TMI Blog1992 (7) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... of their colleagues and punish all those who were responsible for the damage to the Golden Temple. After the assassination of Smt. Gandhi on 31st October, 1984, it is the prosecution case, they waited for General Vaidya to retire on 31st January, 1986 so that the security cover which would then stand reduced may not be difficult to penetrate. After his retirement General Vaidya decided to settled down in Pune in the State of Maharashtra. After his retirement on 31st January, 1986, General Vaidya and his wife Bhanumati left Delhi for Pune. As their bungalow at Pune was still under construction, they shared bungalow No.20 at Queens Garden, Pune, occupied by Major General Y.K. Yadav. General Vaidya owned a Maruti Car bearing Registration No. DIB 1437 which reached Pune on the next day i.e. 1st February, 1986. Between 4th and 16th February, 1986 General Vaidya and his wife went to Goa for a brief holiday. They returned to Pune on 16th February, 1986. They continued to reside in the bungalow occupied by Major General Y.K. Yadav. General Vaidya was required to be hospitalised from 24th March to 7th April, 1986 as he was suspected to be suffering from jaundice. During his stay in bung ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich information was received by Police Inspector Garad. On receipt of the information the Commissioner of Police and his Deputy arrived at the hospital and questioned the securityman who narrated the incident to them. Thereupon the securityman was asked to go to the Control Room. On reaching the Control Room he received a message from Inspector Mohite requiring him to return to the place of the incident where his formal complaint was recorded by Inspector Mohite. A Panchnama of the scene of occurrence was drawn up by Inspector Mohite in the presence of witnesses and the empty cartridges and other articles were recovered therefrom. As stated earlier, the assailants of General Vaidya had made good their escape from the scene of occurrence after the incident. On 7th September, 1986, two persons riding a red Ind-Suzuki motor cycle collided with a truck. They were thrown off the motor cycle and sustained injuries. A bag containing arms and ammunition was also thrown off but they hurriedly collected the spilled articles. When members of the public who had collected there immediately after the accident went to assist them they behaved in an abrasive manner and one of them, later identi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic Expert who reported that the cartridges found from the place where General Vaidya was shot were fired from the pistol which was recovered from the possession of these two persons after their arrest on 7th September, 1986. In the course of investigation it came to light that besides accused Nos.1 and 2 certain other persons described as terrorists, namely, accused No.3 Yadvinder Singh, accused No.4 Avtar Singh, accused No.5 Harjinder Singh and absconding accused Sukhminder Singh @ Sukhi, Daljit Singh @ Bittoo @ Sanjeev Gupta, Jasvinder Kaur, and Baljinder Singh @ Raju were involved in the conspiracy allegedly hatched for assasinating General Vaidya immediately after his retirement and on depletion of the security cover. Accused Nos.1 and 2 and others named hereinabove were charge sheeted on 14th August, 1987 under sections 120B, 302, 307, 465, 468, 471 and 212, IPC sections 3 and 4 of Terrorist and Disruptive Activities Act, 1985, hereinafter called TADA , and section 10 of the Passport Act. In regard to the charge of conspiracy, forgery, etc. the prosecution case is that absconding accused Sukhi hired a flat sometime in October-November 1985 at 7, Antop Hill, Bombay. Thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hotel Mayur in Room No. 702 on 13th June, 1986. On the same day he is shown to have stayed in Hotel Commando, Bandra, Bombay in Room in 402. The Union Bank robbery took place on that day. The motor cycle was sent for servicing on Ist July, 1986. Sukhi left for U.S.A. on a forged passport on 14th July, 1986 and was arrested there. According to the prosecution they lived in different hotels in different assumed names for drawing up a plan to kill General Vaidya. Now we enter the crucial stage. According to the Prosecution, in pursuance of the conspiracy hatched to kill General Vaidya, Accused Nos.1, 2 and 5 left Ambala cantonment for Doorg on 3rd August, 1986 by 138 UP Chhatisgadh Express. The form for reservation of sleeper berths dated 29th July, 1986, Exh. 700, is alleged to have been filled by Accused No.1, of course in an assumed name. They reached Doorg on 5th August, 1986 and left for Bombay on the next day by Gitanjali Express. From Bombay the prosecution alleges that they went to Pune. Prosecution has also tendered evidence to show that on 9th August, 1986, accused Nos.1 and 5 made inquiries concerning the whereabouts of a retired military officer in the neighbourhood of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en statement, Exh. 60-A, admitting to have fired four bullets at General Vaidya and to have killed him. He also stated in that statement that he had accidentally injured Bhanumati Vaidya although he did not intend to do so. According to him since she was sitting close to General Vaidya one of the bullets strayed and caused injury to her. So far as accused No.5 Harjinder Singh @ Jinda is concerned, he, in his statement recorded under section 313 of the Criminal Procedure Code, 1973, admitted that he was the person driving the black (not red) Indu-Suzuki motor cycle with accused No.1 in the pillion seat. It was he who brought his motor cycle with accused No.1 in the pillion seat. It was he who brought his motor cycle in line with the Maruti Car driven by General Vaidya to facilitate accused No.1 Sukha to shoot the General. It was only thereafter that accused No.1 fired the bullets which caused the death of General Vaidya. The learned Presiding Judge of the Designated Court, Pune, framed the points for determination and came to the conclusion that the prosecution had failed to prove beyond reasonable doubt that the accused before him and the absconding accused had entered into a cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Block No. G-21, Salunke Vihar, Pune, to create an operational base to work out and implement the alleged criminal conspiracy. This flat was hired by one Ravindra Sharma whom the prosecution identifies as absconding accused Sukhi. Now according to the prosecution after acquiring this base, Sukhi left the country on 14th July, 1986 and did not participate further in the execution of the alleged conspiracy. Accused No.2 Nirmal Singh became privy to the conspiracy later on. To prove this part of the prosecution case evidence has been tendered to show that two persons Raj Kumar Sharma and Rakesh Sharma came and stayed in Hotel Dreamland, Pune, from 23rd to 26th January, 1986 and contacted various estate agents on telephone, including PW 20 B.D. Sanghvi, partner of M/s. Estate Corporation, Pune, with a view to hiring a flat in Pune. The absconding accused Sukhi, it is contended, had stayed in that hotel under assumed name of Rakesh Sharma. PW 3 Rajender Tulsi Pillai has been examined to show that thereafter the said accused Sukhi and his companion shifted to Hotel Gulmohar on the 26th at about 2.20 p.m. and stayed there till 10.00 a.m. of the 29th. Therefore, according to the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng his identity but the prosecution places reliance on the opinion evidence of the handwriting expert PW 120 who has deposed that all these documents are in the handwriting of the absconding accused Sukhi. From the above evidence what the prosecution can at best be said to have established is that the person who signed the register of Dreamland Hotel as Rakesh Sharma and the register of Gulmohar Hotel as Ravinder Sharma and the person who signed the lease documents pertaining to G-21, Salunke Vihar flat as Ravinder Sharma was one and the same person because according to the evidence of PW 120 the handwritings tally but the identity of that person has got to be established by comparing the said handwriting with the undisputed handwriting of the suspect. The prosecution seeks to attribute the authorship of the aforesaid documents to the absconding accused Sukhi but since the specimen or admitted handwriting of Sukhi could not be secured, as he had fled from this country to U.S.A. even before the conspiracy came to light, the mere opinion evidence of PW 120, even if accepted as its face value, is not sufficient to establish the identity of the author if those documents. We will hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has contradicted himself on the authorship of the writing on the cover page of the novel Tripple. In his examinationin- chief he said it was in the handwriting of Sukha but on this point he was cross-examined by the prosecution to extract a statement that it was written by Sukhi. The idea was to establish contact between Sukhi and Sukha so that the former can be connected with the crime with the aid of section 120B, I.P.C. From the fact that clothes of different sizes were recovered from the said flat it was argued that several persons were in occupation of the flat. The find of three live and one empty cartridges was a circumstance projected by counsel to support his say that the flat was used for illegal purposes. From the above facts it is not possible to infer that Sukhi and Sukha were in occupation of the flat. This gap is sought to be filled through PW 48 H.S. Bhullar who claims to be a friend of the inmates of the flat. This witness deposes to have taken three prostitutes to the flat to satisfy the sexual urges of Sukhi, Sukha and another who were living therein. Now this witness is said to have identified Sukha in Court. Exh. 318 dated 8th December, 1988 is an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve identified him at the test identification parade as well as in Court. In regard to the identification at the test identification parade, there is some discrepancy as he seems to have initially identified a wrong person. He had also seen him in the lock-up before the identification parade. Lastly, he claims he had managed to secure help by breaking the glasspanes of the rear ventilator of the lavatory. Now PW 49 Lalita deposes that she was in the flat till 11,00 a.m. If this witness was locked up and he had raised an alarm, PW 49 lalita would certainly have learnt about the same but she is totally silent about the same. If the glasspanes were broken a note thereof would have been taken in the panchnama. Atleast PW 158 PSI George would have spoken about the same. Besides the story given by PW 46 cannot be said to be a natural and credible one. The prosecution tried to contend that PW 49 Lalita being an illiterate woman was making a mistake on the time factor. We have no reason to so believe. Even if there is any doubt the benefit thereof would go to the defence. PW 155 M.V.Mulley who arranged the test identification parade for PW 46 supports him. But the prosecution does not expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of Sanjeev Gupta. PW 76, a CBI officer had attached the free service coupon Exh.187 and the requisition slip Exh. 259. Neither bears any signature of the police officer or panch witness in token of being attached. The papers concerning a motor cycle bearing the name of Sanjeev Gupta are stated to have been recovered of 7th September, 1986 from Sukha and Nimma after their arrest following an accident. Since, according to the prosecution, the said motor cycle was used for murdering General Vaidya and was later recovered from the accident site on 7th September, 1986, it was argued that there was conspiracy preceding the said murder. The owner s manual, Article 10, was found from G-21, Salunke Vihar, Pune, but that does not bear any name of even the registration number of the vehicle. The find of such a document, assuming it was really there and was not planted as submitted by the defence counsel, cannot advance the prosecution case. Another link which the prosecution tried to establish was that this motor cycle was seen parked in the garage allotted to the occupant of G-21, Salunke Vihar flat. This fact is proved through PW 24 Vidyadhar Sabnis. PW 25 Lt. Col. Basanti Lal, occupa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bittu and accused No.1 Sukha had also secured false passports in fake name.Sukha is said to have taken out a passport in the name of Charan Singh. No expert opinion was tendered though the handwriting expert was examined to show that the application for passport was tendered by Sukha in the assumed name of Charan Singh. The learned trial judge also points out that the photograph seems to have been tempered with and ex-facie raises a grave suspicion regarding the circumstances in which and the point of time when it came to be affixed. PW 55 S.S.Kehlon has signed the index card of Charan Singh s application. PW 54 Raj Rani Malhotra deposes that nothing adverse was reported by the CID officers in respect of Charan Singh. The passport was, therefore, issued to Charan Singh. From the above evidence it is difficult to ascertain who tampered with the photograph. Even PW 70 Rajkumar Mittal who dealt with the index card did not find anything suspicious at that time. PW 77 Kulbhusan Sikka had delivered the passport to Shashi Bhushan who was authorised by Charan Singh to receive the same. From the above evidence and particularly lack of expert evidence it is difficult to conclude that accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution relies on the evidence of the hand-writing expert to show that accused No.1 had written his name (assumed name) on the bill prepared at the time the clothes were delivered for drycleaning. From the facts discussed above it becomes clear that the direct evidence, if at all, regarding the identity of the persons who moved about in different assumed names is either wholly wanting or is of such a weak nature that it would be hazardous to place reliance thereon without proper corroboration. As pointed out earlier the direct evidence regarding identity of the culprits comprises of (i) identification for the first time after a lapse of considerable time in Court or (ii) identification at a test identification parade. In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. In the present case it was all the more difficult as indisputably the accused persons had since changed their appearance. Test identification parade, if held promptly and after taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission of the crime in question. In the case of the absconding accused Sukhi, PW 120 examined a host of documents marked Q.1 to Q.34, Q.55 and Q.62 to Q.91 and compared them with the two documents A53 and A54 marked as admitted writings of Sukhi. The expert opined that Q.1 to Q.12, Q.14 to Q.23, Q.55, Q.62 to Q.66, Q.68 to Q.70, Q.72 to Q.77, Q.79 to Q.85, Q.87 and Q.89 were in the handwriting of the author of the documents marked A53 and A54. In the case of accused No.1 Sukha, PW 120 examined the questioned documents marked Q.40 to Q.54, Q.60, Q.61, Q.94 and Q.95 and compared them with his specimen writings marked S1 to S49, S52 to S59, S62 to S64 and the admitted writings A1 to A53 and A62 to A73 and came to the conclusion that the writings Q.40, Q.54, Q.60, Q61., Q.94 and Q.95 tallied with the specimen and admitted writings of accused No.1. So far Q.55 is concerned an express negative opinion was obtained that it was not in the hand of accused No. 1. Similary in regard to the accused Daljit Singh @ Bittu, questioned documents marked Q.35 to Q.39 were compared with the admitted writings marked A55 to A59 and the expert opined that Q.35 to Q.39 showed similarities with A55 to A59. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord in regard to the natural handwriting of accused No.1 is not satisfactory and does not inspire confidence. If we rule out this part of the material used by the handwriting expert for comparison we are merely left with the specimen writings/signatures of accused No.1 taken while in custody. Here also the evidence of PW 120 itself shows that the handwriting of the railway reservation from Exh. 700 does not tally with the specimen writings/signatures of accused No. 1. It only highlights the fact that it would be dangerous to identify the person who travelled on the strength of the reservation form Exh. 700 by comparing the writing thereon with the specimen writings of accused No.1. The evidence of PW 30 Arjun Punjabi and PW 89 Deepak Nanwani and the find of laundry tag No. 8833 of Lily White Dry-cleaners from G-21, Salunke Vihar flat on 7th September, 1986 was used to establish the fact that accused No.1 was one of the inmates of the said flat and was in Pune a couple of days before the murder of General Vaidya. This connection is sought to be established on the strength of the opinion evidence of PW 120 that the handwriting and signature on the laundry bill Exh. 547 tallied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. There is no absolute rule of law or even of prudence which has ripened into a rule of law that in no case can the court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, as for example like illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert s opinion in unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists . It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case of its own merits what weight it should attach to the opinion of the expert. The trial court examined the evidence of the handwriting expert PW 120 in great detail and came to the conclusion that it was hazardous to rely on his evidence as he had betrayed bias against the accused and in favour of the prosecution as he also belongs to the Police Department (see paragraph 159 of the judgement. As regards the specimen writings/signatures of accused No.1 the trial court observes in paragraph 157 as under: These answers in cross-examination of this witness do show that the specimen writings of Sukhdev Singh alias Sukh (accused No.1) and the questioned writings are not written by Sukhdev Singh (accused No.1) at all. As regards accused No.2 Nimma, the learned trial judge points out that the specimen signatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings. From the above discussion of the evidence it is clear that the prosecution s effort to provide the missing links in the chain by seeking to establish the identity of the participants to the alleged conspiracy through the handwriting expert PW 120 has miserably failed. We, therefore, agree with the conclusion of the learned trial judge in this behalf. That brings us to the incident of murder of General Vaidya on the morning of 10th August, 1986 at about 11.30 a.m. We have set out the facts in regard to the said incident in some detail in the earlier part of this judgment and will recapitulate only thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese witnesses had also seen the incident and the culprits from the rickshaw in which they were passing at that time of the incident. The trial court has placed reliance on the first set of the witnesses and has rejected the evidence tendered through the second set of witnesses as it did not accept the fact that the autorickshaw in question had actually passed by. We will discuss the prosecution evidence regarding the commission of the crime in two parts. The evidence of the securityman PW 16 Ramchandra Kshirsagar is that when the car was proceeding towards the intersection from where it had to turn right to go to the bungalow of General Vaidya, he saw an autorickshaw coming from the opposite side and signalled it by stretching out his hand to keep to the extreme left. Then he saw a cyclist also coming from the opposite side and signalled him also. Just then the car which had slowed down considerably began to negotiate a turn when a red Ind-Suzuki motor cycle drove along the car on the side of General Vaidya who was at the steering wheel. The pillion rider fired three shots from his weapon at the head of General Vaidya and then sped away. This witness wants us to believe that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enied that he had an opportunity to identify the assailant. We, therefore, do not see any serious infirmity in his evidence which would cast a doubt as regards his identification of accused No. 1. The next important witness is PW 106 Bhanumati Vaidya. She had accompanied her husband and was sitting next to him in the front seat of the car when the incident took place. She states that when the car took a turn at the intersection she heard three sounds like the misfire of a motor cycle but soon thereafter her husband s left hand slipped from the steering and his neck slumped on her shoulder. She states that the car drifted towards a cyclist who jumped off leaving the cycle which was run over by the front wheels of the motor car. She saw the motor cycle with two riders speed away and could only see the back of the pillion rider. She too had received bullet injuries on her right shoulder and was admitted in the intensive care unit of the hospital. She was operated upon for removal of the bullets from her body. Next day a magistrate had visited the hospital and had recorded her statement. She has deposed that the pillion rider whom she had seen from behind had been noticed by her two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We now come to the next group of witnesses, the driver and the two passengers of the autorickshaw which the securityman PW 16 claims was seen coming from the opposite direction. PW 16 says that just as the car was turning towards the right, he saw an autorickshaw coming from the opposite direction and signalled it to move to the extreme left. True it is that PW 14, the cyclist, did not notice it but in our view that cannot cast any doubt on the credibility of PW 16. There was no need for the cyclist to take note of the autorickshaw. His attention was rivetted at the car and the motor cycle after he heard the shots and there was no need for him to notice the autorickshaw. Counsel for the accused submitted that the story regarding the presence of an autorickshaw was invented by the securityman PW 16 to save his skin as he had been guilty of a serious lapse in having failed to save General Vaidya and apprehend his assailants. We may examine the evidence of the rickshaw driver PW 115 Baban Vithobha Deokar and the two passengers PW 111 G.B.Naik and PW 114 Vijay Anant Kulkarni. PW 111 had two daughters Anuradha and Anupama. Anuradha is the wife of PW 114 whereas Anupama was wedded to A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the car. This witness deposes that the assailants were 20 or 25 years of age. When the motor cycle passed by the rickshaw, the witness had an opportunity to identify the motor cyclists. They were clean shaven then but were in turban and beard in Court. Then these two witnesses got down from the rickshaw and helped others lift the body of General Vaidya to the matador van which carried him and his wife to the hospital. They then went to PW 37 Hidayat Ali, picked up the typed material and went to Stree Clinic where they discharged the rickshaw. They had narrated the incident to PW 37. PW 111 also claims to have made a note about the incident in his dairy Exh. 622. It is true that the statements of these two witnesses were recorded late i.e.on 24th October, 1986 presumably because their names had not surfaced earlier. The witness was shown several photographs and he could recognise one of them as the driver of the motor cycle. This photograph is marked Art. 148. Later both PW 111 and PW 114 had identified accused No.1 at the test identification parade held on 29th October, 1986. Both the witnesses also identified accused Nos.1 and 5 in Court. Albeit PW 111 took some time to identif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to register their name in case blood may be required at the time of Anupama s operation. He has also stated that the two passengers were talking about having witnessed a shoot out earlier in the day as is ordinarily seen in movies. The learned trial judge discarded this part of the prosecution case for diverse reasons, some of them being (i) the story of the securityman PW 16 in regard to the location of the autorickshaw is in sharp conflict with his version in the FIR; (ii) the presence of PW 111 and PW 114 at the place of the incident is highly doubtful for the reason that there was no cause for them to take the longer route, more particularly when Anupama was admitted to the clinic of PW 1 and was to be operated on that very day; (iii) the conduct of both the witnesses in maintaining sphnix-like silence for more than two and a half months when the incident had shaken the nation was highly unnatural, more so because admittedly PW 111 had met inspector Mohite only a few days after the incident., may be in some other connection; (iv) the entry in the diary of PW 111 regarding this incident was ex-facie a laboured attempt made with a view to creating corroborative documentary ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has ruled out this part of the prosecution case. For the above reasons the trial court refused to place reliance on the prosecution s attempt to establish the identity of accused No.5 as the driver of the motor cycle through photographs. But the learned Additional Solicitor General submitted that it is not possible to believe that the photographs relied on were not the photographs of accused No.5. He submitted that accused No.5 was apprehended in Delhi on 30th August, 1987 and as his legs were fractured he was immediately admitted to a hospital and was taken to Pune in January 1988. In the meantime his photographs had appeared in various newspapers, magazines and also on television and, therefore, it is not possible to believe that the investigating officer would be so naive as to show and produce some one else s photographs. He submitted that perhaps because the appearance of accused No.5 and undergone a change in the meantime even the learned judge had difficulty in identifying him as the person in the photographs. He submitted that this was followed by the witnesses identifying him in Court. There is considerable force in this line of reasoning but at the same time we ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to him killing General Vaidya was not a crime and that is why he had not pleaded guilty. Be that as it may, the learned trial judge gave accused No.1 time upto 26th September, 1988 to reflect. On that date accused No.1 presented a written statement Exh. 60A wherein he admitted to have fired four shots at General Vaidya and killed him. He further stated that he had learnt that he had injured his wife also but that was wholly unintentional. Even later when his statement was recorded under section 313 of the Code, he owned the statement Exh. 60A and did not try to wriggle out of it. He departs from the prosecution case, in that, he says he was riding a black (not red) motor cycle and that accused No.5 was not the driver but one Mathura Singh was driving the motor cycle. That betrays an attempt on his part to keep out accused No. 5. Even after this statement was filed the learned trial judge did not convict him straightaway but proceeded to complete the prosecution evidence before recording his statement under section 313 of the Code. He followed this up by yet another statement Exh. 919 admitting his guilt. Accused No. 5 Jinda pleaded not guilty to the charge. He did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad anything else to say, he referred to his statement Exh. 922 and admitted that it was in his own handwriting, its contents were correct and he had signed it. He also admitted that he was driving the motor cycle when his pillion rider fired at General Vaidya and injured him. It is in this background that we must examine the impact of their admissions in their statements under section 313 of the Code. Section 313 of the Code is intended to afford a person accused of a crime an opportunity to explain the circumstances appearing in evidence against him. Subsection (1) of the section is in two parts : the first part empowers the court to put such questions to the accused as it considers necessary at any stage of the inquiry or trial whereas the second part imposes a duty and makes it imperative on the court to question him generally on the prosecution having completed the examination of its witnesses and before the accused is called on to enter upon his defence. Counsel for accused No.5 submitted that since no circumstance had surfaced in evidence tendered by the prosecution against the said accused, there was nothing for him to explain and hence the learned trial judge committed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words shall question him clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. The state of examination of the accused under clause (b) of sub-section (1) of section 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under section 313, the learned judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After the section 313 stage is over he has to hear the oral submissions of counsel on the evidence addu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accused under section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab. [1963] 3 SCR 678 this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge Bench answered the question it would be advantageous to reproduce the relevant observations at pages 684-685 : Under section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under section 342 is primarily to be directed to those mattes on which evidence has been led for the prosecution to ascertain from the accused his version or explanation - if any, of the incident which forms the subject-matter of the charge and his d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge the accused he is required to frame in writing a charge against the accused as required by section 228 of the Code. Where the Judge frames the charge, the charge so framed has to be read over and explained to the accused and the accused is required to be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 next provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this provision shows that if the accused pleads guilty the Judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clean, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of guilt made by the two accused in their statements recorded under section 313 of the Code. In the case of Jit Bahadur Chetri only one witness was examined and immediately thereafter the statement of the accused was recorded under section 313 of the Code. The deposition of the sole witness did not reveal that he had seen the accused causing the injury in question. The question that was framed was not consistent with this evidence and hence the High Court found that the trial court had acted illegally. It was held that such an answer cannot be construed as pleading guilty within the meaning of the provisions of the Code and hence the learned Magistrate had contrary to law in convicting and sentencing the accused on the basis of that plea. It will thus be seen that the Court came to the conclusion that the accused could not be stated to have pleaded guilty and hence the conviction was set aside. In the other case of Asokan the High Court of Kerala pointed out that in a criminal case the burden of establishing the guilt beyond reasonable doubt lies on the prosecution and that burden is neither taken away, nor discharged, nor shifted merely because the accused sets up a plea of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrectness of this finding as we also come to the conclusion that capital punishment is warranted. It also acquitted all the accused persons of the other charges framed under the Penal Code save and except accused Nos. 1 and 5, as stated earlier. The accused were also convicted under section 307 and 307/34 respectively for the injury caused to PW 106 Bhanumati Vaidya. Thus the conviction of accused sno.1 and 5 is outside the provisions of TADA Act and, therefore, it was open to the Designated Court to award such sentence as was provided bythe Penal Code. Section 17(3) of the TADA Act makes sections 366 to 371 and section 392 of the Code applicable in relation to a case involving an offence triable by a Designated Court. The Designated Court having come to the conclusion that this was a case falling within the description of the rarest of a rare awarded the extreme penalty of death to both accused Nos. 1 and 5 for the murder of General Vaidya. In doing so, the Trial Court placed strong reliance on the decision of this Court in Kehar Singh Ors. v. State (Delhi Administration), [1988] 3 SCC 609. The learned Trial Judge took the view that since the murder of General Vaidya was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the Court refused to entertain the plea on the ground that it was not raised in the courts below and was sought to be raised for the first time in the apex court. That decision, therefore, does not assist the prosecution. Reliance was then placed on the third proviso to section 309 of the Code which reads as under : Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. This proviso must be read in the context of the general policy of expeditious inquiry and trial manifested by the main part of the section. That section emphasises that an inquiry or trail once it has begun should proceed from day to day till the evidence of all the witnesses in attendance has been recorded so that they may not be unnecessarily vexed. The underlying object is to discourage frequent adjournments. But that does not mean that the proviso precludes the Court from adjourning the matter even where the interest of justice so demands. The proviso may not entitle an accused to an adjournment but it does not prohibit or preclude the Court from granting one in such serious cases of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not chosen to file any appeal against their convictions by the Designated Court. We are, therefore, of the view that in the present case the requirements of section 235(2) of the Code have been satisfied in letter and spirit and no prejudice is shown to have occurred to the accused. We, therefore, reject this contention of the learned counsel for the accused. For the above reasons, we are of the opinion that the decision of the learned Trial Judge is based on sound reasons and is unassailable. We, therefore, confirm the conviction of accused No.1 under section 302 and 307, IPC and accused No.5 under section 302 and 307, IPC, both read with section 34, IPC and the sentence of death awarded to both of them. We see no merit in the State s appeal against the acquittal of the other accused persons of all the changes levelled against them and accused Nos. 1 and 5 on the other counts with which they were charged and accordingly dismiss the stage s Criminal Appeal No. 17 of 1990. The Death Reference No. 1of 1989 will stand disposed of as stated above. Before we part we must express our deep sense of gratitude for the excellent assistance rendered to us by the learned Additional Soli ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
