S.NIJAM ALI Vs. UNION OF INDIA
LAWS(MAD)-2020-3-229
HIGH COURT OF MADRAS
Decided on March 10,2020

S.Nijam Ali Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

R.SUBBIAH,J. - (1.) As against the dismissal of the respective Crl.M.Ps. filed by the appellants/accused under Section 437 read with 439 Cr.P.C., the present Criminal Appeals have been filed by them.
(2.) The case of the prosecution is as follows: (a) A1 to A5, A-17, A-18 and others are the leaders and workers of Popular Front of India (PFI) and its political organisation called Social Democratic Party of India (SDPI) and they were deputed by the PFI to do 'Dawah' work through their institution 'Arivagam' in Theni District of Tamil Nadu. While they were engaged in the Dawah work at Paku Vinayakan Thoppu (Pakkanamthoppu) Village, Thiruvidaimarudur, on 05.02.2019, the deceased Ramalingam raised objections against the Dawah work, as poor and downtrodden people were being forcibly converted to Muslim. Annoyed by the protest against their Dawah work and subsequent altercation with the deceased Ramalingam, A1 to A5, A17 and A18, along with the other accused belonging to the PFI and SDPI, conspired to wage 'Jihad' against the deceased, who is a non-Muslim, in the said village so as to teach a lesson to the deceased, apart from creating deterrence amongst the public against resisting such Dawah work by the PFI. (b) Thus, on 05.02.2019 around 8.30 hours, the deceased Ramalingam raised objections to the Dawah work being carried out, as they were allegedly indulging in forcible conversion of the poor people to Islam. Consequently, some verbal altercations took place between the deceased Ramalingam and the accused persons. During such altercation, the deceased removed "Taqiyah" (religious skull cap) worn by A17 and wore it for himself, besides he applied "Thiruneer" (holy ash) on the forehead of A17 to emphasise that all religions are same. The situation was controlled with the intervention of the local villagers and they peacefully dispersed. At the time of verbal altercation, a part of the incident was videographed by the son of the deceased who was also present there with his father. Immediately, A1 to A5, A17 and A18 and others conspired together near the place of quarrel and decided to act against the deceased, so as to create deterrence against such challenges on their Dawah activities, so that no one dares to ever come forward against their proselytising activities. Al left the place in his Bajaj Platina Motor Cycle bearing Registration No.TN-51-R-2910, A2 left the place in his Bajaj Pulsar Motor Cycle bearing Registration No.PY-02-L-5130, while A3 to A5, A17 and A18 and others left the place by a Tempo Traveller (Force) bearing Registration No.TN-21-AJ-2315 to conspire further and carry out the terrorist act. (c) Further, the matter was taken up by PFI leadership and it was decided that the organisation must act immediately through its members. Consequent to this decision, A1 to A8, A11 and A13 and others, who were PFI members, hatched a criminal conspiracy and assembled near Mohideen Andavar Mosque, Thirubhuvanam (Periya Palli - Big Mosque) around 11 hours on 05.02.2019. A12 and A15 to A18 and others had also conspired and met at PFI Office, Kumbakonam at about 11.30 hours. While A1, A5 to A8, A11 to A13, A15 and A16 and others conspired to meet again near Periya Palli (Big Mosque) around 12.30 hours. Later, A6 to A8, A11 to A16 and others, to hatch a conspiracy, met at the residence of A11 around 13.30 hours and decided to do Jihad against Ramalingam by chopping off his hands and to kill him. Accused persons also conspired over phone with the other accused persons from the places where they met. (d) In furtherance of the said conspiracy and to execute the plan, A11, who is the coordinator of Dawah work for PFI in Thanjavur District, A12, who is the Thanjavur North District President of PFI and A16, who is one of the leaders of PFI Thanjavur North District, instructed A1 to A5 to inform about the incident, which had happened during the morning hours of 05.02.2019 to the other PFI/SDPI cadres so as to disturb communal harmony and also to obtain help from the cadres. A11, A12 and A16 recruited A6 and A7 as members of reconnaissance team and instructed them to use their motor-cycles for reconnaissance of the victim. A11, A12 and A16 also recruited A8 and A13 to A15 as assailants. A11, A12 and A16 had conspired along with A9 and used the Maruti Swift Dzire Car bearing Registration No.TN-48-L-1280 of A9 for using the same in the commission of the crime. A11, A12 and A16 conspired along with A10 and arranged hide-outs for A6 to A8 and A13 to A15 at Karaikal. A11, A12 and A16 also instructed the assailants to collect suitable weapons, chilly powder, iron rod etc., for the attack. A11 and A12 entrusted A16 with the responsibility of monitoring the entire execution of the crime. (e) In furtherance of the said conspiracy and to execute the plan, A6 and A7 carried out reconnaissance of the movements of the deceased by using their motor-cycles bearing Registration Nos.TN-68-H-9786 (Yamaha AFZS) and TN-68-E-9354 (Hero Splendour Pro), respectively, from the afternoon on 05.02.2019. At the same time, A8 and A13 to A15 waited in the Maruti Swift Dzire Car bearing No.TN-48-L-1280 in and around the Muslim Street, Thirubhuvanam, for getting information from A6 and A7 about the movements of the deceased. (f) In pursuance of their conspiracy, on 05.02.2019 at about 23.15 hours, when the deceased Ramalingam and his son Shiyam Sundhar were returning to their home at Melathundil Vinayakan Pettai, Thirubhuvanam, in their mini- lorry bearing Registration No.TN-68-H-9762 (Ashok Leyland Dost), and while their vehicle was entering the New Muslim Street, Thirubhuvanam, A8 and A13 to A15 intercepted the vehicle of the deceased with the Maruti Swift Dzire Car bearing Registration No.TN-48-L-1280 at New Muslim Street at 23.15 hours. All the four accused got down from the Swift Dzire car with big knife and bill-hooks/aruvals, questioned the deceased about the altercation with the PFI Dawah team in the morning and abused the deceased with obscene language. A8 tried to remove the key forcibly from the vehicle and the deceased caught hold of the hand of A8 and prevented it. The deceased also told them that the matter had already been discussed with Rasudeen and that he would speak next day morning. At that time, A8 shouted that, "if we leave you, you will indulge in similar activities". Then A8 took out chilli powder and threw it on the face of the deceased, who screamed and tried to open the door of the mini-lorry using his left hand. At that time, with the intention to kill him, A13 and A15 caught hold of the right hand of the deceased and A8 inflicted heavy cut injury on the right elbow of the deceased by using a big knife and again he inflicted another cut injury on the left palm, thereby causing deep injury to tissues, muscles, vessels, nerves and bone. The accused then pulled out Ramalingam from the vehicle and surrounded him, brandishing deadly weapons including bill hooks and big knife in order to kill him. A13 shouted and said, "don't leave him, kill him". Immediately, A14 inflicted a blow on the deceased by using a bill hook. The deceased blocked the attack with his left hand and sustained cut injury on his left palm. The assailants escaped from the scene in their car on seeing a vehicle entering into the Muslim Street. Those deep injuries caused the death of Ramalingam at 00.48 hours on 06.02.2019, thereby the accused persons committed the terrorist act of lethally attacking and killing Ramalingam, with the intention of creating terror amongst a section of people. In furtherance of the conspiracy, on the same day, A10 harboured the assailants and reconnaissance team at Karaikal. This act of the accused killing Ramalingam had caused communal disharmony, besides terror in the minds of particular section of people as well as the general public at large in the area and beyond. (g) On the basis of the complaint lodged by Mr.Shiyam Sundar, son of the deceased, a case was registered at Thiruvidaimarudur Police Station, Thanjavur District, vide Crime No.17 of 2019 under Sections 341, 294(b) and 307 IPC on 06.02.2019 by the Sub-Inspector of Police, Thiruvidaimarudur Police Station, Thanjavur District, against four identifiable persons and FIR was forwarded to the Judicial Magistrate-I, Kumbakonam, Thanjavur District. The Medical Officer of Thanjavur Medical College Hospital declared Ramalingam as brought dead. Thereafter, Thiruvidaimarudur Police altered the Sections of law to include Section 302 IPC. The Inspector of Police, Thiruvidaimarudur Circle, Thanjavur District took up the investigation, conducted inquest and prepared observation mahazar, rough sketch, etc., in the scene of crime. (h) During the course of investigation, based on the statements of witnesses and considering the after-effects of the crime as well as the terror intended to be created by the accused persons and the consequent impact on the minds of particular Section of the people owing to the death of the deceased, on 06.02.2019, the Inspector of Police filed an alteration report before the Court to incorporate Section 15 read with Sections 16, 18, 18-B, 19 and 20 of the Unlawful Activities (Prevention) Act in this case and handed over the investigation to the Deputy Superintendent of Police (Law and Order), Thiruvidaimarudur Sub-Division, Thanjavur. (i) During the course of investigation, the Deputy Superintendent of Police, Thiruvidaimarudur arrested A1 to A5 on 06.02.2019, A6 to A8 on 09.02.2019, A9 on 10.02.2019 and A10 on 12.02.2019. All of them were produced before the Court concerned and they were remanded to judicial custody. A17 and A18 were arrested by NIA on 10.05.2019 and 26.06.2019 respectively and produced before the NIA Special Court at Poonamallee, Chennai and they were also remanded to judicial custody. (j) Based upon the information as well as confession of the arrested accused persons, the then Investigating Officer had arraigned A11 to A16 as accused in this case and conducted investigation against them. A11 to A16 and other unidentified accused have been absconding ever since the incident. (k) The then Investigating Officer had seized two motor-cycles and the Swift Dzire car, which were used for the commission of the crime at the instance of the arrested accused and the same were produced before the Court. On examination of the Swift Dzire car used by the assailants, the Scientific Experts recovered blood stains, iron road, knife, etc., from the car. The finger print found in the car used by the accused, was also lifted by the scientific experts and it was sent for Forensic analysis and report awaited. The Test Identification Parade of A6, A7 and A8 were conducted by the Judicial Magistrate and the witnesses including Shiyam Sundar, son of the deceased, and eye witnesses to the attack on Ramalingam, had correctly identified them. (l) Considering the gravity of the offence and other factors involved in this case, the Government of India, Ministry of Home Affairs, CTCR Division, North Block, New Delhi, vide their Order No.11011/08/2019/NIA, dated 05.03.2019, invoked sub-section (4) of Section 6 read with Section 8 of the National Investigation Agency Act and entrusted the investigation to the National Investigation Agency (NIA). Accordingly, the NIA re-registered the case as RC-06/2019/NIA/DLI under Sections 341, 294(b), 307, 120-B, 143, 148 and 302 read with 149 of IPC, besides Section 15 read with Sections 16, 18, 18-B, 19 and 20 of the Unlawful Activities (Prevention) Act on 07.03.2019 and the FIR was submitted before the NIA Special Court, Poonamallee, Chennai. The investigation of the case was completely taken over from the Tamil Nadu Police on 25.04.2019. (m) On the strength of the warrant issued by the Special Court, the NIA had conducted searches at various places including the houses of the accused persons on 02.05.2019 and incriminating materials/documents related to this case, had been seized. All the seized documents and the material objects were produced before the Special Court along with search lists. The seized digital devices had been forwarded to CDAC, Thiruvananthapuram for forensic analysis. A search was conducted at the house of A17 on 09.05.2019 after sending proper intimation to the Special Court, where also, incriminating materials were seized. The seized digital devices were forwarded to CDAC, Thiruvananthapuram for forensic analysis. Mirror images were obtained from CDAC, Thiruvananthapuram and on scrutiny, the association of accused among themselves, for the crime as well as with the PFI and SDPI, was established. (n) On 06.05.2019, the Special Court, after perusal of the case records, including the documents available in the case file and upon satisfaction of the report filed by the Special Public Prosecutor for NIA under Section 43-D(2) of the Unlawful Activities (Prevention) Act, allowed the petition filed in Crl.M.P.No.191 of 2019 on 06.05.2019 extending the period of detention of A1 to A10 beyond 90 days and upto 180 days. (o) The Special Court had allowed Police custody of 11 accused persons, namely A1 to A10 and A17 from 12 hours on 27.05.2019 to 12 hours on 03.06.2019, vide order in Crl.M.P.No.225 of 2019, dated 27.05.2019. Accordingly, all the accused persons were taken into custody, interrogated and their overt act in the crime ascertained. (p) The investigation so far conducted revealed that A1 to A5 were present at Pakku Vinayakan Thoppu (Pakkanamthoppu) village along with A17, A18 and others and they had hatched criminal conspiracy at Pakku Vinayakan Thoppu (Pakkanamthoppu) just after the verbal altercation that had taken place between the deceased and Dawah workers. They had also participated along with other accused in the conspiracy meeting that took place near Periya Palli (Big Mosque), Thirubhuvanam and other places after the altercation. (q) During the custodial interrogation, A1, A2 and A6 to A10 have confessed regarding the places of conspiracy/hide-out/other important places and they have voluntarily disclosed the said places. Accordingly, A1 and A2 had pointed out the conspiracy places, A6 and A7 had pointed out the places where they did reconnaissance over the deceased and had taken shelter, A8 had pointed out the places where he waited for the victim for committing the terrorist act and A10 pointed out the places where he arranged the hide-outs to the assailants and to the reconnaissance team in the presence of independent witnesses. (r) During the custodial interrogation, A1, A2, A5, A7, A9 and A10 have voluntarily disclosed the details of their social media accounts. Accordingly, the contents in their social media accounts have been extracted as disclosed by the accused persons in the presence of independent witnesses. These extractions clearly prove their association with PFI and its political organisation SDPI. (s) The investigation conducted so far revealed that the accused persons are active cadres or leaders of PFI/SDPI, which had been banned in some States in India for their anti-national and fundamentalist activities. The digital evidence collected, examination of witnesses, material objects and recovery of other incriminating materials clearly corroborate the facts of the crime. It has been brought out from the evidence collected that the accused conjointly acted as members of a terrorist gang for attacking and killing Ramalingam, with the intention of striking terror amongst a section of people. (t) After completion of the investigation, the NIA had collected sufficient prosecutable evidence against A1 to A18 and filed charge sheet before the NIA Special Court, Poonamallee, Chennai on 02.08.2019 before expiry of 180 days as envisaged under Section 43-D(2) of the Unlawful Activities (Prevention) Act, which was taken on file as C.C.No.2 of 2019. (u) Since A11 to A16 successfully evaded arrest, the prosecution filed petition before the trial Court and the case against them was split up and a separate C.C.No.3 of 2019 was assigned and NBW was issued against A11 to A16.
(3.) Pending trial, the appellants herein filed petitions seeking for bail before the trial Court, which were dismissed, against which, the present Criminal Appeals have been filed by the accused persons.;


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