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

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 (1 = appeal accepted, 0 = rejected): 0

Explanation:
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.