CRIME AND PUNISHMENT

Print edition : February 07, 1998

By sentencing to death every one of the 26 accused who were brought to trial by the Special Investigation Team for the May 1991 assassination of Rajiv Gandhi, the Designated Court has accepted the fact that the LTTE assassination squad "marched under a banner".

"CONGRATULATIONS," read the neat, hand-written suicide note. Dixon alias Kishore, an operative of the Liberation Tigers of Tamil Eelam (LTTE) who was associated with the cell that assassinated Rajiv Gandhi, had committed suicide when his hideout in Coimbatore was surrounded by security forces after the Special Investigation Team (SIT) of the Central Bureau of Investigation (CBI) traced him on July 29, 1991. Dixon had taken care to destroy the wireless sets and lakhs of rupees in cash that were in his possession, leaving behind only this message, addressed personally to SIT chief D.R. Karthikeyan.

Sriperumbudur, May 21, 1991: A little while after the blast that killed Rajiv Gandhi, IGP R.K. Raghavan bends over the body of the former Prime Minister. Looking on are Jayanthi Natarajan, Congress(I) MP (right), and G.K. Moopanar (second left).-

Dixon was not the only one from the LTTE assassination team who had learnt to respect the pursuer. Forty-eight hours before the key members of the assassination team were cornered at Konanakunte in Bangalore, its leader Sivarajan had told his friend Mridula Ranganath that the CBI was "chasing us down like dogs".

The landmark order of the Presiding Judge of Designated Court No. 1, sentencing all 26 members of the assassination group to death by hanging, has underlined what the LTTE had long known. Judge V. Navaneetham's January 28 order found that evidence produced by the SIT substantiated almost every charge made against those it had arrested. The trial court upheld the SIT's charge that all the 26 persons, some of whom, it had seemed at first appearance, played a peripheral role in the assassination, were in fact conspirators in a common cause they were individually aware of. Most critically, perhaps, Judge Navaneetham has placed the blame for the assassination where it belongs. Although the key architects of the assassination, LTTE supremo V. Prabakaran, its intelligence chief Pottu Amman, and deputy chief of the women's intelligence wing Akila are absconding, and cannot be tried under Indian law unless brought before a court of law, Judge Navaneetham has left little doubt of their organisational complicity in the crime.

Some of the 26 persons who were sentenced to death in the case being shifted out of the court-cum-jail premises in Poonamallee, near Chennai, on January 29, a day after the judgment: Athirai (left) and J. Shanti.-N. SRIDHARAN

The Designated Court's order comes at a time when the Justice M.C. Jain Commission of Inquiry is expected to articulate the findings of a fishing expedition involving a bizarre assortment of politicians, terrorist groups and even sovereign governments. The evidence before Judge Navaneetham, however, left him in no doubt that the LTTE alone was responsible for the assassination. "The prosecution in this case," the court's order records, "has placed before this court a definitive motive for Prabakaran, the LTTE supremo, and a militant organisation from Sri Lanka, the Liberation Tigers of Tamil Eelam, hereinafter called the LTTE, to have killed Rajiv Gandhi." Judge Navaneetham accepted prosecution claims that Prabakaran perceived the prospect of Rajiv Gandhi's return to power as threatening his fundamental objectives, the creation of a separate Tamil state in Sri Lanka and the recognition of the LTTE as the sole representative of that country's Tamil population.

SEVERAL well-founded strands of evidence led Judge Navaneetham to his conclusion that the assassination conspiracy was shaped by the LTTE leadership. The most important among them were regular wireless conversations between assassination team leader Sivarajan and the leadership of the LTTE based in Sri Lanka. On May 7, 1991, for example, Sivarajan sent a message to Pottu Amman affirming the confidence he had in his fellow team-member, Nalini. In another message, Sivarajan spoke of the inspiration provided to him by the "sweet name of my Leader," an obvious reference to Prabakaran.

S. Nalini (face covered) and her mother S. Padma-N. SRIDHARAN

There was some doubt if evidence based on such coded wireless communication would be admitted by the court, since the Indian legal system has been somewhat conservative in its approach to the application of modern technologies for evidence-gathering. Judge Navaneetham relied on experts in his acceptance of the decoded wireless transcripts as evidence, an important and welcome innovation that will prove significant in future cases as well. His acceptance that Dhanu was the belt-bomber, a SIT claim founded entirely on forensic evidence, as well as the legal value attached by fingerprints obtained by cutting-edge technologies, again reflect an enlightened judicial approach.

Murugan, Nalini's husband, inside a police van-N. SRIDHARAN

These were not, however, the sole evidentiary innovation. Video recordings of speeches by LTTE supporters bitterly attacking Rajiv Gandhi were produced to illustrate the organisation's antipathy to the former Prime Minister. In response to claims that the audio-track was doctored, the SIT had them analysed by high-technology facilities at the Indian Institute of Technology, Chennai. Computer analysis of the voice patterns on the tape established that they did belong to LTTE sympathisers. (Since the witnesses in this instance deposed in camera, Frontline is not at liberty to disclose their identities, or the substance of the speeches.)

The speeches were not the sole evidence of the LTTE's anger over the Indo-Sri Lanka Agreement, or over its subsequent military engagement with the Indian Army. A particularly venomous set of books, notably an attack on the Indian Peace Keeping Force, called The Satanic Force, and pamphlets, were methodically used by the SIT to support its premise that the LTTE had shaped the conspiracy and ordered its execution.

S. Jayakumar (left) and B. Ruban board a police van-N. SRIDHARAN

` YET, none of this material explicitly details the existence of a conspiracy. How did the Designated Court then arrive at the finding that a conspiracy to assassinate Rajiv Gandhi was planned by the LTTE? "It has been time and again held by the Hon'ble Supreme Court," Judge Navaneetham explained in his order, "that conspiracy from (sic.) its very nature is generally hatched in secret." "But like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases proof of conspiracy is largely inferential, though the inference must be founded on solid fact." And solid facts there were enough of to prompt the Designated Court to hold that a "conspiracy to assassinate Rajiv Gandhi and others who were likely with him, to cause the disappearance of evidence and escape from the clutches of law was hatched by the absconding accused Prabakaran, the LTTE supremo, Pottu Omman (Amman) Chief of the Intelligence Wing of the LTTE and Akila, the Deputy Chief of the Women's Intelligence Wing of the LTTE in Jaffna and other places."

Judge Navaneetham's findings on the LTTE have an obvious relevance to the Justice M.C. Jain Commission, which at one stage had threatened to derail the trial by demanding that SIT case diaries and other evidence be placed before the court. Justice Jain's persistent suggestions that there might be a wider conspiracy behind Rajiv Gandhi's assassination led the defence team in the Designated Court to argue that Judge Navaneetham should await the outcome of the Commission of Inquiry before pronouncing its verdict. This provoked a well-timed judicial put-down. Citing Supreme Court rulings, Judge Navaneetham held that "a Commission of Inquiry is not a court, except for a limited purpose." "The procedure of the Commission is inquisitorial rather than accusatorial." In a sentence that Justice Jain may see fit to consider, Judge Navaneetham has pointed out that "in law, (the) criminal court which took cognisance of this case is seized of the matter, and a judicial finding can be given only by such a competent court of law."

Subha Sundaram (far right), S. Kanagasabapathy (bearded) and Suseendran (second left) being brought to the Chennai Central Jail on the morning of January 29.-R. RAGU

The acceptance by the Designated Court of the existence of a conspiracy led to its findings on the guilt of the 26 accused persons brought before it. The accused had varying roles in the conspiracy. Nalini, for example, was present near the assassination spot. Perarivalan's principal role was to have bought and handed over two nine-volt Golden Power cells used to trigger the bomb. The elderly Kanagasabapathy and young Athirai merely attempted to obtain a safehouse for members of the assassination cell when they dispersed after Rajiv Gandhi's murder at Sriperumbudur. Yet, all were equally charged by the SIT under Section 120-B read with Sections 302, 326, 324, 201, 212 and 216 of the Indian Penal Code, Sections 3, 4 and 5 of the Explosives Substances Act, Section 25 of the Arms Act, Section 12 of the Passport Act, Section 14 of the Foreigners Act, Section 6(1-A) of the Wireless Telegraphy Act and Sections 3, 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act. These sections deal variously with entering into a conspiracy to murder and cause bodily harm, tampering with evidence, obstructing investigation, the possession of unlicensed arms and explosives, leaving and entering India without valid travel documents, making unlicensed wireless transmissions, harbouring terrorists and abetting their activities.

HOW did Judge Navaneetham find members of the group equally guilty of the same crime, given the diverse nature of their actions? The Designated Court's lucid and well-researched order relies heavily on the Supreme Court's orders in the landmark 1993 case of Ajay Aggarwal vs. Union of India. The Supreme Court had held that "each conspirator need not know all details of the scheme" in order to be held guilty under Section 120-B. "Take for instance that three persons hatched a conspiracy in country A to kill D in a country B with (an) explosive substance," the Supreme Court argued, clearly with the Rajiv Gandhi murder in mind. "As far as the conspiracy is concerned, it is complete in country A. One of them (the conspirators) pursuant thereto carried the explosive substance and hands it over to a third one in the country B who implants (it) at a place where D frequents and got exploded with remote control (sic.). D may be killed or escape or (the bomb) may be defused. The conspiracy continues till it is executed in country B or frustrated. Therefore, it is a continuing act and all are liable for conspiracy in country B though first two are liable to murder with (the) aid of Section 120-B and the last one is liable under Section 302 or 302 IPC as the case may be. Conspiracy may be considered to be a march under a banner and a person may join or drop out in the march (emphasis added)."

Ringed by supporters and securitypersons, Rajiv and Sonia Gandhi in the thick of electoral campaigning in December 1984.-

Ajay Aggarwal vs. Union of India enabled Judge Navaneetham to arrive at the conclusion that all 26 conspirators were collaborators in the common cause of Rajiv Gandhi's assassination. Although Nalini, for example, did not press the button that killed Rajiv Gandhi, she was not, Judge Navaneetham pointed out, "a simple silent spectator to the bomb blast." The photographic evidence left behind by Haribabu's camera, along with a mass of other evidence gathered by the SIT, irrefutably established her "knowledge and intention to murder Rajiv Gandhi and others who were with him." Similarly, in Perarivalan's case, Judge Navaneetham found that "without the 9 volt Golden Power battery (he had purchased), the vest-cum-waist bomb could not be exploded." Harbourers like Ravichandran and Suseendran, similarly, could not claim that they were not a part of the assassination conspiracy merely because they played no role in its physical execution. By helping Sivarasan and Subha to escape, in the knowledge that they had committed a murder, the two became members of the LTTE assassination squad's "march under a banner", to use the Supreme Court's phrase.

LTTE supremo V. Prabakaran.-

Judge Navaneetham's order details the specifics of each charge against each accused over more than 2,000 pages. The basic thrust of his argument, however, is what is of significance. Although minor charges under the Passport Act, the Foreigners Act and the Explosive Substances Act varied between individuals, the golden thread of the judgment was their common involvement in the assassination. The relatively minor charges attracted sentences, but the murder of Rajiv Gandhi and those around him attracted the highest penalty in law.

LTTE Intelligence chief Pottu Amman.-

On page 1625 of his order, Judge Navaneetham laid out seven reasons for not exercising judicial lenience. The murder was a diabolical plot by a foreign terrorist group that infiltrated India. It cost 16 lives, nine of them of police officers, none of whom were in a position to protect themselves. The assassination brought Indian democracy to a "grinding halt". And above all, Judge Navaneetham wrote, "giving deterrent punishment alone can deter other potential offenders and in future dissuade our people from associating with any terrorist organisation to do such diabolical and heinous crimes."

REACTIONS have varied on the sentencing. Some commentators have muttered, albeit sotto voce, that death is an excessive punishment for peripheral conspirators. Some SIT personnel themselves expressed surprise at the severity of the sentencing. This position, however, has been sharply challenged by those who understand the seriousness of the threat terrorism poses to the democratic system in India.

"This is an endless debate," Karthikeyan told one persistent questioner at a press conference in Chennai on January 29. "We can argue forever about what sentence who should have received, and we will never agree. But if this country is to live free of terrorism and anti-social violence, we have to have a legal system that delivers effective sanctions against crime." The judgment, he said, was "historic, and a fulfilment of the SIT's mission." He added: "Rajiv Gandhi's death stands avenged." Given the unwillingness of lower courts in several terrorism-affected areas of the country to deliver justice in the face of terrorist threats, Judge Navaneetham's orders will undoubtedly be saluted by victims of such crime.

Certainly, the conspirators themselves had expected nothing of the kind. Sources inside the courtroom, from which journalists were barred because of a court order, told Frontline that while none of the accused broke down after their sentencing, they looked pensive. Over a hundred journalists, along with relatives of the accused Perarivalan and Irumporai, stood by in a specially erected marquee near the Designated Court. Inside the specially designed jail-cum-court complex that was purpose-built for the trial, Judge Navaneetham began reading out his judgment in a clear, measured voice at 10-45 a.m. Shortly before he started, Nalini, Nalini's mother Padma and Selvaluxmi briefly cried. In the afternoon, the Judge heard pleas for lenience, including one from Nalini who gave birth to a daughter shortly after she was jailed. Some judges have in the past seen small children as grounds for clemency, but this is not a legal obligation. All of those charged continued to protest their innocence. This process took all of afternoon. At 5-45 p.m., Judge Navaneetham pronounced the sentence. At the end of pronouncing the 26 death sentences, he broke the nib of his pen, in line with judicial custom.

Early the next morning, the assassins were taken to Central Prisons in Chennai, Vellore and Salem, leaving the individual cells a few metres from the courtroom, which had been their homes for seven years, empty. Nalini, Athirai and Shanti tried to cover their faces as camera-shutters opened; some others smiled. All are now likely to appeal to the Supreme Court challenging their convictions.

"Truth alone triumphs," a smiling Karthikeyan said of the judgment, "The nation's honour stands vindicated. So is the stand of the CBI." Karthikeyan added, "The sweat and toil of the SIT, CBI, in its single-minded pursuit of truth has borne fruit today."

Yet, the outcome of the Rajiv Gandhi trial is likely to transcend its immediate impact. In the most immediate sense, it is likely to provoke some form of response by the LTTE. More serious for Indian politics may be how Justice Jain chooses to react to the trial court's implicit assault on his enterprise. Should Justice Jain, in the final report of his Commission of Inquiry which is expected shortly, choose to attack the judgment, he could enable the accused to launch a damaging subversion of the SIT's case. And through the coming general elections, Judge Navaneetham's order will deprive so-called 'loyalists' in the Congress(I) an opportunity to make electoral capital from claims that Rajiv Gandhi's assassins have not been punished. Perhaps most important of all, the trial of Rajiv Gandhi's killers has established that the Indian police and criminal justice system can take on terrorism, given the resources and independence to do their job.

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