The Pirabhakaran Phenomenon
Part 30

Sachi Sri Kantha
[5 January 2002]

Rajiv Gandhi Assassination: the judicial angle of Justice D.P.Wadhwa

Merit in Justice D.P.Wadhwa’s Verdict

In a previous chapter [see, The Pirabhakaran Phenomenon – part 28], I had observed that brevity and lack of political cant are the merits in Justice S.S.M.Quadri’s verdict on the appeal of Rajiv Gandhi assassination trial. Justice Wadhwa’s lengthy verdict, running into 201 printed pages, has a different merit of its own. Considering that this particular assassination trial was conducted in secrecy where much information was suppressed to the public, Justice Wadhwa has made a quota of suppressed information available to researchers via his lengthy verdict. Unlike the newspaper reports, interviews and commentaries by partisan journalists, this information provided by Justice Wadhwa is unimpeachable. Also, many of the newspaper accounts of the verdict as well as Subramanian Swamy’s self-serving book on Rajiv Gandhi assassination, which I have studied, have distorted or omitted chunks of Justice Wadhwa’s verdict which questions the validity of the submitted evidence from the prosecution team. Having stated this I would add that, unlike Justice Quadri’s verdict, Justice Wadhwa’s verdict is not without political cant at infrequent locations

Justice Wadhwa’s verdict include the following details: details of the specific charges against the 26 accused, the names and designations of prosecution witnesses, the dates of arrest and dates of confession made by the 26 accused who were on trial, some interesting tidbits culled from the confession of the accused, unreliability of the post-assassination wireless messages submitted by the SIT as evidence to implicate LTTE in the assassination, and last but not the least – exposure on the incompetence of the Designated Judge Navaneetham as an impartial adjudicator of justice. Also, in specific aspects regarding whether the main accused (such as Sivarasan, Subha, Dhanu and Santhan – the first three were deceased accused, and Santhan was 2^nd accused under trial) were members of the conspiracy, Justice Wadhwa had even disagreed with fellow Justice K.T.Thomas’s findings.

The Prosecution Case

First, I will present the prosecution case as presented Justice Wadhwa. In one lengthy sentence exceeding 60 words, Justice Wadhwa introduced the prosecution case as follows:

“Prosecution case is that Prabhakaran, Pottu Amman, Akila and Sivarasan master-minded and put into operation the plan to kill Rajiv Gandhi which was executed by Sivarasan and Dhanu, of the two assassins (other being Subha), with the back-up of other accused, who conspired and abetted them in the commission of the crime which included providing them safe haven before and after the crime.” [p.7 of the verdict; in the printout of the verdict, available from the India’s Central Bureau of Intelligence website].

Then, between pages 40 and 43 of his verdict, Justice Wadhwa stated the prosecution’s view [italics added by me for emphasis; hereafter, abbreviations PW stands for prosecution witness, A stands for Accused, MO stands for Material Objects] of how the conspiracy to assassinate Rajiv Gandhi progressed. To quote,

“According to prosecution, conspiracy was activated with the publication of an interview of Rajiv Gandhi in Sunday magazine and how the conspiracy was put into operation.” [p.40 of the verdict].

Pertaining to this interview, Justice Wadhwa mentioned in the previous page,

“Aveek Sarkar (PW-255) had an interview with Rajiv Gandhi which was published in the Sunday magazine issue of August 12-19, 1990. The interview is dated July 30/31, 1990. In the interview, Rajiv Gandhi supported the Accord and criticized V.P.Singh in withdrawing the IPKF. He said there was no rationale behind the withdrawal and as things till then had not stabilized and Accord had not been fully implemented.”

The prosecution view of how conspirators arrived in India in seven groups, in Justice Wadhwa’s words, were as follows. To quote,

“First group of conspirators to achieve the object of conspiracy arrived in India on September 12, 1990. This group consisted of Vijayan (A-12), Selvaluxmi (A-13) and Bhaskaran (A-14). Bhaskaran (A-14) is father of Selvaluxmi (A-13). They arrived at Rameshwaram in India like other refugees from Sri Lanka and got themselves registered. At Jaffna in Sri Lanka they were seen off by deceased accused Sivarasan without paying any toll to LTTE.” [p.40 of the verdict]

“Second group comprising Robert Payas (A-9), his wife Prema, his sister Premlatha, Jayakumar (A-10) and his wife Shanti (A-11) came to India from Sri Lanka on 20.9.1990 [i.e, Sept.20, 1990] as refugees and reported at Rameshwaram. [p.41 of the verdict]

“Third group comprising Ravi (A-16) and Suseendran (A-17) along with Sivarasan arrived in India from Sri Lanka in the end of December 1990. Both Ravi (A-16) and Suseendran (A-17) are Indian Tamils. This group was seen off at Sri Lanka by Pottu Amman. [p.41 of the verdict]

“Fourth group comprising Arivu (A-18) and Irumborai (A-19) came to India in October 1990. They had gone to Sri Lanka in May 1990 with Baby Subramaniam where they had met Prabhakaran [p.41 of the verdict]

“In the fifth group there is only one person – Murugan (A-3), who arrived in India clandestinely in the third week of January 1991 with the directions from Pottu Amman [p.41 of the verdict]

“Sixth group comprising Kanagasabapathy (A-7) and Athirai (A-8) came to India on 23.4.1991 [i.e, April 23, 1991] and was seen off by Pottu Amman with certain specific instructions in an LTTE boat with escort. [p.42 of the verdict]

“Seventh and the last group consisting of nine persons under the leadership of Sivarasan arrived at Kodiakkarai on 1.5.1991 [i.e, May 1, 1991] in an LTTE boat. This group was seen off by Pottu Amman on 27.4.1991 [i.e, April 27, 1991]. The boat in which they were traveling developed a snag and had to return. They left shore of Sri Lanka on 30.4.1991 [i.e, April 30, 1991] when again Pottu Amman was there to see them off. Nine persons were Sivarasan, Santhan (A-2), Shankar (A-14), Vijayanandan (A-5), Ruban (A-6), Subha, Dhanu, Nero and Keerthi. Last four and Sivarasan are deceased accused.” [p.43 of the verdict]

Major Findings of Justice Wadhwa

Justice Wadhwa, in pages 161-163 of his verdict, had offered the following nine findings. I have added italics to certain findings, for emphasis. To quote in full,

“1. Presence of LTTE on Indian soil before and after Indo-Sri Lankan Accord is undisputed. Its activities went ostensibly underground after the Accord. LTTE was having various activities in India and some of these were (1) printing and publishing of books and magazines for LTTE propaganda, (2) holding of camps for arms training in India and various other places in Tamil Nadu (This was done openly till the Indo-Sri Lankan Accord), (3) collection and raising of funds for its war efforts in Sri Lanka, (4) treatment of injured LTTE cadres in India, (5) medical assistance and (6) transporting of goods like petrol, diesel, lungies, medicines, wireless equipments and explosives and even provisions to Sri Lanka.

2. Hiring of houses in Tamil Nadu was for various activities of the LTTE, which included houses for the treatment of injured LTTE cadres.

3. Sivarasan was having other activities in Tamil Nadu. He was to make arrangements for Santhan (A-2) to go to Switzerland and for Kanagasabapathy (A-7) and Athirai (A-8) to go to Delhi and from there to Germany. He was to make arrangement to recruit persons to impart arms training in Sri Lanka through Ravi (A-16) and Suseendran (A-17) and to arrange houses at Madras through Robert Payas (A-9), Jayakumar (A-10) and Vijayan (A-12) for the stay of LTTE cadres not necessarily for conspirators. He financed Vijayanandan (A-5) in Madras for purchase of books for LTTE library in Jaffna. Shanmugham (DA ; i.e, referring to deceased accused) in his confession (Exhibit for Prosecution – 1300) stated that Sivarasan with others stayed in a house at Kodiakkarai and they were arranging to send petrol and diesel oil by boat to LTTE in Sri Lanka.

4. In case of some of the accused including deceased accused there is no evidence whatsoever that they were members of the conspiracy. Prosecution has been unfair to charge them with conspiracy.

5. There is no evidence that all the nine persons, who arrived in India by boat on 1.5.1991 [i.e, May 1, 1991], namely, Sivarasan, Subha, Dhanu, Nero, Dixon, Santhan (A-2), Shankar (A-4), Vijayanandan (A-5) and Ruben (A-6), were members of the conspiracy. In this group there was Ruben (A-6), who came to India to have an artificial leg fixed which he had lost in a battle with Sri Lankan army. Sivarasan, Subha, Dhanu, Nero and Dixon are deceased accused.

[My observation: Of the nine persons, Justice Thomas in his verdict had noted that Sivarasan could belong to the first category of conspirators, and Santhan as belonging to the second category of conspirators even if he slip out of the first category; see, The Pirabhakaran Phenomenon – part 29. Thus, there was divergence in the views of two Justices.]

6. Prosecution also named Jamuna @ Jameela (DA) as a conspirator, who had also come to India for fixing an artificial limb, which she had also lost in a battle with Sri Lankan army. There is not even a whisper in the whole mass of evidence that she had even knowledge of any conspiracy to kill Rajiv Gandhi. Simply because she was found dead having committed suicide along with Sivarasan, Subha and others at Bangalore, could not make her a member of the conspiracy.

7. From frequent and unexplained meetings of some of the accused with others, who have been charged with conspiracy, it cannot be assumed that they all were members of the conspiracy. This is particularly so when LTTE was having various activities on Indian soil for its war efforts in Sri Lanka. Notebook (Exhibit for Prosecution –1168) seized by the police gives bio-data of some LTTE cadre working in India though that list is not extensive. It also contains the bio-data of Irumborai (A-19).

8. All the persons, who came from Sri Lanka during the strife, did not come through authorized channels. It is also to be seen if the accused now charged with conspiracy and alleged to have come to India in the guise of refugees were not in fact refugees. Rather evidence shows that Robert Payas (A-9), Jayakumar (A-10) and Shanti (A-11) as one group and Vijayan (A-12), Selvaluxmi (A-13) and Bhaskaran (A-14) as the second group, were in fact wanting to come to India due to conditions prevailing in Sri Lanka. They had no money to pay to LTTE. They were exempted from paying any toll to LTTE on their agreeing to hire houses in Tamil Nadu for stay of LTTE cadre and on their being promised help by LTTE. When they so agreed they were not aware that what was the object behind their hiring the houses. Evidence regarding providing shelter to the conspirators either before or after the object of the conspiracy has been achieved, is not conclusive to support the charge of conspiracy against them.

9. Robert Payas (A-9), Jayakumar (A-10) and Vijayan (A-12) were hard-core LTTE activists. They were living in Sri Lanka with their families and suffered because of the turmoil there. They may be sympathizers of LTTE having strong feelings against IPKF. Consider the background in which they accepted the offer of LTTE to meet their expenses in India. It could be that they themselves felled into the trap because of the circumstances in which their families were placed in Sri Lanka and the conditions prevailing there.”

Charges against the 26 Accused

In the words of Justice Wadhwa,

“Including the charge of conspiracy, which is charge No.1, there are 251 other charges framed against the accused for having committed various offences in pursuance to the conspiracy under Charge No.1. Out of these Nalini (A-1) has been charged on 121 different counts.” [p.12 of the verdict]

I tabulated the other charges for accused other than Nalini, as presented by Justice Wadhwa. Next to Nalini, Arivu (A-18) was charged on 63 counts. Next to Arivu, seven accused (A-7, A-8, A-10, A-11, A-12, A-13, and A-19) were charged on four counts each; seven other accused (A-3, A-14, A-21, A-23, A-24, A-25 and A-26) were charged on three counts each; six other accused (A-2, A-4, A-5, A-6, A-20 and A-22) were charged on two counts each; two remaining accused (A-9 and A-15) were charged on one count each. The charge No.1, which was common to all 26 accused were the following seven items:

120-B read with 302, 326, 324, 201, 212, 216 of Indian Penal Code.
3,4 and 5 of Explosives Substances Act, 1908
25 of Arms Act, 1959
12 of Passport Act, 1967
14 of Foreigners Act, 1946
6(1-4) Indian Wireless and Telegraphy Act, 1933
3, 4 & 5 TADA, 1987

The abbreviation TADA stands for Terrorist and Disruptive Activities (Prevention) Act. The Terrorist Act under Section 3(3) states, “Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.” [p.25 of the verdict]

The Terrorist Act under Section 3(4) states, “Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist shall be punishable with imprisonment for a term which shall not be less than five years but which may extent to imprisonment for life and shall also be liable to fine.” [p.25 of the verdict]

Of the 26 accused, eleven (A-7, A-8, A-10, A-11, A-12, A-13, A-14, A-16, A-17, A-19 and A-23) were charged under both Sections 3(3) and 3(4) of TADA; twelve (A-1, A-2, A-3, A-4, A-5, A-6, A-9, A-15, A-18, A-20, A-21 and A-22) were charged under Sections 3(3) only; the remaining three (A-24, A-25 and A-26) were charged under Sections 3(4) only.

Implying the system overload factor which cripples the Indian judiciary system leading to many accused spending a longer duration under detention in prison even before they become convicts [see, The Pirabhakaran Phenomenon – part 28] Justice Wadhwa also recorded that,

“We may refer to the preliminary submissions of Mr.N.Natarajan, senior advocate, who appeared for all the accused except Shanmugavadivelu @ Thambi Anna (A-15). He submitted that he is not challenging the convictions of various accused under the Foreigners Act, Passport Act, Explosive Substances Act, Indian Wireless and Telegraphy Act, Arms Act, and Sections 212 and 216 IPC. This he said was on account of the fact that for offences under these Acts accused were awarded sentence of imprisonment for two years or for a period less than two years which in any case has to be set off under Section 428 of the Code as they had been under detention throughout the period during trial. We are thus left to consider offences under Section 120-B IPC, 302/34 IPC, 362/34 IPC, 324/34 IPC and under Sections 3, 4 and 5 of TADA. [p. 35 of the verdict; IPC refers to Indian Penal Code.]

Purported LTTE links of the Main Accused whose Appeals were heard

From Justice Wadhwa’s verdict, one can tabulate the purported LTTE links of the 26 main accused, whose appeals were heard by the three-judge bench of the Indian Supreme Court. Among the 26, the following 16 were indicated by Justice Wadhwa, as having had links with LTTE as activists or helpers or sympathizers. They are namely,

Murugan (3^rd Accused): a Sri Lankan national and a hard-core LTTE activist
Vijayanandan (5^th Accused): a Sri Lankan national and is also a senior member of LTTE.
Ruben (6^th Accused): a Sri Lankan national and is an LTTE militant.
Kanagasabapathy (7^th Accused): a Sri Lankan Tamil and an LTTE helper.
Athirai (8^th Accused): a Sri Lankan and hard-core LTTE militant girl.
Robert Payas (9^th Accused): a Sri Lankan and hard-core LTTE activist.
Jayakumar (10^th Accused): a Sri Lankan and hard-core LTTE activist.
Vijayan (12^th Accused): a Sri Lankan Tamil and a helper of LTTE.
Ravi (16^th Accused): an Indian Tamil, and LTTE activist.
Suseendran (17^th Accused): an Indian Tamil, and LTTE activist.
Arivu (18^th Accused): an Indian Tamil and LTTE propagandist in India.
Irumborai (19^th Accused): an Indian Tamil and LTTE sympathizer.
Bhagyanathan (20^th Accused): an Indian Tamil, who purchased LTTE press from Baby Subramaniam at a very nominal cost.
Suba Sundaram (22^nd Accused): an Indian Tamil and owner of Subha News Photo Service and Subha Studio, a meeting point for LTTE activists.
Rangan (24^th Accused): a Sri Lankan national and LTTE activist, who joined the movement in 1983, came to India in 1989 and running a travel agency without permit.
Vicky (25^th Accused): a Sri Lankan national, who moved to India in 1990 and assisted the LTTE activist in getting medicines and acted as his helper.

Among these 16 accused, only two (namely Murugan and Arivu) were ultimately convicted on the charge of aiding and abetting the assassination of Rajiv Gandhi. Other 14 accused (nine Sri Lankan nationals and five Indian nationals) were acquitted from the main charge. Of the other two convicted for their roles in the assassination of Rajiv Gandhi, neither Nalini (the 1^st accused; an Indian national) nor Santhan (the 2^nd accused; a Sri Lankan national), were indicated as LTTE individuals by Justice Wadhwa. But, the status of Santhan in LTTE, as depicted by Justice Thomas, in his verdict, is in discordance to that of Justice Wadhwa.

In Justice Thomas’s verdict, “Santhan (A-2) is a Sri Lanka citizen. He was aged 22 during the relevant time. The evidence shows that he was a card-holder of the intelligence wing of the LTTE. He studied up to 5^th standard in a school at Jaffna. He came into contact with Sivarasan and they eventually became close to each other. In February 1988, Sivarasan suggested to him to continue his studies at Madras and LTTE would meet his expenses. Pursuant thereto he came to India in February 1990 and secured admission at Madras Institute of Engineering Technology. His educational expenses were met by LTTE.” [p.31 of Justice Thomas’s verdict.]

Specific References to Pirabhakaran in the Verdict

The following specific references to Pirabhakaran appeared in Justice Wadhwa’s verdict. I provide these examples, to substantiate a point which I note under a later section, ‘Unmentionables in the Verdict’ in this chapter.

“In the night of 3/4.10.1987 [i.e, Oct.3-4, 1987] when IPKF convoy was carrying ration it was attacked by LTTE and 11 Indian soldiers were killed. It was the flashpoint of breach between IPKF and LTTE and active confrontation between the two started. Prabhakaran, supreme leader of LTTE, went underground…”[p. 38 of the verdict]

“Prabhakaran at one stage even said that it [i.e, LTTE] was stabbed in the back by agreeing to the accord and had been betrayed…” [p.38 of the verdict]

“Two volumes of the book Satanic Force (MO-124 and MO-125) were published in India at the behest of LTTE which contained compilation of speeches of Prabhakaran and other articles and photographs showing the atrocities committed by IPKF on Tamils in Sri Lanka after the Accord and the animosity which Prabhakaran developed towards Rajiv Gandhi. The book was compiled by N.Vasantha Kumar (PW-75). He is an artist by profession. The printing and publishing of the book was authorised and financed by LTTE. It was published in January 1991 and contains information up to March 1990. In his statement Brig.Vivek Sapatnekar (PW-186), who was earlier in-charge of IPKF operations in Sri Lanka, also stated that the Accord was not having the support of LTTE. MO-125 (volume 2 of Satanic Force) contained the news item published in the Indian Express of April 1990 which quotes the speech by Prabhakaran saying that he was against the former leadership in India and that LTTE was not against India or Indian people. These two volumes of Satanic Force contain over 1700 pages. No article or writing has been pointed out from the Satanic Force from which it could be inferred that it was ever in the contemplation of Prabhakaran or any other functionary of LTTE questioning the sovereignty and territorial integrity of India rather they identified Rajiv Gandhi with the Accord and the atrocities committed by IPKF…” [p.39 of the verdict]

“In the writings and articles in the two volumes of Satanic Force there were scathing attacks on Shri Rajiv Gandhi, who was projected as the perpetrator of the sufferings of Tamils in Sri Lanka by sending IPKF. Prabhakaran when he came out of his hiding after about two and a half years he made statement in April 1990 that he was against the former leadership, Rajiv Gandhi… Rajiv Gandhi stood for territorial integrity of Sri Lanka and for role of various Tamil organizations in Sri Lanka for any Tamil solution. LTTE on the other hand claimed to be the sole representative body of Tamils there.” [p.40 of the verdict]

As a reminder, I would like to point out that the prosecution team, in its Procrustean data-torturing mode and wearing blinders, had presented the LTTE compilation Satanic Force to support its position that LTTE had animosity against Rajiv Gandhi. Similar or even worse level of animosity against Rajiv Gandhi was existing in the Sinhala press of Sri Lanka as well, from May 1987 until the day of his death. To top it, there was even an assassination attempt [not by LTTE!] on him in Colombo on July 30, 1987 which was cleanly captured in camera. Rajiv Gandhi became a saint to the partisan Sri Lankan press, only from May 22, 1991.

To continue, Justice Wadhwa’s observations in page 40 of his verdict,

“It was on this account, submitted Mr.Natarajan, that there was conspiracy to eliminate Rajiv Gandhi in order to prevent him from coming back to power. He said LTTE perceived the accord as object to stop creation of separate Tamil Elam which went against the basic objective of LTTE… Mr.Natarajan said that motive was not to overawe the Government of India or to create terror as was being alleged by the prosecution. Animosity of LTTE was only against Rajiv Gandhi who was identified with the Accord. Prabhakaran, the supreme leader of LTTE, had clearly stated more than once that he was not against the Indian Government and the Indian people.” [p.40 of the verdict]

Implicating Pirabhakaran through the Confessions of 2^nd and 3^rd Accused

The prosecution team had presented confessions of 2^nd Accused Santhan and 3^rd Accused Murugan as evidence for implicating Pirabhakaran as one of the conspirators to the assassination.

Confession of Santhan

According to Justice Wadhwa, “Santhan (A-2) is a Sri Lankan national. He knew Sivarasan as they both belonged to same town in Sri Lanka. According to Santhan (A-2) important decisions like murder of anybody could be taken only by Prabhakaran.” [p.75 of the verdict].

My Comment on Santhan’s confession

Santhan’s confession was taken on Sept.17, 1991 [p.45 of the verdict], after the death of Sivarasan. Justice Wadhwa’s specific choice of words deserve attention. In paraphrasing Santhan’s confession, he mentions about, ‘murder of anybody’ and not ‘murder of Rajiv Gandhi’ in specific. Justice Wadhwa also fails to inform whether Pirabhakaran had specifically told the 2^nd accused Santhan that Rajiv Gandhi would be assassinated. Santhan was identified by him as,

“a Sri Lankan national, in his confession talks of his role in the elimination of Padmanabhan, EPRLF leader and others in Madras but that is not the subject matter of the charge and it is no terrorist act. Santhan (A-2) was one of the nine persons, who came from Sri Lanka on a boat arriving at the shore of India on 1.5.1991 [i.e, May 1, 1991]. His leader was Sivarasan.” (pp. 166-167 of the verdict).

The last sentence, ‘His leader was Sivarasan’ is also of interest. Regarding the ‘mysterious status’ of Sivarasan, I will provide details released by Ranganath [the 26^th accused who was acquitted] after his acquittal, in the forthcoming ‘Espionage Angle’ chapter.

Confession of Murugan

According to Justice Wadhwa’s verdict,

“Murugan (A-3) when asked Sivarasan the reasons for killing of Rajiv Gandhi he replied that Kasi Anandhan (PW-242) [i.e, prosecution witness] had met Rajiv Gandhi at Delhi and was told that the meeting was very cordial there and if Rajiv Gandhi came to power he would help LTTE movement. Prabhakaran showed the letter written by Kasi Anandhan (PW-242) suggesting cordial relations to Pottu Amman and said that people like Kasi Anandhan (PW-242) should be removed from the movement. When Sivarasan met Prabhakaran he told him that ‘We must teach a lesson to Rajiv Gandhi through the girls since IPKF dishonoured women’. From this Murugan (A-3) understood that decision to assassinate Rajiv Gandhi was taken by Prabhakaran.” [p.75 of the verdict]

My Comment on Murugan’s confession

Murugan’s confession was recorded by the law enforcement personnel on Aug.8, 1991[p.45 of the verdict]. Murugan is identified as “a Sri Lankan national and a hard-core LTTE activist. He was member of the suicide squad of LTTE which he joined in January 1991.” [p. 167 of the verdict]. Even if one assumes that Murugan was indeed a member of the LTTE suicide squad, according to his confession, he has not heard directly from Pirabhakaran, the LTTE leader, on why Rajiv Gandhi need to be eliminated. But, Murugan ‘understood that decision to assassinate Rajiv Gandhi was taken by Prabhakaran’ from Sivarasan’s comment that Pirabhakaran had told him [Sivarasan] that ‘We must teach a lesson to Rajiv Gandhi through the girls since IPKF dishonoured women.’

I’m piqued by the interpretation and specific meaning by the prosecution team of the clause ‘We must teach a lesson’, which had been uttered by Pirabhakaran. Whether Sivarasan had met Pirabhakaran has not been proved beyond doubt. Even if one assumes that such a meeting would have taken place, it is obvious, that Pirabhakaran would have naturally spoken to Sivarasan in Tamil language, and not in English or any other language. I’m not certain about the fluency of Justice Wadhwa in Tamil language, but any native speaker in Tamil can vouch the clause, ‘teach a lesson’ (literal translation would in all probabilities be, Paadam padippikka vendum) has a range of connotations, which need not necessarily mean ‘assassination’. In my opinion, the validity of Murugan’s confession has some credibility problems indeed.

To support my view, I reproduce an excerpt from my column written under my pen name C.P.Goliard, which appeared in the Tamil Nation of June 15, 1992, under the title ‘The Tiger Ban’.

“The May 31^st issue [i.e, May 31, 1992] of the India Today magazine reported how Prabhakaran’s involvement in the Rajiv Gandhi assassination has been traced by the Special Investigation Team (SIT) in India. ‘According to the charge-sheet, the plan to eliminate the former prime minister was conceived by LTTE supremo, V.Pirabhakaran, in 1986 when he was detained at Tamil Nadu House in New Delhi before the start of the SAARC summit. A telephone conversation between Pirabhakaran and Anton Balasingham, his political adviser in Madras, which was taped by the Intelligence Bureau recorded his angry outbursts against Rajiv Gandhi who, he said, should be ‘fixed’ once he gets out of Indian soil.’

What a flimsy piece of evidence for the motive attributed to Prabhakaran’s grouse against Rajiv? If the Intelligence Bureau had tapped the telephone calls of all the politicians opposed to Rajiv Gandhi from Kashmir to Kerala, they would have received adequate angry outbursts against Rajiv Gandhi.”

Thus, according to the original charge-sheet prepared by the SIT, believe it or not, Pirabhakaran had conceived elimination of Rajiv Gandhi, well before the Indian army landed in Eelam. If so, his ‘purported quip’ to Sivarasan that ‘We must teach a lesson to Rajiv Gandhi through the girls since IPKF dishonoured women’ from which Murugan had understood that the decision to assassinate Rajiv Gandhi was taken by Pirabhakaran is somewhat oxymoronic.

Mahathaya Connection in Athirai’s Confession

Justice Wadhwa’s information in p.171 of his verdict about Athirai, the 8^th accused, is of special interest too. Justice Wadhwa had stated,

“Athirai (A-8), a hard core LTTE militant girl, came to India in the last week of April 1991 in an LTTE boat from Sri Lanka. Athirai (A-8) in her confession said that she got specialised training in LTTE camps. She was assigned the work of gathering intelligence on the operations and movements of Sri Lankan army and other rival organisations like EPRLF, PLOT, etc. Reports, she prepared, would be handed over by her to Mathiah, another LTTE leader.”

Athirai had made her confession on Aug.29, 1991 (p.46 of the verdict). Here is another ‘smoking gun’ that the then LTTE deputy leader, Mahathaya, was intentionally overlooked by the SIT officials, when charge sheet on Rajiv assassination trial was finalized in May 1992.

Verdict of Justice Wadhwa

I summarise the verdict of Justice Wadhwa as follows:

(1) “We acquit Shanti (A-11), Selvaluxmi (A-13) and Shanmugavadivelu (A-15) of all charges. Their conviction and sentence are set aside.

(2) None of the accused has committed any offence under Section 3, 4 or 5 of TADA. Their conviction and sentence under these Sections are set aside.

(3) Conviction and sentence of the accused except, Nalini (A-1), Santhan (A-2), Murugan (A-3) and Arivu (A-18) under all other charges are maintained. Conviction and sentence of all the accused under Section 120B IPC read with all other counts as mentioned in charge No.1 is set aside except conviction of Nalini (A-1), Santhan (A-2), Murugan (A-3) and Arivu (A-18) under Section 120B read with Section 302 IPC.

(4) In view of these discussions, Shanti (A-11), Selvaluxmi (A-13) and Shanmugavadivelu (A-15) are to be released forthwith. All other accused except Nalini (A-1), Santhan (A-2), Murugan (A-3) and Arivu (A-18) would also be entitled to be released forthwith as it was pointed out to us that they have already undergone imprisonment for a period of more than the sentence of imprisonment awarded to them. In case they are not required to be detained in any other case they shall also be released forthwith.

(5) We confirm the conviction of Nalini (A-1), Santhan (A-2), Murugan (A-3) and Arivu (A-18) under Section 120B read with Section 302 IPC.

(6) This is a case where all these Nalini (A-1), Santhan (A-2), Murugan (A-3) and Arivu (A-18) deserve extreme penalty. We confirm the award of sentence of death on them.”

Such a verdict was arrived at by Justice Wadhwa, after allowing that the confessions made by the accused (1^st, 2^nd, 3^rd, 8^th, 9^th, 10^th, 12^th, 15^th, 16^th, 17^th, 18^th, 19^th, 20^th, 21^st, 23^rd, 24^th and 25^th) following their arrests were permissible.

Confessions: a debatable point

Justice Wadhwa, in pp. 47-48 of his verdict, had included the following seven objections made by Mr.N.Natarajan, the leading defence counsel who represented all the accused, except 15^th.

“Mr.Natarajan [said that confessions of the accused could not be taken into consideration. His arguments were:

(1) all these confessions have been retracted by the accused having being taken under coercion and under Police influence;

(2) sufficient time was not given to accused before recording of the confession. They were given only few hours to reflect if they wanted to make any confession;

(3) under the provisions of the Code as amended by TADA, the Police took full remand of the accused for 60 days and when a day or so before the remand was to expire the accused were made to give their confessions. There is, thus, every possibility of the confessions being extracted. It cannot also be ruled out that the confessions were obtained by causing physical harm to the accused and playing upon their psychology;

(4) confessions of Nalini (A-1) and Arivu (A-18) are otherwise inadmissible as mandatory provisions contained in Sections 15 of TADA and Rule 15(3) of TADA Rules have been violated;

(5) all the accused were kept together in a building called Malagai [Note: referring to Malligai] situated at Green Pass Road, Madras which were the headquarters of CBI. Firstly, remand was taken for one month but no confession came to be recorded. Further remand of one month was taken. During this period, Ponamalai sub-jail was denotified as jail and handed over to CBI and converted into Police Station. All the accused were transferred there and again kept together under the control of special investigation team of CBI. Legal principles required that the accused should have been kept separate and sufficient time should have been given to them for their minds to reflect if they wanted to make clean breast of the whole thing;

(6) it is settled law that confession of an accused cannot be used for corroboration of the confession made by co-accused. The rule of prudence so requires; and

(7) all these confessions are post-arrest confessions and confession of one accused cannot be used against the other even with reference to Section 10 of the Evidence Act. It could not be said that object of conspiracy was not accomplished by the assassination of Rajiv Gandhi and that the conspiracy was still in existence.”

However, following extensive citation from the archives, Justice Wadhwa asserted that the confessions of accused are ‘admissible evidence’. According to him,

“ ‘Admissible’ according to Black’s Law Dictionary means, ‘pertinent and proper to be considered in reaching a decision. Used with reference to the issues to be decided in any judicial proceeding.’

It defines ‘Admissible evidence’ as, ‘As applied to evidence, the term means that the evidence introduced is of such a character that the court or judge is bound to receive it; that is, allow it to be introduced at trial. To be ‘admissible’ evidence must be relevant, and, inter alia, to be ‘relevant’ it must tend to establish material proposition…’ If we again refer to Black’s Law Dictionary, ‘substantive evidence’ means ‘that adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness (i.e. showing that he is unworthy of belief), or of corroborating his testimony’.

TADA was enacted to meet extra-ordinary situation existing in the country. Its departure from the law relating to confession as contained in Evidence Act is deliberate. Law has to respond to the reality of the situation. What is admissible is the evidence. Confession of the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative….” [p. 59 of the verdict]

Then, after quoting a few precedent-setting cases, Justice Wadhwa inferred that,

“…we hold the confessions of the accused in the present case to be voluntarily and validly made and under Section 15 of TADA confession of an accused is admissible against co-accused as a substantive evidence. Substantive evidence, however, does not necessarily mean substantial evidence. It is the quality of evidence that matters. As to what value is to be attached to a confession will fall within the domain of appreciation of evidence. As a matter of prudence court may look for some corroboration if confession is to be used against a co-accused though that will again be with the sphere of appraisal of evidence.” [pp.60-61 of the verdict]

Next 77 pages of Justice Wadhwa’s verdict, from page 61 to page 137, described in detail the confessions of the accused and the “evidence linking the accused with each other as projected by the prosecution.” Then, Justice Wadhwa had summarized the stand of the leading defence counsel, as follows:

“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….” [p. 138 of the verdict]

Observation of Justice Wadhwa on terrorism

Justice Wadhwa, in page 140 of his verdict, had inferred,

“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 be 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 the 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.”

Political Cant On Pirabhakaran

In page 143 of his verdict, Justice Wadhwa, while reiterating that none of the accused under trial had any terrorizing intention, added tangentially his bit of political cant on Pirabhakaran as well.

“In the present case, … we do not find any difficulty in concluding that evidence does not reflect that any of the accused entertained any such intention or had any of the motive to overawe the Government or to strike terror among people. No doubt evidence is there that the absconding accused Prabhakaran, supreme leader of LTTE had personal animosity against Rajiv Gandhi and LTTE cadre developed hatred towards Rajiv Gandhi, who was identified with the atrocities allegedly committed by IPKF in Sri Lanka. [Note by me: the specific use of the word, ‘allegedly’ is a pointer to the political cant. If IPKF did not commit atrocities, how come nearly 6,000 non-combatant Eelam Tamils died between Oct.1987 and March 1990? ] There was no conspiracy to the indiscriminate killing of persons. There is no evidence directly or circumstantially that Rajiv Gandhi was killed with the intention contemplated under Section 3(1) of TADA. State of Tamil Nadu was notified under TADA on 23.6.1991 [i.e, June 23, 1991] and LTTE was declared an unlawful association on 14.5.1992 [i.e, May 14, 1992] under the provisions of the Unlawful Activity (Prevention) Act, 1957. Apart from killing of Rajiv Gandhi no other terrorist act has been alleged in the State of Tamil Nadu. Charge may be there but there is no evidence to support the charge... Mr.Natarajan said it was the case of the prosecution itself that Prabhakaran had personal animosity against Rajiv Gandhi developed over a period of time and had motive to kill him.”

On the prosecution team’s difficulty in proving the charges under TADA

Justice Wadhwa then observed the difficulty faced by the prosecution team in proving the charges under TADA. To quote,

“Mr.Altaf Ahmad [the Additional Solicitor General, leading the prosecution team] realised the difficulty he had to face to show that any offence under Sections 3 and/or 4 of TADA had been committed. He submitted that charges in the present case showed the dimension of the conspiracy and the nature of the crime committed on 21.5.1991 [i.e, May 21, 1991]. He said the object of the conspiracy was to commit terrorist act and use of bomb, etc. was the means to achieve that object and that the consequence was to overawe the Government and to create terror in the minds of the public and it was with that object that Rajiv Gandhi and others were killed. He said object of the conspiracy was not accomplished on the killing of Rajiv Gandhi but it continued even after his death as LTTE targeted places and persons spread across the country. There is no evidence that blasting of the buildings like Vellore Fort, police headquarters, was the object of conspiracy or that was to be done with intention to overawe the Government or to create terror among the public. Charge does not specify any such intention or the places. Similar is the position regarding unspecified targets in Delhi. According to him conspiracy was not abandoned and did not culminate with the assassination of Rajiv Gandhi though the assassination of Rajiv Gandhi overshadowed other activities…

Mr.Altaf Ahmad said that though the approach of the Designated Court may have been different in construing the charge and it may not accord with the submissions made now before us and if we construe the charge of our own it is that the accused had committed a terrorist act on the soil of India and in the course of that killed Rajiv Gandhi in order to overawe the Government established by law not to pursue the Indo-Sri Lankan Accord. It was, however, not suggested as to what inquiry or additional evidence is contemplated by the prosecution. From the arguments of Mr.Altaf Ahmad it would appear that he is seeking amendment of the charge and if that is done it would require additional evidence or even retrial may have to be ordered. We do not think we should adopt any such course…[pp.143-144 of the verdict]

Overturning the judgment of the Designated Court delivered in Jan.28, 1998

In pages 146-148, Justice Wadhwa presented his verdict, overturning the judgment of the Designated Court, on the main charge [i.e, 3(3) and/or 3(4) of TADA] against all the 26 accused. Though Pirabhakaran was not under trial, his name also received mention in some sentences. Thus, I present the complete verdict, though lengthy, without abridgment. As one would expect, it certainly was tinged with political flavor (probably as a sop to the prosecution team), though the learned judge was negating the arguments of prosecution as unacceptable. But, this is expected, since as I pointed out in a previous chapter [see, The Pirabhakaran Phenomenon – part 28], that the justice scale in current India is tainted with politicization, corruption and system overload. To quote Justice Wadhwa [with italics added by me, for emphasis.],

“Prosecution case now made out before us is that the object of conspiracy was to commit terrorist acts during the period 1987 to 1992; that the assassination of Rajiv Gandhi was one of such acts with the intention to overawe the Government and to strike terror; and the assassination was an act which struck terror and was also a disruptive activity. As to how it was intended to overawe the Government it was submitted that it was on account of Indo-Sri Lankan Accord, which the Government of India was to honour and that did not suit the aspirations of LTTE and thus the conspiracy was hatched to eliminate the person who was the author of the Accord and to threaten the successive Governments not to follow the Accord, otherwise that Government would also meet the same fate. But then, as noted above that there was a conspiracy to overawe the Government is nowhere in the charge. Though it could be said that terror was struck by assassination of Rajiv Gandhi but the question is if striking of terror was intended and for that again there is no evidence. Apart from the assassination of Rajiv Gandhi no other act which could be termed as terrorist act has been suggested.

The Designated Court in its impugned judgment does record any such argument now advanced before us. There is no discussion in the judgment and there is no evidence to which judgment refers to hold that there was any terrorist act intended to overawe the Government or to strike terror. The Designated Court has clearly held that on the assassination of Rajiv Gandhi object of conspiracy was successfully accomplished. Even if thus examining the proceedings in reference to our decision has to be made on the basis of evidence on record. When there is no evidence inference cannot be drawn that act of killing of Rajiv Gandhi was to overawe the Government. Even though there is no bar to the examination of the accused under Section 313 of the Code by this Court in these proceedings but then what is required to be put to the accused is to enable him to personally explain any circumstance appearing in the evidence against him and when there is no evidence, there is no necessity to examine the accused at this stage as that would be a futile exercise. When the prosecution during the course of the trial, which lasted over a number of years, had taken the stand that killing of Rajiv Gandhi was a terrorist act, it cannot now turn about and say that killing itself was not a terrorist act but was committed to achieve the object of conspiracy which was to overawe the Government. As a matter of fact in the statement of Kasi Anandhan (PW-242), who was a member of the Central Committee of LTTE, it has come on record that he met Rajiv Gandhi in March 1991 when Rajiv Gandhi supported the stand of LTTE and had admitted that it was his mistake in sending IPKF to Sri Lanka and wanted LTTE to go ahead with its agitation. That being the evidence brought on record by the prosecution there is no question of it now contending that there was conspiracy to overawe the Government. Its stand throughout has been that it was the personal motive of Prabhakaran and others to commit terrorist act by killing Rajiv Gandhi. Under Section 3(1) of TADA overawing the Government cannot be the consequence but it has to be the primary object. There is nothing on record to show that the intention to kill Rajiv Gandhi was to overawe the Government. Reference to the Indo-Sri Lankan Accord is merely by way of narration.

Support to the struggle of LTTE in Sri Lanka was from Tamil Nadu and it does not appeal to reason that LTTE would commit any act to overawe the Government. It is matter of common knowledge that all terrorist acts are publicized and highlighted which is fundamental to terrorism. Whenever a terrorist act is committed some organisation or the other comes forward to claim responsibility for that. In the present case LTTE tried to conceal the fact that it was behind the murder of Rajiv Gandhi. The object to assassinate was kept a closely guarded secret.”

Then, Justice Wadhwa refers to the two wireless messages transmitted by Sivarasan to Pottu Amman (dated May 7, 1991, which is denoted as Exhibit for Prosecution - 392) and by Pottu Amman to Sivarasan (dated May 22, 1991, which is denoted as Exhibit for Prosecution –396). Then, Justice Wadhwa refers to two letters of Subha and Dhanu to Akila and Pottu Amman (dated May 9, 1991), and another letter by Trichy Santhan (deceased accused) to Pirabhakaran (dated Sept.7, 1991, which is denoted as Exhibit for Prosecution-129). It appears that basically, these two wireless messages and three letters where in every one of them either the receiving party or sending party has died seems the submitted documentary evidence by prosecution to implicate LTTE and Pirabhakaran in the assassination of Rajiv Gandhi.

Justice Wadhwa continued further,

“We accept the argument of Mr. Natarajan that terrorism is synonymous with publicity and it was sheer personal animosity of Prabhakaran and other LTTE cadre developed against Rajiv Gandhi which resulted in his assassination. LTTE would not do any act to overawe the Government in Tamil Nadu or in the Centre as otherwise their activities in this country in support of their struggle in Sri Lanka would have been seriously hampered.

Charge of disruptive activities under Section 4(3) of TADA is against Nalini (A-1) and Arivu (A-18). There is no charge under Section 3(3) of TADA against Rangan (A-24), Vicky (A-25) and Ranganath (A-26). They are charged under Section 3(4) of TADA. Charge under Section 3(3) is against A-1 to A-23. If we examine one such charge, say charge No.235 against A-21 which says that she in pursuance to the criminal conspiracy referred to in charge No.1 and in course of same transaction during the period between January 91 and June 91 at Madras and other place in Tamil Nadu she had actively associated with and assisted other conspirators for carrying out the object of criminal conspiracy and thus she knowingly facilitated the commission of terrorist act or any act preparatory to terrorist act and which was committing the terrorist act by detonating the improvised explosive device concealed in waist belt of Dhanu and thereby A-21 committed an offence punishable under Section 3(3) of TADA. [Note by me: This lengthy sentence exceeding 100 words, though full of legalese is humorous indeed, where Justice Wadhwa exposed the fallacy of the prosecution team’s main argument.]

Designated Court held that hatred which developed in the minds [sic!] of Prabhakaran, further developed into animosity against Rajiv Gandhi in view of the events which took place after IPKF was inducted in Sri Lanka.

Thus examining the whole aspect of the matter we are of the opinion that no offense either under Sections 3 or 4 of TADA has been committed. Since we hold that there is no terrorist act and no disruptive activity under Sections 3 and 4 of TADA, charges under Section 3(3), 3(4) and 4(3) of TADA must also fail against all the accused.”

Unmentionables in the Verdict