Case: Kehar Singh and Ors Vs. State (Delhi Administration)

G.L. Oza, J. 1. These appeals by leave are directed against the conviction of the three appellants Kehar Singh, Balbir Singh and Satwant Singh under Section 302 read with Section 120B IPC and the appellant Satwant Singh under Section 302 read with Section 120B, Section 34 & Section 307 IPC and also under Section 27 of the Arms Act. All the three were sentenced to death under Section 302 read with Section 120B. The conviction and sentence of these appellants were confirmed by the High Court of Delhi by its judgment in Criminal Appeal Nos. 28-29/1986 and Confirmation Case No. 2/86. The case relates to a very unfortunate incident where the Prime Minister Smt. Indira Gandhi was assassinated by persons posted for her security at her residence. 2. The facts brought out during investigation are that Smt. Indira Gandhi had her residence in New Delhi at No. 1, Safdarjung Road. Her Office was at No. 1, Akbar Road which was a bungalow adjoining her residence. In fact the two bungalows had been rolled into one by a campus with a cemented pathway about 8 ft. wide leading from the residence to the Office and separated by a Sentry gate which has been referred to as the TMC Gate and a sentry booth nearby. Smt. Indira Gandhi had gone on a tour to Orissa and returned to New Delhi on the night of 30th October, 1984. At about 9 A.M. on the fateful day i.e. 31stOctober, 1984Smt. Gandhi left her residence and proceeded towards the office along the cemented path. When she approached the TMC Gate and was about 10 or 11 ft. away therefrom she was riddled with a spray of bullets and she fell immediately. She was removed to All India Institute of Medical Sciences (AIIMS for short) but to no avail. A wireless message about the occurrence was received at 9.23 A.M. by the Wireless Operator Head Constable Ram Kumar PW 38 at Tuglak Road Police Station having jurisdiction over the place of occurrence. The Duty Officer PW 1 deputed Sub Inspector Vir Singh PW 20 and Constable Mulak Raj to visit the spotatonce. They were soon joined by the Station House Officer Inspector Baldev Singh Gill PW 21. These persons roped off the area of occurrence to isolate it, placed it in charge of Constable and then proceeded to AIIMS. 3. In the meanwhile it was decided to entrust this investigation to Rajendra Prasad Kochhar PW 73 then Inspector in the Homicide squad of the Crime Branch of Delhi Police. However, as is only to be expected having regard to the circumstances, the Government soon decided to constitute a Special Investigation Team (SIT) to pursue the investigation. On 9.11.84 the Delhi Administration issued two notifications. By one of these in exercise of powers under Section 7(1) of Delhi Police Act, S. Anandram, IPS was appointed as an Additional Commissioner of Police and was declared for the purpose of Section 36 Cr. P.C. to be a Police Officer superior in rank to an Officer-in-charge of a Police Station. By the other notification issued in exercise of the powers Conferred under Section 7(2)(b) of the Police Act, Anandram was authorised to exercise all the powers and perform all the duties of commissioner of Police in relation to this case and any other offences connected thereto. The notification shows that copy of each of them is forwarded for publication to the Delhi Gazette. Sometime later on 22nd December, 1984 the Administration in exercise of powers under Section 8(1) of the Police Act appointed Des Raj Kakkar and M.S. Sharma as Deputy Commissioner of Police and Assistant Commissioner of Police respectively designating them as Officers superior to an Officer-in-charge of a Police Station and placed their services at the disposal of Shri Anandram. We understand that Shri R.P. Kapoor was named as the Chief Investigative Officer but it was Mr. Kochhar who was closely associated with the investigation throughout except for a short period between 15.11.84 when the SIT assumed charge and 27.11.84 when his services were lent to SIT and he is an important witness of the prosecution so far as investigation is concerned. 4. Shri Kochhar reached AIIMS at about 10 A.M. and at 11.25 A.M. on 31.10.84 he sent at the Tuglak Road Police Station through Shri Vir Singh, PW 20 a report on the basis of which First Information Report (FIR) for a cognizable offence punishable under Sections 307, 120B IPC and Sections 25, 27, 54 & 59 of the Arms Act was registered at the Police Station. The report was based on the statement of Narain Singh, PW 9, a Head Constable deputed on duty at Smt. Indira Gandhis residence, recorded by Shri Kochhar at AIIMS. Narain Singh who was accompanying Smt. Gandhi at the time of shooting and claimed to be a witness of occurrence had stated as follows. This statement made by Narain Singh in the First Information Report brings out the important facts leading to the offence and this part of the Statement as quoted by the High Court reads: When we were about 10-11 ft. away from the gate of 1, Safdarjung Road and 1, Akbar Road, I noticed Beant Singh SI on duty at TMC Gate and in the adjoining Sentry booth Constable Satwant Singh, 2nd En. in uniform armed with a Stengun was on duty. When Smt. Indira Gandhi reached near the Sentry booth, Beant Singh, SI took out his service revolver from his right dub and immediately started firing bullets at Smt. Indira Gandhi. At the same time Constable Satwant Singh also fired shots at Smt. Indira Gandhi with his Stengun. As a result of firing of bullets at the hands of the aforesaid two persons Smt. Indira Gandhi sustained injuries on her front and fell down on the ground. Sh. Rameshwar Dayal ASI has also received bullet injuries due to the firing made by the aforesaid two persons. I threw the umbrella, Shri Beant Singh SI and Constable Satwant Singh were secured with the assistance of Shri B.K. Bhatt, AGP PSO in ITBP personnel. The arms of these two persons fell down on the spot itself. Thereafter I went to call Dr. R. Obey. In the meantime the car, doctor and the other officials reached the place of occurrence and Smt. Indira Gandhi was removed to AIIMS and was got admitted there. Shri B.K. Bhatt, Shri R.K. Dhawan, Shri Nathu Ram, Sh. Lavang Sherpand Shri Rameshwar Dayal ASI had witnessed the occurrence. Beant Singh SI and Constable Satwant Singh in furtherance of their common objects have fired shots at Smt. Indira Gandhi and have caused injuries on her person with an intention to kill her. It is learnt that Beant Singh SI and Constable Satwant Singh had also sustained bullet injuries at the hands of ITBP personnel. Legal action may please be taken against them. 5. Upon receiving the news about the death of Smt. Indira Gandhi, the offence in the FIR was converted from Section 307 to Section 302 and investigation proceeded ahead. 6. According to the prosecution Satwant Singh was arrested on 15.11.84 at Red Fort where he had been taken after his discharge from the Hospital in early hours of the same day. The Chief Justice and the Judges of the Delhi High Court on a request made by Delhi Administration decided to depute and designate Shri S.L. Khanna, Additional Chief Metropolitan Magistrate, Tis Hazari to deal with the remand matter of Satwant Singh in Red Fort, Delhi. Satwant Singh was produced before Shri S.L. Khanna, PW 67 on the same day and remanded to the police custodytill29.11.84. On 29.11.84itwas said that Satwant Singh wanted to make a confession and he was produced before Shri Khanna. Shri Khanna, however, gave him time to think over till 1.12.84 and remanded him to judicial custody in Tihar Jail. It appears that thereafter the Delhi Administration again made a request to the Delhi High Court and the Delhi High Court authorised Sh. S.L. Khanna by Order dated 1.12.84 to hold remand proceedings in Tihar Jail on 1.12.84 and on subsequent dates. It also appears that Shri G.P. Tareja who was the link Magistrate of Shri S.L. Khanna had gone on long leave and by an order dated 1.12.84, Shri Bharat Bhushan Gupta, PW 1 was appointed as a link Magistrate in this case. In the light of these orders Satwant Singh was produced before Shri Khanna on 1.12:84 in the Jail. He passed on the papers to Shri Bharat Bhushan Gupta and later recorded a confession from Satwant Singh on the same day which is Ex. 11-G. 7. One Kehar Singh said to be an Uncle (Phoopha) of Beant Singh working as an Assistant in the Office of the Director General of Supplies & Disposals was claimed to have been arrested on 30.11.84. He was produced before Shri Khanna on 1.12.84 who remanded him to police custody till 5.12.84. He is said to have made a statement on3.12.84 in pursuance of which some incriminating articles were seized at his house and from & place pointed out by him. He was again produced on 5.12.84 before Shri S.L. Khanna who remanded him to judicial custody till 15.12.84 pending further investigation. 8. Balbir Singh, a Sub-Inspector posted for security duty at Smt. Gandhis office is said to have been arrested on 3.12.84. It is said that certain incriminating material was found on his person when searched at the time of his arrest. On 4.12.84 at the request of Delhi Administration the High Court empowered Shri S.L. Khanna to deal with the remand matter of these persons accused in the assassination case of Prime Minister. Balbir Singh was therefore produced before Shri S.L. Khanna on 4.12.84 and was remanded to the police custody till 6.12.84. On 6.12.84 an application was filed before Shri S.L. Khanna which stated that Balbir Singh wanted to make a confession. The matter was sent by Sh. S.L. Khanna to Sh. Bharat Bhushan Gupta. After two appearances before Shri Bharat Bhushan, Balbir Singh finally refused to make statement confessional or otherwise. 9. In the meantime the Police had recorded certain statements one of Amarjit Singh PW 44 who was also a Police Officer ASI on duty at the PMs residence. These statements have been recorded on 24.11.84 and 19.12.84. The Police requested the Magistrate Shri Bharat Bhushan to record a statement of Amarjit under Section 164 Cr. P.C. That was accordingly recorded as PW 44-A. 10. Beant Singh had died as a result of injuries sustained by him and referred to by Narain Singh in his statement in the FIR itself. A report under Section 173 Cr.P.C hereto referred to as the charge-sheet was filed on 11.12.1985 in the Court of Shri S.L. Khanna against Satwant Singh who had survived after a period of critical illness from his injuries and the two other persons referred to above namely Balbir Singh and Kehar Singh. These three persons were accused of an offence under Sections 120-B, 109 and 34 read with 302 IPC and also of substantive offences under Sections 302, 307 IPC and Sections 27,54 & 59 of the Arms Act. This report also mentions Beant Singh as one of the accused persons but since he had died the charges against him were said to have abetted. 11. The prosecution case at the trial was that in June 1984 the armed forces of the Indian Union took action which is described generally as Operation Bluestar under which armed forces personnel entered the Golden Temple complex at Amritsar and cleared it off the terrorists. In this operation it is alleged that there was loss of life and properties as well as damage amongst other things to the Akal Takht in the Golden Temple complex. As a result of this Operation the religious feelings of the members of the Sikh community were greatly offended. According to the prosecution, all the four accused persons mentioned in the charge-sheet who were Sikhs by faith have been expressing their resentment openly and holding Smt. Indira Gandhi responsible for the action taken at Amritsar. They had met at various places and at various times to discuss and to listen inflammatory speeches and recording calculated to excite listeners and provoke them to retaliatory action against the decision of the Government to take army action in Golden Temple complex. The resentment led them ultimately to the incident of 31.10.84 and to become parties to a criminal conspiracy to commit an illegal act namely to commit the murder of Smt. Indira Gandhi. In pursuance of the above conspiracy accused has committed the following acts. This report (charge-sheet) stated facts against each of the accused persons which have been quoted by the High Court in its judgment: (i) Accused Kehar Singh, a religious fanatic, after the Bluestar Operation converted Beant Singh and through him Satwant Singh to religious bigotry and made them undergo Arnrit Chakna ceremony on 14.10.1984 and 24.10.1984 respectively at Gurudwara Sector VI, R.K. Puram, New Delhi. He also took Beant Singh to Golden Temple on 20.10.1984 where Satwant Singh was to join them as part of the mission. (ii) Since the Bluestar Operation Balbir Singh was planning to commit the murder of Smt. Indira Gandhi and discussed his plans with Beant Singh, who had similar plans to commit the offence. Balbir Singh also shared his intention and prompted Satwant Singh to commit the murder of Smt. Indira Gandhi and finally discussed this matter with him on 30th October, 1984. (iii) In the first week of September, 1984, when a falcon (baaz) happened to sit on a tree near the main reception of PMs house, at about 1.30 P.M. Balbir Singh spotted the falcon, called Beant Singh there and pointed out the falcon. Both of them agreed that it had brought the message of the Tenth Guru of the Sikhs and that they should do something by way of revenge of the Bluestar Operation. Both of the above accused performed ardas then and there. (iv) In pursuance of the aforesaid conspiracy, Beant Singh and Satwant Singh, who had prior knowledge that Smt. Indira Gandhi was scheduled to pass through the T.M.C. Gate on31.10.1984 at about 9 A.M. for an interview with an Irish television team, manipulated their duties in such a manner that Beant Singh would be present at the T.M.C. Gate and Satwant Singh at the T.M.C. Sentry booth on 31.10.1984 between 7.00 and 10.00 A.M. Beant Singh managed to exchange his duty with SI Jai Narain (PW 7) and Satwant Singh arranged to get his duty changed from Beat No. 4 at PMs house to T.M.C. Sentry Booth situated near the latrine by misrepresenting that he was suffering from dysentery. Beant Singh was armed with a revolver (No. J-296754, Butt No. 140) which had 18 cartridges of 38 bore and Satwant Singh was armed with a SAF Carbine (No. WW-13980 with Butt No. 80) and 100 cartridges of 9 mm. Both having managed to station themselves together near to T.M.C. Gate on 31.10.1984, at about 9.10 A.M., Beant Singh opened fire from his revolver and Satwant Singh from his carbine at Smt. Indira Gandhi as she was approaching the T.M.C. Gate. Beant Singh fired five rounds and Satwant Singh 25 shots at her from their respective weapons. Smt. India Gandhi sustained injuries and fell down. She was immediately taken to the AIIMS where she succumbed to her injuries the same day. The cause of death was certified upon a post-mortem which took place on 31.10.1984, as haemorrhage and shock due to multiple fire arm bullet injuries which were sufficient to cause death in the ordinary course of nature. The post-mortem report No. 1340/ 84 of the AIIMS also opined that injuries Nos. 1 and 2, specified in the report, were sufficient to cause death in the ordinary course of nature, as well. 12. In this report (charge-sheet) it was also mentioned that Beant Singh and Satwant Singh laid down their weapons on the spot which had been recovered. About five empties of Beant Singhs revolver were recovered and 13 live cartridges 38 bore from his persons, 25 empties of SAF carbine and 6 led pieces were recovered from the spot. About 75 live cartridges of .99 SAF carbine were recovered from the person of Satwant Singh.. That two led pieces were recovered from the body of Smt. Indira Gandhi during the post-mortem and two from her clothes and that the experts have opined that the bullets recovered from the body and found from the spot were fired through the weapons possessed by these two accused persons. The report also mentioned that Remeshwar Dayal ASI who was following Smt. Indira Gandhi, PW 10 also received grievous and dangerous injuries on his left thigh as a result of shots fired by the accused which according to the medical opinion were grievous and dangerous to life. 13. It is significant that in this case the Additional Sessions Judge who tried the case was nominated by the High Court for trial of this case and on this count some arguments were advanced by the learned Counsel for the appellants. I will examine the contentions a little later. Learned counsel appearing for appellants Kehar Singh and Balbir Singh first raised some preliminary objections about the procedure at the trial. First contention raised by him was about the venue of the trial and the manner in which this venue was fixed by the Delhi High Court by a notification under Section 9(6) Cr.P.C. 14. The second objection was about the trial held in jail and it was contended that under Article 21 of the Constitution of India, open and public trial is one of the constitutional guarantees of a fair and just trial and by holding the trial in the Tihar Jail this guarantee has been affected and accused have been deprived of a fair and open trial as contemplated under Section 327 Cr.P.C. The other objection raised was that under Section 327 Cr. P.C. it is only the trial Judge, the Sessions Judge who could for any special reasons hold the trial in camera or a part of the trial in camera but there is no authority conferred under that Section on the High Court to shift the trial in a place where it ultimately ceases to be an open trial. Learned counsel on this ground referred to series of decisions from United States, England and also from our own courts and contended that the open trial is a part of the fair trial which an accused is always entitled to. 15. The other question raised by the learned Counsel for the appellants was that by preventing the accused from getting the papers of the Thakkar Commission, its report and statements of persons recorded; who are prosecution witnesses at the trial the accused have been deprived of substantial material which could be used for their defence. 16. These main questions were raised by the counsel appearing for Kehar Singh and Balbir Singh and counsel for Satwant Singh adopted these arguments and in addition raised certain preliminary objection pertaining to the evidence of post-mortem, ballistic expert and similar matters. 17. Learned Additional Solicitor General appearing for the respondent replied to some of the legal arguments and also the other arguments on facts. One of the preliminary objections sought to be raised by the learned Additional solicitor General was that this Court in an appeal under Article 136 of the Constitution of India is not expected to interfere with the findings of facts arrived by the two courts below. He also relied on some decisions of this Court to support his contention. 18. On the preliminary objection raised by the Additional Solicitor General that in this appeal under Article 136, we are not expected to go into the facts of the case, we will like to observe that we are dealing with a case where the elected leader of ourpeople, the Prime Minister of India was assassinated and who was not only an elected leader of the majority but was very popular with the people, as observed also by the High Court in its judgment but still we have all through maintained the cardinal principle of our Constitution - Equality before law and the concept of rule of law in the system of administration of justice. Although these accused persons indicated at some stage that they are not able to engage counsel but still they could get the services of counsel of their choice at the State expense, it must be said to the credit of the learned Counsel Shri Ram Jethmalani and Shri R.S. Sodhi that they have done an excellent job for the appellants and therefore we will like to thank these counsel and also the Additional Solicitor General, who all have rendered valuable assistance to this Court. 19. In view of the importance of the case, we have heard the matter at some length both on questions of law and also on facts. 20. The first objection raised by the learned Counsel is on the basis of Section 194 that it was not necessary for the High Court to have allotted the case to a particular Judge. The learned Judges of the High Court in their judgment have come to the conclusion that the last part of the Section refers to The High Court may by special order direct him to try and on the basis of this phrase the High Court in the impugned judgment, has observed that it was even open to the accused to make an application and to get the case transferred or allotted to a Judge. Section 194 Cr. P.C. reads: Additional and Assistant Sessions Judge to try cases made over to them - An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try. The first part of the Section clearly provides that the Sessions Judge of the Division by general or special order is supposed to allot cases arising in a particular area or jurisdiction to be tried by Additional or Assistant Sessions Judges appointed in the division but the last part of this Section also authorises the High Court to allot the case to a particular Judge keeping in view the fact that in certain cases the Sessions Judge may not like to allot and may report to the High Court or either of the parties may move an application for transfer and under these circumstances it may become necessary for the High Court to allot a particular case to a particular Judge. Thus, this objection is of no consequence. The other objection which has been raised by the learned Counsel is about the issuance of a notification by the High Court under Section 9(6) Cr.P.C. and by this notification the High Court purported to direct that the trial in this case shall be held in Tihar Jail. Learned counsel appearing for the Delhi Administration on the other hand attempted to justify such an order passed by the High Court by contending that if the High Court had the authority to issue notification fixing the place of sitting it was open to the High Court also to fix the place of sitting for a particular case whereas emphasis by learned Counsel for the appellants was that Section 9(6) only authorises the High Court to fix the place of sitting generally. So far as in any particular case is concerned, the second part of Sub-clause 6 permits the trial court with the consent of parties to sit at any other place than the ordinary place of sitting. 21. The High Court in the impugned judgment have attempted to draw from proviso which has been a local amendment of Uttar Pradesh. Unfortunately nothing could be drawn from that proviso as admittedly that is not a State amendment applicable to Delhi. Section 9(6) Cr. P.C. nowhere permits the High Court to fix the venue of a trial of particular case at any place other than the place which is notified as the ordinary place of sitting. It reads thus: Section 9(6): The Court of Session shaft ordinarily hold its sitting at such place or places as the High Court may, by notification, specify but if, in any particular case, Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. On the basis of this language one thing is clear that so far as the High Court is concerned it has the jurisdiction to specify the place or places where ordinarily a Court of Sessions may sit within the division. So far as any particular case is to be taken at a place other than the normal place of sitting it is only permissible under the second part of sub-clause with the consent of parties and that decision has to be taken by the trial court itself. It appears that seeing the difficulty the Uttar Pradesh amended the provision further by adding a proviso which reads: Provided that the court of Sessions may hold, or the High Court may, direct the Court of Session to hold, its sitting in any particular case at any place in the sessions division, where it appears expedient to do so for considerations of internal security or public order, and in such cases, the consent of the prosecution and accused shall not be necessary. 22. But it is certain that if this proviso is not on the statute book applicable to Delhi, it can not be used as the High Court has used to interpret it. That apart, if we look at the notification from a different angle the contention advanced by the learned Counsel for the appellants ceases to have any force. Whatever be the terms of the notification, it is not disputed that it is a notification issued by the Delhi High Court under Section9 Sub-clause (6) Cr.P.C. and thereunder the High Court could do nothing more or less than what it has the authority to do. Therefore, the said notification of the High Court could be taken to have notified that Tihar Jail is also one of the places of sitting of the Sessions Court in the Sessions division ordinarily. That means apart from the two places Tis Hazari and the New Delhi, the High Court by notification also notified Tihar Jail as one of the places where ordinarily a Sessions Court could hold its sittings. In this view of the matter, there is no error if the Sessions trial is held in Tihar Jail after such a notification has been issued by the High Court. 23. The next main contention advanced by the counsel for the appellants is about the nature of the trial. It was contended that under Article 21 of the Constitution g. citizen has a right to an open public trial and as by changing the venue the trial was shifted to Tihar Jail, it could not be said to be an open public trial. Learned counsel also referred to certain orders passed by the trial court wherein it has been provided that representatives of the Press may be permitted to attend and while passing those orders the learned trial Judge had indicated that for security and other regulations it will be open to Jail authorities to regulate the entry or issue passes necessary for coming to the Court and on the basis of these circumstances and the situation as it was in Tihar Jail it was contended that the trial was not public and open and therefore on this ground the trial vitiates. It was also contended that provisions contained in Section 327 Cr.P.C. clearly provides that a trial in a criminal case has to be public and open except if any part of the proceedings for some special reasons to be recorded by the trial court, could be in camera. It was contended that the High Court while exercising jurisdiction. under Section 9(6) notified the place of trial as Tihar Jail, it indirectly did what the trial court could have done in respect of particular, part of the proceedings and the, High. Court has no jurisdiction under Section 327 to order trial to be held in camera or private and in fact as the trial was shifted to Tihar Jail it ceased to be open and public trial. Learned counsel on this part of the contention referred to decisions from American Supreme Court and also from House of Lords. In fact, the argument advanced has been on the basis of the American decisions where the concept of open trial has developed in due course of time whereas so far as India is concerned here even before the Constitution our criminal practice always contemplated a trial which is open to public. 24. In fact, the High Court in the impugned judgment was right when it referred to the concept of administration of justice under the old Hindu Law. But apart from it even the Criminal Procedure Code as it stood before the amendment had a provision similar to Section 327 which was Section 352 of the Old Code and in fact it is because of this that the criminal trial is expected to be open and public that in our Constitution phraseology difference from the United States has been there. Article 21 provides: No person shall be deprived of, his life or personal liberty except according to procedure established by law. It is not disputed that so far as this aspect of open trial is concerned the procedure established by law even before our Constitution was enacted was as is provided in Section 327 Cr.P.C. (Section 352 of the old Code): Court to be open-(1) The place in which any. Criminal Court is held for the purpose of inquiring into or trying any offence Shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them: Provided that the Presiding Judge or Magistrate, may, if he thinks fit, of order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court. (2) Notwithstanding anything contained in Sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376A, Section 376B, Section 376C or Section 376D of the Indian Penal Code shall be conducted in camera: Provided that the presiding judge may, if he thinks fit, or on an application made by either of the parties, allow any particular per: son to have access to, or be or remains in, the room or building used by the court. (3) Where any proceedings are held under Sub-section (2) it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the court. This was Section 352 in the CrPC which was Act of 1898. It will be interesting to notice the language of Section 327. It speaks that any place where a criminal court holds its sitting for enquiry or trial shall be deemed to be an open court to which the public generally may have access. So far as the same can conveniently contain them. The language itself indicates that even if a trial is held in a private house or is held inside Jail or anywhere no sooner it becomes a venue of trial of a criminal case it is deemed to be his law an open place and everyone who wants to go and attend the trial has a right to go and attend the trial except the only restriction contemplated is number of persons which could be contained in the premises where the Court sits. It appears that the whole argument advanced on behalf of the appellants is on the basis of an assumption inspite of the provisions of Section 327 that as the trial was shifted from the ordinary place where the Sessions Court are sitting to Tihar Jail it automatically became a trial which was not open to public but in our opinion in view of Section 327 this assumption, the basis of the argument itself is without any foundation and can not be accepted and argument on the basis of the foreign decisions loses all its significance. So far as this country is concerned the law be very clear that as soon as a trial of a criminal case is held whatever may be the place it will be an open trial. The only thing that it is necessary for the appellant is to point out that in fact that it was not an open trial. It is not disputed that there is no material at all to suggest that any one who wanted to attend the trial was prevented from so doing or one who wanted to go into the Court room was not allowed to do so and in absence of any such material on actual facts all these legal arguments loses its significance. The authorities on which reliance were placed are being dealt with elsewhere in the judgment. 25. Learned Additional Solicitor General attempted to contend that this is not a question of any constitutional right under Article 21 and the basis of his argument was that Article 21 only talks of procedure established by law and if today on the statute book there is Section 327, tomorrow Section 327 may be so amended that it may not be necessary for a criminal trial to be open and on this basis, learned Additional Solicitor General attempted to contend that it does not become a constitutional right at all. It is very clear that Article 21 contemplates procedure established by law and in my opinion the procedure established by law was as on the day on which the Constitution was adopted and therefore it is not so easy to contend that by amending the Criminal Procedure Code the effect of the procedure established by law indicated in Article 21 could be taken away. The trend of decisions of this Court has clearly indicated that the procedure must be fair and just. Even expeditious trial has been considered to be a part of guarantee under Article 21 but in my opinion so far as the present case is concerned it is not necessary to go so far. At present no one could dispute that the procedure established by law as indicated in Article 21 is as provided in Section 327 and unless on facts it is established that what is provided in Section 327 was prevented or was not permitted, it could not be said that merely because trial was held at a particular place it could be said to be a trial which was not open to public. As indicated earlier on facts there is nothing to indicate although learned Counsel also attempted to some extent to suggest that there were restrictions. A person has to pass through two gates, a person has to sign on the gate and had to have a pass or a clearance but in the modern times especially in the context of the circumstances as they exist. On this basis it could not be said that it ceased to be a public trial. It could not be doubted that at one time in this Court the highest Court of the land, any one could freely walk in and sit and attend the Court but today even in this Court there are restrictions and one has to pass through those restrictions but still it could not be said that any one is prevented from attending the Court and therefore merely suggesting the difficulties in reaching the Jail will not be enough. On the other hand, learned Additional Solicitor General drew our attention to the plan of the Jail and the situation of the premises where the trial was held and it is not disputed that it was not that part of the Jail where the prisoners are kept but was the Office block where there was an approach, people were permitted to reach and the trial was held as if it was held in an ordinary place and it is in this view that as I observed earlier that in fact what the High Court did by issuing a notification under Section 9(6) was not to fix place of trial of this particular case in Tihar Jail. But what could be understood is that High Court by notification made Tihar Jail also as one of the places where a Sessions Court could ordinarily sit and in this case therefore the trial was held at this place. As soon as a trial is held whatever the place may be the provisions of Section 327 are attracted and it will be an open Court and every citizen has a right to go and unless there is evidence or material on record to suggest that on the facts in this particular case public at large was not permitted to go or some one was prevented from attending the trial or that the trial was in camera. In fact without an appropriate order it could not be said that what is contemplated under Section 327 or under Article 21 was not made available to the accused in this case and therefore it could not be contended that there is any prejudice at the trial. 26. There remains however one more question which was raised by the counsel for the appellants that inspite of the prayer made by the accused person during the trial and also in the High Court about the copies of the statement of witnesses who have been examined by the prosecution and S.C.205 were also examined before the Commission (Thakkar Commission) to be provided to the accused so that they may be in a position to use these statements for purposes of contradiction or for other purposes. They had also prayed for the copy of the Thakkar Commission report as the Thakkar Commission was inquiring into the events which led to the assassination of the Prime Minister. In fact, it was contended that the terms of reference which were notified for the enquiry of the Thakkar Commission were more or less the same questions which fell for determination in this case and thus the appellants have been prejudiced and they could not avail of the material which they could use to build up their defence. According to learned Counsel not only the accused are entitled to previous statements of witnesses who are examined by the prosecution but they are also entitled to any material on the basis of which they could build up their defence and raise appropriate issues at the trial. Learned counsel relied on number of decisions and also said that the decision of the Supreme Court in Dalmias case is not binding as in that case the scope of Section 6 of the Commission of Enquiry Act was not in question. 27. Whereas learned Counsel for the respondent, the Additional Solicitor General vehemently contended that the language of Section 6 is clear that a witness, who is examined before a Commission, is protected and that protection is such which clearly indicates that his statement made before the Commission could not be used against him for any other purpose in any other proceeding either civil or criminal. The only exception carved out in Section 6 pertains to his prosecution for perjury and therefore when the language is clear and the exception carved out is clear enough, no other exception could be carved out nor the Section could be interpreted in any manner. According to the Additional Solicitor General the Commission by its regulation and notification clearly made the enquiry a confidential affair and in addition to that there was an amendment of the Act by Ordinance which even provided that if Government by notification decided not to place the Report of the Commission before the House of Parliament or Legislature then it was not necessary that it should be so placed before the House and thus the report not only was confidential but even the Parliament had no right to see the report and therefore neither the report nor the statements made before the Commission could be asked for by the accused for the purposes of trial. 28. Soon after the assassination of Smt. Indira Gandhi, the Government of India by notification dated 20.11.84 constituted a Commission under the Commission of Enquiry Act, 1952 (the Act). The Commission was presided over by Mr. Justice M.P. Thakkar, a sitting Judge of this Court. The terms of enquiry notified for the Committee reads: a) the sequence of events leading and all the facts relating to, the assassination of late Prime Minister; b) Whether the crime could have been averted and whether there were any lefts or dereliction of duty in this regard on the part of any one of the commission of the crime and other individuals responsible for the security of the late Prime Minister; c) the deficiencies, if any, in the security system and arrangements as prescribed or as operated to in practice which might have facilitated the commission of the crime; d) the deficiencies, if any, in the procedure and measures as prescribed, of as operated in practice in attending to any providing medical attention to the late Prime Minister after the commission of the crime; and whether was any lapse or dereliction of duty in this regard on the part of the individuals responsible for providing such medical attention; e) whether any person or persons or agencies were responsible for coursing, preparing and planning the assassination or whether there was any conspiracy in this behalf, and if so, all its ramifications. 29. The Commission was also asked to make recommendations as to corrective remedies and measures that need to be taken for future. 30. It is therefore clear that out of these terms of reference the first term (a) and the last one (e) are such that the evidence collected by the Commission could be said to be relevant for the purposes of this trial. 31. It is significant that the Commission framed regulations under Section 8 of the Act in regard to the procedure for enquiry and regulation 8 framed therein reads: In view of the sensitive nature of enquiry the proceedings will be in camera unless the Commission directs otherwise. This Regulation made it clear that the proceedings of the Commission will be ordinarily in camera. It would only be in public if the Commission so directs and it is not disputed that so far as recording of evidence is concerned and the proceedings of the Commission it has gone on in camera throughout and even the report, interim and the final report. And then also it was stated by the Commission itself to be confidential. In this perspective the prayer of the appellants has to be considered. 32. Under the Act as it stood before the amendment which was done by Ordinance No. 6 of 1986 normally the Government was supposed to place the report of the Commission under Section 3 Sub-clause 4 of the Act before the House of the People within six months of the submission of the report by the Commission but the Government did not do that. The steps were taken to amend the Commission of Enquiry Act and on May 14, 1986 the President of India promulgated an Ordinance No. 6 of 1986 namely Commission of Enquiry (Amendment) Ordinance, 1986 by which Sub-sections 5 and 6 were introduced to Section 3 as follows: Sub-clause 5: The provisions of Sub-section 4 shall not apply if the appropriate Govt. is satisfied then in the interest of the sovereignty and integrity of India, the security of the State friendly relations with foreign states or in public interest, it is not expedient to lay before the House of People, or as the case may be, the Legislative Assembly of the State, the report or any part thereof, of the Commission. On the enquiry made by the Commission under Sub-section (1) and issue a notification to that effect in the official gazette. (6) Every notification issued under Sub-section(5)shall be laid before the House of the People, as the case may be the Legislative Assembly of the State, if it is as may be after the issued of the notification, and if it is not sitting, writ in seven days of its resuming and the appropriate Govt. shall seek the approval of the House of People, or as the case may be, the Legislative Assembly of the State to the notification by a resolution moved within a period of 15 days beginning with the day on which the notification is so laid before the House of People or as the case may be the Legislative Assembly of the State makes any modification in the notification or directs that the notification should be care in have effect. The notification shall their after have effect as the case may be. In pursuance of this amendment on May 15, 1986 the Central Government issued a notification under Sub-section (5) of Section 3 satisfied that it is not Central Government, being satisfied that. it is not expedient in the interest of the security of the State and in public interest to lay before the House of People, the reopen submitted to the Government on 19.11.85, and 27.2.86, by Justice M.P. Thakkar, a sitting Judge of the Supreme Court of India appointed under the notification of the Government of India, in the Ministry of Home Affairs No. 50 867(B), dated the 20th November 1984 thereby notifies that the said report shall not be laid before the House of People. It is interesting that on 20.8.86, Ordinance No. 6 was replaced by Commission of Enquiry (Amendment) Act, 1986 (Act No. 36 of 1986 with retrospective effect. The said notification dated May 15,1986 was also got approved by the House of People as required under Sub-section 6 of Section 3 and therefore after the approval of the notification by the House of the People there remains no question of placing the report of the Commission before the House. 33. So far as the steps taken by the appellants are concerned, it is no doubt true that an appropriate application in the manner in which it was moved in the High Court was not moved in the trial court but it could not be doubted that one of the accused persons had even sought these copies in the trial court and the same prayer has been appropriately made during the hearing in the High Court. The proper time for awarding the prayer was in the trial court during the pendency of the trial as the accused wanted the copies of the previous statements of some of the prosecution witnesses which were recorded during the enquiry before the Thakkar Commission but such a prayer was made and rejected. 34. The High Court rejected this prayer by the impugned judgment against which the present appeal is before us. The High Court relied on the decision of this Court in the case of Rain Krishan Dalmiay. Justice Tendulkar 1959 SCR 279 , which is referred to henceforth as Dalmias case. It was contended by learned Counsel for the appellants that this case could not be accepted as an authority on interpretation of Section 6 as in that case the scope of Section 6 was not before the Court but it was the validity of the provisions which were challenged. Das, C.J. in Dalmias case while examining the challenge to the validity of the Act and the notification issued thereunder made the following observations: The whole purpose of setting up of a Commission of Enquiry consisting of experts will be frustrated and the elaborate process of enquiry will be deprived of its utility if the opinion and the advice of the expert body as to the measures and situation disclosed calls for can not be placed before the Government for consideration notwithstanding that doing so can not be to the prejudice of anybody because it has no force of its own. In our view, the recommendations of a Commission of Enquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. From this point of view, there can be no objection even to the Commission of Enquiry recommending the imposition of some form of punishment which will, in its opinion, be sufficiently deterrent to delinquent in future. But seeing that the Commission of Enquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore. The statement made by any person before the Commission of Enquiry under Section 6 of the Act is wholly inadmissible in evidence in any further proceedings civil or criminal. 35. According to learned Counsel, in that case it was not the scope of Section 6 but the validity of the provisions were in question and the observations were only incidental and it can not be regarded as a binding precedent. The High Court has accepted these observations of this Court in the judgment quoted above and in our opinion rightly. But apart from it, we shall try to examine Section 6 itself and other provisions relevant for the purpose as to whether the appellants i.e. the accused before the trial court were entitled to use the copies of the statement of those prosecution witnesses who were examined before the Thakkar Commission for purposes of cross examination or to use the report of the Commission or whether it could be handed over or given over to the accused for whatever purpose they intended to use. The learned Counsel for the parties on this aspect of the matter have referred to number of decisions of various High Courts and also some of the decisions of the English courts. They are being dealt with in the judgment elsewhere as in my opinion it is not necessary to go into all of them except examining the provisions of the Act itself. 35A. Section 6 of the Commission of Enquiries Act reads:- No statement made by any person in the course of giving evidence before the Commission shall subject him to, or be used against him in any civil or criminal proceedings except a prosecution for giving false evidence of such statement. 36. On analysis of the provision, it will be found that there are restrictions on the use of a statement made by a witness before the Commission. First is Shall subject him to ...any civil or criminal proceedings except a prosecution for giving false evidence by such statement. The second restriction, according to me, is spelt out from the words or be used against him in any civil or criminal proceedings. Thus if we examine the two restrictions stated above it appears that a statement given in a Commission can not be used to subject the witness to any civil or criminal proceedings nor it can be used against him in any civil or criminal proceedings and in my opinion it is in the context of these restrictions that we will have to examine the provisions of the Evidence Act which permit the use of a previous statement of a witness and for what purpose. Section 145 read with Section 155(3) and Section 157 are the relevant provisions of the Evidence Act. Section 145 reads: Cross-examination as to previous statements in writing -A witness may be cross examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. This provision permits that a witness may be cross-examined as to the previous statement made by him in writing or reduced to writing relevant to the matters in question without such writing being shown to him or being proved. But if it is intended to contradict him by the writing his attention must be drawn to those parts of the writing; and it can be proved. A witness could be cross examined on his previous statement but if a contradiction is sought to be proved then that portion of the previous statement must be shown to him and proved in due course. 37. Section 155 of the Evidence Act provides for the use of a previous statement to impeach the credit of a witness. Section 155 reads: 155. Impeaching credit of witness - The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the Court, by the party who calls hint (1) by the evidence of persons who testify that they, from their knowledge of the witness, believe to be unworthy of credit; (2) by proof that the witness has been bribed, or has (accepted) the offer of a bribe, or has received any other corrupt inducement to give his evidence; (3) by proof of former statements inconsistent with any part of this evidence which is liable to be contradicted; (4) When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutor was of generally immoral character. 38. This section provides that the credit of a witness may be impeached in the following ways by an adverse party with the consent of the Court by the party who calls him and the third sub-clause refers to a former statement which is inconsistent with the statement made by the witness in evidence in the case and it is permissible that the witness be contradicted about that statement. The third provision is Section 157 which provides for the use of a previous statement for corroboration. It reads: 157. Former statements of witness may be proved to corroborate later testimony as to same fact. In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. A perusal of these three Sections clearly indicate that there are two purposes for which a previous statement can be used. One is for cross examination and contradiction and. the other is for corroboration. The first purpose is to discredit the witness by putting to him the earlier statement and contradicting him on that basis. So far as corroboration is concerned it could not be disputed that it is none of the purposes of the defence to corroborate the evidence on the basis of the previous statement. Section 145 therefore is the main section under which relief was sought by the accused. The use for which the previous statement was asked for was to contradict him if necessary and if it was a contradiction then the earlier statement was necessary so that contradiction be put to the witness and that part of the statement can be proved. 39. To my mind, there could be no other purpose for which the appellants could use the previous statements of those witnesses. Contradiction could be used either to impeach his credit or discredit him or to pull down or bring down the reliability of the witness. These purposes for which the previous statements are required could not be said to be purposes which were not against the witness. The two aspects of the restrictions which Section 6 contemplates and have been discussed earlier are the only two aspects which could be the result of the use of these statements. I cannot find any other use of such previous statements in criminal proceedings. It is therefore clear that without going into the wider questions even a plain reading of Section 6 as discussed above will prohibit the use of the previous statements at the trial either for the purposes of the cross examination to contradict the witness or to impeach his credit. The only permissible use which has been provided under Section 6 is which has been discussed earlier and therefore the Courts below were right in not granting the relief to the accused. 40. The report of the Commission was also prayed for although learned Counsel could not clearly suggest as to what use report of the Thakkar Commission could be to the accused in his defence. The report is a recommendation of the Commission for consideration of the Government. It is the opinion of the Commission based on the statements of witnesses and other material. It has no evidentiary value in the trial of the criminal case. The courts below were also justified in not summoning the reports. 41. Learned counsel for parties referred to number of decisions, Indian and foreign and are being dealt with by my learned colleague in this judgment. But in view of the discussions above I do not find it necessary to go further into the matter. 42. Learned counsel for Appellant No. 1 Satwant Singh also made a reference to some of the questions which were raised before the High Court in respect of the post-mortem, although learned Counsel appearing for the other two appellants did not seriously raise those questions. It is apparent that in the facts of the case as the evidence stands the question of post-mortem or a fuller post-mortem was necessary or not loses all its significance. There is no dispute that she died as a result of the gun shot injuries which was inflicted by Bent Singh and Satwant Singh, one who shot from his service revolver and other from the carbine. In view of such clear evidence about the cause of the death, the post-mortem examination loses all its significance. It becomes important only in cases where the cause of death is to be established and is a matter of controversy. 43. Before I go to the merits and deal with the evidence in the case, I will dispose of the preliminary objection raised by the learned Additional Solicitor General as to the scope of the appeals before us. He urged that under Article 136 of the Constitution this Court is not expected to go into the questions of fact when there are concurrent findings of fact recorded by the courts below. The learned Counsel apart from Article 136 relied upon a decision reported in the case of Pritam Singh Versus The State 1950CriLJ1270 where Fazal Ali, J. said: It would be opposed to all principles and precedents if we were to constitute ourselves into a third court of fact and after re-weighing the evidence come to the conclusion different from that arrived at by the trial Judge and the High Court. Similarly in Ram Raj v. State of Ajmer 1954CriLJ1313 Justice Mahajan, Chief Justice observed at page 1134: Unless it is shown that exceptional and special circumstances exist that substantial and grave injustice] have been done and the casein question presents features of sufficient gravity to warrant a review of decision appealed against this Court does not exercise its overriding powers under Article 136(1) of the Constitution and the circumstances that because the appeal have been admitted by special leave does not e lant to open out the whole case and contest all the findings of fact and raise every point which should have been raised in the High Court. Even in the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for. Even in a recent decision 1983CriLJ1096 Justice Thakkar Stated: A concurrent finding of fact can not be reopened in an appeal unless it is established; (i) that the finding is based on no evidence or record, that the finding is perverse, it being such as no reasonable person would have arrived at even if the evidence was taken at its face value or thirdly, the finding is based and built on inadmissible evidence which evidence if excluded from the vision would negate the prosecution case or substantially discredit or impair it or; fourthly some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded or wrongly discarded. These are the principles laid down by this Court and keeping these in view I will attempt to examine the High Court judgment. I may however, mention that where the High Court has reached conclusions based on partly inadmissible evidence and partly on circumstances which are not justified on the basis of evidence, or partly on facts which are not borne out from the evidence on record it can not be contended that in an appeal under Article 136 this Court will not go into the facts of the case and come to its own conclusions. The case on hand is one of such cases and some of the findings of fact reached by the High Court could not be said to be such which are concurrent or conclusive. We were therefore put to the necessity of examining the evidence wherever it was necessary. 44. The other ground urged on behalf of the appellants relates to the relevancy of evidence on conspiracy in view of Section 10 of the Evidence Act. It will be worth while to deal with this question of law at this stage. Section 120-A and 120-B of the Indian Penal Code which deal with the question of conspiracy. Section 120-A reads: When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Section 120-A provides for the definition of criminal conspiracy and it speaks of that when two or more persons agree to do or cause to be done an act which is an illegal act and Section 120-B provides for the punishment for a criminal conspiracy and it is interesting to note that in order to prove a conspiracy it has always been felt that it was not easy to get direct evidence. It appears that considering this experience about the proof of conspiracy that Section 10 of the Indian Evidence Act was enacted. Section 10 reads: Things said or done by conspirator in reference to common design - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the person believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. This Section mainly could be divided into two: the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition precedent is satisfied that the subsequent part of the Section comes into operation and it is material to note that this part of the Section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Section 120-A where it is provided When two or more persons agree to do, or cause to be done. This further has been safeguarded by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore necessary that a prima facie case of conspiracy was to be established for application of Sec, 10. The second part of Section talks of anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the Section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120-A. It is only then the evidence of action or statements made by one of the accused could be used as evidence against the other. in Sardar Sardul Singh Caveeshar v. State of Maharashtra 1965CriLJ608a , Subha Rao, J. (as he then was) analysed the provision of Section 10. and made the following observations: This section, as the opening words indicate will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression in reference to their common intention is very comprehensive and it appears to have been designedly used to give it a wider scope than the words in furtherance of in the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Another important limitation implicit in the language is indicated by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact only as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It can be used only for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy. In short, the Section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; (5) it can only be used against a co-conspirator and not in his favour. In the light of these observations and the analysis of Section 10 we will have to examine the evidence led by prosecution in respect of conspiracy. 45. We first take the case of Balbir Singh. Balbir Singh was an Officer of the Delhi Police in the cadre of Sub Inspector. He was posted on duty at the PMs residence on security. On 31.10.84 in the morning he was not on duty but his duty was to commence in the evening and on that day at Akbar Road gate it appears that when he reported for duty in the normal course he was asked to go to the Security Police Lines and at about 3 A.M. on November 1, 1984 he was awakened from his sleep and his house was searched by SI Mahipal Singh, PW 50, Constable Hari Chand, PW 17 and Inspector Shamsheer Singh. Nothing except a printed took on Sant Bhindrawale Ex. PW 17A was recovered. It is alleged that about 4 A.M. he was taken to Yamuna Velodrome. He was kept there till late in the evening when he is reported to have been released. This custody in Yamuna Velodrome is described by Sh. Kochhar, PW 75 as de facto custody. But there is no evidence or no police officer examined to say that he allowed this accused to go in the evening on November 1,1984. Thereafter he is alleged to have been arrested on December 3, 1984 at Najafgarh Bus-stand. When his personal search was taken and certain articles were recovered from his possession including a piece of paper which is Ex. PW. 26B. On December 4, 1984 he was produced before the Magistrate who remanded him to police custody. Thereafter it is alleged that he expressed his desire to make a confession but when produced before the Magistrate he refused to make any statement. 46. The allegations in the charge-sheet against this accused if summarised are: that Balbir Singh like the other accused persons has expressed his resentment openly holding Smt. Indira Gandhi responsible for the Bluestar Operation. He was planning to commit the murder of Smt. Gandhi and he discussed these matters with Beant Singh deceased who had similar plan to commit the murder. He also shared his intention and prompted accused Satwant Singh to commit the murder of Smt. Gandhi and finally discussed the matter with him on Oct. 30,1984. In the first week of September, 1984 a falcon (baaz) happened to sit on the tree near the Reception gate of the Prime Ministers house in the afternoon at about 1.30 P.M. Balbir Singh spotted the falcon and called Beant Singh there. Both of them agreed that it has brought a message of the Tenth Guru of Sikhs that they should do something by way of revenge of the Bluestar Operation. Thereafter they offered Ardas. 47. These allegations, the prosecution has attempted to prove by the evidence of the following witnesses: i) SI Madan Lal Sharma, PW 13 ii) Constable Satish Chandra Singh, PW 52 iii)Sub Inspector Amarjit Singh, PW 44 and iv) Confession of Satwant Singh, PW 11C. The prosecution also strongly relied upon the, document Ex. Pw26B which was recovered from the possession of the accused when he was arrested at Najafgarh Bus-stand. His leave applications which are Ex. PW 26 E1 to E5 along with his post crime conduct of absconding are also relied upon. 48. According to the accused, the document Ex. PW 26B was not recovered from his possession as alleged by the prosecution. He also contests his arrest at Najafgarh Bus-stand and says that it is just a make-believe arrangement. According to him, he was all along under police custody right from the day when he was taken to Yamuna Velodrome on November 1, 1984. In-fact he was not allowed to go put and the question of his abscondence does not arise. He was also not put any question on abscondence under Section 313 examination. 49. Now, we will take first, the arrest of this accused on 1st November. It is not disputed that on 1st November late at night his house was searched and a printed took - Sant Bhindrawale was seized from his house and he was brought to Yamuna Velodrome. It is also not in dispute that the prosecution evidence itself indicates that upto the evening the next day he was seen in the Yamuna Velodrome. 50. It will be better here to describe what this Yamuna Velodrome is? From the prosecution evidence what has emerged is that this is a place where there are number of offices but Police has reserved a portion of this building to be used for interrogation and investigation. Normally when a person or a witness is brought for interrogation or investigation at a Police station, some record has to, be made as there is a general diary although diaries may or may not be filled in but a duty is cast on the Station House Officer of a Police Station to maintain the movements of the Police Officers and also to note down the activities especially when it is connected with the investigation of an important case. But it appears that all about the preliminary investigation of this case was going on at Yamuna Velodrome, witnesses and persons were brought here, detained or kept, and interrogated. We do not have any further evidence in regard to this place. 51. According to the prosecution, this accused was at Yamuna Velodrome upto the evening of that day and thereafter he was allowed to go and then he absconded. As a matter of fact this part of the story becomes very important in view of the further facts alleged by the prosecution that the investigating officer got some information through some one that this accused who was wanted would appear at the time and place indicated. But there is no evidence as to who asked this accused to go. He was a suspect in the criminal conspiracy. He could not have gone away of his own accord. Some responsible officer must have taken the decision but it is unfortunate that no officer has been examined to state that I thought that his presence was not necessary and therefore I allowed him to go. Learned Additional Solicitor General appearing for the State before us also was asked if he could lay his hands at any part of the evidence of any one of the witnesses who could say that before him this person was allowed to go from the Yamuna Velodrome. There is no evidence on this aspect of the matter at all and therefore we are left with the only evidence that this person was arrested at midnight in the late hours on 1st November and was carried to Yamuna Velodrome and was seen there by some prosecution witness till the evening of the next day. 52. Then the other aspect of the matter which is of some importance is about the prosecution allegation that he was absconding from 1st or 2nd November till 3rd Dec. 1984. It is significant that no witness has been examined to indicate that he went to find him out either at his residence or at any other place in search of him and that he was not available. There is also no evidence produced to indicated that inspite of the fact that during investigation police wanted to arrest him again but he was not available at his known address. It is perhaps of absence of evidence as to absconding the trial court when examined this accused under Section 313 did not put him any question about his abscondence. It is therefore clear that the abscondence as a circumstance could not be used against him. 53. Let us now examine the story of the prosecution that this accused was arrested at Najafgarh Bus-stand. It is alleged that Sh. Kochhar, the Investigating Officer got some information that this accused was expected to appear at that place on 3rd December, 1984. It was not immediately after the assassination. It was after a month. The people could come forward to become witness. But no independent witness has been examined in support of the arrest or seizure from the accused. It may be as technically argued by the learned Additional Solicitor General that the presence of public witnesses under the scheme of CrPC is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal search. But it is well-known that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of the accused there is no other evidence except the evidence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution. It may also be noted that according to Mr. Kochhar, that the accused appeared at the Bus-stand but they have not been able to disclose from where he appeared. Whether he got down from a bus, if so from which bus - city or outstation bus? How he appeared there is all mystery. Nobody bothered to notice of his coming. It is said that he had a DTC bus ticket. Nobody examined it. Perhaps there was nothing to examine. If the Police Officers had gone with prior information to arrest the absconding accused who was involved in such an important crime, they could have taken an independent witness with them. It is again interesting to note that instead of searching him and performing the formalities of arrest at the place where the accused appeared, he was taken to a place said to be the office of the Electricity Board. The search and seizure took place there. Some articles were recovered from his possession. Most of the articles recovered are mere personal belongings. There was also a piece of paper since marked as Ex. PW 26/B. The Police did not think it necessary to have an independent witness even for the seizure memo, when particularly some important piece of evidence was recovered from his possession. The reply of the learned Additional Solicitor General was that in law it was not necessary. The Investigating Officer when questioned in cross-examination answered that nobody was available or none was prepared to be a witness in this matter. It is unthinkable at a public place and that too at the Bus-stand. Learned Additional Solicitor. General also attempted to contend that the circumstances in Delhi after the assassination of the Prime Minister were such that no witness was prepared to come forward. It appears that for every problem this situation is brought as a defence but in our opinion, this would not help them so far as this matter is concerned. We are talking of 3rd December which was more than a month after the unrest in Delhi. It is very difficult to believe that a citizen in this capital did not come forward to be a witness for seizure memo. The arrest of the accused in the circumstances appears to be only a show and not an arrest in actuality. 54. Learned Additional Solicitor General appearing for the State frankly conceded that if the release of this accused after his arrest on 1st November is not established and his abscondence is not proved, then the story of his arrest on 3rd December with the recovery of the articles loses all its significance. It is indeed so. 55. In the context of what has been discussed above it is apparent that the arrest of the accused on 3rd December and the recovery of these articles from his person have not been proved satisfactorily and therefore could not be of any consequence against this accused. 56. The prosecution attempted to prove the recovery of Ex. PW 26/B on the basis of an entry in the Malkhana Register of Tuglak Road Police Station. Entry 986 in the Malkhana Register which is made on December 3,1984 according to the learned Additional Solicitor General, contains a verbatim copy of the seizure memo Ex. P W 35Aand it indicates the fact of recovery of PW-26/ B and therefore proves that it was recovered from the appellant upon his arrest and search on that day. Here again there is an interesting situation. There is an endorsement in the- Malkhana Register stating that the DTC ticket which the accused carried and the paper containing the dates in English Ex. PW 26/B were not deposited. The Malkhana Register therefore is of no help to the prosecution. If they were taken back for any further investigation they could have made an entry to that effect in the general diary. The nature of entry in the Malkhana Register only shows the recovery of certain articles and a note that the two documents although are said to be recovered but they were not brought and deposited at the Tuglak Road Police Station. It is therefore clear that although in the seizure memo the mention of the two documents including Ex. PW 26/B is there, they in fact did not reach the Police Station or see the light of the day. 57. In view of these infirmities we can not accept that the accused was arrested on 3rd December as alleged by the prosecution. So the recovery of Ex. PW 26/B is doubtful. However, we may refer to the said document as it has been said to be one of the most important pieces of evidence as the High Court has described it. 58. The document can be taken to have been written in the handwriting of Balbir Singh as that is not seriously contested before us. The document is a sheet of paper in which we find certain entries. The document is reproduced at Pages Nos. 57-58 of the judgment prepared by my learned brother Shetty, J. 59. If this document is considered to be a memorandum of events prepared by this accused relating to his conspiracy, why should he carry it in an atmosphere surcharged with emotion against the Sikhs. Not only that, this person knew that he was an accused in such an important case where whole public opinion is against him. He also knew that he was absconding and he also knew that he was carrying in his pocket such an important piece of evidence. Was it his intention that he should keep it readily available so that he could oblige the prosecution whenever they needed? There is no other possible reason why this person should keep this document with him all the time. On our questioning the learned Additional Solicitor General about this strange behaviour of the accused, he also could not explain as to why the accused could have thought of carrying such a piece of paper in his pocket. 60. Apart from it, if the document is looked at as it is we see nothing in it except a mention of few dates and few events. It even does not indicate that with those events whether this accused was connected in any manner. It is also significant that this document was not with this accused when his house was searched and he was arrested on the night of 1st November, 1984. If the accused after that arrest was not released at all and there was no occasion for him to go away then, one fails to understand as to how this document came in his possession? The explanation suggested by the learned Counsel for the accused appears to be the most probable. As indicated from other evidence, the accused was preparing to give a statement or a confession and therefore he was given the notes and he must have recorded those dates to facilitate the statement that he was planning or he was made to give which ultimately he chose not to give at all. 61. Looking to this document the only material which could be said to be of some significance is the words felt like killing. But there is no reference after those words as to who was intended to be killed. There is also no indication as to whose feelings are noted in this piece of paper. There are entries in this document which refer to meetings, visits, persons, visiting somebodys house but it is not clear as to whom they refer and what is intended when these reference is made. Beant Singh has been referred to in this document more than in one place. At one place, there, is a reference to Beant Singh with eagle. But there is no reference to a joint Ardas or this accused or Beant Singh telling that it had brought a message or they should take revenge. The entry does not suggest that the accused has anything to do with the eagle. If there is anything, it is against Beant Singh. 62. A perusal of this whole document also shows that there is no reference at all to Beant Singh and his plan to kill the Prime Minister. Nowhere it is mentioned about the bomb or grenade with which he was planning to eliminate the Prime Minister before 15th August, 1984. There is also no reference about Beant Singh conspiring with this accused or vice-versa. Kehar Singh is not at all in the document. Satwant Singh, however, is mentioned against 30th October,. But it does not give an indication where? The prosecution has connected it with the evidence of PW 52 who was the Sentry in the Prime Minister security. We will consider the evidence of this witness a little later. 63. Under these circumstances it is very clear that except the mention of Bluestar Operation and felt like killing there is nothing in this document which is of any significance. If the document is read as it is, we see nothing incriminating against this accused. Unfortunately it appears that the High Court read in this document what was suggested by the prosecution without considering whether it could be accepted or not in the absence of evidence on record. Admittedly, there is no such evidence at all in this case. 64. Satish Chandra Singh, PW52, who has been produced to prove the meeting of Balbir Singh with Satwant Singh was for the first time examined during the investigation on 7.2.85 that is after the trial had commenced. He has stated that when he was on duty on October 30, 1984 Satwant Singh came and talked to Balbir Singh. But he frankly admitted that he could not follow what they talked as he did not know Punjabi. What value we could attach to the testimony of this witness. It is impossible to believe him. 65. In view of what we have noticed, even if the document is accepted to have been written by the accused, still there is nothing in it on the basis of which an inference of conspiracy could be drawn. There must be evidence to indicate that the accused was in agreement with the other accused persons to do the act which was the ultimate object which was achieved on 31.10.1984. This document therefore although described by the learned Judges of the High Court as very important piece of evidence is nothing but a scrap of paper. 66. Excluding from consideration this recovery of a piece of paper Ex. PW26/B, what remains has been alaysed by the High Court in the judgment in the following words: Summing up then the evidence against Balbir Singh leaving out of account for the time being the confession of Satwant Singh and the evidence of Amarjit Singh the position is as follows: He was an Officer on security duty at the PMs house. He knew Beant Singh and Satwant Singh as well. He shared the indignation of Beant Singh against Smt. Gandhi for Operation Bluestar, and was in a mood to avenge the same. He went on leave on 25.6.84 to 26.7.84. On his return he met Beant Singh and Amarjit Singh. He was present on the occasion of the appearance of eagle and their association on that date is borne out by Ex. PW26/B. He is known to have talked to Satwant Singh on 30th October, 1984. Unfortunately, the learned Judges of the High Court when they came to the conclusion that Balbir Singh knew Beant Singh and Satwant Singh well, have not referred to any piece of evidence in this case which establishes that they knew each other well. The learned Additional Solicitor General appearing for the State also has not been able to point out any piece of evidence on the basis of which this could be inferred. This accused being a Sikh also is referred to but there were number of Sikh officers posted at the house of the Prime Minister and merely because he was a Sikh it could not be said that he became a party to the conspiracy or he was in conspiracy or he knew Beant Singh and Satwant Singh well. Similarly as regards the observations made by the High Court that Balbir Singh shared indignation of Beant Singh against Smt. Gandhi and was in a mood to avenge for the Bluestar Operation, there is no evidence to support it. From the testimony of SI Madan Lal Sharma, PW 30 all that we could gather is that after the Bluestar Operation Balbir Singh was in an agitated mood and he used to say that the responsibility of damaging the Akal Takht lies with Smt. Gandhi and it would be avenged by them. From this it cannot be inferred that Balbir Singh wanted to take revenge against the Prime Minister along-with Beant Singh. This is not what is said by the witness. If expression of anger or protest on the Bluestar Operation could be used as a piece of evidence or a circumstance against accused then all that members of the Sikh community who felt agitated over the Bluestar Operation must be held as members of the conspiracy. 67. So far as taking leave is concerned there is nothing on the basis of which any significance could be attached to it. There is no material to indicate that during the leave Balbir Singh met Beant Singh or anyone else or was in any manner connected with the conspiracy or was doing something in pursuance of the agreement of conspiracy between them. Merely because on certain dates he was on leave no inference could be drawn. The High Court relied on the fact that after returning from leave this accused met Beant Singh and Amarjit Singh but on this meeting also there is no other evidence except the evidence of Amarjit Singh PW 44 which we will deal with a little later. 68. So far as appearance of falcon and offering of ardas is concerned it is admitted that appearance of falcon is considered, by the Sikh community, as a sacred thing as falcon is supposed to be a representative of the Guru and if therefore this accused and Beant Singh offered ardas nothing could be inferred from this alone. As even the High Court observed that: Nothing unusual or abnormal about the incident as any religious Sikh seeing the appearance of the falcon could offer the Ardas. So far as meeting with Satwant Singh is concerned on October 30, 1984 the only evidence of that fact is the evidence of Satish Chandra Singh PW 52 about whom I have discussed little earlier and nothing more need be stated here. 69. With this we are now left with the evidence of Amarjit Singh who is an important witness as per the prosecution. It has come on record that his statement during investigation was recorded thrice; twice by Police under Section 161 and then under Section 164 Cr. P.C. The first statement is Ex. PW 44 which was recorded on November 24, 1984 after 25 days of the incident and the Second statement PW 44 DB was recorded on December 19, 1984. On December 21, 1984 the third statement PW 44A under Section 164 of the Code came to be recorded. In the first statement there is no involvement of Balbir Singh. The second statement according to the witness was recorded at his own instance. He states that it did not occur to him that assassination was the handwork of Balbir Singh and Kehar Singh. After he had learnt about the firing and death of Smt. Indira Gandhi he recalled certain things and went to Shri R.P. Sharma who recorded his statement on 24.11.84. According to him, he recalled bit by bit and that was the reason, he gave the subsequent two statements. If we carefully peruse these statements it is clear that the entire approach of the High Court appears to be erroneous. Amarjit Singh PW 44 states before the Court as follows: In the first week of August 1984 I had a talk with Beant Singh. Then he told me that he would not let Mrs. Indira Gandhi unfurled the flagon 15th August. Shri Balbir Singh also used to tell me that if he could get a remote control bomb and his children are sent outside India then he also could finish Mrs. Indira Gandhi. I used to think that he was angry and I used to tell him that he should not think in these terms. In the third week of October, 1984, Balbir Singh told me that Beant Singh and his family have been to the Golden Temple alongwith Kehar Singh her Phoopha. He further told that Beant Singh and Constable Satwant Singh had taken amrit in Sector 6, R.K. Puram, New Delhi at the instance of Kehar Singh. In his first statement PW 44 DA which has been exhibited during his cross examination admittedly there is no reference to Balbir Singh at all. No reference to Balbir Singh telling the witness that if he could get a remote control bomb and his children are sent outside India, he could also finish Mrs. Indira Gandhi. There he has stated: In the end of September, 1984 SI Balbir Singh met me once in the Prime Ministers house and told me that Beant Singh wanted to kill the Prime Minister before 15th August, he (Beant Singh) agreed to kill her with a grenade and remote control but this task was to be put off because the same could not be arranged. Actual words being In do cheeson ka intezam nahin ho saka is liye baattalgayi. Similarly in his earlier statement Ex. PW 44 DA what this witness said was: In the third week of October, 1984 Beant Singh SI met me and told me that he had procured one Constable. Actual words being October ke tisare hafte main Beant Singh mujhe mila usne bataya ki usne ek sipahi pataya hai and that now both of them would put an end to Smt. Indira Gandhis life very soon. These portions of the statement which were put and proved from Amarjit Singh as his first statement recorded by the police clearly go to show that he had only alleged these things against Beant Singh. What he did later was to improve upon his statement and introduce Balbir Singh also or substitute Balbir Singh in place of Beant Singh. The only other inference is that he was himself a party to that conspiracy. Otherwise there is no explanation why he should keep on giving statement after statement, that too after 25 days of the incident. The second statement was recorded on December 19 and a third statement on December 21, 1984. It clearly shows that he was a convenient witness available to State whatever was desired from him. He appears to have become wiser day by day and remembered bit by bit, is certainly interesting to remember. 70. It could not be doubted that the two versions given out by this witness are not such which could easily be reconciled. In fact in his first version there is nothing against Balbir Singh. In his second statement he has tried to introduce things against him. This apparently is a clear improvement. It is well-settled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such a witness alone. 71. Apart from it, the evidence which he has given is rather interesting. According to him Beant Singh and Balbir Singh were so close to him that they used to keep him informed about their plans to assassinate the Prime Minister of India. But relation with Balbir was such that he was not even invited when Balbir Singh was married and therefore it was nothing but casual but still he claims that he had so much of close association that he used to be taken in confidence by these two persons. That means that he is one of the conspirators or otherwise he would not have kept quiet without informing his superiors as it was his duty to do when the Prime Minister was in Janger. 72. In view of this, it is clear that there is no evidence at all to establish prima facie participation of this accused in conspiracy or any evidence to indicate that he had entered into any agreement to do an unlawful act or to commit an offence alongwith the other accused persons. Therefore, in absence of any evidence in respect of the first part of Section 10 which is necessary it could not be contended that the confession of Satwant Singh could be of any avail or could be used against this appellant. 73. Before parting with this witness, one more thing may be noted. The High Court, in order to explain that this witness Amarjit Singh did not refer to Balbir Singh in his first statement on 24.11.84 stated something out of imagination. The High Court has quoted his statement on 24.11.84 in these words: He is also reported to have said that Beant Singh had wanted to kill Smt. Gandhi before 15th of August and that he had agreed to do so if grenade and remote control were available. In this context, the use of the word agreed and word he the High Court felt that they refer to Balbir Singh and none else. This appears to be an explanation given by Amarjit Singh in his statement in Court and the High Court felt that it could accept it. It is clear that where he says agreed and he in his statement on November 24, 1984 he had not named Balbir at all. It is only now in his statement at trial that he grew wiser and made an attempt by way of this explanation. It is rather unfortunate that the High Court felt that this explanation should be accepted. The statement against Balbir coming for the first time on 21st December, 1984 itself in the light of the settled criminal jurisprudence of this country ought to have been rejected outright. Secondly, the High Court found corroboration from the confession of Satwant Singh. So far as the statement or the confession of Satwant Singh is concerned, it could not be used against this accused as we have earlier indicated. 74. Thirdly so far as falcon incident is concerned, we do not know how the High Court felt that that incident corroborates the evidence of Amarjit Singh when Amarjit Singh alone talks of the falcon incident. There is no basis for this conclusion of the High Court. 75. Lastly, it may be noted that so far as this accused is concerned, even Bimla Khalsa, the wife of Beant Singh does not mention anything. 76. In the light of the discussions above, in our opinion, so far as this accused is concerned there is no evidence at all on the basis of which his conviction could be justified. He is therefore entitled to be acquitted. Kehar Singh: 77. The finding of guilt recorded by the High Court against Kehar Singh is a mixture of both relevant and irrelevant evidence adduced by the prosecution. We will consider only those that are most important and relevant. Material evidence against Kehar Singh is the evidence of PW 65, Bimla Khalsa wife of Be ant Singh. She was examined by the Police on 16th January, 1985 and 19th January, 1985. This witness although has been declared hostile, but her statement could not be discarded in to to merely because on certain questions she has chosen not to support prosecution. It is true that her statement for the first time during investigation was recorded on 16th January, 1985 but it could not be disputed that after all she is the wife of the main accused in this case. She has lost her husband on 31st October. She was placed in a situation where it would have been very difficult for her to compose herself in a manner in which she could give her statement immediately. It is nobodys case that she has any grudge against anybody. 78. Important circumstances which emerge from the testimony of this witness are: i) She was married to Beant Singh in 1976 through the good offices of her maternal uncle Gurdeep Singh. ii) Kehar Singhs wife Jagir Kaur hailed from Matloya and she (Bimla) used to call Kehar Singh and Jagir Kaur Phoophi and Phoopha and there was close friendship between the two families. Rajendra Singh son of Kehar Singh who was a friend of Beant Singh and often used to have drinks with him. In her statement in Court later she also stated that the wives of Rajendra Singh and Shamsher Singh, brother of Beant Singh belonged to the same biradari. iii) Kehar Singh started visiting their house more often after theOperation Bluestar. Beant Singh and Kehar Singh had talked about the destruction of the Akal Takht in the Golden Temple complex on two or three occasions but become silent when she came. iv) In the last week of July, Beant Singh told her that he had gone to the Gurudwara at Moti Bagh at the instance of Kehar Singh and that they heard highly provocative and inciting speeches there. Beant Singh had told her that he would become a Shaheed and that she should look after the children or God will look after them but he never told her that he wanted to kill Smt. Indira Gandhi. v) In the middle of September, 1984 the birthday of the grandson of Ujagar Singh Sandhu was celebrated at his residence at Moti Bagh. Though they had not received any invitation, at Kehar Singhs instance they attended the party where many inciting speeches were delivered. vi) On 13.10.84 her husband told her that he would be taking Amrit on 14.10.84 and when she asked for the reason, he told her that it was in order go give up drinking. vii) On 17.10.84 she was sent to Gurudwara Sis Ganj alongwith Kehar Singh and Jagir Kaur to take Amrit there which she did. viii) On the evening of 17.10.84 Kehar Singh came and was closeted together with Beant Singh on the roof of the house for 15 to 18 minutes. Satwant Singh who had come to their house on the two earlier occasions in the first week of October, also came. First two talked in low tone and later all the three had meals together. She asked Kehar Singh what they were talking about on the roof. He said it was about asking somebody to take Amrit. When she said why it needed to be kept secret from her, he became silent but he complained to her husband later about her having questioned him. ix) On 20th October, 1984 Beant Singhs family went to Amritsar with Kehar Singh and his wife. Originally Beant Singh and Kehar Singh had intended to go alone. She has said that she would also like to go there and that all of them could go in March, 1984. Then he insisted that she should also go with him, it was decided that Jagir Kaur should also go. At Amritsar they stayed with one M.R.Singh that evening while Bimla Khalsa and children and Jagir kaur were listening to the Kirtan, Beant Singh and Kehar Singh went to see the Akal Takht. She also wanted to go but she was told she could see it next morning. Next morning also, Beant Singh and Kehar Singh left for Akal Takht early in the morning leaving them to follow later. When they were all there again Beant Singh and Kehar Singh went away somewhere and returned 3 to 4 hours later. On their way back again the two went away alone to some place for a few minutes. They purchased a cassette and a photo of Bhindrawale. Beant Singh stayed behind saying that to meet some one and join them at the railway station. They returned to Delhi on 21st October, 1984, x) On 24.10.84 Beant Singh insisted on her taking Amrit again at RXPuram Gu-rudwara but she refused. After he returned from the night duty he went alongwith Satwant Singh on a Scooter. 79. There is only one variation between the previous statement and evidence in Court. That relates to identification of Satwant Singh. In the Court she attempted to s.ay that he was a boy and later explained that at that time he had no beard but the manner in which the boy has been described and the occasions when the boy had come to their house, there is hardly any doubt left. Apart from it, so far as Satwant Singh is concerned even if we omit the evidence of Bimla Khalsa, it is not material. But it could not be doubted that from her evidence that the above circumstances have been established. 80. Next important circumstance is the Vak. It is alleged that when early morning the worship starts in a Gurudwara, the Granth Sahib is opened at random and some message from a page which is so opened is written on the blackboard as a Vak for the day. It is proved by Bimla Khalsa that Ex. P. 55 A was written in the handwriting of Beant Singh. It was a Vak of a particular day which was in the following terms: One gets comfort on serving the Guru. Then miseries do not come near. Birth and death come to an end and black (wicked) do not have effect. About this Vak having been taken out in the Gurudwara, there is some controversy as the witness produced for that purpose Surendra Singh, PW 55 was not in a position to produce the diary but so far as Beant Singh is concerned, the Vak written by him on a piece of paper in Yellow ink in gurumukhi with date 13.10.84 was put on it has been proved by the evidence of Bimla Khalsa. This was admittedly found from the quarters of Beant Singh on 31.10.84 and it was lying inside the book Sant Bhindrawale. 81. As far as the incident on 17th October is concerned, Bimla Khalsa in clear terms stated that Kehar Singh and Beant Singh had secret talks. She wanted to know it, but she was not given to understand. This kind of secret talk with Beant Singh which Kehar Singh had, is a very significant circumstance. Apparently Kehar Singh being an elderly person did not indicate to her about their plan. If the attempt of Kehar Singh was to dissuade Beant Singh then there was no occasion for him to keep the matter secret from his wife. On the contrary he should have indicated to his wife also what Beant Singh was planning. These talks therefore as proved by Bimla Khalsa go a long way in establishing Kehar Singh being a party to the conspiracy. 82. Her evidence also indicates that Beant Singh took Amrit on 14th and Beant Singh kept his golden kara and ring in the house of Kehar Singh which has been recovered from the latter. It clearly goes to show that Kehar Singh knew why Beant Singh took Amrit and why he handed over the golden kara and ring to him. It is also clear from the evidence of Bimla Khalsa that what transpired between Beant Singh and Kehar Singh on 14th was not conveyed to her and she was kept in dark. 83. In this background, the trip to Amritsar of Beant Singh, Kehar Singh and their families is of some significance. On October 20, 1984 Beant Singh and Kehar Singh alongwith their family members went to Amritsar. There is evidence indicated by Bimla Khalsa that originally Kehar Singh arid Beant Singh wanted to go alone but ultimately they agreed that the families also could accompany. According to the evidence of Bimla Khalsa they reached at Amritsar at about 2 to 3 P.M. and went to Darbar Sahib Gurudwara in the evening of 20th October. While ladies and children were listening to kirtan, Beant Singh and Kehar Singh went to see the Akal Takht. Bimla Khalsa wanted to accompany them to see the Akal Takht but she was told to see the same on the next morning. On the next morning i.e. on 21st October, PW 53 was woken up by Kehar Singh and told that he would attend Asaki War Kirtan in Darbar Sahib. He went alongwith Beant Singh. The ladies and children went to Darbar Sahib at 8 A.M. alongwith PW 53. They returned home at 11 A.M. Beant Singh and Kehar Singh did not return alongwith them. After lunch, PW 53 took the ladies and children to the railway station. Beant Singh and Kehar Singh directly came to the railway station from where they caught the train to New Delhi. The attempt of these two persons to keep themselves away from the company of their wives and children speaks volume about their sinister designs. The way in which these two avoided the company of the members of the family and PW 53 at whose residence they were staying and the manner in which they remained mysterious if looked at with the secret talks which they had in the house of Bimla Khalsa earlier goes to establish that the two were doing something or discussing something or planning something which they wanted to keep it as a secret even from Bimla Khalsa. 84. So far as Amrit Chhakna ceremony is concerned or taking Amrit is concerned, ordinarily it may not be significant. It is only a ceremony wherein a Sikh takes a vow to lead the life of purity and giving up all worldly pleasures and evil habits but this unfortunately is a situation which could be understood in different ways. The manner in which Amrit has been taken by Beant Singh and even Satwant Singh has been made to take it and even Bimla Khalsa made to take it makes it significant that in all these three of Amrit taking Kehar Singh was always with them or atleast it could be said, was inspiring them to have it. It also indicates that there was something in the mind of Beant Singh which was known to Kehar Singh and which he even tried to keep a secret from Bimla Khalsa, wife of Beant Singh and wanted Beant Singh to have a full religious purification and confidence. 85. There is yet another circumstance. Post-crime conduct of Kehar Singh. It is in the evidence that on the day i.e. 31st October, 1984 although Kehar Singh claims to be on leave, he goes to the office at 10.45 A.M. and at that time when the news reached in the Office about the assassination PW 59 inquired from Kehar Singh as to what had happened? Kehar Singh replied in these words: Whosoever would take confrontation with the Panth, he would meet the same fate. This remark shows his guilty mind with that of Beant Singh. 86. We have discussed some of the main features of the case and it is not necessary for us to go into other details which the High Court has discussed. These circumstances by themselves indicate that Kehar Singh was a co-conspirator to assassinate Mrs. Gandhi. Satwant Singh: 87. He was a Constable on security duty at the residence of the Prime Minister. 88. He was charged under Section 302 read with Section 120-B and Section 34 for murdering the Prime Minister Smt. IndiraGandhi, secondly under Section 307 for attempting to murder one Rameshwar Dayal, PW 10 and under Section 27 of the Arms Act. To prove these charges, prosecution has examined Narain Singh, PW 9, Rameshwar Dayal PW 10 and Nathu Ram PW 64 besides Sukhvir Singh PW 3 and Raj Singh PW 15. PW 27 has deposed about the history as to how this person was recruited in the Police in 1982 and how he happened to come to be posted at Teen Murti Lines and thereafter in the security duty with the Prime Minister. PW 14 Duty Officer at the Teen Murti Lines has deposed that DAP personnel was placed on duty at various duty points at the PMs house on weekly basis from Friday to Friday by Head Constable Dayal Singh the Company Havaldar. The daily duty maintained at Teen Murti Ex. PW 4-C shows that Entry No. 85 that on the morning of 31.10.84 Satwant Singh was put on duty at Gate No. 4 in the Akbar Road House and not the TMC Gate and this entry is confirmed by Ex. PW 15 Daily diary Clerk at that time. The arms and ammunition register Ex. PW 3A at Teen Murti Lines also shows that Satwant Singh was issued an SAF Carbine having But No. 80 along-with five magazines and hundred live rounds of 99 of ammunition. He signed the register in token of the receipt. PW 3, the Armoury Incharge confirms this. There is also evidence to indicate that this person manipulated his duty and was put on the TMC gate where ultimately the incident took place on the morning of 31.10.1984. 89. The main evidence against him is evidence of eye witnesses. The first eye witness which I would like to refer is Narain Singh PW 9. This witness stated that he was on duty at about 7.30 A.M. in the porch of the Prime Ministers house. According to him at 8.45 A.M. he with an umbrella took up his position near the entry gate as he came to know that Smt. Gandhi had to go to No. 1, Akbar Road to meet certain foreign TV representative and he was to go alongwith her holding an umbrella to protect her from the sun. At 9.10.A.M. Smt. Gandhi came out of the house followed by Nathu Ram PW 6 and her Private Secretary Shri R.K. Dhawan. Then he moved over to the right side and held the umbrella Ex.P.19. They approached the TMC Gate and when they were about 10 ft. therefrom he saw that the gate was open and he also saw Beant Singh on the left side and Satwant Singh on the right side, the former in a Safari suit and the later in the uniform and with a Carbine stengun in his hands. At that time Beant Singh took out his revolver from the right dub and fired at Smt. Gandhi and immediately thereafter Satwant Singh also started firing at her. Smt. Gandhi was hit by these bullets and injured. She fell down on the right side. Seeing this he threw the umbrella on the left side, took out his revolver and jumped on Beant Singh. As a result of which revolver fell from the hands. He saw Satwant Singh throwing his Carbine to the ground on his right side. At that time Shri Bhatt, the personal guard of Smt. Gandhi and ITBP personnel arrived there and secured Satwant Singh. Some other persons also came and secured Beant Singh. He then ran to summon the doctor and while going, he noticed that Rameshwar Dayal PW 10 had also sustained bullet injuries. The doctor himself came running by then. He, Bhatt, the doctor and Nathu Ram took her to the escort car which had arrived near and placed he/in the rear seat. By this time, Smt. Sonia Gandhi had also arrived and Smt. Gandhi was taken to AIIMS accompanied by Bhat, Dhawan and Fotedar on the Front seat and the doctor and Sonia Gandhi on the back seat. He went to the Hospital in a staff car and PW 10 was taken to AIIMS in another car. There she was taken to the eighth floor and he was given the duty of controlling the crowd. At about 10 or 10.15 A.M. R.P.Kochhar, PW 73 arrived and this witness gave a statement to Kochhar in the doctors room which was recorded by him and sent to Tuglak Road Police Station which is the FIR in this Case. 90. His testimony is corroborated by the First Information Report and also by the two other eye witnesses Rameshwar Dayal and Nathu Ram whose presence on the spot could not be doubted. Nathu was in the personal staff of the Prime Minister and Rameshwar Dayal himself had received injuries. Apart from it, this evidence of direct witnesses also finds corroboration from the post-mortem report, recovery of cartridges and arms on the spot and the evidence of the Doctor and the expert who tallied the bullets. Under these circumstances even if the confession of this appellant Satwant Singh is not taken into consideration, still there is enough evidence which conclusively establish his part in the offence and in this view of the matter there appears to be no reason to interfere with the conclusions arrived at by the two courts below. In our opinion, therefore, the appeal of Satwant Singh deserves to be dismissed. 91. Then is the question of sentence which was argued to some extent. But it must be clearly understood that it is not a case where X is killed by Y on some personal vendetta. The person killed is a lady and no less than the Prime Minister of this Country who was the elected leader of the people. In our country we have adopted and accepted a system wherein change of the leader is permissible by ballet and not by bullet. The act of the accused not only takes away the life of popular leader but also undermines our system which has been working so well for the last forty years. There is yet another serious consideration. Beant Singh and Satwant Singh are persons who were posed on the security duty of the Prime Minister. They are posted there to protect her from any intruder or from any attack from outside and therefore if they themselves resort to this kind of offence, there appears to be no reasons or no mitigating circumstance for consideration on the question of sentence. Additionally, an unarmed lady was attacked by these two persons with a series of bullets and it has been found that a number of bullets entered her body. The manner in which mercilessly she was attacked by these two persons on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. In this view of the matter, even the conspirator who inspired the persons who actually acted does not deserves any leniency in the matter of sentence. In our opinion, the sentence awarded by the trial court and maintained by the High Court appears to be just and proper.

Decision:
0[ds]The learned Judges of the High Court in their judgment have come to the conclusion that the last part of the Section refers to The High Court may by special order direct him to try and on the basis of this phrase the High Court in the impugned judgment, has observed that it was even open to the accused to make an application and to get the case transferred or allotted to a Judge. Section 194 Cr. P.C.The first part of the Section clearly provides that the Sessions Judge of the Division by general or special order is supposed to allot cases arising in a particular area or jurisdiction to be tried by Additional or Assistant Sessions Judges appointed in the division but the last part of this Section also authorises the High Court to allot the case to a particular Judge keeping in view the fact that in certain cases the Sessions Judge may not like to allot and may report to the High Court or either of the parties may move an application for transfer and under these circumstances it may become necessary for the High Court to allot a particular case to a particular Judge. Thus, this objection is of no consequence. The other objection which has been raised by the learned Counsel is about the issuance of a notification by the High Court under Section 9(6) Cr.P.C. and by this notification the High Court purported to direct that the trial in this case shall be held in Tihar Jail. Learned counsel appearing for the Delhi Administration on the other hand attempted to justify such an order passed by the High Court by contending that if the High Court had the authority to issue notification fixing the place of sitting it was open to the High Court also to fix the place of sitting for a particular case whereas emphasis by learned Counsel for the appellants was that Section 9(6) only authorises the High Court to fix the place of sitting generally. So far as in any particular case is concerned, the second part of Sub-clause 6 permits the trial court with the consent of parties to sit at any other place than the ordinary place of sitting.21. The High Court in the impugned judgment have attempted to draw from proviso which has been a local amendment of Uttar Pradesh. Unfortunately nothing could be drawn from that proviso as admittedly that is not a State amendment applicable to Delhi. Section 9(6) Cr. P.C. nowhere permits the High Court to fix the venue of a trial of particular case at any place other than the place which is notified as the ordinary place of sitting.On the basis of this language one thing is clear that so far as the High Court is concerned it has the jurisdiction to specify the place or places where ordinarily a Court of Sessions may sit within the division. So far as any particular case is to be taken at a place other than the normal place of sitting it is only permissible under the second part of sub-clause with the consent of parties and that decision has to be taken by the trial court itself. It appears that seeing the difficulty the Uttar Pradesh amended the provision further by adding a proviso which reads:Provided that the court of Sessions may hold, or the High Court may, direct the Court of Session to hold, its sitting in any particular case at any place in the sessions division, where it appears expedient to do so for considerations of internal security or public order, and in such cases, the consent of the prosecution and accused shall not be necessary.22. But it is certain that if this proviso is not on the statute book applicable to Delhi, it can not be used as the High Court has used to interpret it. That apart, if we look at the notification from a different angle the contention advanced by the learned Counsel for the appellants ceases to have any force. Whatever be the terms of the notification, it is not disputed that it is a notification issued by the Delhi High Court under Section9 Sub-clause (6) Cr.P.C. and thereunder the High Court could do nothing more or less than what it has the authority to do. Therefore, the said notification of the High Court could be taken to have notified that Tihar Jail is also one of the places of sitting of the Sessions Court in the Sessions division ordinarily. That means apart from the two places Tis Hazari and the New Delhi, the High Court by notification also notified Tihar Jail as one of the places where ordinarily a Sessions Court could hold its sittings. In this view of the matter, there is no error if the Sessions trial is held in Tihar Jail after such a notification has been issued by the High Court.In fact, the argument advanced has been on the basis of the American decisions where the concept of open trial has developed in due course of time whereas so far as India is concerned here even before the Constitution our criminal practice always contemplated a trial which is open to public.24. In fact, the High Court in the impugned judgment was right when it referred to the concept of administration of justice under the old Hindu Law. But apart from it even the Criminal Procedure Code as it stood before the amendment had a provision similar to Section 327 which was Section 352 of the Old Code and in fact it is because of this that the criminal trial is expected to be open and public that in our Constitution phraseology difference from the United States has been thereIt appears that the whole argument advanced on behalf of the appellants is on the basis of an assumption inspite of the provisions of Section 327 that as the trial was shifted from the ordinary place where the Sessions Court are sitting to Tihar Jail it automatically became a trial which was not open to public but in our opinion in view of Section 327 this assumption, the basis of the argument itself is without any foundation and can not be accepted and argument on the basis of the foreign decisions loses all its significance. So far as this country is concerned the law be very clear that as soon as a trial of a criminal case is held whatever may be the place it will be an open trial. The only thing that it is necessary for the appellant is to point out that in fact that it was not an open trial. It is not disputed that there is no material at all to suggest that any one who wanted to attend the trial was prevented from so doing or one who wanted to go into the Court room was not allowed to do so and in absence of any such material on actual facts all these legal arguments loses its significance.It is very clear that Article 21 contemplates procedure established by law and in my opinion the procedure established by law was as on the day on which the Constitution was adopted and therefore it is not so easy to contend that by amending the Criminal Procedure Code the effect of the procedure established by law indicated in Article 21 could be taken away. The trend of decisions of this Court has clearly indicated that the procedure must be fair and just. Even expeditious trial has been considered to be a part of guarantee under Article 21 but in my opinion so far as the present case is concerned it is not necessary to go so far. At present no one could dispute that the procedure established by law as indicated in Article 21 is as provided in Section 327 and unless on facts it is established that what is provided in Section 327 was prevented or was not permitted, it could not be said that merely because trial was held at a particular place it could be said to be a trial which was not open to public. As indicated earlier on facts there is nothing to indicate although learned Counsel also attempted to some extent to suggest that there were restrictions. A person has to pass through two gates, a person has to sign on the gate and had to have a pass or a clearance but in the modern times especially in the context of the circumstances as they exist. On this basis it could not be said that it ceased to be a public trial. It could not be doubted that at one time in this Court the highest Court of the land, any one could freely walk in and sit and attend the Court but today even in this Court there are restrictions and one has to pass through those restrictions but still it could not be said that any one is prevented from attending the Court and therefore merely suggesting the difficulties in reaching the Jail will not be enough.On the other hand, learned Additional Solicitor General drew our attention to the plan of the Jail and the situation of the premises where the trial was held and it is not disputed that it was not that part of the Jail where the prisoners are kept but was the Office block where there was an approach, people were permitted to reach and the trial was held as if it was held in an ordinary place and it is in this view that as I observed earlier that in fact what the High Court did by issuing a notification under Section 9(6) was not to fix place of trial of this particular case in Tihar Jail. But what could be understood is that High Court by notification made Tihar Jail also as one of the places where a Sessions Court could ordinarily sit and in this case therefore the trial was held at this place. As soon as a trial is held whatever the place may be the provisions of Section 327 are attracted and it will be an open Court and every citizen has a right to go and unless there is evidence or material on record to suggest that on the facts in this particular case public at large was not permitted to go or some one was prevented from attending the trial or that the trial was in camera. In fact without an appropriate order it could not be said that what is contemplated under Section 327 or under Article 21 was not made available to the accused in this case and therefore it could not be contended that there is any prejudice at the trial.28. Soon after the assassination of Smt. Indira Gandhi, the Government of India by notification dated 20.11.84 constituted a Commission under the Commission of Enquiry Act, 1952 (the Act).The Commission was presided over by Mr. Justice M.P. Thakkar, a sitting Judge of this Court. The terms of enquiry notified for the Committee reads:a) the sequence of events leading and all the facts relating to, the assassination of late Prime Minister;b) Whether the crime could have been averted and whether there were any lefts or dereliction of duty in this regard on the part of any one of the commission of the crime and other individuals responsible for the security of the late Prime Minister;c) the deficiencies, if any, in the security system and arrangements as prescribed or as operated to in practice which might have facilitated the commission of the crime;d) the deficiencies, if any, in the procedure and measures as prescribed, of as operated in practice in attending to any providing medical attention to the late Prime Minister after the commission of the crime; and whether was any lapse or dereliction of duty in this regard on the part of the individuals responsible for providing such medical attention;e) whether any person or persons or agencies were responsible for coursing, preparing and planning the assassination or whether there was any conspiracy in this behalf, and if so, all its ramifications.29. The Commission was also asked to make recommendations as to corrective remedies and measures that need to be taken for future.30. It is therefore clear that out of these terms of reference the first term (a) and the last one (e) are such that the evidence collected by the Commission could be said to be relevant for the purposes of this trial.31. It is significant that the Commission framed regulations under Section 8 of the Act in regard to the procedure for enquiryRegulation made it clear that the proceedings of the Commission will be ordinarily in camera. It would only be in public if the Commission so directs and it is not disputed that so far as recording of evidence is concerned and the proceedings of the Commission it has gone on in camera throughout and even the report, interim and the final report. And then also it was stated by the Commission itself to be confidential.It is interesting that on 20.8.86, Ordinance No. 6 was replaced by Commission of Enquiry (Amendment) Act, 1986 (Act No. 36 of 1986 with retrospective effect. The said notification dated May 15,1986 was also got approved by the House of People as required under Sub-section 6 of Section 3 and therefore after the approval of the notification by the House of the People there remains no question of placing the report of the Commission before the House.33. So far as the steps taken by the appellants are concerned, it is no doubt true that an appropriate application in the manner in which it was moved in the High Court was not moved in the trial court but it could not be doubted that one of the accused persons had even sought these copies in the trial court and the same prayer has been appropriately made during the hearing in the High Court.The High Court relied on the decision of this Court in the case of Rain Krishan Dalmiay. Justice Tendulkar 1959 SCR 279 , which is referred to henceforth as Dalmias case. It was contended by learned Counsel for the appellants that this case could not be accepted as an authority on interpretation of Section 6 as in that case the scope of Section 6 was not before the Court but it was the validity of the provisions which were challenged. Das, C.J. in Dalmias case while examining the challenge to the validity of the Act and the notification issued thereunder made the following observations:The whole purpose of setting up of a Commission of Enquiry consisting of experts will be frustrated and the elaborate process of enquiry will be deprived of its utility if the opinion and the advice of the expert body as to the measures and situation disclosed calls for can not be placed before the Government for consideration notwithstanding that doing so can not be to the prejudice of anybody because it has no force of its own. In our view, the recommendations of a Commission of Enquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. From this point of view, there can be no objection even to the Commission of Enquiry recommending the imposition of some form of punishment which will, in its opinion, be sufficiently deterrent to delinquent in future. But seeing that the Commission of Enquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore.The statement made by any person before the Commission of Enquiry under Section 6 of the Act is wholly inadmissible in evidence in any further proceedings civil or criminal.35. According to learned Counsel, in that case it was not the scope of Section 6 but the validity of the provisions were in question and the observations were only incidental and it can not be regarded as a binding precedent. The High Court has accepted these observations of this Court in the judgment quoted above and in our opinion rightly.35A. Section 6 of the Commission of Enquiries Act36. On analysis of the provision, it will be found that there are restrictions on the use of a statement made by a witness before the Commission. First is Shall subject him to ...any civil or criminal proceedings except a prosecution for giving false evidence by such statement. The second restriction, according to me, is spelt out from the words or be used against him in any civil or criminal proceedings. Thus if we examine the two restrictions stated above it appears that a statement given in a Commission can not be used to subject the witness to any civil or criminal proceedings nor it can be used against him in any civil or criminal proceedings and in my opinion it is in the context of these restrictions that we will have to examine the provisions of the Evidence Act which permit the use of a previous statement of a witness and for what purposeA perusal of these three Sections clearly indicate that there are two purposes for which a previous statement can be used. One is for cross examination and contradiction and. the other is for corroboration. The first purpose is to discredit the witness by putting to him the earlier statement and contradicting him on that basis. So far as corroboration is concerned it could not be disputed that it is none of the purposes of the defence to corroborate the evidence on the basis of the previous statement. Section 145 therefore is the main section under which relief was sought by the accused. The use for which the previous statement was asked for was to contradict him if necessary and if it was a contradiction then the earlier statement was necessary so that contradiction be put to the witness and that part of the statement can be proved.39. To my mind, there could be no other purpose for which the appellants could use the previous statements of those witnesses. Contradiction could be used either to impeach his credit or discredit him or to pull down or bring down the reliability of the witness. These purposes for which the previous statements are required could not be said to be purposes which were not against the witness. The two aspects of the restrictions which Section 6 contemplates and have been discussed earlier are the only two aspects which could be the result of the use of these statements. I cannot find any other use of such previous statements in criminal proceedings. It is therefore clear that without going into the wider questions even a plain reading of Section 6 as discussed above will prohibit the use of the previous statements at the trial either for the purposes of the cross examination to contradict the witness or to impeach his credit. The only permissible use which has been provided under Section 6 is which has been discussed earlier and therefore the Courts below were right in not granting the relief to the accused.40. The report of the Commission was also prayed for although learned Counsel could not clearly suggest as to what use report of the Thakkar Commission could be to the accused in his defence. The report is a recommendation of the Commission for consideration of the Government. It is the opinion of the Commission based on the statements of witnesses and other material. It has no evidentiary value in the trial of the criminal case. The courts below were also justified in not summoning the reports.It is apparent that in the facts of the case as the evidence stands the question of post-mortem or a fuller post-mortem was necessary or not loses all its significance. There is no dispute that she died as a result of the gun shot injuries which was inflicted by Bent Singh and Satwant Singh, one who shot from his service revolver and other from the carbine. In view of such clear evidence about the cause of the death, the post-mortem examination loses all its significance. It becomes important only in cases where the cause of death is to be established and is a matter of controversy.Similarly in Ram Raj v. State of Ajmer 1954CriLJ1313 Justice Mahajan, Chief Justice observed at page 1134:Unless it is shown that exceptional and special circumstances exist that substantial and grave injustice] have been done and the casein question presents features of sufficient gravity to warrant a review of decision appealed against this Court does not exercise its overriding powers under Article 136(1) of the Constitution and the circumstances that because the appeal have been admitted by special leave does not elant to open out the whole case and contest all the findings of fact and raise every point which should have been raised in the High Court. Even in the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for.Even in a recent decision 1983CriLJ1096 Justice Thakkar Stated:A concurrent finding of fact can not be reopened in an appeal unless it is established; (i) that the finding is based on no evidence or record, that the finding is perverse, it being such as no reasonable person would have arrived at even if the evidence was taken at its face value or thirdly, the finding is based and built on inadmissible evidence which evidence if excluded from the vision would negate the prosecution case or substantially discredit or impair it or; fourthly some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded or wrongly discarded.I may however, mention that where the High Court has reached conclusions based on partly inadmissible evidence and partly on circumstances which are not justified on the basis of evidence, or partly on facts which are not borne out from the evidence on record it can not be contended that in an appeal under Article 136 this Court will not go into the facts of the case and come to its own conclusions. The case on hand is one of such cases and some of the findings of fact reached by the High Court could not be said to be such which are concurrent or conclusive.Section 120-A provides for the definition of criminal conspiracy and it speaks of that when two or more persons agree to do or cause to be done an act which is an illegal act and Section 120-B provides for the punishment for a criminal conspiracy and it is interesting to note that in order to prove a conspiracy it has always been felt that it was not easy to get direct evidence. It appears that considering this experience about the proof of conspiracy that Section 10 of the Indian Evidence Act was enacted.Section mainly could be divided into two: the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition precedent is satisfied that the subsequent part of the Section comes into operation and it is material to note that this part of the Section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Section 120-A where it is provided When two or more persons agree to do, or cause to be done. This further has been safeguarded by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore necessary that a prima facie case of conspiracy was to be established for application of Sec, 10. The second part of Section talks of anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the Section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120-A. It is only then the evidence of action or statements made by one of the accused could be used as evidence against the other.49. Now, we will take first, the arrest of this accused on 1st November. It is not disputed that on 1st November late at night his house was searched and a printed took - Sant Bhindrawale was seized from his house and he was brought to Yamuna Velodrome. It is also not in dispute that the prosecution evidence itself indicates that upto the evening the next day he was seen in the Yamuna Velodrome.49. Now, we will take first, the arrest of this accused on 1st November. It is not disputed that on 1st November late at night his house was searched and a printed took - Sant Bhindrawale was seized from his house and he was brought to Yamuna Velodrome. It is also not in dispute that the prosecution evidence itself indicates that upto the evening the next day he was seen in the Yamuna Velodrome.50. It will be better here to describe what this Yamuna Velodrome is? From the prosecution evidence what has emerged is that this is a place where there are number of offices but Police has reserved a portion of this building to be used for interrogation and investigation. Normally when a person or a witness is brought for interrogation or investigation at a Police station, some record has to, be made as there is a general diary although diaries may or may not be filled in but a duty is cast on the Station House Officer of a Police Station to maintain the movements of the Police Officers and also to note down the activities especially when it is connected with the investigation of an important case. But it appears that all about the preliminary investigation of this case was going on at Yamuna Velodrome, witnesses and persons were brought here, detained or kept, and interrogated. We do not have any further evidence in regard to this place.51. According to the prosecution, this accused was at Yamuna Velodrome upto the evening of that day and thereafter he was allowed to go and then he absconded. As a matter of fact this part of the story becomes very important in view of the further facts alleged by the prosecution that the investigating officer got some information through some one that this accused who was wanted would appear at the time and place indicated. But there is no evidence as to who asked this accused to go. He was a suspect in the criminal conspiracy. He could not have gone away of his own accord. Some responsible officer must have taken the decision but it is unfortunate that no officer has been examined to state thatI thought that his presence was not necessary and therefore I allowed him to go. Learned Additional Solicitor General appearing for the State before us also was asked if he could lay his hands at any part of the evidence of any one of the witnesses who could say that before him this person was allowed to go from the Yamuna Velodrome. There is no evidence on this aspect of the matter at all and therefore we are left with the only evidence that this person was arrested at midnight in the late hours on 1st November and was carried to Yamuna Velodrome and was seen there by some prosecution witness till the evening of the next day.52. Then the other aspect of the matter which is of some importance is about the prosecution allegation that he was absconding from 1st or 2nd November till 3rd Dec. 1984. It is significant that no witness has been examined to indicate that he went to find him out either at his residence or at any other place in search of him and that he was not available. There is also no evidence produced to indicated that inspite of the fact that during investigation police wanted to arrest him again but he was not available at his known address. It is perhaps of absence of evidence as to absconding the trial court when examined this accused under Section 313 did not put him any question about his abscondence. It is therefore clear that the abscondence as a circumstance could not be used against him.53. Let us now examine the story of the prosecution that this accused was arrested at Najafgarh Bus-stand. It is alleged that Sh. Kochhar, the Investigating Officer got some information that this accused was expected to appear at that place on 3rd December, 1984. It was not immediately after the assassination. It was after a month. The people could come forward to become witness. But no independent witness has been examined in support of the arrest or seizure from the accused. It may be as technically argued by the learned Additional Solicitor General that the presence of public witnesses under the scheme of CrPC is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal search. But it is well-known that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of the accused there is no other evidence except the evidence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution. It may also be noted that according to Mr. Kochhar, that the accused appeared at the Bus-stand but they have not been able to disclose from where he appeared. Whether he got down from a bus, if so from which bus - city or outstation bus? How he appeared there is all mystery. Nobody bothered to notice of his coming. It is said that he had a DTC bus ticket. Nobody examined it. Perhaps there was nothing to examine. If the Police Officers had gone with prior information to arrest the absconding accused who was involved in such an important crime, they could have taken an independent witness with them. It is again interesting to note that instead of searching him and performing the formalities of arrest at the place where the accused appeared, he was taken to a place said to be the office of the Electricity Board. The search and seizure took place there. Some articles were recovered from his possession. Most of the articles recovered are mere personal belongings. There was also a piece of paper since marked as Ex. PW 26/B. The Police did not think it necessary to have an independent witness even for the seizure memo, when particularly some important piece of evidence was recovered from his possession. The reply of the learned Additional Solicitor General was that in law it was not necessary. The Investigating Officer when questioned in cross-examination answered that nobody was available or none was prepared to be a witness in this matter. It is unthinkable at a public place and that too at the Bus-stand. Learned Additional Solicitor. General also attempted to contend that the circumstances in Delhi after the assassination of the Prime Minister were such that no witness was prepared to come forward. It appears that for every problem this situation is brought as a defence but in our opinion, this would not help them so far as this matter is concerned. We are talking of 3rd December which was more than a month after the unrest in Delhi. It is very difficult to believe that a citizen in this capital did not come forward to be a witness for seizure memo. The arrest of the accused in the circumstances appears to be only a show and not an arrest in actuality.54. Learned Additional Solicitor General appearing for the State frankly conceded that if the release of this accused after his arrest on 1st November is not established and his abscondence is not proved, then the story of his arrest on 3rd December with the recovery of the articles loses all its significance. It is indeed so.55. In the context of what has been discussed above it is apparent that the arrest of the accused on 3rd December and the recovery of these articles from his person have not been proved satisfactorily and therefore could not be of any consequence against this accused.There is an endorsement in the- Malkhana Register stating that the DTC ticket which the accused carried and the paper containing the dates in English Ex. PW 26/B were not deposited. The Malkhana Register therefore is of no help to the prosecution. If they were taken back for any further investigation they could have made an entry to that effect in the general diary. The nature of entry in the Malkhana Register only shows the recovery of certain articles and a note that the two documents although are said to be recovered but they were not brought and deposited at the Tuglak Road Police Station. It is therefore clear that although in the seizure memo the mention of the two documents including Ex. PW 26/B is there, they in fact did not reach the Police Station or see the light of the day.57. In view of these infirmities we can not accept that the accused was arrested on 3rd December as alleged by the prosecution. So the recovery of Ex. PW 26/B is doubtful. However, we may refer to the said document as it has been said to be one of the most important pieces of evidence as the High Court has described it.There is an endorsement in the- Malkhana Register stating that the DTC ticket which the accused carried and the paper containing the dates in English Ex. PW 26/B were not deposited. The Malkhana Register therefore is of no help to the prosecution. If they were taken back for any further investigation they could have made an entry to that effect in the general diary. The nature of entry in the Malkhana Register only shows the recovery of certain articles and a note that the two documents although are said to be recovered but they were not brought and deposited at the Tuglak Road Police Station. It is therefore clear that although in the seizure memo the mention of the two documents including Ex. PW 26/B is there, they in fact did not reach the Police Station or see the light of the day.57. In view of these infirmities we can not accept that the accused was arrested on 3rd December as alleged by the prosecution. So the recovery of Ex. PW 26/B is doubtful. However, we may refer to the said document as it has been said to be one of the most important pieces of evidence as the High Court has described it.58. The document can be taken to have been written in the handwriting of Balbir Singh as that is not seriously contested before us. The document is a sheet of paper in which we find certain entries.59. If this document is considered to be a memorandum of events prepared by this accused relating to his conspiracy, why should he carry it in an atmosphere surcharged with emotion against the Sikhs. Not only that, this person knew that he was an accused in such an important case where whole public opinion is against him. He also knew that he was absconding and he also knew that he was carrying in his pocket such an important piece of evidence. Was it his intention that he should keep it readily available so that he could oblige the prosecution whenever they needed? There is no other possible reason why this person should keep this document with him all the time. On our questioning the learned Additional Solicitor General about this strange behaviour of the accused, he also could not explain as to why the accused could have thought of carrying such a piece of paper in his pocket.60. Apart from it, if the document is looked at as it is we see nothing in it except a mention of few dates and few events. It even does not indicate that with those events whether this accused was connected in any manner. It is also significant that this document was not with this accused when his house was searched and he was arrested on the night of 1st November, 1984. If the accused after that arrest was not released at all and there was no occasion for him to go away then, one fails to understand as to how this document came in his possession? The explanation suggested by the learned Counsel for the accused appears to be the most probable. As indicated from other evidence, the accused was preparing to give a statement or a confession and therefore he was given the notes and he must have recorded those dates to facilitate the statement that he was planning or he was made to give which ultimately he chose not to give at all.61. Looking to this document the only material which could be said to be of some significance is the words felt like killing. But there is no reference after those words as to who was intended to be killed. There is also no indication as to whose feelings are noted in this piece of paper. There are entries in this document which refer to meetings, visits, persons, visiting somebodys house but it is not clear as to whom they refer and what is intended when these reference is made. Beant Singh has been referred to in this document more than in one place. At one place, there, is a reference to Beant Singh with eagle. But there is no reference to a joint Ardas or this accused or Beant Singh telling that it had brought a message or they should take revenge. The entry does not suggest that the accused has anything to do with the eagle. If there is anything, it is against Beant Singh.62. A perusal of this whole document also shows that there is no reference at all to Beant Singh and his plan to kill the Prime Minister. Nowhere it is mentioned about the bomb or grenade with which he was planning to eliminate the Prime Minister before 15th August, 1984. There is also no reference about Beant Singh conspiring with this accused or vice-versa. Kehar Singh is not at all in the document. Satwant Singh, however, is mentioned against 30th October,. But it does not give an indication where? The prosecution has connected it with the evidence of PW 52 who was the Sentry in the Prime Minister security.63. Under these circumstances it is very clear that except the mention of Bluestar Operation and felt like killing there is nothing in this document which is of any significance. If the document is read as it is, we see nothing incriminating against this accused. Unfortunately it appears that the High Court read in this document what was suggested by the prosecution without considering whether it could be accepted or not in the absence of evidence on record. Admittedly, there is no such evidence at all in this case65. In view of what we have noticed, even if the document is accepted to have been written by the accused, still there is nothing in it on the basis of which an inference of conspiracy could be drawn. There must be evidence to indicate that the accused was in agreement with the other accused persons to do the act which was the ultimate object which was achieved on 31.10.1984. This document therefore although described by the learned Judges of the High Court as very important piece of evidence is nothing but a scrap of paper.Unfortunately, the learned Judges of the High Court when they came to the conclusion that Balbir Singh knew Beant Singh and Satwant Singh well, have not referred to any piece of evidence in this case which establishes that they knew each other well. The learned Additional Solicitor General appearing for the State also has not been able to point out any piece of evidence on the basis of which this could be inferred. This accused being a Sikh also is referred to but there were number of Sikh officers posted at the house of the Prime Minister and merely because he was a Sikh it could not be said that he became a party to the conspiracy or he was in conspiracy or he knew Beant Singh and Satwant Singh well. Similarly as regards the observations made by the High Court that Balbir Singh shared indignation of Beant Singh against Smt. Gandhi and was in a mood to avenge for the Bluestar Operation, there is no evidence to support it. From the testimony of SI Madan Lal Sharma, PW 30 all that we could gather is that after the Bluestar Operation Balbir Singh was in an agitated mood and he used to say that the responsibility of damaging the Akal Takht lies with Smt. Gandhi and it would be avenged by them. From this it cannot be inferred that Balbir Singh wanted to take revenge against the Prime Minister along-with Beant Singh. This is not what is said by the witness. If expression of anger or protest on the Bluestar Operation could be used as a piece of evidence or a circumstance against accused then all that members of the Sikh community who felt agitated over the Bluestar Operation must be held as members of the conspiracy.67. So far as taking leave is concerned there is nothing on the basis of which any significance could be attached to it. There is no material to indicate that during the leave Balbir Singh met Beant Singh or anyone else or was in any manner connected with the conspiracy or was doing something in pursuance of the agreement of conspiracy between them. Merely because on certain dates he was on leave no inference could be drawn. The High Court relied on the fact that after returning from leave this accused met Beant Singh and Amarjit Singh but on this meeting also there is no other evidence except the evidence of Amarjit Singh PW 44 which we will deal with a little later.68. So far as appearance of falcon and offering of ardas is concerned it is admitted that appearance of falcon is considered, by the Sikh community, as a sacred thing as falcon is supposed to be a representative of the Guru and if therefore this accused and Beant Singh offered ardas nothing could be inferred from this alone. As even the High Court observed that:Nothing unusual or abnormal about the incident as any religious Sikh seeing the appearance of the falcon could offer the Ardas.So far as meeting with Satwant Singh is concerned on October 30, 1984 the only evidence of that fact is the evidence of Satish Chandra Singh PW 52 about whom I have discussed little earlier and nothing more need be stated here.69. With this we are now left with the evidence of Amarjit Singh who is an important witness as per the prosecution. It has come on record that his statement during investigation was recorded thrice; twice by Police under Section 161 and then under Section 164 Cr. P.C. The first statement is Ex. PW 44 which was recorded on November 24, 1984 after 25 days of the incident and the Second statement PW 44 DB was recorded on December 19, 1984. On December 21, 1984 the third statement PW 44A under Section 164 of the Code came to be recorded. In the first statement there is no involvement of Balbir Singh. The second statement according to the witness was recorded at his own instance. He states that it did not occur to him that assassination was the handwork of Balbir Singh and Kehar Singh. After he had learnt about the firing and death of Smt. Indira Gandhi he recalled certain things and went to Shri R.P. Sharma who recorded his statement on 24.11.84. According to him, he recalled bit by bit and that was the reason, he gave the subsequent two statements. If we carefully peruse these statements it is clear that the entire approach of the High Court appears to be erroneous.These portions of the statement which were put and proved from Amarjit Singh as his first statement recorded by the police clearly go to show that he had only alleged these things against Beant Singh. What he did later was to improve upon his statement and introduce Balbir Singh also or substitute Balbir Singh in place of Beant Singh. The only other inference is that he was himself a party to that conspiracy. Otherwise there is no explanation why he should keep on giving statement after statement, that too after 25 days of the incident. The second statement was recorded on December 19 and a third statement on December 21, 1984. It clearly shows that he was a convenient witness available to State whatever was desired from him. He appears to have become wiser day by day and remembered bit by bit, is certainly interesting to remember.70. It could not be doubted that the two versions given out by this witness are not such which could easily be reconciled. In fact in his first version there is nothing against Balbir Singh. In his second statement he has tried to introduce things against him. This apparently is a clear improvement. It is well-settled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such a witness alone.71. Apart from it, the evidence which he has given is rather interesting. According to him Beant Singh and Balbir Singh were so close to him that they used to keep him informed about their plans to assassinate the Prime Minister of India. But relation with Balbir was such that he was not even invited when Balbir Singh was married and therefore it was nothing but casual but still he claims that he had so much of close association that he used to be taken in confidence by these two persons. That means that he is one of the conspirators or otherwise he would not have kept quiet without informing his superiors as it was his duty to do when the Prime Minister was in Janger.72. In view of this, it is clear that there is no evidence at all to establish prima facie participation of this accused in conspiracy or any evidence to indicate that he had entered into any agreement to do an unlawful act or to commit an offence alongwith the other accused persons. Therefore, in absence of any evidence in respect of the first part of Section 10 which is necessary it could not be contended that the confession of Satwant Singh could be of any avail or could be used against this appellant.73. Before parting with this witness, one more thing may be noted. The High Court, in order to explain that this witness Amarjit Singh did not refer to Balbir Singh in his first statement on 24.11.84 stated something out of imagination. The High Court has quoted his statement on 24.11.84 in these words:He is also reported to have said that Beant Singh had wanted to kill Smt. Gandhi before 15th of August and that he had agreed to do so if grenade and remote control were available.In this context, the use of the word agreed and word he the High Court felt that they refer to Balbir Singh and none else. This appears to be an explanation given by Amarjit Singh in his statement in Court and the High Court felt that it could accept it. It is clear that where he says agreed and he in his statement on November 24, 1984 he had not named Balbir at all. It is only now in his statement at trial that he grew wiser and made an attempt by way of this explanation. It is rather unfortunate that the High Court felt that this explanation should be accepted. The statement against Balbir coming for the first time on 21st December, 1984 itself in the light of the settled criminal jurisprudence of this country ought to have been rejected outright. Secondly, the High Court found corroboration from the confession of Satwant Singh. So far as the statement or the confession of Satwant Singh is concerned, it could not be used against this accused as we have earlier indicated.74. Thirdly so far as falcon incident is concerned, we do not know how the High Court felt that that incident corroborates the evidence of Amarjit Singh when Amarjit Singh alone talks of the falcon incident. There is no basis for this conclusion of the High Court.75. Lastly, it may be noted that so far as this accused is concerned, even Bimla Khalsa, the wife of Beant Singh does not mention anything.Kehar Singh:77. The finding of guilt recorded by the High Court against Kehar Singh is a mixture of both relevant and irrelevant evidence adduced by the prosecution.Material evidence against Kehar Singh is the evidence of PW 65, Bimla Khalsa wife of Be ant Singh.79. There is only one variation between the previous statement and evidence in Court. That relates to identification of Satwant Singh. In the Court she attempted to s.ay that he was a boy and later explained that at that time he had no beard but the manner in which the boy has been described and the occasions when the boy had come to their house, there is hardly any doubt left. Apart from it, so far as Satwant Singh is concerned even if we omit the evidence of Bimla Khalsa, it is not material. But it could not be doubted that from her evidence that the above circumstances have been established.80. Next important circumstance is the Vak. It is alleged that when early morning the worship starts in a Gurudwara, the Granth Sahib is opened at random and some message from a page which is so opened is written on the blackboard as a Vak for the day. It is proved by Bimla Khalsa that Ex. P. 55 A was written in the handwriting of Beant Singh. It was a Vak of a particular day which was in the following terms:One gets comfort on serving the Guru. Then miseries do not come near. Birth and death come to an end and black (wicked) do not have effect.About this Vak having been taken out in the Gurudwara, there is some controversy as the witness produced for that purpose Surendra Singh, PW 55 was not in a position to produce the diary but so far as Beant Singh is concerned, the Vak written by him on a piece of paper in Yellow ink in gurumukhi with date 13.10.84 was put on it has been proved by the evidence of Bimla Khalsa. This was admittedly found from the quarters of Beant Singh on 31.10.84 and it was lying inside the book Sant Bhindrawale.81. As far as the incident on 17th October is concerned, Bimla Khalsa in clear terms stated that Kehar Singh and Beant Singh had secret talks. She wanted to know it, but she was not given to understand. This kind of secret talk with Beant Singh which Kehar Singh had, is a very significant circumstance. Apparently Kehar Singh being an elderly person did not indicate to her about their plan. If the attempt of Kehar Singh was to dissuade Beant Singh then there was no occasion for him to keep the matter secret from his wife. On the contrary he should have indicated to his wife also what Beant Singh was planning. These talks therefore as proved by Bimla Khalsa go a long way in establishing Kehar Singh being a party to the conspiracy.82. Her evidence also indicates that Beant Singh took Amrit on 14th and Beant Singh kept his golden kara and ring in the house of Kehar Singh which has been recovered from the latter. It clearly goes to show that Kehar Singh knew why Beant Singh took Amrit and why he handed over the golden kara and ring to him. It is also clear from the evidence of Bimla Khalsa that what transpired between Beant Singh and Kehar Singh on 14th was not conveyed to her and she was kept in dark.83. In this background, the trip to Amritsar of Beant Singh, Kehar Singh and their families is of some significance. On October 20, 1984 Beant Singh and Kehar Singh alongwith their family members went to Amritsar. There is evidence indicated by Bimla Khalsa that originally Kehar Singh arid Beant Singh wanted to go alone but ultimately they agreed that the families also could accompany. According to the evidence of Bimla Khalsa they reached at Amritsar at about 2 to 3 P.M. and went to Darbar Sahib Gurudwara in the evening of 20th October. While ladies and children were listening to kirtan, Beant Singh and Kehar Singh went to see the Akal Takht. Bimla Khalsa wanted to accompany them to see the Akal Takht but she was told to see the same on the next morning. On the next morning i.e. on 21st October, PW 53 was woken up by Kehar Singh and told that he would attend Asaki War Kirtan in Darbar Sahib. He went alongwith Beant Singh. The ladies and children went to Darbar Sahib at 8 A.M. alongwith PW 53. They returned home at 11 A.M. Beant Singh and Kehar Singh did not return alongwith them. After lunch, PW 53 took the ladies and children to the railway station. Beant Singh and Kehar Singh directly came to the railway station from where they caught the train to New Delhi. The attempt of these two persons to keep themselves away from the company of their wives and children speaks volume about their sinister designs. The way in which these two avoided the company of the members of the family and PW 53 at whose residence they were staying and the manner in which they remained mysterious if looked at with the secret talks which they had in the house of Bimla Khalsa earlier goes to establish that the two were doing something or discussing something or planning something which they wanted to keep it as a secret even from Bimla Khalsa.84. So far as Amrit Chhakna ceremony is concerned or taking Amrit is concerned, ordinarily it may not be significant. It is only a ceremony wherein a Sikh takes a vow to lead the life of purity and giving up all worldly pleasures and evil habits but this unfortunately is a situation which could be understood in different ways. The manner in which Amrit has been taken by Beant Singh and even Satwant Singh has been made to take it and even Bimla Khalsa made to take it makes it significant that in all these three of Amrit taking Kehar Singh was always with them or atleast it could be said, was inspiring them to have it. It also indicates that there was something in the mind of Beant Singh which was known to Kehar Singh and which he even tried to keep a secret from Bimla Khalsa, wife of Beant Singh and wanted Beant Singh to have a full religious purification and confidence.85. There is yet another circumstance. Post-crime conduct of Kehar Singh. It is in the evidence that on the day i.e. 31st October, 1984 although Kehar Singh claims to be on leave, he goes to the office at 10.45Whosoever would take confrontation with the Panth, he would meet the sames remark shows his guilty mind with that of Beant Singh.86. We have discussed some of the main features of the case and it is not necessary for us to go into other details which the High Court has discussed. These circumstances by themselves indicate that Kehar Singh was a co-conspirator to assassinate Mrs. Gandhi.Satwant Singh:87. He was a Constable on security duty at the residence of the Prime Minister.89. The main evidence against him is evidence of eye witnesses. The first eye witness which I would like to refer is Narain Singh PW 9. This witness stated that he was on duty at about 7.30 A.M. in the porch of the Prime Ministers house. According to him at 8.45 A.M. he with an umbrella took up his position near the entry gate as he came to know that Smt. Gandhi had to go to No. 1, Akbar Road to meet certain foreign TV representative and he was to go alongwith her holding an umbrella to protect her from the sun. At 9.10.A.M. Smt. Gandhi came out of the house followed by Nathu Ram PW 6 and her Private Secretary Shri R.K. Dhawan. Then he moved over to the right side and held the umbrella Ex.P.19. They approached the TMC Gate and when they were about 10 ft. therefrom he saw that the gate was open and he also saw Beant Singh on the left side and Satwant Singh on the right side, the former in a Safari suit and the later in the uniform and with a Carbine stengun in his hands. At that time Beant Singh took out his revolver from the right dub and fired at Smt. Gandhi and immediately thereafter Satwant Singh also started firing at her. Smt. Gandhi was hit by these bullets and injured. She fell down on the right side. Seeing this he threw the umbrella on the left side, took out his revolver and jumped on Beant Singh. As a result of which revolver fell from the hands. He saw Satwant Singh throwing his Carbine to the ground on his right side. At that time Shri Bhatt, the personal guard of Smt. Gandhi and ITBP personnel arrived there and secured Satwant Singh. Some other persons also came and secured Beant Singh. He then ran to summon the doctor and while going, he noticed that Rameshwar Dayal PW 10 had also sustained bullet injuries. The doctor himself came running by then. He, Bhatt, the doctor and Nathu Ram took her to the escort car which had arrived near and placed he/in the rear seat. By this time, Smt. Sonia Gandhi had also arrived and Smt. Gandhi was taken to AIIMS accompanied by Bhat, Dhawan and Fotedar on the Front seat and the doctor and Sonia Gandhi on the back seat. He went to the Hospital in a staff car and PW 10 was taken to AIIMS in another car. There she was taken to the eighth floor and he was given the duty of controlling the crowd. At about 10 or 10.15 A.M. R.P.Kochhar, PW 73 arrived and this witness gave a statement to Kochhar in the doctors room which was recorded by him and sent to Tuglak Road Police Station which is the FIR in this Case.90. His testimony is corroborated by the First Information Report and also by the two other eye witnesses Rameshwar Dayal and Nathu Ram whose presence on the spot could not be doubted. Nathu was in the personal staff of the Prime Minister and Rameshwar Dayal himself had received injuries. Apart from it, this evidence of direct witnesses also finds corroboration from the post-mortem report, recovery of cartridges and arms on the spot and the evidence of the Doctor and the expert who tallied the bullets. Under these circumstances even if the confession of this appellant Satwant Singh is not taken into consideration, still there is enough evidence which conclusively establish his part in the offence and in this view of the matter there appears to be no reason to interfere with the conclusions arrived at by the two courts below. In our opinion, therefore, the appeal of Satwant Singh deserves to be dismissed.76. In the light of the discussions above, in our opinion, so far as this accused is concerned there is no evidence at all on the basis of which his conviction could be justified. He is therefore entitled to be acquitted.The person killed is a lady and no less than the Prime Minister of this Country who was the elected leader of the people. In our country we have adopted and accepted a system wherein change of the leader is permissible by ballet and not by bullet. The act of the accused not only takes away the life of popular leader but also undermines our system which has been working so well for the last forty years. There is yet another serious consideration. Beant Singh and Satwant Singh are persons who were posed on the security duty of the Prime Minister. They are posted there to protect her from any intruder or from any attack from outside and therefore if they themselves resort to this kind of offence, there appears to be no reasons or no mitigating circumstance for consideration on the question of sentence. Additionally, an unarmed lady was attacked by these two persons with a series of bullets and it has been found that a number of bullets entered her body. The manner in which mercilessly she was attacked by these two persons on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. In this view of the matter, even the conspirator who inspired the persons who actually acted does not deserves any leniency in the matter of sentence. In our opinion, the sentence awarded by the trial court and maintained by the High Court appears to be just and proper.