Case: State Of Maharashtra and Ors Vs. Sukhdeo Singh And Anr.

1. General A. S. Vaidya, the then Chief of the Armed Forces was, on the orders of the then Prime Minister Smt. Indira Gandhi, assigned the difficult and task of flushing out militants who had taken refuge in the Golden Temple at Amritsar. During this operation, known as the Blue Star Operation, some militants were killed and a part of the Golden Temple known as Harminder Saheb was damaged. Both the then Prime Minister Smt. Indira Gandhi and General Vaidya had, therefore, incurred the wrath of the Punjab militants for what they called the desecration of the Golden Temple. They, therefore, vowed to avenge the deaths of their colleagues and punish all those who were responsible for the damage to the Golden Temple. After the assassination of Smt. Gandhi on 31st October 1984, it is the prosecution case, they waited for General Vaidya to retire on 31st January, 1986 so that the security cover which would then stand reduced may not be difficult to penetrate. After his retirement General Vaidya decided to settled down on Pune in the state of Maharashtra2. After his retirement on 31st January, 1986, General Vaidya and his wife Bhanumati left Delhi for Pune. As their bungalow at Pune was still under construction, they shared bungalow No. 20 at Queens Garden, Pune, occupied by Major General Y. K. Yadav. General Vaidya owned a Maruti Car bearing Registration No. DIB 1437 which reached Pune on the next day i.e. 1st February, 1986. Between 4th and 16th February, 1986 General Vaidya and his wife went to Goa for a brief holiday. They returned to Pune on 16th February, 1986. They continued to reside in the bungalow occupied by Major General Y. K. Yadav. General Vaidya was required to be hospitalised from 24th March to 7th April, 1986 as he was suspected to be suffering from jaundice. During his stay in bungalow No. 20, Queens Garden, two Police Sub-Inspectors were available on security duty, one for himself and another for Major General Yadav but after his discharge from the hospital and on their shifting to their bungalow at 47/3, Koregaon Park with effect from 25th May, 1986 only one armed Head Constable, Ramchandra Kshirsagar, was on security duty with him. Although the name plate of General Vaidya was displayed on one of the two posts of the entrance gate to bungalow No. 20 at Queens Garden, no such name plate was displayed at bungalow No. 47/3, Koregaon Park3. On the morning of 10th August, 1986, General Vaidya and his wife left their bungalow with the securityman Ramchandra Kshirsagar for shopping in their Maruti Car No. DIB 1437 at about 10.00 a.m. The car was being driven by General Vaidya with his wife sitting in the front seat to his left and the securityman sitting in the rear seat just behind her. After the shopping spree was completed at about 11.30 a.m. and while they were returning to their residence via Rajendrasinghji Road, the car had to take a turn to the right at the square in front of 18 Queens Garden at the intersection of Rajendrasinghji and Abhimanyu roads. To negotiate this turn General Vaidya who was driving the vehicle slowed down. At that point of time a red Ind-Suzuki motor cycle came parallel to the car on the side of General Vaidya and the person occupying the pillion seat of the motor cycle fired three shots from close range at the head of General Vaidya. Before his wife and securityman could realise what had happened, General Vaidya slumped on the shoulder of his wife Bhanumati. The motor cyclists drove away and could not be located. An auto-rickshaw passed by. As General Vaidya lost control over the vehicle the car surged towards a cyclist Digambar Gaikwad. The latter, in order to save himself, jumped off the cycle. The cycle came under the Maruti Car and as a result the car stopped at a short distance in front of a compound wall. Immediately thereafter the securityman stepped out of the vehicle and went in search of some bigger vehicle to carry General Vaidya to the hospital. A Green Matador Van which was passing by was fetched by the securityman in which the injured General Vaidya was carried to the Command Hospital where he was declared dead4. The security man immediately informed the L.I.B. Office about the incident which information was received by Police Inspector Garad. On receipt of the information the Commissioner of Police and his Deputy arrived at the hospital and questioned the securityman who narrated the incident to them. Thereupon the security man was asked to go to the Control Room. On reaching the Control Room he received a message from Inspector Mohite requiring him to return to the place of the incident where his formal complaint was recorded by Inspector Mohite. A Panchnama of the scene of occurrence was drawn up by Inspector Mohite in the presence of witnesses and the empty cartridges and other articles were recovered therefrom5. As stated earlier, the assailants of General Vaidya had made good their escape from the scene of occurrence after the incident. On 7th September, 1986, two persons riding a red Ind-Suzuki motor cycle collided with a truck. They were thrown off the motor cycle and sustained injuries. A bag containing arms and ammunition was also thrown off but they hurriedly collected the spilled articles. When members of the public who had collected there immediately after the accident went to assist them they behaved in an abrasive manner and one of them, later identified as accused No. 1 Sukhdev Singh alias Sukha, raised his revolver and threatened to shoot, which raised the suspicion of the crowd prompting one Narayan Bajarang Pawar to report the matter to Inspector A. I. Pathan of Pimpri Police Station. Inspector Pathan swung into action and along with the informant and his staff members, including Sub-Inspector Nimbalkar, went in search of the two motor cyclists. Inspector Pathan went to the Pimpri Railway Police Station and asked P.S.I. M. K. Kadam of that Police Station to immediately go to the place of the accident and guard the same until further orders. Inspector Pathan, on return, noticed two persons passing by Vishal Talkies and as one of them was limping his suspicion was aroused whereupon he drove his vehicle near them and pounced on one of them, later identified an accused No. 2 Nirmal Singh alias Nima. Accused No. 1 Sukha tried to run away but P.S.I. Nimbalkar gave a chase and caught hold of him and brought him to Inspector Pathan. Before he was overpowered, it is prosecution case, that accused No. 1 Sukha unsuccessfully tried to fire a shot at P.S.I. Nimbalkar to make good his escape. It may here be mentioned that both accused No, 1 and accused No. 2 were charge-sheeted under section 307, IPC, for that incident and were ultimately convicted and sentenced6. After both accused No. 1 and accused No. 2 were apprehended by Inspector Pathan and P.S.I. Nimbalkar they were searched and weapons like pistol and revolver along with live cartridges were recovered from them. They were also carrying certain papers concerning the red Ind-Suzuki motor cycle and they too were attached. As a sizeable crowd had gathered on the road Inspector Pathan thought it wise to cause the seizure memorandum to be recorded at the Pimpri Police Station. The prosecution case is that while the two persons were being taken in a jeep to the Pimpri Police Station they raised slogans ofand proudly proclaimed that they were the assailants of General Vaidya. After reaching the Police Station all the articles which were found in the possession of these two persons were attached under a seizure memorandum. Inspector Pathan suspected that the pistol which was found from them may have been the weapon used for killing General Vaidya and hence he sent the weapons as well as the cartridges attached from the scene of occurrence to the Ballistic Expert who reported that the cartridges found from the place where General Vaidya was shot were fired from the pistol which was recovered from the possession of these two persons after their arrest on 7th September, 1986. In the course of investigation it came to light that besides accused Nos. 1 and 2 certain other persons described as terrorists, namely, accused No. 3 Yadvinder Singh, accused No. 4 Avtar Singh, accused No. 5 Harjinder Singh and absconding accused Sukhminder Singh alias Sukhi, Daljit Singh alias Bittoo alias Sanjeev Gupta, Jasvinder Kaur, and Baljinder Singh alias Raju were involved in the conspiracy allegedly hatched for assassinating General Vaidya immediately after his retirement and on depletion of the security cover. Accused Nos. 1 and 2 and others named hereinabove were charge-sheeted on 14th August, 1987 under sections 120B, 302, 307, 465, 468, 471 and 212, IPC, sections 3 and 4 of Terrorist and Disruptive Activities Act, 1985, hereinafter called TADA, and section 10 of the Passport Act7. In regard to the charge of conspiracy, forgery, etc., the prosecution case is that absconding accused Sukhi hired a flat sometime in October-November 1985 at 7, Antop Hill, Bombay. Thereafter he came to Pune and stayed in Dreamland Hotel in the assumed name of Rakesh Sharma. On January 26, 1986 he shifted to and registered himself as Ravindra Sharma in Hotel Gulmohar on the pretext that he was visiting the city for business purposes. He was accompanied by another person. They gave a false address that they were residents of 307, Om Apartments, Bombay. While in Pune an advertisement appeared in the local daily Maharashtra Herald offering a flat No. G-21, Salunke Vihar, Pune on hire. This flat was in the possession of Major A. K. Madan and he was desirous of letting it out to repay the instalments of the loan taken for meeting the construction cost of the said flat. He had entrusted this work of finding a suitable tenant to one V. R. Hallur and had given a Power of Attorney to him for that purpose. The said V. R. Hallur approached the Estate Agents, Bhavar Sanghavi and disclosed that he was desirous of letting out the flat on a rent ranging between Rs. 1200/- and Rs. 1500/- with a deposit ranging between Rs. 12, 000/- and Rs. 15, 000/-. The Estate Agents published an advertisement in the local newspaper Maharashtra Herald, in consequence whereof one person identifying himself as Ravindra Sharma approached the Estate Agent and finalised the deal by paying Rs. 15, 000/- in cash as deposit and agreeing to pay rent at the rate of Rs. 1500/- per month and went on to pay advance rent for three months i.e. Rs. 4500/- to the said V. R. Hallur. The deal was closed on 30th January, 1986. It is the prosecution case that this flat was hired as the conspirators needed an operational base in Pune to facilitate the killing of General Vaidya8. The prosecution case further is that on 3rd May, 1986 the 7, Antop Hill flat at Bombay was raided and besides arms and ammunition an English novel Tripple was found on the cover page whereof someone had scribbled the number of General Vaidyas Maruti Car. Clothes of different sizes were also found indicating the presence of more than one person. On 8th May, 1986 an Ind-Suzuki motor cycle bearing No. MFK 7548 was purchased in the name of Sanjiv Gupta from its owner Suresh Shah through R. V. Antapurkar, a salesman. Accused No. 1 is reported to have lived in Hotel Ashirvad, Pune on 9th June, 1986. Accused No. 1 lived in Hotel Amir in Room No. 517 on 11th June, 1986, in Hotel Jawahar in Room No. 206 on the next day and in Hotel Mayur in Room No. 702 on 13th June, 1986. On the same day he is shown to have stayed in Hotel Commando, Bandra, Bombay in Room No. 402. The Union Bank robbery took place on that day. The motor cycle was sent for servicing on 1st July, 1986. Sukhi left for U.S.A. on a forged passport on 14th July, 1986 and was arrested there. According to the prosecution they lived in different hotels in different assumed names for drawing up a plan to kill General Vaidya9. Now we enter the crucial stage. According to the prosecution, in pursuance of the conspiracy hatched to kill General Vaidya, accused Nos. 1, 2 and 5 left Ambala Cantonment for Doorg on 3rd August, 1986 by 138 UP Chhatisgarh Express. The form for reservation of sleeper berths dated 29th July, 1986. Exh. 700, is alleged to have been filled by Accused No. 1, of course in an assumed name. They reached Doorg on 5th August, 1986 and left for Bombay on the next day by Gitanjali Express. From Bombay the prosecution alleges that they went to Pune. Prosecution has also tendered evidence to show that on 9th August, 1986, accused Nos. 1 and 5 made inquiries concerning the whereabouts of a retired military officer in the neighbourhood of General Vaidya. After accomplishing the task accused No. 1 returned to Bombay by 7.30 p.m. and stayed in Hotel Neelkanth, Khar, in the accused name of Pradeep Kumar. On 6th September, 1986, accused Nos. 1 and 2 are stated to have stayed in Hotel Dalmond, Bandra, Bombay, in the assumed names of Ravi Gupta and Sandeep Kumar before their arrest at Pune on 7th September, 1986 by Inspector Pathan. This, in brief, are the broad outlines of the alleged conspiracy perpetrated by the accused to kill General Vaidya. To prove these circumstances a large number of documents and ocular testimony of several witnesses came to be tendered by the prosecution before the Designated Court10. The investigation revealed that on the date of the incident the motor cycle was driven by accused No. 5 Harjinder Singh alias Jinda with accused No. 1 Sukhdev Singh alias Sukha in the pillion seat. The shots were fired by accused No. 1 from the pillion seat at close range after accused No. 5 had brought the motor cycle in line with the front window of the drivers seat of the Maruti Car. The window pane was lowered and General Vaidya was at the steering wheel with his right elbow resting on the window and the hand holding the top of the car. As stated earlier, three shots were fired in quick succession and before Bhanumati and the securityman could realise what had happened the motor cyclists made good their escape. Had it not been for the accident which took place on 7th September, 1986 in which the said motor cycle was involved the police would have been groping in the dark to nab the perpetrators of the crime. Accused Nos. 2, 3 and 4 were put up for trial as co-conspirators. The other co-conspirators could not be placed for trial as they could not be traced since they were absconding. All the five accused denied the charge and claimed to be tried. However, after the charge was framed accused No. 1 Sukhvinder Singh alias Sukha expressed his desire on 19th September, 1988 to make a statement before the Court admitting to have killed General Vaidya. He made the statement in open Court and the learned Presiding Judge of the Designated Court, Pune gave him eight days time to reflect and make a detailed written statement thereafter, if he so desired. On 26th September, 1988 when the accused were once again arraigned before the Designated Court accused No. 1 submitted a written statement, Exh. 60-A, admitting to have fired four bullets at General Vaidya and to have killed him. He also stated in that statement that he had accidentally injured Bhanumati Vaidya although he did not intend to do so. According to him since she was sitting close to General Vaidya one of the bullets strayed and caused injury to her. So far as accused No. 5 Harjinder Singh alias Jinda is concerned, he, in his statement recorded under section 313 of the Criminal Procedure Code, 1973, admitted that he was the person driving the black (not red) Ind-Suzuki motor cycle with accused No. 1 in the pillion seat. It was he who brought his motor cycle in line with the Maruti Car driven by General Vaidya to facilitate accused No. 1 Sukha to shoot the General. It was only thereafter that accused No. 1 fired the bullets which caused the death of General Vaidya11. The learned Presiding Judge of the Designated Court, Pune, framed the points for determination and came to the conclusion that the prosecution had failed to prove beyond reasonable doubt that the accused before him and the absconding accused had entered into a criminal conspiracy to commit the murder of General Vaidya. He, however, came to the conclusion that accused No. 5 driving the motor cycle with accused No. 1 on the pillion seat and it was the latter who fired the shots from close range killing General Vaidya and injuring his wife who was seated next to him. He came to the conclusion that the crime in question was committed in furtherance of the common intention of accused No. 1 and accused No. 5 to cause the murder of General Vaidya. He also came to the conclusion that the said two accused persons were guilty to attempt to commit the murder of Bhanumati in furtherance of their common intention. After a detailed and elaborate judgment running into over 300 typed pages, the learned Judge of the Designated Court, Pune, convicted accused No. 1 under sections 302 and 307, IPC for the murder of General Vaidya and for attempting to take the life of his wife Bhanumati. He convicted accused No. 5 under section 302 and section 307, both read with Section 34, IPC. He sentenced both accused No. 1 and accused No. 5 to death subject to confirmation of sentence by this Court. For the offence under section 307 he sentenced both accused No. 1 and accused No. 5 to rigorous imprisonment for 10 years. Both the substantive sentences were ordered to run concurrently. He acquitted both accused No. 1 and accused No. 5 of all the other charges levelled against them. So far as accused Nos. 2, 3 and 4 are concerned he acquitted them of all the charges levelled against them and directed that they be set at liberty at once.

Reasoning: 12. The facts of which we have given a brief resume make it crystal clear that broadly speaking the prosecution case has two elements, the first relating to the charge of criminal conspiracy and the various criminal acts done in furtherance thereof and the second relating to the actual murder of General Vaidya. The prosecution has also invoked sections 3 and 4 of TADA.is indeed true that while discussing this part of the prosecution evidence the learned trial Judge has committed certain factual errors and has wrongly read the evidence as if PW 120 had opined that the said entries were made by accused No. 1 Sukha. That is probably on account of similarity of names; he seems to have substituted Sukha for Sukhi. We have, however, corrected this error while appreciating the prosecution evidence. But it must be remembered that because Sukhi had fled from the country he could not be produced for identification by the hotel staff. No one has, therefore, identified him as Rakesh Sharma or Ravinder Sharma. The question of identity, therefore, rests solely on the evidence of the handwriting expert PW 120.14. Then we come to the evidence of PW 20 B. D. Sanghvi and PW 22 G. H. Bhagchandani who figured in the transaction concerning the letting out of the G-21, Salunke Vihar flat at Pune, to one Ravinder Sharma. According to the prosecution this Ravinder Sharma had met PW 20 and it was PW 22 who had shown the flat to him. Both these witnesses had, therefore, an occasion to see Ravinder Sharma from close quarters. It was in their presence that the said Ravinder Sharma had signed the agreement to lease on 27th January, 1986. PW 104 V. R. Hallur, the Power of Attorney of Major Madan and PW 105 R. J. Kulkarni who had contacted PW 20 were also concerned with the said deal. The evidence of PW 65 D. B. Bhagve reveals that one Ravinder Sharma had purchased a bank draft of Rs. 15, 000 from the Bank of Baroda, Pune, on 25th January, 1986 in the name of Neelam Madan. The lease documents are at Exhs. 598 and 599. From the evidence of the aforestated witnesses it is established that a person who gave his name as Ravinder Sharma had contacted them for hiring the flat and the deal was finalised, payments were made and documents executed between the 24th and 27th January, 1986 at Pune. Thequestion is who was this Ravinder Sharma ?Once again there is no direct evidence regarding his identity but the prosecution places reliance on the opinion evidence of the handwriting expert PW 120 who has deposed that all these documents are in the handwriting of the absconding accused Sukhi.15. From the above evidence what the prosecution can at best be said to have established is that the person who signed the register of Dreamland Hotel as Rakesh Sharma and the register of Gulmohar Hotel as Ravinder Sharma and the person who signed the lease documents pertaining to G-21, Salunke Vihar flat as Ravinder Sharma was one and the same person because according to the evidence of PW 120 the handwritings tally but the identity of that person has got to be established by comparing the said handwriting with the undisputed handwriting of the suspect. The prosecution seeks to attribute the authorship of the aforesaid documents to the absconding accused Sukhi but since the specimen or admitted handwriting of Sukhi could not be secured, as he had fled from this country to U.S.A. even before the conspiracy came to light, the mere opinion evidence of PW 120, even if accepted at its face value, is not sufficient to establish the identity of the author of those documents. We will have to see if this missing link is supplied by other evidence on record. We may also hasten to add that at this stage we are not examining what value can he attached to the evidence of PW 120. The find of the original bill of Hotel Gulmohar, Exh. 92A, from the G-21, Salunke Vihar flat after the arrest of accused Nos. 1 and 2 does not improve the matter for that by itself cannot prove that the absconding accused Sukhi was the author of the documents relied on. None of these witnesses, not even PW 62 Kantilal Shah, has identified him even from his photograph. So also the fact that the said person, whoever he was, had given a false and bogus Bombay address of 307, Om Apartments, Borivali or that the handwriting of some person who had stayed in yet another assumed name in different hotels of Pune, Ahmedabad and Bhavnagar is of no help to establish the identity. Even though the entries Exhs. 416 and 417 have been relied upon the two telephone operators of Dreamland Hotel were not examined. That being so the prosecution evidence falls far short for establishing its case that all these entries were made by the absconding accused Sukhi16. Then we come to the evidence in regard to the activities at the Antop Hill flat, Bombay, belonging to PW 49 Sadanand Gangnaik. According to him he had let the flat to Makhni Bai but since she has not been examined the further link is not established. As pointed out earlier, according to the prosecution, that flat too was hired by the absconding accused Sukhi sometime in October-November 1985 and the same was raided on 3rd May, 1986. Evidence was tendered by the prosecution with the avowed purpose of showing that a group of terrorists were in occupation of the said flat and when the same was raided certain incriminating evidence was found and attached therefrom. One such important piece is stated to be a novel in english entitled Tripple on the cover page whereof someone had scribbled in pencil the number of General Vaidyas Car DIB-1437. On the basis of the documents referred to in the preceding paragraph, the handwriting expert PW 120 says that the scribe of this number is the very person who happens to be the author of the aforesaid documents. But this piece of evidence suffers from the very same handicap from which the other evidence suffers in regard to the identity of the author of this document also. Besides, PW 48 H. S. Bhullar has contradicted himself on the authorship of the writing on the cover page of the novel Tripple. In his examination-in-chief he said it was in the handwriting of Sukha but on this point he was cross-examined by the prosecution to extract a statement that it was written by Sukhi. The idea was to establish contact between Sukhi and Sukha so that the former can be connected with the crime with the aid of section 120B, I.P.C. From the fact that clothes of different sizes were recovered from the said flat it was argued that several persons were in occupation of the flat. The find of three live and one empty cartridges was a circumstance projected by counsel to support his say that the flat was used for illegal purposes17. From the above facts it is not possible to infer that Sukhi and Sukha were in occupation of the flat. This gap is sought to be filled through PW 48 H. S. Bhullar who claims to be a friend of the inmates of the flat. This witness deposes to have taken three prostitutes to the flat to satisfy the sexual urges of Sukhi, Sukha and another who were living therein. Now this witness is said to have identified Sukha in Court. Exh. 318 dated 8th December, 1988 is an application given by accused No. 5 Jinda alleging that when he and Sukha were being taken to Court they were shown to the prosecution witnesses. Before we examine this allegation it is necessary to bear in mind that PW 48 was apprehended by the police on 10th May, 1986 and was booked as a co-accused but was later released and used as a witness. Great care must be exercised before acting on such a belated identification in Court by a witness who cannot be said to be an independent and unbiased person. Corroboration is sought to be provided through the maid servant PW 49 Lalita who was working in the flat. She too had identified the accused in Court only. She was candid enough to accept the fact that the accused Sukha and Jinda were shown to her and PW 48 when they were being taken to Court. This admission nullifies the identification of the two accused by these two witnesses in Court. No weight can be attached to such identification more so when no satisfactory explanation is forthcoming for the investigation officers failure to hold a test identification parade. So also PW 50 Hira Sinha, one of the prostitutes, also identifies him in Court but she too was not called to any test identification parade to identify the inmates of the flat. She too admits that Sukha was shown to her when he was in the lock-up. The other prostitute Jaya who is said to have had sex with Sukha was not called to the witness stand though she attended Court. When PW 50 could not identify the person with whom she had sex what reliance can be placed on her identification of Sukhi in Court after a lapse of almost two years ? Besides, it is an admitted fact that there was considerable change in the appearance of the accused, earlier they were clean shaven and later they were attired like Sikhs making identification all the more difficult. No neighbour, not even the laundryman, was examined to establish their identity. In this state of the evidence if the learned trial Judge was reluctant to act on such weak evidence, no exception can be taken in regard to his approach.have no reason to so believe. Even if there is any doubt the benefit thereof would go to the defence. PW 155 M. V. Mulley who arranged the test identification parade for PW 46 supports him. But the prosecution does not explain why Inspector Ratan Singh and Sub-Inspector Govind Singh and the laundry man were not examined. Sub-Inspector Govind Singh would have explained why he could not identify accused No. 1 at the test identification parade if he had been called to the witness stand. To us it seems PW 46 was put up to supply the lacuna regarding the involvement and identification of accused No. 1 in particular. The learned trial Judge was right in pointing out that several independent witnesses had not been examined and the prosecution staked its claim on an artificial and unnatural story found unacceptable put forth in the testimony of PW 49 Lalita. Even the identification of accused No. 1 Sukha by PW 46 Jagdish does not carry conviction and is of no avail to the prosecution.evidence of PW 12 Trimbak Yeravedkar shows that it was registered in the R.T.O. in the name of S. B. Shah and was then transferred in the name of Sanjeev Gupta. PW 76, a CBI officer had attached the free service coupon Exh. 187 and the requisition slip Exh. 259. Neither bears any signature of the police officer or panch witness in token of being attached. The papers concerning a motor cycle bearing the name of Sanjeev Gupta are stated to have been recovered on 7th September, 1986 from Sukha and Nimma after their arrest following an accident. Since, according to the prosecution, the said motor cycle was used for murdering General Vaidya and was later recovered from the accident site on 7th September, 1986, it was argued that there was a conspiracy preceding the said murder. The owners manual, Article 10, was found from G-21, Salunke Vihar, Pune, but that does not bear any name or even the registration number of the vehicle. The find of such a document, assuming it was really there and was not planted as submitted by the defence counsel, cannot advance the prosecution case. Another link which the prosecution tried to establish was that this motor cycle was seen parked in the garage allotted to the occupant of G-21, Salunke Vihar flat. This fact is proved through PW 24 Vidyadhar Sabnis. PW 25 Lt. Col. Basanti Lal, occupant of G-23 flat, however, states that since the garage allotted to him was being used for preparing his furniture in the month of May 1986, he was using the garage allotted to G-19 or G-21 flat holders for parking his car. All that his evidence shows that in the month of May 1986 one person had come inquiring about the occupants of G-21 flat and as the flat was locked he had left a message which this witness says he had slipped through the gap in the door of that flat. This is neither here nor there. Then he states that he had seen a red Ind-Suzuki motor cycle parked near the garage of G-21 flat on the 9th or 10th of August, 1986. PW 26 Prakash Sabale, a neighbour residing in Anand Apartments, was called to depose that sometime in June 1986 he had seen a red Ind-Suzuki parked in the garage of G-21 flat. The evidence of this witness conflicts with that of Pw 25 who has stated in no uncertain terms that he was parking his car in the said garage. Was there any particular reason for these witnesses to take note of the red coloured Ind-Suzuki motor cycle ? No reason has been assigned by the witnesses or the investigating officer. Such red Ind-Suzuki motor cycles were not an uncommon sight in the city of Pune, at least none says so. The evidence tendered by the prosecution in this behalf betrays a laboured attempt to connect the inmates of G-21 flat with the purchase of a red Ind-Suzuki motor cycle since it was subsequently involved in an accident on 7th September, 1986 and accused Sukha and Nimma were found using the same. No attempt was made to establish the identity of Sanjeev Gupta even through photographs22. P.W. 27 Hanuman Kunjir, a newspaper vendor, was examined to prove that he supplied the Indian Express newspaper to the occupants of G-21 flat. He discontinued supplying the newspaper when he found that the earlier issues which he had left in the doorgap had not been collected by anyone had and there was no gap through which he could push-in the newspaper. Once he had found the door open and recovered his dues under receipt Exh. 218. No attempt has been made to establish the identity of the person who asked him to supply the newspaper or the person who paid the amount of Rs. 40/- for which he gave the receipt Exh. 218. Hence his evidence is of no use to the prosecution.23. The prosecution alleges that Sukhi left India on 14th July, 1986. The absconding accused Bittu and accused No. 1 Sukha had also secured false passports in fake names. Sukha is said to have taken out a passport in the name of Charan Singh. No expert opinion was tendered though the handwriting expert was examined to show that the application for passport was tendered by Sukha in the assumed name of Charan Singh. The learned trial Judge also points out that the photograph seems to have been tampered with an ex facie raises a grave suspicion regarding the circumstances in which and the point of time when it came to be affixed. P.W. 55 S. S. Kehlon has signed the index card of Charan Singhs application. P.W. 54 Raj Rani Malhotra deposes that nothing adverse was reported by the CID officers in respect of Charan Singh. The passport was, therefore, issued to Charan Singh. From the above evidence it is difficult to ascertain who tampered with the photograph. Even P.W. 70 Rajkumar Mittal who dealt with the index card did not find anything suspicious at that time. P.W. 77 Kulbhusan Sikka had delivered the passport to Shashi Bhushan who was authorised by Charan Singh to receive the same. From the above evidence and particularly lack of expert evidence it is difficult to conclude that accused No. 1 Sukha had committed forgery to secure a passport to leave India. The prosecution has tried to show that Sukhi obtained a passport in the name of Sunil Kumar. Bittu obtained a passport in the name of Harjit Sidhu and Sukha tried to obtain a passport in the name of Charan Singh. It is true that Sukhi left India on 14th July, 1986, may be on a forged passport. So also we may assume that Bittu obtained a false passport and so did Sukha. This by itself will not establish a firm link between the three as co-conspirators. As stated earlier none in the passport office suspected anything shady in regard to Charan Singhs application for grant of passport. It seems that only after the passport was issued some tampering was attempted. The manner in which the photograph is pinned raised suspicion. Who did it is the question ? There is no evidence in this behalf. There is nothing on re record, except suspicion, that accused No. 1 was privy to it. In the absence of reliable evidence it is unwise to act on mere suspicion. We, therefore, cannot find fault with the approach of the learned trial Judge so far as this part of the prosecution case is concerned.. One further fact on which the prosecution places reliance in support of its case of criminal conspiracy is that accused Nos. 1, 2 and 5 travelled by Chhattisgarh Express from Ambala to Doorg between 3rd August, 1986 and 5th August, 1986 and from Doorg to Bombay by Gitanjali Express in assumed names. Apart from the oral evidence of P.Ws. 126 to 135 and 151, the prosecution has placed strong reliance on the reservation forms Exhs. 700 and 701 purporting to be in the handwriting of accused No. 1 Sukha. There is no direct evidence as admittedly they had travelled in assumed names and none has identified them. Thus the only evidence is the opinion evidence of the handwriting expert P.W. 120 to the effect that the reservation forms are in the handwriting of accused No. 1 Sukha. While in Bombay, the accused No. 1 is stated to have given his clothes to Lily White Dry-clearners on 7th August, 1986 and received them from P.W. 89 Deepak Nanawani on the next day. P.W. 30 Arjun Punjabi has proved the two tags of the said laundry found from G-21, Salunke Vihar flat when the same was searched. But the said evidence cannot be of much use unless the identity of the person who delivered and received back the clothes is established. Here also the prosecution relies on the evidence of the handwriting expert to show that accused No. 1 had written his name (assumed name) on the bill prepared at the time the clothes were delivered for dry-cleaning25. From the facts discussed above it becomes clear that the direct evidence, if at all, regarding the identity of the persons who moved about in different assumed names is either wholly wanting or is of such a weak nature that it would be hazardous to place reliance thereon without proper corroboration. As pointed out earlier the direct evidence regarding identity of the culprits comprises of (i) identification for the first time after a lapse of considerable time in Court or, (ii) identification at a test identification parade. In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. In the present case it was all the more difficult as indisputably the accused persons had since changed their appearance. Test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time and that too of persons who had changed their appearance. We, therefore, think that the learned trial Judge was perfectly justified in looking for corroboration. In Kanan v. state of Kerala, 1979 SCC(Cri) 621 : 1979 (85) CrLJ 919) this court speaking through Murtaza Fazal Ali. J. observed.t is well settled that where a witness identifies an accused who is not known to him in the court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under S. 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time inWe are in respectful agreement with the aforequoted observations26. The prosecution also led evidence to show that the accused persons were put up for test identification by the witnesses who claim to have seen them at different places before the actual incident of murder took place. We have adverted to the prosecution evidence in the behalf earlier and have pointed out how weak and thoroughly unreliable the said evidence is. It has been shown that some of the witnesses who claim to have identified the accused, one or more, have conceded that they had an occasion to see the accused in the Borivali lock-up earlier in point of time. This admission on the part of the witnesses has rendered the evidence in this behalf of little or no value and such evidence was rightly brushed aside by the trial Court. We too, having critically examined the evidence in this behalf, find it difficult to accept the same. Therefore, the direct evidence regarding the identity of the accused is of no help to the prosecutionhandwriting of accused No. 5 Jinda could not be obtained and, therefore, the question of comparing his specimen writing with the questioned writing did not arise.the present case since the absconding accused are not before us we are mainly concerned with the experts opinion implicating accused No. 1 Sukha. The speciman writing of this accused have been proved through the evidence P.W. 5 Shaikh Zahir and P.W. 68 Anand Pawar. The evidence shows that P.W. 168 S. Prasad, a police officer, had called the witness to a room where accused No. 2 Nirmal Singh was present and he was required to write down what the said police officer dictated to him. The specimen writing of Nirmal Singh have been proved through the evidence of the said P.W. 5 and P.W. 41 Ramkripal Trivedi. Thereafter they went to another room where accused No. 1 was present. At the instance of P.W. 160 M. P. Singh he was asked to sign as many as fifteen papers. The learned trial judge has not doubted this part of the prosecution case and we may proceed on that basis. To prove the natural handwriting of accused No. 1, the prosecution examined P.W. 84 S. K. Prachendia, a lecturer of Gyan Jyoti P.G. College. This witness claims that accused No. 1 was his student and he had submitted an application in the prescribed form for admission to the P.G. Course as a private candidate. In support reliance is placed on the photograph article 31 showing the witness in company of accused No. 1. Two other registers (articles 39 and 40) have been relied upon to prove that certain replies are in the hand of accused No. 1. But unfortunately for the prosecution the witness could not even identify accused No. 1 in the dock nor did he state that the form and the entries in the registers were made by accused No. 1 in his presence. In his cross-examination the witness admitted that he would not be able to identify the handwriting of other students who studied under him. More so in the case of accused No. 1 who was only a private student. In the circumstances we agree with the learned trial Judge that the evidence on record in regard to the natural handwriting of accused No. 1 is not satisfactory and does not inspire confidence. If we rule out this part of the material used by the handwriting expert for comparison we are merely left with the specimen writing/signatures of accused No. 1 taken while in custody. Here also the evidence of P.W. 120 itself shows that the handwriting of the railway reservation form Exh. 700 does not tally with the specimen writing/signatures of accused No. 1. It only highlights the fact that it would be dangerous to identify the person who travelled on the strength of the reservation form Exh. 700 by comparing the writing thereon with the specimen writing of accused No. 1. The evidence of P.W. 30 Arjun Punjabi and P.W. 89 Deepak Nanwani and the find of laundry tag No. 8833 of Lily White Drycleaners from G-21, Salunke Vihar flat on the September, 1986 was used to establish the fact that accused No. 1 was one of the inmates of the said flat and was in Pune a couple of days before the murder of General Vaidya. This connection is sought to be established on the strength of the opinion evidence of P.W. 120 that the handwriting and signature of the laundry bill Exh. 547 tallied with the specimen writings/signatures of accused No. 1. But the laundry tags do not bear the name of the laundry or the year of issue. It was, however, urged that the evidence of P.W. 89 clearly proved that the number on the tags tallied with the number on the Bill and the opinion evidence of P.W. 120 clearly established the fact that since the writing and signature on the bill tallied with the specimen writingsignature of accused No. 1, it was reasonable to infer that accused No. 1 resided in the G-21, Salunke Vihar flat. But what is indeed surprising is that P.W. 89 was neither called to the test identification parade nor asked to identify the person who had delivered the clothes for drycleaning from amongst the accused seated in the dock.29. It is well settled that evidence regarding the identity of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the handwriting of such person, or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis, and (iii) by the Court comparing the disputed document with the admitted one. In the present case the prosecution has resorted to the second mode by relaying on the opinion evidence of the handwriting expert P.W. 120. But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility of the handwriting expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties.emerges from the case law referred to above is that a handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger-prints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case on its own merits what weight it should attach to the opinion of the expert31. The trial court examined the evidence of the handwriting expert PW 120 in great detail and came to the conclusion that it was hazardous to rely on his evidence as he had betrayed bias against the accused and in favour of the prosecution as he also belongs to the Police Department (see paragraph 159 of the judgment).regards accused No. 2 Nimma, the learned trial Judge points out that the specimen signature N. Singh does not correspond with the questioned documents. The learned trial judge, therefore, did not consider it wise to place reliance on the opinion of PW 120 particularly because he did not consider his opinion to be independent but found that he had betrayed a tilt in favour of the investigating machinery. Since trial court did not consider the opinion of PW 120 to be dependable he did not deem it necessary to look for corroboration. For the same reason he did not consider it necessary to scrutinise the evidence of the expert in regard the two absconding accused Sukhi and Bittu. No such opinion evidence is relied upon in respect of the other accused. We may at once state that the quality of evidence in regard to proof of identity of Sukhi and Bittu through their so called handwriting is weaker than that of accused No. 1. We have carefully examined the opinion evidence of PW 120 and we agree with the learned trial Judge that the quality of his evidence is not so high as to commend acceptance without corroboration. Having given our anxious consideration to the experts evidence, through which we were taken by the learned counsel for the prosecution, we do not think that the view taken by the learned trial judge is legally unsustainable or perverse. Even otherwise having regard to the facts and circumstances of the case and the nature evidence tendered and the quality of evidence of PW 120 the prosecution has not succeeded in establishing beyond reasonable doubt the so-called conspiracy.There is no doubt that the said provision empowers the court to see for itself whether on a comparison of the two sets of writing/signature, it can safely be concluded with the assistace of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. For this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the accused Nos. 1 and 2. Although the section specifically empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings.There is no doubt that the said provision empowers the court to see for itself whether on a comparison of the two sets of writing/signature, it can safely be concluded with the assistace of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. For this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the accused Nos. 1 and 2. Although the section specifically empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings33. From the above discussion of the evidence it is clear that the prosecutions effort to provide the missing links in the chain by seeking to establish the identity of the participants to the alleged conspiracy through the handwriting expert PW 120 has miserably failed. We, therefore, agree with the conclusion of the learned trial Judge in this behalf34. That brings us to the incident of murder of General Vaidya on the morning of 10th August, 1986 at about 11.30 a.m. We have set out the facts in regard to the said incident some detail in the earlier part of this judgment and will recapitulate only those facts which are necessary to be noticed for the purpose of appreciating evidence leading to the murder. The fact that General Vaidya died a homicidal death is established beyond any manner of doubt by the evidence of PW 157 Dr. L. K. Bade who had undertaken the post-mortem examination and had opined that death was due to shock suffered following gun shot injuries.Counsel for the defence had also admitted this fact as is evidence by Exh. 155.As this fact was not challenged before the trial Court, as indeed it could not be, nor was it contested before us, we need not detain ourselves on the same and would proceed to examine the evidence with a view to fixing the responsibility for the said crime.36. The evidence of the securityman PW 16 Ramchandra Kshirsagar is that when the car was proceeding towards the intersection from where it had to turn right to go to the bungalow of General Vaidya, he saw autorickshaw coming from the opposite side and signalled it by stretching out his hand to keep to the extreme left. Then he saw a cyclist also coming from the opposite side and signalled him also. Just then the car which had slowed down considerably began to negotiate a turn when a red Ind-Suzuki motor cycle drove along the car on the side of General Vaidya who was at the steering wheel. The pillion rider fired three shots from his weapon at the head of General Vaidya and then sped away. This witness wants us to believe that as he was busy signalling the rickshaw driver he had not seen the motor cycle approaching the car before the first shot was fired. As soon as the car came to a halt, he jumped out of the car with his service revolver but as PW 106 Bhanumati Vaidya was shouting for a conveyance he went about searching for one and found a matador van in which the injured General Vaidya was rushed to the hospital. It was after reaching the hospital that he contacted the L.I.B. Inspector Garad to whom he narrated the incident and reiterated the same to the Commissioner of Police. His detailed complaint Exh. 179 was then recorded by PW 119 Inspector Mohite in which he described the colour of the motor cycle as black and not red. Since he was sitting behind PW 106 Bhanumati, he could have seen the assailant when his attention was drawn in that direction on hearing the first shot fired from close range. It is difficult to believe that he had no opportunity to see the motor cyclists. It must be remembered that four shots were fired, albeit in quick succession, but there was a slight pause after the first shot. It is difficult to agree with the suggestion that he had no opportunity to see the assailant and his companion. In fact he states that he saw them from a distance of three or four feet only. As pointed out earlier accused Nos. 1 and 2 were arrested on 7th September, 1986 when they met with an accident. Thereafter on 22nd September, 1986 this witness was called at about 12 noon to the Yervada Jail. Soon thereafter a person who identified himself as a magistrate came and gave them certain instructions regarding the identification parade about to be held. He was then called to a room in which 10 to 12 persons had lined up and he was asked if the person who had fired at General Vaidya was amongst them. He identified one person from the queue as the assailant. He identified accused No. 1 as that person in Court also. The Panchnama drawn up in regard to the test identification parade is at Exh. 349 duly proved by PW 51 B. S. karkande, Special Judicial Magistrate. Except for a couple of minor contradictions there is nothing brought out in his cross-examination to doubt his testimony regarding identification of accused No. 1 as the person who fired the shots at General Vaidya. The presence of this witness at the time of occurrence cannot and indeed was not doubted. So also it cannot be denied that he had an opportunity to identify the assailant. We, therefore, do not see any serious infirmity in his evidence which would cast a doubt as regards his identification of accused No. 1.37. The next important witness is PW 106 Bhanumati Vaidya. She had accompanied her husband and was sitting next to him in the front seat of the car when the incident took place. She states that when the car took a turn at the intersection she heard three sounds like the misfire of a motor cycle but soon thereafter her husbands left hand slipped from the steering and his neck slumped on her shoulder. She states that the car drifted towards a cyclist who jumped off leaving the cycle which was run over by the front wheels of the motor car. She saw the motor cycle with two riders sped away and could only see the back of the pillion rider. She too had received bullet injuries on her right shoulder and was admitted in the intensive care unit of the hospital. She was operated upon for removal of the bullets from her body. Next day a magistrate had visited the hospital and had recorded her statement. She has deposed that the pillion rider whom she had seen from behind had been noticed by her two days earlier on 8 th August, 1986 at about 9.00 or 9.30 a.m. with a red motor cycle opposite Gadge Maharaj School at the corner of bungalow No. 45. Two persons were standing there one of whom was the pillion rider whom she saw from behind after the shoot out. She, however, expressed her inability to identify him from amongst the accused persons in Court. Under cross-examination she stated that she could not say if it was a motor cycle or a moped. Thus her evidence proves the incident beyond any manner of doubt but her evidence is of little use on the question of identity of the assailant and his companion38. PW 14 Digambar Shridhar Gaikwad, the cyclist, deposes that at the time of the incident he was proceeding on his cycle towards the railway station when he heard three sounds and looked towards the Maruti car. He saw a red motor cycle by the side of the driver of the car. It sped away with two persons riding it. The pillion rider who had a bag was seen putting something therein. Since the driver of the car was wounded on his head, he lost control of the vehicle and the same came towards him whereupon he jumped off and the cycle was under the wheels of the car. In cross-examination he stated that he had not seen any other vehicle on the road, thereby ruling out the presence of any autorickshaw in regard to which PW 16 has spoken. His evidence is also not useful from the point of identity of the assailant.is pertinent to note that PWs 61 and 103 had identified accused No. 5 through his photographs articles 23 and 75. They identified him in Court but accused No. 5 stated in answer to question No. 135 that they did so at the behest of the police.40. We now come to the next group of witnesses, the driver and the two passengers of the autorickshaw which the securityman PW 16 claims was seen coming from the opposite direction. PW 16 says that just as the car was turning towards the right, he saw an autorickshaw coming from the opposite direction and signalled it to move to the extreme left. True it is that PW 14, the cyclist, did not notice it but in our view that cannot cast any doubt on the credibility of PW 16. There was no need for the cyclist to take note of the autorickshaw. His attention was rivetted at the car and the motor cycle after he heard the shots and there was no need for him to notice the autorickshaw.42. The rickshaw driver PW 115 has deposed that on 10th August, 1986 at about 11.00 a.m. while he was waiting in front of Agakhan Palace he was engaged by PW 111 and PW 114 who instructed him that they desired to go to the Camp area and from there to the Deccan area. When his vehicle approached the Circuit House intersection and emerged on the Abhimanyu road he saw a white Maruti car and one Ind-Suzuki motor cycle taking a turn to the right of the intersection. The motor cyclists drove on the side of the drivers seat and the pillion rider fired three shots at the driver of the car. Immediately thereafter the motor cyclists sped away. He then speaks about the manner in which the cyclist jumped off and the car came to a half after running over the cycle. He also states that thereafter the two passengers got down from his rickshaw and went near the car. He also parked his rickshaw at the corner of the intersection and joined the other two passengers. He found that the car driver was injured on the head and was bleeding profusely. A matador van arrived and the injured was lifted and placed in the van and carried to the hospital. He and the two passengers then returned to the rickshaw and proceeded towards Deccan side and from there to the Stree Clinic. Sometime after the incident i.e. on 8th November, 1986, the C.B.I. officers showed him seven or eight photographs and asked him if he could recognise the photograph of the motor cyclists. He recognised the photograph of the driver of the motor cycle but he did not notice any photograph of the pillion rider. The photograph of the driver of the motor cycle is included as article 150 and his signature was obtained on the reverse of it. This photograph is stated to be of accused No. 5 whom the witness later identified in Court also. No test identification parade could be held as accused No. 5 Jinda could not be arrested till 30th August, 1987. The evidence of this witness also lends corroboration to the evidence of PWs 111 and 11443. There is also the evidence of PW 28 Noor Mohamad, also a rickshaw driver in whose rickshaw PW 111 and PW 114 had gone to the Jan Kalyan Blood Bank to register their name in case blood may be required at the time of Anupamas operation. He has also stated that the two passengers were talking about having witnessed a shoot out earlier in the day as is ordinarily seen in movies44. The learned trial Judge discarded this part of the prosecution case for diverse reasons, some of them being (i) the story of the securityman Pw 16 in regard to the location of the autorickshaw is in sharp conflict with his version in the FIR; (ii) the presence of PW 111 and PW 114 at the place of the incident is highly doubtful for the reason that there was no cause for them to take the longer route, more particularly when Anupama was admitted to the clinic of PW 1 and was to be operated on that very day; (iii) the conduct of both the witnesses in maintaining sphinx-like silence for more than two and a half months when the incident had shaken the nation was highly unnatural, more so because admittedly PW 111 had met Inspector Mohite only a few days after the incident, may be in some other connection; (iv) the entry in the diary of PW 111 regarding this incident was ex facie a laboured attempt made with a view to creating corroborative documentary evidence to support his false version; and (v) the identification of the motor cycle driver through a photograph purporting to be of accused No. 5 Jinda is also an attempt to connect the said accused with the crime in question. The learned Additional Solicitor General made a valiant attempt to question the correctness of the grounds on which the learned trial Judge brushed aside this part of the prosecution case. But for the view we are inclined to take we would have given our anxious consideration to the submissions of the learned counsel. The purpose of leading this evidence was essentially to identify the driver of the motor cycle through these witnesses. They did so by picking up one photograph from seven or eight shown to them. Whose photograph is this ? Accused No. 5 disowns it. No test identification parade was held since accused No. 5 Jinda was apprehended at Delhi a year or so later on 30th August, 1987 and was taken to Pune in January 1988. Although the prosecution did not deem it wise to hold a test identification parade because of the passage of time, the witnesses examined later did not hesitate to point a finger at accused No. 5 Jinda during the trial. Therefore, according to the prosecution the photograph was that of accused No. 5 Jinda who was very much in Court. The learned trial Judge, therefore, had the benefit of comparing the photograph with accused No. 5 whose photograph it purported to be.will thus be seen that the learned Judge on a comparison of the photograph with the features of accused No. 5 who was very much before him categorically held that the photograph pointed out by the witnesses was not of accused No. 5. We cannot ignore the photograph from consideration for non-production of the negative (not traced) because that is merely an additional plank on which the trial court has ruled out this part of th prosecution case. For the above reasons the trial court refused to place reliance on the prosecutions attempt to establish the identity of accused No. 5 as the driver of the motor cycle through photographs.47. Accused No. 5 Jinda pleaded not guilty to the charge. He did not make any such statement till the conclusion of the evidence when he sent Exh. 922 through Jail. However, at the conclusion of the prosecution evidence when accused No. 5 was examined under section 313 of the Code, he admitted that he was the driver of the motor cycle and accused No. 1 was his pillion rider. He also admitted that accused No. 1 had fired the fatal shots at General Vaidya while sitting on the pillion seat. In answer to the usual last question accused No. 5 said that on the date of the incident he was driving a black motor cycle with accused No. 1 on the pillion seat and it was the latter who fired at and killed General Vaidya. This being an admission of guilt, the question is whether the Court can act upon it. He has supported this by his written statement Exh. 922. It will thus be seen that both the accused Nos. 1 and 5 made written as well as oral admissions regarding their involvement in the commission of the crime.48. It is manifest from the written statements of both accused Nos. 1 and 5 and from their oral statements recorded under S. 313 of the Code that they firmly believed that since General Vaidya was responsible for conducting operation Blue State which had damaged a sacred religious place like the Akal Takht of the Golden Temple at Amritsar and had also hurt the religious feelings and sentiments of the Sikh community, he was guilty of a serious crime, the punishment for which could only be death, and, therefore, they had merely executed him and in doing so had not committed any crime whatsoever. As stated earlier it is on this notion that the accused continued to plead not guilty while at the same time admitting the fact of having killed General Vaidya. It may be mentioned that when the eye-witness account was put to him, accused No. 1 admitted that he was the pillion rider who had fired four shots at General Vaidya. His answers to the various circumstances pointed out to him in his statement under S. 313 of the Code reveal that he unhesitatingly admitted the entire eye-witness account and also owned responsibility for the crime. Even in his written statement Exh. 60A he admitted. So far as accused No. 5 is concerned he too admitted the correctness of the eye-witness account of the incident leading to the ultimate death of General Vaidya. When he was asked if he had anything else to say, he referred to his statement Exh. 922 and admitted that it was in his own handwriting, its contents were correct and he had signed it. He also admitted that he was driving the motor cycle when his pillion rider fired at General Vaidya and injured him. It is in this background that we must examine the impact of their admissions in their statements under S. 313 of the Code.We do not see any merit in these submissions.the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused No. 5, and hence, the learned trial Judge was not justified in examining the accused under S. 313 of the Code.Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers.s the answers given by the accused in response to his examination under S. 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R. B. Chowdhari 1967 (3) SCR 708 : 1968 (74) CrLJ 95). This Court in the case of Hate Singh v. State of Madhya Bharat, 1953 (59) CrLJ 1933 : 1953 AIR(SC) 468) held that an answer given by an accused under S. 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab 1963 (3) SCR 678 : 1964 (1) CrLJ 730) this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge Bench answered the question it would be advantageous to reproduce the relevant observations at pages 684-685 (of SCR) : (at p. 733 of Cri LJ)r S. 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under S. 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation - if any, of the incident which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused mayat the enquiry or the trial. If the accused person in his examination under S. 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in itsn (1) of S. 313 corresponds to sub-section (1) of S. 342 of the old Code except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of the accused is dispensed with his examination under CI. (b) may also be dispensed with. Sub-section (2) of S. 313 reproduces the old sub-section (4) and the present sub-section (3) corresponds to the old sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present sub-section (4) with which we are concerned is a verbatim reproduction of the old sub-section (3). Therefore, the aforestated observations apply with equal force.52. Even on the first principle we see no reason why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under S. 313 of the Code. Under Section 12(4) of the TADA Act a Designated Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session, albeit subject to the other provisions of the Act. The procedure for the trial of Session cases is outlined in Chapter XVIII of the Code. According to the procedure provided in that Chapter after the case is opened as required by S. 226, if, upon consideration of the record of the case and the documents submitted therewith, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for reasons to be recorded. If, however, the Judge does not see reason to discharge the accused he is required to frame in writing a charge against the accused as required by S. 228 of the Code. Where the Judge frames the charge, the charges so framed has to be read over and explained to the accused and the accused is required to be asked whether he leads guilty of the offence charged or claims to be tried. Section 229 next provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this provision shows that if the accused pleads guilty the Judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied the law permits the Judge trying he case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea he must fix a date for the examination of the witnesses i.e. the trial of the case. There is nothing in this Chapter which prevents the accused from pleading guilty at any subsequent stage of the trial. But before the trial Judge accepts and acts on that plea he must administer the same caution unto himself. This plea of guilt may also be put forward by the accused in his statement recorded under S. 313 of the Code. In the present case, besides giving written confessional statements both accused No. 1 and accused No. 5 admitted to have been involved in the commission of murder of General Vaidya. We have already pointed out earlier that both the accused have unmistakably, unequivocally and without any reservation whatsoever admitted the fact that they were responsible for the murder of General Vaidya. It is indeed true that accused No. 1 did not name accused No. 5 as he driver of the motor cycle, perhaps he desired to keep him out, but accused No. 5 has himself admitted that he was driving the motor cycle with accused No. 1 on the pillion seat and to facilitate the crime he had brought the motor cycle in line with the Maruti car so that accused No. 1 may have an opportunity of firing at his victim from close quarters. There is, therefore, no doubt whatsoever that both accused No. 1 and accused No. 5 were acting in concert, they had a common intention to kill General Vaidya and in furtherance of that intention accused No. 1 fired that fatal shots. We are, therefore, satisfied that the learned trial Judge was justified in holding that accused No. 1 was guilty under section 302 and accused No. 5 was guilty under section 302/34, I.P.C.The two decisions of the High Courts to which our attention was drawn do not in fact militate against the view which we are inclined to take in regard to the admission of guilt made by the two accused in their statements recorded under S. 313 of the Code. In the case of Jit Bahadur chetri, 1977 (83) CrLJ 1833) (Gauhati), only one witness was examined and immediately thereafter the statement of the accused was recorded under S. 313 of the Code. The deposition of the sole witness did not reveal that he had seen the accused causing the injury in question. The question that was framed was not consistent with this evidence and hence the High Court found that the trial Court had acted illegally. It was held that such an answer cannot be construed as pleading guilty within the meaning of the provisions of the Code and hence the learned Magistrate had acted contrary to law in convicting and sentencing the accused on the basis of that plea. It will thus be seen that the Court came to the conclusion that the accused could not be stated to have pleaded guilty and hence the conviction was set aside. In the other case of Asokan, 1982 (88) CrLJ 173), the High Court of Kerala pointed out that in a criminal case the burden of establishing the guilt beyond reasonable doubt lies, on the prosecution and that burden is neither taken away, nor discharged, nor shifted merely because the accused sets up a plea of private defence. It was pointed out that if the prosecution has not placed any incriminating evidence such an admission made by the accused will be of no avail unless the admission constitutes an admission of guilt of any offence. In that case also the admission made by the accused read as a whole did not constitute an admission of guilt of the offence charged. On the contrary it was in the nature of a the plea of private defence. In such circumstances, the High Court came to the conclusion that in the absence of a unequivocal, unmistakable and unqualified plea of guilt, the Court could not have convicted the accused on the statement made by him under S. 313 of the Code. This decision also does not, therefore, help the defence.54. The accused were inter alia charged under sections 3(2)(i) or (ii) and 3(3) of TADA Act read with sub-rule (4) of Rule 23 of the rules framed thereunder. Section 3 provides the punishment for terrorist acts. Section 10 lays down that when trying any offence a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence. It is obvious that where an accused is put up for trial for the commission of any offence under the Act or the Rules made thereunder he can also be tried by the same Designated Court for the other offences with which he may, under the Code, be charged at the same trial provided the offence is connected with such other offence. In the instant case, the accused were tried under the aforesaid provisions of TADA Act and the Rules made thereunder along with the offences under sections 120B, 465, 468, 471, 419, 302 and 307, I.P.C. They were also charged for the commission of the aforesaid offences with the aid of S. 34, I.P.C. As pointed out earlier under S. 121(4) the procedure which the Designated Court must follow is the procedure prescribed in the Code for the trial before a Court of Session. Accordingly, the two accused persons were tried by the Designated Court since they were charged for the commission of offences under the TADA Act. The Designated Court, however, came to the conclusion that the charge framed under S. 3 of the TADA Act read with the relevant rules had not been established and, therefore, acquitted the accused persons on that count. It is not necessary for us to examine the correctness of this finding as we also come to the conclusion that capital punishment is warranted. It also acquitted all the accused persons of the other charges framed under the Penal Code save and except accused Nos. 1 and 5, as stated earlier. The accused were also convicted under S. 307 and 307/34 respectively for the injury caused to PW 106 Bhanumati Vaidya. Thus the conviction of accused Nos. 1 and 5 is outside the provisions of TADA Act and, therefore, it was open to the Designated Court to award such sentence as was provided by the Penal Code. Section 17 (3) of the TADA Act makes Sections 366 to 371 and S. 392 of the Code applicable in relation to a case involving an offence triable by a Designated Court. The Designated Court having come to the conclusion that this was a case falling within the description of the rarest of a rare awarded the extreme penalty of death to both accused Nos. 1 and 5 for the murder of General Vaidya. In doing so, the trial Court placed strong reliance on the decision of this Court in Kehar Singh v. State (Delhi Administration), 1988 (3) SCC 609 : 1989 (95) CrLJ 1). The learned trial Judge took the view that since the murder of General Vaidya was also on account of his involvement in the Blue Star Operation his case stood more or less on the same footing and hence fell within the rarest of a rare category. We think that this line of reasoning adopted by the learned trial Judge is unassailable. We may also point out that the accused persons had no remorse or repentance, in fact they felt proud of having killed General Vaidya in execution of their plan and hence we find no extenuating circumstance to make a departure from the ratio of Kehar Singhs case.That decision turned on the facts of that case. In that case the Court refused to entertain the plea on the ground that it was not raised in the courts below and was sought to be raised for the first time in the apex Court. That decision, therefore, does not assist the prosecution.57. But in the instant case we find that both the accused decided to plead guilty. Accused No. 1 had done so at the earlier stage of the trial when he filed the statement Exh. 60A. Accused No. 5 had also made up his mind when he filed the statement Exh. 922 even before his examination under S. 313 of the Code Accused No. 1 had reiterated his determination when he filed the statement Exh. 919. Thus both the accused had mentally decided to own their involvement in the murder of General Vaidya before their statements were recorded under S. 313 of the Code. Not only that their attitude reveals that they had resolved to kill him as they considered him an enemy of the Sikh community since he had desecrated the Akal Takht. They also told the trial court that they were proud of their act and were not afraid of death and were prepared to sacrifice their lives for the article of their faith, namely, the realisation of their dream of a separate State of Khalistan. It is thus apparent that before they made their statement admitting their involvement they had mentally prepared themselves for the extreme penalty and, therefore, if they desired to place any material for a lesser sentence they had ample opportunity to do so. But after the decision of this Court in Kehar Singhs case 1989 (95) CrLJ 1) and having regard to the well planned manner in which they executed their resolve to kill General Vaidya, they were aware that there was every likelihood of the Court imposing the extreme penalty and they would have, if they so desired, placed material in their written statements or would have requested the Court for time when their statements under S. 313 of the Code were recorded, if they desired to pray for a lesser sentence. Their resolve not to do so is reflected in the fact that they have not chosen to file any appeal against their convictions by the Designated Court. We are, therefore, of the view that in the present case the requirements of S. 235(2) of the Code have been satisfied in letter and spirit and no prejudice is shown to have occurred to the accused. We, therefore, reject this contention of the learned counsel for the accused.