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PETITIONER: STATE OF MAHARASHTRA ETC. ETC.

       Vs.

RESPONDENT: SUKHDEO SINGH AND ANR. ETC. ETC.

DATE OF JUDGMENT15/07/1992

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) RAMASWAMY, K.

CITATION:  1992 AIR 2100            1992 SCR  (3) 480  1992 SCC  (3) 700        JT 1992 (4)    73  1992 SCALE  (2)9

ACT:      Penal  Code, 1860-Sections 302, 307 and  34-Prosecution for murder of General Vaidya-Trial under TADA-Conviction and death sentence by Designated Court-Validity of.      Penal Code, 1860-Sections 120B, 302, 307, 465, 468, 471 and 212 and Sections 3 and 4 of the Terrorist and Disruptive Activities  Act,  1985 and Section 10 of the  Passport  Act- Charges  under  against  the  accused-Conviction  and  death sentence  of  accused 1 and 5 u/ss. 302, 307,  34,  IPC  and acquittal of other accused by Designated  Court-Appreciation of  evidence by Supreme Court-Findings of  Designated  Court approved.      Evidence   Act,  1872-Section   9-Test   Identification parade-After  long  lapse  of time,  first  time  in  Court- Evidential value of.      Evidence  Act,  1872-Sections  3,  73-Appreciation   of evidence-Evidence regarding identity of author of  document- Expert opinion-Reliability of-Comparing documents by  Court- Effect of-Identification of accused-Evidential value of.      Code of Criminal Procedure, 1973-Section 311-Statements recorded under-Evidential value of-Plea of guilt  tantamount to admission of all facts constituting offence-Court’s duty.      Terrorist and Disruptive Activities Act,  1985-Sections 3(2)(i)  or  (ii)  and 3(3) read with  sections  120B,  465, 468,471,  419, 302, 307, 34, IPC-Charged under-Procedure  to be adopted.      Code   of  Criminal  Procedure,  1973-Section   235(2)- Conviction  and  death  sentence  pronounced  on  same  day- Legality of.

HEADNOTE:      The Prosecution case was that on the orders of the then Prime Minister, the then Chief of the Armed Forces,  General Vaidya, was assigned the task of flushing out militants  who had taken refuge in the                                                        481 Golden Temple.  Some militants were killed and a part of the Golden Temple was damaged in the Blue Star Operation.      The  militants  vowed  to avenge the  deaths  of  their colleagues and to punish those who were responsible for  the descreation of the Golden  Temple.  The then Prime  Minister

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was assassinated on 31.10.1984.      General  Vaidya  after  his  retirement  on   31.1.1986 decided  to  settle down with his wife in  Pune.   As  their Bungalow  was under construction, they shared  the  bungalow occupied by another Major General in Pune.      On 26.5.1986, when General Vaidya and his wife  shifted to their new bungalow, they were provided only the service’s of only one armed Head Constable for security duty. On 10.8.1986, at about 10 a.m., General Vaidya with his wife went for shopping accompanied with the securityman.  General Vaidya  was  driving the Car with his wife  sitting  in  the front  seat to his left and the securityman sitting  in  the near  seat just behind her.  After shopping, at about  11.30 a.m.,  while  they  were returning to  their  residence  via Rajendrasinghji   Road,  General  Vaidya,  slowed  down   to negotiate a turn to the right at the square in front of  his residence,  at  the  intersection  of  Rajendrasinghji   and Abhimanyu  Roads.  At that point of time, a  red  Ind-suzuki motor cycle came parallel to the car on the side of  General Vaidya  and  the person occupying the pillion  seat  of  the motor  cycle fired three shots from close range at the  head of  the  deceased.  Before his wife  and  securityman  could realise  what  had happened, General Vaidya slumped  on  his wife’s  shoulder.  The motor cyclists drove away  and  could not  be  located.  As General Vaidya lost control  over  the car, it surged towards a cyclist.  The cycle came under  the car,  and the car stopped at a short distance in front of  a compound  wall.   The  cyclist escaped by  jumping  off  the cycle.   The  injured  General Vaidya  was  carried  to  the Command  Hospital in a passing by green matador  van,  which was  fetched  by the securityman.  In the  Hospital  General Vaidya was delcared dead.      The securityman immediately informed the L.I.B.  Office about  the  incident and at the place of  the  incident  the securityman’s  format  complaint  was recorded by  a  Police Inspector, and the investigation was commenced.  A Panchnama of the scene of occurrence was drawn up by the Inspector  in the presence of witnesses and the empty cartridges and other                                                        482 articles were recovered therefrom.      On 7.9.1986, two persons riding a red Ind-Suzuki  motor cycle  collied with a truck.  They were thrown off the  motor cycle  and  sustained injuries.  A bag containing  arms  and ammunition  was also thrown off.  They  hurriedly  collected the  spilled articles.  when the people, who  had  collected there  went  to  assist them, they behaved  in  an  abrasive manner  and one of them, who was identified as accused  No.1 raising  his revolver threatened to shoot, which raised  the crowd’s  suspicion  and the matter was  reported  to  Police Inspector  of  Pimpri  Police Station.   Police  swung  into action  and  caused the arrest of the accused Nos.1  and  2. They  were  charge-sheeted under section 307, IPC  for  that incident.  (Later they were convicted and sentenced for that offence.)   While  they were being taken in a  jeep  to  the Pimpri  Police  Station,  the  accused  raised  slogans   of "Khalistan  Zindabad" and proudly proclaimed that they  were the assailants of the deceased General Vaidya.      In  the course of investigation it came to  light  that apart  from  accused Nos. 1 and 2, other  terrorists  namely accused  Nos. 3 to 5 and the absconding accused Nos. 6 to  9 were  involved  in  the  conspiracy  allegedly  hatched  for assassinating  the  deceased General immediately  after  his retirement and on depletion of the security cover.      On  14.8.1987,  the accused Nos. 1 and  2  others  were charge sheeted under sections 120B, 302, 307, 465, 468,  471

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and  212,  IPC, and sections 3 and 4 of  the  Terrorist  and Disruptive  Activities  Act,  1985 and  section  10  of  the Passport Act.      The  Presiding Judge of the Designated Court held  that the prosecution failed to prove beyond reasonable doubt that the  accused  before  him and  the  absconding  accused  had entered  into a criminal conspiracy to commit the murder  of General  Vaidya;  that accused No. 5 was driving  the  motor cycle  with accused No.1 on the pillion seat;  that  accused No.1 fired the shots from close range killing General Vaidya and  injuring his wife who was seated next to him; that  the crime in question was committed in furtaerance of the common intention  of  accused No.1 and accused No. 5 to  cause  the murder of General Vaidya.      The  Judge  of the Designated Court  convicted  accused No.1  under  sections  302 and 307, IPC for  the  murder  of General Vaidya and for                                                        483 attempting to take the life of his wife.  Accused No. 5  was convicted  under  section  302 and  section  307  read  with section  34,  IPC.  Accused Nos. 1 and 5 were  sentenced  to death  subject  to confirmation of sentence by  this  Court. They  were  also sentenced to rigorous imprisonment  for  10 years  for the offence under section 307.   The  substantive sentence were ordered to run concurrently.  Accused 1 and  5 were  acquitted of all other charges levelled against  them. Accused  Nos.  2,3 and 4 were acquitted of all  the  charges levelled against them.      Accused  1 and 5 did not file any appeal against  their convictions by the Designated Court.      In the Death Reference No.1 of 1989 and in the Criminal Appeal  No.  17 of 1990, the State  questioned  before  this Court  the  correctness of the grounds on  which  the  trial Court  acquitted the accused Nos. 2 to 4 of all the  charges levelled  against them and the acquittal of accused 1 and  5 of the other charges levelled against them besides  sections 302, 307/34, IPC.      The  State  also submitted that the  statement  of  the accused  recorded under section 313 of the Code of  Criminal Procedure, 1973 was sufficient to prove their involvement in the  commission  of  the  crime  and  such  statement   also corroborated the prosecution case.      The accused contended that if there was no evidence  or circumstance   appearing   in   the   prosecution   evidence implicating  the  accused with the commission of  the  crime with  which  they were charged, there was  nothing  for  the accused  to explain and their examination under section  313 of  the Code was wholly unnecessary and improper and  should be  totally discarded and their admissions, if  any,  wholly ignored;  that  since  the  conviction  and  sentence   were pronounced on the same day, the capital sentence awarded  to the accused should not be confirmed.      Dismissing  the  Criminal Appeal and disposing  of  the Death Reference, this Court, while confirming the conviction order and sentence passed by the Designated Court.      HELD  :  1.01   No  weight  can  be  attached  to   such identification more so when no  satisfactory explanation  is forthcoming  for  the  investigation  officer’s  failure  to promptly hold a test identification parade. [501E]      1.02.  The  direct evidence, if at all,  regarding  the identity of the persons                                                       484 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

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corroboration.   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  appearances. [506C-E]      1.03  Test identification parade, if held promptly  and after  taking  the  necessary  precautions  to  ensure   its credibility,  would  lend the required assurance  which  the court ordinarily seeks to act on it.  In the absence of such test  identification parade it would be extremely  risky  to place implicit reliance on identification made for the first time  in Court after a long lapse  of time and that  too  of persons who had changed their appearance. [506F]      Kanan  &  Ors. v. State of Kerala, [1979]  3  SCC  319, relied on.      1.04.  Before a Court can act on the opinion  evidence of a handwriting expert two things must be proved beyond any manner  of  doubt,  namely,  (i)  the  genuineness  of   the specimen/admitted  handwriting of the concerned accused  and (ii)  the handwriting expert is a competent,  reliable   and dependable  witness  whose  evidence  inspires   confidence. [508B]      1.05  Evidence regarding the identity of the author  of any document can be tendered (i) by examining the person who is  conversant  and familiar with the  handwriting  of  such person  or  (ii) through the testimony of an expert  who  is qualified and competent to make a comparison of the disputed writing  and the admitted writing on a scientific basis  and (iii)  by the court comparing the disputed document with  the admitted one. [509F]      1.06 Since the science of identification of handwriting by  comparison  is not an infallible one,  prudence  demands that before acting on such opinion the Court should be fully satisfied  about  the authorship of  the  admitted  writings which  is made the sole basis for comparison and  the  Court should  also  be fully satisfied about  the  competence  and credibility  of the handwriting expert.  It is  indeed  true that by nature and habit, over                                                        485 a  period of time, each individual develops  certain  traits which  give a distinct character to his writings  making  it possible to identify the author but it must at the same time be  realised  that since handwriting experts  are  generally engaged  by one of the contesting parties they,  consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. [509H-510A]      1.07  When  one  comes  across  cases  of   conflicting opinions  given  by  two  handwriting  experts  engaged   by opposite  parties.  It is 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.

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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 or 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  with  the  disputed ones  has  placed  a  heavy responsibility  on  the courts to exercise extra  care   and caution  before acting on such opinion.  Before a court  can place reliance on the opinion of an expert, it must be shown that  he has not betrayed any bias and the reasons on  which he  has based his opinion are convincing  and  satisfactory. It  is  for  this reason that the courts are  wary  to  act, solely  on  the  evidence of  a  handwriting  expert;  that, however,  does  not mean that even if there  exist  numerous striking  peculiarities  and mannerisms which stand  out  to identify  the writer the court will not act on the  expert’s evidence.  In the End it all depends on the character of the evidence  of the expert and the facts and  circumstances  of each case. [510B-G]      1.08 A handwriting expert is a competent witness  whose opinion  evidence  is  recognised  as  relevant  under   the provisions of the Evidence Act                                                        486 and  has  not been equated to the class of  evidence  of  an accomplice.   It would, therefore, not be fair  to  approach the opinion evidence with suspicion but the correct approach would  be  to weigh the reasons on which it is  based.   The quality of his opinion would depend on the soundness of  the reasons on which it is founded.  But the court cannot afford to  overlook the fact that the Science of identification  of handwriting is an imperfect and frail one as compared to the science  of  identification of finger-prints;  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  on its own merits what weight it should attach to  the opinion of the expert. [513A-C]      Ram  Narain v. State of U.P., [1973] 2 SCC 86;  Bhagwan Kaur  v. Maharaj Krishan Sharma, [1973] 4 SCC 46 and  Murari Lal v. State of M.P., [1980] 1 SCC 704, referred to.      1.09  Although  section 73  specifically  empowers  the court   to   compare   the  disputed   writings   with   the 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. [514F]      1.10 It is not advisable to venture a conclusion  based on such comparison having regard to the state of evidence on record  in regard to the specimen/admitted writings  of  the accused Nos. 1 and 2. [514G]      1.11 Except for a couple of minor contradictions  there is nothing brought out in his cross-examination to doubt  PW 16’s  (Security man) testimony regarding  identification  of accused  No.1 as the person who fired the shots  at  General Vaidya.   The  presence  of  this witness  at  the  time  of

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occurrence  cannot and indeed was not doubted.  So  also  it cannot be denied that he had an opportunity to identify  the assailant.   There is no serious infirmity in  his  evidence which  would cast a doubt as regards his  identification  of accused No.1 [517C]      1.12 PW 14, the cyclist, did not notice an autorickshaw but in court’s                                                        487 view that cannot cast any doubt on the credibility of PW 16. 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. [518H]      2.01  Section 313 of the code is a statutory  provision and embodies the fundamental principle of fairness based  on the  maxim  audi alteram partem.  It is trite law  that  the attention  of  the accused must be specifically  invited  to inculpatory  pieces  of evidence or  circumstances  laid  on record with a view to giving him an opportunity to offer  an explanation  if he chooses to do so.  The 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. [526H-527B]      2.02  The  stage 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  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  adduced before pronouncing on the  evidence.   The trial  judge is not expected before he examines the  accused under  section  313 of the Code, to sift  the  evidence  and pronounce  on  whether or not he would accept  the  evidence regarding any incriminating material to determine whether or not  to  examine the  accused on that material.   To  do  so would  be  to  pre-judge the evidence  without  hearing  the prosecution under section 314 of the Code. [527C-E]      2.03  It  is  only  where  the  court  finds  that   no incriminating  materials has surfaced that the  accused  may not be examined under section 313 of the Code.  If there  is material against the accused he must be examined. [527F]      2.04 In the instant case it is not correct to say  that no incriminating material has surfaced against the  accused, particularly  accused No. 5, and hence the trial  judge  was not justified in examining the accused under section 313  of the Code. [527G]                                                        488      2.05 Since no oath is administered to the accused,  the statements made by the accused will not be  evidence Stricto sensu.   That is why sub-section (3) says that  the  accused shall  not render himself liable to punishment if  he  gives false answers. [527H]      2.06  The answers given by the accused in  response  to his  examination  under  section  313  can  be  taken   into consideration in such inquiry or trial.  This much is  clear on  a  plain reading of the above  sub-section.   Therefore, though  not strictly evidence, sub-section (4) permits  that

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it  may be taken into consideration in the said  inquiry  or trial. [528C]      State  of Maharashtra v. R.S. Chowdhari, [1967]  3  SCR 708;  Hate Singh v. State of Madhya Bharat, 1955  Crl.  L.J. 1933 and Narain Singh v. State of Punjab, [1963] 3 SCR  678, relied on.      Jit Bahadur Chetri v. State of Arunachal Pradesh,  1977 Crl. L.J. 1833 and Asokan v. State of Kerala, 1982 Crl. L.J. 173, distinguished.      2.07  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 fact  i.e. ingredients  constituting  the  offence.  The  plea  of  the accused   must,   therefore,  be  clear,   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  plea  of guilt. Once these requirements are satisfied the law permits the  Judge trying the case to record a conviction  based  on the plea of guilt.  If, however, the accused does not  plead guilty or the learned Judge does not act on his plea he must fix  a date for the examination of the witnesses,  i.e.  the trial  of the case.  There is nothing in this Chapter  which prevents the accused from pleading guilty at any  subsequent stage of the trial.  But before the trial Judge accepts  and acts  on that plea he must administer the same caution  unto himself.  This plea of guilt may also be put forward by  the accused  in his statement recorded under section 313 of  the Code. [530B-D]      2.08  In  the  instant  case,  besides  giving  written confessional statements, both accused No. 1 and accused  No. 5 admitted to have been involved in the commission of murder of  General Vaidya.  It is pointed out that both the  accused have  unmistakably,  unequivocally and  without any                                                        489 reservation  whatsoever  admitted the fact  that  they  were responsible for the murder of General Vaidya.[530E]      2.09  Accused No. 1 did not name accused No. 5  as  the driver  of the motor cycle, perhaps he desired to  keep  him out,  but  accused No. 5 has himself admitted  that  he  was driving  the  motor cycle with accused No.1 on  the  pillion seat  and to facilitate the crime he had brought  the  motor cycle  in line with the Maruti car so that accused No.1  may have  an  opportunity  of firing at his  victim  from  close quarters.   There  is, therefore, no doubt  whatsoever  that both accused No.1 and accused No. 5 were acting in  concert, they  had a common intention to kill General Vaidya  and  in furtherance  of that intention accused No.1 fired the  fatal shots.[530F-G]      2.09  The  trial Judge was justified  in  holding  that accused  No.1 was guilty under section 302 and accused  No.5 was guilty under section 302/34, IPC.[530H]      3.01 In the instant case, the accused were tried  under the section 3(2)(i) or (ii) and 3(3) provisions of TADA  Act and the Rules made thereunder along with the offences  under sections  120B, 465, 468, 471, 419, 302 and 307, IPC.   They were  also  charged  for the  commission  of  the  aforesaid offences  with  the aid of section 34, IPC.   Under  section 13(4)  the procedure which the Designated Court must  follow is the procedure prescribed in the Code for the trial before a Court of Session. [531H-532C]      3.02  The  Trial  Judge took the view  that  since  the murder  of  General  Vaidya  was  also  on  account  of  his

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involvement in the Blue Star  Operation his case stood  more or  less  on  the same footing and hence  fell  within  ‘the rarest of a rare’ category.  This line of reasoning  adopted by the Trial Judge is unassailable.  The accused persons had no remorse or repentence, in fact they felt proud of  having killed General Vaidya in execution of their plan.                                                  [532H-533B]      Kehar  Singh  & Ors. v. State  (Delhi  Administration), [1988] 3 SCC 609, relied on.      4.01 The choice of sentence had to be made after giving the  accused an effective and real opportunity to place  his antecedents, social and economic background, mitigating  and extenuating  circumstances,  etc.  before  the  Court,   for otherwise the court’s decision may be vulnerable. [533D]                                                        490      Allaudin  Mian  v.  State of Bihar,  [1989]  3  SCC  5; Milkiat  Singh  v.  State  of Punjab, JT  (1991)  2  SC  190 (Paragraph 18); Jumman Khan v. State of U.P., [1990]  Suppl. 3  SCR  398 and Kehar Singh & Ors., v. State, [1988]  3  SCC 609, referred to.      4.02. Having regard to the well planned manner in which they executed their resolve to kill General Vaidya they were aware that there was every likelihood of the Court  imposing the extreme penalty and they would have, if they so desired, placed  material in their written statements or  would  have requested  the  Court for time when their  statements  under section  313 of the Code were recorded, if they  desired  to pray  for a lesser sentence.  Their resolve not to do so  is reflected in the fact that they have not chosen to file  and appeal  against their convictions by the  Designated  Court. In  the present case the requirements of section  235(2)  of the  Code  have been satisfied in letter an  spirit  and  no prejudice is shown to have occurred to the accused. [535C]      4.03  The conviction of accused No.1 under section  302 and  307, IPC and accused No. 5 under sections 302 and  307, IPC,  both  read with section 34, IPC and  the  sentence  of death awarded to both of them is confirmed.                                                      [535E]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION : Death Reference  Case No. 1 of 1989.      WITH      Criminal Appeal No. 17 of 1990.      From the Judgment and Order dated 21.10.89 of the  Pune Designated Court in Terrorist Sessions Case No. 2 of 1987.      Altaf  Ahmed, Additional Solicitor  General,  V.V.Vaze, S.B.  Takawane, S.M.Jadhav, A.S.Bhasme and Ms.  A.Subhashini for the Complainant/Appellant.      R.S.Sodhi,  Harshad  Nimbalka, P.G. Sawarkar  and  I.S. Goel for the Accused/Respondent.      The Judgment of the Court was delivered by      AHMADI,  J.  General A.S.Vaidya, the then chief of  the Armed                                                        491 Forces  was, on the orders of the then Prime  Minister  Smt. Indira  Gandhi, assigned the difficult and delicate task  of flushing  out militants who had  taken refuge in the  Golden Temple  at  Amritsar.  during this operation, known  as  the Blue  Star Operation, some militants were killed and a  part of  the Golden Temple known as Harminder Saheb was  damaged. Both the then Prime Minister Smt. Indira Gandhi and  General Vaidya  had,  therefore, incurred the wrath  of  the  Punjab

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militants for what they called the desecration of the Golden Temple.   They,  therefore, vowed to avenge  the  deaths  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 bungalow  No. 20, Queens Garden, two  Police  Sub-Inspectors were available on security duty, one for himself and another for  Major  General Yadav but after his discharge  from  the hospital  and on their shifting to their bungalow  at  47/3, Koregaon Park with effect from 26th May, 1986 only one armed Head Constable, Ram Chandra Kshirsagar, was on security  duty with  him.   Although the name plate of General  Vaidya  was displayed  on one of the two posts of the entrance  gate  to bungalow  No. 20 at Queens Garden, no such name  plate  was displayed at bungalow No. 47/3, Koregaon Park.      On the morning of 10th August, 1986, General Vaidya and his wife left their bungalow with the securityman Ramchandra Kshirsagar for shopping in their Maruti Car No. DIB 1437  at about 10.00 a.m.  The car was being driven by General Vaidya with his wife sitting in the front seat to his                                                        492 left  and  the  securityman sitting in the  rear  seat  just behind her.  After the shopping spree was completed at about 11.30 a.m. and while they were returning to their  residence via Rajendrasinghji Road, the car had to take a turn to  the right  at  the square in front of 18 Queens  Garden  at  the intersection  of  Rajendrasinghji and Abhimanyu  roads.   To negotiate  this  turn  General Vaidya who  was  driving  the vehicle slowed down.  At that point of time a red Ind-Suzuki motor cycle came paralled to the car on the side of  General Vaidya  and  the person occupying the pillion  seat  of  the motor  cycle fired three shots from close range at the  head of  General Vaidya.  Before his wife and  securityman  could realise  what  had happened, General Vaidya slumped  on  the shoulder  of his wife Bhanumati.  The motor  cyclists  drove away and could not be located.  An auto-rickshaw passed  by. As  General  Vaidya lost control over the  vehicle  the  car surged  towards a cyclist Digamber Gaikwad.  The latter,  in order to save himself, jumped off the cycle.  The cycle came under  the Maruti Car and as a result the car stopped  at  a short  distance  in front of a compound  wall.   Immediately thereafter  the securityman stepped out of the  vehicle  and went  in  search  of some bigger vehicle  to  carry  General Vaidya  to  the  hospital.  A Green Matador  Van  which  was passing  by  was  fetched by the securityman  in  which  the injured General Vaidya was carried to the Command   Hospital where he was declared dead.

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    The securityman immediately informed the L.I.B.  Office about the incident which 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                                                        493 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 identified as accused  No.  1 Sukhdev Sing @ Sukha, raised his revolver and threatened  to shoot, which raised the suspicion of the crown prompting one Narayan  Bajarang  Pawar to report the matter  to  Inspector A.I.   Pathan  of Pimpri Police Station.   Inspector  Pathan swung  it  to action and along with the  informant  and  his staff  members, including Sub-Inspector Nimbalkar,  went  in search of the two motor cyclists.  Inspector Pathan went  to the   pimpri  Railway  Police  Station  and   asked   P.S.I. M.K.Kadam  of that Police Station to immediately go  to  the place  of  the  accident and guard the  same  until  further orders.   Inspector Pathan, on return, noticed  two  persons passing by Vishal Talkies and as one of them was limping his suspicion  was aroused whereupon he drove his  vehicle  near them and pounced on one of them, later identified as accused No.2 Nirmal Singh @ Nima.  Accused No. 1 Sukha tried to  run away  but P.S.I. Nimbalkar gave a chase and caught  hold  of him  and  brought him to Inspector Pathan.   Before  he  was overpowered,  it is the prosecution case, that accused  No.1 Sukha  unsuccessfully  tried  to  fire  a  shot  at   P.S.I. Nimbalkar to make good his escape.  It may here be mentioned that both accused No.1 and accused No.2 were  charge-sheeted under   section  307,  IPC,  for  that  incident  and   were ultimately convicted and sentenced.      After   both  accused  No.1  and  accused   No.2   were apprehended  by Inspector Pathan and P.S.I.  Nimbalkar  they were  searched  and weapons like pistol and  revolver  along with  live cartridges were recovered from them.   They  were also  carrying certain papers concerning the red  Ind-Suzuki motor cycle and they too were attached.  As a seizable crowd had gathered on the road Inspector Pathan thought it wise to cause  the seizure memorandum to be recorded at  the  Pimpri Police Station.  The prosecution case is that while the  two persons  were  being taken in a jeep to  the  Pimpri  Police Station  they  raised slogans of  "Khalistan  Zindabad"  and proudly proclaimed that they were the assailants of  General Vaidya.  After reaching the Police Station all the  articles which were found in the possession of these two persons were attached  under  a  seizure  memorandum.   Inspector  Pathan suspected that the pistol which was found from them may have been the weapon used for killing General Vaidya and hence he sent the weapons as well as the cartridges attached from the

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scene  of  occurrence to the Ballistic Expert  who  reported that the cartridges found from the place                                                        494 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.  Thereafter he came to Pune and stayed in  Dreamland Hotel in the assumed name of Rakesh Sharma.  On January  26, 1986 he shifted to and registered himself as Ravindra Sharma in  Hotel Gulmohar on the pretext that he was  visiting  the city  for business purposes.  He was accompanied by  another person.  They gave a false address that they were  residents of   307,   Om  Apartments,  Bombay.   While  in   Pune   an advertisement appeared in the local daily Maharashtra Herald offering a flat No. G-21, Salunke Vihar, Pune on hire.  This flat  was  in the possession of Major A.K.Madan and  he  was desirous  of letting it out to repay the instalments of  the loan  taken  for meeting the construction cost of  the  said flat.   He  had entrusted this work of  finding  a  suitable tenant  to one V.R.Hallur and had given a Power of  Attorney to him for that purpose.  The said V.R.Hallur approached the Estate  Agents  Bhavar Sanghavi and disclosed  that  he  was desirous  of letting out the flat on a rent ranging  between Rs.  1200  and Rs. 1500 with a deposit ranging  between  Rs. 12,000  and  Rs. 15,000.  The Estate  Agents  published   an advertisement in the local newspaper Maharashtra Herald,  in consequence  whereof  one  person  identifying  himself   as Ravindra  Sharma approached the Estate Agent  and  finalised the  deal  by  paying  Rs. 15,000 in  cash  as  deposit  and agreeing  to pay rent at the rate of Rs. 1500 per month  and went  on to pay advance rent for three months i.e. Rs.  4500 to  the  said  V.R. Hallur.  The deal  was  closed  on  30th January,  1986.  It is the prosecution case that  this  flat was                                                        495 fired  as  the conspirators needed an operational  based  in Pune to facilitate the killing of General Vaidya.      The  prosecution case further is that on 3rd May,  1986 the 7, Antop Hill flat at Bombay was raided and besides arms and  ammunition  an English novel Tripple was found  on  the cover  page  whereof  someone had scribbled  the  number  of General  Vaidya’s  maruti Car.  Clothes of  different  sizes were  also  found indicating the presence of more  than  one person.  On 8th May, 1986 an Ind-Suzuki motor cycle  bearing No. MFK 7548 was purchased in the name of Sanjiv Gupta  from its  owner Suresh Shah through R.V. Antapurkar, a  salesman. Accused  No.1 is reported to have lived in  Hotel  Ashirvad, Pune on 9th June, 1986.  Accused No.1 lived in Hotel Amir in

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Room  No. 517 on 11th June, 1986, in Hotel Jawahar  in  Room No.  206 on the next day and in 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 General Vaidya.  After  accomplishing  the task accused No.1 returned to Bombay by 7.30 p.m. and stayed in  Hotel  Neelkanth, Khar, in the assumed name  of  Pradeep Kumar.   On  6th September, 1986, accused Nos.1  and  2  are stated  to have stayed in Hotel Dalmond, Bandra, Bombay,  in the  assumed  names of Ravi Gupta and Sandeep  Kumar  before their  arrest  at Pune on 7th September, 1986  by  Inspector Pathan.   This,  in  brief, are the broad  outlines  of  the alleged  conspiracy perpetrated by the accused  persons  and the absconding accused to kill                                                        496 General Vaidya.  To prove these circumstances a large number of documents and ocular testimony of several witnesses  came to  be  tendered by the prosecution  before  the  Designated Court.      The  investigation  revealed that on the  date  of  the incident  the  motor  cycle  was  driven  by  accused   No.5 Harjinder  singh @ Jinda with accused No.1 Sukhdev  Singh  @ Sukha in the pillion seat.  The shots were fired by  accused No.1 from the pillion seat at close range after accused No.5 had brought the motor cycle in line with the front window of the  driver’s seat of the Maruti Car.  The window  pane  was lowered  and General Vaidya was at the steering  wheel  with his  right elbow resting on the window and the hand  holding the  top  of the car.  As stated earlier, three  shots  were fired  in  quick  succession and before  Bhanumati  and  the securityman  could  realise  what  had  happened  the  motor cyclists   made good their escape.  Had it not been for  the accident  which took place on 7th September, 1986  in  which the said motor cycle was involved the police would have been groping  in the dark to nab the perpetrators of  the  crime. Accused  Nos.2,  3  and  4 were put  up  for  trial  as  co- conspirators.  The other co-conspirators could not be placed for  trial  as  they could not be  traced  since  they  were absconding.   All  the five accused denied  the  charge  and claimed  to be tried.  However, after the charge was  framed accused  No.1 Sukhvinder Singh @ Sukha expressed his  desire on 19th September, 1988 to make a statement before the Court admitting  to  have  killed General  Vaidya.   He  made  the statement  in open Court and the learned Presiding Judge  of the  the Designated Court, Pune gave him eight days’time  to reflect and make a detailed written statement thereafter, if

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he  so  desired.  On 26th September, 1988 when  the  accused were  once  again  arraigned  before  the  Designated  Court accused  No.1  submitted  a written  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                                                        497 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 criminal conspiracy to commit  the murder of General Vaidya.  He, however, came  to the conclusion that accused No.5 was driving the motor cycle with accused No.1 on the pillion seat and it was the  latter who fired the shots from close range killing General  Vaidya and  injuring his wife who was seated next to him.  He  came to  the conclusion that the crime in question was  committed in  furtherance of the common intention of accused No.1  and accused No.5 to cause the murder of General Vaidya.  He also came  to the conclusion that  the said two  accused  persons were guilty of attempt to commit the murder of Bhanumati  in furtherance of their common intention.  After a detailed and elaborate  judgment running into over 300 typed  pages,  the learned  judge  of  the Designated  Court,  Pune,  convicted accused No.1 under sections 302 and 307, IPC for the  murder of General Vaidya and for attempting to take the life of his wife Bhanumati.  He convicted accused No.5 under section 302 and  section  307,  both  read with  section  34,  IPC.   He sentenced  both  accused  No.1 and  accused  No.5  to  death subject to confirmation  of sentence by this Court.  For the offence under section 307 he sentenced both accused No.1 and accused  No. 5 to rigorous imprisonment for 10 years.   Both the substantive sentences were ordered to run  concurrently. He  acquitted both accused No.1 and accused No.5 of all  the other  charges  levelled against them.  So  far  as  accused Nos.2,  3 and 4 are concerned he acquitted them of  all  the charges levelled against them and directed that they be  set at liberty at once.      The facts of which we have given a brief resume make it crystal clear that broadly speaking the prosecution case has two  elements, the first relating to the charge of  criminal conspiracy   and   the  various  criminal  acts    done   in furtherance  thereof and the second relating to  the  actual murder of General Vaidya.  The prosecution has also  invoked sections 3 and 4 of TADA.      Now  according to the prosecution as soon as it  became known to the militant that General Vaidya planned to  settle down at Pune after his retirement from Army service,  wheels began to move to kill him as soon                                                        498

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as  the  security cover available to him was  reduced.   The prosecution tendered evidence, both oral and documentary, to show  that the conspiracy was hatched between  23rd  January 1986  and  3rd  May, 1986.  The first  step  taken  in  this direction  was  to hire a flat 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 prosecution Rakesh  Sharma  and Ravinder  Sharma  were  one  and the  same  person  and  the evidence  of  the  handwriting expert  PW  120  M.K.  Kanbar establishes  that  the said person was none other  than  the absconding accused Sukhi.  The entries identified as Q.3 and Q.4  from  the register of Dreamland Hotel and Q.5  and  Q.6 from  the register of Gulmohar Hotel are, in the opinion  of PW  120,  to  be of Sukhi.  It is  indeed  true  that  while discussing this part of the prosecution evidence the learned trial  judge  has committed certain factual errors  and  has wrongly  read the evidence as if PW 120 had opined that  the said  entries  were  made by accused No.1  Sukha.   That  is probably on account of similarity of names; he seems to have substituted  Sukha  for Sukhi.  We have,  however  corrected this  error  while appreciating the  prosecution   evidence. But  is must be remembered that because Sukhi had fled  from the  Country he could not be produced for identification  by the  hotel staff.  No one has, therefore, identified him  as Rakesh Sharma or Ravinder Sharma.  The question of identity, therefore,  rests solely on the evidence of the  handwriting expert PW 120.      Then  we come to the evidence of PW 20 B.D.Sanghvi  and PW  22  G.H.Bhagchandani  who  figured  in  the  transaction concerning the letting                                                        499 out of the G-21, Salunke Vihar flat at Pune, to one Ravinder Sharma.   According to the prosecution this Ravinder  Sharma had  met  PW 20 and it was PW 22 who had shown the  flat  to him.   Both these witnesses had, therefore, an  occasion  to see  Ravinder Sharma from close quarters.  It was  in  their presence  that  the  said Ravinder  Sharma  had  signed  the agreement   to  lease  on  27th  January,  1986.    PW   104 V.R.Hallur, the Power of Attorney of Major Madan and PW  105 R.J.Kulkarni  who  has contacted PW 20 were  also  concerned with  the  said  deal.  The evidence  of  PW  65  D.B.Bhagve reveals that one Ravinder Sharma had purchased a bank  draft of  Rs.  15,000  from  the Bank of  Baroda,  Pune,  on  25th January,  1986  in  the name of  Neelam  Madan.   The  lease documents are at Exh. 598 and 599.  From the evidence of the aforestated  witnesses it is established that a  person  who

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gave  his  name as Ravinder Sharma had  contacted  them  for hiring  the flat and the deal with finalised, payments  were made  and  documents  executed between  the  24th  and  27th January,  1986  at  Pune.   The question  is  who  was  this Ravinder  Sharma?   Once again there is no  direct  evidence regarding  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  have to see if this missing link  is  supplied  by other evidence on record.  We may also hasten to add that at this  stage we are not examining what value can he  attached to the evidence of PW 120.  The find of the original bill of Hotel Gulmohar, Exh. 92A, from the G-21, Salunke Vihar  flat after the arrest of accused Nos.1 and 2 does not improve the matter for that by itself cannot prove                                                        500 that  the  absconding accused Sukhi was the  author  of  the documents  relied on.  none of these witnesses, not even  PW 62   Kantilal  Shah,  has  identified  him  even  from   his photograph.  So also the fact that the said person,  whoever he  was, had given a false and bogus Bombay address of  307, Om  Apartments,  Borivali or that the  handwriting  of  some person  who  had  stayed  in yet  another  assumed  name  in different  hotels of Pune, Ahmedabad and Bhavnagar is of  no help  to  establish the identity.  Even though  the  entries Exh.   416 and 417 have been relied  upon the two  telephone operators of Dreamland Hotel were not examined.  That  being so    the   prosecution  evidence  falls   for   short   for establishing  its case that all these entries were  made  by the absconding accused Sukhi.      Then  we  come  to  the  evidence  in  regard  to   the activities  at the Antop Hill flat, Bombay, belonging to  PW 49 Sadanand Gangnaik.  According to him he had let the  flat to  Makhni  Bai  but since she has  not  been  examined  the further  link is not established.  As pointed  out  earlier, according to the prosecution, that flat too was hired by the absconding accused Sukhi  sometime in October-November  1985 and  the  same was raided  on 3rd May, 1986.   Evidence  was tendered  by  the  prosecution with the  avowed  purpose  of showing that a group of terrorists were in occupation of the said flat and when the same was raided certain incriminating evidence  was  found  and  attached  therefrom.   One   such important piece is stated to be  a novel in english entitled Tripple  on the cover page whereof someone had scribbled  in pencil  the number of General Vaidyas’ Car DIB-1437. On  the basis  of  the  documents  referred  to  in  the   preceding paragraph,  the  handwriting expert PW 120  says   that  the

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scribe  of this number is the very person who happens to  be the  author of the aforesaid documents.  But this  piece  of evidence suffers from the very same handicap from which  the other  evidence  suffers in regard to the  identity  of  the author of this document  also.  Besides, PW 48 H.S.  Bhullar has contradicted himself on the authorship of the writing on the  cover page  of the novel Tripple.  In his  examination- in-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                                                        501 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 application given by accused No. 5 Jinda alleging that  when he and Sukha were being taken to Court they  were shown to the prosecution witnesses.  Before we examine  this allegation  it is necessary to bear in mind that PW  48  was apprehended  by the police on 10th May, 1986 and was  booked as  a  co-accused  but  was later released  and  used  as  a witness.  Great care must be exercised before acting on such a belated identification in Court by a witness who cannot be said   to   be   an   independent   and   unbaised   person. Corroboration  is  sought to be provided  through  the  maid servant  PW 49 Lalita who was working in the flat.  She  too had  identified the accused in Court only.  She  was  candid enough  to accept the fact that the accused Sukha and  Jinda were  shown to her and PW 48 when they were being  taken  to Court.   This admission nullifies the identification of  the two accused by these two witnesses in Court.  No weight  can be   attached  to  such  identification  more  so  when   no satisfactory    explanation   is   forthcoming    for    the investigation    officer’s   failure   to   hold   a    test identification parade.  So also PW 50 Hira Sinha, one of the prostitutes,  also identifies him in Court but she  too  was not called to any test identification parade to identify the inmates of the flat.  She too admits that Sukha was shown to her  when he was in the lock-up.  The other prostitute  Jaya who is said to have had sex with Sukha was not called to the witness  stand though she attended Court.  When PW 50  could not  identify the person with who she had sex what  reliance can be placed on her identification of Sukha in Court  after a  lapse  of almost two years?  Besides, it is  an  admitted fact that there was considerable change in the appearance of the  accused, earlier they were clean shaven and later  they were  attired like sikhs making identification all the  more difficult.  No  neighbour,  not  even  the  laundryman,  was examined to establish their identity.  In this state of  the evidence if the learned trial judge was reluctant to act  on such  weak evidence, no exception can be taken in regard  to his approach.

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    Reliance  has  been  placed on the evidence  of  PW  46 Jagdish Bhave,                                                        502 a  policeman,  who deposes that he had gone to the  flat  at 10.00 a.m. to make inquiries, was pulled in and locked up in the  lavatory on 3rd May, 1986.  He identifies accused  No.1 Sukha as the person who had pointed a foreign make  revolver at  his neck.  He also claims to have 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 explain  why  Inspector Ratan  Singh and Sub-Inspector Govind Singh and the  laundry man  were  not examined.  Sub-Inspector Govind  Singh  would have explained why he could not identify accused No.1 at the test  identification  parade if he had been  called  to  the witness  stand.  To us  it seems PW 46 was put up to  supply the  lacuna regarding the involvement and identification  of accused  No.1  in particular.  The learned trial  judge  was right in pointing out that several independent witnesses had not been examined and the prosecution staked its claim on an artificial and unnatural story found unacceptable put  forth in  the testimony of PW 49 Lalita.  Even the  identification of  accused  No.1  Sukha by PW 46  Jagdish  does  not  carry conviction and is of no avail to the prosecution.      From the flat during the raid three live and one  empty cartridges were found.  One live cartridge was of .32"  bore while the other two live cartridges were of .38" bore.   The empty  cartridge  was of .38" bore.   These  were  forwarded along with the revolver which was found from accused No.2 on 7th  September,  1986 at Pune, to PW  125  M.D.Asgekar,  the ballistic  expert.  This witness has deposed that the  empty cartridge  was  fired from the revolver found  from  accused No.2, which weapon, it was said, was used                                                        503 in  the Union Bank robbery.  It is further his say that  the live pistol cartridge .32" bore was similar to the one  used in General Vaidya’s assassination.  True it is, the  learned trial judge has overlooked this evidence.  We will  consider the impact of this evidence at a later stage.      A Brylcream bottle, Article 83, was found in the  flat. PW  150  Vijay Tote lifted the fingerprint  on  that  bottle which was later compared by PW 122 A.R. Angre,  Fingerprint- expert,  with the fingerprint of accused No. 1 Exh. 607  and was  found  to  tally.   PW  107  S.V.Shevde,  Director   of Fingerprint Bureau proves this fact.      The    next  circumstance  relied  upon  concerns   the purchase  of  a red Ind-Suzuki motor cycle MFK 7548  on  8th

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May, 1986 through PW 18 Anantpurkar from PW 23 Suresh  Shah, the  allottee.  This motor cycle was later serviced  on  1st July,  1986  by  PW  39 Pimpalnekar.  The  motor  cycle  was purchased  in  the name of Sanjeev Gupta, a  name  allegedly assumed by absconding accused Daljit Singh alias Bittu.  The evidence  of  PW  12 Trimbak Yeravedkar shows  that  it  was registered  in  the R.T.O. in the name of S.B.Shah  and  was then  transferred in the 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,  occupant of G-23 flat, however, states that since the garage allotted to  him  was being used for preparing his furniture  in  the month of May 1986, he was using the garage allotted to  G-19 or  G-21  flat holders for parking his car.   All  that  his evidence shows that in the month of May 1986 one person                                                        504 had  come inquiring about the occupants of G-21 flat and  as the flat was locked he had left a message which this witness says  he  had slipped through the gap in the  door  of  that flat.  This is neither here nor there.  Then he states  that he  had  seen a red Ind-Suzuki motor cycle parked  near  the garage of G-21 flat on the 9th or 10th of August, 1986.   PW 26 Prakash Sabale, a neighbour residing in Anand Apartments, was called to depose that sometime in June 1986 he had  seen a  red  Ind-Suzuki parked in the garage of G-21  flat.   The evidence  of this witness conflicts with that of PW  25  who has stated in no uncertain terms that he was parking his car in  the  said garage.  Was there any particular  reason  for these witnesses to take note of the red coloured  Ind-Suzuki motor cycle? No reason has been assigned by the witnesses or the investigating officer.  Such red Ind-Suzuki motor cycles were not an uncommon sight in the city of Pune, atleast none says  so.  The evidence tendered by the prosecution in  this behalf betrays a laboured attempt to connect the inmates  of G-21 flat with the purchase of a red Ind-Suzuki motor  cycle since  it  was subsequently involved in an accident  on  7th September, 1986 and accused Sukha and Nimma were found using the same.  No attempt was made to establish the identity  of Sanjeev Gupta even through photographs.      PW 27 Hanuman Kunjir, a newspaper vendor, was  examined to  prove that he supplied the Indian Express  newspaper  to the  occupants of G-21 flat.  He discontinued supplying  the newspaper when he found that the earlier issues which he had left  in the door-gap had not been collected by  anyone  and there  was  no  gap  through  which  he  could  push-in  the newspaper.   Once he had found the door open  and  recovered his  dues under receipt Exh.  218.No attempt  has been  made

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to  establish  the identity of the person who asked  him  to supply  the newspaper or the person who paid the  amount  of Rs.40  for  which he gave the receipt Exh.  218.  Hence  his evidence is of no use to the prosecution.      The  prosecution alleges that Sukhi left India on  14th July,  1986.  The absconding accused 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                                                        505 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 No.1 Sukha had  committed forgery   to  secure  a  passport  to  leave   India.    The prosecution has tried to show that Sukhi obtained a passport in the name of Sunil Kumar, Bittu obtained a passport in the name of Harjit Sidhu and Sukha tried to obtain a passport in the name of Charan Singh.  It is true that Sukhi left  India on 14th July 1986, may be on a forged passport.  So also  we may  assume that Bittu obtained a false passport and so  did Sukha.   This  by  itself will not  establish  a  firm  link between  the  three as co-conspirators.  As  stated  earlier none  in  the passport office suspected  anything  shady  in regard to Charan Singh’s application for grant of  passport. It  seems  that  only after the  passport  was  issued  some tampering was attempted.  The manner in which the photograph is  pinned  raises suspicion.  Who did it is  the  question? There  is no evidence in this behalf.  There is  nothing  on record, except suspicion, that accused No.1 was privy to it. In  the absence of reliable evidence it is unwise to act  on mere  suspicion.  We. therefore, cannot find fault with  the approach  of the learned trial judge so far as this part  of the prosecution case in concerned.      One  further  fact  on  which  the  prosecution  places reliance  in support of its’ case of criminal conspiracy  is that  accused  Nos.  1, 2 and  5  travelled  by  Chhatisgarh Express  from Ambala to Doorg between 3rd August,  1986  and 5th  August,  1986  and from Doorg to  Bombay  by  Gitanjali Express  in assumed names.  Apart from the oral evidence  of PWs  126 to 135 and 151, the prosecution has  placed  strong reliance   on  the  reservation  forms  Exh.  700  and   701 purporting  to be in the handwriting of accused No.1  Sukha. There is no direct evidence as admittedly they had travelled in  assumed  names and none has identified them.   Thus  the only  evidence  is the opinion evidence of  the  handwriting expert  PW 120 to the effect that the reservation forms  are in the handwriting of accused No.1 Sukha.  While in  Bombay, the  accused  No. 1 is stated to have given his  clothes  to Lily White Dry-                                                        506

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cleaners  on 7th August, 1986 and received them from  PW  89 Deepak  Nanawani on the next day.  PW 30 Arjun  Punjabi  has proved  the two tags of the said laundry found   from  G-21, Salunke Vihar flat when the same was searched.  But the said evidence  cannot be of much use unless the identity  of  the person  who  delivered  and received  back  the  clothes  is established.   Here  also  the  prosecution  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  dry- cleaning.      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 taking the necessary  precautions to  ensure  its  creditability,  would  lend  the   required assurance which the court ordinarily seeks to act on it.  In the  absence of such test identification parade it would  be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of  time and  that too of persons who had changed  their  appearance. We,  therefore,  think  that the  learned  trial  judge  was perfectly justified in looking for corroboration.  In  Kanan &  Ors.  v.  State  of Kerala, [1979]  SCC  621  this  Court speaking through Murtaza Fazal Ali, J. observed:          "It is well settled that where a witness identifies          an accused who is not known to him in the Court for          the   first  time,  his  evidence   is   absolutely          valueless  unless  there has been a  previous  T.I.          parade  to  test his powers of  observations.   The          idea of holding T.I. parade under Section 9 of  the          Evidence Act is to test the veracity of the witness          on the question of his capability to                                                        507          identify  an  unknown person whom the  witness  may          have  seen  only once.  If no T.I. parade  is  held          then  it  will  be wholly unsafe  to  rely  on  his          testimony  regarding   the  identification  of   an          accused for the first time in Court."      We  are  in respectful agreement with  the  aforequoted observations.      The  prosecution  also led evidence to  show  that  the accused persons  were put up for test identification by  the witnesses  who claim to have seen them at  different  places before  the  actual incident of murder took place.  we  have adverted to the prosecution evidence in this behalf  earlier and have pointed out how weak and thoroughly unreliable  the said  evidence  is.   It has been shown  that  some  of  the witnesses  who claim to have identified the accused, one  or more,  have  conceded that they had an occasion to  see  the accused  in the Borivali lock-up earlier in point  of  time.

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This admission on the part of the witnesses has rendered the evidence  in  this  behalf of little or no  value  and  such evidence  was rightly brushed aside by the trial Court.   We too, having critically examined the evidence in this behalf, find it difficult to accept the same.  Therefore, the direct evidence regarding the identity of the accused is of no help to the prosecution.      The prosecution has then relied on the evidence of  the handwriting  expert PW 120 to establish the  involvement  of the  accused,  including  the  absconding  accused,  in  the commission  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                                                        508 admitted  writings marked A55 to A59 and the  expert  opined that Q.35 to Q.39 showed similarities with A55 to A59.   The handwriting  of  accused No.5  Jinda could not  be  obtained and,  therefore,  the  question of  comparing  his  specimen writings with the questioned writings did not arise.      Before  a  Court can act on the opinion evidence  of  a handwriting  expert  two things must be  proved  beyond  any manner  of  doubt,  namely,  (i)  the  genuineness  of   the specimen/admitted  handwriting of the concerned accused  and (ii)  the  handwriting expert is a competent,  reliable  and dependable  witness whose evidence inspires confidence.   In the present case since the absconding accused are not before us  we  are  mainly  concerned  with  the  expert’s  opinion implicating  accused No.1 Sukha.  The specimen  writings  of this  accused have been proved through the evidence of PW  5 Shaikh Zahir and PW 68 Anand Pawar.  The evidence shows that PW 168 S.Prasad, a police officer, had called the witness to a  room where accused No.2 Nirmal Singh was present  and  he was  required  to write down what the  said  police  officer dictated to him.  The specimen writings of Nirmal Singh have been proved through the evidence of the said PW 5 and PW  41 Ramkripal  Trivedi.   Thereafter they went to  another  room where accused No. 1 was present.  At the instance of PW  160 M.P.  Singh he was asked to sign as many as fifteen  papers. The  learned  trial judge has not doubted this part  of  the prosecution case and we may proceed on that basis.  To prove the  natural  handwriting of accused No.1,  the  prosecution examined PW 84 S.K.Prachendia, a lecturer of Gyan Jyoti P.G. College.   This  witness claims that accused  No.1  was  his student   and  he  had  submitted  an  application  in   the prescribed from for admission to be P.G. Course as a private candidate.  In support, reliance is placed on the photograph Art.31 showing the witness in company of accused  No.1.  Two other  registers  (Arts. 39 & 40) have been relied  upon  to prove that certain replies are in the hand of accused  No.1.

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But unfortunately for the prosecution the witness could  not even  identify  accused No.1. in the dock nor did  he  state that the form and the entries in the registers were made  by accused No.1 in his presence.  In his cross-examination  the witness  admitted that he would not be able to identify  the handwriting  of other students who studied under him.   More so  in  the  case of accused No.1 who  was  only  a  private student.   In  the circumstances we agree with  the  learned trial  judge  that the evidence on record 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                                                        509 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  the specimen  writings/signatures  of  accused  No.1.   But  the laundry tags do not bear the name of the laundry or the year of issue.  It was, however, urged that the evidence of PW 89 clearly proved that the number on the tags tallied with  the number  on  the  Bill and the opinion  evidence  of  PW  120 clearly  established  the fact  that since the  writing  and signature  on  the bill tallied with the  specimen  writing/ signature  of accused No.1, it was reasonable to infer  that accused  No.1 resided in the G-21, Salunke Vihar flat.   But what  is indeed surprising is that PW 89 was neither  called to the test identification parade nor asked to identify  the person  who had delivered the clothes for  drycleaning  from amongst  the accused seated in the dock.  The question  then is  whether  implicit reliance can be placed on the  opinion evidence of the handwriting expert PW 120.      It is well settled that evidence regarding the identity of  the  author  of  any document can  be  tendered  (i)  by examining the person who is conversant and familiar with the handwriting of such person or (ii) through the testimony  of an  expert  who  is  qualified  and  competent  to  make   a comparison of the disputed writing and the admitted  writing on  a scientific basis and (iii) by the court comparing  the disputed  document  with the admitted one.  In  the  present case  the  prosecution has resorted to the  second  mode  by relying on the opinion evidence of the handwriting expert PW 120.  But since the science of identification of handwriting by  comparison  is not an infallible one,  prudence  demands that before acting on such opinion the Court should be fully satisfied  about  the authorship of  the  admitted  writings which  is made the sole basis for comparison and the   Court should  also  be fully satisfied about  the  competence  and credibility                                                        510 of the handwriting expert.  It is indeed true that by nature

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and  habit, over a period of time, each individual  develops certain  traits  which  give a distinct   character  to  his writings  making it possible to identify the author  but  it must  at  the same time be realised that  since  handwriting experts  are  generally  engaged by one  of  the  contesting parties they, consciously or unconsciously, tend to lean  in favour of an opinion which is helpful to the party  engaging him.   That  is  why we come  across  cases  of  conflicting opinions  given  by  two  handwriting  experts  engaged   by opposite  parties.  It is, therefore, 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  with  the  disputed ones  has  placed  a  heavy responsibility  on  the courts to exercise  extra  care  and caution  before acting on such opinion.  Before a court  can place   reliance  on the opinion of an expert,  it  must  be shown  that he has not betrayed any bias and the reasons  on which   he  has  based  his  opinion  are   convincing   and satisfactory.   It  is for this reason that the  courts  are wary to act solely on the evidence of a handwriting  expert; that,  however,  does  not mean that  even  if  there  exist numerous  striking peculiarities and mannerisms which  stand out  to identify the writer, the court will not act  on  the expert’s  evidence.   In  the  end it  all  depends  on  the character  of the evidence of the expert and the  facts  and circumstances of each case.      In  Ram Narain v. State of U.P., [1973] 2 SCC  86  this Court was called upon to consider whether a conviction based on uncorroborated testimony of the handwriting expert  could be sustained.  This Court held:                                                        511          "It   is  no  doubt  true  that  the   opinion   of          handwriting  expert given  in evidence is  no  less          fallible  than any other expert opinion adduced  in          evidence with the result that such evidence has  to          be  received with great caution.  But this  opinion          evidence,  which  is  relevant, may  be  worthy  of          acceptance   if  there  is  internal  or   external          evidence  relating  to  the  document  in  question          supporting the view expressed by the expert."      A  similar  view was expressed in the case  of  Bhagwan Kaur  v.  Maharaj  Krishan Sharma, [1973] 4 SCC  46  in  the following words:          "The evidence of a handwriting expert, unlike  that          of  a fingerprint expert, is generally of  a  frail          character  and  its fallibilities have  been  quite          often  noticed.  The courts should,  therefore,  by

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        wary  to give too much weight to the evidence of  a          handwriting expert."      In  Murari Lal v. State of M.P., [1980] 1 SCC 704  this Court  was  once again called upon to  examine  whether  the opinion  evidence  of  a  handwriting  expert  needs  to  be substantially  corroborated before it can be acted  upon  to base   a  conviction.   Dealing  with  this   oft   repeated submission this Court pointed out:          "Expert testimony is made relevant by Section 45 of          the Evidence Act and where the Court has to form an          opinion upon a point as to identity of handwriting,          the  opinion  of a person ‘specially  skilled’  ‘in          questions   as  to  identity  of  handwriting’   is          expressly  made a relevant fact.  There is  nothing          in   the   Evidence  Act,  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                                                        512          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, relevant if they support or are          inconsistent  with  the opinions of  experts,  when          such opinions are relevant.  So, corroboration  may          not  invariably be insisted upon before  acting  on          the opinion of an handwriting expert and there need          be  no initial suspicion.  But, on the facts  of  a          particular case, a court may require  corroboration          of a varying degree.  There can be no hard and fast          rule, but nothing will justify the rejection of the          opinion  of  an expert  supported  by  unchallenged          reasons   on  the  sole  ground  that  it  is   not          corroborated.   The  approach  of  a  court   while          dealing  with the opinion of a  handwriting  expert          should be to proceed cautiously, probe the  reasons          for  the  opinion,  consider  all  other   relevant          evidence  and  decide finally to accept  or  reject          it."      After examining the case law this Court proceed to add:          "We are firmly of the opinion that there is no rule          of  law,  nor  any  rule  of  prudence  which   has          crystallised  into  a rule of  law,  that  opinion-          evidence  of  a handwriting expert  must  never  be          acted  upon,  unless  substantially   corroborated.          But,  having due regard to the imperfect nature  of          the  science of identification of handwriting,  the

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        approach, as we indicated earlier, should be one of          caution.  Reasons for the opinion must be carefully          probed  and examined.  All other relevant  evidence          must   be   considered.   In   appropriate   cases,          corroboration  may be sought.  In cases  where  the          reasons for the opinion are convincing and there is          no   reliable  evidence  throwing  a   doubt,   the          uncorroborated  testimony of an handwriting  expert          may  be accepted.   There cannot be any  inflexible          rule  on a matter which, in the ultimate  analysis,          is no more than a question of testimonial weight."                                                        513      What  emerges  from the case law referred to  above  is that handwriting expert is a competent witness whose opinion evidence  is recognised as relevant under the provisions  of the  Evidence Act and has not been equated to the  class  of evidence of an accomplice.  It would, therefore, not be fair to  approach  the opinion evidence with  suspicion  but  the correct  approach would be to weigh the reasons on which  it is  based.  The quality of his opinion would depend  on  the soundness  of the reasons on which it is founded.   But  the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail  one as  compared  to the science of  identification  of  finger- prints;  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 signature ‘N.Singh‘  does  not correspond with the questioned documents.  The learned trial judge, therefore, did not consider it wise to place reliance on  the  opinion of PW 120 particularly because he  did  not consider his opinion to be independent but found that he had betrayed  a tilt in favour of the  investigating  machinery. Since the trial court did not consider the opinion of PW 120 to  be dependable he did not deem it necessary to  look  for corroboration.   For the same reason he did not consider  it necessary to scrutinise the evidence of the expert in regard to  the  two absconding accused Sukhi and  Bittu.   No  such opinion evidence is                                                        514 relied  upon  in  respect of the other accused.  We  may  at once  state that the quality of evidence in regard to  proof of  identity  of  Sukhi and Bittu  through  their  so-called handwriting  is weaker than that of accused No.1.   We  have carefully  examined  the opinion evidence of PW 120  and  we

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agree  with the learned trial judge that the quality of  his evidence  is  not so high as to commend  acceptance  without corroboration.   Having given  our anxious consideration  to the  expert’s  evidence, through which we were taken by  the learned  counsel for the prosecution, we do not  think  that the  view  taken  by  the learned  trial  judge  is  legally unsustainable or perverse.  Even otherwise having regard  to the  facts and circumstances of the case and the  nature  of evidence tendered and the quality of evidence of PW 120  the prosecution   has  not  succeeded  in  establishing   beyond reasonable doubt the so-called conspiracy.      It  was  then submitted, relying on section 73  of  the Evidence  Act, that we should compare the disputed  material with the specimen/admitted material on record and reach  our own conclusion.  There is no  doubt that the said  provision empowers the court to see for itself whether on a comparison of  the  two  sets of writing/signature, it  can  safely  be concluded with the assistance of the expert opinion that the disputed  writings are in the handwriting of the accused  as alleged.  For this purpose we were shown the enlarged copies of  the  two sets of writings but we are afraid we  did  not consider it advisable to venture a conclusion based on  such comparison having regard to the state of evidence on  record in  regard to the specimen/admitted writings of the  accused Nos.1 and 2.  Although the section specifically empowers the court   to   compare   the  disputed   writings   with   the 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                                                        515 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 those facts which are  necessary to  be noticed for the purpose of appreciating the  evidence leading to the murder.  The fact that General Vaidya died  a homicidal  death is established beyond and manner  of  doubt by  the evidence of PW 157 Dr. L.K.Bade who  had  undertaken the  post-mortem examination and had opined that  death  was due to shock suffered following gun shot injuries.   Counsel for the defence had also admitted this fact as is  evidenced by  Exh.  155.  As this fact was not challenged  before  the trial court, as indeed it could not be, nor was it contested before  us,  we need not detain ourselves on  the  same  and would proceed to examine the evidence with a view to  fixing the responsibility for the said crime.      On  the  morning  of the day of  the  incident  General Vaidya  and  his  wife PW 106 Bhanumati  had  gone  out  for shopping in the Maruti Car DIB 1437 at about 10.00 a.m. with their  securityman PW 16 Ramchandra Kshrisagar in  the  rear

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seat.   When  they were returning at about 11.30  a.m.  with General Vaidya in the driver’s seat, his wife by his side in the  front and the securityman behind her, the  incident  in question   occurred.   The  car  had  slowed  down  at   the intersection of Rajendrasinghji and Abhimanyu roads since it had  to negotiate a sharp right turn to go to the  residence of  General  Vaidya.  Taking advantage of this fact  a  Ind- Suzuki  motor cycle came parallel to the car on the side  of the  driver i.e.  General Vaidya and the pillion rider  took out  a  pistol  or gun and fired and three  shots  in  quick succession  at  the deceased.   Immediately  thereafter  the motor  cyclists  sped  away and the victim  slumped  on  the shoulder of his wife who too was injured.  Unfortunately the reflexes  of the securityman were not fast enough and  hence the  culprits  could make good their escape without  a  shot having  been  fired  at them by the  securityman.   The  car drifted  towards  the cyclists PW 14 Digambar  Gaikwad  who, sensing  trouble,  jumped off leaving the cycle  which  came under  the front wheel of the car.  Therefore, we  have  the testimony of three persons who can be described as witnesses to the main incident, namely, PW 16 the securityman, PW 106, the  wife  of  the  deceased and PW  14,  the  cyclist.   In addition to the evidence of the aforesaid three                                                        516 witnesses,  the prosecution has also placed reliance on  the evidence of PW 111 G.B.Naik, PW 114 Vijay Anant Kulkarni and PW 115 B.V.Deokar, on the plea that these 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  he  was  busy signalling  the  rickshaw driver he had not seen  the  motor cycle  approaching the car before the first shot was  fired. As soon as the car came to a halt, he jumped out of the  car with his service revolver but as PW 106 Bhanumati Vaidya was shouting  for a conveyance he went about searching  for  one and found a matador van in which the injured General  Vaidya was  rushed  to  the hospital.  It was  after  reaching  the hospital  that  he contacted the L.I.B. Inspector  Garad  to whom he narrated the incident and reiterated the same to the Commissioner  of Police.  His detailed complaint  Exh.   179 was  then  recorded by PW 119 Inspector Mohite in  which  he described  the  colour of the motor cycle as black  and  not red.  Since he was sitting behind PW 106 Bhanumati, he could have seen the assailant when his attention was drawn in that direction on hearing the first shot fired from close  range. It is difficult to believe that he had no opportunity to see the  motor cyclists.  It must be remembered that four  shots

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were  fired,  albeit in quick succession, but  there  was  a slight pause after the first shot.  It is difficult to agree with  the suggestion that he had no opportunity to  see  the assailant and his companion.  In fact he states that he  saw them from a distance of three or four feet only.  As pointed out  earlier  accused  Nos.1  and 2  were  arrested  on  7th September, 1986 when                                                        517 they  met with an accident.  Thereafter on  22nd  September, 1986 this witness was called at about 12 noon to the Yervada Jail.  Soon thereafter a person who identified himself as  a magistrate came and gave them certain instructions regarding the  identification  parade about to be held.  He  was  then called to a room in which 10 to 12 persons had lined up  and he  was asked if the person who had fired at General  Vaidya was  amongst them.  He identified one person from the  queue as the assailant.  He identified accused No.1 as that person in Court also.  The Panchnama drawn up in regard to the test identification  parade is at Exh. 349 duly proved by  PW  51 B.S.  Karkande, Special Judicial Magistrate.  Except  for  a couple of minor contradictions there is nothing brought  out in  his cross-examination to doubt his  testimony  regarding identification  of accused No.1 as the person who fired  the shots  at General Vaidya.  The presence of this  witness  at the  time of occurrence cannot and indeed was  not  doubted. So  also it cannot be denied 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 days earlier on 8th August, 1986 at about 9.00 or 9.30  a.m.  with a red motor cycle  opposite  Gadge  Maharaj School  at the corner of bungalow No. 45. Two  persons  were standing  there one of whom was the pillion rider  whom  she saw  from  behind  after  the  shoot  out.   She,   however, expressed  her inability to indentify him from  amongst  the accused  persons  in  Court.   Under  cross-examination  she stated  that she could not say if it was a motor cycle or  a moped.   Thus  her evidence proves the incident  beyond  any manner of                                                        518 doubt  but her evidence is of little use on the question  of identity of the assailant and his companion.      PW 14 Digamber Shridhar Gaikward, the cyclist,  deposes that at the time of incident he was proceeding on his  cylce towards  the railwaystation when he heard three  sounds  and looked towards the Maruti car.  He saw a red motor cycle  by the  side of the driver of the car.  It sped away  with  two persons riding it. The pillion rider who had a bag was  seen

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putting something therein.  Since the driver of the car  was wounded on his head, he lost control of the vehicle and  the same came towards him whereupon he jumped off and the  cycle was  under the wheels of the car.  In  cross-examination  he stated  that he had not seen any other vehicle on the  road, thereby  ruling  out  the presence of  any  autorickshaw  in regard to which PW 16 has spoken.  His evidence is also  not useful from the point of identity of the assailant.      The  evidence  of three more witnesses  PW  60 Jaysingh Mahadeo  Hole, PW 61 Nazir Husain Ansari and PW  103   Ashok Jadhav may be noticed at this stage.  PW 61 and PW 103  have deposed that on the day previous to the incident two persons had approached them and had inquired about the residence  of a   recently  retired  army  General.   These  two   persons identified  accused  No.1 as the person who  had  approached them with his companion waiting near the motor cycle.  PW 60 is  the chowkidar who had seen two persons sitting on  their red motor cycle in the compound of Gadge Maharaj School and had driven them out.  He also identified  accused No.   1  along  with  PWs  16,  61  and  103  at  the   test identification  parade held on 22nd Sepember, 1986.   It  is pertinent to note that PWs 61 and 103 had identified accused No.5  through  his  photographs Articles 23  and  75.   They identified him in Court but accused No.5 stated in answer to question  No.  135  that they did so at the  behest  of  the police.      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                                                        519 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  Arunkumar  Tomar. Anupama had come to her father’s house from Secunderabad  on 4th  August,  1986 as her relations with  her  husband  were strained.  On the next day her husband who was an  Education Instructor in the Military had  also come to Pune.  While at the house of PW 111 there was a quarrel between the  couple; hot words were followed by physical assault.  In the  course of  this  quarrel she was kicked in the  abdomen  and  being pregnant  complications  developed within a couple  of  days necessitating  her removal to the clinic of PW 1 Dr.  Sudhir Kumar on 7th August, 1986.  Her husband had left earlier but PW 114 who had come to Pune had assisted his   father-in-law in  the  treatment of Anupama who was operated upon  on  the morning  of 10th August, 1986, vide Exh. 82.  The son of  PW 111   was  also  a  doctor  in  military  service   and   in consultation  with  him and PW 114, PW 111  had  decided  to lodge  a complaint against Arunkumar Tomar with  the  higher

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military  authorities.  After the complaint was  drafted  it was  decided  to  have it typed on a  stamp  paper  so  that sufficient copies could be taken out for being despatched to various authorities.  The stamp paper was purchased from  PW 36 Mrs. Gokhle The draft was got typed at N.B.Xerox  company situate at Camp, Pune, as is evident from PW 37 Hidayat Ali. This part of the prosecution case is supported by Exh.  249, an  entry from the stamp-vendor’s register,  evidencing  the purchase  of the stamp paper Exh.  249A proved  through  the stamp-vendor PW 36.  The original complaint Exh. 249A  typed on  the  stamp paper was forwarded to  the  General  Officer Commanding  whereas  ten  copies thereof  taken  out  on  an electronic  typewriter  were sent to  different  authorities under the signature of Anupama.  This is also proved through the deposition of PW 37 Hidayat Ali.      On  10th August, 1986, PW 111 and PW 114 picked  up  an autorickshaw  outside Agakhan Palace at about 11.00 a.m.  to go  to Stree Clinic of Dr. Sudhir Kumar.  He was  instructed to drive through camp area.  They                                                        520 passed through Bund Gardens, took the overbridge and  passed via the Circuit House to Abhimanyu Road.  PW 111 was sitting on the right side and his son-in-law PW 114 was to his left. A  white  Maruti  car  was noticed and then  he  saw  a  red coloured Ind-Suzuki motor cycle being driven parallel to the car  on the driver’s seat side.  They then saw  the  pillion rider pump in three bullets in the head of the driver 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 identify accused  No.1  in Court  but  that  may be on account of  the  change  in  his appearance.   It is said that the evidence of PW 111 and  PW 114  stands corroborated by the evidence of PW 36 and PW  37 and the documentary evidence Exh. 249, 249A and Exh. 82      The  rickshaw  driver PW 115 has deposed that  on  10th August,  1986  at about 11.00 a.m. while he was  waiting  in front of Agakhan Palace he was engaged by PW 111 and PW  114 who instructed him that they desired to go to the camp  area and  from  there  to  the Deccan  area.   When  his  vehicle approached the Circuit House intersection and emerged on the Abhimanyu road he saw a white Maruti car and one  Ind-Suzuki motor cycle taking a turn to the right of the  intersection. The  motor cyclists drove on the side of the  driver’s  seat and the pillion rider fired three shots at the driver of the car.   Immediately thereafter the motor cyclists sped  away. He then speaks about the manner in which the cyclist  jumped off and the car came to a halt after running over the cycle.

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He  also states that thereafter the two passengers got  down from his rickshaw and went near the car.  He                                                        521 also  parked his rickshaw at the corner of the  intersection and joined the other two passengers.  He found that the  car driver  was injured on the head and was bleeding  profusely. A matador van arrived and the injured was  lifted and placed in  the  van and carried to the hospital.  He  and  the  two passengers  then  returned  to the  rickshaw  and  proceeded towards  Deccan  side and from there to  the  Stree  Clinic. Sometime after the incident i.e. on 8th November, 1986,  the C.B.I.  officers showed him seven or eight  photographs  and asked him if he could recognise the photographs of the motor cyclists.  He recognised the photograph of the driver of the motor  cycle is but he did not notice any photograph of  the pillion  rider.  The photograph of the driver of  the  motor cycle  is  included  at  Art.  150  and  his  signature  was obtained on the reverse of it.  This photograph is stated to be  of  accused No.5 whom the witness  later  identified  in Court also.  No test identification parade could be held  as accused  No.5 Jinda could not be arrested till 30th  August, 1987.  The evidence of this witness also lends corroboration to the evidence of PWs 111 and 114.      There is also the evidence of PW 28 Noor Mohamad,  also a  rickshaw driver in whose rickshaw PW 111 and PW  114  had gone to the Jan Kalyan Blood Bank 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  evidence to  support  his  false version;  and  (v)  the identification of  the  motor  cycle driver through a photograph purport-                                                        522 ing  to  be  of accused No. 5 Jinda is also  an  attempt  to connect  the said accused with the crime in  question.   The learned Additional Solicitor General made a valiant  attempt to  question  the correctness of the grounds  on  which  the learned   trial  judge  brushed  aside  this  part  of   the prosecution case.  But for the view we are inclined to  take we  would  have  given  our  anxious  consideration  to  the submissions of the learned counsel.  The purpose of  leading this evidence was essentially to identify the driver of  the motor cycle through these witnesses.  They did so by picking up one photograph from seven or eight shown to them.   Whose photograph  is  this?  Accused No. 5 disowns  it.   No  test identification parade was held since accused No. 5 Jinda was apprehended at Delhi a year or so later on 30th August, 1987 and  was  taken  to  Pune in  January  1988.   Although  the

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prosecution   did   not  deem  it  wise  to  hold   a   test identification  parade because of the passage of  time,  the witnesses examined later did not hesitate to point a  finger at  accused  No.5    Jinda  during  the  trial.   Therefore, according  to  the prosecution the photograph  was  that  of accused No. 5 Jinda who was very much in Court.  The learned trial  judge,  therefore, had the benefit of  comparing  the photograph with accused No. 5 whose photograph it  purported to be. In the connection the learned trial judge has this to say in paragraph 342 of his judgment :          "Firstly,  in my opinion, this photograph does  not          appear  to be that of Harjinder singh  alias  Jinda          (accd. 5) at all."          *** *** *** ***          "...how  can I hold that this is the photograph  of          Jinda (accd. S), when obviously to the naked  eyes,          it  does  not  look similar to the  face  of  Jinda          (accd. 5)      Proceeding further, in paragraph 343, the learned judge add:          "........whereas in the instant case before me, the          photograph  does not appear to be of  Jinda  (accd.          5)"      It  will  thus  be seen that the  learned  judge  on  a comparison  of the photograph with the features  of  accused No.  5 who was very much before him categorically held  that the  photograph  pointed  out by the witnesses  was  not  of accused  No.  5.   We  cannot  ignore  the  photograph  from consideration  for  non-production  of  the  negative   (not traced) because that is                                                        523 merely  an  additional plank on which the  trial  court  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 cannot  over look the opinion of the learned judge  who  had the opportunity to compare the photographs with the features of  accused  No. 5 who was very much before  him.   Had  the evidence  rested there we would have found it  difficult  to ignore it but we find that accused No.5 has in his statement recorded  under  section 313 of the Code admitted  the  fact that it was he who was driving the motor cycle with  accused No.1 on the pillion seat when General Vaidya was shot  down. He  has  also admitted this fact in  his  written  statement Exh.922  submitted to court through the Jailor and  followed it up by admitting the same in answer to Question No. 249 of his statement under section 313 of the Code.  He has further

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stated that accused No. 1 and he killed General Vaidya as he had  attacked  and destroyed the Akal Takht in   the  Golden Temple  at  Amritsar.   He  then adds  that  the  Sikhs  are fighting for a separate State of Khalistan and will continue to  fight  till the goal is achieved.  Lastly, he  says  "we sikhs  are  not  afraid  of  death".   It  was,   therefore, submitted  by the learned Additional Solicitor General  that this statement is sufficient to prove his involvement in the commission   of  the  crime  and  in  any  event  it   lends corroboration  to the prosecution evidence in  this  behalf. Accused  No.1  has also made a statement  on  similar  lines admitting his involvement in the crime and the fact that  he had fired the fatal shots at General Vaidya from the pillion seat  of  the  motor  cycle.  So  far  as  accused  No.1  is concerned there is                                                        524 evidence  tendered  by  the  prosecution  of  witnesses  who identified him at the test identification parade, in  court, through  photographs and by the eye-witness the  securityman PW  16 and his statement lends corroboration  thereto.   The question  then  is  can a conviction be  based  on  such  an admission  of guilt made in the written statements  followed by the oral statement under section 313 of the Code?      The  charge  was framed on 2nd September,  1988.   Both accused Nos.1 and 5 along with others pleaded not guilty  to the  charges levelled against them and claimed to be  tried. After recording the plea, the proceedings were adjourned  to 19th  September,  1988  on which date  accused  No.1  orally informed the learned trial judge that he had killed  General Vaidya  and  he  did not desire to contest  the  case.   The accused  No.  1 has later explained in his  statement  under section  313  of  the Code that  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 make any such statement till the  conclusion  of the  evidence when he sent Exh. 922 through jail.   However, at  the conclusion of the prosecution evidence when  accused No.  5  was  examined  under section 313  of  the  Code,  he admitted  that   he was the driver of the  motor  cycle  and accused  No.1 was his pillion rider.  He also admitted  that accused  No.1  had fired the fatal shots at  General  Vaidya while  sitting on the pillion seat.  In answer to the  usual last  question  accused No. 5 said that on the date  of  the incident he                                                        525 was  driving  a black motor cycle with accused No.1  on  the pillion  seat and it was the latter who fired at and  killed

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General  Vaidya.   This  being an admission  of  guilt,  the question  is  whether  the Court can act upon  it.   He  has supported  this by his written statement Exh. 922.  It  will thus be seen that both the accused Nos.1 and 5 made  written as  well as oral admissions regarding their  involvement  in the commission of the crime.      It  is  manifest from the written  statements  of  both accused Nos. 1 and 5 and from their oral statements recorded under section 313 of the Code that they firmly believed that since   General  Vaidya  was  responsible   for   conducting operation  Blue  Star which had damaged a  sacred  religious place  like the Akal Takht of the Golden Temple at  Amritsar and  had also hurt the religious feelings and sentiments  of the  sikh community, he was guilty of a serious  crime,  the punishment  for which could only be death,  and,  therefore, they  had  merely  executed  him and in  doing  so  had  not committed any crime whatsoever.  As stated earlier it is  on this  notion that the accused continued to plead not  guilty while  at the same time admitting the fact of having  killed General  Vaidya.   It may be mentioned that  when  the  eye- witness  account was put to him, accused No.1 admitted  that he was the pillion rider who had fired four shots at General Vaidya.   His answers to the various  circumstances  pointed out  to him in his statement under section 313 of  the  Code reveal  that  he  unhesitatingly admitted  the  entire  eye- witness account and also owned responsibility for the crime. Even  in his written statement Exh.  60A he admitted  "Maine Vaidya  Sabko  Mara  Hain" meaning  "I  have  killed  Vaidya Saheb".   So  far  as  accused No. 5  is  concerned  he  too admitted  the correctness of the eye-witness account of  the incident  leading to the ultimate death of  General  Vaidya. When  he  was  asked  if he had 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.   Sub- section (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                                                        526 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 grave error in examining the said  accused under section 313 of the Code.   He  submitted that  since  the examination has to be made under  the  said provision  after  the  prosecution  has  examined  all   its witnesses and rested, it is obligatory on the learned  judge to  decide  which circumstance he considers  established  to seek the explanation of the accused.  He submitted that  the obligation  to question the accused is a serious matter  and not  a mere idle formality to be gone through by  the  trial court  without  applying  its mind as to  the  evidence  and circumstances  necessitating an explanation by the  accused.

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Therefore,  counsel  submitted, if there is no  evidence  or circumstance   appearing   in   the   prosecution   evidence implicating  the  accused with the commission of  the  crime with  which he is charged, there is nothing for the  accused to  explain and hence his examination under section  313  of the Code would be wholly unnecessary and improper.  In  such a situation the accused cannot be questioned and his answers cannot be used to supply the gaps left by witnesses in their evidence.   In  such a situation counsel  for  accused  No.5 Jinda strongly submitted that his examination under  section 313 should be totally discarded and his admissions, if  any, wholly  ignored  for otherwise it may appear as  if  he  was trapped  by  the  court.   According to  him  the  rules  of fairness demand that such examination should be left out  of consideration and the admissions made in the course of  such examination  cannot form the basis of  conviction.   Counsel for  the  accused  No.1 also  contended  that  the  evidence adduced by the  prosecution against the accused was so  thin and weak that even if it was taken as proved the court would not  have been in a position to convict him and,  therefore, it  was unnecessary to examine him under section 313 of  the Code.   Strong reliance was placed on Jit Bahadur Chetri  v. State of Arunachal Pradesh, 1977 Crl.L.J.1833 and Asokan  v. State of Kerala, 1982 Crl.L.J.173. We do not see  any  merit in these submissions      Section  313 of the Code is a statutory  provision  and embodies the fundamental principle of fairness based on  the maxim  audi  alteram  partem.   It is  trite  law  that  the attention  of  the accused must be specifically  invited  to inculpatory  pieces  of evidence or  circumstances  laid  on record with a                                                        527 view to giving him an opportunity to offer an explanation if he  chooses to do so.  The 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  adduced before pronouncing on the  evidence.   The learned trial judge is not expected before the examines  the accused under section  313 of the code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material.  To do so would be to pre-judge the evidence without hearing the prosecution under  section  314 of the Code.  Therefore, no  matter  how weak  or scanty the prosecution evidence is in regard  to  a certain incriminating material, it is the duty of the  court to examine the accused and seek his explanation thereon.  It

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is  only  after that stage is over that the  oral  arguments have  to  be heard before the judgment is rendered.   It  is only  where the court finds that no  incriminating  material has  surfaced  that the accused may not  be  examined  under section  313 of the Code. If there is material  against  the accused he must be examined.  In the instant case it is  not correct  to say that no incriminating material had  surfaced against  the accused, particularly accused No. 5, and  hence the  learned trial judge was not justified in examining  the accused under section 313 of the Code.      That brings us to the question whether such a statement recorded  under section 313 of the Code can  constitute  the sole basis for conviction.  Since no oath is administered to the accused, the statements made by the accused will not  be evidence stricto sensu.  That is why sub-section (3) says                                                        528 that  the  accused  shall  not  render  himself  liable   to punishment  if  he givens false answers.   Then  comes  sub- section (4) which reads :          "(4). The answers given by the accused may be taken          into  consideration in such inquiry or  trial,  and          put  in  evidence for or against him in  any  other          inquiry into, or trial for, any other offence which          such answers may tend to show he has committed."      Thus  the answers given by the accused in  response  to his  examination  under  section  313  can  be  taken   into consideration in such inquiry or trial.  This much is  clear on  a  plain reading of the above  sub-section.   Therefore, though  not strictly evidence, sub-section (4) permits  that it  may be taken into consideration in the said  inquiry  or trial.  See State of Maharasthra v. R.B. Chowdhari, [1967] 3 SCR  708.  This court in the case of Hate Singh v. State  of Madhya  Bharat, 1953 Crl.L.J.1933 held that an answer  given by an 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 defence. By sub-section (3), the answers  given          by the accused may "be taken into consideration" at          the enquiry of the trial. If the accused person  in          his examination under section 342 con-                                                        529          fesses  to  the commission of the  offence  charges          against  him  the  court  may,  relying  upon  that          confession, proceed to convict him, but if he  does

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        not   confess   and  in   explaining   circumstance          appearing  in the evidence against him sets up  his          own  version  and  seeks  to  explain  his  conduct          pleading  that  he has committed  no  offence,  the          statement  of  the accused can only be  taken  into          consideration in its entirety."                                          (Emphasis supplied)      Sub-section  (1)  of section 313  corresponds  to  sub- section  (1) of section 342 of the old Code except  that  it now  stands bifurcated in two parts with the  proviso  added thereto clarifying that in summons cases where the  presence of  the  accused  is dispensed with  his  examination  under clause  (b) may also be dispensed with.  Sub-section (2)  of section  313  reproduces  the old sub-section  (4)  and  the present  sub-section (3) corresponds to the old  sub-section (2)  except  for the change necessitated on account  of  the abolition  of the jury system.  The present sub-section  (4) with  which we are concerned is a verbatim  reproduction  of the   old   sub-section   (3). Therefore,   the  aforestated observations apply with equal force.      Even on first principle we see no reason why the  Court could  not  act on the admission or confession made  by  the accused  in  the  course of the trial or  in  his  statement recorded under section 313 of the Code.  Under section 12(4) of the TADA Act a Designated Court shall, for the purpose of trial  of  any offence, have all the powers of  a  Court  of Session and shall try such offence as if it were a Court  of Session  so far as may be in accordance with  the  procedure prescribed  in  the  Code for the trial before  a  Court  of Session, albeit subject to the other provisions of the  Act. The procedure for the trial of Session cases is outlined  in Chapter  XVIII  of  the Code.  According  to  the  procedure provided  in  that  Chapter  after the  case  is  opened  as required  by  section  226, if, upon  consideration  of  the record  of the case and the documents  submitted  therewith, the  Judge considers that there is no sufficient ground  for proceeding  against  the  accused, he  shall  discharge  the accused for reasons to be recorded.  If, however, the  Judge does not see reason to discharge 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                                                        530 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 plea of guilt.  Once  these  requirements are  satisfied the law permits the Judge trying the case  to record  a  conviction  based  on the  plea  of  guilt.   If, however,  the accused does not plead guilty or  the  learned Judge  does not act on his plea he must fix a date  for  the

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examination  of  the witnesses i.e. the trial of  the  case. There is nothing in this Chapter which prevents the  accused from  pleading guilty at any subsequent stage of the  trial. But before the trial Judge accepts and acts on that plea  he must administer the same caution unto himself.  This plea of guilt  may  also  be  put forward  by  the  accused  in  his statement  recorded under section 313 of the Code.   In  the present case, besides giving written confessional statements both  accused  No.1 and accused NO.5 admitted to  have  been involved in the commission of murder of General Vaidya.   We have already pointed out earlier that both the accused  have unmistakably,  unequivocally  and  without  any  reservation whatsoever admitted the fact that they were responsible  for the  murder  of  General Vaidya.  It  is  indeed  true  that accused  No. 5 as the driver of the motor cycle, perhaps  he desired  to  keep  him out, but accused No.  5  has  himself admitted  that he was driving the motor cycle  with  accused No.1 on the pillion seat and to facilitate the crime he  had brought the motor cycle in line with the Maruti car so  that accused No.1 may have an opportunity of firing at his victim from   close  quarters.  There  is,  therefore,   no   doubt whatsoever  that  both accused No.1 and accused No.  5  were acting  inconcert,  they  had a common  intention   to  kill General Vaidya and in furtherance of that intention  accused No.  1 fired the fatal shots.  We are, therefore,  satisfied that  the learned trial Judge was justified in holding  that accused No. 1 was guilty under section 302 and accused No. 5 was guilty                                                        531 under section 302/34, IPC.      As  pointed  out earlier, learned counsel  for  accused Nos.  1 and 5 contended that although a  statement  recorded under   section   313  of  the  Code  can  be   taken   into consideration  in  an  inquiry  or trial  since  it  is  not ‘evidence’  Stricto sensu and not being under oath,  it  has little   probative   value.    Reliance   was   placed    on R.B.Chowdhari’s  case in support of this  proposition.   The two decisions of the High Courts to which our attention  was drawn do not in fact militate against the view which we  are inclined to take in regard to the admission 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  private defence.  It was pointed out that  if  the prosecution  has not placed any incriminating evidence  such an admission made by the accused will be of no avail  unless the  admission  constitutes  an admission of  guilt  of  any offence.   In  that  case also the  admission  made  by  the

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accused  read as a whole did not constitute an admission  of guilt of the offence charged.  On the contrary it was in the nature of a plea of private defence.  In such circumstances, the High Court came to the conclusion that in the absence of a  unequivocal, unmistakable and unqualified plea of  guilt, the  Court  could  not have convicted  the  accused  on  the statement  made by him under section 313 of the Code.   This decision also does not, therefore, help the defence.      The  accused  were inter alia  charged  under  sections 3(2)(i) or (ii) and                                                        532 3(3)  of TADA Act read with sub-rule (4) of rule 23  of  the rules framed thereunder.  Section 3 provides the  punishment for terrorist  acts.  Section 10 lays down that when  trying any  offence  a  Designated Court may  also  try  any  other offence  with  which  the accused may, under  the  Code,  be charged  at the same trial if the offence is connected  with such other offence.  It is obvious that where an accused  is put up for trial for the commission of any offence under the Act or the Rules made thereunder he can also be tried by the same  Designated Court for the other offences with which  he may,  under the Code, be charged at the same trial  provided the  offence is connected with such other offence.   In  the instant  case,  the accused were tried under  the  aforesaid provisions  of TADA Act and the Rules made thereunder  along with  the offences under sections 120B, 645, 468, 471,  419, 302 and 307, IPC.  They were also charged for the commission of  the aforesaid offences with the aid of section 34,  IPC. As  pointed  out earlier under section 12(4)  the  procedure which  the  Designated Court must follow  is  the  procedure prescribed  in  the  Code for the trial before  a  Court  of Session.  Accordingly, the two accused persons were tried by the  Designated  Court  since  they  were  charged  for  the commission  of offences under the TADA Act.  The  Designated Court,  however,  came  to the conclusion  that  the  charge framed  under  section  3  of the TADA  Act  read  with  the relevant  rules  had not been  established  and,  therefore, acquitted  the  accused persons on that count.   It  is  not necessary for us to examine the  correctness 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                                                        533 that since the murder of General Vaidya was also on  account of his involvement in the Blue Star Operation his case stood more or less on the same footing and hence fell within  ‘the rarest  of  a rare’ category.  We think that  this  line  of reasoning   adopted   by   the  learned   Trial   Judge   is

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unassailable.   We  may  also point  out  that  the  accused persons  had  no remorse or repentance, in  fact  they  felt proud of having killed General Vaidya in execution of  their plan and hence we find no extenuating circumstance to make a departure from the ratio of Kehar Singh’s case.      Lastly, placing reliance on the decision of this  Court in  Allaudin  Mian  v. State of Bihar, [1989] 3  SCC  5  the learned  defence counsel submitted that in the present  case also  since the conviction and sentence were  pronounced  on the  same day, the capital sentence awarded to  the  accused should  not  be confirmed.  In the decision  relied  on,  to which  one of us (Ahmadi, J.) was a party and who spoke  for the Court, it was emphasised that section 235(2) of the Code being  mandatory in character, the accused must be given  an adequate  opportunity  of placing material  bearing  on  the question  of sentence before the Court.  It was pointed  out that the choice of sentence had to be made after giving  the accused  an  effective  and real opportunity  to  place  his antecedents, social and economic background, mitigating  and extenuating   circumstances  etc.,  before  the  Court   for otherwise  the Court’s decision may be vulnerable.   It  was then said in paragraph  10 at page 21 :          "We think as a general rule the trial courts should          after  recording the conviction adjourn the  matter          to a future date and call upon both the prosecution          as  well  as  the defence  to  place  the  relevant          material bearing on the question of sentence before          it  and  thereafter pronounce the  sentence  to  be          imposed on the offender." .lm      The  above  decision was rendered on 13th  April,  1989 whereas the present decision was pronounced on 21st October. 1989.   Yet  contended learned counsel for the  accused  the Court did not appreciate the spirit of section 235(2) of the Code.   The ratio of Allauddin Mian’s case was  affirmed  in Milkiat  Singh  v.  State  of Punjab, JT  (1991)  2  SC  190 (paragraph 18).      On  the  other hand the  learned  Additional  Solicitor General  invited our attention to a subsequent decision   of this Court in Jumman Khan v. State of U.P., [1990] Suppl.  3 SCR 398.  That decision turned on the facts                                                        534 of  that case.  In that 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 life and death to satisfy  the  requirement of  justice  as  enshrined in section 235(2)  of  the  Code.

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Expeditious  disposal  of  a criminal  case  is  indeed  the requirement  of  Article 21 of the Constitution; so  also  a fair  opportunity to place all relevant material before  the court  is  equally  the requirement  of  the  said  article. Therefore,  if the Court feels that the interest of  justice demands  that the matter should be adjourned to enable  both sides  to  place  the  relevant  material  touching  on  the question  of sentence before the Court, the above  extracted proviso cannot preclude the court from doing so.      But  in the instant case we find that both the  accused decided  to plead guilty.  Accused No.1 had done so  at  the earlier stage of the trial when he filed the statement  Exh. 60A.  Accused no. 5 had also made up his mind when he  filed the  statement  Exh. 922 even before his  examination  under section  313 of the Code.  Accused No. 1 had reiterated  his determination  when he filed the statement Exh.  919.   Thus both   the  accused  had  mentally  decided  to  own   their involvement  in  the murder of General Vaidya  before  their statements were recorded under section 313 of the Code.  Not only  that their attitude reveals that they had resolved  to kill  him  as  they  considered him an  enemy  of  the  sikh community since he had desecrated                                                        535 the  Akal Takht.  They also told the trial court  that  they were  proud  of their act and were not afraid of  death  and were  prepared to sacrifice their lives for the  article  of their  faith,  namely, the realisation of their dream  of  a separate  State  of  Khalistan.  It is  thus  apparent  that before   they   made  their   statements   admitting   their involvement  they had mentally prepared themselves  for  the extreme penalty and, therefore, if they desired to place any material for a lesser sentence they had ample opportunity to do  so.   But  after the decision of  this  Court  in  Kehar Singh’s case and having regard to the well planned manner in which  they executed their resolve to kill  General  Vaidya, they were aware that there was every likelihood of the Court imposing the extreme penalty and they would have, if they so desired,  placed  material in their written   statements  or would   have  requested  the  Court  for  time  when   their statements  under section 313 of the Code were recorded,  if they  desired to pray for a lesser sentence.  Their  resolve not  to  do so is reflected in the fact that they  have  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 Solicitor General, the  learned  counsel

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for  the  State  of Maharashtra and  the  learned  Advocates appointed as amicus curiae to represent the accused persons. But  for  their excellent marshalling and  analysis  of  the evidence  which runs into several volumes we may have  found it  difficult  to  compress  the  same  and  reach   correct conclusions.  A word of special praise is due to the                                                        536 learned advocates Shri H.V.Nimbalkar and Shri I.S.Goyal both of  whom,sacrificed their practice at Pune and  attended  to this  case  from  time  to  time  devoting  their   valuable professional  hours at considerable personal  inconvenience. Their devotion and dedication is also evident from the  fact that  apart from making twenty trips to Delhi they  spent  a seizable  amount  of Rs. 29,000 from their  own  pockets  as against which they have received a sum of Rs. 5,000 only  on 29th  October,  1991.  At one point of time  they  had  also difficulty  in procuring accommodation in Maharashtra  Sadan till  we  passed orders in that behalf.  such  devotion  and dedication  enhances  the image and prestige  of  the  legal profession.   Apart  from  the time actually  spent  on  the aforesaid  twenty occasions in this Court one has to  merely imagine  the  number  of hours they must  have  devoted  for preparing  the defence.  We direct the State of  Maharashtra to pay the outstanding amount of Rs. 24,000 which they  have spent  for travel and lodging and boarding expenses  and  we also direct that they together be paid a further sum of  Rs. 25,000 by way of professional fees for rendering service  as amicus curiae.  The said amount will be paid to them  within one month from today. V.P.R.                             Death Reference disposed                                        of/Appeal dismissed.                                                        537