
                           CID, TAMIL NADU .

    @Karan Singh v. State of Madhya Pradesh (2012) 4 SCC                    A
    327: 2012 (5) SCR 37 - relied on.

        Pu/in Das @ Panna Koch v. State of Assam (2008) 5
    SCC 89:.. 2008 (3) SCR 257; Prakash ffumar  \
                                                      @ Prakash
    Bhutto, etc. v. State of Gujarat (2007) 4 SCC 266: 2007 (5)             B
     SCR 532; Vijf!yan, etc. v. State of Kera/a (1999) 3 SCC 54:
    1999 (1) SCR 659 and State v. Nalini & Ors. (1999) 5 SCC
    253: 1999 (3) SCR 1 - referred to.

        2. However, the prosecution has not been able to
    establish its case against A2 beyond reasonable doubt.                  C
    He must, therefore, get benefit of doubt. In the
    circumstances, the conviction of A1 is confirmed while
    A2 is acquitted. [Paras 28, 29) [505-G-H; 506-A-B]

                           Case Law Reference:                              D
        2008 (3) SCR 257                  referred to          Para 11
        2007 (5) SCR 532                  referred to          Para 11
        1999 (1) SCR 659                  referred to          Para 11
                                                                            E
        1999 (3) SCR 1                    referred to          Para 12
         (2013) 3 SCALE 565               relied on            Para 12
        1953 SCR 546                      relied on            Para 23
         2001 (11) Suppl. SCR 433 relied on                    Para 23      F

         2012 (5) SCR 37                  relied on            Para 26

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1272 of 2012.
                                                                            G
         From the Judgment & Order dated 27.06.2012 of the
    Principal Sessions Judge and Designated Judge under TADA
    (P) Act, Tiruchirapalli in Calender Case No. 45of1995 in Crime
    No. 307/1992.
                                                                            H
    486      SUPREME COURT REPORTS             (2014] 11 S.C.R. •


A                               WITH
    Crl. A. No. 787 of 2013.

       M.S. Ganesh, S. Gowthaman, K. Paarivendhan, S. Setllu
    Mahendran, R. Ayyam Perumal for the Appellant.
B
        Subramonium Prasad, AAG, M. Yogesh Kanna, Rajeew
    Dalal, Vanitha C. Giri for the Respondent.

          The Judgment of the Court was delivered by
c         (SMT.) RANJANA PRAKASH DESAI, J. 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
D 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
E Periyasami ('A2-Periyasami' for convenience).

       2. According to the prosecution; on 24/10/1992, PW-10
  Ramasamy was driving Quilon Express (Train No.6105). Vlfhen
  the train reached near Maruvathur Peria Odai Bridge No.276,
F 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 placed on the track covered
G with green leaves. At that time, they heard a loud noise near
  the bridge situated at a distance of 1 KM. 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
H reached Palanganatham. He instructed PW-1 Antonisamy, PW-
•    PERIYASAMI v. STATE REP. THR. THE INSP. OF POLICE, 'Q' BRANCH   487
             CID, TAMIL NADU [RANJANA PRAKASH DESAI, J.J


    4 Hazi Salahudeen, PW-6 Thangaraj and PW-7 Ponnaian to                 A
    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            8
    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            C
    were found broken and dislocated and rails found bent
    upwards.

         3. On information being received from the control room
    about the bomb blast on the railway line, PW-29 Hyder Ali              D
    Khan, Sub-Inspector of ::Jolice, 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                 E
    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       F
    was started. It appears from the evidence of PW-40
    Pattabiraman, the Inspector of Police of "Q" Branch CID,
    Tiruchirappaffi that after he took over investigation, he
    interrogated PW-15 Sevi Periyasamy. He got the leads.
    Involvement of A1-Senthilkumar, A2-Periyasami and other                G
    accused was disclosed. A 1-Senthilkumar was arrested on 17/
    12/1993. On his search, five gelatin sticks concealed in 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             H
    488     SUPREME COURT REPORTS                  [2014] 11 S.C.R.      •


A confessional statement of A1-Senthilkumar was recorded by
  PW-37 Ramanujam, Superintendent of Police, "Q" Branch CID
  under Section 15 of the TADA, after fo!lowing the necessary
  procedure. A2-Periyasami was arrested on 9/1/1994.

B         4. Upon completion of investigation, PW-40 Pl
    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 A 1-Senthilkumar, A2-Periyasami along
C   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
D   damage to Central and State 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-
E   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
F   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 wa:> averted because the engine driver stopped the
G   train noticing the boulders on the rails. It was also alleged that
    on 17/12/1993 A 1-Senthilkumar was in unathorised possession
    of detonators and gelatin sticks without any permit. The report
    alleged various charges under the TADA, the Explosive
    Substances Act, the Prevention of Damage to Public Property
    Act and the Railways Act against the accused.
H
•     PERIYASAMI v. STATE REP. THR. THE INSP. OF POLICE, 'Q' BRANCH   489
              CID, TAl\lllL NADU [RANJANA PRAKASH DESAI, J.]


         5. As accused Rajaram @ Madhavan was absconding, the               A
    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 A 1-Senthilkumar
    for offences under Section 120(8) IPC read with Section 3(3)            8
    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            c
    Section 120(8) 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. A 1-Senthilkumar and A2-Periyasami pleaded not guilty          D
    to charges. Two defence witnesses were examined to establish
    that the police threatened them and asked them to produce A1-
    Senthilkumar thus suggesting that A 1-Senthilkumar was falsely
    implicated. The prosecution examined 41 witnesses.
                                                                            E
        8. After perusing the evidence, the trial court convicted A 1-
    Senthilkumar under Section 120(8) 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            F
    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            G
    imprisonment for a further period of 6 months for offence under
    Section 120(8) of 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         H
A
    490     SUPREME COURT REPORTS               [2014] 11 S.C.R.


  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
B 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
c 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
D 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.7,000/-). Substantive sentences were to run concurrently.
E
       9. The trial court convicted A2-Periyasami under Section
  120(8) 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
F 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(8)
  of the IPC read with Sections 3(3) and 4(1) of the TADA;
G 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
H imprisonment for a further period of 6 months for offence under
•     PERIYASAMI v. STATE REP. THR. THE INSP. OF POLICE, 'Q' BRANCH
              CID, TAMIL NADU [RANJANA PRAKASH DESAI, J.l

    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
                                                                      491


                                                                            A

    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.            B
    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              c
    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           D
     evidence of PW-15 Sevi Periyasamy and his wife PW-14
     Chandra because both of them have turned hostile. The
    .prosecution has not 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        E
     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.
                                                                            F
         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 Putin Das @ Panna Koch v. State of Assam', counsel                   G
    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

    1.   (2008) s sec 89.                                                   H
    492       SUPREME COURT REPORTS             [2014] 11 S.C.R.     •   .


A 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 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.
B 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
c who were likely to come for a function. Relying on Prakash
  Kumar@ Prakash Bhutto. etc. v. State of Gujarat', 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
o 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 Kerafa 3 • Counsel submitted that no
E witness has made any 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-
F Periyasami has undergone two years and nine months sentence
  and this fact may also be taken into consideration.

       12. Mr. Subramonium Prasad, Addi. 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
G 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
    2.   (2007) 4 sec 266.
H 3. (1999) 3 sec 54.
•    PERIYASAMI v. STATE REP. THR. THE INSP. OF POLICE, 'Q' BRANCH
             CID, TAMIL NADU [RANJANA PRAKASH DESAI, J.]

    subsequent retraction or its denial in statement recorded under
    Section 313 of the Code, it can be relied upon. In this
                                                                     493


                                                                           A

    connection, counsel relied on State v. Nalini & Ors.• and
    Yakub Abdul Razak Memon v. State of Maharashtra 5 •
    Counsel submitted that in this case apart from the confessional
    statement of A 1-Senthilkumar, there is other evidence on record       B
    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           C
    witnesses show that the handwriting on the incriminating
    posters found at the scene of occurrence is that of A 1-
    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            D
    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 A 1-Senthilkumar.
    Counsel urged that since the involvement of the appellants is
     proved beyond doubt, the appeals be dismissed.                        E

         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
    in between Kms. 292/6 and 7 situated between Kallakudi
    Pazhanganatham and Kallagam Railway Stations, which
                                                                           F
    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         G
     concerned, the prosecution has examined PW-1 to PW-13,
     who are railway employees. It is not necessary to deal with their


    4.   (1999) 5 sec 253.
    5.   (2013) 3 SCALE 565.                                               H
    494      SUPREME COURT REPORTS                  [2014] 11 S.C.R.


A 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.
8 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
c witnesses does not have any adverse impact on the
  prosecution case. We may also note 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                  -'
0 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
E 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 ~d
  celebrated Ambedkar birthday function in 1991. He met A2~
F 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 other person who had
G 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 h,ad come to participate in the
  function and they will stay in his house till night.' He put a cot in
H the cattle shed and asked them to sit. He and his wife prepared
•
    PERIYASAMI v. STATE REP. THR. THE INSP. OF POLICE, 'Q' BRANCH   495
            CID, TAMIL NADU [RANJANA PRAKASH DESAI, J]

food for them. He saw both Lenin and Karalan removing the                 A
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 A 1-Senthilkumar
and Rajaram @ Madhavan wrote slogans on white colour paper                B
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                     c
purchase sulphur powder. Since they threatened him, out of fear,
he went to Perambalur and 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           o
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             E
 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          F
 A 1-Senthilkumar at Thuraimangalam junction road. A 1-
 Senthilkumar told him that he, Karalan, Lenin and Rajaram had
 destroyed the railway bridge. He told A 1-Senthilkumar that he
 cannot give him shelter in his house. A1-Senthilkumar went
 away telling him that if he discloses this to anybody, they wi!I         G
 finish his family. Therefore, in the 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.                                                               H
    496      SUPREME COURT REPORTS                  [2014] 11 S.C.R. •


A           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/
B   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
C   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 organizationI
                                                                 and he
    should provide food for them. He was again recalled on 28/9/
    2001. On that day, he stated that he saw Lenin when he came
D   to hls 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
E   suggestion that A 1-Senthilkumar did not meet him at his
    residence. He stated that the person, who accompanied Lenin,
    informed him that his name was A 1-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
F   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-
G   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 prosecutor,
    therefore, sought permission to cross-examine him. The public
H   prosecutor cross-examined him. In the cross-examination, he
•     PERIYASAMI v. STATE REP THR. THE INSP. OF POLICE, 'Q' BRANCH
              CID, TAMIL NADU [RANJANA PRAKASH DESAI, J.]


    · stated that he gave this statement at the dictates of the
      Investigating Officer.
                                                                     497


                                                                           A


         17. PW-40 Pl 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,         B
    he took A 1-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 A 1-Senthilkumar under Section 15
    of the TADA. On 20/12/1993, at 1800 hours PW-37                        c
    Ramanujam after ascertaining that A 1-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          D
     stated how he came in contact with one Murugesan, who was
     running an association to spread the ideology of 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,             E
     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-            F
      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    G
      drawing papers and two black and red colour sketch pens. They
      had brought wall papers and as instructed by Lenin and Karalan
     A 1-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       H
    498     SUPREME COURT REPORTS                 (2014] 11 S.C.R. •


A further stated that in between, Lenin and Karalan 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
B 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
C 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
  aoa.n.el and reached a railway bridge. Sitting below the bridge,
D Karalanflt!_t the gelatin and sulphur in the tin. He tied the
  detonator to9e!her 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 over the bridge. Karalan
E 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
F 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
G 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
H he was party to preparing, carrying and planting of bomb and
•     PERIYASAMI v. STATE REP. THR THE INSP. OF POLICE, 'Q' BRANCH   499
              CID, TAMIL NADU IRANJANA PRAKASH DESAI, J.]

    causing of the blast. It must also be stated here that A 1-            A
    Senthilkumar retracted his confessional statement. We shall
    advert to that a little later.

         20. Having referred to the relevant evidence, we shall now
    consider whether the prosecution has established its case              8
    against A 1-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 C
    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.
                                                                      D
         "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 property recorded E
                  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 sufficient to base conviction on the
                  maker of the confession.                           F

          (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.
                                                                    G
          (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 b1:1t in cases where the court is
                  satisfied that the probative value of such H


                                                                           ,
    500         SUPREME COURT REPORTS              [2014] 11 S.C. •


A                 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
B                 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
c                 comes to the conclusion that such cotroboration ·
                  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
D                 existence of facts mentioned in the confessional
                  statement.

          (v)          xxx       xxx             xxx           xxx'   1




E       It is clear, therefore, that a confessional statement mcorded
    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 Pl Pattabiraman
F produced A 1-Senthilkumar before PW-37 Ramanujam,
  Superintendent of Police "Q" Branch CID, Chennai for recording
  his confessional statement. On 22112/1993, PW-37
  Ramanujam recorded confessional statement of A 1-
  Senthilkumar after ascertaining that he was not threatened or
G induced to give his confessional statement. PW-37 Ramanujam
  obtained A1-Senthilkumar's signatures on each page of the
  confessional statement. A 1-Senthilkumar signed on the said
  confessional statement acknowledging that he was giving the
  statement voluntarily without any coercion and compulsion and
H
.ERIYASAMI v. STATE REP. THR. THE INSP. OF POLICE, 'Q' BRANCH     501
        CID, TAMIL NADU [RANJANA PRAKASH DESAI, J.]


 knowing its consequence. We have carefully read the evidence             A
 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 confessional statement was
 properly recorded; that A1-Senthilkumar was not forced or
 coerced into giving statement; that the statement is given               B
 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                c
 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            0
 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', this
                                                                          E
 Court stated that the amount of credibility to be attached to a
 retracted confession would depend upon the facts and
 circumstances of each case. Again in State of Tamil Nadu v.
 Kuttv7 , this Court stated that a retracted confession may form
 legal basis for conviction if the court is satisfied that the
                                                                          F
 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             G
 under Section 313 of the Code. The law is thus crystallized. A
 retrac.ted confessional statement is therefore not always
 worthless. We have no hesitation in reiterating that A 1-
  6.   AIR 1953 SC 131.
  7.   AIR 2001 SC 2778.                                                  H
    502      SUPREME COURT REPORTS                   [2014] 11 S.C.R. •


A   Senthilkumar's confessional statement was recorded after
    following the correct procedure; that it was voluntary and truthful;
    that A 1-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.
8
        24. In any case, there is sufficient corroboration available
  to the confessional statement of A 1-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
c 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
D of the bridge and found that the fish plates and the concrete
  portion of the brir;lge 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
E 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 series and
F 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
  specimer. handwriting, which were marked Ex-P/6 series. He
  compared the specimen handwriting with the handwriting
G 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 A 1-
  Senthilkumar taken by PW-40 Pl Pattabiraman. Thus, evidence
  of PW-13 M. Paramasivam and PW-32 K. Ramakrishnan
H
•    PERIYASAMI v. STATE REP. THR. THE INSP. OF POLICE, 'Q' BRANCH   503
             CID, TAMIL NADU [RANJANA PRAKASH DESAI, J.]

    provides necessary independent corroboration to the                    A
    confessional statement of A 1-Senthilkumar. The fact that the
    incriminating wall posters found at the scene of offence bear
    handwriting of A 1-Senthilkumar is a clinching circumstance and
    goes a long way in establishing his guilt.
                                                                           B
         25. So far as evidence of PW-15 Sevi Periyasamy is
    concerned it is argued that he was himself involved in the
    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         C
    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
                                                                           D
    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.           E
    A 1-Senthilkumar told him that blast was caused by him anq 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            F
    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            G
    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 Bhaiiu
                                                                           H
A
    504     SUPREME COURT REPORTS                  [2014] 11 S.C.R.


  @ Karan Singh v. State of Madhva Pradeshl8. 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
B 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-
c 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 tf'at recording
  of his evidence was unduly prolonged, and in that period, an
0 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.
E      27. We have extensively referred to the evidence of PW-
  15 Sevi Periyasamy. He stated how A 1-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
F that they left the house telling him that he should not ask them
  anything about their activities and he should read the next day's
  newspaper to know what they were doing. He has further
  stated that after the blast, he met A 1-Senthilkumar at
  Perambalur-Thuraimangalam Junction Road and he told him
G that he, Karalan, Lenin and Rajaram had destroyed the railway
  bridge. A 1-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
H a. (2012) 4 sec 327.
•     PERIYASAMI v. STATE REP. THR THE INSP. OF POLICE, 'Q' BRANCH   505
              CID, TAMIL NADU [RANJANA PRAKASH DESAI, J.]


    other evidence on record and, therefore, we are of the opinion         A
    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               B
    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.
                                                                           c
          28. So far as A2-Periyasami is concerned, in his
    confessional statement A 1-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 Pertyasamy that they have been
                                                                           0
    sent by A2-Periyasami. Apart from this, there is no reference
    to A2-Periyasami in the confessional statement of A 1-
    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    E
    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             F
    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 killed. This part of the statement of PW-15        G
    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
                                                                           H
   506      SUPREME COURT REPORTS             [2014] 11 S.C.R . •


A circumstances, the impugned judgment and order so far as it
  convicts and sentences A 1-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-
B Periyasami is on bail. His bail bond stands discharged.
        ' In the result, Criminal Appeal No.1272 of 2012 is
        29.
   allowed and Criminal Appeal No.787 of 2013 is dismissed.

   Bibhuti Bhushan Bose                      Appeals disposed of .




                          •