IN THE HONBLE COURT OF SESSION

WRIT PETITION (CIVIL) NO. 296 OF 2004 AND TP (CIVIL) NO. 663 OF 2004

State of Tamil Nadu

(Petitioner)
V.
Nalini
(Respondent)

WRITTEN SUBMISSIONS ON BEHALF OF THE PROSECUTION

Most Respectfully Submitted to the Honble

Supreme Court of India

INDIAN PENAL CODE MOOT 2015

TABLE OF CONTENT

INDEX OF ABBREVIATIONS....III
INDEX OF AUTHORITIES.....IV
STATEMENT OF JURISDICTION.....XI
STATEMENT OF FACTS....,,,XII

SUMMARY OF PLEADINGS.......XIII
DETAILED PLEADINGS....XI

A.
B.
A.
C.

Whether the confession by accused is valid or not?

Whether the Nalini (A-1) and other accused are liable for the criminal conspiracy or not.
hether the accused is liable under 34, 120B and Section 302 of IPC or not?
Whether the Death Penalty should be granted or not?

PRAYER........
.XIX

INDEX OF ABBEREVATIONS

2|Page

Paragraph

Section

Sections

AIR

All India Reporters

Anr.

Another

Art.

Article

Bom.

Bombay

CBI

Central Beaurau of Investigation

Ed.

Edition

Honble

Honourable

IO.

Investigating Officer

Mad.

Madras

No.

Number

Ors.

Others

P.

Page No.

SEBA

Security Exchange Board of Aidia

SC

Supreme Court

SCC

Supreme Court Cases

Sd/-

Signed

Supp.

Supplementary

u/s

Under Section

v.

Versus

MAH

Maharashtra

SCC

Supreme Court Cases

LLJ

London Law Journal

INDEX OF AUTHORITIES
STATUES
01.

3|Page

INDIAN PENAL CODE, 1860

02.

INDIAN EVIDENCE ACT, 1872

03.

CODE OF CRIMINAL PROCEDURE, 1973

04.

TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987

JUDICIAL DECISIONS
S.NO
.
01.
02.

CASE NAME

CITATION

Devendra Pal Singh v. State of NCT of Delhi

Kehar Singh v. State (Delhi Administration

(2002) 5 SCC 234

AIR 1988 SC 1883.

03.

Bhagwan Swarup v. State of Maharashtra,

AIR 1965 SC 682.

04.

Mirza Akbar v. King Emperor

AIR 1940 PC 176

05.

Hari Charan Kurmi and Jogia Hajam v. State of Bihar

AIR 1964 SC 1184.

06.
07.
08.

AIR 1926 Sind 174

AIR 1961 SC 1762
1994 (4) SCC

09.

Chandiram v.Emperor
E.G. Barsay v. State of Bombay
Hitendra Vishnu Thakur and others vs. State of
Maharashtra and others
Krishana v. state

10.

State of M.P. v. Deshraj

2004 Cri. L.J. 1415 (S.C.)

11.

Suresh v. state of U.P.

12.

Shree kantiah v, state of bombay

2001 Cri. L.J. 1462

(S.C.)
AIR 155 S.C. 287

13.

Barender Kumar Ghosh V. Emperor

52 I.A. 40

2003 Cri. L.J. 3705

(S.C.)

REFFERED BOOKS
S.NO

BOOKS

.
01

SK. SARVARIA, RA NELSONSS INDIAN PENAL CODE(LEXIS NEXIS

BUUTERWORTHS WADHWA, 10TH ED. VOLUME 2)

4|Page

02.
03.

BATUK LAL, INDIAN PENAL CODE (CENTRAL LAW AGENCY, 2ND ED.
RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE, (LEXIS NEXIS

04.

BUUTERWORTHS WADHWA, 21ST ED. 2010)

RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE, (LEXIS NEXIS
BUUTERWORTHS WADHWA, 23rd ED. 2013)

DICTIONARIES
S.NO.
01.
02.

DICTIONARY
BLACKS LAW DICTINARY
CONCISE LAW DICTIONARY

HYPERLINKS
www.indiakanoon.com
www.westlaw.com
www.acadmia.edu

STATEMENT OF JURISDICTION

The Prosecution humbly submits this memorandum before this Honble court. The counsel is
appearing through the jurisdiction of Section 28. It sets forth the facts and laws on which the
claims are based.
5|Page

Section 28: Sentences which High Courts and Sessions Judges may pass:
(1) A High Court may pass any sentence authorised by law.
(2) A Sessions judge or Additional Sessions Judge may pass any sentence authorised by
law; but any sentence of death passed by any such judge shall be subject to
confirmation by the High Court.
(3) An Assistant Sessions Judge may pass any sentence authorised by law except a
sentence of death or of imprisonment for life or of imprisonment for a term exceeding
ten years.

STATEMENT OF FACT

Background and Reason Behind Assassination:

1. The Palk straits, in the forest hide-outs of Jaffna in north-eastern Sri Lanka, the
Liberation Tigers of Tamil Eelam (LTTE) leadership met for a crucial assessment of the
6|Page

situation. The meeting decided that the chances of Congress president Rajiv Gandhi
returning to power were now almost certain. For the extremist organization struggling for
a separate homeland, Tamil Eelam, it meant a possible re-induction of the Indian Peace
Keeping Forces (IPKF) in Sri Lanka and a certain crackdown of the elaborate LTTE
network established in Tamil Nadu. LTTE had made up its mind to prevent Rajiv Gandhi
explosion of human bomb.
2. An unprecedented event in Sriperumbudur (Tamil Nadu) at 10.20 p.m. -- which resulted
in extirpation of a National leader, a former Prime Minister of India, Shri Rajiv Gandhi,
killing of 18 others and leaving 43 persons seriously injured. This incident was a result of
wickedly hatched conspiracy which was skillfully planned and horridly executed. While
in office as Prime Minister of India, Shri Rajiv Gandhi, to bring about a settlement of
disputes between Tamil-speaking ethnic minority and Government of Sri Lanka, signed
Indo-Sri Lankan Accord on July 22, 1987 under which the Government of India took
upon itself certain role. A prominent organization of Tamils - Liberation Tiger of Tamil
Elam (LTTE) - was among the signatories to that Accord. In discharge of its obligation
under the Accord, Government of India sent Indian Peace Keeping Force (IPKF) to Sri
Lanka to disarm LTTE. This fact together with the alleged atrocities of IPKF against
Tamilians in Sri Lanka and non-cooperation of Government of India with the LTTE, at
what is termed as the hour of their need, gave rise to grouse which culminated in plotting
of a conspiracy to assassinate Shri Rajiv Gandhi, which was put through on the fateful
day, May 21, 1991. It caused severe blow to the democratic process, sent shock waves
throughout the world and the nation had to pass through excruciating time.

Rajiv Gandhi Assassination Fact:

1. The tour programme of Rajiv Gandhi was published in the local newspapers on May 19,
1991 and then Sivarasan came to know that Rajiv Gandhi would address a meeting at
Sriperumbudur on May 21, 1991. Sivarasan was determined not to miss that opportunity.
He ascertained all about Sriperumbudur from Nalini (A-1) and then he told Nalini that the
target was only Rajiv Gandhi.

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2. On May 20, 1991, Arivu (A-18) purchased a 9-watt golden power battery from a shop.
Sivarasan deputed Kanagasabapathy (A-7) to go to Delhi to fix up a house as a hideout to
be used during the days after accomplishing the target. Sivarasan confabulated with
Nalini (A-1), Murugan (A-3), Arivu (A-10) and Haribabu at the house of Jayakumar (A10). Sivarasam instructed Nalini to take half days leave under some pretext or the other.
Arivu (A-18) and Bhagyanathan (A-20) procured a Kodak film and supplied it to
Haribabu who was freelance photographer.
3. On May 21, 1991, Haribabu bought a garland made of sandalwood presumably for using
it as a camouflage (for murdering Rajiv Gandhi). He also secured a camera. Nalini (A-1)
wangled leave from her immediate boss (she was working in a company as PA to the
Managing Director) under the pretext that she wanted to go to Kanchipuram for buying a
saree. Instead she went to her mothers place. Padma (A-21) was her mother. Murugan
(A-3) was waiting for her and on his instruction Nalini rushed to her house at
Villiwakkam (Madras). Sivarasan reached the house of Jayakumar (A-10) and he got
armed himself with a pistol and then he proceeded to the house of Vijayan (A-12).
4. Sivarasan directed Suba and Dhanu to get them ready for the final event. Suba and Dhanu
entered into an inner room. Dhanu was fitted with a bomb on her with a battery and
switch. The loosely stitched salwar-kameez which was purchased earlier was worn by
Dhanu and it helped her to conceal the bomb and the other accessories thereto. Sivarasan
asked Vijayan (A-12) to fetch an auto rickshaw.
5. The auto rickshaw which Vijayan brought was not taken close to his house as Sivarasan
had cautioned him in advance. He took Suba and Dhanu in the auto rickshaw and
dropped them at the house of Nalini. Suba, expressed gratitude of herself and her
colleagues to Nalini for the wholehearted participation made by her in the mission they
had wholehearted participation made by her in the mission they had undertaken. She then
told Nalini that Dhanu was going to create history by murdering Rajiv Gandhi. The three
women went with Sivarasan to a nearby temple where Dhanu offered her last prayers.
They then went to parrys Corner (which is a starting place of many bus services at
madras). Haribabu was waiting there with the camera and garland.
6. All the 5 proceeded to Sriperumbudur by bus. After reaching there they waited for the
arrival of Rajiv Gandhi. Sivarasan instructed Nalini to provide nessarcy cover to Suba
and Dhanu so that their identity as Sri Lankan girls would not be disclosed due to
linguistic accent. Sivarasan further instructed her to be with Suba and to escort her after
8|Page

the assassination to the spot where Indira Gandhis statue was situate and to wait there for
10 minutes for Sivarasan to reach.
7. Nalini, Suba and Dhanu first sat in the enclosure earmarked for ladies at the meeting
place at Sriperumbudur. As the time of arrival of Rajiv Gandhi was nearing Sivarasan
took Dhanu alone from that place. He collected the garland from Suba and escorted
Dhanu to go near the rostrum. Dhanu could reach near the red carpet where a little girl
(Kokila) and her mother (Latha Kannan) were waiting to present a poem.
8. When Rajiv Gandhi arrived at the meeting place, Nalini and Suba got out of the enclosure
and moved away. Rajiv Gandhi went near the little girl Kokila. He would have either
received the poem or was about to receive the same, and at that movement the hideous
battery switch was clawed by the assassin herself. Suddenly the pawn bomb got herself
blow up as the incendiary device exploded with a deadening sound. All human lives
within a certain radius were smashed to shreds. The head of a female, without its toso,
was seen flinging up in the air and rolling down. In a twinkle, 18 human lives were tuned
into fragments of flesh among which was included the former prime minister of india
rajiv Gandhi and his personal security men, besides Dhanu and Haribabu. Many others
who sustained injuries in the explosion, however, survived.
9. The conspirators perpetrated their prime target achievement at 10.19 p.m. on May 21,
1991 at Sriperumbudur in Tamil Nadu.
10. After hearing the sound of explosion Nalini and suba ran across and reached the statue of
Indira Gandhi. Sivarasan joined them without delay. He confirmed to them that Rajiv
Gandhi was killed and conveyed that their comrade Haribabu was also killed in the blast.
Then they proceeded to a nearby house, took water therefrom and then escaped in an auto
rickshaw. They reached the house of Jayakumar (A-10).
11. Sivarasan transmitted wireless message to the LTTE supreme in Sri lanka regarding the
killing of rajiv Gandhi. Pottu Omman, the chief of intelligence of LTTE confirmed
receipt of the message and in reply sent certain queries.
12. The next phase of activities of the conspirators consisted of attempts to abscond, to
screen the offenders and to destroy the evidence regarding the conspiracy.
13. The next phase of activities of the conspirators consisted of attempts to abscond, to
screen the offenders and to destroy the evidence regarding the conspiracy.
14. On may 24, 1991 the newspapers published a photograph of Dhanu holding a garland in
her hand at Sriperumbudur in the company of a few other females waiting for the arrival
of rajiv Gandhi. On seeing it Pottu Omman sent a wireless query to Sivarasan whether
9|Page

Dhanu was identifiable in the photo. Sivarasan, Suba, Nalini, her husband Murugan and
her mother Padma preceded to Tirupati to madras on the next day. Sivarasan thereafter
moved from place to place and Suba was shifted to different houses.
15. In the first week of June 1991, Sivarasan felt that he was within the penumbra of
suspicion of the police. Thereupon he entrusted the remaining work to be carried out to
Murugan. Though Sivarasan advised Nalini to escape to Sri Lanka she did not do so for
practical reasons known to her. She and her husband Murugan again proceeded to
Tirupati on June 9, 1991 incognito. Murugan got his head tonsured by way of redeeming
a vow.
16. By the middle of June, photographs of Nalini and Suba appeared in the newspapers.
Sivarasan kept Pottu Omman informed of the developments in India through wireless
transmissions.
17. On June 11, 1991 Bhagyanathan (A-20) and Padma (A-21) were arrested by the police.
Three days later Nalini and Murugan were arrested. The said development was
communicated by Sivarasan to LTTE headquarters at sri lanka and thereafter he, in the
company of Suba and dhanasekaran (A-23), Rangan (A-24) and Vicky (A-25) and one
LTTE activist by the name of Nahru skulked to Bangalore and concealed themselves in a
house at Indira Nagar Irumborai (A-19) was already accommodated in that house. On
august 16 1991 they shifted to another house situated at konanakunte in Bangalore.
18. The police got some scent regarding the above hideout and they rushed to that place. But
by the time the police could trace them out, Sivarasan, Suba Nehru and Amman and the
other LTTE actives, who too were hiding in the same house, ended their lives by
committing suicide. The remaining accused was arrested on different days at different
place.

10 | P a g e

STATEMENT OF ISSUES

A. Whether the confession by accused is admissible against Nalini (A-1) and Co-accused or
not?
B. Whether the Nalini (A-1) and other accused are liable for the criminal conspiracy or not?
C. Whether Nalini is liable under 3 and Section 4 of TADA Act or not?
D. Whether S. Nalini is liable under section 34 and 302 of Indian Penal Code?
E. Whether the Death Penalty should be granted or not?

11 | P a g e

SUMMARY OF PLEDINGS
1. Whether the confession by accused is admissible against and Co-accused or not under
section 10 of evidence act or not?
Confession of accused was recorded on 7-8-1991 and was sent to the court of the chief judicial
magistrate on the following day and on 9-8-1991 it was sent to the designated court. Thus the
confession could be said to be duly made, which was recorded by the superintendent of police.
Thus the confession of accused would be admissible.
2. Whether the Nalini (A-1) and other accused are liable for the criminal conspiracy and
waging war against Government of India or not?
Nalini (A-1) who is active conspirator in all the activities is liable under section 121 of IPC. The
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.
3. Whether Nalini is liable under 3 and Section 4 of TADA Act or not?
Accuse has intention to overawe the Government as by law established as act putted hurdle on
countries sovereign decision making power, they used suicide bomb as weapon, there act not
only resulted death of former prime minster but other innocent people who were present in
assembly. Act resulted psychological terror among general public.
4. Whether S. Nalini is liable under section 34 and 302 of Indian Penal Code?

12 | P a g e

Nalini has common intention and she was physically present at the time of commission of crime,
actively participated in commission of final act. Therefore, her act successfully attracts her
liability under section 34 of IPC, section is only rule of evidence does not create substantive
offence. Nalini, even thought does not did bomb blast but has participated in occurrence of it,
therefore she vest with the same liability which Dhanu and other accuse has on them e.g. under
section-302 of IPC under principle of joint liability.
5. Whether death penalty should be granted or not?
Because Nalini (A-1) is a woman and a mother of the child who was born while she was in
custody cannot be the ground not to award the extreme penalty to her. Subsequently while both
of them were in custody they were married from earlier date. It was in July 1991 that she gave
birth to the girl child. When we think of the crime we find that along with Rajiv Gandhi 15
others also lost their lives. Many of them were policemen on duty. Fifteen persons who lost their
lives in the bomb blast. It is not disputed that these persons died on account of the bomb blast
and others suffered grievous and simple injuries on that account. What about their families, one
may ask. One small girl Kokila wanted to recite a poem to Rajiv Gandhi. In one of the
photographs she is shown standing with her mother Latha Kannan next to Dhanu. Both died in
the blast. What about the children, wives and husbands of those who died?

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DETAILED PLEDINGS

In response to the first issue Counsel humbly submits that:

WHETHER THE CONFESSION BY ACCUSED IS ADMISSIBLE AGAINST AND COACCUSED OR NOT UNDER SECTION

10 OF EVIDENCE ACT OR NOT?

In the present case sufficient time was given to the accused in the circumstances of the
case for them to reflect if they wanted to make confession. Merely because confession was
recorded a day or so before the police remand was to expire would not make the confession
involuntary. No complaint was made before the trial court that confession was the result of any
coercion, threat or use of any third degree methods or even playing upon psychology of the
accused. The confession of the accused is recorded by the superintendent of police, which is
valid in the eyes of law.
S. 15 OF TADA AND S. 24 OF EVIDENCE ACT
The legislature has set different standards of admissibility of confessional statement made
by an accused under TADA from those made in other criminal proceedings. A confessional

14 | P a g e

statement recorded by a police officer not below the rank of superintendent of police under
Section 15 of TADA is admissible.1
Although it is not so admissible under section 25 of Evidence Act unless made to the
Magistrate. Consideration of confessional statement of an accused to a police officer except to
the extent permitted under section 27 of the Evidence Act is not permissible. But there is one
common feature, both in 15 of TADA and 24 of Evidence Act that the confession has to be
voluntary. 24 interdict a confession, if it appears to the court to be result of any inducement,
threat or promise in certain conditions.
Omission to obtain the signature of the accused at the end of confession is curable under
463 Cr. P.C. the former Nagpur high court held that an inadvertent omission to obtain the
signature of the accused does not vitiate the confession and irregularity is curable under section
463.2
In Kehar Singh v. State (Delhi Administration)3 has analysed the section as follow: From
an analysis of the section, it will be seen that section 10 will come into play only when the court
is satisfied that there is reasonable ground to believe that two or more persons have conspired
together to commit an offence. There should be, in other words, a prima facie evidence that the
person was a party to the conspiracy before his acts can be used against his co-conspirator. Once
such prima facie evidence exists, anything said, done or written by one of the conspirators in
reference to the common intention, after the said intention was first entertained, is relevant
against the others. It is relevant not only for the purpose of proving the existence of conspiracy,
but also for proving that the other person was a party to it.
Section 10 of evidence act is based on the principle of agency operating between the
parties to the conspiracy inter se and it is an exception to the rule against hearsay testimony. If
the condition laid down therein are satisfied, the act done or statement made by one is admissible
against the co-conspirators.4 Every conspirator is an agent of his associate in carrying out the
object of the conspiracy. Section 10, which is an exception to the general rule, while permitting
1 Devendra Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234 (paras 31 and 32), See also
Afzal Khan v. State of Gujarat, (2007) 9 SCC 387.
2 Shamla, (1941) Nag 104.
3 (1988) 3 SCC 609; AIR 1988 SC 1883.
4 Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC 682.
15 | P a g e

the statement made by one conspirator to be admissible as against another conspirator restricts it
to the statement made during the period when the agency subsisted.
Similarly in Mirza Akbar v. King Emperor5 observed the contention that Section 10
becomes inapplicable once the conspirator is nabbed. The comment of the learned Judge was:
That may be so in a given case but is not of universal application. If the object of conspiracy has
not been achieved and there is still agreement to do the illegal act, the offence of criminal
conspiracy is there and Section 10 of the Evidence Act applies.
Similarly also in Hari Charan Kurmi and Jogia Hajam v. State of Bihar6 a constitutional
bench of this court after referring to Bhuboni Sahus case7 and Kashmira Singhs case8 observed:
normally, if a statement made by an accused person is found to be voluntary and it amounts to a
confession in the sense that it implicates the maker, it is not likely that the maker would
implicate himself untruly, and so, S. 30 provides that such a confession may be taken into
consideration even against a co-accused who is being tried along with the maker of the
confession... when S.30 provides that the confession of a co-accused may be taken into
consideration, what exactly is the scope and effect of such taking into consideration, is precisely
the problem which has been raised in the present appeals.
In the present case also the confession is curable under 463 Cr. P.C. and it was voluntary
and it is admissible before the court.
Therefore, council plead to this Honble court that the act done by accused and coaccused confession is maintainable under Section 10 of Evidence act and also in Section 15 of
TADA act and Section 24 of Evidence Act.

5 AIR 1940 PC 176 : 41 CrLJ 871.

6 AIR 1964 SC 1184.
7 AIR 1949 PC 257.
8 AIR 1952 SC 159.
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In response to the Second issue counsel submits that:

WHETHER THE NALINI (A-1) AND OTHER ACCUSED ARE LIABLE FOR THE
CRIMINAL CONSPIRACY AND WAGING WAR AGAINST

GOVERNMENT OF INDIA

OR NOT?

During the period 1987 to 1922; 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 honor and that did not suit the aspiration 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 accords, otherwise that government would also
meet the same fate.
1.1 Liability under Criminal Conspiracy:
Ingredients of Criminal Conspiracy:
a. There should be an agreement between the persons who are alleged to conspire;
17 | P a g e

b. The agreement should be-(a) for doing an illegal act, or (b) for doing by illegal
means, an act, which may not itself be illegal;
c. In cases, other than an agreement to commit an offence, the agreement must be
followed by an overt act.9
It is the unlawful agreement and not its accomplishment, which is the gist or essence of
the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no
agreement as to the means by which the purpose is to be accomplished. It is the unlawful
agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which
amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from
the circumstances, especially declarations, acts and conduct of the conspirators. The agreement
need not be entered into by all the parties to it at the same time, but may be reached by
successive actions evidencing their joining of the conspiracy.
In E.G. Barsay v. State of Bombay10 court said: the gist of the offence of criminal
conspiracy under S. 120A, IPC is an agreement to break the law. The parties to such an
agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not
been done. So too, it is not an ingredient of the offence that all the parties should agree to do a
single illegal act. It may comprise the commission of a number of acts. Under S. 43 of the Indian
Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first
charge the accused are charge with having conspired to do three categories if illegal acts, and the
mere fact that all of them could not be convicted separately in respect of each of the offences has
no relevancy in considering the question whether the offence of conspiracy has been committed.
They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences
all of them may not be liable.
Similarly in present case Nalini (A-1) in her confession has implicated herself. She got
associated with LTTE activities some time in February, 1991. She did have a lurking feeling that
some action was in contemplation by Sivarasan, Subha and Dhanu. On 7-5-1991 she gets a
positive feeling that they were planning to kill certain leaders. However, wireless message which
was sent on 7-5-1991 by Sivarasan to Pottu Amman and which was intercepted and decoded with
the help of Nalini showed that till that time Nalini (A-1) had knowledge about any conspiracy to
9 Chandiram v.Emperor AIR 1926 Sind 174, p 175, 27 Cr LJ 286.
10 AIR 1961 SC 1762 at p. 1778.
18 | P a g e

kill Rajiv Gandhi. On 19-5-1991 she got a strong feeling that Rajiv Gandhi was the target but on
21-5-1991 she agreed to associate herself with the killing of Rajiv Gandhi and became member
of the conspiracy. She had been given a major role. She has to give cover to Subha and Dhanu so
that they may not be identified as Sir Lankan Tamils and when the explosion occurs she acts as
per instructions. She takes Subha with her to a particular place, performs the role assigned to her
and then goes into hiding. She is fully involved in the crime.
2.2.

Liability under Section 121 of IPC and Section 3 of TADA:

Killing of Rajiv Gandhi was not the personal motive of LTTE leader and others to

commit terrorist act by killing Rajiv Gandhi. Section 3 (2), (3) and (4) of TADA would be
attracted when person accused of the offences under the said provisions, has commited a
terrorist act within the meaning of Section. Section 3 reads as under:
3(1). Punishment for terrorist acts- whoever with intent to overawe the government as
by law established or to strike terror in the people or any section of the people or to alienate any
section of the people or to adversely affect the harmony amongst different sections of the people
does any act or thing by using bombs, dynamite or other explosive substances or inflammable
substances or fire arms or other lethal weapons or poisons or noxious gases or other chemicals or
by any other substances (whether biological or otherwise) of a hazardous nature in such a
manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss
of, or damage to, or destruction of, property or disruption of any supplies or services essential to
the life of the community, or detains any person and threatens to kill or injure such person in
order to compel the government or any other person to do or abstain from doing any act,
commits a terrorist act.
In the present case, Nalini (A-1) who is active conspirator in all the activities, is liable
under section 121 of IPC. The 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.

19 | P a g e

In response to the third issue counsel submits that:

WHETHER NALINI IS LIABLE UNDER 3 AND SECTION 4 OF TADA ACT OR NOT?

Nalini and deceased accused Sivarasan, Dhanu, Subha and Haribabu had the common
intention to commit disruptive activity at a public meeting at Sriperumbudur. Common intention
of all the accuse can be inferred from fact of the case, where Nalini was physically present at the
scene of crime and provided assassin Dhanu with necessary cover from being detected as a
foreigner, which enabled the assassin to move freely in the scene of crime and gained access
nearer to Rajiv Gandhi where Dhanu detonated the improvised explosive device concealed in
her waist belt resulting in the bomb blast and killing of nine police officials who were public
servants and who were at that time with Rajiv Gandhi on duty and Nalini (A-1) thereby

20 | P a g e

committed an offence under Section 4(3) 11 of TADA punishable under Section 4 (1) 12 of TADA
read with Section 3413, IPC.
Under Section 4(3) of TADA an accused can be said to have committed disruptive activity if he
in any way (a) advocates, etc. or (b) predicts, etc. the killing or destruction of any person bound
by oath under the Constitution to uphold the sovereignty and integrity of India or any public
servant.
The accused did question the sovereignty and integrity of India in as much as they
expressed their resentment to the Indo-Sri Lankan Accord which had been approved by the
Parliament. The accused had chosen the target being Rajiv Gandhi and struck the target thus
questioning the very ability of the country to take sovereign decisions.
Therefore council would like to plead before this Honble court that the act of accuse
created a terror in society and it took nearly more than ten people live including former prime
minister and nine police men, it threat sovereignty and integrity of India. Therefore act amount to
disruptive activity under section-4(3) of TADA Act.
II. Act amount to terrorist attack
Under Section 3 of TADA in order there is a terrorist act essential are;

11 Section 4 Punishment for disruptive activities(3) Without prejudice to the generality of the provisions of
subsection (2), it is hereby declared that any action taken, whether by act or by speech or through any other media or
in any other manner whatsoever, which- (a) Advocates, advises, suggests or incites; or (b) Predicts, prophesies or
pronounces or otherwise expresses, in such manner as to incite, advise, suggest or prompt, The killing or the
destruction of any person bound by oath under the constitution to uphold the sovereignty and integrity of India or
any public servant shall be deemed to be a disruptive activity within the meaning of this section.

12 Section 4 Punishment for disruptive activitiesWhoever commits or conspires or attempts to commit or abets,
advocates, advises, or knowingly facilitates the commission of, any disruptive activity or any act preparatory to a
disruptive activity 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.

13 Sec-34 act done by several person in furtherance of common intention:When a criminal act is done by several
person in furtherance of common intention of all, each of such person is liable for that victim same manner as if it
were done by him alone.

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1. intention to overawe the Government as by law established or to strike terror in the

people or any section of the people;
2. Does any act or thing by using bombs, dynamite or other explosive substances or
inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases
or other chemicals or by any other substances (whether biological or otherwise) of a
hazardous;
3. to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of,
or damage to, or destruction of, property or disruption of any supplies or services
essential to the life of the community, or detains any person and threatens to kill or injure
such person in order to compel the Government or any other person to do or abstain from
doing any act, commits a terrorist act.
Rajiv Gandhi was targeted as he was the Prime Minister when the Indo-Sri Lankan
Accord was entered into and his name was synonymous with the Accord. LTTE took it that it
was entered into contrary to their aspirations. In an interview before the general elections Rajiv
Gandhi did support his stand on the Accord which had been ratified by the Parliament. He said
that action of the accused in killing Rajiv Gandhi struck at the sovereign powers of the country
and it was to intimidate the Government. That the country was in the midst of election and on
account of the assassination of Rajiv Gandhi elections were postponed and formation of the
Government was delayed. A notification dated 22.5.1991 was issued by the Election Commission
of India postponing the elections. It was mentioned in the Notification that the country had
suffered a great tragedy in the death of Sri Rajiv Gandhi at the assassins hands. Country was thus
in trauma. Intention of the accused in killing Rajiv Gandhi was that India as sovereign country
could not take sovereign decisions. Prime Minister is the pivot of the Parliamentary system and if
he is killed because he was party to an Accord entered into in exercise of sovereign powers of the
country and even though he may not be the Prime Minister at the relevant time his killing would
send shock waves all over the country and to the Government in power and the Government to
be. conspiracy to kill Rajiv Gandhi was thus with intent to overawe the Government as by law
established.
In the case of Hitendra Vishnu Thakur and others vs. State of Maharashtra and others 14
court said that Terrorism' is one of the manifestations of increased lawlessness and cult of
violence. Violence and crime constitute a threat to an established order and are a revolt against a
14 1994 (4) SCC
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civilized society. It may be possible to describe it as use of violence when its most important
result is not merely the physical and mental damage of the victim but the prolonged
psychological effect it produces or has the potential of producing on the society as a whole.
There may be death, injury, or destruction of property or even deprivation of individual liberty in
the process but the extent and reach of the intended terrorist activity travels beyond the effect of
an ordinary crime capable of being punished under the ordinary penal law of the land and its
main objective is to overawe the Government or disturb harmony of the society or terrorise
people and the society and not only those directly assaulted, with a view to disturb even tempo,
peace and tranquillity of the society and create a sense of fear and insecurity.
In present case also, accuse has intention to overawe the Government as by law
established as act putted hurdle on countries sovereign decision making power, they used
suicide bomb as weapon, there act not only resulted death of former prime minster but other
innocent people who were present in assembly. Act resulted psychological terror among general
public.
Therefore, council plead to this Honble court that the act done by accuse amount to
terrorist act under section-3 of TADA Act.

In response to the forth issue counsel submits that:

WHETHER S. NALINI IS LIABLE UNDER SECTION 34 AND 302 OF INDIAN PENAL CODE ?

Section 34 of IPC provide for joint liability, section read as to attract the principle of joint
liability under section 34 there should be :
(a) some criminal act;
(b) criminal act done by more then one person;
(c) criminal act done by such person in furtherance of common intention of all of them;
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(d) common intention in the pre-arranged plan between such persons;

(e) participation in some manner in the act constituting the offence by the person sought
to be prosecuted;
(f) physical presence at the time of commission of crime of all the persons, but physical
presence of all is not necessary in some cases15
In the case of Krishana v. state16 it was held that constructive liability under section 34 may
arises in three well define cases. A person may be constructively liable for an offence which he
did not actually commit by reason of: (A) the common intention of all to commit such an offence
(sec-34); (B) his being a member of conspiracy to commit such an offence (sec-120A); (C) his
being a member of unlawful assembly, the member where of knew that an offence was likely to
be committed (sec-149).
1. Presence of common intention
In the instant case, confession made by Nalini shows that, she in her association with
Murugan (A-3), Sivarasan, Subha and Dhanu she developed extreme hatred against IPKF and
Rajiv Gandhi. She is post graduate. She had given shelter to LTTE activist, even at the time of
final act she was present and giving cover to Subha and Dhanu so that no one come to know that
they are foreigner.
2. Participation in committing crime
It was held in State of M.P. v. Deshraj17 that section 34 of Penal Code has been enacted on
the principle of joint liability in doing criminal act. The distinctive feature of this section element
of participation in action. The liability of one person for the offence committed by another in the
course of criminal act is done in furtherance of common intention of the persons who joins in
committing the crime.

15 PROF. S.N. MISRA , INDIAN PENAL CODE 99(central law publication,17th ed (2010)

16 2003 Cri. L.J. 3705 (S.C.)

17 2004 Cri. L.J. 1415 (S.C.)
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Similarly in Suresh v. state of U.P.18, it was held by Supreme Court that in order to attract
the application of section 34, I.P.C. the accused should have done some act which has nexus to
the offence. It is enough that the act is only for guarding the scene for facilitating the crime. The
act need not be Overt; it would be enough if it is only a covert act provided that such act proved
to have been done by the co-accused in furtherance of common intention. The accused who only
keeps the common intention in the mind but does not do any act at the scene cannot be convicted
with aid of section 34 I.P.C. supreme court further observe that even the concept of presence of
the co-accused at the scene is not necessary requirement to attract section 34 e.g. the co-accused
can remain a little away and supply weapons to the participating accused either by throwing or
by catapulting them so that the participating accused can inflict injuries on the targeted person.
In the instant case, Nalini has accepted in her confession that she was present at distance, when
actual crime was committed. Although, Nalini has Participated in final act also, she was
providing cover to Subha and Dhanu. Therefore, It shows that Nalini has participated in final act.
3. Physical presence at the time of commission of crime
In the case of Shree kantiah v, state of bombay19 Supreme Court has observe that essence
of section 34 is that the accuse must be physically present at the actual commission of the
offence and must also participate in commission of it. He need not to be present in very room the
offence is committed but must be near enough such as standing guard at the gate of the house or
keeping watch by standing on the road ready to warn his companions about nay approach of
danger, but must be present and actually participate in the commission of the offence in some
way or other at the time crime is actually being committed.
In present case, Nalini was physically present at the time of commission of crime.
In the case Barender Kumar Ghosh V. Emperor20 lowing principle were laid down by the Privy
Council;
(1) Even though accuse done nothing he stood away, it is to be remembered that in crime as
in other things they also serve who only stand and wait.
18 2001 Cri. L.J. 1462 (S.C.)
19 AIR 155 S.C. 287
20 52 I.A. 40
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(2) Section 34 deals with the doing of separate acts, similar or diverse, by several person :if
all are done in furtherance of a common intention each person is liable for the result of
them all, as if he had done them himself, for that act in the latter part of the section
must include the whole action covered by a criminal act in the first part, Because they
refer to it.
(3) A criminal act means that unity of criminal behavior which result in something for
which an individual would be punishable, if it were all done by himself alone, in a
criminal offence.
(4) It fixes attention, exclusively upon the accused persons own act. Intention to kill and
resulting death accordingly are not enough; three must be proved an act which kills, done
by several persons and corresponding to it not identical with, the same fatal act done by
one.
In instance case, Nalini has common intention and she was physically present at the time
of commission of crime, actively participated in commission of final act. Therefore, her act
successfully attracts her liability under section 34 of IPC, section is only rule of evidence does
not create substantive offence. Nalini, even thought does not did bomb blast but has participated
in occurrence of it, therefore she vest with the same liability which Dhanu and other accuse has
on them e.g. under section-302 of IPC under principle of joint liability.

In response to the fifth issue counsel submits that:

WHETHER DEATH PENALTY SHOULD BE GRANTED OR NOT ?

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Nalini was a willing party to the crime. She is an educated woman and was working as a
stenographer in a private firm. It is not that Nalini (A-1) did not understand the nature of the
crime and her participation. Court should see both the crime and the criminal. Nalini (A-1) in her
association with Murugan (A-3) and others developed great hatred towards Rajiv Gandhi and
wanted to have revenge. Merely because Nalini (A-1) is a woman and a mother of the child who
was born while she was in custody cannot be the ground not to award the extreme penalty to her.
She was living alone away from her mother, sister and brother since April, 1990. She became
friendly to Murugan (A-3) when she was introduced to him in her office by her sister Kalyani
and Bharathi. Before this date also she was close to some of the LTTE activists. She developed
fondness towards Murugan (A-3) and in fact wanted to marry him. He, however, declined as he
said he was a committed LTTE activist and as per code of LTTE he could not marry. They were,
however, having sexual relations and when they returned from trip to Tirupathi after the
assassination of Rajiv Gandhi it was found that Nalini (A-1) was pregnant. Subsequently while
both of them were in custody they were married from earlier date. It was in July 1991 that she
gave birth to the girl child. When we think of the crime we find that along with Rajiv Gandhi 15
others also lost their lives. Many of them were policemen on duty. Fifteen persons who lost their
lives in the bomb blast. It is not disputed that these persons died on account of the bomb blast
and others suffered grievous and simple injuries on that account. What about their families, one
may ask. One small girl Kokila wanted to recite a poem to Rajiv Gandhi. In one of the
photographs she is shown standing with her mother Latha Kannan next to Dhanu. Both died in
the blast. What about the children, wives and husbands of those who died? Cruelty of the crime
committed has known no bounds. The crime sent shock waves in the country. General elections
had to be postponed. It was submitted more than once that principal perpetrators in the present
case are already dead but then for the support which Nalini (A-1), Santhan (A-2), Murugan (A-3)
and Arivu (A-18) afforded for commission of the crime it could not have been committed. Each
one of these four accused had a role to play. Crime was committed after previous planning and
executed with extreme brutality. There were as many as two dry runs as to how to reach Rajiv
Gandhi after penetrating the security cordon. A former Prime Minister of the country was
targetted because this country had entered an agreement with a foreign country in exercise of its
sovereign powers. Rajiv Gandhi being head of the Government at that time was signatory to the
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accord which was also signed by the head of the Government of Sri Lanka. The accord had the
approval of the Parliament. It was not that Rajiv Gandhi had entered into the accord in his
personal capacity or for his own benefit. Though we have held that object of the conspiracy was
not to commit any terrorist act or any disruptive activity nevertheless murder of a former Prime
Minister for what he did in the interest of the country was an act of exceptional depravity on the
part of the accused, an unparallel act in the annals of crimes committed in this country. In a
mindless fashion not only that Rajiv Gandhi was killed along with him others died and many
suffered grievous and simple injuries. It is not that intensity of the belt bomb strapped on the
waist of Dhanu was not known to the conspirators as after switching on the first switch on her
belt bomb Dhanu asked Sivarasan to move away. Haribabu was so keen to have close-up picture
of the crime that he met his fate in the blast itself. We are unable to find any mitigating
circumstance not to upset the award of sentence of death on the accused.
Court should measure punishment in a given case depending upon the atrocity of the crime; the
conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of
appropriate punishment is the manner in which the courts respond to the society's cry for justice
against the criminals. Justice demands that courts should impose punishment befitting the crime
so that the courts reflect public abhorrence of the crime. The courts must not only keep in view
the rights of the criminal but also the rights of the victim of crime and the society at large while
considering imposition of appropriate punishment.
Therefore, Council humbly request the Honble court that, Nalini (A-1) deserve extreme
penalty. Council plead to court to award sentence of death on Nalini.

PRAYER

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Wherefore in the light of arguments advanced and authorities cited, the Prosecution humbly
submits that the Honble Court may be pleased to adjudge and declare that:

TO HOLD

1. Confession of the Accused and Co-accused should be made maintainable

under TADA and Cr P.C.
2. Accused should be held liable for Criminal Conspiracy and Waging war
against Government of India.
3. Accused should be held liable under Section 3 and Section 4 of the TADA.
4. Accused should be held liable under Section 120B and Section 302 of the
Indian Penal Code.
5. Accused should granted by Death Penalty without showing mercy because of
taking dozens of innocent people life.
MISCELLANEOUS

1. Any other order as it deems fit in the interest of equity, justice and good
conscience.
For This Act of Kindness, the Prosecution Shall Duty Bound Forever Pray.
Sd/(Counsel for the State)

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