Full Judgement
State of Maharashtra Vs. Sukhdeo Singh & Anr [1992] INSC 169 (15 July 1992)
Ahmadi, A.M. (J) Ahmadi, A.M. (J) Ramaswamy, K.
CITATION: 1992 AIR 2100 1992 SCR (3) 480 1992 SCC (3) 700 JT 1992 (4) 73 1992 SCALE (2)9
ACT:
Penal Code, 1860-Sections 302, 307 and 34-Prosecution for murder of General Vaidya-Trial under TADA-Conviction and death sentence by Designated Court-Validity of.
Penal Code, 1860-Sections 120B, 302, 307, 465, 468, 471 and 212 and Sections 3 and 4 of the Terrorist and Disruptive Activities Act, 1985 and Section 10 of the Passport Act- Charges under against the accused-Conviction and death sentence of accused 1 and 5 u/ss. 302, 307, 34, IPC (Indian Penal code, 1860) and acquittal of other accused by Designated Court-Appreciation of evidence by Supreme Court-Findings of Designated Court approved.
Evidence Act, 1872-Section 9-Test Identification parade-After long lapse of time, first time in Court- Evidential value of.
Evidence Act, 1872-Sections 3, 73-Appreciation of evidence-Evidence regarding identity of author of document- Expert opinion-Reliability of-Comparing documents by Court- Effect of-Identification of accused-Evidential value of.
Code of Criminal Procedure, 1973-Section 311-Statements recorded under-Evidential value of-Plea of guilt tantamount to admission of all facts constituting offence-Court's duty.
Terrorist and Disruptive Activities Act, 1985-Sections 3(2)(i) or (ii) and 3(3) read with sections 120B, 465, 468,471, 419, 302, 307, 34, IPC -Charged under-Procedure to be adopted.
Code of Criminal Procedure, 1973-Section 235(2)- Conviction and death sentence pronounced on same day- Legality of.
HEAD NOTE:
The Prosecution case was that on the orders of the then Prime Minister, the then Chief of the Armed Forces, General Vaidya, was assigned the task of flushing out militants who had taken refuge in the 481 Golden Temple. Some militants were killed and a part of the Golden Temple was damaged in the Blue Star Operation.
The militants vowed to avenge the deaths of their colleagues and to punish those who were responsible for the descreation of the Golden Temple. The then Prime Minister was assassinated on 31.10.1984.
General Vaidya after his retirement on 31.1.1986 decided to settle down with his wife in Pune. As their Bungalow was under construction, they shared the bungalow occupied by another Major General in Pune.
On 26.5.1986, when General Vaidya and his wife shifted to their new bungalow, they were provided only the service's of only one armed Head Constable for security duty.
On 10.8.1986, at about 10 a.m., General Vaidya with his wife went for shopping accompanied with the securityman. General Vaidya was driving the Car with his wife sitting in the front seat to his left and the securityman sitting in the near seat just behind her. After shopping, at about 11.30 a.m., while they were returning to their residence via Rajendrasinghji Road, General Vaidya, slowed down to negotiate a turn to the right at the square in front of his residence, at the intersection of Rajendrasinghji and Abhimanyu Roads. 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 the deceased. Before his wife and securityman could realise what had happened, General Vaidya slumped on his wife's shoulder. The motor cyclists drove away and could not be located. As General Vaidya lost control over the car, it surged towards a cyclist. The cycle came under the car, and the car stopped at a short distance in front of a compound wall. The cyclist escaped by jumping off the cycle. The injured General Vaidya was carried to the Command Hospital in a passing by green matador van, which was fetched by the securityman. In the Hospital General Vaidya was delcared dead.
The securityman immediately informed the L.I.B. Office about the incident and at the place of the incident the securityman's format complaint was recorded by a Police Inspector, and the investigation was commenced. A Panchnama of the scene of occurrence was drawn up by the Inspector in the presence of witnesses and the empty cartridges and other 482 articles were recovered therefrom.
On 7.9.1986, two persons riding a red Ind-Suzuki motor cycle collied with a truck. They were thrown off the motor cycle and sustained injuries. A bag containing arms and ammunition was also thrown off. They hurriedly collected the spilled articles. when the people, who had collected there went to assist them, they behaved in an abrasive manner and one of them, who was identified as accused No.1 raising his revolver threatened to shoot, which raised the crowd's suspicion and the matter was reported to Police Inspector of Pimpri Police Station. Police swung into action and caused the arrest of the accused Nos.1 and 2.
They were charge-sheeted under section 307, IPC for that incident. (Later they were convicted and sentenced for that offence.) While they were being taken in a jeep to the Pimpri Police Station, the accused raised slogans of "Khalistan Zindabad" and proudly proclaimed that they were the assailants of the deceased General Vaidya.
In the course of investigation it came to light that apart from accused Nos. 1 and 2, other terrorists namely accused Nos. 3 to 5 and the absconding accused Nos. 6 to 9 were involved in the conspiracy allegedly hatched for assassinating the deceased General immediately after his retirement and on depletion of the security cover.
On 14.8.1987, the accused Nos. 1 and 2 others were charge sheeted under sections 120B, 302, 307, 465, 468, 471 and 212, IPC , and sections 3 and 4 of the Terrorist and Disruptive Activities Act, 1985 and section 10 of the Passport Act.
The Presiding Judge of the Designated Court held that the prosecution 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; that accused No. 5 was driving the motor cycle with accused No.1 on the pillion seat; that accused No.1 fired the shots from close range killing General Vaidya and injuring his wife who was seated next to him; that the crime in question was committed in furtaerance of the common intention of accused No.1 and accused No. 5 to cause the murder of General Vaidya.
The Judge of the Designated Court convicted accused No.1 under sections 302 and 307, IPC for the murder of General Vaidya and for 483 attempting to take the life of his wife. Accused No. 5 was convicted under section 302 and section 307 read with section 34, IPC . Accused Nos. 1 and 5 were sentenced to death subject to confirmation of sentence by this Court.
They were also sentenced to rigorous imprisonment for 10 years for the offence under section 307. The substantive sentence were ordered to run concurrently. Accused 1 and 5 were acquitted of all other charges levelled against them.
Accused Nos. 2,3 and 4 were acquitted of all the charges levelled against them.
Accused 1 and 5 did not file any appeal against their convictions by the Designated Court.
In the Death Reference No.1 of 1989 and in the Criminal Appeal No. 17 of 1990, the State questioned before this Court the correctness of the grounds on which the trial Court acquitted the accused Nos. 2 to 4 of all the charges levelled against them and the acquittal of accused 1 and 5 of the other charges levelled against them besides sections 302, 307/34, IPC.
The State also submitted that the statement of the accused recorded under section 313 of the Code of Criminal Procedure , 1973 was sufficient to prove their involvement in the commission of the crime and such statement also corroborated the prosecution case.
The accused contended that if there was no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which they were charged, there was nothing for the accused to explain and their examination under section 313 of the Code was wholly unnecessary and improper and should be totally discarded and their admissions, if any, wholly ignored; that since the conviction and sentence were pronounced on the same day, the capital sentence awarded to the accused should not be confirmed.
Dismissing the Criminal Appeal and disposing of the Death Reference, this Court, while confirming the conviction order and sentence passed by the Designated Court.
HELD : 1.01 No weight can be attached to such identification more so when no satisfactory explanation is forthcoming for the investigation officer's failure to promptly hold a test identification parade. [501E]
1.02. The direct evidence, if at all, regarding the identity of the persons 484 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. 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 appearances. [506C-E]
1.03 Test identification parade, if held promptly and after taking the necessary precautions to ensure its credibility, would lend the required assurance which the court ordinarily seeks to act on it. In the absence of such 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. [506F] Kanan & Ors. v. State of Kerala, [1979] 3 SCC 319, relied on.
1.04. Before a Court can act on the opinion evidence of a handwriting expert two things must be proved beyond any manner of doubt, namely, (i) the genuineness of the specimen/admitted handwriting of the concerned accused and (ii) the handwriting expert is a competent, reliable and dependable witness whose evidence inspires confidence. [508B]
1.05 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. [509F] 1.06 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 485 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. [509H-510A] 1.07 When one comes across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive.
Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence.
True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. There is no absolute rule of law or even or prudence which has ripened into a rule of law that in no case can the court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion. Before a court can place reliance on the opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his opinion are convincing and satisfactory.
It is for this reason that the courts are wary to act, solely on the evidence of a handwriting expert; that, however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer the court will not act on the expert's evidence. In the End it all depends on the character of the evidence of the expert and the facts and circumstances of each case. [510B-G] 1.08 A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act 486 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 expert. [513A-C] Ram Narain v. State of U.P., [1973] 2 SCC 86; Bhagwan Kaur v. Maharaj Krishan Sharma, [1973] 4 SCC 46 and Murari Lal v. State of M.P., [1980] 1 SCC 704, referred to.
1.09 Although section 73 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. [514F]
1.10 It is not 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. [514G]
1.11 Except for a couple of minor contradictions there is nothing brought out in his cross-examination to doubt PW 16's (Security man) 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. There is no serious infirmity in his evidence which would cast a doubt as regards his identification of accused No.1 [517C]
1.12 PW 14, the cyclist, did not notice an autorickshaw but in court's 487 view that cannot cast any doubt on the credibility of PW 16.
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. [518H]
2.01 Section 313 of the code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words `shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. [526H-527B]
2.02 The stage of examination of the accused under clause (b) of sub-section (1) of section 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under section 313, the judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After the section 313 stage is over he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. The trial judge is not expected before he examines the accused under section 313 of the Code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under section 314 of the Code. [527C-E]
2.03 It is only where the court finds that no incriminating materials has surfaced that the accused may not be examined under section 313 of the Code. If there is material against the accused he must be examined. [527F]
2.04 In the instant case it is not correct to say that no incriminating material has surfaced against the accused, particularly accused No. 5, and hence the trial judge was not justified in examining the accused under section 313 of the Code. [527G] 488
2.05 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. [527H]
2.06 The answers given by the accused in response to his examination under section 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. [528C] State of Maharashtra v. R.S. Chowdhari, [1967] 3 SCR 708; Hate Singh v. State of Madhya Bharat, 1955 Crl. L.J. 1933 and Narain Singh v. State of Punjab, [1963] 3 SCR 678, relied on.
Jit Bahadur Chetri v. State of Arunachal Pradesh, 1977 Crl. L.J. 1833 and Asokan v. State of Kerala, 1982 Crl. L.J. 173, distinguished.
2.07 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 fact i.e. 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 the 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 section 313 of the Code. [530B-D]
2.08 In the instant 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. It is pointed out that both the accused have unmistakably, unequivocally and without any 489 reservation whatsoever admitted the fact that they were responsible for the murder of General Vaidya.[530E]
2.09 Accused No. 1 did not name accused No. 5 as the 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 the fatal shots.[530F-G]
2.09 The 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, IPC.[530H]
3.01 In the instant case, the accused were tried under the section 3(2)(i) or (ii) and 3(3) provisions of TADA Act and the Rules made thereunder along with the offences under sections 120B, 465, 468, 471, 419, 302 and 307, IPC . They were also charged for the commission of the aforesaid offences with the aid of section 34, IPC . Under section 13(4) the procedure which the Designated Court must follow is the procedure prescribed in the Code for the trial before a Court of Session. [531H-532C]
3.02 The 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. This line of reasoning adopted by the Trial Judge is unassailable. The accused persons had no remorse or repentence, in fact they felt proud of having killed General Vaidya in execution of their plan. [532H-533B] Kehar Singh & Ors. v. State (Delhi Administration), [1988] 3 SCC 609, relied on.
4.01 The choice of sentence had to be made after giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc. before the Court, for otherwise the court's decision may be vulnerable. [533D] 490 Allaudin Mian v. State of Bihar, [1989] 3 SCC 5; Milkiat Singh v. State of Punjab, JT (1991) 2 SC 190 (Paragraph 18); Jumman Khan v. State of U.P., [1990] Suppl. 3 SCR 398 and Kehar Singh & Ors., v. State, [1988] 3 SCC 609, referred to.
4.02. 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 section 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 and appeal against their convictions by the Designated Court.
In the present case the requirements of section 235(2) of the Code have been satisfied in letter an spirit and no prejudice is shown to have occurred to the accused. [535C] 4.03 The conviction of accused No.1 under section 302 and 307, IPC and accused No. 5 under sections 302 and 307, IPC , both read with section 34, IPC and the sentence of death awarded to both of them is confirmed. [535E]
CRIMINAL APPELLATE JURISDICTION : Death Reference Case No. 1 of 1989.
WITH Criminal Appeal No. 17 of 1990.
From the Judgment and Order dated 21.10.89 of the Pune Designated Court in Terrorist Sessions Case No. 2 of 1987.
Altaf Ahmed, Additional Solicitor General, V.V.Vaze, S.B. Takawane, S.M.Jadhav, A.S.Bhasme and Ms. A.Subhashini for the Complainant/Appellant.
R.S.Sodhi, Harshad Nimbalka, P.G. Sawarkar and I.S. Goel for the Accused/Respondent.
The Judgment of the Court was delivered by AHMADI, J. General A.S. Vaidya, the then chief of the Armed 491 Forces was, on the orders of the then Prime Minister Smt. Indira Gandhi, assigned the difficult and delicate 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 in Pune in the State of Maharashtra.
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 26th May, 1986 only one armed Head Constable, Ram Chandra 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 Park.
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 492 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 paralled 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 Digamber 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 dead.
The securityman 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 securityman 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 there from.
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 493 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 Sing @ Sukha, raised his revolver and threatened to shoot, which raised the suspicion of the crown prompting one Narayan Bajarang Pawar to report the matter to Inspector A.I. Pathan of Pimpri Police Station. Inspector Pathan swung it to 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 as accused No.2 Nirmal Singh @ 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 the 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 sentenced.
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 seizable 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 of "Khalistan Zindabad" and 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 494 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 @ Sukhi, Daljit Singh @ Bittoo @ Sanjeev Gupta, Jasvinder Kaur, and Baljinder Singh @ Raju were involved in the conspiracy allegedly hatched for assasinating 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 Act.
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 495 fired as the conspirators needed an operational based in Pune to facilitate the killing of General Vaidya.
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 Vaidya's 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 in 402.
The Union Bank robbery took place on that day. The motor cycle was sent for servicing on Ist 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 Vaidya.
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 Chhatisgadh 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 assumed 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 persons and the absconding accused to kill 496 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 Court.
The investigation revealed that on the date of the incident the motor cycle was driven by accused No.5 Harjinder singh @ Jinda with accused No.1 Sukhdev Singh @ 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 driver's 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 @ 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 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 @ 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) Indu-Suzuki motor cycle with accused No.1 in the pillion seat. It was he who brought his 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 497 General Vaidya.
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 was 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 of 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.
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.
Now according to the prosecution as soon as it became known to the militant that General Vaidya planned to settle down at Pune after his retirement from Army service, wheels began to move to kill him as soon 498 as the security cover available to him was reduced. The prosecution tendered evidence, both oral and documentary, to show that the conspiracy was hatched between 23rd January 1986 and 3rd May, 1986. The first step taken in this direction was to hire a flat in Block No. G-21, Salunke Vihar, Pune, to create an operational base to work out and implement the alleged criminal conspiracy. This flat was hired by one Ravindra Sharma whom the prosecution identifies as absconding accused Sukhi. Now according to the prosecution after acquiring this base, Sukhi left the country on 14th July, 1986 and did not participate further in the execution of the alleged conspiracy. Accused No.2 Nirmal Singh became privy to the conspiracy later on. To prove this part of the prosecution case evidence has been tendered to show that two persons Raj Kumar Sharma and Rakesh Sharma came and stayed in Hotel Dreamland, Pune, from 23rd to 26th January, 1986 and contacted various estate agents on telephone, including PW 20 B.D. Sanghvi, partner of M/s. Estate Corporation, Pune, with a view to hiring a flat in Pune. The absconding accused Sukhi, it is contended, had stayed in that hotel under assumed name of Rakesh Sharma. PW 3 Rajender Tulsi Pillai has been examined to show that thereafter the said accused Sukhi and his companion shifted to Hotel Gulmohar on the 26th at about 2.20 p.m. and stayed there till 10.00 a.m. of the 29th.
Therefore, according to the prosecution Rakesh Sharma and Ravinder Sharma were one and the same person and the evidence of the handwriting expert PW 120 M.K. Kanbar establishes that the said person was none other than the absconding accused Sukhi. The entries identified as Q.3 and Q.4 from the register of Dreamland Hotel and Q.5 and Q.6 from the register of Gulmohar Hotel are, in the opinion of PW 120, to be of Sukhi. It 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 is 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.
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 499 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 has 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 Exh. 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 with finalised, payments were made and documents executed between the 24th and 27th January, 1986 at Pune. The question 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.
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 as its face value, is not sufficient to establish the identity of the author if 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 500 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 Exh. 416 and 417 have been relied upon the two telephone operators of Dreamland Hotel were not examined. That being so the prosecution evidence falls for short for establishing its case that all these entries were made by the absconding accused Sukhi.
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 501 used for illegal purposes.
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 unbaised 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 officer's 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 who she had sex what reliance can be placed on her identification of Sukha 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.
Reliance has been placed on the evidence of PW 46 Jagdish Bhave, 502 a policeman, who deposes that he had gone to the flat at 10.00 a.m. to make inquiries, was pulled in and locked up in the lavatory on 3rd May, 1986. He identifies accused No.1 Sukha as the person who had pointed a foreign make revolver at his neck. He also claims to have identified him at the test identification parade as well as in Court. In regard to the identification at the test identification parade, there is some discrepancy as he seems to have initially identified a wrong person. He had also seen him in the lock-up before the identification parade. Lastly, he claims he had managed to secure help by breaking the glasspanes of the rear ventilator of the lavatory. Now PW 49 Lalita deposes that she was in the flat till 11,00 a.m. If this witness was locked up and he had raised an alarm, PW 49 lalita would certainly have learnt about the same but she is totally silent about the same. If the glasspanes were broken a note thereof would have been taken in the panchnama. Atleast PW 158 PSI George would have spoken about the same. Besides the story given by PW 46 cannot be said to be a natural and credible one. The prosecution tried to contend that PW 49 Lalita being an illiterate woman was making a mistake on the time factor. We 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.
From the flat during the raid three live and one empty cartridges were found. One live cartridge was of .32" bore while the other two live cartridges were of .38" bore. The empty cartridge was of .38" bore. These were forwarded along with the revolver which was found from accused No.2 on 7th September, 1986 at Pune, to PW 125 M.D.Asgekar, the ballistic expert. This witness has deposed that the empty cartridge was fired from the revolver found from accused No.2, which weapon, it was said, was used 503 in the Union Bank robbery. It is further his say that the live pistol cartridge .32" bore was similar to the one used in General Vaidya's assassination. True it is, the learned trial judge has overlooked this evidence. We will consider the impact of this evidence at a later stage.
A Brylcream bottle, Article 83, was found in the flat.
PW 150 Vijay Tote lifted the fingerprint on that bottle which was later compared by PW 122 A.R. Angre, Fingerprint- expert, with the fingerprint of accused No. 1 Exh. 607 and was found to tally. PW 107 S.V.Shevde, Director of Fingerprint Bureau proves this fact.
The next circumstance relied upon concerns the purchase of a red Ind-Suzuki motor cycle MFK 7548 on 8th May, 1986 through PW 18 Anantpurkar from PW 23 Suresh Shah, the allottee. This motor cycle was later serviced on 1st July, 1986 by PW 39 Pimpalnekar. The motor cycle was purchased in the name of Sanjeev Gupta, a name allegedly assumed by absconding accused Daljit Singh alias Bittu. The 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 of 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 conspiracy preceding the said murder.
The owner's manual, Article 10, was found from G-21, Salunke Vihar, Pune, but that does not bear any name of 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 504 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, atleast 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 photographs.
PW 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 door-gap had not been collected by anyone 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.
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 name.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 tempered with and ex-facie raises a grave suspicion regarding the circumstances in 505 which and the point of time when it came to be affixed. PW 55 S.S.Kehlon has signed the index card of Charan Singh's application. PW 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 PW 70 Rajkumar Mittal who dealt with the index card did not find anything suspicious at that time. PW 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
