1992 Supreme(SC) 438

SUPREME COURT OF INDIA
A.M. AHMADI AND K. RAMASWAMY, JJ.
State of Maharashtra, Complainant
Versus
Sukhdeo Singh and another, Respondents
Death Reference Case No. 1 of 1989 with Criminal Appeal No. 17 of 1990, D/-15-7-1992.
WITH
State of Maharashtra Through C.B.I., Appellant
Versus
Sukhdev Singh alias Sukha and others, Respondents

Headnote:(i) Indian Penal Code, 1860 - Sections 302 and 302/34 - Death sentence awarded by the trial court on two accused for their role in the assassination of Gen. A.S. Vaidya, former Chief of the Armed Forces - Death Reference Homicidal death - According to medical evidence death was due to shock suffered following gun shot injuries. Testimony of three persons who can be described as witnesses to the main incident, namely, the securityman, the wife of the deceased and the cyclist - Accused No.5 has in his statement recorded u/s 313 Cr. P.C. admitted the fact that it was he who was driving the motor cycle with accused No.1 on the pillion seat when Gen. Vaidya was shot down. He has further stated that accused No.1 and he killed Gen. Vaidya as he had attacked and destroyed the Akal Takht in the Golden Temple at Amritsar - Accused No.1 has also made a statement on similar lines admitting his involvement in the crime the fact that he had fired the fatal shots at Gen. Vaidya from the pillion seat - Identification of accused No.1 in Court, through photographs and by the eye-witnesses - Evidence on record to reveal that both accused No.1 and accused No.5 were acting in concert - They had common intention to kill Gen. Vaidya - Trial Court was justified in holding that accused No.1 was guilty u/s 302 and accused No.5 guilty u/s 302/34 of the Code. (Paras 42 & 47)

       (ii) Evidence - Criminal Procedure Code, 1973 - Section 313 –Indian Penal Code, 1860Sections 302 and 302/34 - Conviction based on the plea of guilt - Whether sustainable? - (Yes, however, it is essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence).

       Held: The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the pica of guilt. Once these requirements are satisfied the law permits the Judge trying the case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea he must fix a dale for the examination of the witnesses i.e. the trial of the case. There is nothing in this Chapter which prevents the accused from pleading guilty at any subsequent stage of the trial. But before the trial Judge accepts and acts on that plea he must administer the same caution unto himself. This plea of guilt may also be put forward by the accused in his statement recorded under section 313 of the Code. In the present case, besides giving written confessional statements both accused No.1 and accused No, 5 admitted to have been involved in the commission of murder of General Vaidya. We have already pointed out earlier that both the accused have unmistakably, unequivocally and without any reservation whatsoever admitted the fact that they were responsible for the murder of General Vaidya. It is indeed true that accused No.1 did not name accused No.5 as the driver of the motor cycle, perhaps he desired to keep him out, but accused No.5 has himself admitted that he was driving the motor cycle with accused No.1 on the pillion seat and to facilitate the crime he had brought the motor cycle in line with the Maruti car so that accused No.1 may have an opportunity of firing at his victim from close quarters. There is, therefore, no doubt whatsoever that both accused No. 1 and accused No.5 were acting in concert, they had a common intention to kill General Vaidya and in furtherance of that intention accused No 1 fired the fatal shots. (Para 42)

       Further held: It is manifest from the written statements of both accused Nos. 1 and 5 and from their oral statements recorded under section 313 of the Code that they firmly believed that since General Vaidya was responsible for conducting operation Blue Star which had damaged a sacred religious place like the Akal Takht of the Golden Temple at Amritsar and had also hurt the religious feelings and sentiments of the Sikh community, he was guilty of a serious crime, the punishment for which could only be death, and, therefore, they had merely executed him and in doing so had not committed any crime whatsoever. As stated earlier it is on this notion that the accused continued to plead not guilty while at the same time admitting the fact of having killed General Vaidya. It may be mentioned that when the eyewitness account was put to him, accused No.1 admitted that he was the pillion rider who had fired four shots at General Vaidya. His answers to the various circumstances pointed out to him in his statements under section 313 of the Code reveal that he unhesitatingly admitted the entire eye-witness account and also owned responsibility for the crime. Even in his written statement Exh. 60A he admitted "Maine Vaidya Sabhko Mara Hain" meaning "I have killed Vaidya Saheb". So far as accused No.5 is concerned he too admitted the correctness of the eye-witness account of the incident leading to the ultimate death of General Vaidya. When he was asked if he had anything else to say, he referred to his statement Exh. 922 and admitted that it was in his own handwriting, its contents were correct and he had signed it. He also admitted that he was driving the motor cycle when his pillion rider fired at General Vaidya and injured him. It is in this background that we must examine the impact of their admissions in their statements under section 313 of the Code. (Para 38)

       Section 313 of the Code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words shall question him clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. The stage of examination of the accused under clause (b) of sub-section (1) of section 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under section 313, the learned Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After the section 313 stage is over he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. The learned trial judge is not expected before he examines the accused under section 313 of the Code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the court finds that no incriminating material has surfaced that the accused may not be examined under section 313 of the Code. If there is material against the accused he must be examined. In the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused No.5, and hence the learned trial judge was not justified in examining the accused under section 313 of the Code. (Para 40)

       (iii) Criminal Procedure Code, 1973 Section 313 - Statements made by the accused in his examination u/s 313 - will not be evidence stricto sensu - However, the statement can be taken-into consideration in an inquiry or trial. (Paras 41 & 42)

       (iv) TADA Act - Sections 3(2)(i) or (ii) and 3(3) r/w sub-rule (4) of rule 23 - Indian Penal Code, 1860 - Sections 120B, 468, 471, 419, 302 & 307 - Accused were charged for offences under the TADA Act alongwith the offences under the Penal Code - Procedure which the Designated Court must follow is the procedure prescribed in the Code for the trial before a Court of Session - Acquittal of accused for the offences under the TADA Act. Accused could be tried by the same Designated Court for the offences under the Code. (Para 44)

       (v) Death Sentence - Criminal Procedure Code, 1973 - Section 235 (2) - Indian Penal Code, 1860 - Sections 302 and 302/34 - Assassination of Gen. A.S. Vaidya - Both the accused had unmistakably, unequivocally and without any reservation admitted the fact that they were responsible for the offence - The accused had no remorse or repentance - In fact they felt proud of having killed Gen. Vaidya in execution of their plan - They had resolved to kill him as they considered him an enemy of the Sikh community. They were proud of their act and were prepared to sacrifice their lives for the article of their faith, namely, the realisation of their dream of a separate State of Khalistan - It is thus apparent that they had mentally prepared themselves for the extreme penalty - If they desired to place any material for a lesser sentence they had ample opportunity to do so- Requirements of section 235(2) have been satisfied in letter and spirit - No prejudice is shown to have occurred to the accused. (Para 46)

       (vi) Identification of Accused - Made for the first time in Court after a long lapse of time and that too of persons who had changed their appearance - Absence of test identification parade - It would be extremely risky to place implicit reliance on such an identification without corroboration.

       Held: That the direct evidence, if at all, regarding the identity of the persons who moved about in different assumed names is either wholly wanting or is of such a weak nature that it would be hazardous to place reliance there on without proper corroboration. As pointed out earlier the direct evidence regarding identity of the culprits comprises of (i) identification for the first time after a lapse of considerable time in Court or (ii) identification at a test identification parade. In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to rem em ber the person concerned, if the identification is made for the first time in Court. In the present case it was all the more difficult as indisputably the accused persons had since changed their appearance. Test identification parade, if held promptly and after taking the necessary precautions to ensure its credibility, would lend the required assurance which the court ordinarily seeks to act on it. (Para 19)

       (vii) Opinion Evidence - Handwriting Expert - Evidentiary value - Whether implicit reliance can be placed on the opinion evidence of the handwriting expert? - (It all depends on the character of the evidence of the expert and the facts and circumstances of each case) (Evidence Act - Section 73).

       Held: That evidence regarding the identity of of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the handwriting of such person or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis and (iii) by the court comparing the disputed document with the admitted one. In the present case the prosecution has resorted to the second mode by relying on the opinion evidence of the handwriting expert P.W. 120. But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court Should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility of the handwriting expert. It is indeed true that by nature and habit, over a period of time, each indivjdual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is, therefore, necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. There is no absolute rule of law or even of prudence which has ripened into a rule of law that in no case can the court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion. Before a court can place reliance on the opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his opinion are convincing and satisfactory. It is for this reason that the courts are wary to act solely on the evidence of a handwriting expert; that, however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer, the court will not act on the experts evidence. In the end it all depends on the character of the evidence of the expert and the facts and circumstances of each case. (Para 23)

       (viii) Indian Penal Code, 1860 - Section 120B - Criminal conspiracy to kill Gen. Vaidya - Prosecution has failed to provide missing links in the chain by seeking to establish the identity of the participants in the alleged conspiracy through the handwriting expert Acquittal recorded is legally sustainable. (Para)

       Result: Death Sentence confirmed. State Appeal against acquittal of other accused persons dismissed. Appreciation noted for the excellent assistance rendered by the learned advocates in the case. State of Maharashtra is directed to pay the outstanding amount of Rs. 24,000/- and a further sum of Rs. 20,000/- to advocates for rendering service as amicus curiae.