LONG NOTE
DELHI HIGH COURT
S.P. Garg, J.
Santoshan and Avdoot @ Ghanshyam Prashad and Anr. —Appellants
versus
State —Respondents
Crl. A. Nos. 443/1976 and 436/1976
Decided on 14.8.2014

IMPORTANT POINTS
(1) There was no legal impediment in grant of pardon to co-accused.
(2) Law does not require that evidence of extra judicial confession should in all cases be corroborated.
(3) Mere fact that a person did not reveal his knowledge of intended crime to authorities does not make him an accomplice.
(4) Organisation’ cannot be condemned for individual acts of its followers for any criminal activity.

Headnote:(i) Indian Penal Code, 1860—Sections 307 and 120B—Explosive Substances Act, 1908—Section 4 (b)—Attempt to murder and conspiracy—Attack made on life of former CJI—Prosecution case rests upon direct, circumstantial and documentary evidence—Organisation’ cannot be condemned for individual acts of its followers for any criminal activity—Complainant gave graphic detail of incident at earliest available opportunity—He claimed to have witnessed assailant who had thrown hand-grenade in car described his identifying features and asserted to identify him—No material discrepancies could be elicited to disbelieve cogent and reliable version narrated by independent and natural witness who had no ulterior motive to give detailed account of occurrence and to describe feature of assailant to whom he had seen fleeing from spot—Presence of witness and his reaction soon after occurrence to chase culprit was quite natural and reasonable—His presence with CJI was not accidental, but consistent with his duties—He had no prior animosity or acquaintance with any of accused to create a false evidence—Omissions or improvements do not discredit version given by Security officer on material facts—No oblique motive was assigned to illiterate and rustic witness to implicate appellants—Extra judicial confessions made by A- 1 free from any suspicion as to their voluntary character and have also a ring of truth in it—Confessions contain a probable catalogue of events and there is nothing improbable or unbelievable in it—These appear to be spontaneous account studded with such vivid details about background and manner of committing of crime in question which only perpetrator of crime could know—Confessions fit in well with rest of evidence and other facts and surrounding circumstances—There are no valid reasons to discard cogent, reliable and unimpeachable statement of independent public witness—Appellants cannot be exonerated or given clean chit due to failure of prosecution to put them on trial— Circumstances relied on by prosecution are not sufficient at all to prove A-2’s involvement in conspiracy—Conclusion of guilt of A-1 and A-3 fully established and their conviction maintained—Benefit of doubt given to A- 2—A-2’s appeal accepted and he is acquitted of charge.

       Held: Before embarking on an evaluation of the rival submissions, it would be apposite to note that the ‘Organisation’ undeniably had no hand in the crime. CBI did not implicate / suspect the ‘Organisation’ in any manner for any active or passive role in the crime. The ‘Organisation’ cannot be condemned for individual acts of its followers for any criminal activity. To say that CBI was not favourably disposed or had any malice / bias towards it has no credible foundation.

       It is significant to note that prosecution case rests upon direct, circumstantial and documentary evidence described in detail below. A broad overview of the core evidence brought by the prosecution to bring home the charges may now be discussed :

        PW-85 (Sh. A.N. Ray), Chief Justice of India, stepped in the witness box and gave detailed account of the occurrence without implicating any individual. He deposed that some ‘object’ had dropped near the foot of his son on the mat after hitting on his left arm near the shoulder. Within a split second, another ‘object’ dropped in the car from the right side and fell on the foot board. He further deposed that noting ‘someone’ running, Jamadar Jai Nand (PW-2) chased him towards Mandi House. CJI was able to observe that fleeing man was a bit tallish and thin. He further told that Jamadar who lived in the quarters attached to his residence informed him in the evening that he was not able to catch that man despite chase. He fairly admitted that he was not aware if the two ‘objects’ had been thrown in the car through two different windows. He had no suspicion on anyone. He denied the suggestion that the two ‘objects’ already planted in the upper rack of the car in its rear portion had fallen after the car stopped at the red signal. There was no basis/foundation for such a suggestion which was not consistent with the suggestions given to other witnesses.

       The complainant gave a graphic detail of the incident at the earliest available opportunity. He claimed to have witnessed the assailant who had thrown the hand-grenade in the car; described his identifying features and asserted to identify him. While appearing as PW-2, Jai Nand proved the version given to the police at the first instance without major variations. He deposed that after hearing the ‘sound’ of something falling inside the car on the side on which son of the Chief Justice was sitting, he looked that side, but could see nothing. When he turned behind, he saw ‘another’ person, standing on the side of the car where the Chief Justice was sitting. The said ‘man’ wrapped ‘something’ in a handkerchief and threw through the window at the place where CJI was sitting. He explained that the said ‘man’ had come close to the car. When he inquired as to what he was doing, the ‘man’ wearing a light blue shirt and pants of brown colour, immediately ran away. He chased him shouting ‘pakro - pakro’. The said ‘individual’ ran towards Bhagwan Dass Road and entered into a waiting taxi at Bhagwan Dass Road but instantaneously came out of it and ran. On hearing him ‘pakro - pakro’, a constable from DDA flats tried to catch hold of him but he succeeded eluding him (the constable), and crossed the gate of Garhwal House. The witness further stated that he saw one of the chappals being discarded by him on the righthand side of the car. The other chappal was discarded at some distance from there. These were ‘hawai’ chappals with a strap. He and other chasers crossed the Garhwal House in pursuit of the assailant. He could see that ‘man’ only up to the rear gate of the Garhwal House and thereafter, he disappeared. After crossing the rear gate, he went up to Haryana Bhawan but could not find the assailant. He returned to the scene of occurrence at about 05.00 or 05.15 P.M. where the police had already arrived. PW-2 (Jai Nand) identified A-3 to be the assailant who was chased by him. He also identified A-1 to be the ‘individual’ to whom he had seen standing behind the car and ‘staring’ around. He elaborated that A-3 did not have any beard or long hair that time. He further deposed that on July 30 or 31, 1975, he went to Tihar jail for identifying the culprits but the identification parade did not take place.

       On scrutinizing the entire statement, it is clear that despite searching and lengthy cross-examination, no material discrepancies could be elicited to disbelieve the cogent and reliable version narrated by this independent and natural witness who had no ulterior motive to give detailed account of the occurrence and to describe the feature of the assailant to whom he had seen fleeing from the spot (after throwing an article inside the car). Presence of the witness and his reaction soon after the occurrence to chase the culprit was quite natural and reasonable. His presence with CJI was not accidental, but consistent with his duties. He had no prior animosity or acquaintance with any of the accused to create a false evidence at the instance of the police or CBI. None of the assailants was named or implicated by him in his statement (Ex.P-16). The discrepancies, omissions and improvements highlighted by learned counsel for the appellants are not material to suspect his testimony in its entirety. The horrible occurrence was sudden and unexpected. It was not expected from the witness to describe it minutely in the FIR. The primary object of the FIR from the point of view of the informant is to set the criminal law in motion. The prompt and early reporting of the occurrence with all its vivid details gives an assurance regarding truth of the prosecution version. It is vital and valuable piece of evidence for appreciating the evidence led at the trial. It is manifest that an FIR is not intended to be a very detailed document and is meant to give only the substance of the allegations made. FIR is not an encyclopedia. It need not contain an exhaustive account of the incident. Non-mentioning of minute details thereon does not mean that the facts do not exist and its author was not aware of the details. At that point of time, recording of the statement (Ex.P-16) was to set the police machinery into motion. There is every possibility of minor mismatch between the version recorded in 161 Cr.P.C. and the statement given in Court. In Naresh Kumar v. State, 206 (2014) DLT (1) DB, this Court held:

        ‘It is a settled legal position that the statement of any witness recorded by the police officer during the course of investigation is not a substantive piece of evidence and the same can be used only for the limited purpose of contradicting prosecution. No sanctimony has been attached to the statement of a witness recorded by the police during the course of investigation as before the police witness is susceptible to all kinds of pulls and pressures to follow a particular line and therefore, ultimately it is deposition of a witness before the Court of Law which is held to be sanctimonious......’

       A fair reading of the evidence tendered by this witness makes it evident that he has stated the facts seen by him in a simple manner without any noticeable embellishments. What is mentioned by the witness is that he had seen A-3 running and ‘hurriedly’ entering into the taxi and fleeing thereafter. It was not explained by A-3 what made him to run away from the spot, entering into taxi and then disappearing from the spot. Nothing was suggested if A-1 or A-3 were available outside Delhi. PW-2 is certain about the identity of A-3 and the role played by him in the occurrence.

       On examination of the testimony of this independent witness, it transpires that he has corroborated the version given by PW- Jai Nand without major variations. Presence of this witness was natural and probable as he had residential accommodation in flats at Tilak Marg near the crime spot and had given chase to an ‘unknown’ culprit. It cannot be accepted that he was a planted witness. His statement under Section 161 Cr.P.C. was recorded the same day when even the identity of the assailants was not known. The witness being in responsible official job was not expected to falsely implicate an innocent one. He gave minute detail of the sequence of event which prompted him to chase the fleeing culprit even though he was not aware as to what was the offence committed by him. Being a police officer, his natural instant reaction on hearing the shouts of ‘pakro - pakro’ was to chase the fleeing culprit. In the performance of his duty, among other chasers, he attempted to catch hold of the fleeing man. Soon after return to the spot, he described the salient features of the fleeing man and volunteered to participate in the TIP. In Court, he had no hesitation to recognize and identify A-3 to whom he had given an unsuccessful chase. In the absence of prior animosity or ill-will, this witness had no extraneous consideration to falsely identify him. It is true that for certain omissions in the statements (Ex.D18 and Ex.D19) recorded by police and CBI, he has been confronted. However, these omissions or improvements do not discredit the version given by him on material facts. Presence of this witness at the spot was not challenged in the cross-examination.

       I have critically examined the evidence tendered by this witness. His version appears to be natural and probable. The appellants could not elicit any material discrepancies or contradictions in the cross-examination to disbelieve the version narrated by him minutely; his deposition on material facts remained unchallenged and unrebutted. Barring minor omissions in his earlier statements (Ex.D-9 and Ex.D-10), there were no noticeable improvements or deviations. No oblique motive was assigned to this illiterate and rustic witness to implicate the appellants. He had neither any grudge to grind against the appellants nor anything has been suggested to him. He was not acquainted with them. He had witnessed the sequence of events while performing his duty as taxi driver and had taken the passengers from one destination to other on payment of fare. He identified A-1 and A-3 besides approver Vikram and PW-4 (Tilak Raj Bhatia) in the Court to be the passengers who had travelled in the taxi on that day and had ultimately left them at Bhagwan Dass Road near the place of incident. He had visited Tihar jail to participate in TIP which the assailants declined to join. PW-5 gave vivid and detailed account as to how the passengers had visited various places before arriving at the spot. The accused persons did not deny their presence in the taxi that day. They did not offer reasonable explanation of their visit to various places prior to arriving at the crime scene; did not give any justification for abandoning their idea to go for sight-seeing. Apparently, the assailants before arriving at the destination had taken the taxi here and there to squander the time. His omission to report the incident to the police at the first instance does not dilute or dent his testimony. Moreover, he was not sure as to what really had happened or if the passengers in the taxi were the real assailants. Being unacquainted with the appellants, there was least possibility of this witness to lodge report with the police. His statement inspires complete confidence as he had no attachment / connection with the ‘Organisation’ to which the assailants belonged. His entire version is in consonance with the testimony of PW-Tilak Raj Bhatia and that of approver- Vikram. CBI wa not aware of him and reached to him when PW-4 (Tilak Raj Bhatia) took them to Gole Market, Taxi Stand where he was expected to be present with taxi. To lend credence to his testimony certain suggestions put to him in the cross-examination are worth-noting. ‘It is correct that when they hired my taxi, the meter showed the minimum charges at ` 1.60; I denythe suggestion that I could not recognise Sudevanand (A-3) and that I refused to let him enter the taxi thinking that the same had been hired by other passengers; I deny the suggestion that a police man came to me and arrested me and thereafter he asked me that I would not be released unless I told the whole thing to him.’ There exist no ground to eschew his evidence especially when the Trial Court found his evidence trustworthyand relied upon it. He candidly stated all that he had seen. The tenor of his evidence is such that it is not possible to say that he has falsely implicated the accused. His evidence has a ring of truth. When he suspected something amiss, he refused to carry the passengers further.

       I have scanned the testimony of this crucial witness. The defence has not made any dent in his evidence by cross-examining him. Certain omissions / improvements in his earlier statements recorded before the CBI / Court were not enough to discredit his testimony in its entirety. Various suggestions put to him in the cross-examination lend credence to the prosecution case about the presence of this witness in the taxi in question. PW-4 had arranged the taxi in question from a Taxi Stand at Gole Market near his place of work and had accompanied the appellants without nurturing any suspicion as it was pretended that A-3 who had come from Patna would like to go for sight-seeing in the taxi. Since the taxi was taken at different locations i.e. India Gate, Children’s Park, Buddha Park before arriving at the place of occurrence, this witness had no reasons to doubt or suspect the bonafide of A-1 with whom he was associated since long and did not nurture any grudge. Apparently, he was not aware of the plan to be executed by A-1, A-3 and approver Vikram that day. He was very much used by A-1 without letting him know of his exact plan. His testimony is in consonance with PW-5 (Charan Singh). PW-4 and PW-5 corroborate the version given by approver Vikram regarding the incident that took place on March 20, 1975. Assertions on relevant facts have remained unchallenged and uncontroverted in the cross-examination. PW-4 even did not lodge any complaint with the police about the incident apparently to save the culprits. Only when the police reached to him after A-1’s disclosures, he divulged the sequences of the events that occurred on March 20, 1975. PW-4’s statement describes the occurrence in its proper course. I do not find it appropriate to discard his statement as not inspiring confidence. The statements of the witness must be appreciated in proper perspective.

        In the instant case, the extra judicial confessions made by A- 1 are free from any suspicion as to their voluntary character and have also a ring of truth in it. There is nothing improbable in A-1’s making extra judicial confessions to these independent witnesses. The witnesses have reproduced the exact words used by A-1 as nearly as possible to convey that A-1 and his companions were the perpetrators of the crime. These extra judicial confessions can be relied upon along with other evidence for conviction and are incriminating circumstances against A-1. The Court is not oblivious of the fact that evidence about extra judicial confession in the very nature of things is a weak piece of evidence. But in a case where the evidence of extra judicial confession on scrutiny is found to be free from legal infirmity and the Court believes the witnesses before whom the confession is made and is satisfied that the confession was voluntarily, then in such a case conviction can be based on such evidence. The law does not require that the evidence of extra judicial confession should in all cases be corroborated. In ‘State of U.P. v. M.K.Anthony’, AIR 1985 SC 48, the Supreme Court observed :

        ‘15. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extra-judicial confession a weak piece of evidence. See Jagta v. State of Haryana : 1974 Cr LJ1010 and State of Punjab v. Bhajan Singh and Ors. : 1975Cri LJ 282 In Sahoo v. State of U.P., 1966Cri LJ 68, it was held that ‘an extra-judicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime.’ Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However, in Pyara Singh v. State of Punjab (1978) 1 SCR 661, this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extrajudicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.’

       Considering the consistency and the coherence of the statements of the independent witnesses bearing on the confessions of the accused, the Court is satisfied that their evidence to the said effect is untainted and true. The confessions made by A-1 voluntarily in the normal course without any pressure, are direct acknowledgment of the guilt of the offence in question. The confessions contain a probable catalogue of events and there is nothing improbable or unbelievable in it. These appear to be spontaneous account studded with such vivid details about background and the manner of committing of crime in question which only perpetrator of crime could know. Moreover, the confessions fit in well with the rest of the evidence and other facts and surrounding circumstances discussed in this judgment. The evidence relating to these extra-judicial confessions is found credible after being tested on the touch stone of credibility and acceptability. These can solely form the basis of conviction qua A-1.

       (f) Stay at PW-57 Raj Singh’s residence on the night intervening 19/20.03.1975 – PW-Vikram, A-1 and A-3.

        PW-57 (Raj Singh), Post-graduate of 1956, resident of Mehrauli, a government servant with Municipal Corporation of Delhi as School Inspector (Physical Education) was also follower of the ‘Organisation’ since 1967 and used to participate in its various activities. He was acquainted with A-1, A-3 and PW-Vikram who used to visit and stay occasionally at his residence while going to perform ‘Kapalik Sadhana’ near his residence. He deposed that in April, 1974, A-1 came to his newly built house at about 10.00 P.M. At first instance, he had a little difficulty to recognize him as he had removed his beard and cut his hair short. A-1 spent the night with him and visited him twice or thrice thereafter. He disclosed that A-1 used to feel sad / sentimental due to imprisonment of Baba. Elaborating his visit along with A-3 and PW Vikram on March 19, 1975 at around 07.30 or 08.00 P.M., he deposed that A-3 and PW-Vikram with whom he was familiar before had secret conversation on the terrace for about half an hour. A-1 informed him that it was not possible to secure Baba’s release through constitutional means and no other course was left except to shake the Government for release of Baba even at the cost of his own life. He further deposed that on March 20, 1975 at around 05.00 A.M., A-1, A-3 and PW-Vikram got up and after taking bath and break fast, they left the house at around 08.00 or 08.30 A.M., carrying a black bag with them. At about 05.30 P.M. when he returned from his office, A-3 came in a distracted mood and was very much nervous and perplexed. A-1 also arrived there at about 06.30 P.M. Vikram did not come to him that night. The assertion of the witness about stay of A-1 and A-3 along with Vikram on the night intervening 19/20.03.1975 at his residence remained unchallenged in the cross-examination. No reasons were suggested by A-1 and A-3 for their stay at PW-57’s residence on the said night. It confirms their presence in Delhi soon before the occurrence. In the absence of any infirmity, this Court has no reasons to discard the version given by this witness who had no animosity with the appellants. The testimony of this witness is in tune with that of PW-Vikram – approver.

       Crucial testimony in this regard is that of PW-56 (Suresh Chand Samanta) who was unacquainted with the appellants prior to the incident and did not nurture any ill-will or grievance to falsely implicate them. Being an Assistant Director, Tourist office, Government of India at Calcutta, he visited Delhi to appear in an interview before UPSC on March 24, 1975 for the post of Director of Tourism. Being a responsible officer he was not expected to make a false declaration. He deposed that on March 25,1975, he left Delhi for Calcutta by Kalka-Howrah Mail at 08.00 A.M. He identified A-1 unerringly to be his co-passenger in the said train who occupied the lower berth and with whom he had conversation in English on tourism during day time. He further disclosed that A-1 did not have beard that time and perhaps was wearing bushirt and pants. Another passenger Ramesh travelling in the said compartment who was going to Calcutta to see his mother had also conversed with him. He came from Calcutta to Delhi on July 29, 1975 or so, to identify A-1 at Tihar jail. In the cross-examination, the witness answered all the queries of the appellants’ counsel about his visit to Delhi. He disclosed that during journey both, he and A-1 had taken food together; lunch was also shared by them. He became very friendly with A-1 on the way and had given his visiting card to him. A-1 was wearing a hearing-aid at that time. He denied the suggestion that A-1’s photograph was shown to him and on the strength of that photograph, he identified him in the Court of Sh.Oberoi. Scanning the testimony of this witness reveals that despite thorough crossexamination, his testimony could not be shattered. The witness who had no prior animosity with A-1 was not expected to give false statement being a responsible officer. The prosecution was able to produce evidence on record that this witness actually travelled in the train on that day. It is not unusual for the passengers to become familiar with each other during long journey and develop some intimacy. Since the witness had spent long time with A-1 during the journey and had direct conversation with him, he had sufficient, reasonable and fair opportunity to note and observe the broad features to recognize him at a subsequent date. CBI was able to reach to this witness after scanning the reservation chart prepared for that day. This witness not only identified A-1 but also willingly agreed to participate in the TIP which the appellant declined to join. In his Court statement, this witness had no hesitation to recognize and identify A-1. There are no valid reasons to discard the cogent, reliable and unimpeachable statement of this independent public witness. This witness was fair enough not to implicate A-3.

        Despite lengthy and indepth cross-examination on various dates, the appellants were unable to extract or elicit any material discrepancy or variation to doubt the version narrated by him. He gave minute detail of the events as to how A-1 had instigated / exhorted him to resort to illegal means for release of Baba from jail; how he had participated in the execution of the plan on March 20, 1975. The appellants were unable to shatter his testimony on vital aspects or to bring out any major infirmity in it. Learned counsel for the appellants assailing the statement of approver on various grounds pointed out numerous alleged contradictions and improvements in his statement. True, Vikram has made certain improvements in his deposition before the Court and the facts deposed in the Court were omitted to be so mentioned in his statements recorded under Section 161 Cr.P.C. or 164 Cr.P.C. However, when confronted the witness gave elaborate explanation for their omissions and furnished reasonable clarifications. The discrepancies / improvements referred to by the appellants’ counsel are minor, insignificant, natural and not material. Marginal variations in the statement cannot be dubbed as improvements as these are in fact details and description of the narrations extracted by the defence counsel in the lengthy cross-examination of the approver. It may be worthwhile to notice that wherever any alleged contradiction or improvement was confronted to the witness, the learned Trial Court had made a note of it in the statement at the time of recording of the deposition of the witness. These omissions do not go to the root of the prosecution case to shake its basic structure. The law is very clear on this aspect; only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of a witness. In ‘Narayan Chetanram Chaudhary & anr. v. State of Maharastra’, 2000 (8) SCC 457, the Supreme Court held : ‘Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW. 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness.’

       I am satisfied that contradictions (if any) are only minimal and would not affect the claim of the prosecution case or discredit his statement. Contrary to that, various conflicting and inconsistent suggestions have been given to Vikram in the cross-examination which strengthen the deposition given by him in the Court regarding the role attributed to the appellants. PW-Vikram had no extraneous motive to make a false statement as he himself had remained in detention / custody for long ten years despite being granted pardon. The suggestions given to PW-Vikram in the cross-examination are worth-noting.

        (i) I deny the suggestion that I became Avadhoot in the jail. (PW-Vikram never claimed himself to be an ‘Avadhoot’).

        (ii) It is correct that the hand-grenades given to him for throwing for the Samastipur ‘kand’ had been subsequently discarded by him in the same manner as I had discarded the handgrenades in the present case. (Apparently suggesting active participation of the witness in the crime).

        (iii) I deny the suggestion that I had been a police informer and had been instrumental in getting these persons arrested wherever I went. I deny the suggestion that I had planned to get (Santoshanand) (A-1) and (Sudevanand) (A-3) arrested at Gopalji’s house and that it was just a matter of chance that they had left earlier.

        (iv) I deny the suggestion that (Sudevanand) A-3 did not enter the taxi because for one reason or the other the taxi did not start.

        (v) I deny the suggestion that he (PW-Vikram) travelled from Patna to Delhi by Delhi Express on March 18 after making reservation. I deny that I was not in Delhi on March 19 evening.

        (vi) It is correct that I deliberately did not tell him about my participation in the armed revolution because I felt that he should not be told about it. It did not occur to me as to what would be the consequences if I disclosed this thing to him.

        (vii) I deny the suggestion that Visheshwaranand and I acted in concert for the ‘Samastipur Kand’.

        (viii) I deny the suggestion that I joined Santoshanand (A-1) because I was enraged over the news of an attempt to poison Baba in jail.

        (ix) I deny the suggestion that I had shaved off my beard and cut my hair short a day before I went to Pusa Gate.

        (x) I deny the suggestion that when I went to Raj Singh’s house again and left in the disguise of a ‘kabari’, I had told him that I got entangled in that affair by deceit and that I had not done any such thing.

        (xi) I deny the suggestion that I used to go to Tilak Raj Bhatia’s house for delivering the newspaper ‘Prout’. It is correct that I had not met Tilak Raj Bhatia at all after this occurrence.

        (xii) I deny the suggestion that I had told Tilak Raj Bhatia that day (March 20) that we were in possession of hand-grenades and that we were out to kill the Chief Justice of India.

        (xiii) I deny the suggestion that Janki Prasad was the third passenger in the rickshaw at Bhagalpur where he and A-3 were arrested.

        (xiv) I deny the suggestion that none of them told me that they had been procuring arms from Ram Nagina Prasad and that I have made my statement as recorded above merely on the basis of a conversation between (Santoshanand) A-1 and (Sudevanand) A-3 which was over heard by me.

        (xv) I deny the suggestion that I had been given only a torch without any tube in it and that the torch given to me was supposed to itself emit smoke.

        (xvi) It is correct that in all those meetings the attendance was never more than 5 or 6 persons.

        (xvii) I deny the suggestion that I did not break the tube to create the smoke screen, because I was a dishonest man and was in league with the CBI.

        (xviii) It is correct that I had followed Sudevanand (A-3) keeping in mind that if anyone tried to catch him, I would kill him by throwing the hand-grenade.

       Appreciation of Vikram’s evidence shows that he is a reliable witness. In his examination-in-chief, he clearly stated that he was one of the accused in the case and during investigation he was arrested by the CBI. In categorical terms, he asserted that he was aware of the whole incident which led to the throwing of hand-grenades in the car of CJI and was also connected with and involved in the incident along with others.

       From the judgment of the Trial Court, it is crystal clear that the Court was conscious of the credibility of the approver witness and insisted upon corroborative evidence in material particulars of the depositions made by him to see as to whether his evidence was reliable and whether the same was corroborated in material particulars to assume its trueness first. The Trial Court in its judgment referred to several corroborated circumstances and concluded that these assured the correctness and truthfulness of the version of the approver.

       I have minutely scrutinized the evidence of PW-Vikram and the corroborative evidence discussed in detail above and find no substance in the submission of learned counsel for the appellants that the testimony of PW-Vikram has not been corroborated in material particulars. In the evidence given by the approver before the Trial Court, he had definitely and unequivocally implicated A-1 & A-3 in the commission of the crime. The statement of PW-1 is vivid in explanation and inspires full confidence of the Court. The corroborative evidence to the aforesaid statement leaves no doubt in the mind of the Court regarding the involvement of the appellants. He recorded his statement under Section 164 Cr.P.C. before judicial authorities without any delay ruling out possibility of tutoring. The confessional statement recorded by Vikram amply proves the allegations. The evidence in Court does not suffer from any infirmity. PW-Vikram has spoken of presence of A-1 and A-3 during the whole transaction and has unequivocally attributed specific and definite role to each of them in the crime. In the morning, they all had gone to Supreme Court to observe the situation. They stayed and surveyed the area and decided to execute the plan in the evening. Vikram, who had no enmity with the appellants, has been very consistent about the factual matrix not only in his statements under Sections 161/164 Cr.P.C. but also before the Court and has supported the prosecution case fully. The statement of the approver inspires confidence including the conspiracy part which gets full support from the narration of the occurrence given by several other impartial witnesses. There is nothing wrong in accepting his entire statement and true disclosure of the incident coupled with corroboration with the independent witnesses. Vikram is the solitary witness of all the circumstances to be used against the accused persons.

        Even if it is presumed that at one stage or the other, these witnesses assisted the appellants in some way or the other, it will not efface the crime committed by them (the appellants). The appellants cannot be exonerated or given clean chit due to failure of prosecution to put them on trial. In ‘Ranjit Singh v. State’, 1997 VAD (Delhi) 689, This Court observed that failure to put up Bhinderwala or anyone else for trial would not absolve the appellant of criminality on the charge of conspiracy. It observed :

        ‘(246) According to Mr. Kalra, as per the case of the prosecution, Sant Jamail Singh Bhinderwala was the moving spirit and principal conspirator. He was very much alive at the time when the challan was put up in Court for trial. A significant and substantial role was attributed to him in the police report submitted to the Court on completion of the investigation under Section 173, Cr.P.C. We are informed by Mr. Kalra that Sant Jamail Singh Bhinderwala was reported to have died much later. When asked why Sant Jamail Singh Bhinderwala was neither arrested, nor put up as an accused for trial in the case, Mr. Kaira frankly conceded his inability to give any Explanation whatsoever except that the Government developed ‘cold feet’. Notwithstanding that lapse or omission, in view of the earlier discussion on the law of conspiracy, it would not affect the guilt of the appellant Ranjit Singh,

       (247) In the light of the foregoing discussion, we findmerit in the argument of Mr. Kalra and hold that there is sufficient evidence on record to prove that there was culpable connection between the appellant and Sant Jarnail Singh Bhinderwala and that the evidence on record showing the conduct and acts of Sant Jamail Singh Bhinderwala as well as things said and done by him are admissible in evidence against the appellant for the purpose of supporting his conviction on the charge of criminal conspiracy. The impugned findings of the learned Trial Court to the contrary are accordingly altered.’

       Mere reservation of tickets in the fictitious names by A-2 cannot be taken as conclusive proof of his prior knowledge of the conspiracy or deliberate participation in it. A-2 never participated or attended any meeting with co-conspirators in or outside Delhi. Vikram did not attribute any role to A-2 which in any way furthered the alleged conspiracy.

       The circumstances relied on by the prosecution are not sufficient at all to prove A-2’s involvement in the conspiracy. No inference can be drawn with a reasonable degree of certainty that he was having knowledge of the plan / conspiracy. The scanty evidence does not justify his conviction. The evidence on record does not bring out a high level of consciousness qua A-2 in the conspiracy.

       . In the light of above discussion, I am of the view that the prosecution has successfully proved beyond reasonable doubt all the facts and circumstances by convincing evidence which directly point towards the involvement of A-1 and A-3 in the conspiracy to make an attempt on the life of CJI. The conclusion of guilt of A-1 and A-3 is fully established and all the facts and circumstances so established are consistent with the hypothesis of their guilt. The proved facts and circumstances completely form a chain which go only to prove that A-1 and A-3 had committed the crime and there is no other hypothesis except indicating that the A-1 and A-3 conspired to commit the murder of CJI and in pursuance to the same, they attempted on his life on March 20, 1975 by throwing hand-grenades in his car. From the evidence, it is proved beyond doubt that only one view is emerging and it is that the A-1 and A-3 were guilty of committing the offence. Minor discrepancies, exaggerations and improvements highlighted by the appellants’ counsel do not shake the basic structure of the prosecution case in the presence of overwhelming evidence against them. These so called lapses cannot be allowed to defeat the course of justice. No major lacuna in the investigation which was not restricted to Delhi was noticed. Attempt has been made to suggest that all witnesses including police officials, CBI personnel, experts and followers of ‘Organisation’ had conspired against the appellants and they have been falsely implicated. No reason exists to draw such a conclusion. It is unbelievable that everyone would need without any ulterior motive to implicate the appellants in a false case.

       In the light of above findings, benefit of doubt is given to A- 2. A-2’s appeal is accepted and he is acquitted of the charge. Conviction and sentence under Section 120 B IPC is set aside.

       (ii) Criminal Law—FIR—Ingredients—Primary object of FIR from point of view of informant is to set criminal law in motion—Prompt and early reporting of occurrence with all its vivid details gives an assurance regarding truth of prosecution version—It is vital and valuable piece of evidence for appreciating evidence led at trial—FIR is not intended to be a very detailed document and is meant to give only substance of allegations made—FIR is not an encyclopedia—It need not contain an exhaustive account of incident—Non-mentioning of minute details thereon does not mean that facts do not exist and its author was not aware of details—At that point of time, recording of statement was to set police machinery into motion—There is every possibility of minor mismatch between version recorded in 161 Cr.P.C. and statement given in Court. (Para 37)

       (iii) Evidence Act, 1872—Section 24—Extra-judicial confession—Evidence about extra judicial confession in very nature of things is a weak piece of evidence—But in a case where evidence of extra judicial confession on scrutiny is found to be free from legal infirmity and Court believes witnesses before whom confession is made and is satisfied that confession was voluntarily, then in such a case conviction can be based on such evidence—Law does not require that evidence of extra judicial confession should in all cases be corroborated. (Para 63)

       (iv) Evidence Act, 1872—Section 45—Expert opinion—Science of identification of foot print is not a fully developed science and no reliance can be placed upon it to base conviction—However, report of expert can be taken as additional link to corroborate other clinching evidence on record. (Para 75)

       (v) Evidence Act, 1872—Section 106—Burden of proving fact—None of accused gave plausible explanation to incriminating circumstances—Under Section 106 of Evidence Act, adverse inference is to be drawn against them—They cannot get away by simply keeping quiet and offering no explanation on supposed premise that burden to establish its case lies entirely upon prosecution—Unnatural conduct of appellant (A-1) to travel in a fictitious name out of Delhi soon after occurrence is an incriminating circumstance to connect him with crime. (Para 89)

       (vi) Evidence Act, 1872—Section 33—Relevancy of evidence—Where presence of a witness examined in Court of committing Magistrate cannot be obtained without amount of delay and expense which under circumstances of case, Court considers unreasonable and there was evidence to show that attempts were made to secure his presence in Trial Court, his evidence can be brought on record and will constitute substantive evidence. (Para 97)

       (vii) Criminal Law—Appreciation of evidence—Prosecution must stand on its own legs and it cannot derive any strength from weakness of defence—Though suggestions made in cross-examination is not evidence but certainly same may be called into aid only to lend assurance to prosecution case particularly when other evidence establishes guilt of accused. (Para 125)

       (viii) Criminal Procedure Code, 1973—Section 306—Tender of pardon—Judicial propriety—Principle of tendering pardon to an accomplice is to unravel truth in a grave offence so that guilt of other accused persons concerned in commission of crime could be brought home—Accomplice’s evidence is taken on record as a matter of necessity in case where it is impossible to get sufficient evidence of a heinous crime unless one of participators in crime is disposed to disclose circumstances within his knowledge on account of tender of pardon—There was no legal impediment in grant of pardon to co-accused—Trial Court was conscious of credibility of approver witness and insisted upon corroborative evidence in material particulars of depositions made by him to see as to whether his evidence was reliable and whether same was corroborated in material particulars to assume its trueness first—Trial Court in its judgment referred to several corroborated circumstances and concluded that these assured correctness and truthfulness of version of approver. (Paras 127, 128 and 133)

       (ix) Criminal Procedure Code, 1973—Section 232—Acquittal of accomplice— Mere fact that a person did not reveal his knowledge of intended crime to authorities does not make him an accomplice—An accused is a person who has concurred in commission of offence—Since all of them were followers of same ‘Organisation’ at one time, their association with appellants during relevant period cannot be taken incriminating to discredit their testimonies and entangle them in cobweb of conspiracy—They appear to be victims of circumstances—They were used by appellants—They did not know the nature of conspiracy hatched by the accused persons—Their evidence cannot be discarded as tainted evidence; they were to gain nothing by telling falsehood. (Para 137)

       (x) Criminal Law—Motive—Probative value—Normally, there is a motive behind every criminal act and for that reason investigating agencies as well as Court try to ascertain as to what was motive on part of accused to commit crime while examining his complicity—In a case which is based upon circumstantial evidence, motive for committing crime on part of accused assumes greater importance. (Para 141)

       (xi) Indian Penal Code, 1860—Section 149—Unlawful assembly—Gist of offence is agreement to break law—Unlawful agreement and not its accomplishment is essence of crime of conspiracy—Mere knowledge or even discussion of plan is not per se enough—Those who do not form requisite intention cannot be roped in as conspirator on the basis of mere knowledge unless they commit acts or omissions from which a guilty ‘intention’ can be inferred. (Para 158)

       Result: Appeals Partly allowed.