RAJIV GANDHI ASSASSINATION CASE

The final verdict

The Supreme Court reconfirms the death sentence awarded to four accused persons in the Rajiv Gandhi assassination case.

T.S. SUBRAMANIAN

BRINGING the curtain down on the Rajiv Gandhi assassination case, the Supreme Court on October 8 reconfirmed the death sentence awarded to Nalini, Santhan, Murugan and G. Perarivalan alias Arivu. A three-Judge Bench comprising Justice K.T. Thomas, Justic e D.P. Wadhwa and Justice Syed Shah Mohammed Quadri dismissed the petitions, by a two-one majority, of the four accused seeking a review of its judgment of May 11 this year sentencing them to death for their participation in the conspiracy to murder form er Prime Minister Rajiv Gandhi (Frontline, June 4, 1999). They had been sentenced to death under Section 120-B (conspiracy) read with Section 320 (murder) of the Indian Penal Code (IPC).

Justice Thomas, who gave the dissenting judgment, said Nalini's review petition "should be allowed and her sentence should be altered to imprisonment for life". (He had given a similar dissenting judgment with regard to Nalini on May 11.)

The three Judges rejected a petition from the Union of India, through the Central Bureau of Investigation (CBI), to review its May 11 conclusion that all the 26 accused in the case had committed no offence under the Terrorist and Disruptive Activities (P revention) Act, 1987, or TADA.

Senior advocate N. Natarajan, who appeared for Nalini, Murugan, Santhan and Perarivalan, said the four accused would seek presidential mercy; they would also move the Supreme Court to stay the death sentence until the President acted on their mercy petit ions, he added. The four prisoners are lodged in Central Prison, Vellore. Nalini is in the women's prison.

RAJIV GANDHI was assassinated on May 21, 1991 at Sriperumbudur, about 50 km from Chennai, by belt-bomb assassin Dhanu, who belonged to the Liberation Tigers of Tamil Eelam (LTTE), a few minutes before he was to address an election meeting. A Special Inve stigation Team (SIT) of the CBI was constituted to crack the case, with D.R. Karthikeyan (he went on to become CBI's Director) as its head. After a meticulous investigation, the SIT filed the charge-sheet on May 20, 1992 before the Designated Court at Po onamallee near Chennai. The charge-sheet named 41 persons as the accused and said that the LTTE was behind the assassination. Of the 41, three persons were "absconding": the LTTE's chief V.Prabakaran, its intelligence wing chief Pottu Amman, and deputy l eader of its women's intelligence wing Akila. Twelve of the accused including Dhanu and Sivarajan, who was the chief of the assassination squad, and Subha, a member, had died by the time the case reached the trial stage. The remaining 26 stood trial. Nal ini's mother Padma, and brother Bhagyanathan were among them. On January 28, 1998, Designated Judge V. Navaneetham awarded death sentence to all the 26 accused. All of them went in appeal to the Supreme Court.

The apex court disposed of the appeals on May 11. Justice Thomas, Justice Wadhwa and Justice Quadri held that it was the LTTE that was responsible for the killing. They confirmed the death sentence awarded to Nalini, Santhan, Murugan and Perarivalan.

N. SRIDHARAN
Murugan, one of the four on whom
the death sentence has been reconfirmed.

Justice Thomas, in a dissenting judgment with regard to Nalini, said: "One gets the impression, on reading her confession, that she was led into the conspiracy by playing on her feminine sentiments. She became an obedient participant without doing any do minating role. She was persistently brainwashed by A-3 (Murugan) who became her husband and then the father of her child... She realised only at Sriperumbudur that Dhanu was going to kill Rajiv Gandhi. But she would not have dared to retreat from the sce ne because she was tucked into the tentacles of the conspiracy... She knew how Sivarasan and Santhan had liquidated those who did not stand by them...."

Justice Thomas said it could not be overlooked that "she is the mother of a little female child who would not have experienced maternal cuddling as that little one was born in captivity..." Since the death sentence had been confirmed on the father (Murug an) and since the child had to be saved from "imposed orphanhood", Justice Thomas said, "the sentence passed on her is altered to one of imprisonment for life".

The death sentences given to Robert Payas, Jayakumar and Ravichandran by the trial court were also "altered" to life imprisonment.

Of the remaining 19, the three Judges cleared 18 of taking part in the conspiracy. Although the Judges confirmed the sentences under sections of the Arms Act, the Explosive Substances Act, the Passport Act and so on, the 18 persons were released from pri son because they had served out their terms. S. Shanmugavadivelu, who was charged only under TADA, was acquitted. Thus, 19 of the appellants were freed.

An important feature of the May 11 judgment was that Justices Thomas, Wadhwa and Quadri set aside the conviction and sentence by Designated Judge Navaneetham under Sections 3(3), 3(4) and 5 of TADA and acquitted all the 26 of charges under this Act. This signalled a victory for Natarajan.

Nalini, also on death row.

Nalini, Santhan, Murugan and Perarivalan filed petitions seeking a review of the death sentences. The Union of India, through the CBI, also filed petitions seeking a review of the finding that the offence was not committed by the accused with an intent t o strike terror in the people or any section of the people, and that on that account no offence under Section 3(3) of TADA had been made out.

Normally, a review petition in the Supreme Court is heard by the same Judges who gave the original judgment. Since the Judges had already heard the case fully and thoroughly, they do not give the right of audience to review petitioners. However, as an ex ceptional case, Justices Thomas, Wadhwa and Quadri thought it fit to allow arguments by both the parties. So arguments were advanced in the open court on September 28.

In his main order on October 8, Justice Wadhwa said advocate Natarajan did not challenge the guilt of the petitioners but sought a review on the question of award of the death sentence. Natarajan said the evidence that had been led to prove the charges u nder TADA could not be used while appreciating evidence regarding commission of offences under the IPC. He also pointed out certain errors in the judgment in recording the names of the accused, which, he said, could have a bearing on the award of the sen tence. Natarajan contended that the planners and perpetrators of the crime were dead; three of the seven accused had been sentenced to life imprisonment; and the remaining four could also be given life imprisonment.

Additional Solicitor-General for India Altaf Ahmed, who questioned the maintainability of the review petitions, said that no error that could have led to a miscarriage of justice had been pointed out. Only after examining the role of the accused from all angles did the Judges confirm the death sentences on the four, he contended.

Justice Wadhwa said it was difficult to accept Natarajan's arguments. The errors pointed out by Natarajan were not even contradictions, and they were inconsequential, he observed. After examining the role of each of the accused on the basis of evidence o n record, the roles of the four were found to be different from those of the three others, who were earlier sentenced to life imprisonment.

In the review petitions filed by the Union of India, Attorney-General Soli J. Sorabjee said that relevant considerations had not been taken into account to hold that the accused did not commit the offence with the intent to strike terror in the people or any section of the people. Sorabjee submitted that in the present case where several innocent persons had been killed, the impression could be gathered that the accused had committed the crime with the intent to strike terror in the people or any sectio n of the people.

Natarajan replied that mens rea was vital in a criminal trial and that the three judges had concluded on evidence that the accused did not commit the crime with the intention to strike terror in people or any section of people. He agreed that if t he state's view was accepted, then the contingency might arise that all the other accused, acquitted of charges under TADA and other offences, were likely to get at least life imprisonment.

In his main order, Justice Wadhwa said: "We do not think Mr. Sorabjee is right in his submission."

N. SRIDHARAN
Chinna Santhan (left) and Perarivalan (right) sentenced to death with Ravichandran, who has been awarded life imprisonment.

IN his separate order, Justice Thomas said he had "a dissent" with regard to sentencing Nalini. The Constitution Bench in Bachan Singh vs. State of Punjab (1980) had narrowed down the scope for awarding the death sentence to "the rarest of rare c ases" where the lesser alternative of life imprisonment was unquestionably foreclosed. Of three Judges, when one Judge favoured life imprisonment to death penalty for any accused, "I think it would be a proper premise for the Bench to review the order of sentence of death in respect of that accused. That fact was sufficient to treat the case as not falling within the narrowed ambit of "rarest of rare cases".

Natarajan, Advocates N. Chandrasekaran, Sunder Mohan and V. Ramasubramanian appe-ared for the accused. E. Jacob R. Daniel, Deputy Legal Adviser, CBI, Chennai, assisted Soli Sorabjee in his arguments. Altaf Ahmed opposed the plea to reduce the death sente nce on the four accused to life imprisonment.