9911796707
TMI Blog1988 (8) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... ase No. 2/86. The case relates to a very unfortunate incident where the Prime Minister Smt. Indira Gandhi was assassinated by persons posted for her security at her residence. The facts brought out during investigation are that Smt. Indira Gandhi had her residence in New Delhi at No. 1, Safdarjung Road. Her office was at No. 1, Akbar Road which was a bungalow adjoining her residence. In fact the two bungalows had been rolled into one by a campus with a cemented pathway about 8 ft. wide leading from the residence to the office and separated by a Sentry gate which has been referred to as the TMC Gate and a sentry booth nearby. Smt. Indira Gandhi had gone on a tour to Orissa and returned to New Delhi on the night of 30th October, 1984. At about 9 A.M. On the fateful day i.e. 3Ist October, 1984 Smt. Gandhi left her residence and proceeded towards the office along the cemented path. When she approached the TMC Gate and was about 10 or 11 ft. away therefrom she was riddled with a spray of bullets and she fell immediately. She was removed to All India Institute of Medical Sciences ('AllMS' for short) but to no avail. A wireless message about the occurrence was received at 9.23 A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sharma as Deputy Commissioner of Police and Assistant Commissioneer of Police respectively designating them as officers superior to an officer-in-charge of a Police Station and placed their services at the disposal of Shri Anandram. We understand that Shri R.P. Kapoor was named as the Chief Investigative Officer but it was Mr. Kochhar who was closely associated with the investigation throughout except for a short period between 15.11.84 when the SIT assumed charge and 27.11.84 when his services were lent to SIT and he is an important witness of the prosecution so far as investigation is concerned. Shri Kochhar reached AIIMS at about 10 A.M. and at 11.25 A.M. on 31.10.84 he sent at the Tuglak Road Police Station through Shri Vir Singh, PW 20 A report on the basis of which First Information Report (FIR) for a cognizable offence punishable under Sections 307, 120-B IPC and Sections 25,27,54 & 59 of the Arms Act was registered at the Police Station. The report was based on the statement of Narain Singh, PW 9, a Head Constable deputed on duty at Smt. Indira Gandhi's residence, recorded by Shri Kochhar at AIIMS. Narain Singh who was accompanying Smt. Gandhi at the time of shooting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i S.L. Khanna, Additional Chief Metropolitan Magistrate, Tis Hazari to deal with the remand matter of Satwant Singh in Red Fort, Delhi. Satwant Singh was produced before Shri S.L. Khanna, PW 67 on the same day and remanded to the police custody till 29.11.84. On 29.11.84 it was said that Satwant Singh wanted to make a confession and he was produced before Shri Khanna. Shri Khanna, however, gave him time to think over till1.12.84 and remanded him to judicial custody in Tihar Jail. It appears that thereafter the Delhi Administration again made a request to the Delhi High Court and the Delhi High Court authorised Sh. S.L.Khanna by Order dated 1.12.84 to hold remand proceedings in Tihar Jail on 1.12.84 and on subsequent dates. It also appears that Shri G.P.Tareja who was the link Magistrate of Shri S.L. Khanna had gone on long leave and by an order dated 1.12.84, Shri Bharat Bhushan Gupta,PW 1 was appointed as a link Magistrate in this case. In the light of these orders Satwant Singh was produced before Shri Khanna on1.12.84 in the Jail. He passed on the papers to Shri Bharat Bhushan Gupta and later recorded a confession from Satwant Singh on the same day which is Ex. 11-G. . One Keha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntive offences under Sections 302, 307 IPC and Sections 27, 54 & 59 of the Arms Act. This report also mentions Beant Singh as one of the accused persons but since he had died the charges against him were said to have abetted. The prosecution case at the trial was that in June 1984 the armed forces of the Indian Union took action which is described generally as 'Operation Bluestar' under which armed forces personnel entered the Golden Temple complex at Amritsar and cleared it off the terrorists. In this operation it is alleged that there was loss of life and properties as well as damage amongst other things to the Akal Takht in the Golden Temple complex. As a result of this Operation the religious feelings of the members of the Sikh community were greatly offended. According to the prosecution, all the four accused persons mentioned in the charge-sheet who were sikhs by faith have been expressing their resentment openly and holding Smt. Indira Gandhi responsible for the action taken at Amritsar. They had met at various places and at various times to discuss and to listen inflammatory speeches and recording calculated to excite listeners and provoke them to retaliatory actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arranged to get his duty changed from Beat No.4 at PM's house to T.M.C. Sentry Booth situated near the latrine by misrepresenting that he was suffering from dysentery. Beant Singh was armed with a revolver (No. J- 296754, Butt No. 140) which had 18 cartridges of.38 bore and Satwant Singh was armed with a SAF Carbine (No. WW-l3980 with Butt No. 80) and 100 cartridges of 9 mm. Both having managed to station themselves together near the T.M.C. Gate on 31.10. 1984, at about 9.10 A.M., Beant Singh opened fire from his revolver and Satwant Singh from his carbine at Smt. Indira Gandhi as she was approaching the T.M.C. Gate. Beant Singh fired five rounds and Satwant Singh 25 shots at her from their respective weapons. Smt. Indira Gandhi sustained injuries and fell down. She was immediately taken to the AllMS where she succumbed to her injuries the same day. The cause of death was certified upon a post-mortem which took place on 31.10.1984, as haemorrhage and shock due to multiple fire arm bullet injuries which were sufficient to cause death in the ordinary course of nature. The post- mortem report No. 1340/84 of the AIIMS also opined that injuries Nos. 1 and 2, specified in the report, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the High Court to shift the trial in a place where it ultimately ceases to be an open trial. Learned counsel on this ground referred to series of decisions from United States, England and also from our own courts and contended that the open trial is a part of the fair trial which an accused is always entitled to. The other question raised by the learned counsel for the appellants was that by preventing the accused from getting the papers of the Thakkar Commission, its report and statements of persons recorded; who are prosecution witnesses at the trial the accused have been deprived of substantial material which could be used for their defence. These main questions were raised by the counsel appearing for Kehar Singh and Balbir Singh and counsel for Satwant Singh adopted these arguments and in addition raised certain preliminary objections pertaining to the evidence of post-mortem, ballastic expert and similar matters. Learned Additional Solicitor General appearing for the respondent replied to some of the legal arguments and also the other arguments on facts. One of the preliminary objections sought to be raised by the learned Additional Solicitor General was that this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection clearly provides that the Sessions Judge of the Division by general or special order is supposed to allot cases arising in a particular area or jurisdiction to be tries by Additional or Assistant Sessions Judges appointed in the division but the last part of this Section also authorised the High Court to allot the case to a particular Judge keeping in view in fact that in certain cases the Sessions Judge may not like to allot and may report to the High Court or either of the parties may move an application for transfer and under these circumstances if may become necessary for the High Court to allot a particular case to a particular Judge. This, this objection is of no consequence. The other objection which has been raised by the learned counsel is about the issuance of a notification by the High court under Sec. 9(6) Cr.P.C. and by this notification the High Court purported to direct that the trial in this case shall be held in Tihar Jail. Learned counsel appearing for the Delhi Administration on the other hand attempted to justify such an order passed by the High Court by contending that if the High Court had the authority to issue notification fixing the place of sitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te book applicable to Delhi, it can not be used as the High Court has used to interpret it. That apart, if we look at the notification from a different angle the contention advanced by the learned counsel for the appellants ceases to have any force. Whatever be the terms of the notification, it is not disputed that it is a notification issued by the Delhi High Court under Sec. 9 sub-clause (6) Cr. P.C. and thereunder the High Court could do nothing more or less than what it has the authority to do. Therefore, the said notification of the High Court could he taken to have notified that Tihar Jail is also one of the places of sitting of the Sessions Court in the Sessions division ordinarily. That means apart from the two places Tis Hazari and the New Delhi, the High Court by notification also notified Tihar Jail as one of the places where ordinarily a Sessions Court could hold its sittings. IN this view of the matter, there is no error if the Sessions trial is held in Tihar Jail after such a notification has been issued by the High Court. The next main contention advanced by the counsel for the appellants is about the nature of the trial. It was contended that under Article 21 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "No person shall be deprived of his life or personal liberty except according to procedure established by law." It is not disputed that so far as this aspect of open trial is concerned the procedure established by law even before our Constitution was enacted was as is provided in Sec. 327 Cr. P.C. (Sec. 352 of the old Code): "Court to be open (1) The place in which any criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them: Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court. (2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under section 376, section 376A, Section 376B, section 376C or section 376D of the Indian Penal Code shall be conducted in Camera ; Provided that the presiding judge may, if he thinks fit, or on an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to contend that this is not a question of any constitutional right under Article 21 and the basis of his argument was that Article 21 only talks of procedure established by law and if today on the statute book there is Section 327, tomorrow Section 327 may be so amended that it may not be necessary for a criminal trial to be open and on this basis, learned Additional Solicitor General attempted to contend that it does not become a constitutional right at all. It is very clear that Article 21 contemplates procedure established by law and in my opinion the procedure established by law was as on the day on which the Constitution was adopted and therefore it is not so easy to contend that by amending the Criminal Procedure Code the effect of the procedure established by law indicated in Article 21 could be taken away. The trend of decisions of this Court has clearly indicated that the procedure must be fair and just. Even expeditious trial has been considered to be a part of guarantee under Article 21 but in my opinion so far as the present case is concerned it is not necessary to go so far. At present no one could dispute that the procedure established by law as indicated in Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 327 or under Article 21 was not made available to the accused in this case and therefore it could not be contended that there is any prejudice at the trial. There remains however one more question which was raised by the counsel for the appellants that in spite of the prayer made by the accused person during the trial and also in the High Court about the copies of the statement of witnesses who have been examined by the prosecution and were also examined before the Commission (Thakkar Commission) to be provided to the accused so that they may he in a position to use these statements for purposes of contradiction or for other purposes. They had also prayed for the copy of the Thakkar Commission report as the Thakkar Commission Was inquiring into the events which led to the assassination of the Prime Minister. In fact. it was contended that the terms of reference which were notified for the enquiry of the Thakkar Commission were more or Less the same questions which fell for determination in this case and thus the appellants have been prejudiced and they could not avail of the material which they could use to build up their defence. According to learned counsel not only th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of the crime and other individuals responsible for the security of the late Prime Minister; (c) the deficiencies, if any, in the security system and arrangements as prescribed or as operated to impractice which might have facilitated the commission of the crime; (d) the deficiencies, if any, in the procedure and measures as prescribed, or as operated in practice in attending to any providing medical attention to the late Prime Minister after the commission of the crime; and whether was any lapse or dereliction of duty in this regard on the part of the individuals responsible for providing such medical attention; (e) whether any person or persons or agencies were responsible for conniving, preparing and planning the assassination or whether there was any conspiracy in this behalf, and if so, all its ramifications''. The Commission was also asked to make recommendations as to corrective remedies and measures that need to be taken for future. It is therefore clear that out of these terms of reference the first term (a) and the last one (e) are such that the evidence collected by the Commission could be said to be relevant for the purposes of this trial. It is sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the notification is so laid before the House of People or as the case may be the Legislative Assembly of the State makes any modification in the notification or directs that the notification should cease to have effect. The notification shall thereafter have effect as the case may be." In pursuance of this amendment on May 15, l986 the Central Government issued a notification under sub-section (5) of Section 3 stating "The Central Government, being satisfied that it is not expedient in the interest of the security of the State and in public interest to lay before the House of People, the report submitted to the Government on 19.11.85, and 27.2.86, by justice M.P. Thakkar, a sitting Judge of the Supreme Court of lndia appointed under the notification of the Government of India, in the Ministry of Home Affairs No. So. 867(B), dated the 20th November, 1984 thereby notifies that the said report shall not be laid before the House of People." It is interesting that on 20.8.86, Ordinance No. 6 was replaced by Commission of Enquiry (Amendment) Act. I986 (Act No. 36 of I986) with retrospective effect. The said notification dated May 15, l986 was also got approved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be no objection even to the Commission of Enquiry recommending the imposition of some form of punishment which will, in its opinion, be sufficiently deterrent to deliquent in future. But seeing that the Commission of Enquiry has no judicial powers and its report will purely be recommendatory and not effective propro vigro." The statement made by any person before the Commission of Enquiry under Sec. 6 of the Act is wholly inadmissible in evidence in any future proceedings civil or criminal. According to learned counsel, in that case it was not the scope of Section 6 but the validity of the provisions were in question and the observations were only incidental and it can not be regarded as a binding precedent. The High Court has accepted these observations of this Court in the judgment quoted above and in our opinion rightly. But apart from it, we shall try to examine Sec. 6 itself and other provisions relevant for the purpose as to whether the appellants i.e. the accused before the trial court were entitled to use the copies of the statements of those prosecution witnesses who were examined before the Thakkar Commission for purposes of cross examination or to use the repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing being shown to him or being proved. But if it is intended to contradict him by the writing his attention must be drawn to these parts of the writing; and it can be proved. A witness could be cross examined on his previous statement but if a contradiction is sought to be proved then that portion of the previous statement must be shown to him and proved in due course. Sec. 155 of the Evidence Act provides for the use of a previous statement to impeach the credit of a witness. Sec. 155 reads: "155. Impeaching credit of witness-The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the Court, by the party who calls him- (1) by the evidence of persons who testify that they, from their knowledge of the witness, believe to be unworthy of credit; (2) by proof that the witness has been bribed, or has (accepted) the offer of a tribe, or has received any other corrupt inducement to give his evidence; (3) by proof of former statements inconsistent with any part of this evidence which is liable to be contradicted; (4) When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sec. 6 as discussed above will prohibit the use of the previous statements at the trial either for the purposes of cross examination to contradict the witness or to impeach his credit. The only permissible use which has been provided under Sec. 6 is which has been discussed earlier and therefore the Courts below were right in not granting the relief to the accused. The report of the Commission was also prayed for although learned counsel could not clearly suggest as to what use report of the Thakkar Commission could be to the accused in his defence. The report is a recommendation of the Commission for consideration of the Government. It is the opinion of the Commission based on the previous statements of witnesses and other material. It has no evidentiary value in the trial of the criminal case. The courts below were also justified in not summoning the reports. Learned counsel for parties referred to number of decisions, Indian and foreign and are being dealt with by my learned colleague in this judgment. But in view of the discussions above I do not find it necessary to go further into the matter. Learned counsel for Appellant No. I Satwant Singh also made a reference to so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preliminary when the leave to appeal is asked for." Even in a recent decision AlR 1983 SC 753. Justice Thakkar stated: "A concurrent finding of fact can not be reopened in an appeal unless it is established; (i) that the finding is based on no evidence or record, that the finding is perverse, it being such as no reasonable person would have arrived at even if the evidence was taken at its face value or thirdly, the finding is based and built on inadmissible evidence which evidence if excluded from the vision would negate the prosecution case or substantially discredit or impair it or; fourthly some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded or wrongly discarded." These are the principles laid down by this court and keeping these in view I will attempt to examine the High Court judgment. I may however, mention that where the High Court has reached conclusions which are not justified on the basis of evidence on record it can not be contended that in an appeal under Art. 136 this Court will not go into the facts of the case and come to its own conclusions. The case on hand is one of such cases and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and it is material to note that this part of the Section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Sec. 120-A where it is provided "When two or more persons agree to do, or cause to be done." This further has been safeguarded by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore necessary that a prima facie case of conspiracy has to be established for application of Sec. 10. The second part of Section talks of anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy. In short, the Section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; (5) it can only be used against a conspirator and not in his favour." In the light of these observations and the analysis of Sec. 10 we will have to examine the evidence led by prosecution in respect of conspiracy. We first take the case of Balbir Singh. Balbir singh was an officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration'. Thereafter they offered 'Ardas'. These allegations, the prosecution has attempted to prove by the evidence of the following witnesses: (i) SI Madan Lal Sharma, PW 13 (ii) Constable Satish Chandra Singh, PW 52 PG NO 98 (iii) Sub Inspector Amarjit Singh. PW 44 and (iv) Confession of Satwant Singh, PW 11C. The prosecution also strongly relied upon the document Ex. PW 26B which was recovered from the possession of the accused when he was arrested at Najafgarh Bus-stand. His leave applications which are Ex. PW 26 E1 to E5 along with his post crime conduct of absconding are also relied upon. According to the accused, the document Ex. PW 26B was not recovered from his possession as alleged by the prosecution. He also contests his arrest at Najafgarh Bus- stand and says that it is just a make-believe arrangement. According to him, he was all along under police custody right from the day when he was taken to Yamuna Velodrome on November 1, 1984. In fact he Was all along under police custody right from the day when he was taken to Yamuna Velodrome on November 1, 1984. In fact he was not allowed to go out and the question of his abscondence does not arise. He was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that before him this person was allowed to go from the Yamuna Velodrome. There is no evidence on this aspect of the matter at all and therefore we are left with the only evidence that this person was arrested at midnight in the late hours on Ist November and was carried to Yamuna Velodrome and was seen there by some prosecution witness till the evening of the next day. Then the other aspect of the matter which is of some importance is about the prosecution allegation that he was absconding from Ist or IInd November till 3rd Dec. 1984. It is significant that no witness has been examined to indicate that he went to find him but either at his residence or at any other place' in search of him and that he was not available. There is also no evidence produced to indicate that in spite of the fact that during investigation police wanted to arrest him again but he was not available at his known address. It is perhaps of absence of evidence as to absconding the trial court when examined this accused under Sec.313 did not put him any question about his abscondence. it is therefore clear that the abscondence as circumstance could not be used against him. Let us now examine the story of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles were recovered from his possession. Most of the articles recovered are mere personal belongings. There was also a piece of paper since marked as Ex. PW 26/B. The Police did not think it necessary to have an independent witness even for the seizure memo, when particularly some important piece of evidence was recovered from his possession. The reply of the learned Additional Solicitor General was that in law it was not necessary. The Investigating Officer when questioned in cross-examination answered that nobody, was available or none was prepared to be a witness in this matter. It is unthinkable at a public place and that too at the Bus - stand. Learned Additional Solicitor General also attempted to contend that the c in Delhi after the assassination of the. Prime Minister were such that no witness was prepared to come forward. It appears that for every problem this situation is brought as a defence but in our opinion, this would not help so far as this matter is concerned. We are talking of 3rd December which was more than a month after the unrest in Delhi. It is very difficult to believe that a citizen in this capital did not come forward to be a witness form seizure memo. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Balbir Singh as that is not seriously contested before us. The document is a sheet of paper in which we find certain entries. The document is reproduced at Pages Nos 57-58 of the judgment prepared by my learned brother Shetty, J. If this document is considered to be a memorandum of events prepared by this accused relating to his conspiracy, why should he carry it in an atmosphere surcharged with emotion against the Sikhs. Not only that, this person knew that he was an accused in such an important case where whole public opinion is against him. He also knew that he was absconding and he also knew that he was carrying in his pocket such an important piece of evidence. Was it his intention that he should keep it readily available so that h could oblige the prosecution whenever they needed? There is no other possible reason why this person should keep this document with him all the time. On our questioning the learned Additional Solicitor General about this strange behavior of the accused, he also could not explain as to way the accused could have thought of carrying such a piece of paper in his pocket. Apart from it. if the document is looked at as it we see nothing in it except a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e later. Under these circumstances it is very clear that except the mention of `Bluestar Operation' and `felt like killing' there is nothing in this document which is of any significance. If the document is read as it is, we see nothing incriminating against this accused unfortunately it appears that the High Court read in this document what was suggested by the prosecution without considering whether it would be accepted or not in the absence of evidence on record. Admittedly, there is no such evidence at all in this case. Satish Chandra Singh, PW 52, who has been produced to prove the meeting of Balbir Singh with Satwant Singh Was for the first time examined during the investigation on 7.2.85 that is after the trial and commenced. He has stated that when he was on duty on October 30, 1984 Satwant singh came and talked to Balbir Singh. But he frankly admitted that he could not follow what they talked as he did not know Punjabi. What value we could attach to the testimony of this witness.It is impossible to believe him. In view of what we have noticed, even if the document is accepted to have been written by the accused, still there is nothing is on the basis of which an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damaging the Akal Takht lies with Smt. Gandhi and it would be avenged by them. From this it cannot be inferred that Balbir Singh wanted to take revenge against the Prime Minister along with Beant Singh. This is not what is said by the witness. If expression of anger or protest on the `Bluestar Operation' could be used as a piece of evidence or a circumstance against accused then all that members of the Sikh community who felt agitated over the `Bluestar Operation' must be held as members of the conspiracy. So far as taking leave is concerned there is nothing on the basis of which any significance could be attached to it. There is no material to indicate that during the leave Balbir Singh met Beant Singh or any one else or was in any manner connected with the conspiracy or was doing something in pursuance of the agreement of conspiracy between them. Merely because on certain dates he was on leave no inference could be drawn. The High Court relied on the fact that after returning from leave this accused met Beant Singh and Amarjit Singh but on this meeting also there is no other evidence except the evidence of Amarjit Singh PW 44 which we will deal with a little later. So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Week of October, 1984, Balbir Singh told me that Beant Singh and his family have been to the Golden Temple along with Kehar Singh his Phoopha. He further told that Beant Singh and Constable Satwant Singh had taken Amrit in Sector 6, R.K. Puram, New Delhi at the instance of' Kehar Singh." In his first statement PW 44 DA which has been exhibited during his cross examination admittedly there is no reference to Balbir Singh at all. No reference to Balbir Singh telling the witness that if he could get a remote control bomb and his children are sent outside India. he could also finish Mrs. Indira Gandhi there he has stated "In the end of September, I984 SI Balbir Singh met me once in the Prime Minister's house and told me that Beant Singh wanted to kill the Prime Minister before 15th August, he (Beant Singh) agreed to kill her a grenade and remote control but this task was to be put off because the same could not he arranged. Actual words being In do cheeson ka intezam nahin ho saka isliye baat gayi.' Similarly in his earlier statement Ex. PW 44DA what this witness said Was: "In the third week of October, 1984 Beant Singh SI met me and told me that he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of chose association that he used to be taken in confidence by these two persons. That means that he is one of the conspirators or otherwise he would not have kept quiet without informing his superiors as it was his duty to do when the Prime Minister was in danger. In view of this, it is clear that there is no evidence at all to establish prime facie participation of this accused in conspiracy or any evidence to indicate that he had entered into any agreement to do an unlawful act or to commit an offence alongwith the other accused persons. Therefore, in absence of any evidence in respect of the first part of Sec. 10 which is necessary it could not be contended hat the confession of Satwant Singh could be of any avail or could be used against this appellant. Before parting with this witness, one more thing may be noted. The High Court, in order to explain that this witness Amarjit Singh did not refer to Balbir Singh in his first statement on 24.11.84 stated something thing out of imagination. The High Court has quoted his statement on 24.11.84 in these words: "He is also reported to have said that Beant Singh had wanted to kill Smt. Gandhi before 15th of August and that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he wife of the main accused in this case. She has lost her husband on 3 lst October. She was placed in a situation where it would have been difficult for her to compose herself in a manner in which she could give her statement immediately. It is nobody's case that she has any grudge against anybody. Important circumstances which emerge from the testimony of this witness are: (i) She was married to Beant Singh in 1976 through the good offices of her maternal uncle Gurdeep Singh. (ii) Kehar Singh's wife Jagir Kaur hailed from Matloya and she (Bimla) used to call Kehar Singh and Jagir Kaur Phoophi and Phoopha and there was close friendship between the two families. Rajendra singh son of Kehar Singh who was a friend of Beant Singh and often used to have drinks with him. In her statement in Court later she also stated that the wives of Rajendra Singh and Shamsher Singh, brother of Beant Singh belonged to the same `biradari'. (iii) Kehar Singh started visiting their house more often after the `Operation Bluestar'. Beant Singh and Kehar Singh had talked about the destruction of the Akal Takht in the Golden Temple complex on two or three occasions but became silent w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On their way back again the two went away alone to some place for a few minutes. They purchased a cassette and a photo of Bhindrawale. Beant Singh stayed behind saying that the meet some one and join them at the railway station. They returned to Delhi on 2 lst October, 1984. (x) On 24.10.84 Beant Singh insisted on her Taking Amrit again at R.K. Puram Gurudwara but she refused. After he returned from the A night duty he went alongwith Satwant Singh on a Scooter. There is only one variation between the previous statement and evidence in Court. That relates to identification of Satwant Singh. In the Court she attempted to say that he was a boy and later explained that at that time he had no beard but the manner in which the boy has been described and the occasions when the boy had come to their house, there is hardly any doubt left. Apart from it, so far as Satwant Singh is concerned even if we omit the of Bimla Khalsa, IT IS not material. But it could not be doubted that from her evidence that the above circumstances have been established. Next important circumstance is the 'Vak'. It is alleged that when early morning the worship starts in a Gurudwara, the Granth Sahib, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bimla Khalsa that originally Kehar Singh and Beant Singh wanted to go alone but ultimately they agreed that the families also could accompany. According to the evidence of Bimla Khalsa they reached at Amritsar at about 2 to 3 P.M. and went to Darbar Sahib Gurudwara in the evening of 20th October. While ladies and children were listening to kirtan, Beant Singh and Kehar Singh went to see the Akal Takht. Bimla Khalsa wanted to accompany them to see the Akal Takht but she was told to see the same on the next morning. On the next morning i.e. on 2 lst October, pW 53 was woken up by Kehar Singh and told that he would attend `Asaki War Kirtan' in Darbar Sahib. He went alongwith Beant Singh. The ladies and children went to Darbar Sahib at 8 A.M. alongwith PW 53. They returned home at 11 A.M. Beant Singh and Kehar Singh did not return alongwith them. After lunch, PW 53 took the ladies and children to the railway station. Beant Singh and Kehar Singh did came to the railway station from where they caught the train to New Delhi. The attempt of these two persons to keep themselves away from the company of their wives and children speaks volume about their sinister designs. The way in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arms Act. To prove these charges, prosecution has examined Narain Singh, PW 9, Rameshwar Dayal PW 10 and Nathu Ram PW 64 besides Sukhvir Singh PW 3 and Raj Singh PW 15.pW Z7 has deposed about the history as to how this person was in the Police in 1982 and how he happened to come to be Posted at Teen Murti Lines and there after in the security duty with the prime Minister. PW Duty Officer at the Teen Murti Lines has PG NO 114 deposed that DAP personnel was placed on duty at various duty points at the PM's house on weekly basis from Friday to Friday by Head Constable Dayal Singh the Company Havaldar. The daily duty maintained at Teen Murti Ex. PW 4-C shows that Entry No. 85 that on the morning of 31.10.84 Satwant Singh was put on duty at Gate No. 4 in the Akbar Road House and not the TMC Gate and this entry is continue firmed by Ex. PW 15 Daily Diary Clerk at that time. The arms and ammunition register Ex. PW 3A at Teen Murti Lines also shows that Satwant Singh was issued an SAF Carbine having But No. 80 along with five magazines and hundred live rounds of .99 of ammunition. He signed the register in token of the receipt. PW 3, the Armory Incharge confirms this. There is also ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty controlling the crowd. At about 10 or 10.15 A.M. R.P. Kochhar, PW 73 arrived and this witness gave a statement to Kochhar in the doctors' room which was recorded by him and sent to Tuglak Road Police Station which is the FlR in this case. His testimony is corroborated by the First Information Report and also by the two other eye witnesses Rameshwar Dayal and Nathu Ram whose presence on the spot could not be doubted. Nathu was in the personal staff of the Prime Minister and Rameshwar Dayal himself received injuries. Apart from it, this evidence of direct witnesses finds corroboration from the post-mortem report, recovery of cartridges and arms on the spot and the evidence of the Doctor and the expert who tallied the bullets. Under these circumstances even if the confession of this appelant Satwant Singh is not taken into consideration, still there is enough evidence which conclusively establish his part the offence and in this view of the matter there appears to be no reason to interfere with the conclusions arrived at by the two courts below. In our opinion, therefore, the appeal of Satwant Singh deserves to be dismissed. Then is the question of sentence which was argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the confession of accused Satwant Singh being not made in the manner prescribed under Section 164 of the Code of Criminal Procedure is admissible in evidence and whether the same can be relied upon. A Gazette Notification dated 10.5.1985 was issued under section 9 (6) of the Code of Criminal Procedure mentioning that the High Court of Delhi have directed that the trial of this assassination case shall be held in the Central Jail Tihar. Another Notification of the same date was issued whereby the High Court was pleased to order that this case will be tried by Shri Mahesh Chandra, Addl. Sessions Judge, New Delhi. This order was made under Section 194 of the Code of Criminal Procedure, 1973. It was contended on behalf of the appellant that Section 9(6) empowers the High Court to specify the place where the Sessions Court shall hold its sittings ordinarily. It does not empower the High Court to direct the holding of a court in a place other than the usual place of sitting in court for trial of a particular case. It is only in a particular case if the Court of Sessions is of opinion that it will be for the general convenience of the parties and witnesses to hold its sittings at any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of a particular case in a place other than the Court is not a judicial order but an administrative order. In this case because of the surcharged atmosphere and for reasons of security, the High Court ordered that the trial be held in Tihar Jail. Therefore, it cannot be said that the trial is not an open trial because of its having been held in Tihar Jail as there is nothing to show that the public or the friends and relations of 'the accused were prevented from having access to the place of trial provided the space of the court could accommodate them. It is also to be noted in this connection that various representatives of the press including representatives of international news agency like BBC etc. were allowed to attend the proceedings in court subject to the usual regulations of the jail. It is pertinent to mention that section 327 of the Code of Criminal Procedure provides that any place in which any criminal court is held for the purpose of enquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access, so far as the same can conveniently contain them. The place of trial in Tihar Jail according to this provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n jail. It was contended that the whole trial was vitiated. It has been held that:- "There is nothing to show that admittance was refused to any one who desired it, or that the prisoners were unable to communicate with their friends Counsel. No doubt, it is difficult to get Counsel to appear in jail and for that reason, if for no other, such trials are undesirable, but in this case the Executive Authorities were of the opinion that it would be unsafe to hold the trial elsewhere." The trial was therefore, held to be not vitiated. In Prasanta Kumar Mukherjee v. The State, AIR 1952 (Calcutta) 91 at 92 the petitioner was tried along with several others on a charge under section 147 I.P.C. and the trial took place inside the Hooghly Jail. In accordance with the order made by the Magistrate who was posted at Serampore. It was contended by the learned Counsel on behalf of the accused that the trial inside the Hooghly Jail was improper and prejudiced the accused in his defence. It was observed that: "The ordinary rule is that the trials are to be held in open Court. While there is nothing in law to prevent a Magistrate by S. 352, Criminal P.C., the very nature of a jail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant not guilty of murder, and the court granted the newspaper's motion to intervene nunc pro tunc in the case. The newspaper then petitioned the Virginia Supreme court for writs of mandamus and prohibition and filed an appeal from the trial court's closure order, but the Virginia Supreme Court dismissed the mandamus and prohibition petitions and, finding no reversible error, denied the petition for appeal. On certiorari, the United States Supreme Court reversed the order. Virginia Chief Justice who delivered the majority judgment of the Court expressed the view that there is a guaranteed right of the public under the First and Fourteenth Amendments to attend criminal trials and that absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public, and emphasized that in that case at bar the trial judge made no findings to support closure, no inquiry was made as to whether alternative solutions would have met the need to insure fairness, and there was no recognition of any right under the Constitution for the public or press to attend the trial. It has already been stated hereinbefore that in the instant case though the trial wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the primary function of the Judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a cause is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? If the primary function of the trial is to do justice in causes brought before it, then on principle, it is difficult to accede to the proposition that there can be no exception to the rule that all causes must he tried in open court. If the principle that all trial before courts must be held in public was treated as inflexible and universal and it is held that it admits of no exceptions whatever, cases may arise where by following the principle, justice itself may be defeated. That is why we feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course." ".. ...... In this connection it is essential to remember that publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel Mr. Ram Jethmalani on the ground that the confession being nor recorded in open court as required under the provision of Section 164 of the Criminal Procedure Code, is inadmissible in evidence and it cannot be adhered to for convicting the accused. This submission does not hold good in view of the pronouncement of this Court in Hem Raj Devilal v. The State of Ajmer, AIR 1954 (SC) 462 wherein it has been held that: "No doubt the confession was recorded in jail though ordinarily it should have been recorded in the Court House, but that irregularly seems to have been made because nobody seems to have realized that that was the appropriate place to record it but this circumstances does not affect in this case the voluntary character of the confession." In Ram Chandra and Anr. v. State of Uttar Pradesh, AIR 1957 (SC) 381 the appellant was sent to Naini Jail on 13th July. He was brought before a Magistrate on 17th July but he refused to make any confession. On 7th October a letter signed by the appellant was sent to the District Magistrate, Allahabad, through the Superintendent of the Jail to the effect he wanted to make a confession. As about this time he was ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y forbidden, applied to judicial officers making a record under Section 164 and, therefore, held that the Magistrate could not give oral evidence of the confession made to him which he had purported to record under Section 164 of the Code. Otherwise all the precautions and safeguards laid down in Ss. 164 and 3h4. both of which had to be read together, would become of such triffing value as to be almost idle. It has been urged on behalf of the respondent that if the confession is not recorded in proper from as prescribed by Section 164 read with Section 281 which corresponds to earlier Section 364, it is a mere irregularity and it can be cured by Section 463 on taking evidence that statement was recorded duly and it has not injured the accused in on merits. This question came up for consideration in this in the case of State of Uttar Pradesh v. Singhara Singh and Others, AIR 1964 (SC) 358. It has been observed-that: "What Section 533 therefore, does is to permit oral evidence to be given to prove that the procedure laid down in S. 164 had in fact been followed when the Court finds that the record produced before it does not show that that was so. If the oral evidence establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions and answers by means of which he has satisfied himself that the confession is in fact valuntary. Omission to warn the accused that he was making a confession before a Magistrate and to record the steps taken by the Magistrate to see that the confession was made voluntarily is a substantial defect not cnrable by section 533 Criminal Procedure Code. The High Court of Orissa in the case of Ambai Majhi v. The State [1966] Cr. L.J. 651 has held that Section 533 can care errors of forms and not of substance. On a consideration of the above decision it is manifest that if the provisions of Section 164 (2) which require that the Magistrate before recording confession shall explain to the person making confession that he is not bound to make confession and if he does so it may be used as evidence against him and upon questioning the person if the Magistrate has reasons to believe that it is being mad voluntarily then the confession will be recorded by the Magistrate. The compliance of the sub-section (2) of Section 164 is therefore, mandatory and imperative and non- compliance of it renders the confession inadmissible in evidence. Section 463 (old Section 533) of the Code of Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his production for recording the confession. There was no record to show whether the accused were sent after they were given time for reflection. In none of these confessional statements there was a memorandum as required by Section 164 of the Code of Criminal Procedure that the Magistrate believed "that the confession was voluntarily made". It was observed by this Court that: "The failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional statements." It was further observed that: "Considering the circumstances leading to the processional recording of the eight confessions and the object disregard, by the Magistrate, of the provisions contained in Section 164 of the Code and of the instructions issued by the High Court, We are of the opinion that no reliance can be placed on any of the confessions." In Ram Prakash v. The State of Punjab, [l959] SCR 1219 it was held that: "A voluntary and true confession made by an accused thought it was subsequently retracted by him, can be taken into consideration against a co-accused by virtue of Section 30 of the Indian Eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the accused was put the necessary questions and was given the warning that he was not bound to make any statement and in case any statement is made, the same might be used against him by the prosecution for his conviction. Of course, no question was put by the Magistrate to the accused as to why he wanted to make a confessional statement. It also appears from the evidence of the Magistrate, Shri Bharat Bhushan (Ext. PW 11) that the confes-sional statement was made voluntarily by the accused. So the defect in recording the statement in the form Prescribed is cured by Section 463 of the Code of Criminal Procedure. It is indeed appropriate to mention in this connection that the defect in recording the statement in appropriate form prescribed can be cured under section 463 of the Code of Criminal Procedure provided the mandatory provisions of l64(2) namely explaining to the accused that he was not bound to make a statement and if a statement is made the same might be used against him, have been complied with and the same is established on an examination of the magistrate that the mandatory provisions have been complied with. The accused No. 1, Satwant Singh has been charged with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused Satwant Singh he did not find any constable of D.A.P. on duty on 31.10.1984 in the P.M. house on the portion through which he passed. He also stated that it was incorrect to suggest that Satwant Singh had sustained bullet injuries before Mrs Indira Gandhi had been fired at. He also denied the suggestion that he was not present on the spot or that bullet were coming from all the four sides rather bullets were coming from the front side of Mrs. Indira Gandhi. He also stated that he was stunned when he saw the bullets coming from Beant Singh and Satwant Singh. He also stated that as Mrs. Indira Gandhi approached towards TMC gate within its ten feet, Beant Singh took out his revolver and immediately shot at Mrs. Indira Gandhi. PW-10 ASI Rameshwar Dayal deposed to the following effect: I was on duty on 31.10.1984 at P.M. house at No. 1, Safdarjang Road from 7.30 A.M. to 1.30 P.M. It was a security duty. I was on duty of water attendant in the Pilot's car of the Prime Minister. I enquired about the P.M. Programme. I learnt that the Prime Minister was to attend a film shooting VCR in No. 1, Akbar Road at 9 A.M. As I was going from No. 1, Safdarjang Road to No. 1, Akbar Road a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out 9.05 A.M., the Prime Minister, Smt. Indira Gandhi was ready to go out with Mr. R.K. Dhawan. The Prime Minister thereupon left the room at 9.05 A.M. followed by Shri R.K. Dhawan and then followed by me. She reached the pantry gate where Shri Narain Singh was waiting with an umbrella in his hand. As the Prime Minister emerged out of the pantry gate, Shri Narain Singh opened the umbrella over her and held the said umbrella in his right hand while the Prime Minister was moving towards No. 1, Akbar Road. At that time, when P.M. was moving towards No. 1, Akbar Road, Narain Singh was with her on the right side holding the umbrella over her while on the left side Shri R.K. Dhawan was moving besides her talking to her. I was following Shri R.K. Dhawan at that time. I was about two steps behind Shri R.K. Dhawan. As all of us came out of the jafri gate, I noticed that the TMC gate was lying open and Beant Singh SI in Safari suit was standing on our left side while Satwant Singh constable in uniform was standing on the right side of ours near the TMC gate. As we reached within about 10-11 feet of the TMC gate, Beant Singh took out his revolver and started firing on the Prime Minister. Imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s caused by Beant Singh and Satwant Singh from their respectively service revolver and SAF Carbine. It also appears that Beant Singh and accused Satwant Singh were apprehended by PW-9 Narain Singh HC and by the ITBP people. It has also been specifically stated by PW-9 in cross-examination that Satwant Singh did not sustain bullet injuries before Smt. Indira had been fired at. The suggestion on behalf of the defence that there was firing from all sides and accused Satwant Singh was1 injured seriously and Beant Singh died by this firing has got no basis and it is unsustainable. PW-49 Ganga Singh, L/Naik of lTBP stated in his deposition to the following effect: On 31.10. 1984 I was posted on duty at No. 1, Safdarjang Road from 6 A.M. to 2. P.M. near the main gate in guard room. At 9.15 A.M. I heard sound of firing of bullets from the TMC gate. I along with Shri Tersem Singh, Padam Singh, Jai Chand, Daya Nand thereupon took our carbines and went towards TMC gate running. We found Prime Minister Madam lying in injured condition on the floor. Near the gate there were two Sardars in white cloths, again said one was in civil dress and the other was in uniform. The uniformed Sardar is pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd this entry is confirmed by PW-15, the daily diary clerk at Teen Murti Line. He deposed that entry No. 85 in Ex. PW l4/A is in his hand and is correct. He also stated that the accused Satwant Singh was put on duty at Beat No. 4, Akbar Road in the P.M. House and not at TMC gate and he was given arms as per Koth register. The arms and ammunitions register (Ex. PW 3/A) at Teen Murti Line shows that Satwant Singh was issued a SAF Carbine (sten-gun) having Butt No. 80 along with 5 magazines and 100 live rounds of 9mm ammunition and that he signed the register in token of its receipt. Therefore this goes to show the presence of the accused Satwant Singh at the TMC gate in the P.M. house at I, Akbar Road on duty from 7.30 A.M. on 31.10.1984 with a SAF Carbine Butt No. 80. There is therefore no iota of doubt that the accused No. 1,Satwant Singh was present at the TMC gate at No. 1, Akbar Road on the fateful morning i.e on 31.10.1984. It is to be noted in this connection that the duty of accused Satwant Singh constable was placed at beat No. 4, Akbar Road House on 31.10.1984 as is evident from entry No. 85 in the Rojnamcha i.e. daily diary kept at Teen Murti Line but he in conspiracy with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s always open to the court to convict and accused on his confession itself though he has retracted it at a later stage. Nevertheless usually Courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case." In the instant case the confessional statements were corroborated by independent evidences which clearly prove the guilt of the accused. Therefore the charges against the accused Satwant Singh have been duly proved. The concurrent findings of the Trial Court as well as of the High Court that offences under Section 302 I.P.C. read with Section l2O-B, I.P.C. and Section 34 I.P.C. were proved, must be upheld. It is a gruesome murder committed by the accused who was employed as a security guard to protect the Prime Minister Indira Gandhi. It is one of the rarest of rare cases in which extreme penalty of death is called for. The charge of conspiracy has been elaborately dealt with in the judgments rendered by my learned brothers. It appears therefrom that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction or a wrongful acquittal may shake the confidence of the people in our justice delivery system. The matter, therefore, requires utmost concern. Trial of the assassin and conspirators for the murder of Mrs. Indira Gandhi has resulted in the conviction. Satwant Singh (A.1), Balbir (A-2) and Kehar Singh (A-3) are convicted of murder under section 302 read with Sectioin l20-B IPC. Satwant Singh is also convicted of murder under Section 302 read with Section 120-B and 34 IPC,as well as under Section 307 IPC and Section 27 of the Arms Act. The trial judge has awarded the sentence of death on all the three accused. The trial judge has also awarded other terms of imprisonment on Satwant Singh. The Delhi High Court has confirmed the conviction and sentence. The prosecution version of the assassination may be briefly told: That in June, 1984, the Indian Army mounted an operation known as "Blue Star Operation" by which the Armed Force personnel entered the Golden Temple Complex at Amritsar to flush out the armed terrorists. That operation resulted in loss of life and property as well as damage to the Akal Takht at the Golden Temple. It has offended the religious feelings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom his carbine. Beant Singh Fired five rounds and Satwant Singh released 25 bullets at Mrs. Gandhi. Then and there Mrs. Gandhi fell down never to get up. She was immediately rushed to the All India Institute of Medical Science (AIIMS). There a team of doctors fought their losing battle of save the life of the slain Prime Minister. Rameshwar Dayal (PW-10) who was following Mrs. Gandhi also received bullet injuries as a result of the shots fired by the accused. At the spot of the incident, the two assains PG NO 139 are alleged to have thrown their arms and said "I have done what I have to do. Now you do what you have to do." The personnel of the Indo Tibetan Boarder Police (ITBP) pounced on them and took them off to the guard room. What happened inside the guard room is not on the record. The fact, however, remains that both the assassins had been shot by the ITBP personnel. They were soon removed to the hospital where Beant Singh was pronounced dead and Satwant Singh was found to be critically injured. Satwant Singh survived after 15 days' treatment. He is accused No. 1 in this case. Balbir Singh and Kehar Singh are the other two accused. They are said to be parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has power to direct the trial of the case at a place other than the normal seat of the Court of Session? (ii) Whether the trial inside the jail premises is the very antethesis of an open trial? (iii) Whether the trial proceedings were devoid of sufficient safeguards to constitute a public trial? And (iv) Whether the Court's refusal to call for the statements made by certain prosecution witnesses before the Thakkar Commission was justified? I will deal with these questions in turn. Mr. R.S. Sodhi (amicus curiae) appeared for accused No. 1 and Mr. Ram Jethmalani, Senior Advocate, (amicus curiae) appeared for accused Nos. 2 and 3. Mr. G. Ramaswamy, Additional solicitor General appeared for the State. Both sides of the case have been placed before us with care and skill. Re: Question (i): Patiala House is the place where the Court of Session at Delhi shall ordinarily hold its sittings. On May 10, 1985, the Delhi High Court, however, issued a notification in exercise of the powers conferred by Section 9(6) of the Code of Criminal Procedure 1973 ("Code") directing that the session case relating State v. Satwant Singh and Ors., FIR, No. 241 of 1984 shall be h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sittings, wholly or partly, in any particular case lies within the power of the trial Judge. The trial Judge may exercise that power for the general convenience of parties and witnesses when agreed to by both the parties. The High Court did not accept these submissions. In substance, it was held that the actual location of a Court can be decided by the High Court either generally or with reference to a particular court or even with reference to a particular case if there is compelling reason. The High Court also said that the fact that it is done with reference to a particular case impairs nobody's fundamental right and is also not discriminatory, as no offender has a vested right to be tried at the usual seat of the Court of Session. PG NO 142 The High Court, in my judgment, is right in reaching the above conclusion. Section 9(6) provides: "Section 9. Court of Session: (6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification specify but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sitting at any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erstood by the company they keep. Section 9(4) and Section 194 of the Code are the closely related sections. They may also be examined in order to understand the true meaning of the word "place or places" in the first part of Section 9(4). Section 9(4) reads: "The Session Judge of the Session division, may be appointed by the High Court to be also an additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct." Section 9(4) empowers the High Court to appoint a Sessions Judge of one division to sit at such place or places in another division for disposal of cases. The High Court while so appointing need not direct him to sit only at the ordinary place of sittings of the Court of Session. There is no such constraint in Section 9(4). The High Court may also issue a separate notification under Section 9(6) specifying the place or places where that Session Judge should sit for disposal of cases. Section 194 provides: PG NO 144 "Additional and Assistant Sessions Judges to try cases made over to them. -An Additional Session Judge or Assistant Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place or places the Court of Session shall hold its sittings, but until such order is made the Court of Session shall hold its sittings as heretofore. It is contended on behalf of the accused that the Local Government has already issued a notification directing the Court of Session to be held at Alibag in certain months commencing on dates to be fixed by the Sessions Judge of Thana, and that the notification dated 5th February, 1931 does not direct any new place where the Court of Session should hold its sitting, and further that the notification does not order the Court of Session to hold its sitting at Alibag, but has directed a particular Additional Sessions Judge to hold the sitting of his Court at Alibag. Under s. 193(2) the Local Government had power to direct Mr. Gundil, the Additional Sessions Judge, to try this particular case. The previous orders of the Local Government were general orders under s. 9(2) and there is nothing in Sec. 9(2), to prevent a special order being passed directing at what place a Court of Session should hold its sitting. If by reason of an outbreak of plague or any other cause it becomes necessary or expedient that a Court of Session hold its sitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision is taken on these policy considerations and the question of giving a hearing to the accused before issuing the notification is totally out of place in such matters. These are matters which evidently have to be left to the good sense and to the impartiality to the Full Court in taking a decision in a particular case.'' It seems to me that the High Court of Delhi is also right in observing that it is unnecessary to hear the accused or any body else before exercising the power under Section 9(6). Such a hearing, however, is required to be given by the Court of Session if it wants to change the normal place of sitting, in any particular case, for the general convenience of parties and witnesses. From the foregoing discussion and the decision, it will be clear that the impugned notification of the High Court of Delhi directing that the trial of the case shall be held at Tihar Jail is not ultravires of Section 9(6) of the Code. PG NO 147 Re: Question (ii): It is argued that public trial is a fundamental requirement of the Constitution and is a part of the Constitutional guarantee under Article 21. A public trial in jail in the very nature of things is neither desirable n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic generally may have access, so far as the same can conveniently contain them. Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial or, any particular case, that the public generally, or any particular person, shall not have access or be or remain in, the room or building used by the Court." In Sahai Singh v. Emperor, AIR 1917 Lahore 311, the accused were convicted and sentenced in the trial held in a jail. Their conviction was challenged before the High Court at Lahore on the ground, amongst others, that the trial was vitiated because it was held in the jail. The High Court rejected the contention stating: "It is necessary that I should first mention a contention that the whole trial is vitiated because it was held in the jail. Counsel for some of the appellants has referred to s. 352, Criminal Procedure Code, but there is nothing to show that admittance was refused to any one who desired it, or that the prisoners were unable to communicate with their friends or Counsel. No doubt it is difficult to get Counsel to appear in the jail and for that reason, if for no other, such trials are usually undesira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timate trial. There can be trial in jail premises for reasons of security to the parties, witnesses and for other valid reasons. The enquiry or trial, however, must be conducted in open Court. There should not be any veil of secrecy in the proceedings. There should not even be an impression that it is a secret trial. The dynamics of judicial process should be thrown open to the public at every stage. The public must have reasonable access to the place of trial. The Presiding Judge must have full control of the Court house. The accused must have all facilities to have a fair trial and all safe-guards to avoid prejudice. ln the present case there is no reason to find fault with the decision of the High Court to have the trial in Tihar jail. The records show that the situation then was imperative. The circumstances which weighed with the High Court may be gathered from a letter dated May 8, 1985, addressed by the Home Secretary to the Registrar of the High PG NO 150 Court. The relevant portion of the letter reads: "The case is of very special nature and of utmost importance. The assassination of the late Prime Minister had provoked violence and secutiry of State besides the mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violence. The Army had to be deployed to stem the tide of deluge. The new Prime Minister, Mr. Rajiv Gandhi made an unscheduled broadcast to the Nation pleading for sanity and protection to the Sikhs. Nevertheless three days passed on with murder and loot leaving behind a horrendous toll of more than two thousand dead and countless property destroyed. It is a tragedy frightening even to think of. This has been referred to in the report (at 11 to 15) of Justice Ranganatha Misra Commission of lnquiry. These unprecedented events and circumstances, in my judgment, would amply justify the decision of the High Court to direct that the trial of the case should take place in Tihar Jail. Re: Question (iii): The question herein for consideration is whether the trial held in Tihar Jail was devoid of sufficient safeguards to constitute an open trial? As a preliminary to the consideration of this question, it is necessary to understand the scope of sec. 327(1) of the Code. The section provides: "Sec. 327. Court to be open: (1) The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic is suffered to attend, notwithstanding that those persons whose Presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether." The proviso to sub-sec. (1) of sec. 327 specifically provides power to the Presiding Judge to impose necessary constraint on the public access depending upon the nature of the case. lt also confers power on the Presiding Judge to remove any person from the court house. The public trial is not a disorderly trial. It is an ordinarily trial. The Presiding Officer may, therefore, remove any person from the Court premises if his conduct is undesirable. If exigencies of a situation require, the person desiring to attend the trial may be asked to obtain a pass from the authorised person. Such visitors may be even asked to disclose their names and sign registers. There may be also securty checks. These and other like restrictions will not impair the right of the accused or that of the public. They are essential to ensure fairness of the proceedings and safety to all concerned. PG NO 153 So much as regards the scope of public trial envisaged under sec. 327(1) of the Code. There are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belong to people. They are as much human institutions as any other. The other instruments and institutions of the State may survive by the power of the purse or might of the sword. But not the Courts. The Court have no such means or power. The Courts could survive only by the strength of public confidence. The public confidence can be fostered by exposing Courts more and more to public gaze. There are numerous benefits accruing from the public access to criminal trials. Beth Hornbuckle Fleming in his article "First Amendment Right of Access to Pretrial Proceedings in Criminal Cases" (Emory Law Journal, V. 32 (1983) p. 618 to 688) neatly recounts the benefits identified by the Supreme Court of the United States in some of the leading decisions. He categorizes the benefits as the "fairness" and "testimonial improvement" effects on the trial itself, and the "educative" and "sunshine" effects beyond the trial. He then proceeds to state: "Public access to a criminal trial helps to ensure the fairness of the proceeding. The presence of public and press encourages all Participants to perform their duties conscientiously and discourag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is a Court-yard. This court-yard has direct access from outside. A visitor after entering the court-yard can straight go to the Court House. He need not get into the Jail Complex. This is evident from the sketch of the premises produced before us. It appears the person who visits the Court House does not get any idea of the Jail complex in which there are Jail Wards and Cells. From the sketch, it will be also seen that the building comprises of a Court-hall, Bar room and chamber for the Judge. The Court hall can be said to be of ordinary size. It has seating capacity for about fifty with some more space for those who could afford to stand. The accused as undertrial prisoners were lodged at Jail No. 1 inside the Jail complex. It was at a distance of about 1 km from the Court House. For trial purposes, the accused were transported by van. In the Court hall, they were provided with bullet proof enclosure. This is a rough picture of the Court House where the accused had their trial. For security reasons, the public access to trial was regulated. Those who desired to witness the trial were required to intimate the Court in advance. The trial Judge used to accord permission to such pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 157 ln view of the prevailing situation and peculiar circumstances, the hon'ble High Court has vide its order chosen the venue of trial. The only proper venue for a trial like this is jail. Even this learned Court would have opted for the same in view of the security risk nature of the crime, persons involved and keeping in view the other allied circumstances of the case. It was also stated, "that the case as is and product of misguided fundamentalism and terrorism. ln the prevailing atmosphere in the country, the accused as well as the witnesses are in grave danger of outside terrorists attacks and this has to be safeguarded. Transport of accused persons at set times from and to the jail is fraught with danger." The application of the accused and the objections thereof were considered and disposed of by order dated June 5, 1985. The relevant portion of the order reads: ".....There can be no dispute that public has a right to know but it is precisely for this purpose that National and International Press has been allowed to be present in the Court during the entire trial. The press is the most powerful watch dog of the public interest and, certainly, we in Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gencies whoever sought permission have been allowed to cover the day to day Court proceedings. The trial Judge in his order dated June 5, 1985 has specifically stated this. There can, therefore, be no doubt or dispute as to the adequacy of safeguards provided to constitute an open trial. Indeed, the steps taken by learned trial Judge are more than adequate to ensure fair trial as well as public trial. For the accused, it is argued that the people can assert their right of access to criminal trials in the exercise of their fundamental right guaranteed under Art. l9(1)(a) of the Constitution and they need not be under the mercy of the Court. It is also urgued that there shall not be any discrimination in the matter of public access to judicial proceedings and first come first served should be the principle no matter whether one is a press person or an ordinary citizen. The contentions though attractive need not be considered since no member of the public or press is before us making grievance that his constitutional right of access to the trial has been denied in this case. This Court PG NO 159 has frequently emphasized that the decision of the Court should be confined to the narrow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t closure was necessary. The public and the press were denied access to avoid adverse publicity. The closure was also to ensure that the defendants' right to a fair trial was not jeopardized. The Supreme Court addressed to the question whether the public has an independent constitutional right of access to a pretrial judicial proceedings, even though the defendant, the prosecution, and the trial Judge had agreed that closure was necessary. Explaining that the right to a public trial is personal to the defendant, the Court held that the public and press do not have an independent right of access to pretrial proceedings under the Sixth Amendment. Although the Court in Gannett held that no right of public access emanated from the Sixth Amendment it did not decide whether a constitutional right of public access is guaranteed by the first amendment. This issue was discussed in Richmond Newspaper Inc. v. Vir- ginia, 448 US 555 (1980). This case involved the closure of the court- room during the fourth attempt to try the accused for murder. The United States Supreme Court considered whether the public and press have a constitutional right of access to criminal trials under the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, the last question formulated earlier in this judgment, namely, whether the trial Court was justified in refusing to call for the statements of witnesses recorded by the Thakar Commission? For a proper consideration of the question, it will be necessary to have a brief outline of certain facts. Soon after the assassination of Mrs. lndira Gandhi, the Government of India, by Notification dated November 2O, 1984, constituted a Commission under the Commission of Inquiry Act, 1952 (the "Act"). The Commission was presided over by Mr. Justice M.P. Thakkar, the sitting Judge of this Court. The Commission was asked to make an inquiry with respect to the matters: (a) the sequence of events leading, and all the facts relating to, the assassination of the late Prime Minister; PG NO 162 (b) whether the crime could have been averted and whether there were any lapses of dereliction of duty in this regard on the part of any of the commission of the crime and other individuals responsible for the security of the late Prime Minister; (c) the deficiencies, if any, in the security system and arrangements as prescribed or as operated in practice which night have facilitated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the House of the People or. as the case may be, the Legislative Assembly of the State, if it is sitting as soon as may be after the issue of the notification, and if it is not sitting, within seven days of its reassembly and the appropriate Government shall seek the approval of the House of the People or, as the case may be, the Legislative Assembly of the State to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People or as the case may be, the Legislative Assembly of the State makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect, as the case may be." On May 15, I986, the Central Government issued a notification under sub-sec. (5) of sec. 3 stating: "The Central Government, being satisfied that it is not expedient in the interest of the security of the State and in the public interest to lay before the House of the People the report submitted to the Government on the 19th November, l98S, and the 27th February, ]986, by Justice M.P. Thakkar, a sitting Judge of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of statement made by any person before the Commission. The High Court held that the evidence before the Commission is wholly inadmissible in any other Civil or Criminal Proceedings except for Prosecuting the person far perjury. The principal submission before us is that the High Court has misconstrued the scope of sec. 6 of the Act and misunderstood the obrervationsin Dalmia's case. It is also contended that the observation in Dalmia's case cannot be PG NO 165 regarded as a binding precedent since this Court was not called upon therein to examine the true scope of sec. 6. It is true that the scope of section as such did not come up for consideration in Dalmia's case. Das, CJ., while examining the challenge to the validity of the Act and a notification issued there-under made some observations as to matters of principle (294-295): "The whole purpose of setting up of a Commission of Inquiry consisting of experts will be frustrated and the elaborate process of inquiry will be deprived of its utility if the opinion and the advice of the expert body as to the measures the situation disclosed calls for cannot be placed before the Government for consideration notwithsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 91 and 233 of the Code. Let us turn to consider in detail the language of the Critical section. Section 6 provides: "No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in any civil or criminal proceedings except a prosecution for giving false evidence by such statement . xx xx xx xx xx xx xx. Dissecting the section, it will be clear that the statement made by a person before the: Commission, in the- first place shall not be the basis to proceed against him. Secondly, it shall not be 'used against him' in any subsequent civil or criminal proceedings except for the purpose set out in the section itself. The single exception provided thereunder is a prosecution for giving false evidence by such statement. The term "used against" has given rise to controversy. the Bombay High Court in (i).Sohan Lal v.State, AIR I966 Bom I and (ii) State of Maharashtra v. Ibrahim Mohd., [1978] Criminal L.J. 1157 has regarded the observations in Dalmia's case as an obiter. It was held: "Whether a particular statement made by a witness before the Commission is used "against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to some general observations by way of approach to the questions of construction of statutes. In the past, the Judges and lawyers spoke of a 'golden rule' by which statutes were to be interpreted according to grammatical and ordinary sense of the word. They took the grammatical or literal meaning unmindful of the consequences. Even if such a meaning gave rise to unjust results which legislature never intended, the PG NO 168 grammatical meaning alone was kept to prevail. They said that it would be for the legislature to amend the Act and not for the Court to intervene by its innovation. During the last several years, the 'golden rule' has been given a go bye. We now look for the 'intention' of the legislature of the 'purpose'of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our Paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure to be followed by the Commission. The Commission is given power to regulate its own procedure and also to decide whether to sit in public or in private. The Statement of Objects and Reasons of the original Act reads: "It is felt that there should be a general law authorising Government to appoint an inquiring authority on any matter of public importance, whenever considered necessary, or when a demand to that effect is made by the legislature and that such law should enable to inquiring authority to exercise certain specific powers including the powers to summon witnesses, to take evidence on oath, and to compel person to furnish information. The bill is designed to achieve this object It will be clear from these provisions that the Act was intended cover matters of public importance. In matters of public importance it may be necessary for the Government to fix the responsibility on individuals or to kill harmful rumours. The ordinary law of the land may not fit in such cases apart from it is time consuming. The Commission under our Act is given the power to regulate its own procedure and also to decide whether to sit in camera or in public. A Commission appointed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Act shall n of be excused from answering any question put to him no the ground of any privilege or on the ground that the answer thereto may criminate or tend to criminate himself. Provided that no evidence taken under this Act shall this Act shall be admissible against any person in any civil or criminal proceeding except in the case of u witness accused of having given false evidence in any inquiry under this Act . . . . . " (Emphasis supplied) PG NO 171 Section 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921, provides: "A witness before any such tribunal shall be entitled to the same immunities and privileges as if he were a witness before the High Court or the Court of Session.'' Section 9 of the Special Commission Act, 1888 protects the witness in every respect except in a prosecution for giving false evidence by such statement. It provides that the evidence given by him shall be inadmissible in any civil or criminal proceedings. Section 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921 provides only a limited or partial immunity to a witness. It is similar to the immunity afforded to a witness before the High Court or the Court of Session. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislations of Canda. Australia and India and sec. 9 of the Special Commission Act, l988 The Commission has stated that the immunity provided to witnesses under sec. 1(3) of the Act, l92l is insufficient for the purpose of advancing the object of the Act. It should be extended so that the statement of a witness before the Tribunal shall not be used against him in any subsequent civil or criminal proceedings except in a prosecution for perjury by giving false evidence before the Tribunal. The extension of such immunity, according to the Royal Commission, would bring sec l(B) of the Act, 1921 into line with the similar provisions in the legislations of Canada, Australia and lndia. The legislation in India is the Commission of Inquiry Act. 1952 with which we are concerned. It is apparent that the Royal Commission was of opinion that sec. 6 our Act provides complete Protection to witnesses in terms of sec. 9 of the- Special Commission Act,. 1888. It means that the statement given before a Commission shall not be admissible against the person in any subsequent civil or criminal proceeding save for perjury. There is. therefore, much to be said for the observation made in Dalmia's c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence if excluded from vision, would negate the prosecution case or substantially discredit or impair it or; fourthly, some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded or wrongly discarded. Bearing in mind these principles, let me take up the case of Balbir Singh (A-2) first for consideration: PG NO 174 Balbir Singh. He was an officer of the Delhi Police in the cadre of Sub-Inspectors. He was posted on duty at the PM's residence. He was not on duty in the morning of October 31, 1984. His duty was to commence in the evening on that day at the in- gate of Akbar Road. When reported for duty, in the usual course, he was asked or go to the security police lines. At about 3 a.m. on November 1, 1984, he was awakened from his sleep and his house was searched by SI, Mahipal Singh (PW 50), Constable Hari Chand (PW 17) and Inspector Shamshir Singh. Nothing except a printed book on Sant Bhindrawala (Ex. PW l7/A) was recovered. At about 4 a.m., he was taken to Yamuna Velodrome. He was kept there till late in the evening when he was released from. what Kochar (PW 73) says. 'de facto custody'. On December 3, l984, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y when he was taken to Yamuna Velodrome on November 1, l984. He was not absconding and the question of absconding did not arise when he was not released at all. No question was put to him under sec. 313 examination that he had absconded. It is argued that the conclusions of the High Court on all these matters are apparently unsustainable. Before examining these contentions, it will be better to dispose of the point common to this accused and Kehar Singh (A-3) relating to the validity of sentence of death awarded to them. It is urged that there was no charge against the accused under sec 109 of the IPC and without such a charge, they are liable to be sentenced only for the offence of abetment and not for the murder. Reliance is placed on the provisions of sec. 120-B IPC which provides, inter alia that a party to a criminal conspiracy shall be punished in the same manner as if he had abetted such offence. The contention. is really ill-founded. It overlooks the vital difference between the two crimes; (i) abetment in any conspiracy, (ii) criminal conspiracy. The former is defined under the second clause of sec. 107 and the latter is under sec. 120-A. Section 107, so far as it is rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sec. 120-B for which a charge under sec. 109 IPC is unnecessary and indeed, inappropriate. The following observation of Das, J., in Pramatha Nath Taluqdur v. Saroj Ranjan Sarkar. [1962] (Supp) 2 SCR 297 at 320 also supports my view: "Put very briefly, the distinction between the offence of abetment under the second clause of s. 107 and that of criminal conspiracy under s. 120-A is this. In the former offence a mere combination of persons or agreement between them is no enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for: in the latter offence the mere agreement is enough, if the agreement is to commit an offence. So far as abetment by conspiracy is concerned the abettor will be liable to punishment under varying circumstances detailed in ss. 108 to 117. It is unnecessary to detail those circumstances for the present case. For the offence of criminal conspiracy it is punishable under s. 120-B." This takes me back to the other contentions specifically urged on behalf of Balbir Singh. Of the evidence relied upon by the prosecution, the document Ex. PW 26/B is said to be the most impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legation. Nobody has been asked to search him. No police party has been sent to track him. No procedure contemplated under law has been taken. Second, there is no evidence from which place the accused came and landed at Najafgarh Bus Stand. Kochar (PW 73) has deposed that he had secret information at 2PM on December 3, 1984 that the accused was likely to visit Najafgarh Bus Stand. He went along with Sant Ram (PW 35), Sub-Inspector of Crime Branch. There they saw the accused at the Bus Stand. Before he was arrested, Kochar personally interrogated him at the electricity office near the Najafgarh Bus Stand. The interrogation went on for more than one hour. Yet, Kochar could not locate the place from where the accused came to Najafgarh Bus Stand. Upon arrest, it is said that the police have recovered certain articles including Ex. PW 26/B under the seizure memo (Ex. PW 35/A). But there is no independent PG NO 179 witness for the seizure memo. Third, no question as to absconding was put to the accused in the examination under sec. 313 of the Code. What was put to him under question No. 52 was that he had remained absent from duty from November 4, 1984 till December 3, 1984. That is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The document can be taken to be in the handwriting of Balbir Singh to avoid reference to unnecessary evidence. But that in my opinion, does not advance the case of prosecution. The document is a sheet of paper in which we find the following entries: "June 1984 - Army operation - felt like killing - Put on duty outside No. 1 S.J. Road against at - Dalip Singh No. 1 S.J. Road - Proceeded on leave for 30 days July 1984 - Dalip & Varinder Singh visited my house, - Dalip took me to Gurbaksh's house where Santa Singh also met. - Dalip Singh 8r Gurbaksh visited my house Mavalankar Hall - Went to Ghaziabad - I visited Gurbaksh Singh's house-for Hemkunt - I visited Gurbaksh Singh's house.-" - Back from leave August 1984 - Met Amarjit Singh & Beant Singh - Dalip Singh Virender Singh etc. met at Bangala Sahib - Mavalankar Hall/Gurupurab at Bangla Sahib 3rd Week - Harpal Singh/Virender - Beant Singh/Eagle meeting at - Beant Singh decision to start constructive work PG NO 181 September 1984 - Visited Gurbaksh Singh's house-Dalip & a boy Narinder Singh/Virender - Leave for 4/5 days 26 - 1000 Visited Gurbaksh's house & learned about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a joint 'Ardas' or a message for revenge associated with the appearance of eagle. The entry does not suggest that the author had anything to do with the eagle. It is something between Beant Singh alone and the eagle. It is significant that there is no reference to Beant Singh and his plans to murder the Prime Minister. There is no reference to bombs or grenades associated with the plans to eliminate the Prime Minister before the 15th August, 1984. There is no reference to any commission of any offence. There is no reference about Beant Singh conspiring with Balbir Singh. There is no reference to Kehar Singh at all. If Balbir Singh was a party to the conspiracy with Beant Singh, the date on which Beant Singh had placed the murder of Mrs. Gandhi, that is, 25 October, I984 as written in Ex.P.39 ought to have been noted in Ex. PW Z6/B. We do not find any reference to that date. There is a cryptic reference to Satwant Singh against 30th October and it must be with reference to the evidence of Constable Satish Chander Singh (PW 52) whose evidence no Court of law could believe. PW 52 was a Sentry in the Prime Minister's security. According to him, Balbir Singh was on duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means or proving any such thing, and neither law nor common sense requires that it should be PG NO 184 proved. If you find that these two person pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, "Had they this common design, and did they pursue it by these common means-the design being unlawful?" It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to secs-120-A and 120-B IPC would make these aspects clear beyond doubt. Entering int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of sec. 10 of the Evidence Act, the relevancy of evidence in proof of conspiracy in India is wider in scope than that in English Law. Section 10 of the Evidence Act introduced the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co-conspirators. Section 10 reads: "10. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it." From an analysis of the section, it will be seen that sec. 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words. a prima facie evidence that the person was a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conspiracy and was receivable as a step in the proof of the conspiracy. They notice that evidence receivable under s. 10 of the Evidence Act of "anything said done or written, by one of such persons" (i.e., conspirators) must he "in reference to their common intention." But their Lordships held that in the context (notwithstanding the amplitude of the above phrase) PG NO 187 the words therein are not capable of being widely construed having regard to the well-known principle above enunciated." In the light of these principles, the other evidence against Balbir Singh may now be considered. The High Court has summarised that evidence (leaving out of account the confession of Satwant Singh and the evidence of Amarjit Singh) as follows: "Summing up, then. the evidence against Balbir Singh, leaving out of account for the time being the confession of Satwant Singh and the evidence of Amarjit Singh, the position is as follows : He was an officer on security duty at the PM's house. He knew Beant Singh and Satwant Singh well. He shared the indignation of Beant Singh against Smt. Chandni for 'Operation Blue Star' and was in a mood to avenge the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o casual leave applications of Balbir Singh (Ex. PW Z6/E-I to E-5). I fail to see why taking of earned leave should assume importance. There is no material that Balbir Singh took earned leave for any sinister purpose or design. There is no evidence that during the said period, he met Beant Singh or anybody else connected with the conspiracy. It is, therefore, totally an innocuous circumstance. The High Court next said that Balbir Singh, on his return from leave, met Beant Singh and Amarjit Singh. No other specific meeting has come to light except the meeting referred to by Amarjit Singh (PW 44) which I will presently consider. The High Court lastly relied upon the act of offering 'Ardas' to falcon on its appearance at the PM's house in the first week of September, 1984. This is also from the evidence of Amarjit Singh (PW-44). Assuming that falcon did appear and sat on a tree ia the PM's house and that Beant Singh and Balbir Singh did offer 'Ardas' on the occasion. there is, as the High Court has observed. "nothing unusual or abnormal about the incident". The sanctity of the falcon as associated with the Tenth Guru is not denied. They offered 'A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Gandhi. I on recalling earlier talk realised on 24.11.I983 that the assassination of Mrs. Gandhi was the handywork of Shri Balbir Singh and Shri Kehar Singh. Then I went to Shri R. P Sharma who recorded my statement on 24.11.1984. It is correct that I recall things bit th bit. It is correct that there is a difference in my statement PW 44/DA and PW 44/DB. It is because many question were not put to me earlier and, therefore, I did not mention them in my first statement." He thus admits that there is difference between the first and second statements. But the High Court said that there is no improvement or after thought so as to implicate Balbir Singh. The approach of the High Court appears to be incorrect. Amarjit Singh (PW 44) states before the Court; ".... In the first week of August 1984, I had a talk with Beant Singh. Then he told me that he would not let Mrs. Indira Gandhi unfuri the flag on 15th August. Shri Balbir Singh also used to tell me that if he could get remote control bomb and his children are sent outside India, then he also could finish Mrs. Indira Gandhi. I used to think that he was angry and I used to tell him that he should not think in these terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot;advising, to kill PM. It is not clear who told him and when? Such a vague statement is of little use even to lend assurance to any acceptable case against Balbir Singh. In my judgment, the evidence produced by the prosecution against Balbir Singh is defective as well as deficient. It is safer, there-fore, to err in acquitting than in convicting him. Kehar Singh (A-3): Kehar Singh was an Assistant in the Directorate General of Supply and Disposal, New Delhi. The case against him is: That he was a religious tanatic. He had intense hate against. Mrs. Indira Gandhi for causing damage to the Akal Takhat by the "Blue Star Operation". He was in a position to influence Beant Singh. since he was the uncle of Beant Singh's wife called as `Poopha'. He converted Beant Singh and through him satwant Singh to religious bigotry. He made them to undergo "Amrit Chakhan Ceremony" on October 14, 1984 and October 24, 1984 respectively at Gurudwara, R.K. Puram, New Delhi. He also took Beant Singh to Golden Temple. Amritsar on October 20, 1984. The prosecution, in support of the case that he was a party to the conspiracy to murder Mrs. Indira Gandhi, relied on the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n spoken to by Inder Bir Singh (PW 68). This incident has a story behind. In the newspaper `Tribune' dated November 25, 1994, there was an article (Ex.D.62/ X) written by certain Prabhojot Singh. The article goes by the headline `Profile of an Assassin'. It was written therein: "There was a sudden transformation in the thinking of Beant Singh after the Army action. He started accompanying his uncle Kehar Singh, an Assistant in the office of the Director General Supplies and Disposal to Gurudwara Moti Bagh. In July, a noted Ragi from Punjab performed "virag katha" at the Gurudwara. Beant Singh was moved and reportedly starting crying. It was at this stage, Kehar Singh him not to cry, but to take revenge"," PG NO 193 The investing agency has admittedly secured that Newspaper well time. It was preserved i their office file. K. P. Sharma (PW 70) has deposed to this. But he examined PW 68 only on July 3, 1985, that is after the accused were committed to take their trial. It is said that the news item in Tribune is very vague and despite the best efforts, none except PW 68 could be secured till july 3. This is unacceptable. The said article furnished su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... something secret". There, then, she enquired from Kehar Singh ,,as to what they were talking thereupon'?" Kehar Singh replied that the talks were ''with regard to making somebody to take Amrit". Bimla Khalsa remarked: "that taking Amrit was not such a thing as to talk secretly." She was perfectly right in her remark. There cannot be a secret talk about Amrit taking ceremony. It is a religious function. Kehar Singh might have realised that it would be difficult to explain his conduct without exposing himself. He came with cryptic reply: "There was nothing particular". Bimla khalsa further deposed that in the same evening Kehar Singh took meals in her house alongwith her husband and Satwant Singh who later joined them. Apparently, Beant Singh did not like his wife enquiring about the exchange of secret information between him and Kehar Singh. On October 30, 1984, when they were in Amritsar, Beant Singh has asked his wife why she had questioned Kehar Singh as to what they were talking on the roof on October 17, 1984. It may be pertinently asked: Why did Kehar Singh and Beant Singh suppress the conversation? Why did Kehar Singh give suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same lnstitute also confirms that fact. Against this background, the visit to Amritsar assumes importance. On October 20, 1984, Kehar Singh and Kehar Singh and Beant Singh along with their family members went to Amritsar. There they stayed in the house of one Mr. M. R. Singh (PW 53). Bimla Khalsa states that they reached Amritsar at 2-3 YM and went to Darbar Sahib Gurudwara in the same evening. While ladies and children were listening to, kirtan, Beant Singh and Kehar Singh went to see the Akal Takhat. Bimla Khalsa wanted to accompany them to see the Akal Takhat, but she was told to see the same on the next morning. What Happened on the next day is still more curious. In the early hours. PW 53 was woken up by Kehar Singh and told that he would attend "Asa ki War-Kirtan" in Darbar Sahib. So stating, he went along with Beant Singh. The ladies and children were left behind. They went to Darbar Sahib, at 8 AM along with PW 53. They returned home at 11 AM and had lunch with PW 53. Beant Singh and Kehar Singh did not join them for lunch. nor they returned to that: house of PW 53. PW 53 took the ladies and children to, Railway Station to catch the train for the return journey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by itself may not have any sinister significance. lt is a religious ceremony and `Amrit' is taken only to `lead a life of spartan purity giving up all worldly pleasures and evil habits'. But, unfortunately, the assassins have misused that sacred religious ceremony for ulterior purposes. The post crime conduct of Kehar Singh is conclusive of his guilt.He was cognizant of all the details of the coming tragedy and waiting to receive the news on that fateful day. PG NO 197 That would be clear from the testimony of Nand Lal Mehta (PW 59) who was an office colleague of Kehar Singh. He has deposed that Kehar Singh had met him in the third floor corridor of the office at about 10.45 AM on October 31,1984. By that time, the news of the murderous attack on the Nation's Prime Minister came like a thunderbolt from a clear sky. The messenger had told that `somebody' had shot at Mrs. Gandhi. PW 59 then enquired from Kehar Singh' as to what had happened. Kehar Singh replied that "whosover would take confrontation with the panth, he would meet the same fate. " So stating, he went away. It may be noted that at that time, there was no specific information to the out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e up his duty at Beat No. 4. But he did not go to that spot. The case of the prosecution is that Satwant Singh had got exchanged his place of duty to carry out the conspiracy he had with Beant Singh to murder Mrs. Gandhi. But, on the other hand, the accused states that he had been `decoyed" to the TMC Gate by certain persons ; that he was injured by the cross firing; that the felI down and was not in a position to shoot the Prime Minister or anybody. The fact. however, remains that Satwant Singh got exchanged his place of duty with that of Deshpal Singh ( PW 43). It appears that one Head Constable Kishan Lal No. 1109 allowed the sentries to exchange their places since Singh was suffering from loose motions and TMC Gate being nearer to a latrine. So, Deshpal Singh took up position at Beat No. 4 while Satwant Singh TMC Gate. Three eye witnesses to the occurrence: (i) Narain Singh; (ii) Rameshwar Dayal; and (iii) Nathu Ram corroborate with each other on all material particulars. They had accompanied the Prime Minister on the fateful day. They were able to see vividly, describe correctly and indentify properly the persons who gunned down Mrs. Gandhi. Both the Courts below have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be seen that he had gone to the pantry, in the PM's house and got thermos flasks with water, napkins and glass. He was informed that the Prime Minister had an engagement with a T.V. Team at the Akbar Road premises. He went there and saw the T.V. Team. He met the gardner and asked for a `guldasta', but the gardner said that he would prepare and get it. In the meantime, he saw the Prime Minister coming out of the house and proceeding towards Akbar Road premises followed by Mr. R.K. Dhawan and others. He also joined the entourage. Rest of his evidence is identical in terms with that of Narain Singh (PW 9). According to him, he ran to shield Mrs. Gandhi, but was hit by bullets. undisputedly, he had suffered bullet injuries. He was admitted to the AIIMS for treatment. The Medico-legal Certificate (MLC) issued by the AIIMS (Ex. 10/DA) supports his version. No further corroboration is necessary to accept his evidence. Nathu Ram (PW 64) is also an eye witness. He was a dedicated servant of Mrs. Gandhi. He was always with Mrs. Gandhi not only when she was in power but also when she was out of power. His duty was to clean and dust the library- cum-bed room of the Prime Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Gandhi at the spot was not accidental, but consistent with their duties. There was no scope for mistaken identity since everything happened in the broad day light. Therefore, the evidence thus far discussed itself is sufficient to bring home the guilt to Satwant Singh on all the charges levelled against him. If necessary, the records contain evidence as to the identification of arms and ammunition entrusted to the assassins. I have already referred to the evidence relating to the sten-gun (Ex. P. 4) and ammunition delivered to Satwant Singh. The sten-gun along with 25 empties of the sten-gun was recovered from the place of incident under the seizure memo (Ex. PW 5/H). The revolver (Ex. P. 1) delivered to Beant Singh and 5 empties of the revolver were also collected at the spot. Dr. T.D. Dogra (PW 5) while conducting limited post-mortem examination has taken two bullets from the body of Mrs. Gandhi; one from injury No. 1 and the other from injury No. 2. These bullets along with the: arms recovered from the spot were sent for the opinion of D G.R. Prasad (PW 12), Principal Scientific Officer, Ballistic Division, GFSL, New Delhi. P.W. 12 has testified that the bullets recovered from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death sentence. Special reasons mean specific facts and circumstances obtained in the case justifying the extreme penalty. This Court in Bachan Singh v. State of Punjab, [1980] 2 SCC 684 has indicated certain guidelines to be applied to the facts of each individual case where the question of imposing death sentence arises. It was observed that in cases where there is no proof of extreme culpability the extreme penalty need not be given. It may be given only in rarest of rare Cases, where there is no extenuating circumstance. In Machhi Singh v. Stare of Punjab, 11983] 3 SCR 413, this Court again indicated some principles as to what constitute ,,the rarest of rare cases" which warrant the imposition of death sentence. The High Court has carefully examined these principles and given reasons why in this case, the death sentence alone should be awarded. In my opinion, the punishment measured is deserved. There cannot be two opinions on this issue. The "Blue Star Operation" was not directed to cause damage to Akal Takhat. Nor it was intended to hurt the religious feelings of Sikhs. The decision was taken by the responsible and responsive Government in the national intere ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
