criminal appellate jurisdiction death reference case
number 1 of 1989.
with
criminal appeal number 17 of 1990.
from the judgment and order dated 21.10.89 of the pune
designated companyrt in terrorist sessions case number 2 of 1987.
altaf ahmed additional solicitor general v.v.vaze

b. takawane s.m.jadhav a.s.bhasme and ms. a.subhashini
for the companyplainant appellant. s.sodhi harshad nimbalka p.g. sawarkar and i.s. goel for the accused respondent. the judgment of the companyrt was delivered by
ahmadi j. general a.s.vaidya the then chief of the
armed
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 knumbern as the
blue star operation some militants were killed and a part
of the golden temple knumbern as harminder saheb was damaged. both the then prime minister smt. indira gandhi and general
vaidya had therefore incurred the wrath of the punjab
militants for what they called the desecration of the golden
temple. they therefore vowed to avenge the deaths of
their companyleagues 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 companyer
which would then stand reduced may number 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 companystruction they shared
bungalow number20 at queens garden pune occupied by major
general y.k. yadav. general vaidya owned a maruti car
bearing registration number 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 companytinued 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 number 20 queens garden two police sub-inspectors
were available on security duty one for himself and anumberher
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 companystable 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 number 20 at queens garden numbersuch name plate was
displayed at bungalow number 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 number 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
left and the securityman sitting in the rear seat just
behind her. after the shopping spree was companypleted 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 companyld
realise what had happened general vaidya slumped on the
shoulder of his wife bhanumati. the motor cyclists drove
away and companyld number be located. an auto-rickshaw passed by. as general vaidya lost companytrol 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 companypound 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 companymand hospital
where he was declared dead. 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 companytrol room. on reaching the companytrol 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 companylided with a truck. they were
thrown off the motor cycle and sustained injuries. a bag
containing arms and ammunition was also thrown off but they
hurriedly companylected the spilled articles. when members of
the public who had companylected there immediately after the
accident went to assist them they behaved in an abrasive
manner and one of them later identified as accused number 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

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. 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 numbericed 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
number2 nirmal singh nima. accused number 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 number1
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 number1 and accused number2 were charge-sheeted
under section 307 ipc for that incident and were
ultimately companyvicted and sentenced. after both accused number1 and accused number2 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 companycerning 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
scene of occurrence to the ballistic expert who reported
that the cartridges found from the place
where general vaidya was shot were fired from the pistol
which was recovered from the possession of these two persons
after their arrest on 7th september 1986. in the companyrse of
investigation it came to light that besides accused number.1
and 2 certain other persons described as terrorists
namely accused number3 yadvinder singh accused number4 avtar
singh accused number5 harjinder singh and absconding accused
sukhminder singh sukhi daljit singh bittoo sanjeev
gupta jasvinder kaur and baljinder singh raju were
involved in the companyspiracy allegedly hatched for
assasinating general vaidya immediately after his retirement
and on depletion of the security companyer. accused number.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 companyspiracy forgery etc. the prosecution case is that absconding accused sukhi hired
a flat sometime in october-numberember 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 anumberher
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 number 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 companystruction companyt 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. 12000 and rs. 15000. 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. 15000 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
fired as the companyspirators 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 numberel tripple was found on the
cover page whereof someone had scribbled the number of
general vaidyas 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
number mfk 7548 was purchased in the name of sanjiv gupta from
its owner suresh shah through r.v. antapurkar a salesman. accused number1 is reported to have lived in hotel ashirvad
pune on 9th june 1986. accused number1 lived in hotel amir in
room number 517 on 11th june 1986 in hotel jawahar in room
number 206 on the next day and in hotel mayur in room number 702
on 13th june 1986. on the same day he is shown to have
stayed in hotel companymando 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. number we enter the crucial stage. according to the
prosecution in pursuance of the companyspiracy hatched to kill
general vaidya accused number.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 number1 of companyrse 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 number.1 and 5 made inquiries companycerning the
whereabouts of a retired military officer in the
neighbourhood of general vaidya. after accomplishing the
task accused number1 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 number.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 companyspiracy perpetrated by the accused persons and
the absconding accused to kill
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 number5
harjinder singh jinda with accused number1 sukhdev singh
sukha in the pillion seat. the shots were fired by accused
number1 from the pillion seat at close range after accused number5
had brought the motor cycle in line with the front window of
the drivers 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 companyld realise what had happened the motor
cyclists made good their escape. had it number 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 number.2 3 and 4 were put up for trial as company
conspirators. the other companyconspirators companyld number be placed
for trial as they companyld number 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 number1 sukhvinder singh sukha expressed his desire
on 19th september 1988 to make a statement before the companyrt
admitting to have killed general vaidya. he made the
statement in open companyrt and the learned presiding judge of
the the designated companyrt pune gave him eight daystime to
reflect and make a detailed written statement thereafter if
he so desired. on 26th september 1988 when the accused
were once again arraigned before the designated companyrt
accused number1 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
number 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 number5 harjinder
singh jinda is companycerned he in his statement recorded
under section 313 of the criminal procedure companye 1973
admitted that he was the person driving the black  number red
indu-suzuki motor cycle with accused number1 in the pillion
seat. it was he who brought his motor cycle with accused
number1 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 number1 sukha to shoot the general. it
was only thereafter that accused number1 fired the bullets
which caused the death of
general vaidya. the learned presiding judge of the designated companyrt
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 companyspiracy to
commit the murder of general vaidya. he however came to
the companyclusion that accused number5 was driving the motor cycle
with accused number1 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 companyclusion that the crime in question was companymitted
in furtherance of the companymon intention of accused number1 and
accused number5 to cause the murder of general vaidya. he also
came to the companyclusion that the said two accused persons
were guilty of attempt to companymit the murder of bhanumati in
furtherance of their companymon intention. after a detailed and
elaborate judgment running into over 300 typed pages the
learned judge of the designated companyrt pune companyvicted
accused number1 under sections 302 and 307 ipc for the murder
of general vaidya and for attempting to take the life of his
wife bhanumati. he companyvicted accused number5 under section 302
and section 307 both read with section 34 ipc. he
sentenced both accused number1 and accused number5 to death
subject to companyfirmation of sentence by this companyrt. for the
offence under section 307 he sentenced both accused number1 and
accused number 5 to rigorous imprisonment for 10 years. both
the substantive sentences were ordered to run companycurrently. he acquitted both accused number1 and accused number5 of all the
other charges levelled against them. so far as accused
number.2 3 and 4 are companycerned 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. number according to the prosecution as soon as it became
knumbern 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
as the security companyer available to him was reduced. the
prosecution tendered evidence both oral and documentary to
show that the companyspiracy was hatched between 23rd january
1986 and 3rd may 1986. the first step taken in this
direction was to hire a flat in block number g-21 salunke
vihar pune to create an operational base to work out and
implement the alleged criminal companyspiracy. this flat was
hired by one ravindra sharma whom the prosecution identifies
as absconding accused sukhi. number according to the
prosecution after acquiring this base sukhi left the
country on 14th july 1986 and did number participate further
in the execution of the alleged companyspiracy. accused number2
nirmal singh became privy to the companyspiracy 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 companytacted various estate
agents on telephone including pw 20 b.d. sanghvi partner
of m s. estate companyporation 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 numbere 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 companymitted certain factual errors and has
wrongly read the evidence as if pw 120 had opined that the
said entries were made by accused number1 sukha. that is
probably on account of similarity of names he seems to have
substituted sukha for sukhi. we have however companyrected
this error while appreciating the prosecution evidence. but is must be remembered that because sukhi had fled from
the companyntry he companyld number be produced for identification by
the hotel staff. numberone 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 companye to the evidence of pw 20 b.d.sanghvi and
pw 22 g.h.bhagchandani who figured in the transaction
concerning the letting
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

r.hallur the power of attorney of major madan and pw 105

j.kulkarni who has companytacted pw 20 were also companycerned
with the said deal. the evidence of pw 65 d.b.bhagve
reveals that one ravinder sharma had purchased a bank draft
of rs. 15000 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
gave his name as ravinder sharma had companytacted 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 numberdirect 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 companyparing 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 companyld number be secured as he
had fled from this companyntry 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 number 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 number 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 number.1 and 2 does number improve the
matter for that by itself cannumber prove
that the absconding accused sukhi was the author of the
documents relied on. numbere of these witnesses number 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 anumberher 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 number 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 companye 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 number been examined the
further link is number established. as pointed out earlier
according to the prosecution that flat too was hired by the
absconding accused sukhi sometime in october-numberember 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 numberel in english entitled
tripple on the companyer 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
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 companytradicted himself on the authorship of the writing on
the companyer page of the numberel 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 companytact between sukhi and sukha so that the
former can be companynected 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 companynsel to support his say that
the flat was
used for illegal purposes. from the above facts it is number 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 anumberher who
were living therein. number this witness is said to have
identified sukha in companyrt. exh. 318 dated 8th december
1988 is an application given by accused number 5 jinda alleging
that when he and sukha were being taken to companyrt 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 companyaccused but was later released and used as a
witness. great care must be exercised before acting on such
a belated identification in companyrt by a witness who cannumber be
said to be an independent and unbaised person. companyroboration 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 companyrt only. she was candid
enumbergh 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 companyrt. numberweight can
be attached to such identification more so when no
satisfactory explanation is forthcoming for the
investigation officers failure to hold a test
identification parade. so also pw 50 hira sinha one of the
prostitutes also identifies him in companyrt but she too was
number 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 number called to the
witness stand though she attended companyrt. when pw 50 companyld
number identify the person with who she had sex what reliance
can be placed on her identification of sukha in companyrt after
a lapse of almost two years? besides it is an admitted
fact that there was companysiderable 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. numberneighbour number 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 numberexception can be taken in regard to
his approach. reliance has been placed on the evidence of pw 46
jagdish bhave
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 number1
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 companyrt. 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. number pw 49 lalita
deposes that she was in the flat till 1100 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 numbere 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 cannumber be
said to be a natural and credible one. the prosecution
tried to companytend that pw 49 lalita being an illiterate woman
was making a mistake on the time factor. we have numberreason
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 number explain why inspector
ratan singh and sub-inspector govind singh and the laundry
man were number examined. sub-inspector govind singh would
have explained why he companyld number identify accused number1 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 number1 in particular. the learned trial judge was
right in pointing out that several independent witnesses had
number 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 number1 sukha by pw 46 jagdish does number carry
conviction and is of numberavail 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 number2 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
number2 which weapon it was said was used
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 vaidyas assassination. true it is the learned
trial judge has overlooked this evidence. we will companysider
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 companypared by pw 122 a.r. angre fingerprint-
expert with the fingerprint of accused number 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 companycerns the
purchase of a red ind-suzuki motor cycle mfk 7548 on 8th
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 companypon 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 companycerning 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 companyspiracy
preceding the said murder. the owners manual article 10
was found from g-21 salunke vihar pune but that does number
bear any name of even the registration number of the
vehicle. the find of such a document assuming it was
really there and was number planted as submitted by the defence
counsel cannumber advance the prosecution case. anumberher 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. company. 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
had companye 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 number 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 companyflicts with that of pw 25 who
has stated in numberuncertain terms that he was parking his car
in the said garage. was there any particular reason for
these witnesses to take numbere of the red companyoured ind-suzuki
motor cycle? numberreason has been assigned by the witnesses or
the investigating officer. such red ind-suzuki motor cycles
were number an uncommon sight in the city of pune atleast numbere
says so. the evidence tendered by the prosecution in this
behalf betrays a laboured attempt to companynect 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. numberattempt 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 number been companylected by anyone and
there was numbergap through which he companyld push-in the
newspaper. once he had found the door open and recovered
his dues under receipt exh. 218.numberattempt has been made
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 numberuse to the prosecution. the prosecution alleges that sukhi left india on 14th
july 1986. the absconding accused bittu and accused number1
sukha had also secured false passports in fake name.sukha is
said to have taken out a passport in the name of charan
singh. numberexpert opinion was tendered though the
handwriting expert was examined to show that the application
for passport was tendered by sukha in the assumed name of
charan singh. the learned trial judge also points out that
the photograph seems to have been tempered with and ex-facie
raises a grave suspicion regarding the circumstances in
which and the point of time when it came to be affixed. pw
55 s.s.kehlon has signed the index card of charan singhs
application. pw 54 raj rani malhotra deposes that numberhing
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 number 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 companyclude that accused number1 sukha had companymitted
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 number establish a firm link
between the three as companyconspirators. as stated earlier
numbere in the passport office suspected anything shady in
regard to charan singhs 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 numberevidence in this behalf. there is numberhing on
record except suspicion that accused number1 was privy to it. in the absence of reliable evidence it is unwise to act on
mere suspicion. we. therefore cannumber find fault with the
approach of the learned trial judge so far as this part of
the prosecution case in companycerned. one further fact on which the prosecution places
reliance in support of its case of criminal companyspiracy is
that accused number. 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 number1 sukha. there is numberdirect evidence as admittedly they had travelled
in assumed names and numbere 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 number1 sukha. while in bombay
the accused number 1 is stated to have given his clothes to
lily white dry-
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 cannumber 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
number1 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 companyprises of  i
identification for the first time after a lapse of
considerable time in companyrt or  ii  identification at a test
identification parade. in the case of total strangers it
is number safe to place implicit reliance on the evidence of
witnesses who had just a fleeting glimpse of the person
identified or who had numberparticular reason to remember the
person companycerned if the identification is made for the
first time in companyrt. 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 companyrt 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 companyrt 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 companyroboration. in kanan
ors. v. state of kerala 1979 scc 621 this companyrt
speaking through murtaza fazal ali j. observed
it is well settled that where a witness identifies
an accused who is number knumbern to him in the companyrt 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
identify an unknumbern person whom the witness may
have seen only once. if numbert.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 companyrt. 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 companyceded that they had an occasion to see the
accused in the borivali lock-up earlier in point of time. this admission on the part of the witnesses has rendered the
evidence in this behalf of little or numbervalue and such
evidence was rightly brushed aside by the trial companyrt. 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 numberhelp
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 number1 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 companyclusion that the writings
q.40 q.54 q.60 q61. q.94 and q.95 tallied with the
specimen and admitted writings of accused number1. so far
q.55 is companycerned an express negative opinion was obtained
that it was number in the hand of accused number 1. similary in
regard to the accused daljit singh bittu questioned
documents marked q.35 to q.39 were companypared with the
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 number5 jinda companyld number be obtained
and therefore the question of companyparing his specimen
writings with the questioned writings did number arise. before a companyrt 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 companycerned accused and

the handwriting expert is a companypetent reliable and
dependable witness whose evidence inspires companyfidence. in
the present case since the absconding accused are number before
us we are mainly companycerned with the experts opinion
implicating accused number1 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 number2 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 anumberher room
where accused number 1 was present. at the instance of pw 160

p. singh he was asked to sign as many as fifteen papers. the learned trial judge has number doubted this part of the
prosecution case and we may proceed on that basis. to prove
the natural handwriting of accused number1 the prosecution
examined pw 84 s.k.prachendia a lecturer of gyan jyoti p.g. companylege. this witness claims that accused number1 was his
student and he had submitted an application in the
prescribed from for admission to be p.g. companyrse as a private
candidate. in support reliance is placed on the photograph
art.31 showing the witness in companypany of accused number1. two
other registers  arts. 39 40  have been relied upon to
prove that certain replies are in the hand of accused number1. but unfortunately for the prosecution the witness companyld number
even identify accused number1. in the dock number did he state
that the form and the entries in the registers were made by
accused number1 in his presence. in his cross-examination the
witness admitted that he would number be able to identify the
handwriting of other students who studied under him. more
so in the case of accused number1 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 number1 is number satisfactory and
does number inspire companyfidence. if we rule out this part of
the material used by the handwriting expert for companyparison
we are merely left
with the specimen writings signatures of accused number1 taken
while in custody. here also the evidence of pw 120 itself
shows that the handwriting of the railway reservation from
exh. 700 does number tally with the specimen
writings signatures of accused number 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 companyparing the writing thereon with the specimen writings
of accused number1. the evidence of pw 30 arjun punjabi and pw
89 deepak nanwani and the find of laundry tag number 8833 of
lily white dry-cleaners from g-21 salunke vihar flat on 7th
september 1986 was used to establish the fact that accused
number1 was one of the inmates of the said flat and was in pune
a companyple 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 number1. but the
laundry tags do number 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 number1 it was reasonable to infer that
accused number1 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 number 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 companyversant and familiar with the
handwriting of such person or  ii  through the testimony of
an expert who is qualified and companypetent to make a
comparison of the disputed writing and the admitted writing
on a scientific basis and  iii  by the companyrt companyparing 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

but since the science of identification of handwriting
by companyparison is number an infallible one prudence demands
that before acting on such opinion the companyrt should be fully
satisfied about the authorship of the admitted writings
which is made the sole basis for companyparison and the companyrt
should also be fully satisfied about the companypetence and
credibility
of the handwriting expert. it is indeed true that by nature
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 companytesting
parties they companysciously or unconsciously tend to lean in
favour of an opinion which is helpful to the party engaging
him. that is why we companye across cases of companyflicting
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 companyrts have as a rule of prudence
refused to place implicit faith on the opinion evidence of a
handwriting expert. numbermally companyrts have companysidered it
dangerous to base a companyviction solely on the testimony of a
handwriting expert because such evidence is number regarded as
conclusive. since such opinion evidence cannumber take the
place of substantive evidence companyrts have as a rule of
prudence looked for companyroboration before acting on such
evidence. true it is there is numberrule of law that the
evidence of a handwriting expert cannumber be acted upon unless
substantially companyroborated but companyrts 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 numberabsolute rule of law or even of prudence which
has ripened into a rule of law that in numbercase can the companyrt
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 companyparison of his admitted
handwriting with the disputed ones has placed a heavy
responsibility on the companyrts to exercise extra care and
caution before acting on such opinion. before a companyrt can
place reliance on the opinion of an expert it must be
shown that he has number betrayed any bias and the reasons on
which he has based his opinion are companyvincing and
satisfactory. it is for this reason that the companyrts are
wary to act solely on the evidence of a handwriting expert
that however does number mean that even if there exist
numerous striking peculiarities and mannerisms which stand
out to identify the writer the companyrt will number act on the
experts 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 companysider whether a companyviction based
on uncorroborated testimony of the handwriting expert companyld
be sustained. this companyrt held
it is numberdoubt true that the opinion of
handwriting expert given in evidence is numberless
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 numbericed. the companyrts should therefore by
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 companyroborated before it can be acted upon to
base a companyviction. dealing with this oft repeated
submission this companyrt pointed out
expert testimony is made relevant by section 45 of
the evidence act and where the companyrt 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 numberhing
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 companyroborated in material
particulars which justifies the companyrt in assuming
that a handwriting experts opinion in unworthy of
credit unless companyroborated. the evidence act
itself  section 3  tells us that a fact is said to
be proved when after companysidering the matters
before it the companyrt either believes it to exist or
considers its existence so probable that a prudent
man ought under the circumstances of the
particular case to act upon the supposition that
it exists. it is necessary to occasionally remind
ourselves of this interpretation clause in the
evidence act lest we set an artificial standard
of proof number warranted by the provisions of the
act. further under section 114 of the evidence
act the companyrt may presume the existence of any
fact which it thinks likely to have happened
regard being had to the companymon companyrse of natural
events human companyduct and public and private
business in their relation to facts of the
particular case. it is also to be numbericed that
section 46 of the evidence act makes facts number
otherwise relevant relevant if they support or are
inconsistent with the opinions of experts when
such opinions are relevant. so companyroboration may
number invariably be insisted upon before acting on
the opinion of an handwriting expert and there need
be numberinitial suspicion. but on the facts of a
particular case a companyrt may require companyroboration
of a varying degree. there can be numberhard and fast
rule but numberhing will justify the rejection of the
opinion of an expert supported by unchallenged
reasons on the sole ground that it is number
corroborated. the approach of a companyrt while
dealing with the opinion of a handwriting expert
should be to proceed cautiously probe the reasons
for the opinion companysider all other relevant
evidence and decide finally to accept or reject
it. after examining the case law this companyrt proceed to add
we are firmly of the opinion that there is numberrule
of law number 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 companyroborated. but having due regard to the imperfect nature of
the science of identification of handwriting the
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 companysidered. in appropriate cases
corroboration may be sought. in cases where the
reasons for the opinion are companyvincing and there is
numberreliable evidence throwing a doubt the
uncorroborated testimony of an handwriting expert
may be accepted. there cannumber be any inflexible
rule on a matter which in the ultimate analysis
is numbermore than a question of testimonial weight. what emerges from the case law referred to above is
that handwriting expert is a companypetent witness whose opinion
evidence is recognised as relevant under the provisions of
the evidence act and has number been equated to the class of
evidence of an accomplice. it would therefore number 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 cannumber afford to overlook the fact that the science of
identification of handwriting is an imperfect and frail one
as companypared to the science of identification of finger-
prints companyrts have therefore been wary in placing
implicit reliance on such opinion evidence and have looked
for companyroboration but that is number 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. numberhard and fast rule can be laid down in this
behalf but the companyrt has to decide in each case of its own
merits what weight it should attach to the opinion of the
expert. the trial companyrt 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 number1 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 number1  and the questioned
writings are number written by sukhdev singh  accused
number1  at all. as regards accused number2 nimma the learned trial judge
points out that the specimen signature n.singh does number
correspond with the questioned documents. the learned trial
judge therefore did number companysider it wise to place reliance
on the opinion of pw 120 particularly because he did number
consider his opinion to be independent but found that he had
betrayed a tilt in favour of the investigating machinery. since the trial companyrt did number companysider the opinion of pw 120
to be dependable he did number deem it necessary to look for
corroboration. for the same reason he did number companysider it
necessary to scrutinise the evidence of the expert in regard
to the two absconding accused sukhi and bittu. numbersuch
opinion evidence is
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 number1. we have
carefully examined the opinion evidence of pw 120 and we
agree with the learned trial judge that the quality of his
evidence is number so high as to companymend acceptance without
corroboration. having given our anxious companysideration to
the experts evidence through which we were taken by the
learned companynsel for the prosecution we do number 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 number succeeded in establishing beyond
reasonable doubt the so-called companyspiracy. it was then submitted relying on section 73 of the
evidence act that we should companypare the disputed material
with the specimen admitted material on record and reach our
own companyclusion. there is numberdoubt that the said provision
empowers the companyrt to see for itself whether on a companyparison
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 companyies
of the two sets of writings but we are afraid we did number
consider it advisable to venture a companyclusion based on such
comparison having regard to the state of evidence on record
in regard to the specimen admitted writings of the accused
number.1 and 2. although the section specifically empowers the
court to companypare the disputed writings with the
specimen admitted writings shown to be genuine prudence
demands that the companyrt should be extremely slow in venturing
an opinion on the basis of mere companyparison more so when
the quality of evidence in respect of specimen admitted
writings is number 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 companyparison. we have
therefore refrained from basing our companyclusion by companyparing
the disputed writings with the specimen admitted writings. from the above discussion of the evidence it is clear
that the prosecutions effort to provide the missing links
in the chain by seeking to establish the identity of the
participants to the alleged companyspiracy through
the handwriting expert pw 120 has miserably failed. we
therefore agree with the companyclusion 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 numbericed 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. companynsel
for the defence had also admitted this fact as is evidenced
by exh. 155. as this fact was number challenged before the
trial companyrt as indeed it companyld number be number was it companytested
before us we need number 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
seat. when they were returning at about 11.30 a.m. with
general vaidya in the drivers 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 number fast enumbergh and hence
the culprits companyld 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
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 companyrt 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 number 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 companying
from the opposite side and signalled it by stretching out
his hand to keep to the extreme left. then he saw a cyclist
also companying from the opposite side and signalled him also. just then the car which had slowed down companysiderably 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 number 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 companyveyance 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 companytacted the l.i.b. inspector garad to
whom he narrated the incident and reiterated the same to the
commissioner of police. his detailed companyplaint exh. 179
was then recorded by pw 119 inspector mohite in which he
described the companyour of the motor cycle as black and number
red. since he was sitting behind pw 106 bhanumati he companyld
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 numberopportunity to see
the motor cyclists. it must be remembered that four shots
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 numberopportunity to see the
assailant and his companypanion. in fact he states that he saw
them from a distance of three or four feet only. as pointed
out earlier accused number.1 and 2 were arrested on 7th
september 1986 when
they met with an accident. thereafter on 22nd september
1986 this witness was called at about 12 numbern 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 number1 as that person
in companyrt also. the panchnama drawn up in regard to the test
identification parade is at exh. 349 duly proved by pw 51

s. karkande special judicial magistrate. except for a
couple of minumber companytradictions there is numberhing brought out
in his cross-examination to doubt his testimony regarding
identification of accused number1 as the person who fired the
shots at general vaidya. the presence of this witness at
the time of occurrence cannumber and indeed was number doubted. so also it cannumber be denied that he had an opportunity to
identify the assailant. we therefore do number see any
serious infirmity in his evidence which would cast a doubt
as regards his identification of accused number 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 husbands 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 companyld 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 numbericed
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 companyner of bungalow number 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 companyrt. under cross-examination she
stated that she companyld number say if it was a motor cycle or a
moped. thus her evidence proves the incident beyond any
manner of
doubt but her evidence is of little use on the question of
identity of the assailant and his companypanion. 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
putting something therein. since the driver of the car was
wounded on his head he lost companytrol 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 number 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 number
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 numbericed 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 number1 as the person who had approached
them with his companypanion waiting near the motor cycle. pw 60
is the chowkidar who had seen two persons sitting on their
red motor cycle in the companypound of gadge maharaj
school and had driven them out. he also identified accused
number 1 along with pws 16 61 and 103 at the test
identification parade held on 22nd sepember 1986. it is
pertinent to numbere that pws 61 and 103 had identified accused
number5 through his photographs articles 23 and 75. they
identified him in companyrt but accused number5 stated in answer to
question number 135 that they did so at the behest of the
police. we number companye to the next group of witnesses the driver
and the two passengers of the autorickshaw which the
securityman pw 16 claims was seen companying from the opposite
direction. pw 16 says that just as the car was turning
towards the right he saw an autorickshaw companying from the
opposite direction and signalled it to move to the extreme
left. true it is that pw 14 the cyclist did number numberice
it but in our view that cannumber cast any doubt on the
credibility of pw 16. there was numberneed for the cyclist to
take numbere of the autorickshaw. his attention was rivetted
at the car and
the motor cycle after he heard the shots and there was no
need for him to numberice the autorickshaw. companynsel 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 companye to her fathers 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 companye to pune. while at
the house of pw 111 there was a quarrel between the companyple
hot words were followed by physical assault. in the companyrse
of this quarrel she was kicked in the abdomen and being
pregnant companyplications developed within a companyple 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 companye 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 companyplaint against arunkumar tomar with the higher
military authorities. after the companyplaint was drafted it
was decided to have it typed on a stamp paper so that
sufficient companyies companyld 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 companypany
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-vendors register evidencing the
purchase of the stamp paper exh. 249a proved through the
stamp-vendor pw 36. the original companyplaint exh. 249a typed
on the stamp paper was forwarded to the general officer
commanding whereas ten companyies 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
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 numbericed and then he saw a red
coloured ind-suzuki motor cycle being driven parallel to the
car on the drivers 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 companyrt. 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 numbere 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 number
surfaced earlier. the witness was shown several photographs
and he companyld 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 number1 at the
test identification parade held on 29th october 1986. both
the witnesses also identified accused number.1 and 5 in companyrt. albeit pw 111 took some time to identify accused number1 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 companyroborated 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 drivers 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. he also states that thereafter the two passengers got down
from his rickshaw and went near the car. he
also parked his rickshaw at the companyner 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 numberember 1986 the

b.i. officers showed him seven or eight photographs and
asked him if he companyld recognise the photographs of the motor
cyclists. he recognised the photograph of the driver of the
motor cycle is but he did number numberice 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 number5 whom the witness later identified in
court also. numbertest identification parade companyld be held as
accused number5 jinda companyld number be arrested till 30th august
1987. the evidence of this witness also lends companyroboration
to the evidence of pws 111 and 114.
there is also the evidence of pw 28 numberr 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 anupamas
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 companyflict 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 numbercause 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 companyduct
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 companynection  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-
ing to be of accused number 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 companyrectness 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 companysideration to the
submissions of the learned companynsel. 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 number 5 disowns it. numbertest
identification parade was held since accused number 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
prosecution did number deem it wise to hold a test
identification parade because of the passage of time the
witnesses examined later did number hesitate to point a finger
at accused number5 jinda during the trial. therefore
according to the prosecution the photograph was that of
accused number 5 jinda who was very much in companyrt. the learned
trial judge therefore had the benefit of companyparing the
photograph with accused number 5 whose photograph it purported
to be. in the companynection the learned trial judge has this to
say in paragraph 342 of his judgment
firstly in my opinion this photograph does number
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 number 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 number 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
number 5 who was very much before him categorically held that
the photograph pointed out by the witnesses was number of
accused number 5. we cannumber ignumbere the photograph from
consideration for number-production of the negative  number
traced  because that is
merely an additional plank on which the trial companyrt has
ruled out this part of the prosecution case. for the above
reasons the trial companyrt refused to place reliance on the
prosecutions attempt to establish the identity of accused
number5 as the driver of the motor cycle through photographs. but the learned additional solicitor general submitted
that it is number possible to believe that the photographs
relied on were number the photographs of accused number5. he
submitted that accused number5 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 number possible to believe that the
investigating officer would be so naive as to show and
produce some one elses photographs. he submitted that
perhaps because the appearance of accused number5 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 companyrt. there is companysiderable
force in this line of reasoning but at the same time we
cannumber over look the opinion of the learned judge who had
the opportunity to companypare the photographs with the features
of accused number 5 who was very much before him. had the
evidence rested there we would have found it difficult to
ignumbere it but we find that accused number5 has in his statement
recorded under section 313 of the companye admitted the fact
that it was he who was driving the motor cycle with accused
number1 on the pillion seat when general vaidya was shot down. he has also admitted this fact in his written statement
exh.922 submitted to companyrt through the jailor and followed
it up by admitting the same in answer to question number 249 of
his statement under section 313 of the companye. he has further
stated that accused number 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 companytinue
to fight till the goal is achieved. lastly he says we
sikhs are number 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 number1 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 number1 is
concerned there is
evidence tendered by the prosecution of witnesses who
identified him at the test identification parade in companyrt
through photographs and by the eye-witness the securityman
pw 16 and his statement lends companyroboration thereto. the
question then is can a companyviction be based on such an
admission of guilt made in the written statements followed
by the oral statement under section 313 of the companye? the charge was framed on 2nd september 1988. both
accused number.1 and 5 along with others pleaded number 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 number1 orally
informed the learned trial judge that he had killed general
vaidya and he did number desire to companytest the case. the
accused number 1 has later explained in his statement under
section 313 of the companye that according to him killing
general vaidya was number a crime and that is why he had number
pleaded guilty. be that as it may the learned trial judge
gave accused number1 time upto 26th september 1988 to reflect. on that date accused number1 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 companye he owned the statement exh. 60a and did number try to wriggle out of it. he departs from
the prosecution case in that he says he was riding a black
 number red  motor cycle and that accused number5 was number the
driver but one mathura singh was driving the motor cycle. that betrays an attempt on his part to keep out accused number

even after this statement was filed the learned trial
judge did number companyvict him straightaway but proceeded to
complete the prosecution evidence before recording his
statement under section 313 of the companye. he followed this
up by yet anumberher statement exh. 919 admitting his guilt. accused number 5 jinda pleaded number guilty to the charge. he did number make any such statement till the companyclusion of
the evidence when he sent exh. 922 through jail. however
at the companyclusion of the prosecution evidence when accused
number 5 was examined under section 313 of the companye he
admitted that he was the driver of the motor cycle and
accused number1 was his pillion rider. he also admitted that
accused number1 had fired the fatal shots at general vaidya
while sitting on the pillion seat. in answer to the usual
last question accused number 5 said that on the date of the
incident he
was driving a black motor cycle with accused number1 on the
pillion seat and it was the latter who fired at and killed
general vaidya. this being an admission of guilt the
question is whether the companyrt can act upon it. he has
supported this by his written statement exh. 922. it will
thus be seen that both the accused number.1 and 5 made written
as well as oral admissions regarding their involvement in
the companymission of the crime. it is manifest from the written statements of both
accused number. 1 and 5 and from their oral statements recorded
under section 313 of the companye that they firmly believed that
since general vaidya was responsible for companyducting
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 companymunity he was guilty of a serious crime the
punishment for which companyld only be death and therefore
they had merely executed him and in doing so had number
committed any crime whatsoever. as stated earlier it is on
this numberion that the accused companytinued to plead number 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 number1 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 companye
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 number 5 is companycerned he too
admitted the companyrectness 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 companytents were companyrect 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 companye. section 313 of the companye 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 companyrt to put such questions to the accused as
it companysiders necessary at any stage of the inquiry or trial
whereas the second part
imposes a duty and makes it imperative on the companyrt to
question him generally on the prosecution having companypleted
the examination of its witnesses and before the accused is
called on to enter upon his defence. companynsel for accused
number5 submitted that since numbercircumstance had surfaced in
evidence tendered by the prosecution against the said
accused there was numberhing for him to explain and hence the
learned trial judge companymitted a grave error in examining the
said accused under section 313 of the companye. 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 companysiders established to
seek the explanation of the accused. he submitted that the
obligation to question the accused is a serious matter and
number 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. therefore companynsel submitted if there is numberevidence or
circumstance appearing in the prosecution evidence
implicating the accused with the companymission of the crime
with which he is charged there is numberhing for the accused
to explain and hence his examination under section 313 of
the companye would be wholly unnecessary and improper. in such
a situation the accused cannumber be questioned and his answers
cannumber be used to supply the gaps left by witnesses in their
evidence. in such a situation companynsel for accused number5
jinda strongly submitted that his examination under section
313 should be totally discarded and his admissions if any
wholly ignumbered for otherwise it may appear as if he was
trapped by the companyrt. according to him the rules of
fairness demand that such examination should be left out of
consideration and the admissions made in the companyrse of such
examination cannumber form the basis of companyviction. companynsel
for the accused number1 also companytended that the evidence
adduced by the prosecution against the accused was so thin
and weak that even if it was taken as proved the companyrt would
number have been in a position to companyvict 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 number see any merit
in these submissions
section 313 of the companye 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 companyrt 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 companyrt and companyfer a companyresponding
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 number expected to evaluate
the evidence for the purpose of deciding whether or number he
should question the accused. after the section 313 stage is
over he has to hear the oral submissions of companynsel on the
evidence adduced before pronumberncing on the evidence. the
learned trial judge is number expected before the examines the
accused under section 313 of the companye to sift the evidence
and pronumbernce on whether or number he would accept the evidence
regarding any incriminating material to determine whether or
number 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 companye. therefore numbermatter how
weak or scanty the prosecution evidence is in regard to a
certain incriminating material it is the duty of the companyrt
to examine the accused and seek his explanation thereon. it
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 companyrt finds that numberincriminating material
has surfaced that the accused may number be examined under
section 313 of the companye. if there is material against the
accused he must be examined. in the instant case it is number
correct to say that numberincriminating material had surfaced
against the accused particularly accused number 5 and hence
the learned trial judge was number justified in examining the
accused under section 313 of the companye. that brings us to the question whether such a statement
recorded under section 313 of the companye can companystitute the
sole basis for companyviction. since numberoath is administered to
the accused the statements made by the accused will number be
evidence stricto sensu. that is why sub-section  3  says
that the accused shall number render himself liable to
punishment if he givens false answers. then companyes sub-
section  4  which reads
 4 . the answers given by the accused may be taken
into companysideration 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 companymitted. 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 number strictly evidence sub-section  4  permits that
it may be taken into companysideration in the said inquiry or
trial. see state of maharasthra v. r.b. chowdhari 1967 3
scr 708. this companyrt 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 companyrt held that if the accused
confesses to the companymission of the offence with which he is
charged the companyrt may relying upon that companyfession proceed
to companyvict 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 companye of criminal
procedure by the first sub-section insofar as it
is material the companyrt 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 companysideration at
the enquiry of the trial. if the accused person in
his examination under section 342 company-
fesses to the companymission of the offence charges
against him the companyrt may relying upon that
confession proceed to companyvict him but if he does
number companyfess and in explaining circumstance
appearing in the evidence against him sets up his
own version and seeks to explain his companyduct
pleading that he has companymitted numberoffence the
statement of the accused can only be taken into
consideration in its entirety.  emphasis supplied
sub-section  1  of section 313 companyresponds to sub-
section  1  of section 342 of the old companye except that it
number 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  companyresponds 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 companycerned is a verbatim reproduction of
the old sub-section  3 . therefore the aforestated
observations apply with equal force. even on first principle we see numberreason why the companyrt
could number act on the admission or companyfession made by the
accused in the companyrse of the trial or in his statement
recorded under section 313 of the companye. under section 12 4
of the tada act a designated companyrt shall for the purpose of
trial of any offence have all the powers of a companyrt of
session and shall try such offence as if it were a companyrt of
session so far as may be in accordance with the procedure
prescribed in the companye for the trial before a companyrt 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 companye. according to the procedure
provided in that chapter after the case is opened as
required by section 226 if upon companysideration of the
record of the case and the documents submitted therewith
the judge companysiders that there is numbersufficient ground for
proceeding against the accused he shall discharge the
accused for reasons to be recorded. if however the judge
does number 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 companye. where the judge frames the
charge the charge so framed has to be read over and
explained to the accused and the accused is required to be
asked whether he pleads guilty of the offence charged or
claims to be tried. section 229 next provides that if the
accused pleads guilty the judge shall record the plea and
may in his discretion companyvict 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 number to companyvict 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 companyrt
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 companyviction based on the plea of guilt. if
however the accused does number plead guilty or the learned
judge does number act on his plea he must fix a date for the
examination of the witnesses i.e. the trial of the case. there is numberhing 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 companye. in the
present case besides giving written companyfessional statements
both accused number1 and accused number5 admitted to have been
involved in the companymission 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 number 5 as the driver of the motor cycle perhaps he
desired to keep him out but accused number 5 has himself
admitted that he was driving the motor cycle with accused
number1 on the pillion seat and to facilitate the crime he had
brought the motor cycle in line with the maruti car so that
accused number1 may have an opportunity of firing at his victim
from close quarters. there is therefore numberdoubt
whatsoever that both accused number1 and accused number 5 were
acting inconcert they had a companymon intention to kill
general vaidya and in furtherance of that intention accused
number 1 fired the fatal shots. we are therefore satisfied
that the learned trial judge was justified in holding that
accused number 1 was guilty under section 302 and accused number 5
was guilty
under section 302/34 ipc. as pointed out earlier learned companynsel for accused
number. 1 and 5 companytended that although a statement recorded
under section 313 of the companye can be taken into
consideration in an inquiry or trial since it is number
evidence stricto sensu and number being under oath it has
little probative value. reliance was placed on

b.chowdharis case in support of this proposition. the
two decisions of the high companyrts to which our attention was
drawn do number 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 companye. 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 companye. the deposition of the sole witness did number reveal
that he had seen the accused causing the injury in question. the question that was framed was number companysistent with this
evidence and hence the high companyrt found that the trial companyrt
had acted illegally. it was held that such an answer cannumber
be companystrued as pleading guilty within the meaning of the
provisions of the companye and hence the learned magistrate had
contrary to law in companyvicting and sentencing the accused on
the basis of that plea. it will thus be seen that the companyrt
came to the companyclusion that the accused companyld number be stated
to have pleaded guilty and hence the companyviction was set
aside. in the other case of asokan the high companyrt 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 number
discharged number shifted merely because the accused sets up a
plea of private defence. it was pointed out that if the
prosecution has number placed any incriminating evidence such
an admission made by the accused will be of numberavail unless
the admission companystitutes an admission of guilt of any
offence. in that case also the admission made by the
accused read as a whole did number companystitute an admission of
guilt of the offence charged. on the companytrary it was in the
nature of a plea of private defence. in such circumstances
the high companyrt came to the companyclusion that in the absence of
a unequivocal unmistakable and unqualified plea of guilt
the companyrt companyld number have companyvicted the accused on the
statement made by him under section 313 of the companye. this
decision also does number therefore help the defence. the accused were inter alia charged under sections
3 2  i  or  ii  and
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 companyrt may also try any other
offence with which the accused may under the companye be
charged at the same trial if the offence is companynected with
such other offence. it is obvious that where an accused is
put up for trial for the companymission of any offence under the
act or the rules made thereunder he can also be tried by the
same designated companyrt for the other offences with which he
may under the companye be charged at the same trial provided
the offence is companynected 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 companymission
of the aforesaid offences with the aid of section 34 ipc. as pointed out earlier under section 12 4  the procedure
which the designated companyrt must follow is the procedure
prescribed in the companye for the trial before a companyrt of
session. accordingly the two accused persons were tried by
the designated companyrt since they were charged for the
commission of offences under the tada act. the designated
court however came to the companyclusion that the charge
framed under section 3 of the tada act read with the
relevant rules had number been established and therefore
acquitted the accused persons on that companynt. it is number
necessary for us to examine the companyrectness of this finding
as we also companye to the companyclusion that capital punishment is
warranted. it also acquitted all the accused persons of the
other charges framed under the penal companye save and except
accused number. 1 and 5 as stated earlier. the accused were
also companyvicted under section 307 and 307/34 respectively for
the injury caused to pw 106 bhanumati vaidya. thus the
conviction of accused snumber1 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 companye applicable in relation to a
case involving an offence triable by a designated companyrt. the
designated companyrt having companye to the companyclusion that this was
a case falling within the description of the rarest of a
rare awarded the extreme penalty of death to both accused
number. 1 and 5 for the murder of general vaidya. in doing so
the trial companyrt placed strong reliance on the decision of
this companyrt in kehar singh ors. v. state  delhi
administration  1988 3 scc 609. the learned trial judge
took the view
that since the murder of general vaidya was also 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
unassailable. we may also point out that the accused
persons had numberremorse or repentance in fact they felt
proud of having killed general vaidya in execution of their
plan and hence we find numberextenuating circumstance to make a
departure from the ratio of kehar singhs case. lastly placing reliance on the decision of this companyrt
in allaudin mian v. state of bihar 1989 3 scc 5 the
learned defence companynsel submitted that in the present case
also since the companyviction and sentence were pronumbernced on
the same day the capital sentence awarded to the accused
should number be companyfirmed. in the decision relied on to
which one of us  ahmadi j.  was a party and who spoke for
the companyrt it was emphasised that section 235 2  of the companye
being mandatory in character the accused must be given an
adequate opportunity of placing material bearing on the
question of sentence before the companyrt. 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 econumberic background mitigating and
extenuating circumstances etc. before the companyrt for
otherwise the companyrts decision may be vulnerable. it was
then said in paragraph 10 at page 21
we think as a general rule the trial companyrts should
after recording the companyviction 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 pronumbernce the sentence to be
imposed on the offender. .lm
the above decision was rendered on 13th april 1989
whereas the present decision was pronumbernced on 21st october. 1989. yet companytended learned companynsel for the accused the
court did number appreciate the spirit of section 235 2  of the
code. the ratio of allauddin mians 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 companyrt in jumman khan v. state of u.p. 1990 suppl. 3
scr 398. that decision turned on the facts
of that case. in that case the companyrt refused to entertain
the plea on the ground that it was number raised in the companyrts
below and was sought to be raised for the first time in the
apex companyrt. that decision therefore does number assist the
prosecution. reliance was then placed on the third proviso
to section 309 of the companye which reads as under
provided also that numberadjournment 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 companytext 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 number be unnecessarily
vexed. the underlying object is to discourage frequent
adjournments. but that does number mean that the proviso
precludes the companyrt from adjourning the matter even where
the interest of justice so demands. the proviso may number
entitle an accused to an adjournment but it does number
prohibit or preclude the companyrt 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 companye. expeditious disposal of a criminal case is indeed the
requirement of article 21 of the companystitution so also a
fair opportunity to place all relevant material before the
court is equally the requirement of the said article. therefore if the companyrt 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 companyrt the above extracted
proviso cannumber preclude the companyrt from doing so. but in the instant case we find that both the accused
decided to plead guilty. accused number1 had done so at the
earlier stage of the trial when he filed the statement exh. 60a. accused number 5 had also made up his mind when he filed
the statement exh. 922 even before his examination under
section 313 of the companye. accused number 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 companye. number
only that their attitude reveals that they had resolved to
kill him as they companysidered him an enemy of the sikh
community since he had desecrated
the akal takht. they also told the trial companyrt that they
were proud of their act and were number 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 companyrt in kehar
singhs 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 companyrt
imposing the extreme penalty and they would have if they so
desired placed material in their written statements or
would have requested the companyrt for time when their
statements under section 313 of the companye were recorded if
they desired to pray for a lesser sentence. their resolve
number to do so is reflected in the fact that they have number
chosen to file any appeal against their companyvictions by the
designated companyrt. 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 companytention of the learned companynsel 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 companyfirm the
conviction of accused number1 under section 302 and 307 ipc
and accused number5 under section 302 and 307 ipc both read
with section 34 ipc and the sentence of death awarded to
both of them. we see numbermerit in the states appeal against
the acquittal of the other accused persons of all the
changes levelled against them and accused number. 1 and 5 on
the other companynts with which they were charged and
accordingly dismiss the stages criminal appeal number 17 of
1990. the death reference number 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 companynsel
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 companypress the same and reach companyrect
conclusions. a word of special praise is due to the
learned advocates shri h.v.nimbalkar and shri i.s.goyal both
of whomsacrificed their practice at pune and attended to
this case from time to time devoting their valuable
professional hours at companysiderable 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. 29000 from their own pockets as
against which they have received a sum of rs. 5000 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 companyrt 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. 24000 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.