1988 Supreme(SC) 475

[LONG NOTE]
SUPREME COURT OF INDIA
G. L. Oza, K. Jagannatha Shetty and
B.C. Ray, JJ.
Kehar Singh and others- Appellants
versus
The State (Delhi Administration) - Respondent
Criminal Appeals Nos. 180 to 182 of 1987
Decided on 3-8-1988
Advocates Appeared
R. S. Sodhi (Amicus Curia e)-For the Appellant - Kehar Singh.
 Shri Ram Jeth Malani, Senior Advocate (Amicus Curiae) - For the Appellant-Satwant Singh and Balbir Singh.
G. Ramaswami, Additional Solicitor General-For the State.
For Citation : 1989 Crl. L.J. 1 = AIR 1988 SC 1883 = (1988) 3 SCC 609 = 1988 SCC (Crl.) 711

VERY IMPORTANT POINTS
1. Trial of Smt. Indira Gandhi Murder case in Tihar Jail does not infringe the right of the accused to have open public trial and is valid.
2. Confession of accused Satwant Singh in Smt. Indira Gandhi Murder Trial is admissible in evidence and can be relied on though not recorded in the manner prescribed under section 164, Cr. P.C. His guilt is also proved by, eye witnesses and other evidence even if his confession is not taken into account.
3. Guilt of accused Balbir Singh for criminal conspiracy to murder Smt. Gandhi with accused Beant Singh (deceased) or with accused Satwant Singh or with accused Kehar Singh has not been proved beyond reasonable doubt and thus entitled to acquittal.
4. Accused Kehar Singh was a co-conspirator to assassinate Mrs. Gandhi. His guilt is proved beyond any doubt.
5. Death sentence to accused Satwant Singh and accused Kehar Singh are valid and confirmed.

Headnote:Editorial Note-This is famous Smt. Indira Gandhi Murder Appeal to the Supreme Court against the judgment of Delhi High Court which was reported as a long note in 1987(1) Crimes 257 (Delhi) (F. B.). We are publishing its Head Note only in this issue for quick reference. The full judgment along with the head notes will be published in September, 1988 issue of Crimes in the order supplied in certified copies.]

       (i) Criminal Procedure Code, 1973-Section 194 - Additional and Assistant Sessions Judge to try case made over to them - Smt. Indira Gandhi Murder case tried by an Additional Sessions Judge, Tis Hazari Courts, Delhi, nominated by High Court under Section 194-Whether proper? (Yes)

       Held, the first part of the Section 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 tried by Additional or Assistant Sessions Judges appointed in the division but the last part of this Section also authorises the High Court to allot the case to a particular Judge keeping in view the 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 it may become necessary for the High Court to allot a particular case to a particular Judge. Thus, this objection is of no consequence.

       (ii) Criminal Procedure Code, 1973 - Section 9(6) - Vanue of Smt. Indira Gandhi Murder trial fixed in Tihar Jail. Delhi by Delhi High Court by a notification under - Whether Sessions trial held in Tihar Jail after such notification is according to law? (Yes)

       Held, whatever be the terms of the notification, it is not disputed that it is a notification issued by the Delhi High Court under section 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 be 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 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.

       (iii) Criminal Procedure Code, 1973- Section 327 (Section 352 of the old Code) Court to be open-Constitution of India -Article 21-Holding of Smt. Indira Gandhi Murder Trial in Tihar Jail-Representatives of Press permitted to attend on passes issued by Jail authorities-Whether trial ceased to be public and open and thus got vitiated? (No)

       Held, the language (of Section 327, Cr. P.C.) itself indicates that even if a trial is held in a private house or is held inside Jailor anywhere no sooner it becomes a venue of trial of a criminal case it is deemed to be in law an open place and everyone who wants to go and attend the trial has a right to go and attend the trial except the only restriction contemplated is number of persons which could be contained in the premises where the Court sits. It appears that the whole argument advanced on behalf of the appellants is on the basis of an assumption inspite of the provisions of Section 327 that as the trial was shifted from the ordinary place where the Sessions Courts are sitting to Tihar Jail it automatically became a trial, which was not open to public but in our opinion in view of Section 327 this assumption, the basis of the argument itself is without any foundation and cannot be accepted and argument on the basis of the foreign decisions loses all its significance. So far as this country is concerned the law is very clear that as soon as a trial of a criminal case is held whatever may be the place it will be an open trial. The only thing that is necessary for the appellant is to point out that in fact that it was not an open trial. It is not disputed that there is no material at all to suggest that anyone who wanted to attend the trial was prevented from so doing or one who wanted to go into the Court room was not allowed to do so and in-. absence of any such material on actual facts all these legal arguments loses its significance.

       (iv) Commission of Enquiry Act, 1951 - Section 6 - Evidence Act, 1872 - Section 145 read with Sections 155(3) and 157 - Thakkar Commission appointed to enquire into, inter alia, sequence of events and facts leading to assassination of Late Prime Minister Smt. Indira Gandhi and any conspiracy-Appellants i.e., accused before trial court whether were entitled to copies of statements of those prosecution witnesses who were, examined by Thakkar Commission.? (No) - Or summoning the Commission. Report? (No).

       (v) Postmortem of late Smt. Indira Gandhi- Question of a fuller postmortem whether was necessary? (No).

       (vi) Constitution of India, 1950 – Article 136 - Scope of appeal by Special Leave to Supreme Court - Whether Supreme Court cannot go into questions of fact con-currently recorded by court below?-. Principles stated.

       Held, that where the High Court has reached conclusions based on partly inadmissible evidence and partly on circumstances which are not justified on the basis of evidence, or partly on facts which are not borne out from the evidence on record it cannot be contended that in an appeal under Article 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 some of the findings of fact reached by the High Court could not be said to be such which are concurrent or conclusive. We were, therefore, put to the necessity of examining the evidence where ever it was necessary.

       (vii) Evidence Act, 1872 - Section 10 - Indian Penal Code, 1860-Sections 120A and 120B -Relevancy of evidence on conspiracy-Explained - Whether evidence led by prosecution in respect of conspiracy by Balbir Singh proves beyond reasonable doubt? (No)-Date of arrest On 3-12-84 not acceptable, recovery of document Ex. PW 26/B i.e. Memo of events prepared by him for this conspiracy doubtful - Nothing in this on the basis of which inference, of conspiracy may be drawn - Appearance of Felcon and offering of Ardas do not refer to conspiracy – Testimony of witness Amerjit Singh not reliable - No mention of this accused in testimony of Bimla Khalsa P.W.6- In absence of any evidence confession of co-accused Satwant Singh cannot be used against Balbir Singh – Result - Acquittal.

       (viii) Indian Penal Code, 1860 - Section 302 read with S. 120B-Conviction of Kehar Singh for conspiracy to murder Smt. Indira Gandhi-A relative (Phoofa) of Bimla. Khalsa evidence of P.W. 65. Bimla Khalsa wife of Beant Singh (deceased accused) - Circumstance of Vak" Hukamnama-Ujagar Sandhu Incident in her evidence - Incident of 17-10-84 - Trip to Amritsar - Amrit Chakhan ceremony-Recovery of golden Kua and Ring of Beant Singh from house of Kehar Singh-Post crime conduct of Kehar Singh - Whether indicates that Kehar Singh was a co-conspirator to assassinate Mrs. Gandhi? –(Yes)

       Held, to sum up: His close and continued association with Beant Singh; his deliberate attempt to exclude Mrs. Bimbla Khalsa from their company and conversation; his secret talk with Beant Singh followed by taking meals together with Satwant Singh; his keeping the gold Kara and ring of Beant Singh and his post crime conduct taken together along with other material on record are stronger as evidence of guilt than even direct testimony. I agree with the conclusion of the High Court that Kehar Singh was one of the conspirators to murder Mrs. Gandhi, though not for all the reasons stated.

       (ix) Indian Penal Code 1860-Section 302 read with sections 1208, 34 and 307 and section 27 of Arms Act-Conviction of Sat want Singh under for assassinating Mrs. Gandhi - His crime pre-conduct-Testimony of eye witnesses corroborated by F.I R. - Post-mortem, report and recovery of ballets tallied with Arm. Guilt proved even if confession not taken into account.

       (x) Indian Penal Code, 1860 – Sections 302 read with section 120B - Death sentence to Sat want Singh and Kehar Singh for assassinating Mrs. Gandhi and conspiracy to assassinate her-Whether proper? (Yes)

       Held, then is the question of sentence, which was argued to some extent. But it must be clearly understood that it is not a case where X is killed by Y on Some personal ground or personal vendatta. The person killed is a lady and no less than the Prime Minister of this Country who was the elected leader of the people. In our country we have adopted and accepted a system wherein change of the leader is permissible by ballet and not by bullet. The act of the accused not only takes away the life of popular leader but also undermines our system, which has been working so well for the last forty years. There is yet another serious consideration. Beant Singh and Satwant Singh are persons who were posted on the security duty of the Prime Minister. They are posted there to protect her from any intruder or from any attack from outside and, therefore, if they themselves resort to this kind of offence, there appears to be no reason or no mitigating circumstance for consideration on the question of sentence. Additionally, an unarmed lady was attacked by these two persons with a series of bullets and it has been found that a number of bullets entered her body. The manner in which mercilessly she was attacked by these two persons on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. In this view of the matter, even the conspirator who inspired the persons who actually acted does not deserve any leniency in the matter of sentence. In our opinion, the sentence awarded by the trial court and maintained by the High Court appears to be just and proper.

       Finally held; in the light of the discussions above Criminal Appeal No. 180/87 filed by accused Kehar Singh and Criminal Appeal No. 182/87 filed by accused Satwant Singh are dismissed. Conviction and sentence passed against them are maintained whereas Criminal Appeal No. 181/87 filed by Balbir Singh is allowed. Conviction and sentence passed against him are set aside. He is in custody. He be set at liberty forthwith, if not wanted in connection with any other case.

       (xi) Criminal Procedure Code, 1973 - Sections 164 and 463 - Whether the confession of accused Satwant Singh being not made, in the manner prescribed under section 164 of Criminal Procedure Code is admissible in evidence and whether the same can be relied upon? (Yes)

       Held, 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 a 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 made voluntarily then the confession will be recorded by the Magistrate. The compliance of 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 Criminal Procedure provides that where the questions and answers regarding the confession have not been recorded evidence can be adduced to prove that in fact the requirements of sub-section (2) of Section 164 reah with Section 281 have in fact been complied with. If the Court comes to a finding that such a compliance had in fact been made the mere omission to record the same in the proper form will not render it inadmissible evidence and the defect is cured under Section 463 (Section 533 of the old Criminal Procedure Code) but when there is non-compliance of the mandatory requirement of S. 164(2), Criminal Procedure Code and it comes out in evidence that no such explanation as envisaged in the aforesaid sub-section has been given to the accused by the Magistrate, this substantial defect cannot be cured under Section 463, Criminal Procedure Code.

       Held further, in the instant case the accused, Satwant Singh who was in police custody was produced before the Magistrate Shri S. L. Khanna .on 29-11-1984. On that day the accused made an application (Ext. PW 11/A) stating that he wanted to make a statement about the facts concerning Indira Gandhi Assassination Case. The Magistrate directed the remand of the accused in judicial custody till 1-12-1984 giving the accused time to reconsider and reflect. The Magistrate also told him that he was not bound to make any statement and if any statement is made the same might be used against him. The Magistrate also directed to send a letter to the. Secretary. Legal Aid Committee to provide legal assistance to the accused at the expense of the State. On 1-12-1984, the Magistrate enquired of the accused whether he wanted to make a statement whereon the accused stated that he wanted to make a statement. He was allowed to consult his counsel, Shri I. U. Khan, Advocate who conferred with him for about 15 minutes privately. As the accused insisted that his statement be recorded, the application was sent by the Magistrate, Shri S. L. Khanna to the Link Magistrate, Shri Bharat Bhushan for recording his statement. Before recording his statement Dr. Vijay Kumar was called to examine the accused. Dr. Vijay Kumar stated in his report (Ext. P.W. 11/B) that in his opinion the accused is fit to make his statement. It appears from Ext. P.W. 11/B-2 as well as from the questions and answers which were put to the accused (Ext. P.W. 11/B-3) that the Link Magistrate, Shri Bharat Bhushan warned the accused that he was not bound to make any confessional statement and in case he does so it may be used against him during trial. The accused in spite of this warring wanted to make a statement and thereafter the confessional statement Ext. PW 11/C was recorded by the Link Magistrate. In the certificate appended to the said confessional statement it has been stated that there was no pressure upon the accused and there was neither any police officer nor any body else within the hearing or sight when the statement was recorded. Therefore, it appears that 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. P.W. 11) that the confessional 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 164(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.

       [1987(1) Crimes 257 (Delhi) (Long Note) Partly reversed and partly confirmed.]