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(LONG NOTE)
DELHI HIGH COURT
S. Ranganathan, B.N. Kirpal and M. K. Chawla, JJ.
Murder Ref. No.2 of 1986
State
versus
Satwant Singh and 2 others
with
Criminal Appeal No. 28 of 1986 and
Criminal Misc. No. 1352 of 1986
Satwant Singh
versus
The State with
Criminal Appeal No. 29 of 1986 and
Criminal Misc. No. 1311 of 1986
Balbir Singh and another
versus
The State
Decided on 3.12.1986
1. INTRODUCTION
(Pages 3 to 31 of the Judgment)
(i) Indian Penal Code, 1860-Sections 120-B read with 302, 302 read with 120B and 34, 307-Arms Act, 1959 -Section 27-Conviction of accused for committing murder in pursuance to a criminal conspiracy and in furtherance to their common intention by unlawful use of fire arms-Preliminary background of the case (Para 1)-Tragedy and Investigation - Murder of Madam Indira Gandhi, the then Prime Minister of India, on 31.10.1984 at her Safdarjang Office-cum-residence by her own guards through gun shots from fire arms-(Paras 2 to 3)-Investigation done by a Special Investigation Team (Paras 4 to 7)-Prosecution case stated (Paras 8 to 9) - Trial by Shri Mahesh Chandra, Additional Sessions Judge, New Delhi - Convicted the accused for above offences and sentenced to death (Paras 10 to 13)-Appeals and references under sections 374(2) and 366, Criminal Procedure Code to High Court (Para 14)
(ii) Criminal Procedure Code, 1973 - Sections 366 and 374(2) - Appraisal of evidence in Death sentence reference and in Criminal Appeal against conviction - Complaint by accused that A.S.J. had failed to deal with a large number of objections raised - Criticisms leveled as to appraisal of evidence- In view of this whether re-appraisal of entire evidence necessary? (Yes) A.I.R. 1976 S.C. 76 and A.I.R. 1977 S.C. 2046 rel. on. (Para 15)
Held, we, therefore, proceed to consider not just the correctness or otherwise, of the judgment of the learned Additional Sessions Judge but to consider and discuss all the aspects and arguments addressed before us in great detail. (Para 15)
2. PRELIMINARY OBJECTIONS TO VALIDITY OF TRIAL
(Pages 31 to 138 of the judgment)
(a) Objections as to validity of Report under section 173, Criminal Procedure Code (i.e., to charge-sheet)
(i) Criminal Procedure Code, 1973-Sections 36 and 173-Charge-sheet signed by D. R. Gakhar, superior in rank in Police heirarchy to an Inspector viz. S.H.O - Whether signed by an incompetent person and was thus invalid? (No) A.I.R. 1980 S.C. 326 rel. on. (Paras 17 and 18)
(ii) All India Service Act, 1951 - Section 3 - Indian Police Service (Cadre) Rules, 1954 -Rule 4 - Criminal Procedure Code, 1973 - Sections 173, 190, 194 and 465 - Evidence Act 1872 - Section 57(7)-Delhi Police Act, 1978 - Sections 7, 8, 133 and 134 - Investigation and charge-sheet -Appointment of Special Officers for investigation of certain crime - Whether there is any defect in their appointment? (No) (Para 19)-Whether their appointment can be challenged as not shown gazettes? (No, need not be gazettes) (Para 20) A.I.R. 1974 S.C. 1822 rel. on for no invalidity in charge sheet by some defect or irregularity in appointment.
Held, we are therefore, of opinion that no defect in the appointments of the Investigation Officer has been shown to exist. We may add that, even if some defect or irregularity in the appointments is assumed, it will not, in view of the provisions contained in section 134 of the Delhi Police Act and sections 190 and 465 of the Criminal Procedure Code, invalidate the charge-sheet or any of the acts done by these officers in pursuance thereof or the trial. (Para 20)
(b) Objection as to designation of Judge under section 194, Criminal Procedure Code.
(i) Criminal Procedure Code, 1973 - Section 194 - Power of High Court to appoint a special Judge - Whether High Court can appoint only when District Judge cannot appoint for compelling reasons? (No, there is no such restriction) (Para 22)
(ii) Criminal Procedure Code, 1973 - Section 194 - Power of High Court to appoint a special Judge – When the High Court can exercise its powers - Held, not suo motu but when moved therefore by D.J., State or accused – Party moving, however, cannot apply for appointment of a particular judge. (Paras 23 and 24)
(iii) Criminal Procedure Code, 1973 - Section 194 - High Court appointing a special Judge for trial on a letter from Delhi Administration - No evidence that any particular name was suggested - High Court appointing a senior Additional Sessions Judge shortly due to retire, whose name was in consideration for elevation to High Court -Whether would vitiate the appointment? (No, otherwise experienced Additional Sessions Judge's would be precluded from conducting important trials). (Para 24)
(c) Objection to situs of trial-Section 9(6), Criminal Procedure Code.
(ii) Criminal Procedure Code, 1973 – Sections 9(6), 327 -Constitution of India Article 21 - Whether High Court can choose a particular venue of trial for a particular case under section 9(6)? (Yes) - Whether direction for venue of trial in Prison (Tihar Jail) offended the requirement of public trial or was unconstitutional? (No)-Whether a public trial is a part of the constitutional guarantee under Article 21? (assumed) (Paras 30, 51 and 39)
(ii) Criminal Procedure Code, 1973 - Section 9(6) - Shifting of venue of trial in the same town - Fails within administrative power of High Court - Whether any notification is required under section 9(6)? (No) - Publicity by notification is only to location of court in a particular town and not to shifting of the situs of a particular trial to another location in same town. (Para 30)
(iii) Criminal Procedure Code, 1973-Section 9(6) - Whether a D.B. of High Court on judicial side can consider a decision taken by its Full Court on the administrative side? (Yes) (Para 28)
(iv) Criminal Procedure Code, 1973 - Sections 9(6). 327-Constitution of India Article 21 - Scope of open trial - Held, right to open trial though vital and basic to proper administration of justice granted by Article 21 of Constitution nevertheless exceptions to thin rule can be made where open trial would defeat ends of justice. (Paras 48 to 50)
(v) Criminal Procedure Code, 1973-Sections 9(6), 327 -Shifting the venue of trial in jail - Trial Judge restricting the right of public access by passes - Whether within reasonable limits in public interest? (Yes)-Whether restriction on public to free access to court trial is void under Articles 14, 19 and 21 of Constitution? (No) (Para 55) - Was it an open trial? (Yes)
Held, that a trial (in jail) free access to which was allowed to, and availed of, by representatives of the press on large scale can hardly be denied its claim to be an open and public trial. (Para 57)
(vi) Criminal Procedure Code, 1973 - Sections 327, 46 and 465 - Open trial being conducted in the Tihar Jail -Whether language of section 465 is comprehensive enough to save any error or irregularity in its proceeding? (Yes) (Para 59)
Held, even very serious lapses can be condoned so long as no injustice bas resulted. (Para 60)
(vii) Criminal Procedure Code, 1973 - Sections 327 and 465 -Trial in Jail - Additional Sessions Judge re-scheduling days and hours on a day to day speedier trial - Whether any failure of justice has been occasioned by the order? (No)-Inconvenience of lawyers appearing - Whether can be allowed to determine the progress of trial? (No) (Para 64)
3. OBJECTIONS AS TO EXCLUSION OF EVIDENCE GIVEN BEFORE TRACKKAR COMMISSION (Pages 138 to 182)
(i) Criminal Procedure Code, 1973 - Section 91 - Evidence Act, 1872 - Sections 145 and I 57 - Commission of Enquiry Act, 1952 - Section 6 -Summon to produce documents under section 91 Criminal Procedure Code - Thakkar Commission appointed to probe into November 1984 riots after the murder of Mrs. Indira Gandhi - Accused's application to summon records of said commission refused by Additional Sessions Judge-Whether proper? (Yes) (Para 78)
Held, neither Justice Thakkar nor the report of the Thakkar Commission can be summoned under section 91, Criminal Procedure Code as evidence in the present case. Court can call for document only if it can constitute admissible evidence in trial or enquiry before it. Report of an enquiry commission is at best an opinion and not an admissible evidence in Court. (Para 74)
Held further, depositions of various witnesses before the Thakkar Commission can also not be summoned as section 6 of the Commission of Enquiry Act, 1952 makes it wholly inadmissible in evidence in any further proceedings.
Held also, use in the criminal trial of the statements made by witness before a commission of Enquiry may be used against accused for section 145, Evidence Act. (Para 81)
(ii) Criminal Procedure Code, 1973-Sections 173(5), (7) and 91 - Evidence Act, 1872-Sections 145, 157 -Commission of Enquiry Act, 1952 - Sections 3(4), 6, 8-Enquiry by Thakkar Commission held in camera its report notified to be exempt under section 3(4) of 1952 Act to be placed before Parliament.
Held, court trying a criminal case cannot call for its report or documents for said reasons otherwise court would indirectly make it public which is not to be done.
Held further, accused is not entitled to said documents under section 173(5) read with (7) of the Criminal Procedure Code. (Para 87)
4. CHALLENGE TO FORMAL (F.I.R.) AND TECHNICAL (MEDICO, BELLASTIC) EVIDENCE (Pages 182 to 253)
(a) First Information Report - Genuineness or the contemporary nature of F.I.R. Facts showing that it was lodged immediately after incident by most appropriate person Killing of one of the assailants not finding place in F.I.R.
Held, cannot affect the genuineness or the contemporary nature of F.I.R. that was in fact registered. (Para 79)
(b) Medico Legal Certificates (M.L.C's.) – Validity -Contemporaneous nature whether established? (Yes) - Doubts about condition of Mrs. Gandhi when she was brought - Whether unconscious or dead - Enquiry about her fitness to make statement - Whether creates doubt on the contemporaneous nature? (No) - Whether any adverse inference can be drawn as to doubt about time of death? (No) Time of death shown in M.L.C. only after attempts at resuscitation failed - Whether M.L.C. is vitiated on that count? (No) (Paras 90 and 91)
(c) Inquest and Post Mortem Reports (Ex. P.W. 4/A and 5/A)
(i) Criminal Procedure Code, 1973 - Section 114 - Punjab Police Rules, 1934 - Rules 25–35 - Inquest Report – Reliability Actual time of death not mentioned - Held, it was not relevant - Small discrepancy about presence of clotted blood, entry in CAO register and about number of inquest papers -Whether fatal? (No) (Paras 94 to 97)
(ii) Criminal Procedure Code, 1913 - Section 174 - Post Mortem Report - reliability -Anomalies and inconsistencies - Fatal injury whether points that any bullet was left in wound or that bullets had no blood on them? (No) (Para 99)-Number of Circular wounds - Whether point out that bullets were fired apart from the fire arms of the assailants? (No, because of absence of entry wounds on back of deceased) (Paras 101 and 102)
(iii) Evidence - Wounds - Circular wounds - Inference-Cannot be that wounds were necessarily entry wounds and not exit wounds. (Para 101)
(iv) Post Mortem Report -Reliability Fact that X-Ray Report not submitted Defence did not call for it - Non-submission is, therefore, not significant. (Para 105)
(d) Ballistic Evidence (of various firearms and Bullets)
(i) Finger prints - Absence of fingerprints of Satwant Singh on his sten-gun Ex P. 4-Whether fatal to prosecution? (No, as sufficient evidence to connect the weapon and accused Satwant Singh) -Contrary version of defence. (Para 111)
(ii) Opinion of Ballistic Report - Reliability - Few photomicrographs - Whether point out that he had done no proper examination of the fired bullets? (No) (Para 110)
(iii) Opinion of Ballistic Report - Similar weapons being handled by various security people - Whether would support the story that bullets on Mrs. Gandhi's body came from some other source than that of Sat want Singh? (No) (Para 122)
(iv) Injuries sustained by accused Satwant Singh -Whether property explained by prosecution? (Yes) (Para 125) Contrary version of defence- Ballistic report whether supports the version of the defence counsel? (No) (Para 126)
(e) Bullet Tally
(i) Bullets - Recovery far away from the place where Mrs. Gandhi was hit - Bullets alleged to have passed through her body with great velocity-Such possibilities existing on facts-Whether distant place of recovery of bullet can be doubted? (No) (Para 128)
(ii) Bullets- Ten bullets remained in body of deceased out of which only two, which caused death were recovered by post-mortem doctor- Whether of any unusual significance or strangeness about it? (No) (Para 129)
(iii) Bullets - Ballistic Expert's opinion linking bullets recovered from two fatal injuries to weapons used by the assailants - Its failure to account for the others whether affects the prosecution case? (No) (Para 131)
5. CASE AGAINST SATWANT SINGH
(Pages 253 to 410)
(A) Preliminary
(i) The three charges - (1) Murder of Smt. Indira Gandhi in pursuance to Criminal conspiracy and with common intention (Section 302 read with sections 12B/34, Indian Penal Code); (2) for the attempted murder of Rameshwar Dayal (P.W. 10) (under section 307, Indian Penal Code) (3) unlawful use of fire arms under section 27 of the Arms Act). (Para 134)
(ii) Evidence as to First Charge Indian Penal Code, 1860 - Section 302 read with section 120-B/34 - Evidence as to murder of Smt. Indira Gandhi by accused Satwant Singh in pursuance to criminal conspiracy with common intention- Formal evidence of Satwant Singh's presence with arms at TMC Gate - Evidence of three eyewitnesses and the witness who apprehended Satwant Singh after crime-Confession of Satwant Singh-Evidence of site plan, recoveries etc.-Medical and Ballistic evidence. (Para 135) -Considered in detail below:
(B) Evidence of Sat want Singh's presence with arms at the TMC Gate
(i) Formal evidence of his presence with arms at the gate he fired from - Daily Diary showed Satwant Singh put on duty at Beat No. 4 on the morning of 31.10.1984 at the TMC Gate armed with Stengun bearing Butt No. 80 (Ex. P-4) - There cannot be more than one weapon with the same Butt No., in the same unit.
(ii) Evidence from own confession of Satwant Singh -Pointing that he was on duty at TMC Gate at the relevant time from 7.30 A.M. on the fateful day - Whether there is any doubt regarding Satwant Singh's presence with arms at the TMC Gate at the fateful hour when the incident occurred? (No) (Para 136)
(C) Eye-witness No. 1 Narain Singh (P.W. 9)
(i) Appreciation of evidence of eyewitness (P.W. 9) - His presence established at site of occurrence as Head Constable on duty with umbrella on the deceased - Clearly marks out Satwant Singh as one of the two persons who fired at Smt. Gandhi at about 9.10 A.M. on 31.10.1984 - Possibility of some bullets missed-Whether can create any doubt that deceased was not killed from bullets fired by Satwant Singh? (No) (Para 138) - Criticisms pointed out by defence counsel - Held, were not convincing or sufficient to dislodge the evidence of P. W. 9. (Para 140)
(ii) Appreciation of evidence of eye witness P.W. 9 Narain Singh - Grievance as to order in which the witnesses were to be examined - Whether of any substance? (No) All medical evidence taken before the evidence of eye-witnesses- Certain medical witnesses though mentioned but not produced - Instead eye-witness allegedly interposed - Whether any prejudice caused to defence? (No, as remaining medical witnesses were not produced subsequently) (Para 141)
(iii) Appreciation of evidence of eyewitness P.W. 9 Narain Singh - Discrepancy as to what words were uttered by another assailant Beant Singh and non-mentioning of fact by witness that Beant Singh moved from his position-Whether of any consequence? (No) (Paras 142-43)
(D) Eye witness No. 2 Rameshwar Dayal P.W. 10
(i) Appreciation of evidence of eye witness P. W. 10-An ASI of Police on security duty at the P.M.'s residence established - Corroborating evidence of P.W. 9 - Injury caused to witness by bullet of assailants established - Actual extent of injury whether relevant? (No) - Discrepancy about number of bullets that bit the witness - Whether a serious one? (No) - Delay in getting forensic report on the aspect of injury to this witness - Whether creates any suspicion? (No, as P.M.'s injury was more important)-No mystery about the revolver of witness as suggested by defence (Para 146)
(ii) Appreciation of evidence of eyewitness P.W. to - Evidence regarding recovery of bullet - Recovery at the distance of 80 ft.- Fact established of close firing from the stengun of the accused, striking witness-Whether could carryover the said distance? (Yes) (Paras 147-49)
Held the evidence of P.W. 10 is trustworthy and it fully corroborates the testimony of P.W.9. (Para 150)
(E) Eye-witness No.3 Natha Ram (P.W. 64)
Appreciation of evidence of eye-witness P.W. 64 -Describing himself as library assistant but in fact the personal attendant to Mrs. Indira Gandhi - Failure to mention name of one of the persons present. viz, Lawang Sherpa in earlier statement-Whether of any significance? (No, as Lawang Sherpa was not a very important person) -Presence at spot as personal attendant duly explained-Corroborates testimony of other two eye-witnesses-Whether testimony of Natha Ram is also reliable and deserves acceptance? (Yes) (Para 154)
(F) Evidence of Ganga Singh P.W. 49 Lance Naik in ITBP Commando force - Witness coming to the scene immediately on hearing the voice of firing - Evidence as to apprehending of the assailants and seizure of their weapons of attack viz. Revolver and Stengun - Omission to mention names of some of the persons present and taking himself credit of apprehending the assistants - Held, is only natural in keeping with witness's nature of job as Commando and ordinary human Psychology. (Paras 155, 156 and 157)
(G) Summing up of Evidence of Three Eye-witnesses and Ganga Singh
Held, it is established from these eye-witnesses evidence Beant Singh and Satwant Singh fired at Mrs. Indira Gandhi from their revolver and Stengun. She was seriously injured by bullets fired from said revolver and Stengun which caused her death. They were on the spot in the course of discharge of their duties. These witnesses knew assailants and identified them. Version of witnesses is straight forward and mutually consistent - Minor discrepancies in their statements are not material. Further it is only rarely that any two witnesses agree on all details of an event, which they have jointly witnessed. (Para 158)
Held further, the evidence of Ganga Singh (P.W. 49) reinforces the evidence of eye-witnesses Ganga Singh is totally a credible witness.
Held finally, it is established beyond doubt that Satwant Singh shot at Mrs. Gandhi and vitally injured her on the morning of 31.10.84. (Para 159).
(H) Confession of Satwant Singh (Ex. P.W. 11/C)
(a) General - confession of Satwant Singh is only additional evidence to prove guilt by Prosecution in this case-Apart from self in culpatory also referring to other accused and the part played by them in relation to the offence - So important -Two limitations of the confession being acted upon pointed out. (Para 160)
Held, it is essential to bear in mind two important limitations to a confession being acted upon. The first of these is that the court must be fully satisfied that the confession is voluntary and true and the second is that, though a true and voluntary confession is admissible against the person making the confession and against his co-accused as well, courts are generally reluctant to act on confession (particularly if it is retracted) unless the material parts thereof are corroborated in material particulars by other independent evidence. (Para 161)
(b) Could Shri Bharat Bhushan (P.W. 11) have recorded the confession? (Yes)
Criminal Procedure Code, 1973 - Section 164(1)- Recording of confession of Satwant Singh accused-Shri Bharat Bhushan, a Link Magistrate, recorded the confession under direction from Shri S.L. Khanna Principal Magistrate- Whether according to law? (Yes)
Held, a Link Magistrate is competent to record confessional statement. "Link Magistrate" is an expression not defined in the Criminal Procedure Code but it is used to refer a Magistrate who is appointed to help or assist another Magistrate. A Link Magistrate is principally required only for recording a confession as if the Principal Magistrate himself does this he makes himself liable to be called as a witness in the case and may thus be considered to have disabled himself from dealing with the remand and other problems of that particular prisoner thereafter. Therefore, Bharat Boushan was a (Link) Magistrate duly empowered to record the confession of Satwant Singh. The delay in the receipt of the official communication by the Magistrate of his appointment as Link Magistrate did not on the facts vitiate the confession in any way. (Paras 162 and 163)
(C) Could the confession have been recovered in jail? (Yes)
(i) Criminal Procedure Code, 1973 - Section 164 - Evidence Act, 1872 - Sections 24 and 28-Recording of Confession in jail Propriety - Confession appearing to be voluntary and true-Whether its recording in jail alone would make it inadmissible? (No) (Paras 164 to 166)
(ii) Criminal Procedure Code, 1973-Section 164 - Recording of confession - Medical examination of accused done to satisfy the Magistrate that the accused was in a fit condition to make statement.
Held such medical examination is contemplated by para 5 (c) in Ch. 13 of the High Court's instructions. (Para 168)
(iii) Criminal Procedure Code 1973 - Section 164 - Evidence Act, 1872 - Sections 24 and 28 - Recording of confession -Allegation that Satwant Singh never made a confession he was merely asked to sign certain blank papers - That the Magistrate himself lent to manipulation by police - No strong convincing evidence in support of such a charge -Whether to be believed? (No)
Held, we are unable to accept the suggestion on behalf of the defence that Satwant Singh did not make any statement at all and that the whole of the alleged confession is a concoction of the police obligingly taken down by the Magistrate. (Para 168)
(D) Non-compliance with mandatory requirements in recording the confession
(i) Criminal Procedure Code, 1973-Sections 164, 463-Rules and order of the Punjab High Court Vol. III - Detailed instructions regarding recording of confession - Held, they are to be strictly followed. But too much importance should not be attached to their mere form. And too much significance also should not be attributed to some lapses or irregularities here and there in recording confession, if the court, otherwise, is satisfied that these irregularities and lapses have not affected true and voluntary nature of confession. (Paras 186 read with 172)
(ii) Criminal Procedure Code, 1973 - Section 164 - Evidence Act, 1872 - Sections 24 and 28 - Admissibility of confession -Not retracted at the earliest opportunity but so done after lapse of several months-Whether militates against the contention of the accused that it was recorded under the pressure of the police? (Yes) (Para 181)
Held, such circumstance would work in favour of confession being voluntary. (Para 183)
(iii) Criminal Procedure Code, 1973 - Section 164 - Evidence Act, 1872 - Sections 24 and 28 - Voluntary nature of confession - Remand to judicial custody for 48 hours -Legal aid provided to accused for giving confessional statement - Whether sufficient safe guards to ensure that the prisoner came forward to make the statement voluntarily? (Yes) (Para 185)
(iv) Criminal Procedure Code, 1973 - Section 164 - Evidence Act, 1872 - Sections 24 and 28 - Voluntary nature of confession - Whether to be in the sense of section 24 of the Evidence Act? (Yes)- Confession containing accusation against other accused - Whether motivated by the desire of the police to implicate them? (No) (Paras 186-187)
(v) Criminal Procedure Code, 1973 - Section 164 - Evidence Act, 1872 - Sections 24 and 28 - Was there every reason for Satwant Singh to decide to make a confession? (Yes) (Para 188)
Held, in view of the injuries sustained by him and in view of the fact that he had fired at Smt. Gandhi in the view of a large number of persons decides that be would put an end to his agony and suffering by confessing to his having shot at Smt. Gandhi and taking the consequences. (Para 188)
(vi) Criminal Procedure Code, 1973 - Section 164 - Evidence Act, 1872 - Sections 24 and 28 - Voluntary nature of confession - Prisoner a police constable - Whether can be presumed to know the consequences of making confession? (Yes) (Para 186)
(vii) Criminal Procedure Code, 1973 - Section 164 - Requirements of recording confession - Formal question as to why prisoner is making confession - Whether always necessary? (No) (Para 186)
Held finally, for the reasons discussed above in detail, we have reached the conclusion that the confession of Satwant Singh was made voluntarily and out of his own free will. (Para 190)
(e) Is it a Confession at all? (Yes)
Indian Penal Code, 1860 -Sections 302, 1208 and 34 -Criminal Procedure Code, 1973 - Section 164 - Test of confession Satwant Singh admitted to have fired shots at Smt. Indira Gandhi on 31.10.1984 - Is this a confession of an offence under section 302, Indian Penal Code? (Yes) (Para 193) - He also admitted the fact of his meeting with Beant Singh, the latter's request to him to change his duty spot and come to TMS gate on morning of 31.10.1984, his acting thereupon, the message given by Beant Singh on the morning of that day and his compliance therewith - Whether amounts to confession of offence of conspiracy under section 120B, Indian Penal Code? (Yes) - Is it necessary to adduce evidence of common intention of Satwant Singh and Beant Singh? (No)
Held, there is therefore, no doubt that this document constitutes his confession of the offence of both the murder and a conspiracy with Beant Singh (Para 193)
(f) Is it a retracted confession? (Yes)
Criminal Procedure Code, 1973-Section 164 - Confession of Satwant Singh recorded on 1.12.1984 - Application of Sat want Singh dated 6.5.1985 for retraction-Whether confession dated 1.12.1984 became a retracted confession? (Yes) (Para 194)
(g) Effect of retraction (of confession)
(i) Criminal Procedure Code, 1973 - Section 164 - Evidence Act, 1872 - Sections 24 and 28-Confession – Retraction -Effect of Principles - Whether Evidence Act prohibits court from taking into consideration retracted confession of the accused against confessing accused or against his co-accused? (No) (Para 196) - Case law referred - Principles gathered.
Held, it is permissible for court, inappropriate cases, when whole of the confession is tendered in evidence to believe one part of the confessional statement and disbelieve the other. The exculpatory part may be rejected and in culpatory part may be taken into consideration if there is above evidence to prove its correctness. (Paras 197 to 199).
(ii) Criminal Procedure Code, 1973 - Section 164 - Evidence Act, 1872 - Sections 24 and 28 - Indian Penal Code, 1860-Sections 302 read with 120B-Confession of Satwant Singh accused-Later retracted - Whether can form the basis to convict him under sections 302 read with 120B, Indian Penal Code? (Yes)
Held, in the light of the above principles, the confession of Satwant Singh can form the basis to convict him under section 302 read with section 120B as there is general corroboration of its contents from other independent sources such as the evidence of the eye-witnesses. The evidence regarding change of duties and the simultaneity of their shooting which clinch the case against him. The confession in so far as it relates to Kehar Singh and Balbir Singh has to be appraised differently and this will be done later. (Para 200).
(iii) Criminal Procedure Code, 1973 - Section 164 - Evidence Act, 1872 - Sections 24 & 28 -Effect of retracted confession of Satwant Singh accused - Sat want Singh's statement as to what happened on 25th October is exculpatory so can be discarded - But his confession so far as it concerns 31st October is severable and is inculpatory.
Held, can be taken into consideration as there is other evidence to prove its correctness. (Paras 201 to 203)
(h) Truth of the Confession
(i) Criminal Procedure Code, 1973 - Section 164 -Confession-When can be acted upon?
Held, to act on a confession, it is not enough that it has been voluntarily made, the court should also be satisfied that it is a true confession. (Para 204)
(ii) Criminal Procedure Code, 1973 - Section 164 - Truth of confession-How it can be ascertained?
Held, by examining it in detail and comparing it with rest of the prosecution evidence and the probabilities of the case-A.I.R. 1957 S.C. 637 rel. on.
(iii) Criminal Procedure. Code, 1973 - Section 164 - Truth of confession - Rule of independent corroboration.
Held, requires presence of independent evidence in corroboration of material particulars of confessional statement only - Proving of every statement by independent evidence is not necessary. (Para 206)
(iv) Criminal Procedure Code, 1973 - Section 164 - Indian Penal Code, 1960 - Sections 302 read with 120B -Confession of Satwant Singh accused - Whether true in so far as it relates to offences under section 302 read with section 120B, Indian Penal Code? - Yes, as it stands clearly corroborated by other evidence in the case -Inconsistencies pointed out related to minor points only.
Held, material parts having being corroborated by independent evidence, the truth of his Confession is also established. (Para 207)
(i) Site plan, Recoveries, Medical, Ballistic and Photographic Evidence.
Indian Penal Code 1860 Section 307 - Arms Act, 1959 -Section 27 - Site plan of scene of occurrence - Recoveries of stengun revolver Cartridges and bullets etc. from the scene of offence - Medical, Bellastic and Photographic evidence establishing Rameshwar Dayal (P.W. 10) was injured by bullet fired from the stengun of Satwant Singh - Stengun provided to accused for discharging his duties as guard but used for shooting at Mrs. Gandhi - Whether there is sufficient evidence to find Satwant Singh also guilty of offence under section 307, Indian Penal Code and under section 27, Arms Act? (Yes) (Paras 210 and 211)
(j) Conclusion.
Indian Penal Code, 1860 -Sections 302 read with 1208 and 34, 307 - Arms Act, 1959 -Section 27 - Whether prosecution has established beyond reasonable doubt its charges against Sat want Singh under section 302 read with sections 120B and 34 Indian Penal Code and under section 307, I.P.C. and under section 27 of Arms Act? (Yes)
Held, the evidence of the eye-witnesses taken along with the evidence of Ganga Singh as well as medical, ballistic and other evidence which we have detailed above, establish that Satwant Singh in concert with Beant Singh, fired several shots at Mrs. Gandhi, one of which injured her and caused her death. The confession of Satwant Singh fully lends support to and reinforces the conclusion one reaches on the evidence the prosecution has, therefore, established beyond all doubt its charge against Satwant Singh under section 302 read with section 120B and section 34 of the Indian Penal Code. It has also established the charge against Satwant Singh of an offence under section 307, Indian Penal. Code (attempt to murder Rameshwar Dayal (P.W. 10) and section 27 of the Arms Act, 1959 (as he was in possession of stengun which he intended to use, and is also seen to have used. for the unlawful purpose of shooting at Mrs. Gandhi). (Paras 216 read with 210 and 211)
6. CASE OF CONSPIRACY
(Pp. 410 to 523 of judgment)
(A) Ingredients of Conspiracy
Indian Penal Code, 1860 Sections 120B and 34 -Evidence Act, 1872 - Section 10 - Ingredients of criminal conspiracy - Case law discussed - Principle of agency imported by section 10 of Evidence Act and that of section 120B Indian Penal Code - Everyone of the conspirators need not be associated with conspiracy right from the beginning. (Para 228) - Scheme of section 34 and that of section 120B, of Indian Penal Code - Section 34 of Indian Penal Code does not create substantive offence-Relevant only in an offence of conspiracy. (Para 229) - Indian law of conspiracy under section 120B - Mere agreement among persons is that a criminal offence should be committed is sufficient to constitute offence of criminal conspiracy - This position is distinguishable from the position under English Law in which it may be necessary for the prosecution to define and prove the role which each of the participants to the agreement played. (Paras 230 and 231)
(B) Conspiracy alleged by prosecution
(i) Indian Penal Code, 1860 -Sections 302 and 120B - Question whether Beant Singh (deceased), Satwant Singh, Kehar Singh and Balbir Singh, or any of them, agreed to do or caused to be done, the offence of killing Mrs. Gandhi-Prosecution unfolded the conspiracy, chronologically, in 20 facts - Examination as to how far these facts got proved and whether they established the charge of conspiracy leveled against the accused. (Paras 233 and 234)
(ii) Indian Penal Code, 1860-Sections 302 read with 120B -Criminal Procedure Code, 1973 - Sections 353 and 354 -Joint Trial of accused on a conspiracy charge - Essential procedure to be followed - Necessary to marshall admissible evidence against each one of the conspirators separately and consider how far a charge of conspiracy, or acts in pursuance thereof, can be said to have been established against each-A.I.R. 1947 P.C. 186 rel. on. (Para 235)
(ii) Indian Penal Code, 1860 -Sections 302 read with 120D -Criminal Procedure Code, 1973 - Section 164 - Important pieces of evidence on which prosecution has relied prove its charge of conspiracy against the accused (1) confession of Satwant Singh accused (2) Paper recovered from Balbir Singh accused on 3.12.1984 when he was arrested- (3) statement of Amarjit Singh (P.W. 44) under section 164, Criminal Procedure Code and his evidence (4) evidence of wife of Beant Singh accused (Smt. Bimla Khalsa P.W. 65) -Objections regarding their admissibility or the weight to be attached to them in law-Discussed in subheads (C) to (F) below. (Para 236).
(C) Confession of Satwant Singh
As already held earlier that the confession was voluntarily made and that it is a true confession. Though retracted it can be acted upon. It is corroborated by other positive and independent evidence in material particulars in relation to the offence under section 302, Indian Penal Code as against Satwant Singh. How far it helps to establish charge of conspiracy against other accused will be seen later. (Para 237)
(D) Paper recovered on 3.12.1984 from Balbir Singh (Ex, P.W. 26/B)
Balbir Sing was one of the Sub-Inspectors on security duty at the P.M's. residence since 10.5.1983. He was absconding since 1.11.1984. Challenge to various steps of the prosecution against Balbir Singh.
(a) Was Balbir Singh searched on 1.11.1984 - No, only his house was searched as per testimony of Hari Chand (P.W. 11). (Para 240)
(b) Were Balbir Singh (and Kehar Singh) kept in the (Yamuna) Vellodrome from 1.11.1984 to 3.12.1984? (No) (Paras 241 to 260)
(c) Was Balbir Singh arrested on 3.12.84? (Yes) (Paras 261 to 268).
(d) Was Ex, P.W. 26/B recovered at the time of arrest of Balbir Singh? (Yes) (Paras 269 to 277)
Criminal Procedure Code, 1973 - Sections 51(1), 102 and 162 - Search and seizure -Evidence Act, 1872 - Section 91-Relying on A.I.R. 1960 S.C. 822.
Held, that there was nothing illegal about the search and seizure. But even if there was some illegality and non-compliance with the provisions of Criminal Procedure Code in this regard, that cannot preclude the consideration of the oral evidence in this regard. It will only make the court inclined to examine carefully the evidence regarding the seizure but will not vitiate the seizure itself, if otherwise found acceptable. There is thus no reason either to disbelieve the recovery of Ex. P.W. 26/B or to ignore it altogether. (Para 277)
(e) Was kehar Singh arrested on 30.11.84? (Yes) (Para 278)
(E) Amarjit Singh's Evidence
Also a Sub-Inspector working in the P.M's. security- Statement under section 164, Criminal Procedure Code which substantially incriminates Kehar Singh and Balbir Singh in conspiracy- Whether he is totally unworthy of evidence? (No)
Held, while we agree with counsel that the evidence of Amarjit Singh and his statement (Ex. P.W. 44/A) have to be examined very carefully and accepted with caution, we are inclined to the view that he was not a coconspirator or accomplice as suggested by the defence counsel. (Para 282)
Consequently held, there is no reason to reject the version of Amarjit Singh as unreliable and unbelievable. (Para 283)
(F) Evidence of Bimla Khalsa (P.W. 65)
(i) Wife of deceased Beant Singh - Made statements on 16.1.1985 and 19.1.1985 implicating Kehar Singh and Satwant Singh in the conspiracy for assassination of Mrs. Gandhi Later turned hostile - Whether to be rejected for that reason? (No)
Held, in the present case, we find that Bimla Khalsa has in her evidence in court substantially adhered to her earlier statements. Significantly enough, it is only at those places of her testimony relating to identity of Satwant Singh and the part played by Kehar Singh that she has tried to speak differently in court. As we have pointed out, the earlier statements made by her were made without any pressure or coercion and admittedly truly recorded. The charges she seeks to make while giving evidence in court are obviously intended to protect Satwant Singh and Kehar Singh and should not be given weight. No part of the evidence of Bimla Khalsa is thus inadmissible nor is her entire evidence to be cast overboard. (Para 287)
(ii) Evidence Act, 1872-Section 122 – Evidence - Beant Singh communicating about alleged conspiracy to his wife during marriage-Protection under section 122 Evidence Act - Lifted on death of Beant Singh - Does not preclude Bimla Khalsa, to disclose it. (Para 285)
7. CONSPIRACY CASE AGAINST SATWANT SINGH
(Pp. 523 to 539 of the Judgment)
Indian Penal Code, 1860 -Sections 34 and 120B read with 302 - Is there ample evidence on record to establish a conspiracy between Beant Singh and Satwant Singh to murder Smt. Gandhi? (Yes) (Para 290)
Circumstances suggesting conspiracy - Beant Singh needed some helpers - Blue Star Operation created enemity (Para 290)- That Beant Singh and Satwant Singh shot at Smt. Gandhi almost simultaneously- (Para 291)-The circumstances speak for themselves-The incident is res-ipso-Loquitir. (Para 292) - Evidence of Bimla Khalsa regarding amrit chakhan ceremony bi Beant Singh and Satwant Singh (Para 293) - The co-incidental circumstance that the two persons who should not normally have been at the T.M.C. Gate were there at the crucial time - Motive is not- important where (as in this case) positive evidence against the accused is clear, cogent and reliable. (Para 301)
Held, taking the case here only of Satwant Singh, We think the terms of section 34 as well as section 120B of the Indian Penal Code are clearly attracted. (Para 292) - There is sufficient evidence to show that Satwant Singh shot at the P.M. in pursuance of a common intention which be shored with Beant Singh and an agreement between the two of them that Smt. Gandhi- should be killed. (Para 300)
8. CASE AGAINST BALBIR SINGH
(Pp. 539 to 629 of the Judgment)
Indian Penal Code, 1860 -Section 120B read with section 302 - Criminal conspiracy to cause the death of Smt. Gandhi.
(A) Circumstances relied on by Prosecution
(1) Balbir Singh is a Sub-Inspector in the security arrangements at the P.M's. residence and was a friend of Beant Singh, Satwant Singh and Kehar Singh, (2) Indignation by Blue Star Operation, (3) and (4) Evidence showing his meetings with them and meeting-Satwant Singh on the night of 30.10.1984, (5) His conduct after assassination of Smt. Gandhi, (6) Recovery of document Ex. P. W. 26/B at the time of his arrest which is in the nature of memo of events between June and Oct. 1984 about conspiracy (7) Amarjit Singh's deposition against him, (8) Satwant Singh's confession refers to him as one of the conspirators-Scrutiny of these circumstances was done by High Court. (Para 302)
(B) Mutual Friendship
India Penal Code, 1860 -Section 120B - Conspiracy - Circumstances of - Mutual friendship between conspirators Beant Singh, Satwant Singh, Balbir Singh and Kehar Singh - Absence or any direct friendship and contact between Balbir Singh and Kehar Singh - Whether of any significance? (No)
Held, according to the prosecution Beant Singh was the central figure in the conspiracy. Each of the three accused knew him well. In the circumstance, a conspiracy among them was possible and the absence of any direct friendship or contact between Balbir Singh and Kehar Singh is not a matter of significance. (Para 304)
(C) Indignation at Blue Star Operation
Whether proved? (Yes, spoken by his colleague P.W. 3 of agitated mood of Balbir Singh, who has no motive to tell lies or anything to gain by deposing falsely - Recovery of book of Sant Bhindrawala in house of Balbir Singh - These support prosecution case regarding hot sentiments of Balbir Singh on Blue Star). (Paras 305 and 306)
(D) His leave applications
Whether show that on one excuse or the other, Balbir Singh had made himself available on all crucial dates? (Yes) (Paras 307 and 308)
(E) Evidence of Constable Satish Chander Singh (P.W. 52)
Whether a truthful witness and proves that Satwant Singh came to meet Balbir Singh on the night of 30.10.1984 at the main gate of Akbar Road? (Yes, also corroborated by entry in Ex. 26/B). (Paras 309 and 310)
(F) Post crime conduct of Balbir Singh
Absconding and recovery of Ex. 26/B on arrest - Resiled desire to confess - Whether point out that Balbir Singh had knowledge regarding the offence and was being secretive and unhelpful? (Yes) (Paras 311 and 312)
(G) Memorandum of events (Ex. P.W. 26/B)
(i) Recovery from Balbir Singh whether proved? (Yes) (Para 319) - Absence of explanation as to why this document was written up by Balbir Singh -Whether should detain the court to consider it? (No, as in the handwriting of Balbir Singh and recovered from him) - Defence failing to give any reason for its inadmissibility -No indications that prosecution could have "manufactured" a document of this kind. (Paras 319 to 322)
(ii) Evidence Act, 1872 -Sections 17, 18 and 21 -Criminal Procedure Code, 1973-Section 164 - Merits of document Ex. P.W. 26/B -Whether innocuous? (No) -Whether implicates the maker of it in a conspiracy with Beant Singh and Satwant Singh to kill Mrs. Gandhi? (Yes) (Para 330)
Held, (i) These various entries which are obvious references to various phases of the conspiracy clearly tie up Balbir Singh with the conspiracy. (Para 323)
(ii) That Ex. P.W. 26/B is a very important document and that it establishes, taken in conjunction with other evidence adverted to by us, that Balbir Singh had an active part in the conspiracy to assassinate Smt. Gandhi on 31.10.1984. (Para n6)
(iii) Absence of the name of Kehar Singh in the document is indicative of genuineness of the document. (Para 327)
(iv) There was no need to lead special evidence to substantiate the prosecution's interpretation of the document in question. (Para 328)
(v) Document is not a confession. It is admissible as an admission within the meaning of sections 17, 18 and 21 of Evidence Act. (Para 329)
(H) Evidence of Amarjit Singh (P.W. 44) Qua Balbir Singh
Evidence Act, 1872 - Section 10 - Criminal Procedure Code, 1973-Section 164 - Witness bound under section 164 - How far it establishes the case against Balbir Singh?
Held, (i) it establishes resentment entertained against Mrs. Gandhi. (Para 338)
(ii) it establishes importance attached to the "falcon incident" viz. appearance of a baaz in Sept. 84 on the side of Akbar Road of P.M. House. (Paras 339 to 340)
(iii) it establishes that Kehar Singh made Beant Singh and Sat want Singh to take Amrit, even apart from the statement ascribed to Balbir Singh. (Para 350)
(iv) There is no inconsistency or contradiction in his earlier statements and evidence in court regarding Balbir Singh's involvement. (Para 353)
(v) His testimony is better than that of an accomplice. Even otherwise there is sufficient corroboration to his testimony. (Para 354)
(I) Confession of Satwant Singh (Ex. P.W. 11/C) qua Balbir Singh
Held, the confession is not destructive of the conspiracy; rather it reinforces the prosecution version of the conspiracy between Balbir Singh, Satwant Singh and. Beant Singh. He has kept out the name of Kehar Singh, whose involvement is otherwise clear, out of his loyalty to Beant Singh and their common plan, which had been successfully carried out. (Para 357)
(J) Circumstances in favour of Balbir Singh
5 circumstances relied on by defence were held to be of no consequence in arriving at a conclusion as to involvement of Balbir Singh in the conspiracy. (Para 358)
(K) Absence of corroboration for weak pieces of evidence
Whether case against Balbir Singh and Kehar Singh is proved by uncorroborated weak pieces of evidence? -Case law referred
Held, No, it has been proved by reliable and strong evidence. There is more than sufficient evidence on record to come to the conclusion that Balbir Singh was indeed one of the original conspirators and schemers (to cause death of Smt. Gandhi) and that he remained associated with the conspiracy till the very end. (Paras 367 & 371)
CASE AGAINST KEHAR SINGH
(Pages 629 to 687 of the Judgment)
Prosecution case: Kehar Singh was, in a manner of speaking, an uncle of Beant Singh's wife Bimla Khalsa and a more elderly person. He incited Beant Singh to action-Circumstances relied-Evidence of Bimla Khalsa-Ujagar Sandhu incident - The Darshan Singh incident - The Amrit Chakhan ceremony - The Amritsar trip. (Para 372)
(A) Evidence of Bimla Khalsa - Her earlier statements pointing to above circumstances - Later she turned hostile in her evidence before court - The circumstances did not justify a wholesale rejection of her evidence her statements of January, 1985 are true and acceptable - (Para 375) Her evidence proves several things as under:
(i) Vis-a-vis Satwant Singh
(a) Beant Singh and Satwant Singh meet-It shows that Beant Singh and Satwant Singh had come close together by the first week of October, 1984. (Para 376)
(b) The Yak-Though the publication of the Vak at the Gurdwara on 13.10.1984 is not conclusively proved, there is evidence to show that the text of the Vak was noted down by Beant Singh in his own hand writing and treasured it which had made a deep impression on his mind and strengthened his religious loyalties. (Para 377)
(c) 17th October, 1984 - Secret talk about a plan to do away with Smt. Gandhi at Beant Singh's house among Beant Singh, Satwant Singh and Kehar Singh - By this time, Beant Singh had already taken amrit and perhaps the walk was about Satwant Singh's taking amrit. (Para 378)
(d) Amrit Chakhan-Proves that at least by the 24th October, 1984 Satwant Singh had become a party to conspiracy and had also taken amrit on 24th with Beant Singh - The latter took it again to be more steadfast in his resolve. (Para 379)
(e) Plan for 25th October - The piece of paper on which Beant Singh had noted down the "Vak" also had noting on back indicating meeting with Satwant Singh on 25th October and 26th October - Thus Satwant Singh had become a party to the conspiracy between Beant Singh and Kehar Singh even earlier to it i.e. 17.10.1984. (Para 380)
(ii) Bimla Khalsa's Evidence vis-a-vis Kehar Singh-
(a) Attendance of office - Corelation between absence of Kehar Singh from his office and the various activities relating to the conspiracy. (Para 381)
(b) Reaction to Blue Star - By Kehar Singh that it was not proper and justified and that the Govt. and Smt. Gandhi were responsible there for. (Para 382)
(c) Post - murder reaction of Kehar Singh-On being asked about news of Smt. Gandhi's assassination by Nand Lal Mehta (P.W. 59) his reply "whoever would take confrontation with the Panth he would meet the same fate"-believed by court. (Para 383)
(d) "Indira de Sikh" pamphlet-Recovered from office's drawer of Kehar Singh as a volentile piece of propaganda which had considerably influenced Kehar Singh. (Para 384)
Held, as to (a) is reliable and acceptable, as to (b) of some help, as to (c) is truthful as P. W. 59 had no reason to falsely depose against Kehar Singh, as to (d) is significant and gives an inking regarding Kehar Singh's mind and feelings towards "Operation Blue Star". (Paras 385 to 387)
(B) Ujagar Sandhn Incident-Celebration of birthday in Ujagar Sandhu's house - Kehar Singh invited - Kehar Singh invited Satwant Singh there-Inciting speeches on Blue Star operation heard - prosecution's inference that there must have been a reason for Kehar Singh doing so is correct. (Para 388)
(C) Darshan Singh Incident--Evidence of Inder Bir Singh (P.W. 68) that Prof. Darshan Singh spoke very movingly about many children, and hundreds of young men having been killed in operation Blue Star in Gurdwara Moti Bagh in August 1984 Attended by Kehar Singh arid Beant Singh Kehar Singh telling Beant Singh not to weep but to take revenge - (No procedural hurdle in the way of admission of the evidence of P.W. 68). (See Section 173(8) and 311 of Criminal Procedure Code). (Para 393)
(D) Amrit Chakhan Ceremony - Significance of this ceremony stated - Significance in present case.
Held, while the taking of amrit generally is certainly no proof of any sinister intent, the taking of amrit by all these persons (Satwant Singh, Beant Singh and Kehar Singh) at a crucial stage of their plans lends support to the existence of a resolve to do something secret, a resolve born of the hurt caused to their religious sentiments. (Para 401)
(E) Trip to Amritsar - Falls in the same category as of Arndt Chakhan-Held, the evidence shows that this was not an ordinary pilgrimage that was undertaken but that Beant Singh and Kehar Singh were involved in some more serious business there. (Para 402)
Held, consequently, an objective appraisal of the entire sequence of events leaves no doubt in one's mind that these three persons had compared to kill Smt. Gandhi, that Beant Singh and Sat want Singh were to do the job and that Kehar Singh was all along the instigator, abettor and accomplice. (Para 403)
(F) Circumstances Exonerating Kehar Singh - Did not know Satwant Singh - Beant Singh and Kehar Singh were together for 3 days - Amrit Chakhan by Beant Singh was for leaving habit of drinks - Had he been a conspirator he would have removed Kara, ringh and pamphlet ‘Indira de Sikh" at the earliest opportunity- Would have been careful in his talks on Smt. Gandhi's assassination on that date- (Para 404) - Rejected by Court. (Paras 405 to 408)
Held, these circumstances do not really speak of the innocence of Kehar Singh as alleged and are not at all inconsistent with the various other circumstances which we have discussed to arrive at the conclusion that he was a conspirator and was actually instrumental in making Beant Singh live up to his resolve. (Para 409)
(G) Plausible Hypothesis or Innocence that Kehar Singh tried to dissuade Beant Singh from taking any violent action being a devout religious sikh-Rejected-AIR 1970 SC 648 ref.
Held, no such hypothesis is consistent with the evidence on record. We have no hesitation in coming to the conclusion that there was a conspiracy hatched out by all the three persons, i.e. Kehar Singh, Beant Singh and Satwant Singh to kill Smt. Gandhi and it, was this conspiracy that culminated in the assassination of Smt. Gandhi on 31st October, 1984. (Para 420)
10. SOME GENERAL ASPECTS
(Pages 687 to 748 of the judgment)
(A) Denial of Opportunity to Lead Evidence in Defence
(i) List of witnesses on behalf of Satwant Singh to summon important personalities like President of India, Shri Rajiv Gandhi, Sonia Gandhi etc. rejected by ASJ as made for purpose of vexation or delay and for defeating the ends of justice - Whether proper - (Yes) (Para 429)
(ii) List of witnesses on behalf of Satwant Singh - Witnesses to depose resentment among Sikh Community on Blue Star Operation Rejected – Upheld -the Court can take judicial notice of it. (Para 429)
(iii) Request to summon engagement diary of Smt. Gandhi Rejected - as irrelevant Whether correct? (Yes) (Para 429)
(iv) Criminal trial of murder-Burden of proof is on prosecution - But if defence wants to put a positive case that not the accused but some others were responsible for murder - Burden lies on defence - No cause made out for summoning of various persons his allowed by ASJ. (Para 429) - Not calling of certain doctors has not caused any prejudice to the accused. (Paras 430 to 432) - Turning down request for wireless log book and Control Room Register - Upheld – Being belated. (Para 433)
(B) Non Examination of Several Material Witnesses –
By Prosecution who had been interrogated - Eye witnesses such as R.K. Dhawan. M.L. Fotidar - Large number of investigating officers - Several doctors- Hospital records of Beant Singh and Satwant Singh-Whether kept back for an oblique reason amounting to mala fides in law - (Para 435) - Case law discussed. (Paras 436 to 439) (No) (Para 441).
Held, in the present case there has been no attempt on the part of the prosecution to withhold witnesses absolutely necessary for the proper unfolding of their case. (Para 440)
(C) Disallowance of Relevant Questions
Held, so far as the shooting in the guard room was concerned the question was disallowed as the incident was an independent one subsequent to the shooting of Smt. Gandhi and unconnected with it. As far as other questions are concerned they are not material. (Para 443)
(D) Interrogations under Section 313 Criminal Procedure Code
(i) Whether rolled up questions put to accused Kehar Singh on Ujagar Sandhu incident so that it was difficult for the accused to appreciate its various constituent parts and give correct answer to it? (No) (Para 447) Some of the questions were somewhat long but they were not so complicated or rolled up as to be beyond the understanding by the accused.
(ii) Whether adverse circumstances not clearly brought out to the accused e.g. on Amrit Chakhan Ceremony on various dates and about Ex. P.W. 26/R (Paper about memorandum of clients of conspiracy agreement recovered from Balbir Singh)-Rejected -Case law discussed-Regarding ambit of Section 313 Criminal Procedure Code.
Held, that provisions of Section 313 Criminal Procedure Code have been fully complied with only the circumstances in evidence against the accused were put to him. If is not necessary for the court to explain how exactly these circumstances are sought to be interpreted by the prosecution against the accused. (Para 448)
(iii) Whether questions based on wrong premises or meaningless questions or incomplete questions put to accused? (No) (Paras 449 to 45l)-Minor mistakes did not cause any prejudice to accused.
(iv) Criminal Procedure Code, 1973-Section 313 (Section 342 of old Code) Examination of accused-Power to examine under section 313 Criminal Procedure Code -Trial of a large magnitude-Interrogations under section 313 to strike a via media-Some questions can become lengthy-That will not be non-compliance with section 313.
Held consequently that there was no lacuna, defect, irregularity or inadequacy in the examination under section 313 except one or two minor mistakes which were insubstantial. (Para 452)
(E) Conduct of Prosecution and trial Court - Whether out stepped their respective proper roles in a Criminal trial? (No) (Para 453)
(F) "Hanging Questions" (Acquitting questions)- Whether prosecution left several questions unanswered and lack of response to these questions would result in acquittal? (No) (Para 454)
11. SOME ASPECTS OF THE
INVESTIGATION/TRIAL
(Pages 748 to 752)
Suggestions to the Police and other authorities to avoid certain unsatisfactory aspects of investigation/Trial in this case to avoid the same in future (although these have not prejudiced a fair trial of the accused herein.) (Para 455)
(a) Criminal Procedure Code. 1973-Section 100-Witnesses to searches and arrest -In this case are only police witnesses-Though not vitiated for this reason-It is advisable to have outside independent persons to be witnesses to the event to avoid doubts on their genuineness- Method suggested-The maintenance and periodical review of a list of members of the public in each locality who can be called upon to render this service (as was done in the case of jurors till recently) or the formation of public spirited social organizations which will be able to provide the services of its members. (Para 456)
(b) Criminal Procedure Code, 1973-Section 164(1) -Recording of confession-High Court Instructions 1964 Vol. I Ch 13 (confession)-Punjab Police Rules, 1959- Appendix 25.27 (unamended). Suggested, it is highly desirable and eminently necessary that the instructions of the high Court should be revised clarifying also the status of these instructions and arrangements should be made to circulate enough copies to all magistrates so that lapses of the kind that have happened in the case do not occur in future. All magistrates should also be instructed about the sanctity and solemnity of the vital role they play in recording a confession and of the imperative necessity of conforming to the rules and instructions both in letter and the spirit. (Para 457)
(c) Misuse of Police Power- for interrogation be avoided-For that suggested interests of justice require that Police Stations and establishments should also be instructed to maintain a record containing linter alia, details of the person summoned to attend before them for interrogation, the period for which they are kept at the station or establishment for this purpose and whether the statements given have been reduced to writing. This, to some extent, will help guard against allegations (of harassment and persecution by unlawful detentions) made in the present case. (Para 458)
CONCLUSION
(of Parts 1 to 11 as to order of conviction)
(Page 753)
Held, we confirm the conviction of accused Satwant Singh, Balbir Singh and Kehar Singh under section 302 read with section 120B of the Indian Penal Code and of accused Satwant Singh under section 302 read with section 120B and section 34 of the Indian Penal Code under section 307 of Indian Penal Code and also under section 27 of the Arms Act. 1959. (Para 459)
12. SENTENCE
(Pp. 753 to 817)
(a) Criminal Procedure Code, 1973-Section 235(2)-Question of sentence after conviction-Trial judge did not give real opportunity of making their representation on the question of sentence to the accused-Whether fatal for conviction? (No)-Whether can be remedied by appellate court? (Yes) Case law discussed.
Held, that the sentence will be decided upon by us in the light of above factors as well as on the findings in regard to conviction recorded by us earlier in this judgment. (Para 470)
(b) Criminal Procedure Code, 1973-Section 354(3)-Special reasons for death sentence-Whether A.S.I, complied with the terms of 354(3)? (Yes) He has given special reasons for awarding death sentence to accused. (Para 471)
(C) Alleged non-compliance with section 354(5) Criminal Procedure Code.
Criminal Procedure Code, 1973-Sections 354(5) and 366-Direction regarding mode of execution of death sentence in reference-Non compliance with section 354(5) Criminal Procedure Code by AS] when passing death sentence-Failure to direct that the accused be hanged by the neck, till he is dead -Whether vitiates the judgment? (No)-Case law referred-Whether compliance by High Court will care the irregularity? (Yes)
Held, the death penalty awarded by the trial judge cannot take effect unless it is confirmed by the High Court (in reference under section 356 Criminal Procedure Code which as, like appeals, constitutes a continuation of the trial of the accused) and certainly it should be open to the High Court, if it decides to confirm the death sentence, to give the appropriate direction under section 354(5) regarding the mode of its execution. (Para 472)
(D) Non-compliance with section 366 Criminal Procedure Code
Criminal Procedure Code, 1973 - Section 366 - Reference to High Court on death sentence – Non compliance with - Whether trial Court's judgment should mention that the proceedings are being submitted to the High Court and that the death sentence should not be executed unless it is confirmed by the High Court? (No)- Whether non-compliance with section 366 vitiates the proceedings? (No, when all the convicted persons have also preferred appeals) (Para 473) Case law discussed.
(E) Death Penalty or life Imprisonment
(i) Indian Penal Code, 1860 - Section 302-Criminal Procedure Code, 197 Sections 354(3) and 235(2) -Murder-Sentence -Death Penalty or Life Imprisonment-Justification to be judged objectively by the court Principles - (1) extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstance of the offence, due regard must be paid to the circumstances of the offender also; (3) effect of offence on society at large is also a relevant consideration. A.I.R. 1980 S.C. 898 and A.I.R. 1983 S.C. 957 rel. on. (Paras 474 to 477)
(ii) Criminal Procedure Code, 1973-Sections 354(3) and 235(2) - Indian Penal Code, l860-Sections 302 read with 120B and 34, 302 read with 120B-Sentence-Mitigating factors in present case for life imprisonment-Consideration of-Rousing of religious sentiments cannot be held to be a mitigating factor in a secular country like India-Indira Gandhi Murder is not truly a religious assassination, it is a cool premeditated murder -Assassination by sten gun also quite dastardly-Old, unarmed woman mercilessly shot by 30 bullets'- The fact that protectors in law of Mrs. Gandhi, her own guards became her assassins, called for severest of penalties-Not only did the assassins kill Smt. Gandhi but they were also responsible for triggering off riots (in Nov. 1984) resulting in loss of property and people-Youth of Satwant Singh not a mitigating circumstance -Old age of Kehar Singh not relevant on the facts of the case.
Held consequently, all the three accused are equally guilty and that there is no mitigating circumstance in any of the cases which would justify the imposition of anything but the severest punishment (of death penalty) prescribed by law. (Para 488)
CONCLUSION (as to sentence)
We agree with (A.S.I.) and confirm the sentence of death on accused Satwant Singh, Balbir Singh and Kehar Singh for the offence under section 302 read with section 120B of Indian Penal Code and the sentence of death on Satwant Singh for the offence under section 302 read with section 120B and section 34 of Indian Penal Code and direct, in terms of section 354(5) (of Criminal Procedure Code), that each of the three accused be hanged by the neck till he is dead. We also confirm the sentence on Satwant Singh, of rigorous imprisonment for seven years (for the offence) under Section 307 Indian Penal Code and the sentence on him of rigorous imprisonment for 3 years (for the offence) under section 27 of the Arms Act. We direct that all the sentences shall run concurrently. (Para 489)
RESULT
Murder reference is accepted and disposed of as above. The Criminal Misc. and appeals all stand dismissed. (Para 490)
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