State of Tamil Nadu through Superintendent of Police, CBI/SIT v. Nalini

Facts

Former Prime Minister Rajiv Gandhi was assassinated on 21 May 1991 at a public meeting in Sriperumbudur, Tamil Nadu, by an LTTE human bomb (Dhanu), killing 15 persons and injuring many others. The prosecution alleged a wide LTTE-directed conspiracy involving clandestine infiltration, safe houses, wireless communication and logistical support culminating in the assassination. The Designated (TADA) Court convicted all 26 accused and sentenced all of them to death; the matter came to the Supreme Court on the mandatory death-sentence reference and appeals.

Issues

• What were the object and scope of the criminal conspiracy, and which of the accused were proved to be members of it under Section 120B IPC?
• Whether the offences attracted the Terrorist and Disruptive Activities (Prevention) Act, 1987 (Sections 3 and 4) or were punishable only under the IPC and allied laws.
• Whether confessions recorded under Section 15 TADA are admissible as substantive evidence and to what extent they can be used against a co-accused, abettor or conspirator tried in the same case.
• Whether the conviction and death sentence of each accused was sustainable on the evidence, including under Section 10 of the Evidence Act.

Arguments

The prosecution contended that a single overarching conspiracy masterminded by the LTTE leadership embraced infiltration, harbouring, wireless operation and the murder of Rajiv Gandhi, making every participant equally liable under Section 120B IPC and TADA, with Section 15 TADA confessions and Section 10 evidence proving membership. The defence argued that the confessions were involuntary and unreliable, that the real object was at most the murder of Rajiv Gandhi and not a 'terrorist act' striking terror in the people or overawing the Government under TADA, and that mere knowledge or association did not make a person a conspirator absent proof of agreement.

Held

The Supreme Court held that to convict under Section 120B IPC the prosecution must prove an agreement between two or more persons to do an illegal act or a legal act by illegal means, and that conspiracy, being usually hatched in secrecy, may be inferred from circumstantial evidence and the conduct of the parties. Once the agreement and its object are proved, every conspirator is liable for acts done by others in pursuance of the conspiracy, irrespective of the degree of individual participation. The Court held that a confession recorded under Section 15 TADA is admissible and can be used against a co-accused, abettor or conspirator charged and tried together, though the Judges differed on its precise weight (substantive versus corroborative). Applying these tests, the Court found the charge of conspiracy to murder under Sections 120B/302 IPC made out against the core conspirators but held that the TADA charges were largely not established, set aside many of the TADA convictions, and re-examined each accused's culpability, confirming the death sentence of only four (Nalini, Santhan, Murugan and Arivu) while reducing the sentences of others.

Ratio decidendi

The agreement is the gist of the offence of criminal conspiracy under Section 120A IPC; it may be proved by direct or circumstantial evidence, and once a conspiracy and its object are established every conspirator is vicariously liable for acts done by co-conspirators in furtherance of the common design. Section 10 of the Evidence Act and a confession under Section 15 TADA may be used against co-conspirators tried in the same case, but conviction requires proof of agreement, not mere knowledge or association.

Significance

A leading authority on the law of criminal conspiracy and on the evidentiary use of confessions against co-accused, repeatedly followed on Section 120B IPC and Section 10 Evidence Act. Under the new code the same principles govern Sections 61(1) and 61(2) BNS, 2023 (criminal conspiracy, replacing Sections 120A/120B IPC), Section 103(1) BNS (murder, replacing Section 302 IPC) and Section 8 of the Bharatiya Sakshya Adhiniyam, 2023 (acts and statements of conspirators, replacing Section 10 of the Evidence Act).

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