Tag Archives: MURDER

Ranjit Singh Versus Union Territory of Chandigarh [ALL SC 1983 SEPTEMBER]

KEYWORDS:- PAROLE – MURDER DURING IN PAROLE

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AIR 1984 SC 45 : (1984) 1 SCC 31 : (1983) 2 SCALE 539 : (1983) CriLJ SC 1730

(SUPREME COURT OF INDIA)

Ranjit Singh Appellant
Versus
Union Territory of Chandigarh Respondent

(Before : V. D. Tulzapurkar, V. Balakrishna Eradi And D. P. Madon, JJ.)

Criminal Appeal No. 418 of 1982 , Decided on : 30-09-1983.

Penal Code, 1860—Section 303—Unconstitutionality—Effect of—Murder committed by life convict during PAROLE—Murder committed within a year of earlier murder—Due to unconstitutionality of Section 303 conviction treated as under Section 302—In view of cruel conduct sentence of life for subsequent conviction directed to commence after the completion of earlier sentence and not concurrently.

Both the accused were actuated to commit the crime in question with identical motive of vendetta and revenge and both have behaved in a cruel manner in inflicting as many as 32 injuries with knives on the deceased who died immediately as a result of the assault on him. In all the circumstances of the case, we feel that life imprisonment would be the proper sentence that should be imposed upon the appellant. We accordingly reduce the sentence of death imposed upon him and sentence him to suffer rigorous imprisonment for life. However, since the present murder was committed by him within a span of one year of his earlier conviction and that too when he was released on PAROLE we are clearly of the view that the instant sentence of imprisonment for life awarded to him should not run concurrently with his earlier sentence of life imprisonment. We, therefore, direct that in case any remission or commutation in respect of his earlier sentence is granted to him the present sentence should commence thereafter.

Judgement

Tulzapurkar, J—The only point raised by counsel for the appellant in this appeal relates to the question of sentence. The appellant on conviction under S. 303, I.P.C. has been sentenced to death Counsel has contended that in view of this Court’s decision in Mithu v. State of Punjab, (1983) 2 SCC 277. S. 303. I.P.C. has been held to be unconstitutional and the appellant’s case in so far as the sentence is concerned will have to be regarded as any other case falling under S. 302, I.P.C. Secondly, counsel has urged that the instant case does not fall within the category of rarest of the rare cases so as to attract extreme penalty of death. Thirdly, counsel has brought to our notice that Brahmi, a co-accused along with the appellant both of whom were involved in the incident in which 32 injuries came to be inflicted to the deceased Ashok Kumar alias Shoki has been awarded life imprisonment and as regards the circumstances concerning the assault on Ashok Kumar the case of the appellant is not distinguishable from that of Brahmi and, therefore, the appellant deserves to be awarded lesser punishment, namely, imprisonment for life.

2. After hearing counsel on both the sides and after considering the facts and circumstances relating to the offence in question we are inclined to agree with the submission of counsel for the appellant that the appellant should be awarded the lesser punishment. The only manner in which the counsel for the prosecution sought to distinguished the case of the appellant from that of his co-accused. Brahmi was that whereas Brahmi was the first offender the appellant had been convicted earlier under Sec. 302 I.P.C. and secondly the appellant had committed the offence in question when he was out on PAROLE while serving life imprisonment under his first conviction which is reprehensible as during the PAROLE he should have behaved like a law-abiding citizen. In our view these two aspects in the facts and the circumstances of this case are not sufficient to take a different view in the matter of sentence qua the appellant. Both the accused were actuated to commit the crime in question with identical motive of vendetta and revenge and both have behaved in a cruel manner in inflicting as many as 32 injuries with knives on the deceased who died immediately as result of the assault on him. In all the circumstances of the case, we feel that life imprisonment would be the proper sentence that should be imposed upon the appellant. We accordingly reduce the sentence of death imposed upon him and sentence him to suffer rigorous imprisonment for life. However, since the present murder was committed by him within a span of one year of his earlier conviction and that too when he was released on PAROLE we are clearly of the view that the instant sentence of imprisonment for life awarded to him should not run concurrently with his earlier sentence of life imprisonment. We, therefore, direct that in case any remission or commutation in respect of his earlier sentence is granted to him the present sentence should commence thereafter.

3. The appeal is dismissed subject to the commutation of death sentence as indicated above.

Krishan Appellant Versus State of Haryana[ ALL SC 1997 MAY]

KEYWORD”- MURDER WHILE IN PAROLE- MURDER-

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AIR 1997 SC 2598 : (1997) 3 SCR 1156 : (2000) 10 SCC 451 : JT 1997 (5) SC 129 : (1997) 3 SCALE 753 : (1997) CriLJ SC 3180

(SUPREME COURT OF INDIA)

Krishan Appellant
Versus
State of Haryana Respondent

(Before: M. K. Mukherjee And K. Venkataswami, JJ.)

Criminal Appeal No. 91 of 1997, Decided on: 01-05-1997.

Death sentence—Accused while serving sentence of life imprisonment committed another murder while released on PAROLE—Felonious propensity of offender cannot be made sole basis of death sentence—Case not falling into category of rarest of rare cases—Death sentence committed to life imprisonment.

The principal reason which weighed with the Courts below to hold that the extreme penalty of death was called for, was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on PAROLE. Undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposition of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration. Taking an overall view of the attending facts and circumstances of the instant case we do not feel that this is one of the rarest of the rare cases where the appellant should be sentenced to death. We, therefore, commute the sentence of death imposed upon the appellant for his conviction under Section 302, IPC to imprisonment for life.

Penal Code, 1860—Section 302—Sentence—Death sentence—Accused while serving sentence of life imprisonment committed another murder while released on PAROLE—Felonious propensity of offender cannot be made sole basis of death sentence—Case not falling into category of rarest of rare cases—Death sentence committed to life imprisonment.

Counsel for the Parties:

Satyapal Khushal Chand, Advocate, for Appellant

Prem Malhotra, Advocate (NP), for Respondent.

order

1. Consequent upon dismissal of his appeal by the High Court Krishan, the appellant herein, stands convicted under S. 302, IPC and sentenced to death for committing the murder of Ranbir, his brother-in-law, on October 23, 1994 inside District Jail, Sonepat, where the former was undergoing a sentence of imprisonment for life and the latter was an under-trial prisoner.

2. According to the prosecution case on the fateful day at or about 10-45 a.m. when the deceased was getting himself shaved by Ram Phal (P.W. 3), who is a barber by profession and at the material time was serving a sentence, in Barrack No. 3 of the Jail, the appellant came there with kassi (spade) in his hand and inflicted two successive blows on the head of Ranbir, with whom he had a property dispute as a result of which he fell down and started bleeding profusely. Ram Phal raised an alarm which attracted the attention of Head Constable Som Nath, who was on duty nearby. Ram Phal and Som Nath chased the appellant who had fled away in the meantime with the kassi, and nabbed him with great difficulty. They snatched the kassi from him and put him inside Barrack No. 4. They then went to Shri Ashok Kumar (P.W. 4), Assistant Superintendent of the Jail and narrated the incident and also handed over the kassi to him. Shri Kumar then arranged a vehicle to shift Ranbir to the General Hospital, Sonepat. There Ranbir was examined by Dr. R. R. Mittal (P.W. 1) and he found the following:-

“1. Incised wound in front of the left pinna extending upto mid-line of vault of skull which was 12 x 1 cms. x bone deep. Fresh bleeding was present and brain matter was coming out of the injury, and

2. Incised wound on the skull from its middle to parieto-temporal region measuring 10 x 1 cms. x bone deep with fresh bleeding. Brain matter was coming out of the injury. X-ray was advised in respect of skull and surgical opinion was sought.”

3. According to the doctor, both the aforesaid injuries could be caused by a sharp-edged weapon like kassi. The doctor sent a ruqa (Ext. PB) to In-charge, Police Post General Hospital, Sonepat, at 12 noon.

4. On receipt of a telephonic message from the city police station, S.I. Ami Singh (P.W. 8), who was then posted as In-charge Police Post, Gohama Road, Sonepat, first went to General Hospital, Sonepat, where he came to learn that Ranbir Singh had since been referred to Medical College and Hospital, Rohtak. Thereafter, he came to District Jail, Sonepat, where Chander Singh (P.W. 7) made a statement (Ext. PG) regarding the incident. He forwarded the said statement for registration of a case and took up investigation. Thereafter, S.I. Ami Singh recorded the statements of Ram Phal, Som Nath and Ashok Kumar under S. 161, Cr. P.C. He took possession of the kassi (Ext. P1) from Ashok Kumar and seized some blood stained earth from the place of incident. He also prepared a rough site plan (Ext. PI).

5. In the night intervening 26/27th of October, 1994 the Investigating Officer received a message from Medical College and Hospital, Rohtak that Ranbir Singh had since died. On receipt of this message, S.I. Ami Singh reached there along with H.C. Dhara Singh and Constable Suresh Kumar and conducted inquest proceedings (Ext. PX). He then sent the dead body for post-mortem examination. Post-mortem examination was conducted by Dr. A. R. Sharma (P.W. 10) in Civil Hospital, Rohtak and he noted two stitched wounds on his person corresponding to the medico-legal report. According to the doctor, the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.

6. The appellant who was already lodged in District Jail, Sonepat as a convict in some other murder case was put under arrest by S.I. Ami Singh. On 23-10-1994, S.I. Ami singh had deposited the Kassi Ext. P. 1 duly sealed in a packet and another packet containing blood stained earth with the Moharrir Malkhana Randhir Singh and on 16-11-1994 the said Head Constable Randhir singh handed over the same duly intact to the said Constable Vinod Kumar for being delivered at the Forensic Science Laboratory (F.S.L.) and the said constable delivered the same there duly intact on the same day. Subsequently, report from the F.S.L., Madhuban vide Ext. PP was received to the effect that there was human blood on the kassi (Ext. P. 1) and the blood stained earth lifted from the spot. On completion of investigation the police submitted charge-sheet against the appellant and in due course the case was committed to the Court of Session.

7. The appellant pleaded not guilty to the charge levelled against him and stated that he had been falsely implicated. He took the stand that on the date of the incident he was on duty at the Sabzi Panja in Jail and came to the Barrack on hearing the alarm of whistles issued by the Lambardar on duty and they came to know that Ranbir was lying injured. He further stated that on seeing him injured, he started dressing him and while he was still dressing him, he himself became unconscious and thereafter regained consciousness in the hospital.

8. To sustain the charge levelled against the appellant the prosecution principally relied upon the ocular version of Ram Phal (P.W. 3) and Chander Singh (P.W. 7), the warden of the jail. Both the learned Courts below found that the above two witnesses were natural, probable and independent witnesses and there was no reason to disbelieve them. As their evidence stood amply corroborated by the medical evidence and the First Information Report, which was promptly lodged, the Courts below recorded their respective findings against the appellant.

9. We have for ourselves perused the entire evidence on record and see no reason to interfere with the concurrent findings recorded by the learned Courts below as they have been arrived at on a detailed and proper appraisal of the evidence and are based on cogent and convincing reasons. The conviction of the appellant under S. 302, IPC must, therefore, be upheld.

10. Coming now to the sentence we find that the principal reason which weighed with the Courts below to hold that the extreme penalty of death was called for, was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on PAROLE. Undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposition of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration. Taking an overall view of the attending facts and circumstances of the instant case we do not feel that this is one of the rarest of the rare cases where the appellant should be sentenced to death. We, therefore, commute the sentence of death imposed upon the appellant for his conviction under S. 302, IPC to imprisonment for life, but maintain the sentence of fine of ` 5,000/- and the sentence to be undergone in default of payment thereof. The appeal is thus disposed of.

Murugan Vs. State of Tamil Nadu[ALL SC 2018 MAY]

KEYWORDS:- MURDER- CIRCUMSTANTIAL EVIDENCE-

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DATE:- May 02, 2018

A theory of “accused last seen in the company of the deceased” is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged.

ACTS:- Sections 364 and 302/34 of the Indian Penal Code, 1860

SUPREME COURT OF INDIA

Murugan Vs. State of Tamil Nadu

[Criminal Appeal No. 1498 of 2010]

Abhay Manohar Sapre, J.

1. This appeal is filed by the accused against the final judgment and order dated 25.04.2007 passed by the High Court of Judicature at Madras in Criminal Appeal No. 804 of 2006 whereby the High Court dismissed the appeal filed by the appellant(Accused) and confirmed the order dated 02.08.2006 passed by the Additional Sessions Judge, Namakkal (Fast Track Court) in Sessions 1 Case No.5 of 2006 convicting the appellant under Sections 364 and 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced him to undergo rigorous imprisonment for 7 years under Section 364 IPC and to pay a fine of Rs.1000/-, in default of payment of fine, to undergo further simple imprisonment for one month and imprisonment for life under Section 302/34 IPC and to pay a fine of Rs.5000/- in default of payment of fine, to undergo further simple imprisonment for two months. The sentences would run concurrently.

2. In order to appreciate the issues arising in the case, it is necessary to set out the prosecution case in detail:

3. One person by name “Kumar” (since dead) was the uncle of a girl “Geetha”. At the relevant time, Geetha was in sixth standard. Kumar was married but living separately from his wife. Kumar and Geetha were living in the one locality at a short distance. Kumar had developed liking for Geetha and wanted to marry her.

4. Murugan (father of Geetha) was not agreeable to the Kumar’s proposal to marry Geetha. Murugan(Geetha’s father) used to say that Kumar had already ruined the life of his wife and now he wanted to ruin his daughter’s life also. Kumar, on the other hand, used to threaten Geetha that one day he would kidnap her and marry her.

5. It is the case of prosecution, that on 01.12.2002 afternoon, Kumar went to the house of Geetha and demanded “Chili” to cook mutton. At that time, Geetha was alone in the house. When Geetha refused him to give Chili, Kumar entered into the house and took Chili of his own and left the house saying that one day, he would kidnap her and rape her.

6. On the same day at around 10 P.M., Kumar along with Murugan(appellant), who is his cousin brother (his aunt’s son) went to Geetha’s house and invited Murugan(Geetha’s father) for a drink and non-veg. dinner at his house. Murugan(Geetha’s father) accepted the invitation and went along with both of them to Kumar’s house.

7. When Murugan(Geetha’s father) did not return home, Geetha (PW-1) alone went to Kumar’s house at around 11 P.M. to find out as to why her father has not returned so far and what was he doing in Kumar’s house for such a long time. On reaching there, she, however, found that trio (Kumar, Murugan and the appellant) were sitting in the room on one iron cot and were dining together. The trio told Geetha that her father – Murugan would be coming shortly. Thereafter Geetha returned to her house.

8. Since Murugan did not return home till next day morning, Geetha (PW-1) and her mother Saroja (PW-2) went early morning to Kumar’s house to find out why Murugan has not returned so far to his house. The front door of the Kumar’s house was closed. Both of them, therefore, pushed the front door and on opening, they found that Murugan’s dead body was lying in the room near iron cot with many injuries on his body.

9. It is this incident which gave rise to filing of FIR dated 02.12.2002 (Ex-P-18) by Geetha (PW-1) in PS Jedarpalayam, which was registered as Crime No. 224 of 2002 under Sections 302/364/34 of IPC. The police then started investigation, visited the house of Kumar, prepared Mahazar (Ex.P-13), drawn rough sketch (Ex.P-19), took photographs, prepared inquest report, recorded the statements of witnesses, conducted post-mortem of the dead body (Ex.P-4) and recovered the articles (M.O. 5 and 12 ).

10. The police then on 03.12.2002 arrested Kumar, who confessed his guilt. His confessional statement was accordingly recorded (Ex.P-15). Thereafter the police recovered weapon used in the crime (Aruval-MO-14) and the blood stained green shirts at his instance from his father’s house. It was then followed by the appellant’s arrest on the same day.

11. The police, on completing the investigation, filed the charge sheet against Kumar and the appellant herein for commission of the offences punishable under Sections 364 and 302/34 of IPC. The case was then committed to the Additional Sessions Judge, Namakkal for trial (Sessions Trial No. 5/2006).

12. Before the trial could begin, the main accused- Kumar died. The trial against him, therefore, stood abated whereas it continued against the co-accused 6 – appellant herein. The appellant, however, abjured the guilt.

13. In order to prove the charges, the prosecution examined 12 witnesses, marked 20 exhibits and produced material objects. In the proceedings under Section 313 of the Criminal Procedure Code, 1973 (hereinafter referred to as “the Code”), the appellant was asked to explain the circumstances appearing against him but he denied the charges including the circumstances without offering any explanation.

14. By order dated 02.08.2006, the Additional Sessions Judge held the charges proved against the appellant and accordingly convicted him for commission of the offences punishable under Sections 364 and 302 read with Section 34 of IPC and awarded life imprisonment under Section 302 IPC and seven years under Section 364 and a fine amount of Rs. 5,000/- and Rs.1000/- respectively.

15. The appellant felt aggrieved by his conviction and the sentences awarded by the Additional Sessions Judge and filed appeal in the High Court.

16. By impugned judgment, the High Court dismissed the appeal and confirmed the judgment of the Additional Sessions Judge, which has given rise to filing of the appeal by way of special leave by the accused – Murugan in this Court.

17. Heard Ms. Chitrangda Rastravara, learned counsel for the appellant and Mr. M. Yogesh Kanna, learned counsel for the respondent.

18. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.

19. We have perused the evidence with a view to find out whether the approach, reasoning and conclusion arrived at by the two Courts below are legally sustainable or not.

20. It is a settled principle of law that when the Courts below have recorded concurrent findings against the accused person which are based on due appreciation of evidence, this Court under Article 136 of the Constitution of India would be slow to interfere in such concurrent findings and would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc.

21. We, however, made endeavour to peruse the evidence with a view to find out as to whether the concurrent findings of both the Courts below have any kind of infirmity or/and whether the concurrent findings are capable of being legally and factually sustainable or need to be reversed. Having gone through the evidence, we are of the view that the findings are legally and factually sustainable in law.

22. In our considered opinion, the two Courts below have rightly held that the appellant’s conviction was based on circumstantial evidence which, in this case, the prosecution was able to prove it by adducing evidence. In other words, we also find that the prosecution was able to prove the chain of circumstances/events appearing against the appellant without any break therein and hence the appellant’s conviction deserves to be upheld.

23. On perusal of the evidence, we find that the prosecution examined three witnesses (PW-1, PW-2 and PW-3) to prove material circumstances and the chain of events against the appellant which first included the motive behind the commission of the crime followed by the manner in which the incident took place leading to the death of Murugan.

24. The motive, according to the prosecution, was that Kumar had a grudge against the deceased because he was not agreeable to the Kumar’s 10 proposal to marry his daughter-Geetha. This was proved with the evidence of PWs-1, 2 and 3. It was believed by the two Courts below and, in our opinion, rightly.

25. The prosecution then proved that the appellant along with Kumar had gone to the house of the deceased for inviting him for dinner at Kumar’s house on the same night. The deceased accepted the invitation and went to Kumar’s house to have dinner with Kumar and the appellant.

26. It was then proved that Geetha (PW-1) had gone to Kumar’s house at around 11 P.M. to see why her father did not return to his house and on reaching there, she found all the three sitting on iron cot and were having dinner. As per post-mortem report, it was proved that Murugan died between 11 P.M. and 12 P.M. the same night.

27. In our opinion, when the appellant was sitting in the company of the deceased (Murugan) till 11 11 P.M. along with Kumar in his house and had dinner with Murugan and Kumar and immediately thereafter Murugan died, the appellant in cross-examination of PWs-1,2 and 3 was not able to elicit anything to discredit the evidence of the abovesaid three witnesses and to disprove the circumstances deposed against him.

28. That apart, in our opinion, it was necessary for the appellant to have explained the aforementioned circumstances appearing against him in the proceedings under Section 313 of the Code. The appellant, however, failed to explain any circumstances and denied his involvement in the crime.

29. We find from the evidence eight circumstances appearing against the appellant. These circumstances are:

First motive was against the deceased due to his not agreeing to the proposal of marriage of Kumar with his daughter;

Second, the appellant and Kumar, both being the cousins, knew each other very well;

Third, both went together to the house of the deceased to invite him for a dinner at Kumar’s house;

Fourth, all the three had dinner together at Kumar’s house;

Fifth, Murugan died immediately after dinner;

Sixth, Kumar gave his confessional statement;

Seventh, recovery of weapon and cloths at the instance of Kumar; and

Eighth, the dead body was found lying near iron cot where Murugan(deceased) had last dinner with Kumar and the appellant.

30. In our view, the aforementioned eight circumstances do constitute a chain of events against the appellant and lead to draw a strong conclusion against the appellant and Kumar for having committed the murder of Murugan.

31. In our view, it clearly establishes that both (Kumar and the appellant) had a common intention to eliminate Murugan. In our view, there could be no other person other than the appellant and Kumar, who committed the crime in question.

32. A theory of “accused last seen in the company of the deceased” is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged. In this case, it was rightly held by the two Courts below against the appellant and we find no good ground to disturb this finding.

33. We are not impressed by the submission of the learned counsel for the appellant when she argued that Kumar (main accused) having died without facing the trial, the present appellant is entitled for a clean acquittal because nothing now survives against the appellant after Kumar’s death for 14 appellant’s prosecution. We do not agree with this submission.

34. In our view, death of Kumar was of no significance so far as the appellant’s prosecution is concerned. The reason being that this was a case of common intention of the two accused persons to eliminate Murugan and the appellant was one of the accused persons, who was found actively participating in the crime till last along with the other accused, who died.

35. In our view, the two Courts below, therefore, were right in holding the appellant guilty of commission of the offences in question by properly appreciating the ocular evidence of the prosecution witness notwithstanding the death of the co-accused, which was of no relevance for deciding the involvement of the appellant in commission of crime.

36. We, therefore, find no good ground to take a different view than what is taken by the two Courts below and concur with their reasoning and conclusion with our additional reasoning elaborated above.

37. The appeal is thus found to be devoid of any merit. It fails and is accordingly dismissed.

……………………………………..J. [R.K. AGRAWAL]

……………………………………..J. [ABHAY MANOHAR SAPRE]

New Delhi;

May 02, 2018

Tularam Vs. State of Madhya Pradesh[ALL SC 2018 MAY]

KEYWORDS:-MURDER-DISTINCTION BETWEEN MURDER AND CULPABLE HOMICIDE EXPLAINED

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DATE:-May 2, 2018

  • Section 300 of the IPC explains what is murder and it provides that culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or the act complained of is so imminently dangerous that it must in all probability cause death or “such bodily injury as is likely to cause death.

The intention of Tularam was to cause bodily injury to Bhadri Lodhi and piercing the chest of Bhadri Lodhi with a spear was such an injury that could possibly cause his death.

ACTS:- SECTION 299 AND 300 OF IPC

SUPREME COURT OF INDIA

Tularam Vs. State of Madhya Pradesh

[Criminal Appeal No.663 of 2018 arising out of S.L.P. (Criminal) No.7483 of 2017]

Madan B. Lokur, J.

1. Leave granted.

2. The appellant Tularam was accused and convicted of having committed the murder of Bhadri Lodhi during an altercation that took place on 9th June, 2002.

3. On that date, a quarrel took place between Ramnath and Raju at about 6 p.m. in the flourmill of Ramnath. The details of this quarrel are not available on record but it appears that subsequently at about 7.30 p.m. after Ramnath closed his flourmill and was returning home, he was accosted by Raju. A quarrel again ensued between the two and in the midst of that quarrel, they were joined by Bipatlal Lodhi, the grandfather of Raju who came with a lathi, Santu, the nephew of Ramnath and Bhadri Lodhi, brother of Ramnath. The quarrel escalated into the altercation and these persons were joined by Tularam, uncle of Raju who came with a ballam (this is a wooden or bamboo stick with a spear attached at the end). Another person Sakharam (also an accused but not before us) joined the fray carrying a lathi. During the course of the altercation which turned violent, Tularam pierced Bhadri Lodhi with the ballam on the left side of his chest and he fell down. Bhadri Lodhi was thereafter taken home where he was declared dead.

4. Some other persons involved in the altercation sustained injuries including Sakharam who was accused of having dealt a lathi blows on Santu.

5. During the trial that took place as a result of the altercation and the death of Bhadri Lodhi, the prosecution examined several eye witnesses including Ramnath (PW1), Maltibai (PW-3), Mahasingh (PW-5), Shanta Bai (PW-7), Singh Singh Gond (PW-8) Jogi Lodhi PW-10) and Hori Lal (PW-11). Each of these witnesses confirmed the altercation and the fact that Tularam had pierced Bhadri Lodhi on the left side of the chest with a ballam. The injuries were confirmed after an autopsy by Dr. S.N. Bhaskar (PW17) and the post mortem report is Exh.P.32. This shows one penetrating wound having a size of 3″ x 1/2″ x 1/4″ on the left 5th intercostal space, medial to left nipple.

6. On these broad facts of which there is no dispute, Tularam was convicted of an offence punishable under Section 302 of the Indian Penal Code for having murdered Bhadri Lodhi.

7. We have gone through the record of the Trial Court as well as of the High Court and the only limited issue before us is whether Tularam had the intention of causing the death of Bhadri Lodhi.

8. Section 299 of the IPC explains culpable homicide as causing death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the act complained of is likely to cause death. The first two categories require the intention to cause death or the likelihood of causing death while the third category confines itself to the knowledge that the act complained of is likely to cause death. On the facts of this case, the offence of culpable homicide is clearly made out.

9. Section 300 of the IPC explains what is murder and it provides that culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or the act complained of is so imminently dangerous that it must in all probability cause death or “such bodily injury as is likely to cause death.” There are some exceptions when culpable homicide is not murder and we are concerned with Exception 4 which reads:

“Exception 4. – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

Explanation. – It is immaterial in such cases which party offers the provocation or commits the first assault.

10. Recently in Surain Singh v. State of Punjab1 it was observed that:

“The help of Exception can be invoked if death is caused (a) without premeditation,

(b) in a sudden fight,

(c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and

(d) the fight must have been with the person killed.

To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC……… A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.

11. The facts of the present case indicate that all the ingredients of Exception 4 to Section 300 of the IPC are present. The fight was sudden and not premeditated (this is the finding of both the courts) and Tularam is not found to have taken undue advantage of his carrying a ballam in the sense of inflicting any other serious injury, except a contusion to Ramnath. That being the position, it cannot be held that Tularam had the intention to murder Bhadri Lodhi or to cause him such bodily injury as is 1 (2017) 5 SCC 796 likely to cause death.

12. Section 304 of the IPC provides the punishment for culpable homicide not amounting to murder. Part I of this Section provides that if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death then the punishment may extend up to imprisonment for life. On the other hand, Part II of Section 304 provides that if the offending act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death then the punishment may extend to imprisonment for 10 years.

13. The intention to cause death must not be readily inferred. We are afraid that both the Trial Court as well as the High Court have, on the basis of the mere fact that Tularam pierced the chest of Bhadri Lodhi with a ballam, assumed that he intended to cause the death of Bhadri Lodhi. There is nothing on the record to suggest such an intention and none of the witnesses have given any indication of Tularam’s intention to cause the death of Bhadri Lodhi. It is quite clear that during the altercation Tularam did pierce the chest of Bhadri Lodhi but the intention to kill him is not apparent. However, Tularam must be attributed with the knowledge that piercing the left side of the chest with a spear would result in a bodily injury that is likely to cause death.

14. In view of the evidence on record, we are satisfied that the ingredients of murder as explained in Section 300 of the IPC are missing in this case. The intention of Tularam was to cause bodily injury to Bhadri Lodhi and piercing the chest of Bhadri Lodhi with a spear was such an injury that could possibly cause his death. This knowledge must be attributed to Tularam.

15. Under the circumstances, the conviction of Tularam of an offence punishable under Section 302 of the IPC is set aside but he is convicted of an offence punishable under the second part of Section 304 of the IPC. The appellant has been behind bars for almost 14 years. His sentence is altered to the period of incarceration he has already undergone. He be released forthwith.

16. The appeal is allowed in the aforesaid terms.

……………………J (Madan B. Lokur)

……………………J (Deepak Gupta)

New Delhi;

May 2, 2018

Chandra Bhawan Singh Vs. State of Uttar Pradesh[ALL SC 2018 MAY]

KEYWORDS:- DOWRY DEATH- MURDER-RE APPRECIATION OF EVIDENCE BY SUPREME COURT-Circumstantial evidence-

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DATE:-May 01, 2018

  • THE ACCUSED MUST EXPLAIN THE CIRCUMSTANCES U/S 313  “When the incident admittedly occurred in their house”

It is a settled principle of law that when the Courts below have recorded concurrent findings against the accused persons which are based on due appreciation of evidence, this Court under Article 136  of the Constitution of India would be slow to interfere in such concurrent findings and secondly would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc.

ACTS:-Section 302/34 of the Indian Penal Code READ WITH Section 201 IPC –

SUPREME COURT OF INDIA

Chandra Bhawan Singh Vs. State of Uttar Pradesh

[Criminal Appeal No. 654 of 2018 arising out of S.L.P. (CRL.) No. 7049 of 2014]

[Criminal Appeal No. 655 of 2018 arising out of S.L.P. (CRL.) No. 7664 of 2014]

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are filed by the accused persons against the final judgment and order dated 20.05.2014 passed by the High Court of Judicature at Allahabad in Criminal Appeal No.1114 of 1986 whereby the High Court dismissed the appeal in respect of the appellants-accused and affirmed the judgment and order dated 07.05.1986 passed by the Additional Sessions Judge, Fatehpur in Sessions Trial No. 291 of 1984.

3. In order to appreciate the issues involved in the appeals, it is necessary to set out the facts of the case.

4. Four persons, namely,

(1) Tribhuwan Singh (appellant),

(2) Chandra Bhawan Singh (appellant)

(3) Smt. Makoi Devi and

(4) Jwala Singh were prosecuted for committing murder of one lady by name “Satyawati”.

5. The Additional Sessions Judge, Fatehpur by his judgment dated 07.05.1986 in Sessions Trial No. 291 of 1984 acquitted one accused-Jwala Singh but convicted the remaining three accused. Tribhuwan Singh was convicted under Section 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/- in default of payment of fine, to further undergo rigorous imprisonment for one year. Smt. Makoi Devi was convicted under Section 302/34 IPC and was sentenced to undergo imprisonment for life. Chandra Bhawan Singh was convicted under Section 32/34 IPC and was sentenced to undergo imprisonment for life and further convicted under Section 201 IPC and was sentenced to undergo rigorous imprisonment for five years. All the sentences of Chandra Bhawan Singh would run concurrently.

6. The aforementioned three-convicted accused felt aggrieved of their respective conviction and sentence awarded by the Additional Sessions Judge filed appeal in the High Court. The High Court, by impugned judgment, allowed the appeal in respect of one accused – Smt. Makoi Devi and accordingly acquitted 3 her from the charges leveled against her but dismissed the appeal in respect of remaining two accused persons, namely, (1) Tribhuwan Singh and (2) Chandra Bhawan Singh and accordingly confirmed their conviction and the sentence awarded by the Additional Sessions Judge.

7. The remaining two accused felt aggrieved by their respective conviction and award of sentence filed separate special leave petitions in this Court.

8. So far as SLP(Crl.) No. 7049 of 2014 is concerned, it is filed by Chandra Bhawan Singh whereas SLP(Crl.) No. 7664 of 2014 is concerned, it is filed by Tribhuwan Singh.

9. In both these special leave petitions, the challenge is to the impugned judgment of the High Court, which has confirmed their conviction and sentence.

10. In short, the case of the prosecution is as under:

11. All the four accused named above are the members of one family. Smt. Makoi Devi is the mother of Tribhuwan Singh and Chandra Bhawan Singh. In other words, Tribhuwan Singh and Chandra Bhawan Singh are real brothers being the two sons of Smt. Makoi Devi.

12. The deceased-Satyawati was the wife of Tribhuwan Singh. Their marriage was performed in the year 1981. Satyawati stayed in her matrimonial home with her husband for 8 days and then returned to her parents’ house.

13. It is the case of the prosecution that the members of Satyawati in-laws family, which included the four accused named above, were harassing her while she was staying in her in-laws house for not bringing any dowry in her marriage. The family members had been demanding “motor cycle” in dowry. Due to constant harassment given to her by the aforementioned four accused persons, it had become unbearable for her to stay in the house and, therefore, she returned to her parents’ house and started living with her parents.

14. On 15.03.1984, Jwala Singh and Chandra Bhawan Singh went to Satywati’s parents’ house and brought Satyawati back to her in-laws house. On 18.03.1984 (after 3 days), Satyawati was found dead in her in-laws house. She died due to gun shot injuries.

15. Chandra Bhawan Singh-the elder brother of Tribhuwan Singh lodged a FIR in the Police Station, Kishanpur on the same day, i.e., 18.03.1984, informing therein that Satyawati committed suicide in the house by gun shot injuries and that her dead body was lying in the courtyard of the house. One FIR was also lodged by village Pradhan. It was registered as FIR No. 30/1984 (GD No. 14/84) at PS Kishanpur. The brother of the deceased-Rajender (PW-1) lodged the 6 FIR on the same day stating therein that all the four accused named above have killed his sister because of non-fulfillment of their demand for dowry.

16. On 19/20.04.1984, all the four accused persons were arrested. In the investigation, the police recovered the Gun at the instance of Tribhuwan Singh from his house, which was alleged to be used in commission of the offence. The post mortem of the dead body was performed which disclosed that Satyawati was murdered. The police then made further investigation, collected evidence, obtained ballistic report from the experts and recorded the statements of the accused persons and other witnesses.

17. On 09.06.1984 the police filed Challan. The case was committed to the Additional Sessions Judge, Fatehpur for trial. The Additional Sessions Judge framed charges against the four accused persons for commission of the offences punishable under Sections 7 302/34 and 201 of IPC read with Section 4 of the DP Act. The prosecution examined six witnesses to prove their case.

18. By order dated 07.05.1986, the Additional Sessions Judge acquitted Jwala Singh finding no evidence against him but convicted Tribhuwan Singh (husband), Smt. Makoi Devi (mother-in-law) and Chandra Bhawan Singh (brother-in-law) and sentenced them to undergo life imprisonment for killing Satyawati.

19. Thribhuwan Singh, Smt Makoi Devi and Chandra Bhawan Singh felt aggrieved and filed appeal in the High Court at Allahabad against their conviction and sentence awarded by the Additional Sessions Judge.

20. By impugned judgment, the High Court dismissed the appeal filed by Tribhuwan Singh and Chandra Bhawan Singh and accordingly upheld their conviction and sentence. However, the High Court acquitted Smt. Makoi Devi (mother-in-law) from all the charges finding no evidence against her.

21. It is against this judgment, the accused Tribhuwan Singh and Chandra Bhawan Singh have filed the present two appeals by way of special leave in this Court. It is a settled principle of law that when the Courts below have recorded concurrent findings against the accused persons which are based on due appreciation of evidence, this Court under Article 136  of the Constitution of India would be slow to interfere in such concurrent findings and secondly would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc.

22. So far as acquittal of Jwala Singh and Smt. Makoi Devi is concerned, it has attained finality because the State did not file any appeal in the High Court and nor in this Court.

23. Heard Mr. Nagendra Rai, learned senior counsel for the appellants (accused) and Mr. Ratnakar Dash, learned senior counsel for the respondent (State).

24. Mr. Nagendra Rai, learned senior counsel for the appellants(accused) while assailing the legality and correctness of the impugned judgment contended that firstly, the conviction of both the appellants, though 9 concurrent in nature, is neither factually and nor legally sustainable.

25. In the Second place, he contended that since the entire case of prosecution is founded on circumstantial evidence, it was necessary for the prosecution to have adduced evidence to prove the complete chain of events. Learned counsel contended that there is no evidence much less sufficient evidence adduced by the prosecution to prove the chain of events leading to the guilt of committing the murder of Satyawati by the appellants and hence the conviction is bad in law.

26. In the third place, learned counsel to support his second submission took us through the evidence with a view to show that chain of events to prove the guilt qua the appellants is not established.

27. In the fourth place, learned counsel contended that the circumstances appearing in the case from the 10 evidence would show that Satyawati committed suicide.

28. In reply, learned counsel for the respondent (State) supported the reasoning and the conclusion arrived at by both the Courts below and prayed for dismissal of the appeals calling for no interference in the concurrent findings of both the Courts below.

29. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeals.

30. In our opinion, both the Courts below properly appreciated the evidence and came to a right conclusion that the appellants were responsible for commission of the offence of murder of Satyawati.

31. It is a settled principle of law that when the Courts below have recorded concurrent findings against the accused persons which are based on due appreciation of evidence, this Court under Article 136  of the Constitution of India would be slow to interfere in such concurrent findings and secondly would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc.

32. We, however, made endeavour to peruse the evidence with a view to find _ out as to whether the concurrent findings of both the Courts below have any kind of infirmity or/and whether the concurrent findings are capable of being legally and factually sustainable in law or need to be reversed. Having gone through the evidence, we are of the view that the findings are legally and factually sustainable.

33. We find that there is evidence to prove the factum of demand of dowry. Rajender(PW-1) is the real brother of the deceased. He was the complainant. His evidence was rightly relied on by the two Courts below for holding that the appellants were persistently making a demand of dowry (motor cycle) from Satyawati and her family members and they used to harass her for such cause. The testimony of PW-1 is natural and consistent having no material contradiction, we, therefore, find no justification to disbelieve it. The same deserves to be accepted.

34. So far as the story of suicide set up by the appellants is concerned, it is, in our view, wholly unbelievable on the evidence brought on record.

35. First, it is not possible rather difficult for a person to commit suicide by using DBBL Gun;

Second, it has come in evidence that there were as many as 7 gun shot injuries noticed on the body of Satyawati. In our view, It is not possible for a person to commit suicide by firing seven gun shots one after the other on his/her body with the use of DBBL Gun in hands. However, one can commit suicide by firing one shot with a pistol. Such was, however, not the case of the appellants.

36. Coming to the involvement of the appellants in commission of the offence, we find that the High Court relied on the following circumstances appearing against the appellants for holding them guilty of commission of the offence of murder of Satyawati. These circumstances are extracted hereinbelow: “Here prosecution has discharged its part of the burden by leading evidence of which it was capable by substantiating the fact

(i) that there has been demand of dowry

(ii) deceased has been taken to her in laws house

(iii) at the time of death, deceased has been staying with her in laws and appellants are the inmates of the house

(iv) death in question has taken place inside the house

(v) injuries caused clearly reflects that it is case of murder

(vi) story of suicide set up by appellant No.3 was not at all supported by medical evidence (vii) DBBL gun has been used in the commission of offence and once chain of events are clearly linked up then in view of Section 106 of Evidence Act, as young bride in question has been killed inside the house, then there is corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. The principle is that when an incriminating circumstance is put to the accused and said accused does not offer any explanation which on the face of it is found false or untrue, then the same becomes additional link in the chain of circumstances to make it complete.”

37. In our considered opinion, the aforementioned seven circumstances set out by the High Court for holding the appellants guilty cannot be faulted with. These seven circumstances do establish the chain of events and being directly connected with the incident in question, establish the involvement of the appellants in commission of the offence beyond reasonable doubt. In our opinion, the test laid down to prove the guilt by circumstantial evidence in this case is fully satisfied by the aforementioned seven circumstances against the appellants.

38. That apart, we also find from the evidence that Chandra Bhawan Singh-the appellant herein was the  first to lodge the FIR about the incident wherein he stated that Satyawati has committed suicide. Apparently, this fact proves that first, he was present in the house where Satyawati was found dead and second, he falsely stated that Satyawati committed suicide because he wanted to divert the attention of the police from the reality. As held above, no evidence was led to prove that it was a case of suicide.

39. We also find that both the accused (appellants herein) in their statements recorded under Section 313 of the Criminal Procedure Code, 1973 failed to give any explanation when asked about the circumstances in which the incident occurred in their house. When the incident admittedly occurred in their house, the appellants were required to explain the circumstances in which Satyawati died. They, however, failed to give any explanation.

40. We also find that Tribuhuwan Singh said that he was not present in the house at the time of the occurrence and on that day he was in Allahabad. He also failed to adduce any evidence to prove this fact.

41. We are, therefore, of the considered view that both the Courts below rightly held the appellants guilty for commission of the offence in question and, therefore, we find no good ground to take a different view than what is taken by the two Courts below.

42. In view of the foregoing discussion, the appeals fail and are accordingly dismissed.

J. [R.K. AGRAWAL]

J. [ABHAY MANOHAR SAPRE]

New Delhi;

May 01, 2018

Satpal Vs. State of Haryana[ALL SC 2018 MAY]

KEYWORDS:-Last seen theory-MURDER-

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DATE:-May 01, 2018-

LAST SEEN THEORY EXPLAINED: There is no eye witness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly.

But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place.

If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.

ACTS:-Section 302 read with Section 201 I.P.C-Section 106 of the Evidence Act

SUPREME COURT OF INDIA

 Satpal Vs. State of Haryana

[Criminal Appeal No.1892 of 2017]

NAVIN SINHA, J.

1. The appellant assails his conviction under Section 302 read with Section 201 I.P.C., by the Additional Sessions Judge, Hissar in case No.54SC (RBT) of 2008, affirmed by the High Court, based on the last seen theory.

2. PW7, Krishan Kumar lodged an F.I.R. on 11.09.2007 with regard to his missing nephew, the deceased Kapil Kumar who was thirteen years old. The deceased had gone to the village the previous evening at about 6:00 PM to deliver milk to customers. The witness and his relative PW9, Richhpal had seen the 1 deceased with the appellant at about 9:00 PM on the Khairpur Road, Sarangpur, going on a bicycle together. The deceased did not return home at night. His dead body was found the next morning lying concealed in a heap of dry fodder in the fields of Subhash. The appellant was stated to have had an altercation with the deceased a few days ago with regard to payment of milk. The disclosure by the appellant under Section 27 of the Evidence Act after his arrest, led to recovery of the atlas bicycle belonging to PW7, and the milk can with the name of the witness inscribed on it.

3. Learned Counsel for the appellant assailing the conviction, submitted that the dead body was found at a considerable distance from where he was last seen with the deceased and in the opposite direction. It is highly unlikely that the appellant would have carried the dead body for the long distance. The recovery is planted, as the second seizure witness Kheda had not been examined. The appellant would not have hidden the bicycle and the milk can near his own house to facilitate his implication. The story of the milk can and an altercation few days earlier in Court, were improvements as no such statement had been made by PW7 in the FIR or statement under Section 161 Cr.P.C.

4. There was a contradiction between the evidence of PW7 and PW9 with regard to intimation given to the Sarpanch at night itself. There was also a contradiction between the statement of the two witnesses with regard to time when the dead body was discovered and the police reached the spot. There was no evidence with regard to the bicycle as belonging to PW7. The father of the deceased, PW8, Subhash had come to the village in the morning itself looking for his son which is suggestive that the deceased was missing since earlier creating doubts about the last seen theory. Alternately, if the deceased was missing since the previous night, the conduct of PW7 in not informing PW8 at night itself was highly unnatural. PW7 and PW9 were thus not reliable witnesses.

To sustain a conviction on basis of circumstantial evidence, it was necessary that all links in the chain of circumstances must be complete leading to the only hypothesis for guilt of the accused. If there were any missing link in the chain of circumstances and the possibility of innocence cannot be ruled out, the benefit of doubt must be given by acquittal. Any recovery on basis of confession, under Section 27 of the Evidence Act, cannot form the basis for conviction.

5. Learned counsel for the State submitted that the deceased was last seen with the appellant the previous night at about 9.00 PM going on a bicycle and did not return at night. The dead body was found next morning in the vicinity of the area they were last seen together. The postmortem conducted on 12.09.2007 at 2:15 PM estimates the time elapsed since death as 2436 hours and which coincides with when the deceased was last seen with the appellant. Motive for the crime existed. The conduct of the appellant in absconding after the occurrence is also an incriminating factor against him. PW7 had identified the bicycle as belonging to him and the milk can had his name inscribed on it.

6. We have considered the respective submissions and the evidence on record. There is no eye witness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly.

But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place.

If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.

7. Both PW7 and PW9 have consistently stated having seen the deceased going with the appellant on a bicycle at 9.00 PM the previous evening. The deceased did not return home at night. The appellant was also not to be found at home. The corpse of the deceased was recovered the next morning hidden in a heap of fodder in the fields. The FIR was lodged promptly on 11.09.2007 naming the appellant as a suspect. An FIR is not to be read as an encyclopedia requiring every minute detail of theMay 01, 2018 occurrence to be mentioned therein. The absence of any mention in it with regard to the previous altercation, or the presence of the milk can, cannot affect its veracity so as to doubt the entire case of the prosecution. The altercation suffices to establish motive.

The appellant has not led any evidence regarding his not being in the company of the deceased or that they had subsequently parted ways. The appellant has not led any evidence, despite his statement under Section 313 Cr.P.C. that he would do so, why he did not return home at night or his whereabouts otherwise. PW8, father of the deceased, was informed in the morning of 11.09.2007 by PW7 after which he came to the village. The 6 deceased was a thirteen year old hardly in a position to resist the appellant. We see no reason why the two witnesses being related to the deceased would depose falsely and shield the real offender, especially when the appellant has not given any reason or led any evidence for his false implication.

8. The postmortem was done on 12.09.2007 at about 2:15 PM by PW12, Dr. Sunil Gambhir opining that death was due to strangulation by manual throttling. The time elapsed since death has been estimated as 24 to 36 hours. The witness has deposed that death could be estimated to have occurred at about 10.00 PM on 10.09.2007. The body has been recovered in the vicinity of where the deceased was last seen with the appellant. The fact that it may be in the opposite direction is hardly relevant.

9. The recovery of the atlas cycle on the confession of the appellant, identified by PW7 as belonging to him, as also the recovery of the milk can on the same basis with the name of PW7 inscribed on it with nail polish and the fact that the appellant was absconding after the occurrence till his arrest on 16.09.2007 are additional incriminating factors which complete the links in the chain of circumstances. The recovery having been proved by PW7, the failure to examine the other seizure witness, Kheda, is of no consequence.

10. In the entirety of the facts and circumstances of the case, we find no reason to interfere with the conviction of the appellant.

11. The appeal is dismissed.

……………..J. (Kurian Joseph)

……..J. (Mohan M. Shantanagoudar)

…….J. (Navin Sinha)

New Delhi,

May 01, 2018

Sidhartha Vashisht alias Manu Sharma Versus State (NCT of Delhi)[ALL SC 2008 MAY]

KEYWORDS:-MURDER- CONVICTION-suspension of sentence pending appeal-BAIL

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DATE:-  12-05-2008.

  • Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.
  • The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.
  • Hence, within ‘measurable distance of time’ the appeal is likely to be heard. Keeping in view the seriousness of offence, the manner in which the crime was said to have been committed and the gravity of offence, we are of the view that no case has been made out by the applicant-appellant for suspension of sentence and grant of bail.

ACTS:- Section 302, IPC AND Section 389 of the Code of Criminal Procedure

AIR 2008 SC 2889 : (2008) 8 SCR 220 : (2008) 5 SCC 230 : (2008) 7 SCALE 321 : (2008) CriLJ SC 3524 : JT 2008 (6) SC 476

(SUPREME COURT OF INDIA)

Sidhartha Vashisht alias Manu Sharma Appellant
Versus
State (NCT of Delhi) Respondent

(Before : C. K. Thakker And D. K. Jain, JJ.)

Criminal Misc. Petn. No. 1775 of 2007 in Cri. Appeal No. 179 of 2007, Decided on : 12-05-2008.

Criminal Procedure Code, 1973—Sections 389 and 379—Suspension of sentence and grant of bail—Pendency of appeal before Supreme Court—jessica Lal murder case—Applicant-appellant found acquitted by trial Court, but convicted and sentenced to life imprisonment under Section 302, IPC by High Court in appeal—Appeal by applicant-appellant likely to be heard by Supreme Court within ‘measurable distance of time’—In view of gravity of offence and manner in which it was committed, application not allowed.

Criminal Procedure Code, 1973—Section 389—Suspension of sentence and grant of bail—Grant of bail during period of trial and absence of misuse of liberty—Cannot per se warrant suspension of sentence and grant of bail.

Counsel for the Parties:

Ram Jethmalani, Sr. Advocate, P.H. Parekh, Ms. Lata Krishnamurthy, E.R. Kumar, Lalit Chauhan, Ajay Jha, Ms.Saurabh Ajay Gupta, Ms. Mary Mizty, Ms. Rajdeep Banerjee, Ms. Joyeeta Banerjee, Ms. Bansuri Swaraj, Ms. Rukhmini Bobde, Somandri Goud (for M/s. P. H. Parekh and Co.) with him for the Appellant

Gopal Subramanium ASG, Ms.Mukta Gupta, Nikhil Nayyar, Ankit Singhal, T.V.S. Raghavendra and Vibha Garg, with him for the Respondent; Ms. Mamta Kalra, In person for Intervening Party.

Judgment

C. K. Thakker, J—The present application is filed by the appellant-accused under Section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) for suspension of sentence pending appeal in this Court and to release him on bail.

2. Since an appeal against an order of conviction and sentence recorded by the High Court of Delhi is admitted by this Court and awaits final hearing, we will not enter into larger questions and deal with the present application for suspension of sentence and bail.

3. Shortly stated, the case of the prosecution was that on April 29-30, 1999, a party was organized at Tamarind Cafe’ inside Qutub Colonnade. It was a private party where certain persons were invited and liquor was served. jessica Lal (since deceased) and one Shyan Munshi were in charge of the bar. It was the allegation of the prosecution that appellant Sidhartha Vashisht alias Manu Sharma along with his friends came there and asked for liquor. jessica Lal and Shyan Munshi did not oblige him by providing liquor since the bar was closed. According to the prosecution, the appellant got enraged on refusal to serve liquor, took out his 22 pistol and fired two rounds, first into the ceiling and the second at jessica Lal. jessica Lal fell down as a result of the shot which proved fatal and she died. According to the assertion of the prosecution, several persons witnessed the incident. Beena Ramani who was present, stopped the appellant and questioned him as to why he had shot jessica Lal. She also demanded weapon from the accused but the accused did not handover pistol and fled away.

4. FIR was lodged, a case was registered and investigation was carried out. At the trial, more than 100 witnesses had been examined. The trial Court acquitted the accused holding that it was not proved by the prosecution that the accused had committed the offence with which he, along with other accused, was charged.

5. The State preferred an appeal against an order of acquittal recorded by the trial Court. The High Court of Delhi held that the trial Court was wrong in acquitting the accused and the prosecution was successful in proving the guilt against the appellant (as well as two other accused) and accordingly recorded conviction inter alia for an offence punishable under Section 302, Indian Penal Code (IPC) and imposed sentence of imprisonment for life.

6. The High Court observed that it has “no hesitation in holding” that the appellant was guilty of an offence punishable under Section 302 read with Sections 201 and 120B, IPC and also under Section 27 of the Arms Act, 1959 for having committed murder of jessica Lal on April 29-30, 1999 at ‘Tamarind Cafe’ and ordered him to undergo rigorous imprisonment for life and also imposed sentence for other offences.

7. With regard to the other two accused, however, the Court held that they were guilty for committing an offence punishable under Sections 201 and 120B, IPC.

8. The appellant-applicant approached this Court by instituting an appeal under Section 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 as also under Section 379 of the Code. The appeal was placed for admission. On March 7, 2007, the appeal was admitted and notice was issued on application for bail. Counsel appeared on behalf of the respondent and accepted the notice. It was ordered to be listed in the first week of April, 2007, meanwhile, counter affidavit, if any, was to be filed.

9. On April 2, 2007 when the matter appeared on Board, the Court passed orders of bail in respect of other accused, but in the instant case (Crl. M.P. No. 1775 of 2007), the Court fixed final hearing of the matter. It, however, appears that the appeal could not be heard. On January 24, 2008, the Court ordered listing of appeals along with bail applications “before any other appropriate Bench” on 12th February, 2008. The matter was thus placed before this Bench.

10. In view of several other matters, however, the appeal could not be taken up for hearing. Mr. Ram Jethmalani, learned senior advocate, appearing for the appellant-accused, no doubt, requested the Court to take up the matter out of turn. He alternatively tively submitted that if the appeal is not heard, the application for bail may be heard as according to him, he did not press for bail earlier when the appeal was placed for, admission hearing and was admitted since the Court had fixed final hearing of main matter. According to him, the appellant was in jail and if the appeal will not be heard for a considerable long time, serious prejudice will be caused to the accused. On the facts and in the circumstances, therefore, we directed the Registry to place the application for suspension of sentence and grant of bail on Board so that an appropriate order may be passed on the, prayer of the applicant-appellant-accused.

11. We have heard learned counsel for the parties.

12. The learned counsel for the applicant submitted that no case has been made out by the prosecution against the appellant-accused. The trial Court, after considering the evidence of the prosecution witnesses in its entirety, recorded an order of acquittal in favour of the accused. He submitted that the trial Court held that P.W. 1 Deepak Bhojwani and P.W. 30 Shravan Kumar had been ‘planted’ by the prosecution. P.W. 2 Shyan Munshi had expressly stated that shots were fired by two persons and appellant-accused was not one of them. Neither P.W. 1 Deepak Bhojwani nor P.W. 2 Shyan Munshi, nor P.W. 3 Shiv Dass Yadav, nor P.W. 4 Karan Rajput were eye-witnesses. For rejecting ocular evidence of P.W. 6 Malini Ramani and P.W. 20 Beena Ramani, cogent and convincing reasons have been recorded by the trial Court. It was not proved that Tata Safari was in possession of the appellant-accused, nor was there anything to show that he used the said vehicle on 29th April, 1999. Report of ballistic expert does not support prosecution and on that ground also, the trial Court was right in passing the order of acquittal.

13. According to the learned counsel, Beena Ramani P.W. 20, was not an eye-witness. A statement to that effect was made by the Public Prosecutor at the trial in the Sessions Court. It was also clear that a false excise case had been registered against the said witness and she was pressurised to depose in favour of prosecution and as soon as her evidence was over, she was obliged by compounding the offence on imposing fine which went to show that it was the systematic effort of the prosecution to involve the appellant-accused who was totally innocent. The counsel also submitted that photograph of the accused was collected by the Police during investigation and was shown to the prosecution witnesses and identification of the accused was meaningless. Media had played active role and even before the conclusion of the trial, they had virtually described the applicant not as an ‘accused’ but as a ‘convict’ or an ‘offender.’ According to the learned counsel, the trial Court dispassionately and objectively considered the evidence in its proper perspective without being influenced by extraneous factors and granted benefit of doubt to the accused. The High Court was ‘wholly’ wrong in reversing the finding of the trial Court and in convicting the applicant and in imposing sentence of imprisonment for life. The order passed by the High Court, submitted the counsel, is not in consonance with law and the applicant has fair and good chance of his appeal being allowed. He is in jail since long and as the appeal is likely to take time, a reasonable prayer for suspension of sentence and grant of bail deserves to be accepted by enlarging the applicant-accused on bail on such terms and conditions as this Court deems fit.

14. Mr. Gopal Subramanyam, learned Addl. Solicitor General, on the other hand, strongly opposed the prayer made by the applicant of suspension of sentence and grant of bail. He submitted that the order of acquittal recorded by the trial Court was clearly wrong and against the evidence on record. The High Court, as a Court of ‘first appeal,’ considered the evidence and held that the trial Court was ‘wholly’ wrong in not believing the prosecution witnesses. The High Court also observed that the grounds which weighed with the trial Court for not believing prosecution witnesses, could not be said to be legal, proper or based on evidence on record. The counsel submitted that there was no reason for the trial Court not to believe evidence of P.W. 1 Deepak Bhojwani, P.W. 30 Shravan Kumar, P.W. 20 Beena Ramani, P.W. 6 Malini Ramani and other witnesses. The counsel submitted that the High Court considered in detail, the reasons recorded by the trial Court and rightly observed that to describe a particular witness as ‘planted’ by the prosecution is a serious matter and normally no Court of law would proceed on that basis. Mr. Subramanyam also submitted that from the prosecution evidence, it is clear that the applicant along with other accused came to Tamarind Cafe on 29th April, 1999, asked for liquor and when he was refused liquor on the ground that the bar was closed, he became very angry, took out his 22 pistol and fired two rounds; one towards ceiling and the other towards jessica Lal due to which she died. This was witnessed by several persons who were present at that time. Some of them, however, did not support the prosecution. The learned Addl. Solicitor General submitted that the terror of the accused was clear from the fact that about two dozen witnesses had been turned hostile. The trial Court ought to have considered this aspect. But even otherwise, in view of the above situation, the witnesses who were examined and supported the prosecution ought to have been believed by the trial Court. It, however, failed to do so. The High Court was, therefore, ‘fully’ justified in believing the evidence of those witnesses and in recording the order of conviction.

15. It was also stated that according to the High Court, after the commission of offence, the accused absconded. His farm house was raided by the police authorities during the course of investigation. He was neither found there nor did he surrender immediately. The High Court also recorded a finding that Tata Safari, used by the accused at the time he visited Qutub Colonnade was recovered from NOIDA which was removed from the place of offence. According to the High Court, the evidence on record showed that Tata Safari was parked at Qutub Colonnade in the night of April 29-30, 1999. The vehicle belonged to Piccadilly Agro Industries Limited of which the accused was admittedly a Director. The vehicle was surreptitiously removed from the scene of occurrence. The High Court noted that it was admitted by the accused that he was having licensed pistol of .22 bore. The High Court was also aware that several witnesses turned hostile and did not support the prosecution but from the available material, it was proved beyond reasonable doubt that it was the applicant who had visited Qutub Colonnade on the night of 29th/30th April, 1999 and demanded liquor and on refusal by jessica Lal and Shyan Munshi, he became angry and fired two shots one of which hit jessica Lal and proved fatal. It was, therefore, submitted by the learned Addl. Solicitor General that the order passed by the High Court is legal, valid and in consonance with law and no error has been committed by the High Court in setting aside the order of acquittal recorded by the trial Court.

16. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent Criminal Court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.

17. In para 56, the High Court observed as under :

“56. In the totality of circumstances adduced from material on record, the judgment under challenge appears to us to be an immature assessment of material on record which is self-contradictory, based on misreading of material and unsustainable. We find that Beena Ramani has identified Sidhartha Vashisht alias Manu Sharma, Amardeep Singh Gil, Alok Khanna and Vikas Yadav to be the persons present at the Tamarind Cafe at the time of the incidence. She also saw Manu Sharma firing the fatal shot which hit jessica Lal. Her testimony finds corroboration from the testimony of Malini Ramani and Geroge Mailhot. There is evidence on record to show that Manu Sharma had a licensed pistol of .22 bore which he has not produced to establish his innocence and on the contrary has taken false plea that the pistol, its ammunition and licence had been removed by the Police on 30-4-1999. We also find from the material on record that Manu Sharma abandoned his vehicle while making good his escape. We also find that the ammunition used in the causing of the firearm injury to jessica Lal was of .22 bore which Manu Sharma admittedly possessed and a similar live cartridge was recovered from the abandoned Tata Safari. From this, we have no hesitation in holding that Manu Sharma is guilty of an offence under S. 302. I.P.C. for having committed the murder of jessica Lal on 29/30-4-1999 at the Tamarind Cafe as also under S. 27. Arms Act.”

(Emphasis supplied)

18. The High Court has also given cogent reasons for not accepting the view of the trial Court and grounds recorded for not believing prosecution witnesses.

19. Mr. Ram Jethmalani, learned senior advocate no doubt submitted that the trial Court was right in not relying upon the prosecution witnesses, but Mr. Gopal Subramanyam submitted that the approach of the trial Court was incorrect and improper. According to the High Court it was on the verge of ‘perversity.’

20. It is premature to express any opinion, one way or the other at this stage but the fact remains that the order of acquittal recorded by the trial Court has been set aside and the applicant-accused has been convicted for an offence punishable under S. 302, I.P.C. and ordered to undergo imprisonment for life.

21. Mr. Ram Jethmalani, learned senior advocate, invited our attention to several decisions of this Court. Some of them relate to grant of bail at the pre-trial stage. The Courts in such cases have considered several factors, such as, there is a presumption of innocence in favour of an accused till it is established that he is guilty; he has to make preparation for his defence and he must have every opportunity to look after his case; it will be very difficult for an accused to make such preparation if he is in jail than he is out of jail. One of the considerations which a Court of law would keep in mind at that stage is to secure the attendance of the accused. Hence, on security being furnished, he is released on bail if the Court is satisfied that the case on hand was fit one to grant such concession in favour of the accused.

22. Before about eight decades, in the leading case of Emperor v. Hutchinson, AIR 1931 All 356 : 32 Cri LJ 1271 : 33 IC 842 (the Meerut Conspiracy case), Boys, J. observed :

“As to the object of keeping an accused person in detention during the trial, it has been stated that the object is not punishment, that to keep an accused person under arrest with the object of punishing him on the assumption that he is guilty even if eventually he is acquitted is improper. This is most manifest. The only legitimate purposes to be served by keeping person under trial in detention are to prevent repetition of the offence with which he is charged where there is apparently danger of such repetition and to secure his attendance at the trial. The first of those purposes clearly to some extent involves an assumption of the accused’s guilt but the very trial itself is based on a prima facie assumption of the accused’s guilt and it is impossible to hold that in some circumstances it is not a proper ground to be considered. The main purpose however is manifestly to secure the attendance of the accused.”                                                (Emphasis supplied)

23. In concurring judgment, Mukherji, J. also stated :

“The principle to be deduced from Ss.496 and 497, Criminal P. C., therefore is that grant of bail is the rule and refusal is the exception. That this must be so is not at all difficult to see. An accused person is presumed under the law to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to freedom and every opportunity to look after his own case. It goes without saying that an accused person. If he enjoys freedom, will be in a much better position to look after his case and to properly defend himself than if he were in custody.                                                                                  (Emphasis supplied)

24. The above principle has been reiterated from time to time thereafter.

25. Section 389 of the Code expressly and specifically deals with suspension of sentence pending appeal and release of appellant on bail. It states :

389. Suspension of sentence pending the appeal; release of appellant on bail :- (1) Pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on a appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall –

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

26. Bare reading of the above provision makes it clear that during the pendency of appeal, an appellate Court is empowered to suspend sentence on the appellant by releasing him on bail. Such action, however, can be taken only after affording opportunity to the Public Prosecutor in case of offence punishable with death or imprisonment for life or imprisonment for ten years or more and after recording reasons in writing.

27. Mr. Jethmalani, relying on the decisions in Kashmira Singh v. State of Punjab (1977) 4 SCC 291; Babu Singh and Ors. v. State of U.P., (1978) 1 SCC 579; Shailendra Kumar v. State of Delhi, (2000) 4 SCC 178 : 2000 (1) JT (SC) 184, and other cases, submitted that one of the factors which weighed with this Court in granting suspension of sentence and releasing the applicant on bail is that in case of acquittal by the trial Court and conviction by the appellate Court, hearing of appeal takes long time and the applicant has to remain in jail.

28. As observed in those cases, the practice of not releasing a person on bail who had been sentenced for imprisonment for life under S. 302, I.P.C. was that the appeal was likely to be heard in near future. But if such appeal would not be heard for long and not disposed of within a ‘measurable distance of time,’ it would not be in the interest of justice to keep such person in jail for a number of years and it would be appropriate if the power under S. 389 of the Code is exercised in favour the applicant.

29. In Kashmira Singh, this Court stated :

“Now, the practice in this Court as also in many of the High Court has been not to release on bail a person who has been sentenced to life imprisonment for an offence under S. 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person : “We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?” What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a Judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.”                                                                                                    (Emphasis supplied)

30. The other consideration, however, is equally important and relevant. When a person is convicted by an appellate Court, he cannot be said to been ‘innocent person’ until the final decision is recorded by the superior Court in his favour.

31. Mr. Gopal Subramanyam, learned Addl. Solicitor General invited our attention to Akhilesh Kumar Sinha v. State of Bihar, (2000) 6 SCC 461; Vinay Kumar v. Narendra and Ors. (2002) 9 SCC 364 : JT 2002 Supp (1) SC 60; Ramji Prasad v. Rattan Kumar Jaiswal and Anr., (2002) 9 SCC 366 : JT 2000 (7) SC 477; State of Haryana v. Hasmat, (2004) 6 SCC 175 : JT 2004 (6) SC 6; Kishori Lal v. Rupa and Ors. (2004) 7 SCC 638 : JT 2004 (8) SC 317 and State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 4 SCALE 412 : JT 2008 (4) SC 461.

32. In the above cases, it has been observed that once a person has been convicted, normally, the appellate Court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate Court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vinay Kumar that in considering the prayer for bail in a case involving a serious offence like murder punishable under S. 302, I.P.C., the Court should consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.

33. In Hasmat, this Court stated :

“6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the applicant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of S. 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he is released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant, aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.”                                                                                     (Emphasis supplied)

34. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.

35. On the facts and in the circumstances of the case, in our considered opinion, this is, not a fit case to exercise power under Section 389 of the Code. Though the trial Court has acquitted the applicant-accused for the offences with which he was charged, the High Court reversed the order of acquittal and convicted him under Section 302, IPC and ordered him to undergo rigorous imprisonment for life. Being aggrieved by the said order, he has filed an appeal which has been admitted, is already on board and awaits final hearing. Hence, within ‘measurable distance of time’ the appeal is likely to be heard. Keeping in view the seriousness of offence, the manner in which the crime was said to have been committed and the gravity of offence, we are of the view that no case has been made out by the applicant-appellant for suspension of sentence and grant of bail. The application deserves to be dismissed and is accordingly dismissed.

36. Before parting with the matter, we may clarify that we may not be understood to have expressed any opinion on merits of the matter one way or the other and all the observations made by us hereinabove should be taken as confined to dealing with the prayer of the applicant-appellant under Section 389 of the Code. As and when the main matter i.e. criminal appeal will come up for hearing, it will be decided on its own merits without being inhibited or influenced by the observations in this order.

37. The application is accordingly disposed of.

K. M. Nanavati Appellant Versus State of Maharashtra[ALL SC 1961 NOVEMBER]

KEYWORDS:-MURDER-ACQUITTAL-

c

DATE:-24-11-1961


AIR 1962 SC 605 : (1962) 1 Suppl. SCR 567 : (1962) 1 CriLJ SC 521

(SUPREME COURT OF INDIA)

K. M. Nanavati Appellant
Versus
State of Maharashtra Respondent

(Before : S. K. Das, K. Subba Rao And Raghubar Dayal, JJ.)

Criminal Appeal No. 195 of 1960, Decided on : 24-11-1961.

Penal Code, 1860—Section 300—Exception I—Grave and sudden provocation—Application of principle—Test for determination.

The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of “grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and sope for premeditation and calculation.

When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self control. But, if his version is true—for the purpose of this argument we shall accept that what he has said is true—it shows that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only regained his self control, but, on the other hand, was planning for the future. Then he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat went straight to the bed room of Ahuja and shot him dead. Between 1.30 p.m., when he left his house, and 4.20 p.m. when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to regain his self control, even if he had not regained it earlier. On the other hand, his conduct clearly shows that the murder was a deliberate and calculated one.

The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to Section 300 of the Indian Penal Code.

Jury trial—Misdirection—Inadmissible evidence—Failure of Judge to tell the Jury that such evidence was not admissible—It amounts to clear misdirection affecting the verdict of Jury.

Jury trial—Misdirection—Existence of direct evidence—Direction by judge to apply rule of circumstantial evidence—Grave miscarriage of justice affecting the correctness of verdict.

Jury trial—Misdirection—Failure to refer to important document which were read to the Jury at different stages of trial—Failure to put the contents of documents before Jury amounts to clear misdirection affecting the verdict of Jury.

Counsel for the Parties:

M/s. G. S. Pathak and S. G. Patwardhan, Senior Advocates (M/s. Rajni Patel and Porus A. Mehta, Advocates and M/s. J. B. Dadachanji Ravindra Narain and O. C. Mathur, Advocates of M/s. Dadachanji and Co. with them), for Appellant

Mr. M. C. Setalvad, Attorney-General for India (M/s. C. M. Trivedi, vs. H. Gumeshte, B. R. G. K. Achar and R. H. Dhebar, Advocates, with him), for Respondent.

Judgment

Subba Rao, JThis appeal by special leave arises out of the judgment of the Bombay High Court sentencing Nanavati, the appellant, to life imprisonment for the murder of Prem Bhagwandas Ahuja, a businessman of Bombay.

2. This appeal presents the common place problem of an alleged murder by an enraged husband of a paramour of his wife:but it aroused considerable interest in the public mind by reason of the publicity it received and the important constitutional point it had given rise to at the time of its admission.

3. The appellant, was charged under S. 302 as well as under S. 304, Part I, of the Indian Penal Code and was tried by the Sessions Judge, Greater Bombay, with the aid of a special Jury. The jury brought in a verdict of “not guilty” by 8:1 under both the sections ; but the Sessions Judge did not agree with the verdict of the jury, as in his view the majority verdict of the jury was such that no reasonable body of men could, having regard to the evidence, bring in such a verdict. The learned Sessions Judge submitted the case under S. 307 of the Code of Criminal Procedure to the Bombay High Court after recording the grounds for his opinion. The said reference was heard by a division bench of the said High Court consisting of Shelat and Naik, JJ.) – The two learned Judges gave separate judgments, but agreed in holding that the accused was guilty of the offence of murder under S. 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. Shelat, J., having held that there were misdirections to the jury, reviewed the entire evidence and came to the conclusion that the accused was clearly guilty of the offence of murder ; alternatively, he expressed the view that the verdict of the jury was perverse, unreasonable and, in any event, contrary to the weight of evidence. Naik J., preferred to base his conclusion on the alternative ground, namely, that no reasonable body of persons could have come to the conclusion arrived at by the jury. Both the learned Judges agreed that no case had been made out to reduce the offence from murder to culpable homicide not amounting to murder. The present appeal has been preferred against the said conviction and sentence.

4. The case of the prosecution may be stated thus:The accused, at the time of the alleged murder, was second in command of the Indian Naval Ship “Mysore”. ‘He married Sylvia in 1949 in the registry office at Portsmouth, England. They have three children by the marriage, a boy aged 9 1/2 years, a girl aged 5 1/2 years and another boy aged 3 years. Since the time of marriage, the couple were living at different places having regard to the exigencies of service of Nanavati. Finally, they shifted to Bombay. In the same city the deceased Ahuja was doing business in automobiles and was residing along with his sister, in a building called ‘Shreyas” till 1957 and thereafter in another building called “Jivan Jyot” in Setalvad Road. In the year 1956, Agniks, who were common friends of Nanavatis and Ahujas, introduced Ahuja and his sister to Nanavatis. Ahuja was unmarried and was about 34 years of age at the time of his death. Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship leaving his wife and children in Bombay. Gradually, friendship developed between Ahuja and Sylvia, which ‘culminated in illicit intimacy between them. On April 27,1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja. Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja entered his bed room and shot him dead. Thereafter, the accused surrendered himself to the police. He was put under arrest and in due course he was committed to the Sessions for facing a charge under S. 302 of the Indian Penal Code.

5. The defence version, as disclosed in the statement made by the accused before the Sessions Court under S. 342 of the Code of Criminal Procedure and his deposition in the said Court, may be briefly, stated:The accused was away with his ship from April 6, 1959, to April 18, 1959. Immediately after returning to Bombay, he and his wife went to Ahmednagar for about three days in the company of his younger brother and his wife. Thereafter, they returned to Bombay and after a few days his brother and his wife left them. After they had left, the accused noticed that his wife was behaving strangely and was not responsive or affectionate to him. When questioned, she used to evade the issue. At noon on April 27,1959, when they were sitting in the sitting-room for the lunch to be served, the accused put his arm round his wife affectionately, when she seemed to go tense and unresponsive. After lunch, when he questioned her about her fidelity, she shook her head to indicate that she was unfaithful to him. He guessed that her paramour was Ahuja. As she did not even indicate clearly whether Ahuja would marry her and look after the children, he decided to settle the matter with him. Sylvia pleaded with him not to go to Ahuja’s house as he might shoot him. Thereafter, he drove his wife, two of his children and a neighbour’s child in his car to a cinema, dropped them there and promised to come and pick them up at 6 p. m. when the show ended, He then drove his car to his ship, as he wanted to get medicine for his sick dog ; he represented to the authorities in the ship that he wanted to draw a revolver and six rounds from the stores of the ship as he was going to drive alone to Ahmednagar by night, though the real purpose was to shoot himself. On receiving the revolver and six cartridges, and (sic) put it inside a brown envelope. Then he drove his car to Ahuja’s office, and not finding him there, he drove to Ahuja’s flat, rang the door bell, and when it was opened by a servant, walked to Ahuja’s bed-room, went into the bed-room and shut the door behind him. He also carried with him the envelope containing the revolver. The accused saw the deceased inside the bed-room, called him a filthy swine and asked him whether he would marry Sylvia and look after the children. The deceased retorted, “Am I to marry every woman I sleep with?” The accused became enraged, put the envelope containing the revolver on a cabinet nearby, and threatened to thrash the deceased. The deceased made a sudden move to grasp at the envelope, when the accused whipped out his revolver and told him to get back. A struggle ensued between the two and during that struggle two shots went off accidentally and hit Ahuja resulting in his death. After the shooting the accused went back to his car and drove it to the police station where he surrendered himself. This is broadly, omitting the details, the case of the defence.

6. It would be convenient to dispose of at the outset the questions of law raised in this case.

7. Mr. G. S. Pathak, learned counsel for the accused, raised before us the following points ; (1) Under S. 307 of the Code of Criminal Procedure, the High Court should decide whether a reference made by a sessions Judge was competent only on a perusal of the order of reference made to it and it had no jurisdiction to consider the evidence and come to a conclusion whether the reference was competent or not. (2) Under S. 307 (3) of the said Code, the High Court had no power to set aside the verdict of a jury on the ground that there were misdirections in the charge made by the Sessions Judge. (3) There were no misdirections at all in the charge made by the Sessions Judge, and indeed his charge was fair to the prosecution as well as to the accused. (4) The verdict of the jury was not perverse and it was such that a reasonable body of persons could arrive at it on the evidence placed before them. (5) In any view, the accused shot at the deceased under grave and sudden provocation, and therefore even if he had committed an offence, it would not be murder but only culpable homicide not amounting to murder.

8. Mr. Pathak elaborates his point under the first heading thus:Under S. 307 of the Code of Criminal Procedure, the High court deals with the reference in two stages. In the first stage, the High Court has to consider, on the basis of the referring order whether a reasonable body of persons could not have reached the conclusion arrived at by the jury ; and, if it is of the view that such a only could have come to that opinion, the reference shall be rejected as incompetent. At this stage, the High Court cannot travel beyond the order of reference, but shall confine itself only to the reasons given by the Sessions Judge. If, on a consideration of the said reasons, it is of the view that no reasonable body of persons could have come to that conclusion, it will then have to consider the entire evidence to ascertain whether the verdict of the jury is unreasonable. If the High Court holds that the verdict of the jury is not unreasonable, in the case of a verdict of “not guilty”, the High Court acquits the accused, and in the case where the verdict is one of “guilty” it convicts the accused. In case the High Court holds that the verdict of “not guilty”, is unreasonable it refers back the case to the Sessions Judge, who convicts the accused ; thereafter the accused will have a right of appeal wherein he can attack the validity of his conviction on the ground that there were misdirections in the charge to the jury. So too, in the case of a verdict of guilty by the jury, the High Court, if it holds that the verdict is unreasonable, remits the matter to the Sessions Judge, who acquits the accused, and the State, in an appeal against that acquittal, may question the correctness of the said acquittal on the ground that the charge to the jury was vitiated by misdirections. In short, the argument may be put in three propositions, namely, (i) the High Court rejects the reference as incompetent, if on the face of the reference the verdict of the jury does not appear to be unreasonable, (ii) if the reference is competent, the High Court can consider the evidence to come to a definite conclusion whether the verdict is unreasonable or not, and (iii) the High Court has no power under S. 307 of the Code of Criminal Procedure to set aside the verdict of the jury on the ground that it is vitiated by misdirections in the charge to the jury.

9. The question raised turns upon the construction of the relevant provisions of the Code of Criminal Procedure. The said Code contains two fascicule of sections dealing with two different situations. Under S. 268 of the Code, “All trials before a Court of Session shall be either by jury, or by the Judge himself.” Under S. 297 thereof:

“In cases tried by jury, when the case for the defence and the prosecutor’s reply, if any, are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided …………….,..”

Section 298, among others, imposes a duty on a judge to decide all questions of law arising in the course of the trial, and especially all questions as to the relevancy of facts which it is proposed to be proved, and the admissibility of evidence or the propriety of questions asked by or on behalf of the parties. and to decide upon all matters of fact which it is necessary to prove in order to enable evidence of particular matters to be given. It is the duty of the jury,

“to decide which view of the facts is true and then to return the verdict which under such view ought, according to the directions of the Judge, to be returned.”

After the charge to the jury, the jury retire to consider their verdict and, after due consideration, the foreman of the jury informs the Judge what is their verdict or what is the verdict of the majority of the jurors. Where the Judge does not think it necessary to disagree with the verdict of the jurors or of the majority of them he gives judgment accordingly. If the accused is acquitted, the Judge shall record a verdict of acquittal ; if the accused is convicted, the Judge shall pass sentence on him according to law. In the case of conviction, there is a right of appeal under S. 410 of the Code, and in a case of acquittal, under S. 417 of the Code, to the High Court. But S. 418 of the Code provides:

“ (1) An appeal may lie on a matter of fact as well as a matter of law except where the trial was by jury, in which case the appeal shall lie on a matter of law only.”

Sub-section (2) thereof provides for a case of a person sentenced to death, with which we are not now concerned. Section 423 confers certain powers on an appellate Court in the matter of disposing of an appeal, such as calling for the record, hearing of the pleaders, and passing appropriate orders therein. But sub-s. (2) of S. 423 says:

“Nothing herein contained shall authorise the Court to alter or reverse the verdict of the jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.”

It may be noticed at this stage, as it will be relevant in considering one of the arguments raised in this case, that sub-sec. (2) does not confer any power on an appellate court, but only saves the limitation on the jurisdiction of an appellate court imposed under S. 418 of the Code. It is, therefore, clear that in an appeal against conviction or acquittal in a jury trial, the said appeal is confined only to a matter of law.

10. The Code of Criminal Procedure also provides for a different situation. The Sessions Judge may not agree with the verdict of the jurors or the majority of them ; and in that event S. 307 provides for a machinery to meet that situation. As the argument mainly turns upon the interpretation of the provisions of this section, it will be convenient to read the relevant clauses thereof. Section 307: (1) If in any such case the Judge disagrees with the verdict of the jurors, or of a majority of the jurors, on all or any of the charges on which any accused person has been tried, and is clearly of opinion that it is necessary for the ends of justice to submit the case in respect of such accused person to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and, when the verdict is one of acquittal, stating the offence which he considers to have been committed, and in such case, if the accused is further charged under the provisions of Section 310, shall proceed to try him on such charge as if such verdict had been one of conviction.

(3) In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict such accused of any offence which the jury could have convicted him upon the charge framed and placed before it; and, if it convicts him, may pass such sentence as might have been passed by the Court of Session.

This section is a clear departure from the English law. There are good reasons for its enactment. Trial by jury outside the Presidency Towns was first introduced in the Code of Criminal Procedure of 1861, and the verdict of the jury was, subject to re-trial on certain events, final and conclusive. This led to miscarriage of justice through jurors returning erroneous verdicts due to ignorance and inexperience. The working of the system was reviewed in 1872, by a Committee appointed for that purpose and on the basis of the report of the said Committee, S. 262 was introduced in the Code of 1872. Under that section, where there was difference of view between the jurors and the judge, the Judge was empowered to refer the case to the High Court in the ends of justice, and the High Court dealt with the matter as an appeal. But in 1882 the section was amended and under the amended section the condition for reference was that the Court should differ from the jury completely; but in the Code of 1893 (sic) the section was amended practically in terms as it now appears in the code, the history of the legislation shows that the section was intended as a safeguard against erroneous verdicts of inexperienced jurors and also indicates the clear intention of the Legislature to confer on a High Court a separate jurisdiction, which for convenience may be described as “reference jurisdiction”. Section 307 of the Code of Criminal Procedure, while continuing the benefits of the jury system to persons tried by a Court of Session, also guards against any possible injustice, having regard to the conditions obtaining in India. It is, therefore clear that there is an essential difference between the scope of the jurisdiction of the High Court in disposing of an appeal against a conviction or acquittal, as the case may be, in a jury trial, and that in a case submitted by the Sessions Judge when he differs from the verdict of the jury:in the former the acceptance of the verdict of the jury by the Sessions Judge is considered to be sufficient guarantee against its perversity and therefore an appeal is provided only on questions of law , whereas in the latter the absence of such agreement necessitated the conferment of a larger power on the High Court in the matter; of interfering with the verdict of the jury.

11. Under S. 307 (1) of the Code, the obligation cast upon the Sessions Judge to submit the case to the High Court is made subject to two conditions, namely, (1) the Judge shall disagree with the verdict of the jurors, and (2) he is clearly of the opinion that it is necessary in the ends of justice to submit the case to the High Court. If the two conditions are complied with, he shall submit the case, recording the grounds of his opinion. The words “for the ends of justice” are comprehensive, and coupled with the words “is clearly of opinion”, they give the Judge a discretion to enable him to exercise his power under different situations, the only criterion being his clear opinion that the reference is in the ends of justice. But the judicial Committee, in Ramanugrah Singh vs. Emperor, 73 Ind App 174 at pp. 182, 186 construed the words “necessary for the ends of justice” and laid down that the words mean that the Judge shall be of the opinion that the verdict of the jury is one which no reasonable body of men could have reached on the evidence. Having regard to that interpretation, it may be held that the second condition for reference is that the Judge shall be clearly of the opinion that the verdict is one which no reasonable body of men could have reached on the evidence. It follows that if a Judge differs from the jury and is clearly of such an opinion, he shall submit the case to the High Court recording the grounds of his opinion. In that event, the said reference is clearly competent. If, on the other hand, the case submitted to the High Court does not ex facie show that the said two conditions have been complied with by the Judge, it is incompetent. The question of competency of the reference does not depend upon the question whether the Judge is justified in differing from the jury or forming such an opinion on the verdict of the jury. The argument that though the sessions Judge has complied with the conditions necessary for making a reference, the High Court shall reject the reference as incompetent without going into the evidence if the reasons given do not sustain the view expressed by the Sessions Judge, is not supported by the provisions of sub-see. (1) of S. 307 of the Code. But it is said that it is borne out by the decision of the Judicial committee in Ramanugrah Singh’s case (supra). In that cases the judicial Committee relied upon the words “ends of justice” and held that the verdict was one which no reasonable body of men could have reached on the evidence and further laid down that the requirements of the ends of justice must be the determining factor both for the Sessions Judge in making the reference and for the High Court in disposing of it. The Judicial Committee observed:

“In general, if the evidence is such that it can properly support a verdict either of guilty or not guilty, according to the view taken of it by the trial court, and if the jury taken one view of the evidence and the judge thinks that they should have taken the other, the view of the jury must prevail, since they are the judges of fact. In such a case a reference is not justified, and it is only by accepting their view that the High Court can give due weight to the opinion of the jury. If however the High Court considers that on the evidence no reasonable body of men could have reached the conclusion arrived at by and the jury, then the reference was justified and the ends of justice require that the verdict be disregarded.”

The judicial committee proceeded to state:

“In their Lordships opinion had the High Court approached the reference on the right lines and given due weight to the opinion of the jury they would have been bound to hold than the reference was not justified and that the ends of justice did not require any interference with the verdict of the jury” Emphasis is laid on the word “justified’, and it is argued that the High Court should reject the reference as incompetent if the reasons given by the Sessions Judge in the statement of case do not support his view that it is necessary in the ends of justice to refer the case to the High Court. The Judicial Committee does not lay down any such proposition. There, the jury brought in a verdict of “guilty” under S. 302, Indian Penal Code. The Sessions Judge differed from the jury and made a reference to the High Court. The High Court accepted the reference and convicted the accused and sentenced him to transportation for life. The Judicial Committee held, on the facts of that case, that the High Court was not justified in the ends of justice to interfere with the verdict of the jury. They were not dealing with the question of competency of a reference but only with that of the justification of the Sessions Judge in making the reference, and the High Court in accepting it. It was also not considering a case of any disposal of the reference by the High Court on the basis of the reasons given in the reference, but were dealing with a case where the High Court on a consideration of the entire evidence accepted the reference, and the Judicial Committee held on the evidence that there was no justification for the ends of justice to accept it. This decision, therefore, has no bearing on the competency of a reference under S. 307 (1) of the Code of Criminal Procedure.

12. Now, coming to sub-sec. (3) of S. 307 of the Code, it is in two parts. The first part says that the High Court may exercise any of the powers which it may exercise in an appeal. Under the second part, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, the High Court shall acquit or convict the accused. These parts are combined by the expression” and subject thereto”. The words “subject thereto” were added to the section by an amendment in 1896. This expression gave rise to conflict of opinion and it is conceded that it lacks clarity. That may be due to the fact that piecemeal amendments have been made to the section from time to time to meet certain difficulties. But we cannot ignore the expression, but we must give it a reasonable construction consistent with the intention of the Legislature in enacting the said section. Under the second part of the section, special jurisdiction to decide a case referred to it is conferred on the High Court. It also defines the scope of its jurisdiction and its limitations. The High Court can acquit or convict an accused of an offence of which the jury could have convicted him, and also pass such sentence as might have been passed by the Court of Session. But before doing so, it shall consider the entire evidence and give due weight to the opinions of the Sessions Judge and the jury. The second part does not confer on the High Court any incidental procedural powers necessary to exercise the said jurisdiction in a case submitted to it, for it is neither an appeal nor a revision. The procedural powers are conferred on the High Court under the first part. The first part enables the High Court to exercise any of the powers which it may exercise in an appeal, for without such powers it cannot exercise its jurisdiction effectively. But the expression “subject to” indicates that in exercise of its jurisdiction in the manner indicated by the second part, it can call in aid only any of the powers of an appellate court, but cannot invoke a power other than that conferred on an appellate court. The limitation on the second part implied in the expression “subject thereto” must be confined to the area of the procedural powers conferred on an appellate court. If that be the construction, the question arises, how to reconcile the provisions of S. 423 (2) with those of S. 307 of the Code ? Under sub-sec. (2) of S. 423:

“Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.”

It may be argued that, as an appellate court cannot alter or reverse the verdict of a jury unless such a verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him, the High Court, in exercise of its jurisdiction under S. 307 of the Code, likewise could not do so except for the said reasons. Sub-section (1) of S. 423 of the Code does not confer any power on the High Court; it only restates the scope of the limited jurisdiction conferred on the court under S. 418 of the Code, and that could not have any application to the special jurisdiction conferred on the High Court under S. 307. That apart, a perusal of the provisions of S. 423 (1) indicates that there are powers conferred on an appellate court which cannot possibly be exercised by courts disposing of a reference under S. 307 of the Code, namely, the power to order commitment etc. Further S. 423 (1) (a) and (b) speak of conviction, acquittal, finding and sentence which are wholly inappropriate to verdict of a jury. Therefore, a reasonable construction will be that the High Court can exercise any of the powers conferred on an appellate court under S. 423 or under other sections of the Code which are appropriate to the disposal of a reference under S. 307. The object is to prevent miscarriage of justice by the jurors returning erroneous or perverse verdict. The opposite construction defeats this purpose, for it equates the jurisdiction conferred under S. 307 with that of an appellate court in a jury trial. That construction would enable the High Court to correct an erroneous verdict of a jury, only in a case of misdirection by the Judge but not in a case of fair and good charge. This result effaces the distinction between the two types of jurisdiction. Indeed, learned counsel for the appellant has taken a contrary position. He would say that the High Court under S. 307 (3) could not interfere with the verdict of the jury on the ground that there were misdirections in the charge to the jury. This argument is built upon the hypothesis that under the Code of Criminal Procedure there is a clear demarcation of the functions of the jury and the judge, the jury dealing with facts and the judge with law, and therefore the High Court could set aside a verdict on the ground of misdirection only when an appeal comes to it under S. 418 and could only interfere with the verdict of the jury for the ends of justice, as interpreted by the Privy Council, when the matter comes to it under S. 307 (3). If this interpretation be accepted, we would be attributing to the Legislature an intention to introduce a circuitous method and confusion in the disposal of criminal cases. The following illustration will demonstrate the illogical result of the argument. The jury brings in a verdict of “not guilty” on the basis of a charge replete with misdirections; the Judge disagrees with that verdict and states the case to the High Court; the High Court holds that the said verdict is not erroneous on the basis of the charge, but is of the opinion that the verdict is erroneous because of the misdirections in the charge; even so, it shall hold that the verdict of the jury is good and reject the reference; thereafter, the Judge has to accept the verdict and acquit the accused; the prosecution then will have to prefer an appeal under S. 417 of the Code on the ground that the verdict was induced by the misdirections in the charge. This could not have been the intention of the Legislature. Take the converse case. On similar facts, the jury brings in a verdict of “guilty”; the Judge disagrees with the jury and makes a reference to the High Court; even though it finds misdirections in the charge to the jury, the High Court cannot set aside the conviction but must reject the reference; and after the conviction, the accused may prefer an appeal to the High Court. This procedure will introduce confusion in jury trials, introduce multiplicity of proceedings, and attribute ineptitude to the Legislature. What is more, this construction is not supported by the express provisions of S. 307 (3) of the Code. The said sub-section enables the High Court to consider the entire evidence, to give due weight to the opinions of the Sessions Judge and the jury, and to acquit or convict the accused. The key words in the sub-section are “giving due weight to the opinions of the Sessions Judge and the jury”. The High Court shall give weight to the verdict of the jury; but the weight to be given to a verdict depends upon many circumstances—it may be one that no reasonable body of persons could come to; it may be a perverse verdict; it may be a divided verdict and may not carry the same weight as the united one does; it may be vitiated by misdirections or non-directions. How can a Judge give any weight to a verdict if it is induced and vitiated by grave misdirections in the charge? That apart the High Court has to give due weight to the opinion of the Sessions Judge. The reasons for the opinion of the Sessions Judge are disclosed in the case submitted by him to the High Court. If the case stated by the Sessions Judge discloses that there must have been misdirections in the charge, how can the High Court ignore them in giving due weight to his opinion? What is more, the jurisdiction of the High Court is couched in very wide terms in sub-sec. (3) of S. 307 of the Code:it can acquit or convict an accused. It shall take into consideration the entire evidence in the case; it shall give due weight to the opinions of the Judge and the jury; it combines in itself the functions of the Judge and jury; and it is entitled to come to its independent opinion. The phraseology used does not admit of an expressed or implied limitation on the jurisdiction of the High Court.

13. It appears to us that the Legislature designedly conferred a larger power on the High Court under S. 307 (3) of the Code than that conferred under S. 418 thereof, as in the former case the Sessions Judge differs from the jury while in the latter he agrees with the jury.

14. The decisions cited at the Bar do not in any way sustain the narrow construction sought to be placed by learned counsel on S. 307 of the Code. In Ramanugrah Singh’s case (supra) which has been referred to earlier, the Judicial Committee described the wide amplitude of the power of the High Court in the following terms:

“The Court must consider the whole case and give true weight to the opinions of the Sessions Judge and jury, and then acquit or convict the accused”.

The Judicial Committee took care to observe:

“. . . . . .. the test of reasonableness on the part of the jury may not be conclusive in every case. It is possible to suppose a case in which the verdict was justified on the evidence placed before the jury, but in the light of further evidence placed before the High Court the verdict is shown to be wrong. In such a case the ends of justice would require the verdict to be set aside though the jury had not acted unreasonably.”

This passage indicates that the Judicial Committee did not purport to lay down exhaustively the circumstances under which the High Court could interfere under the said sub-section with the verdict of the jury. This Court in Akhlakali Hayatalli vs. State of Bombay, (1954) SCR 435 at p. 438 accepted the view of the Judicial Committee on the construction of S. 307 of the Code of Criminal Procedure, and applied it to the facts of that case. But the following passage of this Court indicates that it also does not consider the test of reasonableness as the only guide in interfering with the verdict of the jury:

“The charge was not attacked before the High Court nor before us as containing any misdirections or non-directions to the jury such as to vitiate the verdict.”

This passage recognizes the possibility of interference by the High Court with the verdict of the jury under the said sub-section if the verdict is vitiated by misdirections or non-directions. So too, the decision of this Court in Ramyed Rai vs. State of Bihar, (1957) SCR 273; ( (S) AIR 1957 SC 373) assumes that such an interference is permissible if the verdict of the jury was vitiated by misdirections. In that case, the appellants were charged under Ss. 435 and 436 of the Indian Penal Code and were tried by a jury, who returned a majority verdict of “guilty”. The Assistant Sessions Judge disagreed with the said verdict and made a reference to the High Court. At the hearing of the reference the counsel for the appellants contended that the charge to the jury was defective, and did not place the entire evidence before the Judges. The learned Judges of the High Court considered the objections as such and nothing more, and found the appellants guilty and convicted them. This Court, observing that it was incumbent on the High Court to consider the entire evidence and the charge as framed and placed before the jury and to come to its own conclusion whether the evidence was such that it could properly support the verdict of guilty against the appellants, allowed the appeal and remanded the matter to the High Court for disposal in accordance with the provisions of S, 307 of the Code of Criminal Procedure. This decision also assumes that a High Court could under S. 307 (3) of the Code of Criminal Procedure interfere with the verdict of the jury, if there are misdirections in the charge and holds that in such a case it is incumbent on the court to consider the entire evidence and to come to its own conclusion, after giving due weight to the opinions of the Sessions Judge, and the verdict of the jury. This Court again in Sashi Mohan Debnath vs. State of West Bengal, (1958) SCR 960 held that where the Sessions Judge disagreed with the verdict of the jury and was of the opinion that the case should be submitted to the High Court, he should submit the whole case and not a part of it, There, the jury returned a verdict of “guilty” in respect of some charges and “not guilty” in respect of others. But the Sessions Judge recorded his judgment of acquittal in respect of the latter charges in agreement with the jury and referred the case to the High Court only in respect of the former. This Court held that the said procedure violated subsec. (2) of S. 307 the Code of Criminal Procedure and also had the effect of preventing the High Court from considering the entire evidence against the accused and exercising its jurisdiction under sub-see, (3) of S, 307 of the said Code. Imam, J., observed that the reference in that case was incompetent and that the High Court could not proceed to exercise any of the powers conferred upon it under sub-see. (3) of S. 307 of the Code, because the very foundation of the exercise of that power was lacking, the reference being incompetent. This Court held that the reference was incompetent because the Sessions Judge contravened the express. provisions of sub -sec. (2) of S. 307 of the Code, for under that sub-section whenever a Judge submits a case under that section, he shall not record judgment of acquittal or of conviction on any of the charges on which such accused has been tried, but he may either remand such accused to custody or admit him to bail. As in that case the reference was made in contravention of the express provisions of sub-see. (2) of S. 307 of the Code and therefore the use of the word ‘incompetent’ may not be inappropriate. The decision of a division bench of the Patna High Court in Emperor vs. Ramadhar Kurmi AIR 1948 Pat 79 at p. 84 may usefully be referred to as it throws some light on the question whether the High Court can interfere with the verdict of the jury when it is vitiated by serious misdirections and non-directions. Das, J., observed:

“Where, however, there is misdirection the principle embodied in S. 587 would apply and if the verdict is erroneous owing to the misdirection, it can have no weight on a reference under S, 307 as on an appeal.” It is not necessary to multiply decisions. The’ foregoing discussion may be summarised in the form of the following propositions: (1) The competency of a reference made by a Sessions Judge depends upon the existence of two conditions, namely, (i) that he disagrees with the verdict of the jurors, and (ii) that he is clearly of the opinion that the verdict is one which no reasonable body of men could have reached on the evidence; after reaching that opinion, in the case submitted by him he shall record the grounds of his opinion. (2) If the case submitted shows that the conditions have not-been complied with or that the reasons for the opinion are not recorded, the High Court may reject the reference as incompetent:the High Court can also reject it if the Sessions Judge, has contravened sub-s. (2) of S. 307. (3) If the case submitted shows that the Sessions Judge has disagreed with the verdict of the jury and that he is clearly of the opinion that no reasonable body of men could have reached the conclusion arrived at by the jury, and he discloses his reasons for the opinion, sub-sec. (3) of S. 307 of the Code comes into play, and thereafter the High Court has an obligation to discharge its duty imposed thereunder. (4) Under sub-see. (3) of S. 307 of the Code the High Court has to consider the entire evidence and, after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused. (5) The High Court may deal with the reference in two ways, namely, (i) if there are mis-directions vitiating the verdict, it may, after going into the entire evidence, disregard the verdict of the jury and come to its own conclusion, and (ii) even if there are no misdirections, the High Court can interfere with the verdict of the jury if it finds the verdict “perverse in the sense of being unreasonable”, “manifestly wrong”, or “against the weight of evidence’, or, in other words, if the verdict is such that no reasonable body of men could have reached on the evidence (6) In the disposal of the said reference, the High Court can exercise any of the procedural powers appropriate to the occasion, such as issuing of notice, calling for records, remanding the case, ordering a retrial, etc. We, therefore, reject the first contention of learned counsel for the appellant. 15. The next question is whether the High Court was right in holding that there were misdirections in the charge to the jury. Misdirection is something which a judge in his charge tells the jury and is wrong or in a wrong manner tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But, in either case, every misdirection or non-direction is not in itself sufficient to set aside a verdict, but it must be such that it has occasioned a failure of justice.

16. In Mushak Hussein vs. State of Bombay, (1953) SCR 809 this Court laid down ;

“Unless therefore it is established in a case that there has been a serious misdirection by the judge, in charging the jury which has occasioned a failure of justice and has misled the jury in giving its verdict, the verdict of the jury cannot be set aside.” This view has been restated by this Court in a recent decision viz., Nagindra Bala Mitra. vs. Sunil Chandra Roy, (1960) 3 SCR 1.

17. The High Court in its judgment referred to as many as six misdirections in the charge to the jury, which in its view vitiated the verdict, and it also stated that there were many others. Learned counsel for the appellant had taken each of the said alleged misdirections and attempted to demonstrate that they were either no misdirections at all, or, even if they were, they did not in any way affect the correctness of the verdict.

18. We shall now take the first and the third misdirections pointed out by Shelat, J. as they are intimately connected with each other. They are really omissions. The first omission is that throughout the entire charge there is no reference to S. 105 of the Evidence Act or to the statutory presumption laid down in that section. The second omission is that the Sessions Judge failed to explain to the jury the legal ingredients of S. 80 of the I.P.C:, and also failed to direct them that in law the said section was not applicable to the facts of the case. To appreciate the scope of the alleged omissions, it is necessary to read the relevant provisions. Section 80 of the Indian Penal Code.

“Nothing is an offence which is done by accident or misfortune, and without any Criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.”

Evidence Act.

Section 103:The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person,”

Section 105:”When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of1860) or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.”

Section 3:”In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context ;-

A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist,”

Section 4:, . . . . .. . . . . . . . . . … ….. “Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved,”

The legal impact of the said provisions on the question of burden of proof may be stated thus:In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, S. 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration based on the facts of the present case may bring out the meaning of the said provision. The prosecution alleges that the accused intentionally shot the deceased ; but the accused pleads that, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in the course of a struggle in the circumstances mentioned in S. 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume the absence of circumstances bringing the case within the provisions of S. 80 of the Indian Penal Code, that is, it shall presume that the shooting was not by accident, and that the other circumstances bringing the case within the exception did not exist; but this presumption may be rebutted by the accused by adducing evidence to support his plea of accident in the circumstances mentioned therein, This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged:that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under S.105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations ; (I) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (see Ss. 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see Ss. 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence ; (see S. 80 of the Indian Penal Code), In the first case the burden of the proving the ingredients or some of the ingredients of the offence, as the case may be, lies on the accused. In the second case, the burden of bringing the case under the exception lies on the accused, In the third case, though the burden lies on the accused to bring his case within the exception the facts proved may not discharge the said burden, but may affect the proof of the ingredients of the offence. An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of S, 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution:the accused against whom a presumption is drawn under S. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in S. 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of S. 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e., it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of S. 300, Indian Penal Code or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed to establish to bring his case within the terms of S. 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence:indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence.

19. The English decisions relied upon by Mr. Pathak, learned counsel for the accused, may not be of much help in construing the provisions of S. 105 of the Indian Evidence Act. We would, therefore, prefer not to refer to them, except to one of the leading decisions on the subject, namely, Wolmington vs. Diretor of Public Prosecutions 1935 AC 462 at p. 481. The headnote in that decision gives its gist, and it reads:

“In a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner. When evidence of death and malice has been given, the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.”

In the course of the judgment Viscount Sankey. L. C., speaking for the House, made the following observations:

“But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt ; he is not bound to satisfy the jury of his innocence . . . . . . . . . . . . . . . .. . . . . . Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.”

These passages are not in conflict with the opinion expressed by us earlier. As in England so in India, the prosecution must prove the guilt of the accused, i.e. it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused committed the offence, he is entitled to the benefit of doubt. In India if an accused pleads an exception within the meaning of S. 80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision similar to S. 80 of the Indian Penal Code, but Viscount Sankey, L.C., makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rule of burden of proof. Such an exception we find in S. 105 of the Indian Evidence Act. Reliance is placed by learned counsel for the accused on the decision of the Privy Council in Attygalle vs. The King, AIR 1936 PC 169 at p. 170 in support of the contention that notwithstanding S. 105 of the Evidence Act, the burden of establishing the absence of accident within the meaning of S. 80 of the Indian Penal Code is on the prosecution. In that case, two persons were prosecuted, one for performing an illegal operation and the other for abetting him in that crime. Under S. 106 of the Ordinance 14 of 1895 in the Ceylon Code, which corresponds to S. 106 of the Indian Evidence Act, it was enacted that when any fact was especially within the knowledge of any person, the burden of proving that fact was upon him. Relying upon that section, the Judge in his charge to the jury said:.

“Miss Maye – that is the person upon whom the operation was alleged to have been performed -was unconscious and what took place in that room that three-quarters of an hour that she was under chloroform is a fact specially within the knowledge of these two accused who were there. The burden of proving that fact, the law says, is upon him, namely that no criminal operation look place but what took place was this and this speculum examination.”

The Judicial Committee pointed out:

“It is not the law of Ceylon that the burden is cast upon an accused person of proving that no crime has been committed. The jury might well have thought from the passage just quoted that that was in fact a burden which the accused person had to discharge. The summing-up goes on to explain the presumption of innocence in favour of accused persons, but it again reiterates that the burden of proving that no criminal operation took place is on the two accused who were there.”

The said observations do not support the contention of learned counsel. Section 106 of Ordinance 14 of 1895 of the Ceylon Code did not cast upon the accused a burden to prove that he had not committed any crime ; nor did it deal with any exception similar to that provided under S. 80 of the Indian Penal Code. It has no bearing on the construction of S. 105 of the Indian Evidence Act. The decisions of this Court in State of Madras vs. A. Vaidyanatha Iyer (1958) SCR 580, which deals with S. 4 of the Prevention of Corruption Act, 1947, and C. S. D. Swamy vs. The State (1960) 1 SCR 461, which considers the scope of S. 5 (3) of the said Act are examples of a statute throwing the burden of proving and even of establishing some of the ingredients of the offence on the accused; and this Court held that notwithstanding the general burden on the prosecution to prove the offence, the burden of proving the absence of the ingredients of the offence under certain circumstances was on the accused. Further citations are unnecessary as, in our view, the terms of S. 105 of the Evidence Act are clear and unambiguous.

20. Mr. Pathak contends that the accused did not rely upon any exception within the meaning of S. 80 of the Indian Penal Code and that his plea all through has been only that the prosecution has failed to establish intentional killing on his part. Alternatively, he argues that as the entire evidence has been adduced both by the prosecution and by the accused, the burden of proof became only academic and the jury was in a position to come to one conclusion or other on the evidence irrespective of the burden of proof. Before the Sessions Judge the accused certainly relied upon S. 80 of the Indian Penal Code, and the Sessions Judge dealt with the defence case in his charge to the jury. In paragraph 6 of the charge, the learned Sessions Judge stated:

“Before I proceed further I have to point out another section which is S. 80. You know by now that the defence of the accused is that the firing of the revolver was a matter of accident during a struggle for possession of the revolver. A struggle or a fight by itself does not exempt a person. It is the accident which exempts a person from criminal liability because there may be a fight, there may be a struggle and in the fight and in the struggle the assailant may overpower the victim and kill the deceased so that a struggle or a fight by itself does not exempt an assailant. It is only an accident, whether it is in struggle or a fight or otherwise which can exempt an assailant. It is only an accident, whether it is in a struggle or a fight or otherwise which can exempt a prisoner from criminal liability. I shall draw your attention to S. 80 which says:. . . . . . . . . (S. 80 read). You know that there are several provisions which are to be satisfied before the benefit of this exception can be claimed by an accused person and it should be that the act itself must be an accident or misfortune, there should be no criminal intention or knowledge in the doing of that act, that act itself must be done in a lawful manner and it must be done by lawful means and further in doing of it, you must do it with proper care and caution. In this connection, therefore, even while considering the case of accident, you will have to consider all the factors, which might emerge from the evidence before you, whether it was proper care and caution to take a loaded revolver without a safety catch to the residence of the person with whom you were going to talk and if you do not get an honourable answer you were prepared to thrash him. You have also to consider this further circumstance whether it is an act with proper care and caution to keep that loaded revolver in the hand and thereafter put it aside, whether that is taking proper care and caution. This is again a question of fact and you have to determine as judges of fact, whether the act of the accused in this case can be said to be an act which was lawfully done in a lawful manner and with proper care and caution. If it is so, then and only then can you call it accident or misfortune. This is a section which you will bear in mind when you consider the evidence in this case.”

In this paragraph the learned Sessions Judge mixed up the ingredients of the offence with those of the exception. He did not place before the jury the distinction in the matter of burden of proof between the ingredients of the offence and those of the exception. He did not tell the jury that where the accused relied upon the exception embodied in S. 80 of the Indian Penal Code, there was a statutory presumption against him and the burden of proof was on him to rebut that presumption. What is more, he told the jury that it was for them to decide whether the act of the accused in the case could be said to be an act which was lawfully done in a lawful manner with proper care and caution. This was in effect abdicating his functions in favour of the jury. He should have explained to them the implications of the terms “lawful act”, “lawful manner”, “lawful means” and “with proper care and caution” and pointed out to them the application of the said legal terminology to the acts of the case. On such a charge as in the present case, it was not possible for the jury, who were laymen, to know the exact scope of the defence and also the circumstances under which the plea under S. 80 of the Indian Penal Code was made out. They would not have also known that if S. 80 of the Indian Penal Code applied, there was a presumption against the accused and the burden of proof to rebut the presumption was on him. In such circumstances, we cannot predicate that the jury understood the legal implications of S. 80 of the Indian Penal Code and the scope of the burden of proof under S. 105 of the Evidence Act, and gave their verdict correctly. Nor can we say that the jury understood the distinction between the ingredients of the offence and the circumstances that attract S.80 of the Indian Penal Code and the impact of the proof of some of the said circumstances on the proof of the ingredients of the offence. The said omissions therefore are very grave omissions which certainly vitiated the verdict of the jury.

21. The next misdirection relates to the question of grave and sudden provocation. On this question, Shelat, J., made the following remarks:

“Thus the question whether a confession of adultery by the wife of the accused to him amounts to grave and sudden provocation or not was a question of law. In my view, the learned Sessions Judge was in error in telling the jury that the entire question was one of fact for them to decide. It was for the learned Judge to decide as a question of law whether the sudden confession by the wife of the accused amounted to grave and sudden provocation as against the deceased Ahuja which on the authorities referred to hereinabove it was not. He was therefore in error in placing this alternative case to the jury for their determination instead of deciding it himself.” The misdirection according to the learned Judge was that the Sessions Judge in his charge did not tell the jury that the sudden confession of the wife to the accused did not in law amount to sudden and grave provocation by the deceased, and instead he left the entire question to be decided by the jury. The learned judge relied upon certain English decisions and textbooks in support of his conclusion that the said question was one of law and that it was for the Judge to express his view thereon. Mr. Pathak contends that there is an essential difference between the law of England and that of India in the matter of the charge to the jury in respect of grave and sudden provocation. The House of Lords in Holmes vs. Director of Public Prosecution, 1946 AC 588 at p. 597 laid down the law in England thus:

“If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of selfcontrol, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict.”

Viscount Simon brought out the distinction between the respective duties of the judge and the jury succinctly by formulating the following questions:

“The distinction, therefore, is between asking ‘Could the evidence support the view that the provocation was sufficient to lead a reasonable person to do what the accused did ?’ (which is for the judge to rule), and, assuming that the judges ruling is in the affirmative, asking the jury:’Do you consider that, on the facts as you find them from the evidence, the provocation was in fact enough to lead a reasonable person to do what the accused did ?’ and, if so, ‘Did the accused act under the stress of such provocation ?”

So far as England is concerned the judgment of the House of Lords is the last word on the subject till it is statutorily changed or modified by the House of Lords. It is not, therefore, necessary to consider the opinions of learned authors on the subject cited before us to show that the said observations did not receive their approval.

22. But Mr. Pathak contends that whatever might be the law in England, in India we are governed by the statutory provisions, and that under the explanation to Exception I to S. 300 of the I. P. C., the question whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is one of fact, and therefore, unlike in England, in India both the aforesaid questions fall entirely within the scope of the jury and they are for them to decide. To put it in other words, whether a reasonable person in the circumstances of a particular case committed the offence under provocation which was grave and sudden is a question of fact for the jury to decide. There is force in this argument, but it is not necessary to express our final opinion thereon, as the learned Attorney-General has conceded that there was no misdirection in regard to this matter.

23. The fourth misdirection found by the High Court is that the learned Sessions Judge told the jury that the prosecution relied on the circumstantial evidence and asked them to apply the stringent rule of burden of proof applicable to such cases, whereas in fact there was direct evidence of Puransingh in the shape of extra-judicial confession. In paragraph 8 of the charge the Sessions Judge said:

“In this case the prosecution relies on what is called circumstantial evidence that is to say there is no witness who can say that he saw the accused actually shooting and killing deceased. There are no direct witnesses, direct witnesses as they are called, of the event in question. Prosecution relies on certain circumstances from which they ask you to deduce an inference that it must be the accused and only the accused who must have committed this crime. That is called circumstantial evidence. It is not that prosecution cannot rely on circumstantial evidence because it is not always the case or generally the case that people who go out to commit crime will also take witnesses with them. So that it may be that in some cases the prosecution may have to rely on circumstantial evidence. Now when you are dealing with circumstantial evidence you will, bear in mind certain principles, namely, that the facts on which the prosecution relies must be fully established. They must be fully and firmly established. These facts must lead to one conclusion and one only namely the guilt of the accused and lastly it must exclude all reasonable hypothesis consistent with the innocence of the accused, all reasonable hypothesis consistent with the innocence of the accused should be excluded. In other words you must come to the conclusion by all the human probability, it must be the accused and the accused only who must have committed this crime. That is the standard of proof in a case resting on circumstantial evidence.”

Again in paragraph 11 the learned Sessions Judge observed that the jury were dealing with circumstantial evidence and graphically stated ;

“It is like this, take a word, split it up into letters, the letters may individually mean nothing but when they are combined they will form a word pregnant with meaning. That is the way how you have to consider the circumstantial evidence. You have to take all the circumstances together and judge for yourself whether the prosecution have established their case.”

In paragraph 18 of the charge, the learned Sessions Judge dealt with the evidence of Puransingh separately and told the jury that if his evidence was believed, it was one of the best forms of evidence against the man who made the admission and that if they accepted that evidence, then the story of the defence that it was an accident would become untenable. Finally he summarized all the circumstances on which the prosecution relied in paragraph 34 and one of the circumstances mentioned was the extra-judicial confession made to Puransingh. In that paragraph the learned Sessions Judge observed as follows:

“I will now summarize the circumstances on which the prosecution relies in this case. Consider whether the circumstances are established beyond all reasonable doubt. In this case you are dealing with circumstantial evidence and therefore consider whether they are fully and firmly established and consider whether they lead to one conclusion and only one conclusion that it is the accused alone who must have shot the deceased and further consider that it leaves no room for any reasonable hypothesis consistent with the innocence of the accused regard being had to all the circumstances in the case and the conclusion that you have to come to should be of this nature and by all human probability it must be the accused and the accused alone who must have committed this crime.”

Finally the learned Sessions Judge told them:

“If on the other hand you think that the circumstances on which the prosecution relies are fully and firmly established, that they lead to one and the only conclusion and one only, of the guilt of the accused and that they exclude all reasonable hypothesis of the innocence of the accused then and in that case it will be your duty which you are bound by the oath to bring verdict accordingly without any fear or any favour and without regard being had to any consequence that this verdict might lead to.”

Mr. Pathak contends that the learned Sessions Judge dealt with the evidence in two parts, in one part he explained to the jury the well settled rule of approach to circumstantial evidence, whereas in another part he clearly and definitely pointed to the jury the great evidentiary value of the extra-judicial confession of guilt by the accused made to Puransingh, if that was believed by them. He, therefore, argues that there was no scope for any confusion in the minds of the jurors in regard to their approach to the evidence or in regard to the evidentiary value of the extra-judicial confession. The argument proceeds that even if there was a misdirection it was not such as to vitiate the verdict of the jury. It is not possible to accept this argument. We have got to look at the question from the standpoint of the possible effect of the said misdirection in the charge on the jury, who are laymen. In more than one place the learned Sessions Judge pointed out that the case depended upon circumstantial evidence and that the jury should apply the rule of circumstantial evidence settled by decisions. Though at one place he emphasized upon the evidentiary value of a confession, he later on included that confession also as one of the circumstances and again directed the jury to apply the rule of circumstantial evidence. It is not disputed that the extrajudicial confession made to Puransingh is direct piece of evidence and that the stringent rule of approach to circumstantial evidence does not apply to it. If that confession was true, it cannot be disputed that the approach of the jury to the evidence would be different from that if that was excluded. It is not possible to predicate that the jury did not accept that confession and therefore applied the rule of circumstantial evidence. It may well have been that the jury accepted it and still were guided by the rule of circumstantial evidence as pointed out by the learned Sessions judge. In these circumstances we must hold agreeing with the High Court, that this is a grave misdirection affecting the correctness of the verdict.

24. The next misdirection relied upon by the High Court is the circumstance that the three letters written by Sylvia were not read to the jury by the learned Sessions Judge in his charge, and that the jury were not told of their effect on the credibility of the evidence of Sylvia and Nanavati. Shelat, J., observed in regard to this circumstance thus ;

“It cannot be gainsaid that these letters were important documents disclosing the state of mind of Mrs. Nanavati and the deceased to a certain extent. If these letters had been read in juxtaposition of Mrs. Nanavati’s evidence they would have shown that her statement that she felt that Ahuja had asked her not to see him for a month or the purpose of backing out of the intended marriage was not correct and that they had agreed not to see each other for the purpose giving her and also to him an opportunity to coolly think out the implications of such a marriage and then to make up her own mind on her own. The letters would also show that when the accused asked her, as he said in his evidence, whether Ahuja would marry her, it was not probable that she would fence that question. On the other hand, she would, in all probability, have told him that they had already decided to many. In my view, the omission to refer even once to these letters in the charge especially in view of Mrs. Nanavati’s evidence was a non-direction amounting to misdirection.”

Mr. Pathak contends that these letters were read to the jury by counsel on both sides and a reference was also made to them in the evidence of Sylvia and, therefore, the jury clearly knew the contents of the letters, and that in the circumstances the non-mention of the contents of the letters by the Sessions Judge was not a misdirection and even if it was it did not affect the verdict of the jury. In this context reliance is placed upon two English decisions, namely, R. vs. Roberts, 1942-1 All ER 187 at p. 190 and R. vs. Attfield, 1961-3 All ER 243. In the former case the appellant was prosecuted for the murder of a girl by shooting her with a service rifle and he pleaded accident as his defence. The judge in his summing-up, among other defects, omitted to refer to the evidence of certain witnesses; the jury returned a verdict of “guilty” on the charge of murder and it was accepted by the judge; it was contended that the omission to refer to the evidence of certain witnesses was a misdirection. Rejecting that plea, Humphreys, J., observed:

“The jury had the statements before them. They had the whole of the evidence before them, and they had, just before the summing up, comments upon those matters from counsel for the defence, and from counsel for the prosecution, it is incredible that they could have forgotten them or that they could have misunderstood the matter in any way, or thought, by reason of the fact that the judge did not think it necessary to refer to them, that they were not to pay attention to them. We do not think there is anything in that point at all. A judge, in summing-up, is not obliged to refer to every witness in the case, unless he thinks it necessary to do so. In saying this, the court is by no means saying that it might not have been more satisfactory if the judge had referred to the evidence of the two witnesses, seeing that he did not think it necessary to refer to some of the statements made by the accused after the occurrence. No doubt it would have been more satisfactory from the point of view of the accused. All we are saying is that we are satisfied that there was no misdirection in law on the part of the judge in omitting those statements, and it was within his discretion.”

This passage does not lay down as a proposition of law that however important certain documents or pieces of evidence may be from the standpoint of the accused or the prosecution, the judge need not refer to or explain them in his summing-up to the jury, and, if he did not, it would not amount to misdirection under any circumstances. In that case some statements made by witnesses were not specifically brought to the notice of the jury and the court held in the circumstances of that case that there was no misdirection. In the latter case the facts were simple and the evidence was short; the judge summed up the case directing the jury as to the law but did not deal with the evidence except in regard to the appellant’s character. The jury convicted the appellant. The court held that, “although in a complicated and lengthy case it was incumbent on the court to deal with the evidence in summing-up, yet where, as in the present case, the issues could be simply and clearly stated, it was not fatal defect for the evidence not to be reviewed in the summing-up.” This is also a decision on the facts of that case. That apart, we are not concerned with a simple case here but with a complicated one. This decision does not help us in deciding the point raised. Whether a particular omission by a judge to place before the jury certain evidence amounts to a misdirection or not falls to be decided on the facts of each case.

25. These letters show the exact position of Sylvia in the context of her intended marriage with Ahuja, and help to test the truthfulness or otherwise of some of the assertions made by her to Nanavati. A perusal of these letters indicates that Sylvia and Ahuja were on intimate terms, that Ahuja was willing to marry her, that they had made up their minds to marry, but agreed to keep apart for a month to consider coolly whether they really wanted to marry in view of the serious consequences involved in taking such a step. Both Nanavati and Sylvia gave evidence giving an impression that Ahuja was backing out of his promise to marry Sylvia and that was the main reason for Nanavati going to Ahuja’s flat for an explanation. If the Judge had read these letters in his charge and explained the implication of the contents thereof in relation to the evidence given by Nanavati and Sylvia, it would not have been possible to predicate whether the jury would have believed the evidence of Nanavati and Sylvia. If the marriage between them was a settled affair and if the only obstruction in the way was Nanavati, and if Nanavati had expressed his willingness to be out of the way and even to help them to marry, their evidence that Sylvia did not answer the direct question about the intentions of Ahuja to marry her, and the evidence of Nanavati that it became necessary for him to go to Ahuja’s flat to ascertain the latter’s intentions might not have been believed by the jury. It is no answer to say that the letters were read to the jury at different stages of the trial or that they might have read the letters themselves, for in a jury trial, especially where innumerable documents are filed, it is difficult for a lay jury, unless property directed, to realise the relative importance of specified documents in the context of different aspects of a case. That is why the Code of Criminal Procedure, under S. 297 thereof, imposes a duty on the Sessions Judge to charge the jury after the entire evidence is given and after counsel appearing for the accused and counsel appearing for the prosecution have addressed them. The object of the charge to the jury by the Judge is clearly to enable him to explain the law and also to place before them the facts and circumstances of the case both for and against the prosecution in order to help them in arriving at a right decision. The fact that the letters were read to the jury by the prosecution or by the counsel for the defence is not of much relevance, for they would place the evidence before the jury from different angles to induce them to accept their respective versions. That fact in itself cannot absolve the judge from his clear duty to put the contents of the letters before the jury from the correct perspective. We are in agreement with the High Court that this was a clear misdirection which might have affected the verdict of the jury.

26. The next defect pointed out by the High Court is that the Sessions Judge allowed the counsel for the accused to elicit from, the police officer, Phansalkar, what Puransingh is alleged to have stated to him orally, in order to contradict the evidence of Puransingh in the court, and the judge also dealt with the evidence so elicited in paragraph 18 of his charge to the jury. This contention cannot be fully appreciated unless some relevant facts are stated. Puransingh was examined for the prosecution as P. W. 12. He was a watchman of “Jivan Jyot”. He deposed that when the accused was leaving the compound of the said building, he asked him why he had killed Ahuja, and the accused told him that he had a quarrel with Ahuja as the latter had “connections” with his wife and therefore he killed him. At about 5-5 p.m. on April 27, 1959, this witness reported this incident to Gamdevi Police Station. On that day Phansalkar (P.W. 13) was the Station House Duty Officer of that station from 2 to 8. p.m. On the basis of the statement of Puransingh, Phansalkar went in a jeep with Puransingh to the place of the alleged offence. Puransingh said in his evidence that he told Phansalkar in the jeep what the accused had told him when he was leaving the compound of “Jivan Jyot”. After reaching the place of the alleged offence, Phansalkar learnt from a doctor that Ahuja was dead and he also made enquiries from Miss Mammie, the sister of the deceased. He did not record the statement made by Puransingh. But later on between 10 and 10-30 p.m. on the same day, Phansalkar made a statement to Inspector Mokashi what Puransingh had told him and that statement was recorded by Mokashi. In the statement taken by Mokashi it was not recorded that Puransingh told Phansalkar that the accused told him why he had killed Ahuja. When Phansalkar was in the witness-box, to a question put to him in cross-examination he answered that Puransingh did not tell him that he had asked Nanavati why he killed Ahuja and that the accused replied that he had a quarrel with the deceased as the latter had “connections” with his wife and that he had killed him. The learned Sessions Judge not only allowed the evidence to go in but also, in paragraph 18 of his charge to the jury, referred to that statement. After giving the summary of the evidence given by Puransingh, the learned Sessions Judge proceeded to state in his charge to the jury:

“Now the conversation between him and Phansalkar (Sub-Inspector) was brought on record in which what the chowkidar told Sub-Inspector Phansalkar was, the servants of the flat of Miss Ahuja had informed him that a Naval Officer was going away in the car. He and the servants had tried to stop him but the said officer drove away in the car saying that he was going to the Police Station and to Sub-Inspector Phansalkar he did not state about his admission made by Mr. Nanavati to him that he killed the deceased as the deceased had connections with his wife. The chowkidar said that he had told this also to sub-Inspector Phansalkar. Sub-Inspector Phansalkar said that Puransingh had not made this statement to him. You will remember that this chowkidar went to the police station at Gamdevi to give information about this crime and while coming back he was with Sub-Inspector Phansalkar and Sub-Inspector Phansalkar in his own statement to Mr, Mokashi has referred to the conversation which he had between him and this witness Puransingh and that had been brought on record as a contradiction.”

The learned Sessions Judge then proceeded to state other circumstances and observed, “Consider whether you will accept the evidence of Puransingh or not.” It is manifest from the summing-up that the learned Sessions Judge not only read to the jury the evidence of Phansalkar wherein he stated that Puransingh did not tell him that the accused told him why he killed Ahuja but also did not tell the jury that the evidence of Phansalkar was not admissible to contradict the evidence of Puransingh. It is not possible to predicate what was the effect of the alleged contradiction on the mind of the jury and whether they had not rejected the evidence of Puransingh because of that contradiction. If the said evidence was not admissible, the placing of that evidence before the jury was certainly a grave misdirection which must have affected their verdict. The question is whether such evidence is legally admissible. The alleged omission was brought on record in the cross-examination of Phansalkar, and, after having brought it in, it was sought to be used to contradict the evidence of Puransingh. Learned Attorney General contends that the statement made by Phansalkar to Inspector Mokashi could be used only to contradict the evidence of Phansalkar and not that of Puransingh under S. 162 of the Code of Criminal Procedure; and the statement made by Puransingh to Phansalkar, it not having been recorded, could not be used at all to contradict the evidence of Puransingh under the said section. He further argues that the alleged omission not being a contradiction, it could in no event be used to contradict Puransingh. Learned counsel for the accused, on the other hand, contends that the alleged statement was made to a police officer before the investigation commenced and, therefore, it was not hit by S. 162 of the Code of Criminal Procedure, and it could be used to contradict the evidence of Puransingh. Section 162 of the Code of Criminal Procedure reads:

“ (1) No statement made by any person to a Police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

“Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by, the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1of 1872), and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.”

The preliminary condition for the application of S. 162 of the Code is that the statement should have been made to a police-officer in the course of an investigation under Chapter XIV of the Code. If it was not made in the course of such investigation, the admissibility of such statement would not be governed by S. 162 of the Code. The question, therefore, is whether Puransingh made the statement to Phansalkar in the course of investigation. Section 154 of the Code says that every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police-station shall be reduced to writing by him or under his direction; and S. 156 (1) is to the effect that any officer in charge of a police-station may without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIV relating to the place of inquiry or trial. The evidence in the case clearly estasblishes that Phansalkar, being the Station House Duty Officer at Gamdevi Police-station on April 27, 1959, from 2 to 8 p.m., was an officer in charge of the Police-station within the meaning of the said sections. Puransingh in his evidence says that he went to Gamdevi Police-station and gave the information of the shooting incident to the Gamdevi Police. Phansalkar in his evidence says that on the basis of the information he went along with Puransingh to the place of the alleged offence. His evidence also discloses that he had questioned Puransingh, the doctor and also Miss Mammie in regard to the said incident. On this uncontradicted evidence there cannot be any doubt that the investigation of the offence had commenced and Puransingh made the statement to the police officer in the course of the said investigation. But it is said that, as the information given by Puransingh was not recorded by Police Officer Phansalkar as he should do under S. 154 of the Code of Criminal Procedure, no investigation in law could have commenced within the meaning of S. 156 of the Code. The question whether investigation had committed or not is a question of fact and it does not depend upon any irregularity committee in the matter of recording the first information report by the concerned police officer. If so, S. 162 of the Code is immediately attracted. Under S. 162 (1) of the no statement made by any person to a Police-officer in the course of an investigation be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. But the proviso lifts the ban and says that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing, any part of his statement, if duly proved, may be used by the accused to contradict such witness. The proviso cannot be invoked to bring in the statement made by Phansalkar to Inspector Mokashi in the cross-examination of Phansalkar, for the statement made by him was not used to contradict the evidence of Phansalkar. The proviso cannot obviously apply to the oral statement made by Puransingh to Phansalkar, for the said statement of Puransingh has not been reduced into writing. The faint argument of learned counsel or the accused that the statement of Phansalkar recorded by Inspector Mokashi can be treated as a recorded statement of Puransingh himself is to be stated only to be rejected, for it is impossible to treat the recorded statement of Phansalkar as the recorded statement of Puransingh by a police-officer. If so, the question whether the alleged omission of what the accused told Puransingh in Puransingh’s oral statement to Phansalkar could be used to contradict Puransingh, in view of the decision of this Court in Tahsildar Singh vs. State of U. P., (1959) 2 Suppl. SCR 875, does not arise for consideration. We are, therefore, clearly of the opinion that not only the learned Sessions Judge acted illegally in admitting the alleged omission in evidence to contradict the evidence of Puransingh, but also clearly misdirected himself in placing the said evidence before the jury for their consideration.

27. In addition to the misdirections pointed out by the High Court, the learned Attorney-General relied upon another alleged misdirection by the learned Sessions Judge in his charge. In paragraph 28 of the charge, the learned Sessions Judge stated thus:

“No one challenges the marksmanship of the accused but Commodore Nanda had come to tell you that he is a good shot and Mr. Kandalawala said that here was a man and good marksman, would have shot him, riddled him with bullets perpendicularly and not that way and he further said that as it is not done in this case it shows that the accused is a good marksman and a good shot and he would not have done this thing, this is the argument.”

The learned Attorney General points out that the learned Sessions Judge was wrong in saying that no one challenged the marksmanship of the accused, for Commodore Nanda was examined at length on the competency of the accused as a marksman. Though this is a misdirection, we do not think that the said passage, having regard to the other circumstances of the case, could have in any way affected the verdict of the jury. It is, therefore clear that there were grave misdirections in this, case, affecting the verdict of the jury, and the High Court was certainly within its rights to consider the evidence and come to its own conclusion thereon.

28. The learned Attorney-General contends that if he was right in his contention that the High Court could consider the evidence afresh and come to its own conclusion, in view of the said misdirections, this Court should not, in exercise of its discretionary jurisdiction under Art.136 of the Constitution, interfere with the findings of the High Court. There is force in this argument. But as we have heard counsel at great length, we propose to discuss the evidence.

29. We shall now proceed to consider the evidence in the case. The evidence can be divided into three parts, namely, (i) evidence relating to the conduct of the accused before the shooting incident, (ii) evidence in regard to the conduct of the accused after the incident; and (iii) evidence in regard to the actual shooting in the bedroom of Ahuja.

30. From the consideration of the entire evidence, the following facts emerge:The deceased seduced the wife of the accused. She had confessed to him of her illicit intimacy with the deceased. It was natural that the accused was enraged at the conduct of the deceased and had, therefore, sufficient motive to do away with the deceased. He deliberately secured the revolver on a false pretext from the ship, drove to the flat of Ahuja, entered his bed-room unceremoniously with a loaded revolver in hand and in about a few seconds thereafter came out with the revolver in has hand. The deceased was found dead in his bath-room with bullet injuries on his body. It is not disputed that the bullets that caused injuries to Ahuja emanated from the revolver that was in the hand of the accused. After the shooting, till his trial in the Sessions Court, he did not tell anybody that he shot the deceased by accident. Indeed, he confessed his guilt to the chowkidar Puransingh and practically admitted the same to his colleague Samuel. His description of the struggle in the bathroom is highly artificial and is devoid of all necessary particulars. The injuries found on the body of the deceased are consistent with the intentional shooting and the main injuries are wholly inconsistent with accidental shooting when the victim and the assailant were in close grips. The other circumstances brought out in the evidence also establish that there could not have been any fight or struggle between the accused and the deceased.

31. We, therefore, unhesitatingly hold, agreeing with the High Court, that the prosecution has proved beyond any reasonable doubt that the accused has intentionally shot the deceased and killed him.

32. In this view it is not necessary to consider the question whether the accused had discharged the burden laid on him under S. 80 of the Indian Penal Code, especially as learned counsel appearing for the accused here and in the High Court did not rely upon the defence based upon that section.

That apart, we agree with the High Court that, on the evidence adduced in this case, no reasonable body of persons could have come to the conclusion which the jury reached in this case. For that reason also the verdict of the jury cannot stand.

Even so, it is contended, by Mr. Pathak that the accused shot the deceased while deprived of the power of self-control by sudden and grave provocation and, therefore, the offence would fall under Exception 1 to S. 300 of the Indian Penal Code. The said Exception reads:

“Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”

Homicide is the killing of a human being by another. Under this exception, culpable homicide is not murder if the following conditions are complied with: (l) The deceased must have given provocation to the accused. (2) The provocation must be grave. (3) The provocation must be sudden. (4) The offender, by reason of the said provocation, shall have been deprived of his power of self-control. (5) He should have killed the deceased during the continuance of the deprivation of the power of self-control, (6) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.

33. The First Question Raised Is Whether Ahuja Gave Provocation To Nanavati Within The Meaning Of The Exception And Whether The Provocation, If Given By Him, Was Grave And Sudden.

34. Learned Attorney-General Argues That Though A Confession Of Adultery By A Wife May In Certain Circumstances Be Provocation By The Paramour Himself, under different circumstances it has to be considered from the standpoint of the person who conveys it rather than from the standpoint of the person who gives it. He further contends that even if the provocation was deemed to have been given by Ahuja, and though the said provocation might have been grave, it could not be sudden, for the provocation given by Ahuja was only in the past.

35. On the other hand, Mr. Pathak contends that the act of Ahuja, namely, the seduction of Sylvia, gave provocation though the fact of seduction was communicated to the accused by Sylvia and that for the ascertainment of the suddenness of the provocation it is not the mind of the person who provokes that matters but that of the person provoked that is decisive. It is not necessary to express our opinion on the said question, for we are satisfied that, for other reasons, the case is not covered by Exception 1 to S. 300 of the Indian Penal Code.

The question that the Court has to consider is whether a reasonable person placed in the same position as the accused was, would have reacted to the confession of adultery by his wife in the manner in which the accused did. In Mancini vs. Director of Public Prosecutions, 1942 AC 1 at p. 9, Viscount Simon, L. C., states the scope of the doctrine of provocation thus:

“It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death . . . . . . . ….. The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex vs. Lesbini, 1914-3 KB 1116 so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.”

Viscount Simon again in 1946 AC 588 at p. 598 elaborates further on this theme. There, the appellant had entertained some suspicions of his wife’s conduct with regard to other men in the village. On a Saturday night there was a quarrel between them when she said, “Well , if it will ease your mind, I have been untrue to you”, and she went on, “I know I have done wrong, but I have no proof that you haven’t – at Mrs. X.’s”. With this the appellant lost his temper and picked up the hammerhead and struck her with the same on the side of the head. As he did not like to see her lie there and suffer, he just put both hands round her neck until she stopped breathing. The question arose in that case whether there was such provocation as to reduce the offence of murder to manslaughter. Viscount Simnon, after referring to Mancini’s case, (supra) proceeded to state thus:

“The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies.”

Goddard, C. J., in R. vs. Duffy, 1949-1 All ER 932n defines provocation thus:.

“Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control’, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. . … . . . .. . . What matters is whether this girl (the accused) had the time to say:’Whatever I have suffered, whatever I have endured, I know that Thou shall not kill’. That is what matters. Similarly. .. .. .circumstances which induce a desire for revenge, or a sudden passion of anger, are not enough. Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control which is of the essence of provocation. Provocation being. . . . . .. . as I have defined it, there are two things, in considering it, to which the law attaches great importance. The first of them is, whether there was what is sometimes called time for cooling, that is, for passion to cool and for reason to regain dominion over the mind. .. . .. . Secondly, in considering whether provocation has or has not been made out, you must consider the retaliation in provocation-that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given.”

A passage from the address of Baron Parke to the jury in R. vs. Thomas, (1837) 7 C and P. 817 extracted in Russell on Crime, 11th ed., Vol. I at p. 593, may usefully be quoted:

“But the law requires two things:first that there should be that provocation; and secondly that the fatal blow should be clearly traced to the influence of passion arising from that provocation.”

The passages extracted above lay down the following principles: (1) Except in circumstances of most extreme and exceptional character, a mere confession of adultery is not enough to reduce the offence of murder to manslaughter. (2) The act of provocation which reduced the offence of murder to manslaughter must be such as to cause a sudden and temporary loss of self-control; and it must be distinguished from a provocation which inspires an actual intention to kill. (3) The act should have been done during the continuance of that state of mind, that is, before there was time for passion to cool and for reason to regain dominion over the mind. (4) The fatal blow should be clearly traced to the influence of passion arising from the provocation.

36. On the other hand, in India, the first principle has never been followed. That principle has had its origin in the English doctrine that mere words and gestures would not be in point of law sufficient to reduce murder to manslaughter. But the authors of the Indian Penal Code did not accept the distinction. They observed:

“It is an indisputable fact, that gross insults by word or gesture have as great a tendency to move many persons to violent passion as dangerous or painful bodily injuries; nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain. On the contrary, the circumstance that a man resents an insult more than a wound is anything but a proof that he is a man of peculiarly bad heart.”

Indian courts have not maintained the distinction between words and acts in the application of the doctrine of provocation in a given case. The Indian law on the subject may be considered from two aspects, namely, (1) whether words or gestures unaccompanied by acts can amount to provocation, and (2) what is the effect of the time lag between the act of provocation and the commission of the offence. In Empress vs. Khogayi, ILR 2 Mad 122, at p. 123 a division bench of the Madras High Court held, in the circumstances of that case, that abusive language used would be a provocation sufficient to deprive the accused of self-control. The learned Judges observed:

“What is required is that it should be of a character to deprive the offender of his self-control. In determining whether it was so, it is admissible to take into account the condition of mind in which the offender was at the time of the provocation. In the present case the abusive language used was of the foulest kind and was addressed to man already enraged by the conduct of deceased’s son.”

It will be seen in this case that abusive language of the foulest kind was held to be sufficient in the case of man who was already enraged by the conduct of deceased’s son. The same learned Judge in a later decision in Boya Munigadu vs. The Queen, ILR 3 Mad 33 at pp. 34-35 upheld the plea of grave and sudden provocation in the following circumstances:The accused saw the deceased when she had cohabitation with his bitter enemy; that night he had no meals; next morning he went to the ryots to get his wages from them, and at that time he saw his wife eating food along with her paramour; he killed the paramour with a bill-book. The learned judges held that the accused had sufficient provocation to bring the case within the first exception to S. 300 of the Indian Penal Code. The learned Judges observed:

“ . …….. . . . . If having witnessed the act of adultery, he connected this subsequent conduct, as he could not fail to connect it, with that act, it would be conduct of a character highly exasperating to him, implying as it must, that all concealment of their criminal relations and all regard for his feelings were abandoned and that they purposed continuing their course of misconduct in his house. This we think, amounted to provocation, grave enough and sudden enough to deprive him of his self control, and reduced the offence from murder to culpable homicide not amounting to murder.”

The case illustrates that the state of mind of the accused, having regard to the earlier conduct of the deceased, may be taken into consideration in considering whether the subsequent act would be a sufficient provocation to bring the case within the exception. Another division bench of the Madras High Court in In re. Murugian ILR (1957) Mad 805: (S.) AIR 1957 Mad 541) held that where the deceased not only committed adultery but later on swore openly in the face of the husband that she would persist in such adultery and also abused the husband for remonstrating against such conduct, the case was covered by the first exception to S. 300 of the Indian Penal Code. The judgment of the Andhra Pradesh High Court in In re, C. Narayan AIR 1958 Andh Pra 235 adopted the same reasoning in a case where the accused, a young man, who had a lurking suspicion of the conduct of his wife, who newly joined him, was confronted with the confession of illicit intimacy with, and consequent pregnancy by, another strangled his wife to death, and held that the case was covered by Exception 1 to S. 300 of the Indian Penal Code. These two decisions indicate that the mental state created by an earlier act may be taken into consideration in ascertaining whether a subsequent act was sufficient to make the assailant to lose his self-control.

37. Where the deceased led an immoral life and her husband, the accused, upbraided her and the deceased instead of being repentent said that she would again do such acts, and the accused, being enraged, struck her and, when she struggled and beat him, killed her, the Court held the immediate provocation coming on top of all that had gone before was sufficient to bring the case within the first exception to S. 300 of the Indian Penal Code. So too, where a woman was leading a notoriously immoral life, and on the previous night mysteriously disappeared from the bedside of her husband and the husband protested against her conduct she vulgarly abused him, whereupon the husband lost his self control, picked up a rough stick, which happened to be close by and struck her resulting in her death, the Lahore High Court, in Jan Muhammad vs. Emperor, AIR 1929 Lah 861 at pp. 862-863 held that the case was governed by the said exception. The following observations of the court were relied upon in the present case:

“In the present case my view is that, in judging the conduct of the accused, one must not confine himself to the actual moment when the blow which ultimately proved to be fatal, was struck, that is to say, one must not take into consideration only the event which took place immediately before the fatal blow was struck. We must take into consideration the previous conduct of the woman . . . . .. . . . . . . . . . .. . ….. . . . ………………… …….. …….. As stated above, the whole unfortunate affair should be looked at as one prolonged agony on the part of the husband which must have been preying upon his mind and led to the assault upon the woman, resulting in her death.”

A division bench of the Allahabad High Court in Emperor vs. Balku, ILR (1938) All 789 at p. 793 invoked the exception in a case where the accused and the deceased, who was his wife’s sister’s husband, were sleeping on the same cot, and in the night the accused saw the deceased getting up from the cot and going to another room and having sexual intercourse with his (accused’s) wife, and the accused allowed the deceased to return to the cot, but after the deceased fell asleep, he stabbed him to death. The learned judges held:

“When Budhu (the deceased) came into intimate contact with the accused by lying beside him on the charpai this trust have worked further on the mind of the accused and he must have reflected that ‘this man now lying beside me had been dishonouring me a few minutes ago’. Under these circumstances we think that the provocation would be both grave and sudden.”

The Allahabad High Court in a recent decision, viz., Babu Lal vs. State, AIR 1960 All 223 at p. 226 applied the exception to a case where the husband who saw his wife in a compromising position with the deceased killed the latter subsequently when the deceased came, in his absence, to his house in another village to which he had moved. The learned Judges observed:

“The appellant when he came to reside in the Government House Orchard felt that he had removed his wife from the influence of the deceased and there was no more any contact between them. He had lulled himself into a false security. This belief was shattered when he found the deceased at his hut when he was absent. This could certainly give him a mental jolt and as this knowledge will come all of a sudden it should be deemed to have given him a grave and sudden pravocation. The fact that he had suspected this illicit intimacy on an earlier occasion also will not alter the nature of the provocation and make it any the less sudden.”

All the said four decisions dealt with a case of a husband killing his wife when his peace of mind had already been disturbed by an earlier discovery of the wife’s infidelity and the subsequent act of her operated as a grave and sudden provocation on his disturbed mind.

38. Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc. in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision:it is for the court to decide in each case, having regard to the relavent circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.

39. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

40. Bearing these principles in mind, let us look at the facts of this case. When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self-control. But, if his version is true-for the purpose of this argument we shall accept that what he has said is true – it shows that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only regained his self-control, but, on the other hand, was planning for the future. Then he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat, went straight to the bed-room of Ahuja and shot him dead. Between 1-30 p.m., when he left his house, and 4-20 p.m. when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to regain his self-control, even if he had not regained it earlier. On the other hand, his conduct clearly shows that the murder was a deliberate and calculated one. Even if any conversation took place between the accused and the deceased in the manner described by the accused-though we do not believe that – it does not affect the question, for the accused entered the bed-room of the deceased to shoot him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to S. 300 of the Indian Penal Code.

41. In the result, the conviction of the accused under S. 302 of the Indian Penal Code and sentence of imprisonment for life passed on him by the High Court are correct, and there are absolutely no grounds for interference. The appeal stands dismissed.

Kameshwar Singh Vs. State of Bihar & Ors[ALLSC 2018 APRIL]

KEYWORDS:- MURDER- CONVICTION

c

DATE:- April 9, 2018.

ACTS:- Section 302 read with Section 149 and Section 201 of the Indian Penal Code and section 3 of The Railway Protection (Unlawful Possession) Act, 1966

SUPREME COURT OF INDIA

Kameshwar Singh Vs. State of Bihar & Ors

[Criminal Appeal No. 903 of 2012]

Tarkeshwar Singh and Others Vs. State of Bihar

[Criminal Appeal No. 904 of 2012]

Mohan M. Shantanagoudar, J.

1. This is yet another case of the brutal murder of a person with a view to prohibit such person from deposing before the Court in a case against his assailant. This is a case wherein the dead body was cut into two pieces, and 2 thrown at two different places, in order to destroy the evidence.

2. These appeals are directed against the judgment dated 16.08.2010/06.09.2010 passed by the High Court of Judicature at Patna in Criminal Appeal No. 291 of 1988, confirming the judgment of conviction passed against the appellants herein by the 8th Additional Sessions Judge, Sasaram in Sessions Trial No. 192/117 of 1977/1983, for the offences punishable under Section 302 read with Section 149 and Section 201 of the Indian Penal Code. The appellants were sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 149, and a further period of three years under Section 201 of the Indian Penal Code.

3. Seven accused including the appellants were tried. Among the seven accused, two accused have died. Five accused are before us as appellants in these two appeals.

4. The case of the prosecution in brief is that, on 14.10.1973 at 11:00 p.m., deceased – Gupteshwar Singh along with PW6- Shambhu Singh carried meals for his farm worker; the farm worker was staying in the pump house of the deceased which is situated at the west of 3 Pusauli railway station. The first informant, viz., Srimati Surajbansi Kuer, PW11, who is none other than the step-mother of the deceased – Gupteshwar Singh, found that the deceased had omitted to take his torch light along with him. Since it was pitch dark and as the pump house was located at quite a distance from her house into the fields, she along with Muneshwar Singh, PW-14, the brother of the deceased, went to handover the torch to the deceased.

When she reached the lane situated east of the cattle shed of one Chhabi Koiri, she found PW6 – Shambhu Singh, who accompanied the deceased, coming back running from south. He told the informant that seven accused including the appellants caught hold of the deceased, pushed him down on the ground near the south-eastern corner of the cattle shed of Chhabi Koiri and were pressing his neck at the place which was a shallow land. When she reached along with PW6 – Shambhu Singh and PW14 – Muneshwar Singh near the said spot, she heard the moaning sound – ‘Aah aah’ of the deceased. When she flashed the torch light, they saw seven accused including the appellants holding the deceased – Gupteshwar Singh.

One of the accused, namely, Shesh Badan Singh (now expired) was armed with a gun and the remaining accused were having lathis. When she raised hue and cry that the seven accused were killing her son(deceased), accused Shesh Badan Singh instigated the other accused to kill the informant and others declaring that, by that time they had already killed the deceased – Gupteshwar Singh. Immediately, thereafter, the deceased stopped moaning. All the accused lifted and took the deceased towards the railways yard situated to the east of the place of occurrence. PW6, PW11 and PW14 being frightened by the threats given by the accused – Shesh Badan Singh, rushed to their house. Thereafter, PW11 went to Kudra Police Station in the morning of 15.10.1973 to lodge a complaint, wherein there was a huge assembly of persons in connection with the auction of cement, which was being carried out by an Assistant Sub-Inspector of Police.

As such, she could not lodge the information then. Since she was an illiterate rural lady, and as one of the person from the mob advised her to go  to Dehri Police Station to lodge the complaint, she went to Dehri Police Station on 15.10.1973 wherein the information was not received by the officer at Dehri Police Station. Immediately, thereafter she boarded the train and came back to Kudra and reached Kudra Police Station in the midnight, i.e., the intervening night of 15.10.1973 and 16.10.1973. As the police officer was not immediately available and was taking rest, the first information report came to be recorded at 4:00 a.m. on 16.10.1973 at the said police station by PW15 (Sub-Inspector of Police). The crime was registered and thereafter the investigation took off.

5. During the course of investigation, the police recovered the dead body of Gupteshwar Singh in two pieces. His head was found out in a gunny bag along with a big stone from the well, which was located at a deserted place and which belonged to one Rameshish Singh. The other portion of the body was also found tied in a gunny bag and was lying in a bogie of a goods train. PW11 – informant identified not only the face of the dead body but also the wearing clothes and apparel of the deceased.

6. In sum and substance, the accused were charge-sheeted, and tried, convicted and sentenced, as mentioned supra. However, in the meanwhile, two of the accused died. The High Court, by its impugned judgment, has affirmed the judgment of conviction and sentence rendered by the trial Court, so far as the five appellants are concerned. Hence, these two appeals are filed by the convicted accused.

7. The prosecution, in all, examined 16 witnesses; out of them PW1-Muni Lal and PW5-Rameshwar Singh have turned hostile. PW6-Shambhu Singh, PW11-Surajbansi Kuer and PW14-Muneshwar Singh are the three eye witnesses. PW2-Kapildeo Singh gave evidence on the recovery of the head from the well and preparation of the inquest report. PW4-Badri Narayan Pandey was the official of Railway Protection Force. He was on his duty during the night of 14.10.1973 at Pusauli Railway Station along with other constable Surendra Singh.

He heard the moaning sound – ‘Aah-Aah’ at about 11:30 p.m., which was coming from Koiri-tola of village Baraon, which was only about 60 to 70 yards to the north of Pusauli Railway Station. He further deposed that he heard someone’s voice twice and it matched the voice of a dying person. The voice was once in a loud volume and a second time in a low volume. PW9-Ravindra Nath Singh was the officer-in-charge of Railway Protection Force, Dehri-on-Sone in the year 1972-73. He deposed that he had registered a case on 12.10.1972 under section 3 of The Railway Protection (Unlawful Possession) Act, 1966, and also another case in the same section of the same Act, wherein Kameshwar Singh (appellant in criminal appeal no. 903 of 2012) was an accused in both the cases along with certain other persons.

He further deposed that the statement of the deceased – Gupteshwar Singh, who was a witness in both the cases, was recorded in both the cases in Hindi and the said statements were produced before the trial Court and marked as Exhibits 4 and 4/1. In one of the two cases, Suresh Koiri, son of Chhabi Koiri, (who is one of the genitive brothers of Nagina Koiri, one of the accused in criminal appeal no. 904/2012), was also an accused. PW9-Ravindra Nath Singh, being an independent officer of the State, has deposed in respect of the motive for the commission of the offence. PW12-J.B.

Singh is the guard of a goods 8 train. He along with another guard T.P.Sinha, PW13, saw the bag lying in the open boxes of goods train from which the legs of a dead body were peeping through. The evidence of PW11 is also of the same effect. The post-mortem on the head of the deceased was conducted by Dr. Mirza Hussain. It seems the said doctor could not be examined before the trial Court, either in view of the death of the said doctor, or the non-availability of the said doctor during the relevant point of time. PW15-Gopal Krishna Jha was the investigating officer.

8. To satisfy our conscience, we have carefully gone through the evidence of all the witnesses, more particularly, the evidence of the three eye witnesses, PWs 6, 11 and 14, and the evidence of PW15, the investigating officer. The supporting witnesses such as the officials of Railway Protection Force fully support the case of the prosecution to prove the recovery of the dead body in two pieces and to prove the motive for commission of the offence.

9. The evidence of three eye witnesses is consistent, cogent and reliable insofar it relates to the accused – Kameshwar Singh. At the inception itself, PW11, the step-mother of the deceased (PW11 had fostered the deceased) had stated in her first information that when she went to the spot of the incident along with PW6 and PW14 during the night of 14.10.1973, she not only heard the moaning sound of the deceased but also saw Kameshwar Singh throttling the neck of the deceased. Other accused were said to be holding the deceased. Among other accused, one accused, namely Shesh Badan Singh (since deceased) was holding a gun and the other accused were holding lathis. Thereafter, all the accused took the deceased, who fell down because of the throttling, towards the railway station. Such fact, which has come into existence at the initial stage in the form of first information lodged by PW11 is fully supported by the evidence of all the three eye witnesses.

We do not find any reason to suspect the versions of the three eye witnesses with regard to the part played by the accused – Kameshwar Singh in the commission of the offence. As mentioned supra, all the three witnesses, without any hesitation, have deposed that the accused – Kameshwar Singh was throttling the deceased. Even in the cross-examination, their version could not be shaken by the defence. As a matter of fact, there was a scanty cross-examination by the defence in respect of the actual incident. The defence in their cross examination concentrated mainly on other factors and not on the main incident. The defence could not shake the versions and credibility of the three eye witnesses regarding the actual incident of throttling the deceased by the accused – Kameshwar Singh.

10. It is no doubt true that the conduct of PWs 6, 11 and 14 appears to be artificial after the incident, inasmuch as they came home without trying to save the life of the deceased by raising hue and cry in the village. However, we will have to keep in mind the actual realities of life, particularly having regard to the material on record. It has come in evidence that Shesh Badan Singh and Kameshwar Singh were powerful persons in the village. They had got licenced guns.

When the three eye witnesses flashed the torch towards the accused to see the incident and the plight of the deceased, the accused – Shesh Badan Singh pronounced that they have just then killed Gupteshwar Singh and now they should kill the three eye witnesses. Being frightened, the three eye  witnesses fled from the scene. At that point of time, it was about 11:30 p.m., during which time generally the villagers would be fast asleep. However, the evidence of these eye witnesses discloses that they have told 3-4 persons in the village about the incident, but such persons did not come to the spot and help the deceased.

11. It must further be kept in mind that the reactions of these witnesses in running away from the site of occurrence appears to be a natural human reaction under the facts and circumstances of the case. Behaviour of the witnesses or their reactions would differ from situation to situation and individual to individual. Expecting uniformity in their reactions would be unrealistic, and no hard and fast rule can be laid down as to the uniformity of the human reaction. The evidence of the three eyewitnesses cannot be faulted merely because they ran away. This Court in similar circumstances in the case of Rana Partap v. State of Haryana, (1983) 3 SCC 327, observed as follows:

“6….Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter- attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.” The aforementioned observations aptly apply to the matter on hand.

12. We hasten to add here itself that the presence of the three eye witnesses cannot be doubted. PW6-Shambhu Singh went along with the deceased – Gupteshwar Singh to provide meals for the farm worker of the deceased. At that point of time, he was caught hold of by the accused and others. Being frightened, PW6-Shambhu Singh started running back to the village and at that point of time, PW11 and PW14 came from their house towards the place of the incident, in order to give the torch to the deceased.

The said torch was seized during the course of investigation, which was found to be in working condition. As the mother of the deceased and as a brother of the deceased, PW11 and PW14 immediately proceeded towards the deceased along with PW6 in order to give him a torch light, since it was pitch-dark. Even in cross-examination, the defence was not successful in proving that the presence of the three eye witnesses on the spot of the incident was doubtful.

13. Learned advocates appearing for the accused argued that much can be commented on the evidence of PWs 6, 11 and 14; so also, much can be commented on the aspect of delay and the conduct of PW11 before lodging the first information. It is no doubt true that there is a delay of about 30 hours in lodging the first information. The incident had taken place at 11:30 p.m. on 14.10.1973 and the first information was lodged at 4:00 a.m. on 16.10.1973. In our considered opinion, the prosecution has fully and satisfactorily explained the delay in lodging the first information. PW11 is a resident of a remote village and she was an illiterate and poor lady.

Besides, she had personally seen her son being throttled and being taken away by the accused persons. She was threatened with dire consequences by one of the accused, namely Shesh Badan Singh, who was holding a gun. Not even a suggestion is made by the defence that the family of the deceased was powerful or influential. Even a suggestion is not made that they are rich people. Under such circumstances, the trial Court and the High Court are justified in taking into consideration all the relevant factors including the explanation offered by the informant as well as PW15 to conclude that the prosecution had proved satisfactorily the reasons for delay in lodging the first information.

14. As mentioned supra, the case of the prosecution is further supported by the evidence of PWs 2, 12 and 13, who are none other than the officials of Railway Protection Force regarding the recovery of the dead body in two pieces. Identity of the dead body was not in doubt, inasmuch as the head of the dead body was identified by PW11, who is none other than the step mother of the deceased.

15. The aspect of motive also points towards the accused – Kameshwar Singh. PW9 – Ravinder Nath Singh, who is the inspector of Railway Protection Force has deposed that the two cases were lodged against the accused – Kameshwar Singh in the years 1972 and 1973 with regard to theft of railway property and in both these cases the deceased-Gupteshwar Singh was a witness.

The evidence of this witness cannot be doubted, inasmuch as he has produced the statements of Gupteshwar Singh in both the criminal cases before the trial Court and the same are marked as Exhibits 4 and 4/1. PW9 has identified the accused – Kameshwar Singh, who was present in the dock by saying that he was a man against whom cases under the Railway Protection (Unlawful Possession) Act, 1966 were lodged and were pending. PW11 has supported the evidence of PW9 by deposing that just prior to the incident, Kameshwar Singh had threatened the deceased – Gupteshwar Singh by telling him not to give evidence against him in the criminal cases. Accused Kameshwar Singh had said that the deceased would be done to death in case he deposes against him.

16. From the entire evidence, including the ocular testimony of PWs 6, 11 and 14, in our considered opinion, it can be concluded that the prosecution has proved its case beyond reasonable doubt as against the accused – Kameshwar Singh. However, omnibus and vague evidence is forthcoming as against the other appellants. The incident had taken place abutting the cattle shed of Nagina Koiri, accused no.7. Certain articles were seized from 16 the cattle shed of Nagina Koiri. Two iron rods from the window shutter were found to be cut, which were presumably used for the commission of the offence. However, there is no specific evidence which points towards the guilt of other persons or the participation of Nagina Koiri in the commission of the offence. It is no doubt true that the evidence on record creates suspicion in the mind of the Court about the participation of the other accused, but any amount of suspicion may not take the place of proof.

17. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is not being used in India. Virtually, it is not applicable to the Indian scenario. Hence, the said maxim is treated as neither a sound rule of law nor a rule of practice in India. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is the duty of the Court to scrutinise the evidence carefully and, in terms of felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. Efforts should be made to find the truth. This is the very object for which Courts are created. To search it out, the Court has to disperse the suspicious cloud and dust out the smear of dust, as all these things clog the very truth.

So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So, it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court, within permissible limits to find out the truth. It means, on one hand that no innocent man should be punished, but on the other hand to see no person committing an offence should go scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the evidence.

18. The evidence on record points towards the guilt of Kameshwar Singh. It is no doubt true that one man alone could not have committed such a ghastly crime by separating the dead body into two pieces. He must have taken the assistance of others. The prosecution has come out with seven names including Kameshwar Singh, but so far as the other accused are concerned, particularly in respect of the other appellants (except Kameshwar Singh), except the omnibus and vague evidence that they were also present and they also joined hands with the accused – Kameshwar Singh, no other specific and reliable material has come on record.

Common object is also not proved. As mentioned supra, any amount of suspicion will not take the place of proof and hence after removing the grain from the chaff, we are of the opinion that the judgment of conviction passed against the accused Kameshwar Singh needs to be confirmed, and the same is hereby confirmed. Insofar as other appellants are concerned, since there is no reliable evidence on record, the benefit of doubt needs to be given to the other appellants.

19. Accordingly, Criminal Appeal No. 903 of 2012 filed by the accused – Kameshwar Singh stands dismissed, and the judgment dated 24.05.1988 passed by the VIII Additional Sessions Judge, Sasaram in Sessions Trial No. 192/117 of 1977/1983, convicting and sentencing the accused – Kameshwar Singh to life imprisonment under Section 302 IPC and three years rigorous imprisonment under Section 201 IPC, as confirmed by the High Court by the impugned judgment, stands confirmed. Record reveals that the accused – Kameshwar Singh is in custody. He is directed to serve out the sentence imposed upon him by the trial Court, and as confirmed by the High Court.

20. Insofar as the accused-appellants Tarkeshwar Singh, Bahadur Ram Kahar, Bikarma Dusadh and Nagina Koiri in Criminal Appeal No. 904 of 2012 are concerned, they are being given the benefit of doubt. Accordingly, the judgment of the trial Court convicting them under Sections 302/149, IPC and Section 201, IPC and sentencing them to undergo life imprisonment on the first count and rigorous imprisonment for three years on the second count, as confirmed by the High Court by the impugned judgment, stands set aside, by giving them the benefit of doubt. The accused Tarkeshwar Singh, Bahadur Ram Kahar, Bikarama Dusadh and Nagina Koiri (appellants in Criminal Appeal No. 904 of 2012) be released forthwith, if not required in any other case. Criminal appeal no. 904 of 2012 is allowed accordingly.

 [RANJAN GOGOI]

 [MOHAN M. SHANTANAGOUDAR]

New Delhi;

April 9, 2018.

Sudhakar @ Sudharasan Vs. State represented by The Inspector of Police, Srirangam Police Station, Trichy, Tamil Nadu[ALL SC 2018 MARCH]

KEYWORDS:-MURDER-ACQUITTAL

c

DATE:- March 12, 2018.

It is settled law that there cannot be any hard and fast rule that the evidence of interested witness cannot be taken into consideration and they cannot be termed as witnesses. But, the only burden that would be cast upon the Courts in those cases is that the Courts have to be cautious while evaluating the evidence to exclude the possibility of false implication. Relationship can never be a factor to affect the credibility of the witness as it is always not possible to get an independent witness.

ACQUITTAL: -Insufficiency of evidence and lack of credibility on the trustworthiness of PWs 1 & 5

ACTS:-Section 302 IPC.

SUPREME COURT OF INDIA

Sudhakar @ Sudharasan Vs. State represented by The Inspector of Police, Srirangam Police Station, Trichy, Tamil Nadu

[Criminal Appeal No. 381 of 2018 arising out of Special Leave Petition (CRL) No. 9297 of 2016]

N.V. RAMANA, J.

1. Leave granted.

2. This appeal has been preferred against the judgment dated 23rd January, 2015 passed by the Madras High Court, Bench at Madurai in Criminal Appeal (MD) No. 298 of 2013 whereby the High Court concurred with the judgment of the trial court and dismissed the appeal preferred by the appellant-accused against his conviction under Section 302 IPC.

3. Facts of the case in brief, as advanced by the prosecution, are that the appellant herein is a habitual drunkard and used to live opposite to his grandmother’s house and always indulged in quarreling with her demanding money. The incident has taken place on 17th January, 2013 at about 6.30 p.m. The appellant was found strangulating the neck of his grandmother, namely, Mariyayee (deceased) with his hands. One Jayaraj-PW1 (son-in-law of the deceased), who was sleeping in the adjoining room, upon hearing the screams of the deceased, rushed to her and witnessed the crime being committed by the accused on his grandmother. The appellant then took surukupai (money bag) from the possession of the deceased and fled away from the spot.

4. Jayaraj-(PW 1) then hired an auto and took his mother-in-law to ABC hospital while informing about the incident to his wife Maruthayee (PW5) over phone, PW5 in turn also reached the hospital. The patient was admitted in the hospital at 7.30 p.m. and Dr. Mohammed Ghouse Khan (PW8) examined her and found that she was conscious but restless. However, Mariyayee had passed away at 7.55 p.m. Jayaraj (PW 1) lodged complaint at Srirangam Police Station at about 11.30 p.m. and basing on the same, Crime No. 22 of 2013 was registered against the appellant. PW15-Inspector of Police (Balusamy) sent the FIR (Ext.P12) to Court and inspected the place of occurrence. Subsequently, other formalities such as preparation of observation mahazar (Ext. P2), drawing of rough sketch (Ext. P13), holding of inquest were carried on and the body of the deceased was sent for postmortem. Meanwhile, the accused-appellant was taken into custody and after recording his confessional statement, police recovered surukupai (money bag) from his possession (M.O. 1).

5. Postmortem on the dead body of deceased Mariyayee was conducted by Dr. RVS Renuga Devi (PW 9) who found linear abrasions of varying lengths and contusion on the front of neck, fracture of thyroid cartilage and tracheal rings, bruising of anterior chest wall, fracture of left collar bone and manubrium stemi transversely at the level of 4th rib attachment with surrounding area bruising. Doctor expressed her opinion that the deceased appears to have died of compression of neck and chest wound.

6. The appellant-accused denied the charge of committing the offence and claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined as many as 15 witnesses and marked 16 exhibits. While so, the accused in his defence examined his mother-in-law, Mala as DW1 and marked no documents. There were however two material objects, one is the surukupai (money bag) and the other is an amount of Rs.140/-, both have allegedly been recovered from the possession of the accused.

7. The trial court relying upon the evidences of prosecution witnesses, particularly PWs 1 and 5, came to the conclusion that often the accused used to quarrel with the deceased for fulfilling his demands of money and had the motive to commit the offence. In pursuance thereof, the accused came to the house of the deceased and strangulated her neck and then pushed her down, hence the deceased suffered asphyxia and injuries on her chest wall and ribs. It further held that medical evidence on record clearly establishes that the deceased had died due to compression of neck and chest wounds.

Therefore, the trial Court held that the trivial contradictions in the evidence of the witnesses will not affect the prosecution case and the appellant-accused was guilty of the offence of murder. The trial Court accordingly convicted the accused under Section 302, IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default, to further suffer rigorous imprisonment for a period of six months.

8. The aggrieved appellant approached the High Court in appeal which came to be dismissed with the observation that the conviction and sentence imposed by the learned trial judge is in consonance with the penal provisions and does not suffer from any infirmity. Hence, the accused is before us by way of this appeal.

9. We have heard learned counsel for the parties and perused the material on record.

10. Learned counsel appearing for the accused-appellant emphatically contended that the courts below have erred in convicting the appellant even though prosecution case was full of material irregularities and inconsistent depositions by the witnesses. The counsel pointed out that the Courts below committed manifest error while disbelieving the defence of alibi of the appellant that at the relevant time, the accused was not there at his grandmother’s house but he was in his mother-in-law’s house and police took him for enquiry from there on 17.1.2013 at 11 pm. The counsel submitted that the prosecution has not successfully established the motive part also.

But the Courts below laid basis on exaggerated versions of prosecution witnesses and convicted the appellant. All the prosecution witnesses, particularly PW 1 and PW 5, are interested witnesses as they had developed grudge on the family of the appellant in connection with sharing of properties and they want to get rid of him as they intend to grab the property of appellant. With that view in mind, PWs 1 and 5 implicated the accused in the offence which would disentitle him to inherit the joint family property.

11. It was further argued that there was no independent witness to the alleged crime and there was no satisfactory explanation for the delay in lodging complaint under Ext. P.1 and the delay in FIR reaching to the Judicial Magistrate. PWs 2, 3, 4 7 who were said to be the eyewitnesses, did not support the case of prosecution. It is also contended by the learned counsel that it was evidently represented by PW5-daughter of the deceased at the hospital that her mother (deceased) had fallen down in the house and therefore she was suffering from breathlessness, the said statement is duly authenticated with the Accident Register (Ext. P3) where it is mentioned as ‘history of fall’.

But later on before Court, PW5 denied of having said so and improved her statement thereby implicating the appellant in the crime. More stress has been laid on the aspect that as per postmortem report, on the body of the deceased, there were fractures over the rib and left collar bone as well as over manuburium sterni, which does not support the case of strangulation but supports the case of fall as stated by PW5 to the Doctor. Concluding his arguments, learned counsel submitted that despite all the discrepancies in the prosecution case, the Courts below went ahead and convicted the appellant and the judgment deserves to be set aside by this Court.

12. While advancing his arguments, learned counsel appearing for the State submitted that no case is made out by the appellant seeking interference of this Court while both the Courts below concurrently found him guilty. According to him, the accused, being a habitual drunkard, often used to quarrel with his grandmother (deceased) for money and for transfer of property. On the day of incident also, the accused picked up a quarrel with the deceased at about 11 am and PW1 sent him away peacefully. But in the evening, while PW1 was asleep in the house, the accused again entered and committed the offence.

The trial Court and High Court had rightly relied upon the consistent and categorical evidence of PW1, who happened to be the eyewitness to the incident, coupled with the corroboration of medical evidence, and by way of a reasoned order, convicted the accused. The recovery of surukupai (money bag) from the possession of the accused substantiates the commission of crime and the case of the prosecution. Though the accused tried to put forward the defence of alibi through DW1, the defence could not succeed in its effort and they did not put a single query or suggestion to the Investigating Officer in their endeavor to ascertain that the accused was picked up by the police from the house of DW1 and to falsify the prosecution case that the accused was arrested from the bus stand.

13. On a careful consideration of the matter in the light of submissions made on either side and after perusing the material available on record, the issue that falls for consideration is “whether both the Courts below were right in convicting the accused for the offence punishable under Section 302, IPC.”

14. The whole basis for the Courts below to convict the accused appears to be the version of the prosecution that the accused was arrested on 18.1. 2013 at about 11 a.m. at bus stand, in presence of PWs 11 and 12, and brushed aside the plea of alibi presented by the accused with due support by the evidence of DW1. It is worthwhile to note that both of these witnesses (PWs 11 & 12) in their examination-in-chief denied the prosecution story about their presence at the time of arrest and seizure of material objects from the possession of the accused and they turned hostile. This fact casts serious doubts on the veracity of prosecution story about the arrest of the accused.

15. Admittedly, at the time of alleged incidence, PW 5 (wife of PW1) and PW 6 (son of PWs 1 & 5) were not present near the alleged scene of offence. As regards the evidences of independent witnesses (PWs 2, 3 and 4), who were residents of the same street as that of the deceased and who were examined as ocular witnesses, PW 2 (tenant of PW 5) turned hostile and did not support the prosecution case. He deposed that on 17.1.2013 at 7 pm when he found some crowd in front of the house of deceased he rushed there and found the deceased in unconscious condition.

Then, he along with PWs 3 and 4 took the deceased to Srirangam Government Hospital and informed the same to PWs 1 & 5, they asked them to bring the deceased to ABC Hospital where PWs 1 & 5 joined them later on. In his cross examination, he stated that PW 1 was not present in Srirangam on the date of incident. PWs 3 and 4 also turned hostile and similar statements were made by them also. Another shortfall in the prosecution case is that PW1 deposed that he gave oral complaint to police, but a contrary statement was put forth by PW15-I.O. stating that he got a written complaint from PW1.

16. From the above stated facts, it emerges that the entire prosecution case rests on the evidences of PWs 1 and 5 who are closely related to the accused–appellant. The accused is none other than the son of PW 5’s brother and PW 1 is the husband of PW5 and PW6 is the son of PWs 1 & 5. Clearly, the relations between the accused-appellant and PWs 1 & 5 were strained over property issues and they were in inimical terms. Apparently, there was also a civil suit pending between them for partition of properties.

17. It would be appropriate to have a look at the legal position with regard to the evidence of related and interested witnesses. In Sarwan Singh v. State of Punjab, (1976 (4) SCC 369), para 10, this Court observed thus: “….. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the Court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.”

It is settled law that there cannot be any hard and fast rule that the evidence of interested witness cannot be taken into consideration and they cannot be termed as witnesses. But, the only burden that would be cast upon the Courts in those cases is that the Courts have to be cautious while evaluating the evidence to exclude the possibility of false implication. Relationship can never be a factor to affect the credibility of the witness as it is always not possible to get an independent witness.

18. Then, next comes the question ‘what is the difference between a related witness and an interested witness?’. The plea of “interested witness”, “related witness” has been succinctly explained by this Court that “related” is not equivalent to “interested”. The witness may be called “interested” only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PW 1 and 5 were not only related witness, but also ‘interested witness’ as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73]. As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution.

19. Now, it would be appropriate to consider whether the Courts below exercised the judicial discretion in evaluating the evidence of PW1 and PW5 while convicting the accused. It may be noted that there is nothing on record to support the version of PWs 1 & 5 that on earlier occasions also and particularly on the date of incident, the accused quarreled with his grandmother demanding money and to settle the house in his favor.

Further, it is on record that when the deceased was brought to the hospital, in the Accident Register, it was written as ‘history of fall’. According to the prosecution’s case, blood came out from the mouth and nose of the deceased, but there appears no seizure of bloodstained clothes of the deceased and chemical analysis. Thus, the inconsistent evidence by the alleged eyewitnesses as well as investigation agency would cause dent to the edifice on which the prosecution case is 14 built, and it adversely affects the substratum of the prosecution case.

20. We further find, to a certain extent, material infirmities, irregularities and contradictions in the prosecution case as also in the evidence of prosecution witnesses including the deposition of PWs 1 & 5, who are material witnesses. PW 1 in his cross examination categorically stated that his wife (PW 5) has filed a suit for partition against the accused and his family members whereas PW 5 in her cross examination denied the same. Likewise, there are contradictory statements of witnesses, primarily to the aspect of happening of incident, taking the victim to the hospital, the presence of PW1 at the time of alleged incident, detaining the accused from bus stand or from his mother-in-law’s house, recovery of material objects from the possession of accused and lodging of complaint by PW1 etc, and the whole story appears to be an utterly incredible one.

More so, there was no explanation forthcoming from the prosecution side on the questions raised by the defense that soon after reaching the ABC hospital with victim, how can the PWs 1 & 5 directly approach Dr. Mohammed Ghouse Khan (PW8) 15 without going to Emergency Ward and why the Doctors at ABC hospital did not inform police when it was a medico legal case. Both the Courts below have simply noted that the variations and contradictory statements are not material in proving the guilt of the accused. We feel that the reasoning given by the Courts below is ex facie illegal.

21. This Court in Latesh V. State of Maharastra [Criminal Appeal No. 1301 of 2015, decided on January 30, 2018] has explained that the reasonable doubt in a lucid manner as a mean between excessive caution and excessive indifference to a doubt. Moreover, it has been explained that reasonable doubt should be a practical one and not an illusory hypothesis.

22. In view of the above discussion, we are of the view that there exists reasonable doubt in this case as the case of prosecution is un-supported by independent witnesses, ridden with contradictions, good motive for false prosecution and filled with suspicious circumstances. Further we are of the considered opinion that there is not only insufficiency of evidence but also lack of credibility on the trustworthiness of PWs 1 & 5 which culminated into disproving the prosecution case and alleged guilt of the accused.

The prosecution has, therefore, failed to establish the guilt of the accused-appellant beyond reasonable doubt by adducing cogent evidence. We are satisfied that the Courts below completely misdirected themselves and the conviction imposed upon the accused by the trial Court and confirmed by the High Court suffers from patent error of law and perversity of approach and deserves to be set aside.

23. Resultantly, the appeal is allowed and the impugned judgment passed by the High Court is set aside. The appellant is stated to be in jail. He shall be set free forthwith unless required in any other case. Pending applications, if any, shall also stand disposed of.

J. (N.V. RAMANA)

J. (S. ABDUL NAZEER)

New Delhi,

March 12, 2018.

Joseph Vs. State of Tamil Nadu [SC 2017 December]

KEYWORDS:- Murder-vicarious liability under Section 149 IPC- Acquitted-

c

DATE:- December 14, 2017

Whether the members of the unlawful assembly really had the common object to cause the murder of the deceased has to be decided in the facts and circumstances of each case, nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the circumstances under which the occurrence took place. It is an inference to be deduced from the facts and circumstances of each case ).

ACTS:- Section 302 read with Section 149 IPC, Sections 341, 324, 148, 147, 323 read with Section 149 IPC and Section 326 IPC

SUPREME COURT OF INDIA

Joseph Vs. State of Tamil Nadu

[Criminal Appeal No. 413 of 2012]

Sahayam and Ors. Vs. The State of Tamil Nadu

[Criminal Appeal No.585 of 2013]

Edwinson Vs. The State of Tamil Nadu

[Criminal Appeal No.662 of 2016]

R. BANUMATHI, J.

1. These appeals arise out of the judgment dated 10.02.2011 passed by Madras High Court at Madurai Bench dismissing Criminal Appeal No.519 of 2002 thereby affirming the conviction of the appellants under Section 302 read with Section 149 IPC, Sections 341, 324, 148, 147, 323 read with Section 149 IPC and Section 326 IPC and also the sentence of imprisonment imposed upon each of them.

2. Briefly stated case of prosecution is that on 12.01.1994, PW2- Anthony Mududhagam, deceased Luis John Kennedy and Raja came to attend funeral of one Jesu (PW2’s cousin). While they were standing near Sahayam’s (A3) house at about 3.05 p.m., Jesu Adimai (A1)(since dead), Selvaraj (A2) and Sahayam (A3) armed with country made bombs in their hands, Selvam (A4) and Antony Innasi (A5) armed with sickles, Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and Elizabethan (A10) with sticks and Joseph (A11) came there and confronted the deceased Kennedy, PW2 and Suresh (PW1) [who just came there to see his father PW2]. Joseph (A11) instigated all the accused to attack on them. Selvam (A4) attacked PW1 with sickle on the left shoulder. Jesu Adimai (A1) threw one country bomb which hit the forehead of the deceased and the deceased fell down. Selvaraj (A2) threw the bomb which hit the right leg of Raja. Sahayam (A3) also threw a bomb which has fallen on the ground. Antony Innasi (A5) attacked PW2 on his left shoulder. Accused Nos.6 to 10 attacked Raja and PW2 indiscriminately causing injuries to them. On seeing the by-standers coming towards the spot, the accused ran away from the scene. Thereafter Johnson (PW-3) hired a tempo and took the injured to Nagercoil Kottar Government Hospital. On the way to hospital, Kennedy succumbed to injuries.

3. Based on the statement of Raja (Ex.P-16), FIR (Ex.P-9) was registered in Crime No.23/94 under Sections 147, 148, 326, 307 and 302 IPC as well as under the Indian Explosives Act. PW9-Krishnan Nair, Inspector in Charge had taken up the initial investigation and prepared rough sketch (Ex.P-10) of the place of occurrence and seized articles viz., blood stained earth (M.O.6) and sample earth (M.O.7) from the scene of crime and conducted the inquest (Ex.P11). PW6-Dr. Kutralingam conducted autopsy on the body of the deceased and noted “lacerated injury with burnt out black skin margins over the head both ocular areas; both eyes found to be missing; Face and forehead was seen seriously disfigured.” PW6-Dr. Kutralingam opined that “the death was due to head injuries and the same could have been caused by explosion of bomb” and issued post-mortem certificate (Ex.P-6). On 15.01.1994, PW12-Ganesan- Inspector of Police, took up further investigation and arrested the accused Nos. 2 to 10 on 25.01.1994 at about 04:45 a.m. Confession statement (Ex.P3) recorded from Selvam (A4) which led to recovery of sickle with wooden handle (M.O.2) and sickle with iron handle (M.O.3). On completion of investigation and submission of final report on 08.11.1995, all the accused were remanded to judicial custody.

4. To bring home the guilt of the accused, prosecution has examined witnesses (PWs 1 to 12) and marked nineteen exhibits (Ex.P-1 to Ex.P-19) and seven material objects (M.O.1 to M.O.7). The accused were questioned under Section 313 Cr. P.C. about the incriminating evidence and circumstances and the accused denied all of them. Upon consideration of evidence adduced by the prosecution, the trial court held that the prosecution has proved the existence of common object of the unlawful assembly and that the accused acted in furtherance of the common object and convicted all the eleven accused under Section 302 IPC with the aid of constructive liability under Section 149 IPC and sentenced all of them to undergo life imprisonment. The accused were also convicted for various other offences and were sentenced to undergo various imprisonment. Being aggrieved by the verdict of conviction and sentence imposed upon them, the accused preferred appeal before the High Court which came to be dismissed by the High Court by the impugned judgment.

5. Taking us through the evidence and the impugned judgment, learned counsel for the appellants submitted that the prosecution has failed to prove the common object of the unlawful assembly to cause the death of deceased Kennedy that the accused acted in furtherance of the common object. It was contended that the appellants should not have been convicted for causing murder of Kennedy with the aid of Section 149 IPC. The learned counsel emphasized that the prosecution has failed to prove existence of common object of the unlawful assembly and that the appellants knew that death of Kennedy was likely to be caused by the unlawful assembly and therefore, the conviction of the appellants under Section 302 IPC with the aid of Section 149 IPC cannot be sustained.

6. Per contra, learned counsel appearing for the State submitted that from the evidence adduced by the prosecution and the attending circumstances of the case, prosecution has clearly proved the existence of common object and the courts below rightly convicted the accused under Section 302 IPC with the aid of Section 149 IPC.

7. We have considered the rival contentions and perused the impugned judgment and materials on record.

8. The question falling for consideration is whether the prosecution succeeded in proving the existence of common object amongst the accused persons and whether the accused persons acted in prosecution of the common object and that the accused persons knew that the death was likely to be committed, to convict the accused under Section 302 IPC with the aid of Section 149 IPC.

9. Before we consider the testimony of the witnesses, let us consider the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts:

  • The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member.
  • The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section149, if it can be shown that the offence was such as the members knew was likely to be committed.

What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence.

After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established.

10. Scope of two parts of Section 149 IPC has been explained in Rajendra Shantaram Todankar v. State of Maharashtra and Ors. (2003) 2 SCC 257, this Court has explained Section 149 and held as under:

“14. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly.

The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly.

A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime.

Unless the applicability of Section 149 – either clause – is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act…… ” [underlining added] The same principles have been reiterated in State of Punjab v. Sanjiv Kumar alias Sanju and Ors. (2007) 9 SCC 791.

11. Creation of vicarious liability under Section 149 IPC is well elucidated in Allauddin Mian and Others. Sharif Mian and Anr. v. State of Bihar (1989) 3 SCC 5, this Court held:

“8. ……..Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly.

Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed.

This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly……”

[underlining added]

The same principles were reiterated in paras (26) and (27) in Daya Kishan v. State of Haryana (2010) 5 SCC 81 and also in Kuldip Yadav and Ors. v. State of Bihar (2011) 5 SCC 324.

12. Whether the members of the unlawful assembly really had the common object to cause the murder of the deceased has to be decided in the facts and circumstances of each case, nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the circumstances under which the occurrence took place. It is an inference to be deduced from the facts and circumstances of each case (vide Lalji and Ors. v. State of U.P. (1989) 1 SCC 437; Ranbir Yadav v. State of Bihar (1995) 4 SCC 392; Rachamreddy Chenna Reddy and Ors. v. State of A.P. (1999) 3 SCC 97).

13. PW-1-Suresh and deceased Kennedy are the sons of PW-2 Anthony Muduthagam. There is a family dispute between PW-2’s family and Jesu Adimai (A1) in respect of laying the fishing net in the sea. On 12.01.1994, at about 03.00 p.m., PW-2-Anthony Muduthagam, deceased Kennedy and injured person Raja went to attend the funeral of PW-2’s cousin Jesu. While they were talking to one another, on the exhortation of Joseph (A11), the accused party attacked the complainant party. The occurrence started on the eastern side of the church and in front of the house of Sahayam (A3).

14. There are only about 350 houses in Perumanal village and most of them are fishermen. In the village, there were two factions who assembled to attend the funeral of Jesu. There was no common object among the accused as only Joseph (A11) had enmity with PW- 2’s family. Jesu Adimai (A1), Selvaraj (A2) and Sahayam (A3) were armed with bombs; Selvam (A4) and Antony Innasi (A5) were armed with sickles; and A6 to A10 were armed with sticks. On the exhortation of Joseph (A11), Jesu Adimai (A1) hurled the bomb which hit the forehead of deceased Kennedy and he fell down. Selvam (A2) threw the country bomb which hit the right ankle of Raja causing injuries to him.

The bomb hurled by Sahayam (A3) fell on the ground and exploded. The deceased died of head injuries, fracture of frontal neck and both eyes found missing. PW-6-Dr. Kutralingam opined that the injuries on the deceased could have been caused by hurling of bombs. The fact that accused Nos. 1 to 3 carrying the bombs, gives indication that they had the common intention to cause the death of the complainant party. Selvam (A4) attacked PW-1-Suresh with aruval on the left shoulder and Antony Innasi (A5) attacked PW-2-Anthony Muduthagam on the left shoulder and accused Nos. 6 to 10 attacked the complainant party with sticks. There is no evidence to prove that the accused Nos. 1 to 11 had any common object to commit the murder of Kennedy which activated all of them to join in furtherance of the common object.

15. As noted earlier, first part of Section 149 IPC states about the commission of an offence in prosecution of the common object of the assembly whereas the second part takes within its fold knowledge of likelihood of the commission of that offence in prosecution of the common object. In the facts and circumstances of the case, we are of the view that the prosecution has not proved the existence of the common object amongst the accused and that all of them acted in furtherance of the common object to invoke the first part of Section 149 IPC.

16. Let us consider whether the act of the accused falls under the second part of Section 149 IPC. As members of the unlawful assembly, whether the accused knew that the offence of murder is likely to be committed. It is a matter of evidence that Sahayam’s house is situated next to the house of Jesu, for whose funeral, the two factions have assembled. Accused Nos. 4 to 10 may not have had the knowledge that Jesu Adimai (A1), Selvaraj (A2) and Sahayam (A3) were armed with bombs and that the murder of Kennedy was likely to be committed.

On the exhortation of Joseph (A11), the accused seem to have individually reacted. There is no definite finding of the High Court that the common object of the assembly was to commit the murder or that the accused persons had knowledge that the offence of murder was likely to be committed and hence, the conviction of the accused Nos. 4 to 10 under Section 302 IPC with the aid of Section 149 IPC cannot be sustained.

17. It is now well established that this Court does not, by special leave convert itself into an appellate court to appreciate evidence for third time. As has been consistently held by this Court in Ramaniklal Gokaldas and Others v. State of Gujarat (1976) 1 SCC 6 and Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000) 1 SCC 358 and other cases, unless some serious infirmity or perversity is shown, this Court normally refrains from reappreciating the matter on appeal by special leave. In the case at hand, hurling of bombs is attributed only to accused Nos. 1 to 3. Had the other accused intended to kill Kennedy and the witnesses, they would have inflicted injuries on the vital organs or used the surest weapon of committing murder and not mere sickles/sticks.

Conviction of accused Nos. 4 to 10 under Section 302 IPC with the aid of Section 149 IPC, in our view, suffers from serious infirmity and liable to be set aside.

18. Insofar as the conviction of the Sahayam (A3), an attempt was made that he cannot be convicted under Section 302 IPC as Selvaraj (A2) and Sahayam (A3) were acquitted under Section 27(2) and Section 27(3) of the Arms Act, 1959. As rightly contended by the learned counsel for the State, the sole reason for acquittal under Section 27(2) and Section 27(3) of the Arms Act is non-obtaining of prior sanction from District Magistrate to prosecute the accused under the Arms Act. Hence, the acquittal of the accused Nos. 2 and 3 under Section 27(2) and Section 27(3) of the Arms Act is of no avail to accused No. 3.

19. Joseph A11: On behalf of Joseph (A11), it was submitted that there is nothing on record to show the involvement of Joseph in the occurrence and no overt act is attributed to him and hence, no liability could be fastened upon him. PWs 1 to 3 have consistently stated that Joseph (A11) asked them to “…hack and hurl bomb…”. The words uttered by accused Joseph is the starting point for all the troubles and all the accused acted only on such instigation of accused Joseph (A11). In his evidence, Johnson (PW3) had stated “that there had been dispute between the families of Jesu Adimai (A1) and Joseph (A11) and the family of Anthony Muduthagam (PW2) with regard to fishing at sea”.

Though no overt act is attributed to the accused Joseph, the words uttered by him “…hack, throw bomb and kill…” clearly shows that only on the exhortation of the accused Joseph, other accused acted and attacked the complainant party. Joseph (A11) was convicted under Section 302 IPC read with Section 149 IPC even though he was charged under Section 302 IPC read with Section 109 IPC (fourth charge). Though the conviction of the accused Joseph under Section 302 IPC read with Section 149 IPC cannot be sustained, the same is modified as conviction under Section 302 IPC read with Section 109 IPC.

20. As discussed above, on the exhortation of Joseph (A11), Jesu Adimai (A1) hurled the bomb which hit the forehead of deceased Kennedy. Selvam (A2) hurled the bomb which hit the right ankle of Raja. Bomb hurled by Sahayam (A3) fell on the floor and exploded. The bomb hurled by Selvaraj (A2) and Sahayam (A3), though, had not hit the deceased, the fact remains that they carried the bomb which clearly indicates that Sahayam (A3) was sharing the intention with Jesu Adimai (A1) and Selvaraj (A2) in committing the murder. Conviction of Sahayam (A3) under Section 302 IPC read with Section 149 IPC is modified as conviction under Section 302 IPC read with Section 34 IPC.

21. Conviction of accused Nos. 4 to 10 under Section 302 IPC with the aid of Section 149 IPC suffers from serious infirmity and the same cannot be sustained. Since the prosecution has not succeeded in establishing and proving that there was an unlawful assembly with a common object to commit the offence, conviction of the accused Nos. 3 to 5 (under Section 148 IPC) and accused Nos. 6 to 11 (under Section 147 IPC) are set aside.

22. Considering the individual acts of the appellants, Selvam (A4) and Antony Innasi (A5) attacked PW1 and PW2 on their left shoulders respectively with sickles, conviction of Antony Innasi (A5) is modified as conviction under Section 324 IPC and the sentence of rigorous imprisonment of one year is maintained. Conviction of Selvam (A4) under Section 324 is affirmed and the sentence of imprisonment of one year imposed upon him is affirmed. Considering the acts of accused Nos.6 to 10 that they attacked Raja and PW-2 with sticks, conviction of accused Nos.6 to 10 under Section 323 read with Section 149 is modified as conviction under Section 323 IPC maintaining their sentence of imprisonment of six months.

23. Conviction of Sahayam (A3) and Joseph (A11) under Section 302 IPC read with Section 149 IPC is modified as Section 302 IPC read with Section 34 IPC and under Section 302 IPC read with Section 109 IPC respectively and the sentence of life imprisonment awarded to each of them is confirmed. Criminal Appeal No.413 of 2012 preferred by Joseph (A11) is dismissed. Sahayam (A3) and Joseph (A11) are directed to surrender to serve their remaining sentence.

24. Conviction of accused Nos. 4 to 10 [Selvam (A4), Antony Innasi (A5), Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and Elizabethan (A10)] under Section 302 IPC read with Section 149 IPC is set aside and they are acquitted of the same. So far as conviction of Accused Nos. 4 to 10 for other offences and the sentence imposed upon each of them, the same is modified as indicated above and accordingly, appeals are partly allowed. Accused Nos. 4 to 10 have already undergone the sentence for more than six years, they need not surrender. Their bail bonds stand discharged.

J. [RANJAN GOGOI]

J. [R. BANUMATHI]

New Delhi;

December 14, 2017

Issac @ Kishor Vs. Ronald Cheriyan and Ors.[SC 2018 January]

KEYWORDS:-Setting aside  acquittal-302 IPC -MURDER-High Court in interfering with a finding of acquittal in revision-

Capture

DATE:- January 23, 2018

  • In appeal against acquittal, in exceptional circumstances, the High Court may set aside the order of acquittal even at the instance of private parties, though the State may not have thought it fit for appeal. But it is to be emphasized that this jurisdiction is to be exercised only in exceptional circumstances when there is glaring defect in the conduct of trial which has materially affected the trial or caused prejudice.

ACTS:- IPC-Cr.P.C

SUPREME COURT OF INDIA

Issac @ Kishor Vs. Ronald Cheriyan and Ors.

[Criminal Appeal No.165 of 2018 arising out of SLP (CRL.) No. 9571 of 2012]

O R D E R

R. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of the judgment dated 25.07.2012 passed by Kerala High Court at Ernakulam allowing Criminal Revision Petition No.3413 of 2008 preferred by respondent no.1 herein thereby setting aside the acquittal of the appellant-accused no.1 for the offences punishable under Section 302 IPC and Section 394 IPC read with Section 34 IPC and further remitting the matter back to the trial Court for retrial.

3. Briefly stated case of the prosecution is that, the deceased-Brijitha was sixty three years old widow and used to stay alone in her house which was situated in five acres of agricultural land. Natarajan, father of accused no.1 used to stay in the same house where Brijitha was staying. He was a permanent employee of Brijitha. Respondent no.1-Ronald Cheriyan, son of the deceased, for some reasons, directed Natarajan not to stay in the house and therefore, Natarajan discontinued his employment. Thereafter, for helping the deceased in agricultural work, the appellant-accused no.1 started staying with the deceased in her house.

On 06.02.2006 in the midnight, sister-in-law of deceased who was staying at a distance of 50 meters from the house of the deceased, heard cries from the house of deceased. On hearing the cries of deceased, sister-in-law of deceased got awaken her son Cheriyan @ Shabin (PW-1). Then, PW-1 went to the house of deceased and asked the appellant-accused no.1 to open the door of the kitchen; but the appellant-accused no.1 told him that he being tied with rope could not open the door and asked PW-1 to take entry from the front door. PW-1, on entering the house from front door, found the deceased lying in unconscious state in the front room of the house and the appellant-accused no.1 being tied with rope in the kitchen.

The appellant-accused no.1 told PW-1 that five thieves had entered the house and after suffocating the Page No. 2 of 11 deceased took away all the valuable gold ornaments and cash from the house. PW-1 informed about the incident to respondent no.1-Ronald Cheriyan, eldest son of the deceased, and then they took the deceased to the St. John Hospital, Kattappana where she was declared dead. At about 04.00 a.m., PW-1 went to Kattappana police station and his statement (Ex.P1) was recorded by PW-22-Sub-Inspector of Police, on the basis of which, case in Crime No. 49 of 2006 was registered against five identifiable persons under Section 396 IPC.

4. After registration of FIR, the Inspector of Police, during investigation prepared the spot panchnama (scene mahazar) and also taken the finger prints from the scene of crime. The appellant-accused no.1 was arrested on 07.02.2006 at 06.20 p.m. who gave a disclosure statement; based on which, accused no.2 was located and arrested on the same day at 08.00 p.m. Confession statement of accused no.2 led to recovery of gold ornaments, currency notes and shawl which was used to suffocate the deceased, from the house of accused no.2.

Also, the grey hair found on the shawl were preserved for further investigation. The post-mortem report disclosed that death of the deceased was caused due to smothering. After completion of the Page No. 3 of 11 investigation, charge-sheet was filed against the appellant-accused no.1 under Section 394 IPC and Section 302 IPC read with Section 34 IPC.

5. The trial court convicted accused no.2 under Sections 302 and 394 IPC inter alia on the following grounds:-

a. presence of accused no.1 has been confirmed in the house of the deceased due to the fact that finger prints of the accused were found on the objects recovered from the place of crime;

b. ornaments of the deceased and the currency notes were recovered from the house of accused no.2;

c. recovery of shawl which was used in the commission of offence containing hair of the deceased, from the house of accused no.2; and

d. that accused no.2 was in dire need of money to pay back his debts.

The trial court has acquitted the appellant-accused no.1 holding that the disclosure statement given by the appellant regarding involvement of accused no. 2 and location of the house of accused no.2, are not sufficient grounds to establish the guilt of appellant. The trial court held that the chance finger prints of the appellant-accused no.1 collected from the place of occurrence was immaterial as he was working as domestic help in the house of deceased.

6. Being aggrieved by acquittal of appellant, respondent no.1-eldest son of the deceased filed a criminal revision challenging the acquittal of the appellant-accused no.1. Accused no.2 also filed a criminal appeal before the High Court challenging his conviction and sentence.

7. The High Court held that the trial court has committed irregularity in omitting to frame charges under Section 34 IPC, even though the trial court itself has framed an issue on the point of sharing of common intention of accused nos.1 and 2 in committing robbery and murder of the deceased which has materially affected the trial. The High Court further held that the fingerprint expert who had prepared the report (Ex.P8) ought to have been examined before the trial court and non-examination of that witness has caused prejudice. The High Court has taken note of that the trial court has failed to evaluate the possibility of accused no.2 in committing the crime alone without the aid of the appellant and also that there was no injury on the appellant when he was found tied with the rope in the house of deceased.

8. We have heard learned counsel for the parties and perused the impugned judgment and materials on record. The point falling for consideration is whether the High Court was right in setting aside the judgment of the trial court and remitting the matter back to the trial court for retrial.

9. Section 386 Cr.P.C. defines the powers of the Appellate Court in dealing with the appeals. The powers enumerated thereon are vested in all courts, whether the High Court or subordinate courts, except that Clause (a) of the section is restricted to the powers of the High Court only, since an appeal against an order of acquittal lies only to that court, while Clause (b) of the section is not so restricted and embraces all courts. The power to direct the accused to be retried has been conferred on the High Court not only when it deals with an appeal against acquittal but also when it deals with an appeal against conviction. Section 386 Cr.P.C. reads as under:-

“Section 386:- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may :-

(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) In an appeal from a conviction:-

(i) Reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of Competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) Alter the finding, maintaining the sentence, or (iii) With or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; …………”

10. Under Section 386(a) and (b)(i), the power to direct retrial has been conferred upon the Appellate Court when it deals either with an appeal against judgment of conviction or an appeal against acquittal (High Court). There is a difference between the powers of an Appellate Court under Clauses (a) and (b). Under Clause (b), the Court is required to touch the finding and sentence, but under Clause (a), the Court may reverse the order of acquittal and direct that further enquiry be made or the accused may be retried or may find him guilty and pass sentence on him according to law.

11. Normally, retrial should not be ordered when there is some infirmity rendering the trial defective. A retrial may be ordered when the original trial has not been satisfactory for particular reasons like…, appropriate charge not framed, evidence wrongly rejected which could have been admitted or evidence admitted which could have been rejected etc. Retrial cannot be ordered when there is a mere irregularity or where it does not cause any prejudice, the Appellate Court may not direct retrial. The power to order retrial should be exercised only in exceptional cases.

12. In K. Chinnaswamy Ready v. State of Andhra Pradesh and Another, AIR 1962 SC 1788, the accused had been convicted by the trial court. The Sessions Court took the view that an important piece of evidence held against the accused was inadmissible and acquitted him. The High Court in revision by the de facto complainant held that the evidence held to be inadmissible by the Sessions Court was admissible and set aside the acquittal directing the accused to be retried on the same charges. The Supreme Court agreed with the High Court that the acquittal deserved to be set aside. In para (7), this Court has spelt out what could be termed as exceptional circumstances which reads as under:-

“7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction.

This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision.

These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law.

These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4)……”

(underlining added)

The same principle was again reiterated in Mahendra Pratap Singh v. Sarju Singh and Another AIR 1968 SC 707.

13. In Matukdhari Singh and others v. Janardan Prasad, AIR 1966 SC 356, accused was tried for offences under Sections 420, 466, 406 and 465/471 IPC and acquitted. The trial court did not frame charge under Section 467 IPC regarding which there were prima facie materials available, that is an offence triable exclusively by the Sessions Court. The High Court, in appeal, set aside the acquittal and ordered retrial. The Supreme Court dismissed the appeal preferred before it. The court referred to earlier decisions in Abinash Chandra Bose v. Bimal Krishna Sen and Another AIR 1963 SC 316 and Rajeshwar Prasad Misra v. State of West Bengal and Another AIR 1965 SC 1887 with reference to the facts of those cases and emphasized that wide discretion available with the Appellate Court in ordering retrial.

14. In appeal against acquittal, in exceptional circumstances, the High Court may set aside the order of acquittal even at the instance of private parties, though the State may not have thought it fit for appeal. But it is to be emphasized that this jurisdiction is to be exercised only in exceptional circumstances when there is glaring defect in the conduct of trial which has materially affected the trial or caused prejudice. In the present case, the High Court found that even though the trial court has framed an issue on the point of sharing of common intention of accused Nos. 1 and 2 in committing the offence, the omission to frame charges under Section 34 IPC has materially affected the trial.

The High Court further observed that the fingerprint expert who prepared Ex. P8 ought to have been examined and other circumstances emerging out of evidence ought to have been examined by the trial court. The High Court further observed that because of the omission to frame the charges under Section 34 IPC, in spite of framing the issue of common intention, the trial court has not examined the evidence in proper perspective, which according to the High Court has materially affected the trial which is called for retrial. The discretion exercised by the High Court under Section 386 (a) Cr.P.C. directing retrial with certain directions cannot be said to be erroneous warranting interference.

15. In the result, the appeal is dismissed. The trial court shall proceed with the matter as per the directions of the High Court and dispose of the matter as expeditiously as possible.

No costs.

. [RANJAN GOGOI]

 [R. BANUMATHI]

New Delhi;

January 23, 2018

Atul Thakur Vs. State of Himachal Pradesh etc [SC 2018 JANUARY]

KEYWORDS:-MURDER-The number of wounds caused by the appellant, it is a well established position, by itself cannot be a decisive factor.

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DATE:- January 19, 2018.

  • Thus, it is a case of homicidal death. However, there is no evidence that the injuries inflicted by the appellant were with an intention to cause the murder of Hitesh Thakur. On the other hand, the evidence clearly establishes that the appellant assaulted Hitesh Thakur without any premeditation.

ACTS:-Section 302 of the Indian Penal Code  AND 201 read with Section 34

Atul Thakur Vs. State of Himachal Pradesh etc.

[Criminal Appeal Nos. 522-523 of 2016]

A.M. Khanwilkar, J.

1. These appeals have been filed against the judgment and order dated 1st April, 2016 passed by the High Court of Himachal Pradesh, Shimla in Criminal Appeal Nos.75 & 227 of 2015, modifying the order of conviction and sentence passed by the Sessions Judge (Forests), Shimla, dated 31st December, 2014 in Sessions Trial No.39-S/7 of 2012 thereby convicting the appellant under Section 302 of the Indian Penal Code (IPC) and sentencing him to imprisonment for life along with fine.

2. Shorn of details, the appellant along with three others were tried for offence punishable under Sections 302, 201 read with Section 34 of IPC by the Sessions Judge (Forests), Shimla. The case of the prosecution is that a telephone message was received at Police Station, West Shimla at around 4.45 A.M. on 28.07.2011, informing that a quarrel had taken place near Tunnel 103, from where one Hunny was brought to IGMC Hospital (Shimla) in seriously injured condition. On reaching the hospital, the SHO Shakuntala Sharma was informed that the injured had succumbed to the injuries. She then recorded the statement of Rajinder Singh under Section 154 of the Code of Criminal Procedure.

In his statement, Rajinder Singh disclosed that he had two children. His daughter Pooja was doing computer course and his younger son Hitesh Thakur, 22 years of age, was also doing computer course from Lakhar Bazar. He stated that Hitesh had left home on 27.07.2011 after taking meal, on his motorcycle bearing registration No.HP-63-3235, for attending computer course. He had then informed his sister Pooja on her mobile that he was going with his friend Akhilesh and would not be returning during the night.

He requested his sister to inform their mother. At about 3 a.m. on 28.07.2011 one Atul Thakur (appellant herein) telephonically informed him that his son Hitesh was brought to IGMC Hospital, Shimla as he was not feeling well and asked him to come to the hospital. On receiving that telephonic information he rushed to the hospital and found that his son was lying dead in wounded condition. At that time, the appellant was also present there.

3. After recording the statement, investigation proceeded and four accused, who had visited the house of Mukesh Thakur (Accused No.2) where a drink party was arranged during the night of 27.07.2011 and 28.07.2011, were sent for trial for the stated offence. The Trial Court after analysing the evidence acquitted the other three accused but found the appellant guilty of the offence punishable under Section 304, Part-II and sentenced him to rigorous imprisonment for five years and to pay fine of Rs.10,000/-, in default to undergo further imprisonment for one year vide judgment dated 31st December, 2014.

4. Against the said decision, the appellant filed an appeal before the High Court, being criminal Appeal No.75 of 2015. The complainant also filed an appeal before the High Court, being Criminal Appeal No.227 of 2015 against the acquittal of three accused as well as for enhancement of sentence of the appellant. Both the appeals came to be disposed of by common judgment dated 1st April, 2016. The High Court upheld the finding of fact regarding the involvement of the appellant in the commission of crime.

However, it reversed the finding and conclusion recorded by the Trial Court regarding the nature of offence. It concluded that taking an overall view of the matter, the appellant was guilty of offence punishable under Section 302 of IPC for the murder of Hitesh Thakur and not under Section 304 Part-II, as held by the Trial Court. At the same time, the High Court affirmed the order of acquittal in favour of the other accused who were tried along with the appellant. In the present appeals, the aforementioned decision of the High Court has been assailed only by the original accused No.1.

5. Mr. Aditya Dhawan, learned counsel appearing for the appellant, made a fervent effort to persuade this Court that there is an obvious contradiction between the evidence of the eye-witnesses which should enure to the benefit of the appellant. According to him, the appellant deserves to be acquitted as in the case of co-accused, as the genesis of the offence is doubtful. Further, the involvement of the appellant in the commission of crime has not been proved beyond reasonable doubt. He took us through the evidence of the prosecution witnesses and also of the defence witness (DW1) who was examined at the instance of the appellant.

He submits that in any case, the fact situation established by the prosecution, even if taken as it is, does not warrant a finding of commission of offence of murder of Hitesh Thakur. At best it is a case of culpable homicide not amounting to murder, covered by the Exception under Section 300 of IPC and, thus, punishable under second part of Section 304 of IPC. The Trial Court had justly invoked that offence and sentenced the appellant to undergo five years rigorous imprisonment which the appellant has already undergone.

He, therefore, submits that this appeal be allowed and the appellant be set free by reviving the order of the Sessions Court and setting aside the impugned judgment and order of the High Court. He submits that the appellant has already undergone sentence for a period of 7 years 3 months 24 days as on 24th November, 2017 including remission period of one year 2 months and 6 days.

6. Learned counsel for the respondents, however, has opposed these appeals. According to the respondents, the finding of guilt recorded by the two Courts below is supported by the evidence on record which has established the involvement of the appellant in the commission of crime beyond doubt. The finding of guilt so recorded by the Trial Court and affirmed by the High Court does not warrant any interference.

Similarly, the finding recorded by the High Court reversing the opinion of the Trial Court to convict the appellant under Section 302 of IPC is also unexceptionable. The High Court justly noted that it was a case of murder of Hitesh Thakur which is punishable under Section 302 of IPC and not under Section 304 Part-II, in which case the appellant will have to suffer the sentence period of life imprisonment. The respondents would submit that the appeals are devoid of merit and ought to be dismissed.

7. We have carefully considered the oral evidence adduced by the prosecution, in particular the evidence of PW-11 and PW-12 who were the eye-witnesses to the incident during which Hitesh Thakur was assaulted by the appellant with knife causing serious bodily injuries to which he finally succumbed. In addition to the said oral evidence, the other circumstances also point towards the complicity of the appellant in the commission of crime such as recovery of the knife at his instance and the nature of injuries suffered by the deceased attributable to the assault by the same knife by the appellant. We find that the Trial Court has justly analysed the evidence to record a finding about the complicity of the appellant in the commission of crime.

That has been affirmed by the High Court after reappreciation of the relevant evidence. We are in agreement with the view so taken by the two Courts below. In other words, we are inclined to uphold the concurrent finding recorded by the Courts below that the appellant caused six injuries to deceased Hitesh Thakur by attacking him with a knife on the night of 27.07.2011 in the presence of their friends (including PW-11 and PW-12) who had gathered at the house of Mukesh Thakur for celebrating a drink party arranged at the behest of Hitesh Thakur. Further, Hitesh Thakur succumbed to the injuries caused by the appellant. Thus, it is a case of homicidal death.

8. Notably, the evidence on record plainly establishes that a sudden fight took place between the appellant and Hitesh Thakur and in the heat of passion, the appellant assaulted Hitesh Thakur causing serious bodily injuries. There is no shred of evidence, much less even a remote suggestion that the appellant had assaulted Hitesh Thakur with an intention to cause his death.

Though the High Court found the appellant guilty, it has not held that the bodily injuries caused by the appellant were with an intention to cause the death of Hitesh Thakur. The High Court overturned the finding recorded by the Trial Court regarding the nature of offence, principally on the ground that the appellant gave repeated knife blows to Hitesh Thakur and Hitesh Thakur could not defend himself as he was unarmed. Thus, the appellant was found guilty of offence punishable under Section 302 of IPC.

9. In other words, the controversy in these appeals boils down to the nature of offence and the sentence to be awarded in that behalf. As aforesaid, the evidence on record, as held by two Courts below and with which finding we are in full agreement, is that the appellant gave six knife blows to Hitesh Thakur on the fateful night to which he succumbed. Thus, it is a case of homicidal death. However, there is no evidence that the injuries inflicted by the appellant were with an intention to cause the murder of Hitesh Thakur. On the other hand, the evidence clearly establishes that the appellant assaulted Hitesh Thakur without any premeditation.

The whole incident took place suddenly and, in the heat of passion a sudden quarrel started as Hitesh Thakur, while smoking, blew smoke on the face of the appellant. Resultantly, the appellant got enraged. He told him that he was senior in age and thus should not smoke in his presence much less blow the smoke towards him. Then a sudden physical fight started between them, in which the appellant, in heat of passion, gave six knife blows to Hitesh Thakur on different parts of his body.

10. The evidence of PW-11 and PW-12 (eye-witnesses) would establish that the appellant and others including deceased Hitesh Thakur had gathered at the spot for a drink party arranged at the instance of Hitesh Thakur. They had consumed drinks when the incident took place. Soon after assaulting Hitesh Thakur by knife, when the appellant realised that Hitesh has been badly injured, he offered him water and took him to the hospital along with his other friends.

He was in the hospital till Hitesh Thakur succumbed to the injuries. He had also informed the father of Hitesh on telephone and called him to the hospital. Further, when Hitesh was taken to the hospital, the doctors did not provide him immediate treatment but insisted on calling his father. This can be culled out from the evidence of PW-11 and PW-12, who were eye-witnesses and also present throughout and until the last rites of Hitesh Thakur were performed.

11. Taking into account the events as unfolded, it leaves no manner of doubt that the appellant had no intention to cause the death of Hitesh Thakur. The incident happened without any premeditation in a sudden fight between Hitesh Thakur and the appellant and in heat of passion the appellant inflicted six knife blows on Hitesh Thakur. On the contrary, after realising his mistake, he immediately offered water to Hitesh Thakur and also took him to hospital and stayed there till his last rites were performed. PW-2 father of deceased Hitesh Thakur also corroborates the position that the appellant had contacted him to inform that Hitesh had been brought to the hospital in serious condition.

12. Taking overall view of the matter, the facts of the present case warrant invocation of Exception 4 to Section 300 of IPC. For, it is a case of culpable homicide not amounting to murder inasmuch as  the incident happened on account of sudden fight between the friends who had gathered for a drink party arranged at the behest of Hitesh Thakur. There was no pre-mediation and the act done by the appellant was in the heat of passion without the appellant taking any undue advantage or acted in a cruel manner.

The number of wounds caused by the appellant, it is a well established position, by itself cannot be a decisive factor. The High Court committed manifest error in being influenced by the said fact. What is relevant is that the occurrence was sudden and not premeditated and the offender acted in the heat of passion. The evidence supports the case of the appellant in this behalf. The fact that the appellant used weapon such as knife, is also not a decisive factor to attract Section 302 of IPC. Neither the use of a knife in the commission of offence nor the factum of multiple injuries given by the appellant would deny the appellant of the benefit of Exception 4.

13. Dealing with a somewhat similar situation, in the case of Surain Singh Vs. State of Punjab 1, this Court has restated the settled legal position about the purport of Exception 4 to Section 1 (2017) 5 SCC 796 12 300 of IPC. Even in that case, the accused had repeatedly assaulted the deceased with a Kirpan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC. Following the same legal principle and keeping in mind the factual position as unfolded, the view taken by the Trial Court of convicting the appellant for offence punishable under Section 304 Part-II, is unexceptionable. The Trial Court had observed thus:

“60. The evidence placed on record by the prosecution, reveals that deceased Hitesh and the accused were having cordial relations since long, knowing to each other and were good friends. A party was organized by the deceased in the room of accused Mukesh and deceased himself invited all the accused to attend the party. In this party, large quantity of alcohol was consumed by them and suddenly an altercation took place between deceased Hitesh and accused Atul Thakur as a result of which accused Atul stabbed Hitesh, which resulted into his death……

61. There is no doubt that Hitesh met a homicidal death on the night intervening 27/28.07/2011 at IGMC, Shimla consequent to stab injury inflicted by accused Atul Thakur. The queston which arises for consideration is whether this action of the accused which caused the death of Hitesh would amount to murder or culpable homicide not amounting to murder. It is an admitted fact that there was no enmity between the deceased and this accused rather they were having cordial relations. The fact 13 that there was a physical fight between the deceased and the accused Atul, cannot be denied because it has come in the evidence of PW-11 Himanshu, PW-12 Manoj Bansal and PW-1 Ashutosh that a physical fight has taken place between them.

In these circumstances, this Court will have to examine the prosecution evidence whether the accused Atul had taken an undue advantage or acted in a cruel or inimical manner so as to deprive him of the benefit of exception 4 of Section 300. In fact, the prosecution could not prove any motive for killing the deceased by the accused. The drinking session in the room of the accused Mukesh Thakur was by mutual consent. From these circumstances, it can be held that the incident in question took place in a sudden fight in the heat of possession.

The next question which arises for consideration is whether the accused Atul did take an undue advantage of the said fight or acted in a cruel or inimical manner. Keeping in view the fact that both the deceased and accused had consumed considerable amount of alcohol which is established from the evidence of the prosecution witnesses, it cannot be altogether ruled out that the stab injuries inflicted were not with an intention of taking undue advantage by the accused Atul.

It is probable that in an inebriated condition the accused inflicted the injuries because of the physical fight between them. Moreover, keeping in view the nature of the injuries noticed by Dr. Sandeep Kaushik in the MLC Ext. PW-18/A, it is difficult to accept the accused Atul Thakur intended to cause the death of Hitesh or that the injuries were so dangerous that they would in all probability, cause death. Nevertheless, the injuries were quite serious, the accused can surely by credited with the knowledge that if an injury is caused with a knife on the chest or abdomen of a person then this act is likely to cause the death of the victim.

62. Having considered the material on record this Court is of the opinion that the accused Atul Thakur can only be found guilty of an offence punishable under Section 304 Part II, Indian Penal Code.”

14. As aforesaid, the High Court overturned this finding of the Trial Court on the question of nature of offence, by mainly observing that the appellant had caused repeated blows with a weapon like knife, causing six serious injuries to Hitesh Thakur to which he succumbed. We are of the opinion that neither the factum of use of knife by the appellant during the assault nor the multiple blows (six) given by the appellant can be the sole basis to deny the appellant of the benefit available under Exception 4 to Section 300 of IPC. The Court is obliged to take an overall view of the matter on the basis of the established facts. This principle is restated in Surain Singh’s case (supra).

15. The next question is whether the appellant is right in his persuasive argument to restore and revive the decision of the Trial Court on the quantum of sentence. The Trial Court awarded the sentence of rigorous imprisonment for five years only for offence under Section 304 Part-II of IPC and fine of Rs.10,000/- and in default, to undergo rigorous imprisonment for a further period of one year. For that no special reason has been recorded by the Trial Court. Considering the nature of offence and the trivial reason for which the appellant got enraged and assaulted Hitesh Thakur, that too by a knife and also gave multiple blows, does not warrant a light punishment. We would, however, accept the argument of the respondents that in the fact situation of the present case, the sentence period should not be less than 10 years imprisonment with fine. That would meet the ends of justice.

16. Accordingly, we partly allow these Criminal Appeal Nos.75 and 227 of 2015 filed by original accused No.1 Atul Thakur. We modify the impugned judgment of the High Court against the appellant in respect of nature of offence and instead restore the order of the Trial Court in that behalf. The appellant is held guilty for an offence punishable under Section 304 Part-II of IPC and is sentenced to undergo rigorous imprisonment for a period of 10 (Ten) years with fine of Rs.10,000/- (Rupees Ten Thousand), in default to undergo further imprisonment for one year. Needless to mention that the appellant shall be entitled to set off under Section 428 of the Code of Criminal Procedure.

17. These appeals are disposed of in the aforementioned terms.

CJI. (Dipak Misra)

J. (A.M. Khanwilkar)

 (Dr. D.Y. Chandrachud)

New Delhi;

January 19, 2018.

Subal Ghorai & Ors. Vs. State of West Bengal [SC 2013 APRIL]

KEYWORDS:-MURDER-Interested witness-Common object-

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DATE: APRIL 2, 2013

  1. Absence of names of accused in the FIR in the abovementioned facts, lead Court to give them benefit of doubt.
  2. In any case, the omissions are minor omissions pertaining to non-mentioning of weapons carried by the accused or not referring to the parts of the bodies of the deceased on which the assault was made. Some of the witnesses have omitted to mention the names of some of the accused. But, in our opinion, on the substratum of the prosecution story, there are no omissions or contradictions.
  3. It is true that the prosecution has relied on the evidence of interested witnesses but, interested witness is not necessarily a bad witness. In fact, if the witness is related to the deceased, there is less chance of his leaving aside the real assailants. The evidence of interested witness has to be analyzed with care. But, once the court comes to the conclusion that it is truthful and in accord with the relevant circumstances on record, the court should not hesitate to accept it and record conviction on the basis thereof

ACTS: Sections 147, 148, 302 read with Section 149, Section 324 read with Section 149 and Section 436 read with Section 149 of the Indian Penal Code

SUPREME COURT OF INDIA

Subal Ghorai & Ors. Vs. State of West Bengal

[Criminal Appeal No.88 of 2007]

(SMT.) RANJANA PRAKASH DESAI, J.

1. The appellants viz. A1-Subal Ghorai, A2-Bishnupada Ghorai, A3-Ranjit Samanta (since deceased), A4-Sunil Senapati, A5 Pulin Sat @ Samanta, A6 – Sudarshan Ghorai, A7-Nemai Ghorai, A8-Biswanath Ghorai, A9-Joydeb Ghori @ Bhatu, A10-Tarapada Samanta, A11-Bistu Samanta, A12-Bhanu Samanta, A13- Uttam Samanta @ Bhalu, A14-Sambhu Jana, A15-Dipu Samanta @ Dipak, A16-Subal Samanta (since deceased), A17-Dulal Samanta (since deceased), A18-Nentu Dhara (since deceased), A19-Rakhal Dhara, A20-Batul Dhara, A21-Kengal Senapati, A22-Nikhil Senapati, A23-Sibu Pramanik, A24-Dhiren Shee @ Singh (since deceased), A26-Niranjan Das, A28-Sambhu Samanta, A29-Probodh Jana, A35-Satrughna Patra and A36-Duryadhan Patra (“appellants accused”) along with 7 other accused viz. A25-Subal Shee @ Singh, A27-Tapan Pramanik, A30- Padmalochan Das, A31-Dima Pramanik, A32-Manick Pramanik, A33-Sankar Das and A34-Bhakti Bhusan Maity were tried by the 4th Court of the Additional Sessions Judge, Midnapore in Sessions Trial Case No.XXIII of May, 1989, for offences punishable under Sections 147, 148, 302 read with Section 149, Section 324 read with Section 149 and Section 436 read with Section 149 of the Indian Penal Code (“the IPC”).

2. It must be mentioned here that the charge-sheet mentioned the names of 39 persons but learned Additional Sessions Judge commenced the sessions trial in respect of 36 persons because out of 39 persons, 3 persons were held to be juveniles. Their trial was separated from that of the remaining 36 persons. For the sake of convenience, we shall refer to the accused as per the numbers assigned to them by the trial court.

3. The prosecution case shall be stated more in detail, a little later. Suffice it to state, at this stage, that the case of the prosecution in short was that on 14/5/1986, the goat of deceased-Hemanta damaged the paddy of A1-Subal. Juvenile delinquent-Gopal and his mother beat the said goat. Juvenile delinquent-Gopal was detained by deceased-Hemanta and, after sometime, he was released. This infuriated the accused. They came to the bund armed with weapons and attacked deceased-Hemanta, deceased-Manik and deceased-Gour, who succumbed to the injuries sustained by them. They also assaulted PW-2 Lakshmi, PW-5 Ananta, PW-12 Jamini and PW-13 Mandakini. PW- 1 Promila, the wife of Mohanta Dhara, who witnessed the incident, lodged the FIR. The accused were then arrested and tried as aforesaid. The prosecution in support of its case examined 20 witnesses. In defence, the accused examined 8 witnesses. They denied the prosecution case. A1-Subal Ghorai, A24-Dhiren Shee and A34-Bhakti Bhushan pleaded defence of alibi.

4. After considering the evidence, by judgment and order dated 7/9/1994, learned Additional Sessions Judge convicted the appellants-accused and A25- Subal, A27-Tapan, A30-Padmalochan, A31-Dima, A32-Manick, A33-Sankar and A34- Bhakti Maity for the offences punishable under Section 302 read with Section 149 of the IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.5,000/-. In default of payment of fine, they were directed to undergo two years rigorous imprisonment. They were also convicted under Section 436 read with Section 149 of the IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/-. In default of payment of fine, they were directed to undergo rigorous imprisonment for two years.

Appellants-A1-Subal, A2-Bistu, A18- Nentu and A21-Kengal were also convicted for the offence punishable under Section 148 of the IPC and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-. In default of payment of fine, they were directed to undergo rigorous imprisonment for one year. Appellants A3-Ranjit, A4-Sunil, A5-Pulin, A6-Sudarshan, A7-Nemai, A8- Biswanath, A9-Joydeb, A10-Tarapada, A11-Bistu, A12-Bhanu, A13-Uttam, A14- Sambu, A15-Dipu and A16-Subal Samanta, A18-Nentu, A19-Rakhal, A20-Batul, A21-Kengal, A22-Nikhil, A23-Sibu, A24-Dhiren, A25-Subal Shee, A26-Niranjan and A27-Tapan and 7 others were also convicted for offence punishable under Section 147 of the IPC and sentenced to undergo rigorous imprisonment for two years. Appellants A2-Bistu and A21-Kengal were also convicted for offence punishable under Section 324 of the IPC and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,000/-. In default of payment of fine, they were directed to undergo rigorous imprisonment for one year. The substantive sentences were ordered to run concurrently.

5. Being aggrieved by the judgment of conviction, an appeal was preferred by the accused. During the pendency of the appeal before the High Court, A3-Ranjit Samanta and A24-Dhiren Shee died. Hence, the High Court recorded that the appeal so far as it related to them had abated. The High Court confirmed conviction and sentence of the appellants-accused. However, the High Court acquitted A25-Subal Shee, A27-Tapan Pramanik, A30- Padmalochan Das, A31-Dima Pramanik, A32-Manick Pramanik, A33-Sankar Das and A34-Bhakti Bhusan Maity of all the charges leveled against them. Being aggrieved by the said judgment and order, the appellants-accused have approached this court. During the pendency of the instant appeal, A16- Subal Samanta, A17- Dulal Samanta and A18-Nentu Dhara have died. Hence, the appeal has abated as against them.

6. We have heard learned counsel for the parties and carefully perused the written submissions tendered by them. Mr. Pradip Kumar Ghosh, senior advocate appearing for A1-Subal, A2-Bistu, A4-Sunil, A5-Pulin, A6- Sudarshan, A7-Nemai, A8-Biswanath, A9-Joydeb, A10-Tarapada, A11-Bistu Samanta, A12-Bhanu, A13-Uttam, A14-Sambhu, A15-Dipu, A18-Nentu, A19-Rakhal, A20-Batul, A21-Kengal, A22-Nikhil, A23-Sibu, A24-Dhiren, A25-Subal, A26- Niranjan and A27-Tapan submitted that the prosecution story that because the goat of deceased-Hemanta damaged the paddy of A1-Subal, 200/250 persons gathered at the scene of offence and killed the three Dharas is absurd. It is sought to be substantiated only by the evidence of interested witnesses, the independent witnesses having turned hostile.

The prosecution case therefore does not inspire confidence. A1-Subal’s defence of alibi was wrongly rejected though credible witnesses were examined by the defence in its support. Counsel submitted that assuming the prosecution case against A1-Subal, A2-Bishnu and A3-Ranjit, A18-Nantu and A21-Kengal who were stated to be carrying weapons and against whom specific overt acts are alleged is proved, even then the case against the remaining accused persons will have to be rejected because they were not armed with weapons. Counsel submitted that PW-2 Lakshmi has improved her statement in the court. She stated that A22-Nikhil assaulted her, but A22-Nikhil was not armed. A22- Nikhil was not even questioned about this in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). PW-3 Nilima and PW-4 Sarathi made mistakes in identifying the accused. PW-12 Jamini and PW-13 Mandakini made general allegations.

Counsel drew our attention to the evidence of the investigating officer PW-19 P.I. Samrendra Ghosh to point out that PW-2 Lakshmi, PW-3 Nilima, PW-4 Sarathi, PW-7 Pratap Majhi and PW-12 Jamini have made improvements in their statements made in the court. Counsel pointed out that PW-1 Promila stated that she knows the father’s name of only some of the accused and she does not know the addresses of the accused persons but the FIR contains all these details. Counsel pointed out that PW-1 Promila stated in her cross- examination that her statement was read over to her but it was not intelligible to her. It was intelligible to the elder brother of her husband who told her that it was correctly recorded by the police. Counsel submitted that it is clear from all these admissions that the FIR is not a spontaneous document but it is the result of deliberations and afterthought.

It is likely that the names of certain onlookers who did not share the common object of those against whom overt acts have been alleged, have been purposely included in the FIR. Counsel pointed out that this Court has held in a series of decisions that in a case in which large number of accused persons are involved and they are sought to be roped in with the aid of Section 149 of the IPC on the basis of constructive joint liability, the rule of prudence must be applied. The court has to consider whether it is safe to convict all the accused on the basis of omnibus evidence and if the court does not have before it some materials to lend assurance to the general allegations, then benefit of doubt must be given to the accused. In support of his submissions, counsel relied on the judgments of this Court in Sherey & Ors. v. State of Uttar Pradesh[1], Akbar Sheikh & Ors. v. State of West Bengal[2], Pandurang Chandrakant Mhatre v. State of Maharashtra[3] and Debashis Daw & Ors. v. State of West Bengal[4]. Counsel submitted that judgments of this Court in State of Andhra Pradesh v. Thakkidiran Reddy[5] and Lalji v. State of Uttar Pradesh[6] cited by the respondents are not applicable to the present case.

They can be distinguished on facts. Counsel pointed out that the trial court has disbelieved the story that the accused poured acid in the mouth of the deceased. This indicates that the prosecution witnesses have exaggerated the case. It would be, therefore, risky to convict the accused persons on the basis of such evidence. Counsel submitted that the prosecution has not successfully established the motive. The prosecution is relying on the alleged identification of the accused by the witnesses in the court which does not inspire confidence. Counsel submitted that in any case, all the appellants-accused have completed more than 7 years of imprisonment. This fact may be taken into consideration while dealing with the case.

7. Mr. S.B. Sanyal, learned senior advocate appearing for A35-Satrughna Patra, A36-Duryadhan Patra, A28-Sambhu Samanta, A13-Uttam Samanta, A16- Subal Samanta, A15-Dipu Samanta and A19-Rakhal Dhara endorsed the submissions of Mr. Pradip Kumar Ghosh and pointed out that A35-Satrughna, A36-Duryadhan and A28-Sambhu are not named in the FIR and in the statement made under Section 161 of the Code but their names are found in the evidence given before the court. The names of accused A19-Rakhal, A16- Subal Samanta and A15-Dipu have been mentioned in the FIR, but their names have not been mentioned by the eye-witnesses in their statements before the police. Therefore, their evidence cannot be acted upon. PW-7 Pratap Majhi does not mention the names of A3-Ranjit, A2-Bishnu, A6-Sudarsan, A5-Pulin, A14-Sambhu Jana, A4-Sunil as the accused persons who had assaulted deceased- Hemanta, deceased-Gour and PW-13 Mandakini.

Counsel pointed out the omissions in the evidence of PW-2 Lakshmi, PW-3 Nilima, PW-4 Sarathi, PW-5 Ananta, PW-7 Pratap, PW-12 Jamini and PW-13 Mandakini, which have been brought on record by PW-19 P.I. Ghosh. Counsel submitted that when evidence of eye-witnesses PW-2-Lakshmi, PW-3 Nilima, PW-4 Sarathi, PW-5 Ananta, PW-12 Jamini and PW-13 Mandakini is in substantial variance with their statements made under Section 161 of the Code before the investigating officer, their evidence cannot be acted upon. In support of this submission, counsel relied on State (represented by Inspector of Police, Tamil Nadu) v. Sait @ Krishnakumar[7], Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. v. State of Maharashtra[8] and Subhash v. State of Haryana[9]. Counsel submitted that according to the prosecution, 200/250 persons had assembled and the assembly was unlawful.

When several persons who had allegedly assembled were unarmed; they did not exhort others and did not co-operate with the named accused, it cannot be said that they shared common object to commit murder. In support of this submission, counsel relied on Dhanna v. State of M.P.[10], Kuldip Yadav & Ors. v. Stateof Bihar[11] and Waman & Ors. v. State of Maharashtra[12]. Counsel pointed out that there is no clear finding of the High Court that the common object of the assembly was to murder or that the assembly of the persons at all was aware of the object of the three assailants which is a must to convict the accused under Section 149 of the IPC. Counsel submitted that in the circumstances, the conviction and sentence deserve to be set aside.

8. Mr. Chanchal K. Ganguli, learned advocate appearing for the respondent-State submitted that the prosecution has, by leading cogent evidence of eye-witnesses some of whom are injured eye-witnesses, successfully proved that the murder of deceased-Hemanta, deceased-Gour and deceased-Manik was committed by the accused. Counsel submitted that the evidence of PW-15 Dr. Subimal and PW-16 Dr. Tapan corroborates the eye- witness account. The defence could not prove the alibi set up by A1-Subal and A34 Bhakti Bhusan Maity. Counsel submitted that it is true that the eye-witnesses are related to the deceased, but, their evidence cannot be discarded on that count. The evidence of the interested witnesses can be relied upon if it inspires confidence. In this connection, he relied on the judgments of this Court in Brathi @ Sukhdev Singh v. State of Punjab[13] and Shyamal Ghosh v. State of West Bengal[14].

Counsel submitted that the argument that some of the accused to whom overt act is not attributed deserve to be acquitted, must be rejected. Mere presence of a person in the unlawful assembly may fasten vicarious liability on him under Section 149 of the IPC. The prosecution is not obliged to prove the specific overt act of each accused. In this connection, he relied on Lalji and Thakkidiram Reddy. Counsel submitted that the identification of the accused in the court is held by this Court in several judgments to be worthy of credence and, therefore, it cannot be discarded. In this connection, reliance was placed on Malkhansingh v. State of Madhya Pradesh[15] and Sheo Shankar Singh v. State of Jharkhand[16]. Counsel further submitted that in a case of this type where several witnesses have been examined, there are bound to be minor discrepancies in their evidence. Such discrepancies are natural. The prosecution story cannot be rejected on that ground. In this connection, counsel relied on Leela Ram v. State of Haryana[17], Rammi v. State of Madhya Pradesh[18] and Shyamal Gosh v. State of West Benghal[19]. Relying on Tika Ram v. State of Madhya Pradesh[20], counsel submitted that merely because the name of the accused is not mentioned in the FIR, it cannot be concluded that he is falsely involved in the case. There may be other cogent evidence on record to prove his involvement as in this case.

Therefore, absence of the names of some of the accused in the FIR must not lead to their acquittal. Counsel submitted that since the prosecution has adduced evidence of eye-witnesses which inspires confidence, alleged absence of motive does not adversely affect its case. In this connection, counsel relied on Sheo Shankar Singh and Bipin Kumar Mondal v. State of West Bengal[21]. Counsel submitted that it is true that some of the witnesses have turned hostile but it is well settled that the evidence of hostile witnesses need not be discarded as a whole and relevant parts thereof, which are admissible in law, can be used by the prosecution.

In this connection, counsel relied on the judgments of this Court in Sk. Zakir v. State of Bihar[22], C. Muniappan v. State of Tamil Nadu[23], Bhagwan Das v. State (NCT of Delhi)[24], Mrinal Das v. State of Tripura[25] and Bhajju v. State of Madhya Pradesh[26]. Counsel submitted that it is possible that there are some minor instances of defective investigation in this case. But, those defects do not dislodge the substratum of the prosecution story, which is proved by cogent evidence. In this connection, counsel relied on the judgments of this Court in Sheo Shankar Singh, Visveswaran v. State,[27] C. Muniappan and Shyamal Gosh. Counsel submitted that there is overwhelming credible and clinching evidence against the accused. The prosecution has proved its case beyond reasonable doubt and, therefore, the appeal be dismissed.

9. PW-15 Dr. Paramanick has reproduced the injuries suffered by deceased- Hemanta, deceased-Manik and deceased-Gour. They indicate that they were attacked in a most gruesome manner. The fact that their death was homicidal cannot be and is not disputed. It must also be noted at the outset that the prosecution story that the accused poured acid in the mouth of all the deceased has not been believed by the trial court. Keeping this in mind, we shall proceed to deal with the case.

10. PW-12 Jamini Dhara is the widow of one Ramani Dhara. The couple had five sons viz. Mohanta Dhara, PW-5 Ananta Dhara, Netai Dhara, deceased-Gour Dhara, deceased-Manik Dhara and deceased-Hemanta Dhara. PW-1 Promila Dhara is the wife of Mohanta Dhara. PW-4 Sarathi Dhara is the wife of PW-5 Ananta Dhara, PW-13 Mandakini Dhara is the wife of deceased-Gour Dhara. PW- 2 Lakshmirani is the wife of deceased Hemanta Dhara and PW-3 Nilu Dhara @ Nilima Burman is their daughter.

11. The Dharas reside in village Brajaballavpur. The murders took place in the said village on 14/5/1986. The prosecution story is disclosed from the evidence of the complainant PW-1 Promila. According to PW-1 Promila, on the day of incident at about 9/10 a.m., the goat of deceased-Hemanta damaged the paddy of A1-Subal; juvenile delinquent-Gopal and his mother, whose house is in front of the paddy field, beat the goat; PW-3 Nila, daughter of deceased-Hemanta protested; thereupon juvenile delinquent-Gopal slapped her; there was exchange of abusive words; juvenile delinquent-Gopal slapped PW-2 Lakshmi; deceased-Hemanta came there and slapped juvenile delinquent-Gopal, took him to the bund and detained him for sometime and, thereafter, released him. Thereafter, A3-Ranjit roamed the villages Brajaballavpur, Bijaynagar and Ramchandrapur on his motor cycle.

According to PW-1 Promila, she heard a sound of conch-shell. Around 200/250 people assembled on the bund equipped with lathis, ballams, tara, iron rod and pipe. They attacked the houses of the Dharas. Deceased-Hemanta, deceased- Manik and deceased-Gour inquired as to what was the matter. A3-Ranjit, A1- Subal, A2-Bistu gave a call to kill them and burn their houses. A1-Subal assaulted deceased-Gour with iron rod, A2-Bistu assaulted deceased-Hemanta with a bamboo tara and A3-Ranjit assaulted deceased-Manik with iron pipe. Deceased-Hemanta, deceased-Manik and deceased-Gour fell down on the ground. PW-1 Promila and others requested A3-Ranjeet, A1-Subal and A2-Bistu not to assault them, but they paid no heed to their request and 10/15 of them started assaulting the deceased and killed them. PW-1 Promila identified A1-Subal, A2-Bistu, A3-Ranjit, A4-Sunil, A8-Biswanath, A19-Rakhal, A20- Batul, A18-Nentu, A21-Kengal, A22-Nikhil, A35-Satrughna, A36-Duryadhan, A9- Joydeb, A7-Nemai in the court. She also identified A34-Bhakti, A30- Padmalochan, A33-Sankar, A26-Niranjan, A27-Tapan, A31-Dima, A32-Manick, A23- Sibu, A24-Dhiren, A25-Subal Shee, A16-Subal Samanta, A17-Dulal, A12-Bhanu, A28-Sambhu Samanta, A14-Sambhu Jana, A10-Tarapada, A15-Dipu, A5-Pulin and two juvenile delinquents and stated that they co-operated with the other accused in commission of offence. She stated that the hands, legs and chest of all the deceased were fractured to pieces.

The accused dragged the deceased to the land of one Ravat Jana and A4-Sunil and A18-Nentu poured some acid like substance in the mouth of the deceased. She stated that A3-Ranjit asked the crowd to burn their houses. The houses of deceased-Hamanta, deceased-Gour, PW-5 Ananta, Mohanta, Netai, Kishori Bera and Prafulla Bera were set on fire by A1-Subal, A5-Pulin, A4-Sunil and others. She stated that their neighbours tried to extinguish the fire with the help of water, but their houses were burnt to ashes. She stated that the police came before dusk, saw the dead bodies; visited the burnt houses and recorded her statement. She stated that after recording her statement, the same was read over to her; her left hand thumb impression was taken on it. She identified the dead bodies and the police took away the dead bodies. It may be stated here that the FIR (Ex-8) was recorded on the basis of her statement.

12. PW-1 Promila’s evidence has come under heavy criticism. It is true that she stated in her evidence that her complaint was read over to her but it was not intelligible to her. It was intelligible to the elder brother of her husband PW-5 Ananta who told her that it was correctly recorded by the police. It is argued that therefore the FIR is not, in fact, lodged by PW-1 Promila but is the creation of PW-5 Ananta and others. It is not possible to accept this submission. We find PW-1 Promila to be a natural and trustworthy witness. She appears to be a courageous lady who has, even after witnessing three gruesome murders, promptly lodged the FIR. She frankly stated that she is illiterate. In our opinion, PW-1 Promila being a rustic and illiterate woman, some allowance must be made for the minor discrepancies in her evidence. Her case that she found it difficult to understand what was being read over to her and, to find out whether her statement was correctly recorded, she took the help of PW-5 Ananta, the brother of her husband has a ring of truth.

We find nothing wrong in this exercise. It is also true that she stated that she did not know the father’s name of some of the accused and she did not know the addresses of the accused but the FIR contains those details. This again does not make PW-1 Promila an untrustworthy witness. In fact, because of this frank admission, she comes across as a very honest witness. It must be remembered that several persons were involved in this gruesome attack. In a case of this type and magnitude, it would be difficult for any person, more so for a rustic woman like PW-1 Promila, to give all particulars about the accused as required by the investigating officer. It is clear from her statement that she knew the first name of all the accused. She gave the first name of the accused.

There is, therefore, no manipulation of names. The trial court has rightly observed that she appears to have collected the addresses and father’s name of some of the accused while her statement was being recorded. It is pertinent to note that she has correctly identified most of the accused in the court. We find it difficult to accept the submission of counsel for the appellant-accused that PW-1 Promila’s evidence must be discarded on this count. In our opinion, the evidence of PW-1 Promila inspires confidence and reliance can be placed on it. There are no major discrepancies in her evidence. She has stood the test of cross-examination very well.

13. It would be appropriate now to refer to the two injured eye- witnesses, whose presence at the scene of the offence at the time of incident cannot be disputed. PW-12 is Jamini, the mother of the deceased. She stated that on the date of occurrence, the goat of deceased-Hemanta damaged the paddy of A1-Subal whereupon juvenile delinquent-Gopal and his mother beat the said goat. PW-3 Nila daughter of deceased-Hemanta protested. Thereafter, there was exchange of abuses between the two sides. Juvenile delinquent-Gopal slapped PW-3 Nila. Thereafter, PW-2 Lakshmi came there. Juvenile delinquent-Gopal slapped her. Deceased-Hemanta slapped juvenile delinquent-Gopal and took him to the bund. Thereafter, Gopal was released. About 20 minutes after this incident, there was a sound of blowing of conch-shell. A3-Ranjit was roaming around on his motorcycle in different villages. According to PW-12 Jamini, around 200/230 persons encircled the houses of her sons.

They were having tara, lathi, rod, iron pipe, katari, ballam, etc. She could recognize A2-Bistu, A1-Subal, A6- Sudarshan, A7-Nemai, A8-Bishu, A9-Joydeb, A17-Dulal, A16-Subal Sat, A11- Bistu Sat, A5-Pulin, A12-Bhanu, A29-Probod, A18-Nentu, A19-Rakhal, A20- Batul, A21-Kengal, A22-Nikhil, A4-Sunil, A36-Dhuryadhan and A35-Satrugna. She honestly stated that she could not recollect the names of other accused. She then added that Shiba Paramanik, Bhakta Maity and Raghu Das were also there. In the court, however, she committed mistakes in identifying A26-Niranjan, A30-Padmalochan and A34-Bhakta Maity. She could not identify A9-Bhatu. She stated that when the deceased enquired why so many persons had encircled their house, A2-Bistu assaulted deceased-Hemanta with a tara on his leg and A1-Subal assaulted deceased-Gour with an iron rod on his head and A3-Ranjit assaulted deceased-Manik with an iron pipe on his head.

She further stated that she caught hold of the hands and feet of the accused and requested them not to assault whereupon A1-Bistu assaulted PW-13 Mandakini with a katari on her head and A21-Kengal assaulted her with a katari on her right hand. She stated that her three sons, who were half- dead, were dragged by the accused by pulling their legs to a paddy field of Pravat Jana. They broke the hands, legs and chests of the deceased. The deceased were shouting for water but the accused did not allow her to give them water. She stated that several houses of Dharas were burnt by the accused. She has been extensively cross-examined. It is contended that her evidence should be rejected because she could not identify some of the accused correctly in the court.

This argument does not appeal to us. It must be remembered that when she gave her evidence, she was 65 years of age. She was deposing about the incident of 14/5/1986 on 10/12/1990 i.e. almost four years after the incident. She had lost her three sons in the incident and must be terribly emotionally disturbed while giving evidence. Her evidence will have to be evaluated keeping this in mind. Errors committed by her in identifying some of the accused cannot be taken against her. She is an injured eye-witness. Her presence at the scene of offence cannot be doubted. We are pained to note that the trial court permitted the defence to subject her to a very lengthy rambling cross-examination. She has, however, come across as a credible witness. We, therefore, hold that PW-12 Jamini is a reliable witness.

14. PW-13 Mandakini is the wife of deceased-Gour. She stated that on the day of incident, goat of deceased-Hemanta damaged the paddy of A1-Subal. Juvenile delinquent-Gopal and his mother beat that goat. PW-3 Nila protested whereupon, juvenile delinquent-Gopal slapped her. Juvenile delinquent-Gopal also slapped PW-2 Lakshmi, mother of PW-3 Nila. Deceased- Hemanta separated them, slapped juvenile delinquent-Gopal, took him to the bund and made him sit there. After sometime, he was allowed to go. Thereafter, the sound of conch-shell was heard. A3-Ranjit was found roaming on his motorcycle in different directions in Ramchandrapur, Brajaballavpur and Kumarchak villages. About 250/300 people came there from all directions.

They were equipped with lathis, axes, iron pipes, iron rods, etc. They attacked Dharas’ houses. She stated that, she could recognize A3-Ranjit, juvenile delinquent-Gopal, A1-Subal, A2-Bistu, A11- Bistu Samanta, A19, Rakhal, A18-Nentu, A20-Batul, A21-Kengal, A22-Nikhil and A4-Sunil. She identified the said accused in the court. She stated that deceased-Hemanta, deceased-Gour and deceased-Manik came out of their houses and enquired with those who had assembled there as to why they had come and encircled their houses whereupon A2-Bistu assaulted deceased- Hemanta with a bamboo tara on his leg, A1-Subal assaulted deceased-Gour with an iron rod on his head and A3-Ranjit assaulted deceased-Manik with an iron rod on his head. They fell down. She stated that they caught hold of the feet of the accused and requested them not to assault the deceased.

Then A2-Bistu assaulted her with a katari on her head. She fell down and became unconscious. She was then shifted to Moyna hospital. After she became conscious, she gave statement to the police. According to her, she was in hospital for two days. After she returned from hospital, she found that her house was burnt. Nothing has been elicitated in her cross- examination, which can suggest that she is not a reliable witness. She has honestly stated that she had seen the assault on her husband and brothers- in-law. She became unconscious after she was assaulted and did not see what happened thereafter.

15. PW-2 Lakshmi is the wife of deceased-Hemanta. She stated that when the goat of her husband was beaten by juvenile delinquent-Gopal, her daughter PW-3 Nila protested. Juvenile delinquent-Gopal and his mother abused her in filthy language. Then juvenile delinquent-Gopal slapped PW-3 Nila whereupon PW-3 Nila began to weep. She abused juvenile delinquent- Gopal and his mother. PW-2 Lakshmi further stated that juvenile delinquent- Gopal and his mother also assaulted her. Thereafter, her husband deceased- Hemanta came there. He slapped juvenile delinquent-Gopal and detained him near the bund. After sometime, he allowed him to go. Thereafter, A3- Ranjit roamed around nearby villages on his motorcycle. After sometime, she heard the sound of conch-shell. About 200/250 people assembled there. They attacked the houses of Dharas.

They were equipped with lathis, iron rods, iron pipes, chowkis, tangis, kataris, etc. She could recognize A1- Subal, A2-Bistu, A3-Ranjit, A10-Tarapada, A18-Nantu, A21-Kental, A22- Nikhil, A4-Sunil, A20-Batul, A19-Rakhal, A36-Dhuryadhan, A35-Satrugna, juvenile delinquent-Gopal, A8-Bishwanath, A7-Nemai, A9-Bhatu, A5-Pulin, A12- Bholu, A6-Sudarshan, juvenile delinquent-Nirmal and others. She stated that she can identify all of them. She stated that juvenile delinquent-Gopal was also there. She identified the accused and juvenile delinquents named by her, in the court. She further stated that her husband deceased-Hemanta and deceased-Manik enquired with the accused as to what was the matter. Then A1-Subal assaulted deceased-Gour with an iron rod on his hand, A2- Bistu assaulted deceased-Gour with a bamboo tara on his leg and A3-Ranjit assaulted deceased-Manik with an iron pipe on his head. She further stated that they requested the accused not to assault them.

The accused told them that they would release them once for all. She stated that she, PW-12 Jamini, PW-1 Promila and others dropped on their feet and requested them not to beat the victims. But, A22-Nikhil assaulted her. A21-Kengal assaulted PW-12 Jamini and A2-Bistu assaulted PW-13 Mandamini. Thereafter, the accused assaulted PW-5 Ananta by hurling brick-bats. A18-Nentu assaulted deceased-Hemanta with a tangi on his head. She stated that 10/15 persons continued to assault deceased-Hemanta, deceased-Manik and deceased- Gour till they succumbed to their injuries. She stated that A1-Subal, A2- Bistu, A3-Ranjit, A8-Biswanath, A7-Nemai, juvenile delinquent-Nirmal, A21- Kengal, A4-Sunil, A22-Nikhil, A19-Rakhal, A20-Batul, A18-Nentu, A12-Bholu, A29-Prabodh are the accused, who assaulted the deceased and caused their death. Then the accused dragged the deceased to the land by the side of a tank. A3-Ranjit told the accused to set their houses on fire and drive them away. Accordingly, A3-Ranjit, A4-Sunil, A5-Pulin and some other persons set the houses of Dharas on fire. Thereafter, the accused fled away. Though she has been extensively cross-examined, the defence has not been able to make any dent in her evidence.

16. PW-3 Nila daughter of deceased-Hemanta also stated that on the date of incident, their goat damaged crop of A1-Subal. Therefore, the wife and son of A1-Subal started beating the goat. She went there and protested whereupon juvenile delinquent-Gopal assaulted her and his mother abused her. Thereafter, her mother PW-2 Lakshmi came and asked juvenile delinquent-Gopal why he assaulted PW-3 Nila whereupon he assaulted PW-2 Lakshmi and also abused her. She further stated that her father deceased- Hemanta came and slapped juvenile delinquent-Gopal and took him near the bund and then released him. Thereafter, A3-Ranjit was moving around in nearby villages on his motorcycle. She heard the sound of a conch-shell. About 200/250 people assembled there and attacked their houses.

They were equipped with iron pipes, iron rods, kataris, axes, tangis, bamboo-taras, kanchas, chowkis. She recognized A1-Subal, A2-Bistu and A3-Ranjit, A5- Pulin, juvenile delinquent-Nirmal, A6-Sudarshan, A9-Bhatu, A7-Nemai, A8- Biswanth, A17-Dulal, A15-Dipu, A12-Bholu, A4-Sunil, A22-Nikhil, A21-Kengal, A18-Nentu, A20-Batul, juvenile delinquent-Gopal, A28-Sambhu, A14-Sambhu, juvenile delinquent-Gopal Jana, A12-Bhanu and one Sibhu Maity. She frankly stated that she could not recollect the names of other accused. She made some mistakes while identifying A5-Pulin, A6-Sudarshan, A2- Bistupada and A32-Shibu Parmanik. She further stated that deceased-Hemanta, deceased-Manik and deceased-Gour enquired with the accused as to what was the matter. A1-Subal, A2-Bishnupada and A3-Ranjit told them to wait and see the consequences.

Thereafter, A1-Subal assaulted deceased-Gour with an iron rod on his head, A2-Bistu assaulted deceased-Hemanta with a bamboo- tara on his thigh and A3-Ranjit assaulted Manik with an iron pipe on his head. The three fell down on the ground whereupon her mother PW-2 Lakshmi, PW-13 Mandakini, PW-12 Jamini, PW-4 Sarathi and PW-5 Ananta came and dropped down on the feet of the assailants and told them not to assault. PW-12 Jamini was assaulted with a katari on her right palm by A21- Kengal. When PW-13 Mandakini tried to resist the assault upon her husband deceased-Gour, she was assaulted with a katari on her head. She further stated that the said assailants continued to assault deceased-Gour, deceased-Hemanta and deceased-Manik and threw away their bodies on a land by the side of a tank. Thereafter, A4-Sunil and A5-Pulin set the houses of the Dharas on fire. The defence has not been able to make any dent in the prosecution story through the cross-examination of this witness. It is true, however, that while identifying some of the accused, she had made mistakes but then, she was also deposing in the court almost four years after the incident and, therefore, there are bound to be some discrepancies in her evidence. On vital parts of the prosecution story, she is consistent. We find no reason to disbelieve her.

17. PW-4 Sarathi and PW-5 Ananta have corroborated PW-1 Promila, PW-2 Lakshmi, PW-3 Nila, PW-12 Jamini and PW-13 Mandakini on the vital aspects of the prosecution story. Their evidence particularly about the assault on deceased-Hemanta, deceased-Gaur and deceased-Manik is consistent with the evidence of above-stated witnesses. PW-4 Sarathi and PW-5 Ananta have also corroborated the evidence of other witnesses as regards the assault on PW- 13 Mandakini with a katari on her head by A2-Bistu and assault on PW-12 Jamini with a katari on her palm by A21-Kengal. PW-4 Sarathi also referred to setting on fire of the houses of Dharas. PW-4 Sarathi made some mistakes in identifying some of the accused but as we have already noted, evidence of witnesses was recorded about four years after the incident. Some mistakes would, therefore, not affect their evidence adversely.

18. In the cross-examination of PW-19 PI Ghosh – the investigating officer, certain omissions in the evidence of prosecution witnesses have been brought on record. Surprisingly, his attention was not drawn to the evidence of PW-1 Promila at all. The evidence of PW-19 PI Ghosh has not been happily recorded. In any case, the omissions are minor omissions pertaining to non-mentioning of weapons carried by the accused or not referring to the parts of the bodies of the deceased on which the assault was made. Some of the witnesses have omitted to mention the names of some of the accused. But, in our opinion, on the substratum of the prosecution story, there are no omissions or contradictions.

While analyzing the evidence, we have kept in mind the manner in which several accused persons armed with weapons attacked the deceased. In an attack of this type, in the nature of things, there are bound to be some omissions or discrepancies in the evidence of witnesses. Experience shows that witnesses do exaggerate and this Court has taken note of such exaggeration made by the witnesses and held that on account of embellishments, evidence of witnesses need not be discarded if it is corroborated on material aspects by the other evidence on record. Therefore, the fact that some witnesses have not referred to certain accused in their police statements but have attributed role to them in the court, does not lead us to conclude, in the peculiar facts of this case, that the said witnesses are not credible witnesses. In this connection, we may usefully refer to Leela Ram on which reliance is placed by learned counsel for the State.

The following observations of this Court are material. “12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment – sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.”

19. It is true that the prosecution has relied on the evidence of interested witnesses but, interested witness is not necessarily a bad witness. In fact, if the witness is related to the deceased, there is less chance of his leaving aside the real assailants. The evidence of interested witness has to be analyzed with care. But, once the court comes to the conclusion that it is truthful and in accord with the relevant circumstances on record, the court should not hesitate to accept it and record conviction on the basis thereof. In this case, all the eye- witnesses are consistent about the prosecution case as regards assault on the deceased and setting on fire of the houses of Dharas. We are, therefore, not inclined to reject their evidence on the ground that they are related to the deceased. As already noted, two of the eye-witnesses i.e. PW-12 Jamini and PW-13 Mandakini are injured witnesses, whose presence at the scene of offence cannot be doubted. They completely bear out the prosecution case.

20. Counsel for the appellant submitted that the identification of the accused in the court should not be relied upon. We have no hesitation in rejecting this submission. The attack was dastardly. It is difficult to forget such heineous episode. The injuries suffered by the deceased show how brutally they were attacked. The eye-witnesses had seen the accused from close quarters. There is, therefore, nothing unusual if the eye- witnesses identified some of the accused in the court. This Court has accepted the evidence of identification in the court in several cases (see Malkhansingh.) This submission must, therefore, be rejected. It is pertinent to note that some witnesses have honestly stated that they could not identify some of the accused. That shows that they were not tutored. It was argued that the prosecution has not been able to establish motive. The incident appears to have taken place because juvenile delinquent-Gopal was detained by deceased-Hemanta. Assuming, however, that this is a case of weak motive or that the prosecution has not established motive, that will not have adverse impact on its case because when there is credible evidence of eye-witnesses on record, the motive pales into insignificance.

21. It is necessary also to state that the defence of alibi taken by A1- Subal has been carefully examined by the trial court as well as the High Court. The witnesses examined by A1-Subal have rightly been disbelieved. We concur with the trial court and the High Court that A1-Subal has failed to prove the defence of alibi.

22. We must now deal with the submission that all the accused cannot be convicted for murder with the aid of Section 149 of the IPC because the prosecution story that all the accused were armed with weapons and they attacked the deceased is based on omnibus statements of the eye-witnesses. In order to deal with this submission, we have reproduced the material portions of the evidence of the eye-witnesses. It is now necessary to refer to the judgments of this Court which have been relied upon by the counsel on this point so that the evidence of the witnesses can be examined in their light.

23. In Lalji. this Court observed that Section 149 of the IPC makes every person who is the member of an unlawful assembly at the time of committing of the offence guilty of that offence. It creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of this assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object.

Once the case of a person falls within the ingredients of the section, the question that he did nothing with his own hands, would be immaterial, because everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined and it is not necessary that all the persons forming an unlawful assembly must do some overt act. It was further observed that once the court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of the assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of offence was a member of the same assembly is to be held guilty of that offence. This Court further observed that after such a finding it would not be open to the court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.

On the facts of the case before it, this Court held that after having held that the appellants formed an unlawful assembly carrying dangerous weapons with the common object of resorting to violence, it was not open to the High Court to acquit some of the members on the ground that they themselves did not perform any violent act, or that there was no corroboration of their participation. In other words, having held that they formed an unlawful assembly and committed an offence punishable with the aid of Section 149 of the IPC, the High Court erred in examining which of the members only actively participated and in acquitting those who, according to the court, did not so participate. Doing so would amount to forgetting the very nature and essence of the offence created by Section 149 of the IPC.

24. In Sherey, 25 appellants were tried for offences punishable under Sections 147, 148, 302, 307, 323 and 325 all read with Section 149 of the IPC in respect of an incident of rioting. The rioting occurred because of the dispute over a grove between Hindus and Muslims. Twenty five Muslims attacked Hindus. Three Hindus died. Six eye witnesses deposed about the incident. PW-1 complainant gave a detailed version and attributed overt acts to nine accused. In deposition, he named five more persons who also attacked the deceased. Regarding the others, he mentioned in an omnibus way that they were armed with lathis. He did not attribute any overt act to any one of them.

This Court observed that in the circumstances, it was difficult to accept the prosecution case that the other appellants were members of the unlawful assembly with the object of committing the offences with which they were charged. This Court expressed that it was highly unsafe to apply Section 149 of the IPC and make everyone of them constructively liable. This Court further observed that when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Some reasonable circumstance must be found out to lend assurance. It was further observed that from that point of view it was safe only to convict the nine accused whose presence was not only consistently mentioned from the stage of FIR but also to whom overt acts were attributed. This Court concluded that the fact that they were armed with weapons and attacked the victims shows that they were members of an unlawful assembly with the common object of committing murder and other offences with which they were charged.

25. In Thakkidiram Reddy, the case of the prosecution was that the 21 accused in the dead of night formed themselves into an unlawful assembly armed with weapons and went to the house of the deceased. They attacked the inmates of the house of one Gankidi Reddy in which Gankidi Reddy lost his life. The accused, thereafter, left the place. The trial court acquitted 10 of them and convicted A1 to A11, inter alia, under Section 148 and Section 302 read with Section 149 of the IPC. In the appeal, the High Court set aside the convictions of A2 to A11 under Sections 148 and 302 read with Section 149 of the IPC and maintained all other convictions. The State carried an appeal to this Court.

This Court referred to its previous judgments in Masalti v. State of U.P.[28] and Lalji and observed that from these judgments, it is evident that to ascertain whether a particular person shared the common object of the unlawful assembly, it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed – or he knew was likely to be committed – by any other person, he would be guilty of that offence. This Court further observed that undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test.

This Court rejected the submission that some of the accused had caused simple injuries and, hence, they did not share common object to murder and observed that the manner in which the incident took place clearly proved that even if this Court were to assume that those accused did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with the second part of Section 149 of the IPC. In the circumstances, order of acquittal of A2 to A5 and A9 of the charges under Sections 148 and 302 read with Section 149 of the IPC recorded by the High Court was set aside and the order of the trial court convicting them for the said offences was restored.

26. In Akbar Sheikh, in the dead of night, the accused attacked the house of PW-9 Ashraful, the son of the complainant. The complainant was informed about it. He came out of his house and saw that about 100 persons armed with deadly weapons had gathered there. They attacked Samsul. The house of Akramul was set on fire. They attacked Akramul, the son of PW-9 Ashraful and the wife of Akramul. Akramul was kidnapped and killed near the pond. The prosecution story rested in the evidence of the complainant and PW-9 Ashraful. The complainant had not named Asgar Sheikh, Kuddus Sheikh and Kudrat Sheikh but they had been named by PW-9 Ashraful. The complainant and PW-9 Ashraful had named Kanku Sheikh as a miscreant. The question which arose for consideration was as to whether some of the appellants who had not committed any overt act must be held to be part of the unlawful act or whether they shared common object of the main accused.

Several decisions of this Court on the scope of Section 149 of the IPC were noticed by this Court and it was observed that the earlier view favouring strict application of constructive liability was not, later on, strictly adhered to and in some of the decisions, this Court proceeded to determine the issue on the factual matrix obtained therein. Reflecting on the facts before it, this Court observed that in such cases, the rule of prudence should be applied. Something more than their being cited as an accused in a witness box would be necessary. This Court further observed that the court must have before it some materials to form an opinion that the accused had shared a common object. Referring to the two accused, who had been named by both the witnesses, this Court observed that even against them, no overt act had been attributed and, therefore, doubt arises as regards their presence and or sharing of common object. This Court adverted to the gruesome nature of the crime and held that even then it cannot lose sight of the fact that a person should not suffer rigorous imprisonment for life although he might have just been a bystander without anything more. Observing that there was no clinching evidence against those accused, this Court acquitted them.

27. In Pandurang Chandrakant Mhatre, after adverting to relevant judgments, this Court observed that for determination of common object of unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack is of relevant consideration. At a particular stage of incident, what is the object of the unlawful assembly is a question of fact and that has to be determined keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of the incident.

28. In Waman, this Court held that whenever the court convicts any persons of any offence with the aid of Section 149 of the IPC, a clear finding regarding the common object of the assembly must be given and the evidence disclosed must show not only the nature of the common object but also that the object was unlawful. In order to attract Section 149 of the IPC, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. In that case, there was no recovery of weapon from A12 therein, but weapons were recovered from other accused and prosecution witnesses asserted that A12 therein dealt a blow of iron pipe on the deceased. This Court held that this was sufficient to attract Section 149 of the IPC.

29. The above judgments outline the scope of Section 149 of the IPC. We need to sum-up the principles so as to examine the present case in their light. Section 141 of IPC defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 of the IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 of the IPC provides for punishment for being a member of unlawful assembly. Section 149 of the IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object.

The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses ‘First’, ‘Second’, ‘Third’, ‘Fourth’ and ‘Fifth’ of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 of the IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 of the IPC if they shared common object of the unlawful assembly.

30. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, Court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 of the IPC.

It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution.

31. We shall now state the conclusions drawn by us after applying the above principles. The attack has been meticulously and consistently described by the eye-witnesses. It is true that the weapons carried by some of the accused are specifically named by the witnesses but the weapons carried by some accused have not been named by some. However, all the witnesses have stated that all the accused were carrying weapons. The evidence discloses that several persons pounced on the deceased and attacked them mercilessly with weapons. The attack was so heinous and scary that the witnesses may not have noted the type of weapons carried by each accused. At the cost of repetition, we must mention that the evidence was given by witnesses after about four years. In the facts of this case, it is not possible for us to dismiss this evidence as omnibus evidence.

Having carefully perused the evidence, we have no hesitation in recording that this is not a case where any innocent bystanders are roped in the crime with the aid of Section 149 of the IPC. All the accused came after the conch-shell was blown. They gave clarion calls. They exhorted others to kill the Dharas. They burnt the houses of Dharas. They killed the Dharas even though the witnesses came and requested not to attack them. Two of the accused attacked two ladies with katari. After the murder was committed, they picked up the dead-bodies and threw them on the land near the bund and then they fled away. Their conduct before the attack, at the time of the attack, after the attack and near the scene of offence clearly indicates that they were members of the unlawful assembly, the common object of which was to murder the Dharas and set fire to their houses.

In our opinion, there are sufficient direct and indirect circumstances on record which lend assurance to the prosecution story that all the accused except A26-Niranjan, A28-Sambhu, A29-Probodh, A35-Satrughnan and A36- Duryadhan whose case stands on a different footing, had common object of the unlawful assembly and in prosecution of the common object of the unlawful assembly, they killed the three Dharas, injured some witnesses and burnt the houses of Dharas. In the facts of this case, those to whom, overt act is not attributed or those who might not have used the weapons would also be liable to be convicted for murder and other offences with the aid of Section 149 of the IPC because they were members of the unlawful assembly at all crucial stages and shared common object of the assembly at all stages. The prosecution has therefore successfully proved its case against all appellant-accused except A26-Niranjan, A28-Sambhu, A29-Probodh, A35-Satrughnan and A36-Duryadhan whose case stand on a different footing for the reasons we shall now state.

32. So far as A26-Niranjan, A28-Sambhu, A29-Probodh, A35-Satrughnan and A36-Duryadhan are concerned, their names are not mentioned in the FIR by PW- 1 Promila. As already noted, FIR was read out to PW-1 Promila by the investigating officer. As she could not understand it, she took the help of PW-5 Ananta, who was present there. He told her that it was correctly recorded. We have also noted that PW-1 Promila gave the first name of all the accused, therefore, there is no manipulation of names. She did not however know the father’s name of some of the accused and addresses of the accused. The trial court has stated that she must have collected these particulars while her FIR was being recorded. We have concurred with the trial court on this aspect and found nothing wrong with this exercise considering the fact that all the names of the accused were stated by her and only certain particulars required by the investigating officer were gathered by her from others. But one thing is certain from this evidence that recording of FIR must have taken sometime.

It was read over to her and because it was not understood by her, it was explained to her by PW-5 Ananta. In such meticulous exercise, if PW-1 Promila missed the names of A26-Niranjan, A28-Sambhu, A29-Probodh, A35-Satrughnan and A36-Duryadhan it is of some significance. It is true that in the evidence, she has referred to them. Some other witnesses have also referred to them. Some of them have attributed role to them. It is true that absence of the name of an accused in the FIR is not always indicative of his innocence because there may be some other clinching evidence on record to establish his complicity.

But, in the aforementioned peculiar facts of this case, because of the absence of the names of these accused in the FIR, a doubt is created in the mind as to whether they could be really involved in the offence. This does not however, make the evidence of PW-1 Promila and other witnesses unreliable. We have already noted that witnesses are prone to exaggeration and the court has to sift the chaff from the grain and find out the truth from the testimony of the witnesses (See Leela Ram). While we are sure about the involvement of all other appellants-accused in the crime in question and we are of the confirmed opinion that their conviction with the aid of Section 149 of the IPC is perfectly justified, we feel that so far as A26-Niranjan, A28-Sambhu, A29-Probodh, A35-Satrughnan and A36-Duryadhan are concerned, evidence on record gives rise to suspicion about their involvement. But it is well settled that suspicion, however strong, is not enough to convict a person. Absence of their names in the FIR in the abovementioned facts, lead us to give them benefit of doubt.

33. In the circumstances, the appeal is partly allowed. A26-Niranjan Das, A28-Sambhu Samanta, A29-Probodh Jana, A35-Satrughnan Patra and A36- Duryadhan Patra are given benefit of doubt and acquitted of all the offences with which they were charged. They shall be forthwith released from custody unless otherwise required in any other case. Their bail bonds shall stand discharged.

34. Conviction and sentence of A1-Subal Ghorai, A2-Bishnupada Ghorai, A4- Sunil Senapati, A5 Pulin Sat @ Samanta, A6-Sudarshan Ghorai, A7-Nemai Ghorai, A8-Biswanath Ghorai, A9-Joydeb Ghori @ Bhatu, A10-Tarapada Samanta, A11-Bistu Samanta, A12-Bhanu Samanta, A13-Uttam Samanta @ Bhalu, A14-Sambhu Jana, A15-Dipu Samanta @ Dipak, A19-Rakhal Dhara, A20-Batul Dhara, A21- Kengal Senapati, A22-Nikhil Senapati and A23-Sibu Pramanik is confirmed.

35. The appeal is disposed of in the aforestated terms.

36. Before parting, we must express that the investigation of this case is far from satisfactory and recording of evidence is done in a casual manner. Justice is done only because of the inherent strength of the prosecution case and credible evidence of the honest rustic witnesses. Sessions cases involve the rights of the victims and rights of the accused. Even the society has a great stake in the proper conduct of sessions cases because they have relevance to the maintenance of law and order. Investigation of criminal cases must, therefore, be done very carefully and trials must be conducted with a sense of responsibility.

 (AFTAB ALAM)

 (RANJANA PRAKASH DESAI)

NEW DELHI,

APRIL 2, 2013.

CASE REFERED

[1] (1991) Supp. (2) SCC 437 [2] (2009) 7 SCC 415 [3] (2009) 10 SCC 773 [4] (2010) 9 SCC 111 [5] (1998) 6 SCC 554 [6] (1989) 1 SCC 437 [7] (2008) 15 SCC 440 [8] (2010 13 SCC 657 [9] (2011) 2 SCC 715 [10] (1996) 10 SCC 79 [11] (2011) 5 SCC 324 [12] (2011) 7 SCC 295 [13] (1991) 1 SCC 519 [14] (2012) 7 SCC 646 [15] (2003) 5 SCC 746 [16] (2011) 3 SCC 654 [17] (1999) 9 SCC 525 [18] (1999) 8 SCC 649 [19] (2012) 7 SCC 646 [20] (2007) 15 SCC 760 [21] (2010) 12 SCC 91 [22] (1983) 4 SCC 10 [23] (2010) 9 SCC 567 [24] (2011) 6 SCC 396 [25] (2011) 9 SCC 479 [26] (2012) 4 SCC 327 [27] (2003) 6 SCC 73 [28] AIR 1965 SC 202

Dinubhai Boghabhai Solanki Vs. State of Gujarat & Ors[SC 2017]

KEYWORDS- Murder-de novo trial-Rights of victim in criminal trial

SC INDEx

There is a discernible paradigm shift in the criminal justice system in India which keeps in mind the interests of victims as well. Victim oriented policies are introduced giving better role to the victims of crime in criminal trials. It has led to adopting two-pronged strategy. On the one hand, law now recognises, with the insertion of necessary statutory provisions, expanding role of victim in the procedural justice. On the other hand, substantive justice is also done to these victims by putting an obligation on the State (and even the culprit of crime) by providing adequate compensation to the victims. The result is that private parties are now able to assert “their claim for fair trail and, thus, an effective ‘say’ in criminal prosecution, not merely as a ‘witness’ but also as one impacted

SUPREME COURT OF INDIA

[Criminal Appeal No. 492 of 2014] *

BENCH:  (A.K. SIKRI)  (ASHOK BHUSHAN

ACT : Sections 302 and 114 of Indian Penal Code, 1860 (IPC) read with Section 25(1) of Arms Act, 1959

HISTORY:

DATE: 30.10.2017

A.K. SIKRI, J.

1. Leave granted in SLP(Criminal) No. 4965 of 2017, SLP(Criminal) No. 2 5086 of 2017, SLP(Criminal) No. 5309 of 2017 and SLP(Criminal) No. 5321 of 2017.

2. One, Amit Jethwa, stated to be an activist, who was complaining against the illegal mining in and around Gir Forest Sanctuary, was murdered. FIR being I-C.R. No. 163 of 2010 was registered on July 20, 2010 at Sola Police Station under Sections 302 and 114 of Indian Penal Code, 1860 (IPC) read with Section 25(1) of Arms Act, 1959. In this FIR, amongst others, Dinubhai Boghabhai Solanki (for short ‘Mr. Solanki’) and his nephew were also implicated.

As per the father of Amit Jethwa (who was the complainant), State’s Police showed slackness in investigating the said case. He approached the High Court for transfer of investigation and vide order dated September 25, 2012, his petition was allowed and investigation was transferred to CBI. On transfer, CBI registered RC.11(S)/2012 SCU.V/SC.II/CBI and undertook the investigation. The aforesaid order dated September 25, 2012 passed by the High Court was challenged by Mr. Solanki as well as State of Gujarat by filing special leave petitions in this Court. In the petition filed by Mr. Solanki, he had prayed for stay of operation of the judgment and order dated September 25, 2012. This miscellaneous application was dismissed and CBI was given liberty to complete the investigation.

After the dismissal of his  application, Mr. Solanki was arrested on November 5, 2013. Status report of the investigation was submitted by the CBI in this Court and after completion of the investigation, a supplementary chargesheet under Section 302 read with Section 120B IPC was filed before the concerned Court in January, 2014. In the chargesheet, Mr. Solanki has been arrayed as one of the main conspirators along with his nephew Pratap @ Shiva Solanki and few others.

The Criminal Appeal No. 492 of 2014 arising out of SLP (Crl.) No. 8406 of 2012 filed by Mr. Solanki as well as Criminal Appeal No. 493 of 2014 arising out of SLP (Crl.) No. 8292 of 2012 filed by the State of Gujarat, challenging the order dated September 25, 2012 of the High Court, were ultimately dismissed by this Court by a detailed judgment and order dated February 25, 2014 which is reported as Dinubhai Boghabhai Solanki v. State of Gujarat.

However, at the same time, bail was granted to Mr. Solanki on certain conditions mentioned in Para 65, relevant portion whereof is reproduced below:

“65. We are not much impressed by the submission of Mr Rohatgi that the appellant-petitioner ought to be released on bail simply because he happens to be a sitting MP, nor are we much impressed by the fact that further incarceration of the appellant-petitioner would prevent him from performing his duties either in Parliament or in his constituency.

So far as the Court is concerned, the appellant-petitioner is a suspect/accused in the offence of murder. No special treatment can be given to the appellant-petitioner simply on the ground that he is a sitting  Member of Parliament. However, keeping in view the fact that CBI has submitted the supplementary charge-sheet and that the trial is likely to take a long time, we deem it appropriate to enlarge the appellant-petitioner on bail, subject to the following conditions:

(i) On his furnishing personal security in the sum of Rs 5 lakhs with two solvent sureties, each of the like amount, to the satisfaction of the trial court.

(ii) The appellant-petitioner shall appear in court as and when directed by the court.

(iii) The appellant-petitioner shall make himself available for any further investigation/interrogation by CBI as and when required.

(iv) The appellant-petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade that person from disclosing such facts to the court or to the investigating agency or to any police officer.

(v) The appellant-petitioner shall not leave India without the previous permission of the trial court.

(vi) In case the appellant-petitioner is in possession of a passport, the same shall be deposited with the trial court before being released on bail.”

3. Pursuant to the said order, Mr. Solanki was enlarged on bail on February 26, 2004.

4. The complainant has filed Criminal Miscellaneous Petition No. 14006 of 2015 seeking cancellation of the aforesaid bail primarily on the ground that after the release of Mr. Solanki on bail, he is not only indulging in the acts which amount to violation of the conditions imposed by this Court but is also threatening and influencing the witnesses. It is further alleged that because of these reasons, the trial could not progress and was being delayed or influenced thereby affirming the apprehension expressed by the complainant at the time of opposing the bail application.

5. Notice in the aforesaid criminal application, seeking cancellation of bail, was issued. During hearings, it transpired that there were three Sessions Cases i.e. 02/2014, 03/2014 and 01/2014 and trial had not started because CBI had filed application before the Principal Judge, Ahmedabad seeking consolidation of these cases. Taking note of this fact, on December 7, 2015, direction was given by this Court to the concerned Session Judge to pass appropriate order on application pending before it expeditiously and not later than 10 days from the date of the order.

The trial was consolidated at the time of the framing of the charge. Mr. Solanki filed an application for his discharge which was dismissed by the trial court. Against that order, revision petition had been filed before the High Court but no stay was granted. Taking note of these facts, this Court passed the order dated May 10, 2016 directing the trial court to proceed to frame the charges and start the trial on day to day basis. This application for cancellation of bail, thereafter, kept on getting adjourned at the behest of one party or the other. In the meantime, trial proceeded with utmost expedition, pursuant to the aforesaid directions given by this Court.

6. During the trial, it transpired that most of the witnesses had turned hostile. This further prompted the complainant to approach the High Court of Gujarat with an appropriate writ petition seeking certain reliefs including that of de novo trial. The parties requested that the hearings in the aforesaid criminal miscellaneous application (seeking cancellation of bail) be deferred to await the decision of the High Court. The High Court has decided the writ petition filed by the complainant vide its detailed judgment dated June 29, 2017. Allowing the said writ petition, the High Court has directed de novo trial of the case with the following specific directions:

“95. This writ application is disposed of with the following directions:

(1) The High Court on the administrative side shall pass an appropriate order transferring all the three CBI Sessions cases i.e. CBI Sessions Cases Nos. 1 of 2014, 2 of 2014 and 3 of 2014 as on date pending in the Court of the Presiding Officer, namely, Shri Dinesh L. Patel, CBI Courts, Court No. 4, Ahmedabad to any other CBI Court. On all the three CBI Sessions cases referred to above being transferred to a particular Court, the Presiding Officer concerned shall retry all the accused persons on the selfsame charge framed.

(2) The prosecuting agency i.e. the CBI shall obtain the witness summons from the Court concerned and start examining the witnesses a fresh.

(3) The retrial shall commence at the earliest and shall proceed 7 on the day-to-day basis.

(4) The retrial shall be in-camera proceedings.

(5) The prosecuting agency i.e. the CBI as well as the State police machinery is directed to ensure that full protection is given to each of the witnesses and they be assured that no harm would befall upon them in any manner. For ensuring of a sense of confidence in the mind of the witnesses, and to ensure that they depose freely and fearlessly before the Court, the following steps shall be taken:

(i) Ensuring safe passage for the witnesses to and from the Court precincts.

(ii) Providing security to the witnesses in their place of residence wherever considered necessary, and

(iii) Relocation of witnesses to any State or to any other place, as thought fit, wherever such a step is necessary. Let me at this stage clarify something important.

It could be argued that the directions issued by this Court amounts to directly or indirectly exerting pressure on the witnesses, but the answer to this is an emphatic ‘No’. These directions are necessary and are in line of doing complete justice.

xxx xxx xxx

“96. I conclude this judgment reminding one and all that justice is a concept involving the fair, moral and impartial treatment of all persons. In its most general sense, it means according individuals what they actually deserve or merit, or are in some sense entitled to. Justice is a particularly foundational concept within most systems of “Law”. From the prospective of pragmatism, it is a name for a fair result. Injustice anywhere is a threat to justice everywhere.”

7. Challenging that order, Mr. Solanki and few other co-accused persons 8 have filed Special Leave Petitions bearing SLP(Criminal) No. 4965 of 2017, SLP(Criminal) No. 5086 of 2017, SLP(Criminal) No. 5309 of 2017 and SLP(Criminal) No. 5321 of 2017. The events described aforesaid indicate that the issues in these proceedings are interconnected with each other. For this reason, Criminal Miscellaneous Petition and the Special Leave Petitions have been heard together and we proceed to decide all these cases by the instant common judgment.

8. We have already indicated, in brief, the grounds on which complainant has filed the applications seeking cancellation of Mr. Solanki’s bail. Let us, at this stage, record the reasons which prevailed with the High Court in ordering de novo trial. The High Court noted one crucial and very pertinent occurrence that had taken during the trial viz. out of 195 witnesses examined by the prosecution during trial, as many as 105 witnesses were declared hostile.

The break-up of the witnesses examined is as under:

Total 105 Witnesses

61 Witnesses are hostile including

8 eye witnesses

16 Police witnesses

47 Panch witnesses 45 Hostile

21 official witnesses

4 Magistrates

1 Complainant

1 Doctor

Total 195 Witnesses Examined.

105 witnesses hostile.

9. The High Court found that all the important witnesses including the eye-witnesses resiled from their statements made before the Police. On that basis, it was contended by the complainant before the High Court that it was a case where the main accused (Mr. Solanki) who is a former Member of Parliament had won over all the witnesses including the eye-witnesses by his sheer power and position. Therefore, according to him, it was a fit case for directing retrial by the High Court in exercise of its extraordinary powers under Article 226 of the Constitution of India or the supervisory jurisdiction under Article 227 of the Constitution of India.

Insofar as allegation of the complainant in the writ petition that witnesses were turning hostile due to the influence exercised by Mr. Solanki, the High Court has taken note of the aforesaid application for cancellation of bail preferred by the complainant in this Court in which two affidavits were filed by the CBI, supporting the stand of the complainant. In one of the affidavits filed by the CBI duly affirmed by one Mr. Basil Kerketta, the Superintendent of Police, Central Bureau of Investigation, Special Crime II, New Delhi, the following has been stated:

“2. That the contents of para 3 are wrong and denied. It is submitted that before investigation by CBI, the case was investigated by Crime Branch of Ahmedabad and they had filed two charges sheets and they had mentioned 1512 witnesses.

Thereafter, on transfer of case from Gujarat Police  to CBI conducted further investigation in compliance of direction/order vide dated 25.09.2012 of High Court of Gujarat and filed Supplementary chargesheet on 21.12.2013 on conclusion of the investigation. CBI has relied upon 121 Prosecution Witnesses. It is further submitted that till 24.11.2016 Eighty Nine (89) Prosecution Witnesses have been examined and out of these 40 witnesses have turned hostile due to the influence/threat of the accused applicant. The important witnesses including police officers are yet to be examined.

3. That the contents of para 4 are wrong and denied. It is submitted that the accused applicant is the main conspirator and kingpin in the instant case.

The PW-26 has clearly deposed before the trial court about the role played by the accused applicant in the murder of Amit Jethwa. It is further submitted that the accused applicant is trying to give a political colour to the statement of the PW-26, where as the PW has no connection with any political party at the time of recording of his statement. It is further submitted that the instant case was registered by CBI on 06.10.2012 and thereafter the witnesses were examined again as fresh and statements recorded accordingly during the course of further investigation.

4. That with regard to para 5 of the additional affidavit, it is submitted that on 15.10.2016, one PW was to be examined and prior to his examination, he filed a complaint to CBI stating therein that accused applicant and his nephew Pratapbhai Shivabhyai Solanki (Co-accused) were undue pressuring his family and elder brother of the PW on 12.10.2016 to change his version to turn hostile in the Court. A true copy of the complaint dated 14.10.2016 is annexed herewith and marked as Annexure-R-1.

Further on the complaint of PW, the Trial Court passed order to Director General of Police, Gujarat to verify the substance and to take a decision on the complaint A. true copy of the order dated 15.10.2016 passed by the Specia Judge CBI Court, Court No. 4, Ahmedabad in CBI Sessions Case No. 2/14 is annexed herewith and marked as Annexure-R-2. However, decision in the matter is still pending at the end of DGP, Gujarat.

5. That para 6 of the additional affidavit is the matter of record. Further it is submitted that the accused applicant was released on bail vide order dated 25.02.2014 by this Hon’ble Court 11 wherein it was clearly mentioned at para 61(IV) that the petitioner – appellant shall not directly or indirectly make any inducement, threat or promise to persons acquainted with the facts of the case. It is pertinent to mention here that the accused applicant started threatening the witnesses and on the complaint of the witnesses, CBI wrote a letter to Director General of Police, Gujarat and Supdt.

Of Police, Distt. Gir Somnath to provide adequate security to the witnesses that they are getting threats to life from the accused applicant. A true copy of the letter dated 9.10.2013 is annexed herewith and marked as Annexure-R-3 and a true copy of the letter dated 5.03.2014 is annexed herewith and marked as Annexure-R-4 and a true copy of the letter dated 30.09.2015 is annexed herewith and marked as Annexure-R-5. Thus, the acts and conduct of the accused applicant have violated the conditions as imposed by this Hon’ble Court while granting bail to him.

6. That para 7 of the additional affidavit is wrong and denied, it is submitted that out of 89 witnesses examined, 49 witnesses have supported the prosecution case fully and 40 witnesses have turned hostile due to the influence of the accused applicant. It is further submitted that actual position of the deposition is a matter of record.

8. That with regard to para 9, it is submitted that 126 witnesses including important witnesses are yet to be examined. Further, the accused applicant is on bail, he is making all possible efforts to influence the remaining witnesses by way of inducement promise and there is a strong possibility that the remaining witnesses may turn hostile. Till now, due to his influence, 40 witnesses have turned hostile. Keeping in view of above circumstances, it is further submitted that the bail of the accused applicant may be cancelled in the interest of justice. It is further submitted that more witnesses may be examined if necessary as this is the prerogative of the prosecution in the interest of the case.

9. It is, therefore, most respectfully prayed that this Hon’ble Court may kindly be pleased to cancel the bail granted to Dinubhai Boghabail Solanki vide order dated 25.02.2014 passed by this Hon’ble Court in Crl. Misc. Petition No. 23723 of 2013 or pass any other order as this Hon’ble Court may deem fit and proper in the interest justice. As the accused applicant don’t 12 deserve any leniency as he violated the conditions of the bail in the interest of justice.”

10. In one another affidavit filed on behalf of the CBI before this Court duly affirmed by Shri. S.S. Kishore, the Superintendent of Police, Central Bureau of Investigation, Special Crime II, New Delhi, the following assertion is made:

“6. In response to the para 14 of the petition, it is submitted that some of the witnesses have intimated regarding threats given by Shri. Dinubhai Boghabhai Solanki to them and to influence them and thereafter CBI as written letters on 09.10.2013 and 05.03.2014 to DGP of Gujarat Police for providing adequate security to the witnesses as they were under threat witnesses as they were under threat from Dinubhai Boghabhai Solanki.

7. That the contents of para 15 of the petition are matter of record. The complaint lodged with concerned police station against Sh. Dinubhai Boghabhai Solanki and others for their alleged atrocities over the witnesses pertains to the jurisdiction of local police.

10. That in para 1 of the petition, the petitioner has alleged that the shooter in the instant case i.e. Shailesh Pandya, who is presently lodged in Patan Sub Jai, is running an extortion business from the jail itself. These allegations pertain to Sub Jail Patan and concerned Jail Authorities of Patan may take immediate action in this respect.

14. That the apprehension of complainant in para 22 of the petition appears to be genuine witnesses have reported about the threats given to them by Dinubhai Boghabhai Solanki and for that local police respondent no. 3 is competent authority to take necessary steps.”

11. The High Court also took note of various complaints which were 13 made by the witnesses alleging threats being administered by Mr. Solanki as well as his accomplices. All those complaints are reproduced verbatim by the High Court in the impugned judgment. Even the Special Director, CBI had addressed letters to Director General of Police (DGP), Gandhinagar, Gujarat mentioning about the alleged threats which the complainant and his family members were receiving and requested the DGP to provide necessary police protection. So much so, the trial court was also compelled to pass orders for according protection to certain witnesses.

12. We may point out at this stage that the accused persons had opposed the prayer of the complainant in the said writ petition inter alia on the ground that such writ petition was not maintainable and the Court could not order retrial before the judgment is pronounced by the trial court. It was argued that Section 386 of the Code of Criminal Procedure, 1973 (Cr.P.C.) confers powers on the appellate court to order retrial and, therefore, it was necessary to await the judgment of the trial court and if the circumstances warranted, depending upon the outcome of the trial court verdict, such a plea could be taken in the appeal only.

It was also argued that allegations levelled by the writ petitioner (complainant) of tempering with the prosecution witnesses could not be looked into in the writ proceedings as these were disputed questions of facts. It was also submitted by the counsel of the accused persons that even those witnesses who had alleged complaints against Mr. Solanki extending threats and inducements to them, did not support the case of the prosecution except one.

The trial court had yet to appreciate the evidence of the hostile witnesses and just because these witnesses had turned hostile, was no ground or reason to discard their entire evidence. It was also argued that witnesses turn hostile for various reasons and no inference can be drawn that this phenomenon occurred only because of alleged threats or inducement and such a plea of the complainant was only presumptuous and assumptious. Allegations of extending any threats or inducement to these witnesses by approaching these witnesses were denied by the accused persons.

13. After taking note of the aforesaid facts and submissions, the High Court pointed out that moot question was as to whether it could order retrial in exercise of writ jurisdiction under Article 226 of the Constitution of India. With this poser, the High Court has analysed the said issue under the following heads:

(i) Concept of fair trial.

(ii) Hostile witnesses – a menace to the criminal justice system.

(iii) Exercise of writ jurisdiction for the purpose of retrial.

(iv) Sections 311 and 391 of Cr.P.C. and Section 165 of the Indian Evidence Act, 1872.

The High Court has given a detailed discourse on the necessity to have a fair trial, as a backdrop of the rule of law as well as for dispensation of criminal justice. Taking cognizance of so many judgments of this Court wherein the concept of fair trial with the sole idea of finding the truth and to ensure that justice is done, and extensively quoting from the said judgments, the High Court has emphasised that free and fair trial is sine qua non of Article 21 of the Constitution of India. It has also remarked that criminal justice system is meant not only safeguarding the interest of the accused persons, but is equally devoted to the rights of the victims as well.

If the criminal trial is not free and fair, then the confidence of the public in the judicial fairness of a judge and the justice delivery system would be shaken. Denial to fair trial is as much injustice to the accused as to the victim and the society. No trial can be treated as a fair trial unless there is an impartial judge conducting the trial, an honest and fair defence counsel and equally honest and fair public prosecutor. A fair trial necessarily includes fair and proper opportunity to the prosecutor to prove the guilt of the accused and opportunity to the accused to prove his innocence.

14. The High Court has also highlighted that the role of a judge in dispensation of justice, after ascertaining the true facts, is undoubtedly very difficult one. In the pious process of unraveling the truth so as to achieve the ultimate goal of dispensing justice between the parties, the judge cannot keep himself unconcerned and oblivious to the various happenings taking place during the progress of trial of any case. It is his judicial duty to remain very vigilant, cautious, fair and impartial, and not to give even a slightest of impression that he is biased or prejudiced, either 2 16 due to his own personal convictions or views, in favour of one or the other party.

This, however, would not mean that the Judge will simply shut his own eyes and be a mute spectator, acting like a robot or a recording machine to just deliver what is fed by the parties. Although, the Courts are required to remain totally unstirred, unaffected and unmoved amidst the storms and tribulations of various corrupt and flagitious activities happening around them involving the police, the prosecutor or the defence counsel or even the whirlwind publicity of a high profile case which affects the public opinion and motivates media trial, but it cannot be expected of them not to deprecate or condemn such misdeeds of those culprits who are hell bent to pollute the stream of judicial process.

15. It is not necessary to reproduce those copious quotes from various judgments which have been incorporated by the High Court. However, following passage from the judgment in Ajay Singh needs reiteration as it sums up the entire fulcrum astutely: “Performance of judicial duty in the manner prescribed by law is fundamental to the concept of rule of law in a democratic State. It has been quite often said and, rightly so, that the judiciary is the protector and preserver of rule of law.

Effective functioning of the said sacrosanct duty has been entrusted to the judiciary and that entrustment expects the courts to conduct the judicial proceeding with dignity, objectivity and rationality and finally determine the same in accordance with law. Errors are bound to occur but there cannot be deliberate peccability which can never be countenanced.

The plinth of justice dispensation system is founded on the faith, trust and confidence of the people and nothing can be allowed to contaminate and corrode the same. A litigant who comes to a court of law expects that inherent and essential principles of adjudication like adherence to doctrine of audi alteram partem, rules pertaining to fundamental adjective and seminal substantive law shall be followed and ultimately there shall be a reasoned verdict. When the accused faces a charge in a court of law, he expects a fair trial The victim whose grievance and agony have given rise to the trial also expects that justice should be done in accordance with law. Thus, a fair trial leading to a judgment is necessitous in law and that is the assurance that is thought of on both sides.

The exponent on behalf of the accused cannot be permitted to command the trial as desired by his philosophy of trial on the plea of fair trial and similarly, the proponent on behalf of the victim should not always be allowed to ventilate the grievance that his cause has not been fairly dealt with in the name of fair trial. Therefore, the concept of expediency and fair trial is quite applicable to the accused as well as to the victim. The result of such trial is to end in a judgment as required to be pronounced in accordance with law. And, that is how the stability of the credibility in the institution is maintained.”

16. The High Court, thereafter, described the phenomena of hostile witnesses which have assumed alarming proportion to the criminal justice system in India and adversely affecting the fair trial and justice dispensation system. In the process, the High Court has again referred to various judgments3.

17. After making general remarks in respect of witnesses turning hostile which has started happening too frequently in the cases tried in Courts in India, including the evil of perjury which has assumed alarming proportions 3 18 in case after case coming before the Courts, the High Court summed up the events which took place in the instant case in the following words:

“58. The facts narrated above are glaring and shocking. Right from the day, the son of the writ applicant came to be murdered, till this date, the manner and method in which the accused persons, more particularly, Dinu Bogha Solanki have dominated the proceedings speak volumes of the power they are able to wield. The present factual conspectus leaves one with a choice either to let the ongoing trial casually drift towards its conclusion with the strong possibility of offence going unpunished or to order a retrial belated though, to unravel the truth, irrespective of the time that may be consumed.

As it is, every offence is a crime against the society and is unpardonable, yet there are some species of ghastly, revolting and villainous violation of the invaluable right to life which leave all sensible and right minded persons of the society shell-shocked and traumatized in body and soul. One fails to understand that how could 105 witnesses turn hostile…”

18. The High Court has also mentioned about the bold and honest stand of the CBI in this case by filing two affidavits wherein CBI had stated that witnesses were being threatened and on account of which, not a single witness was ready and willing to depose.

19. In this backdrop, argument of the accused persons predicated on Section 368 of Cr.P.C. (as noted above) is answered as follows:

“60. In the gross facts which I have highlighted, should I tell the devastated and crestfallen father that although the trial has been a farce, yet the Appeal Court will look into the matter if necessary in exercise of its powers under Section 386 of the Cr. P.C?

It is like telling the victim to undergo an unfair trial because there is an Appellate Court to give him a fair hearing and the necessary relief. Should I ask the writ applicant to adduce materials in the form of proof beyond reasonable doubt as regards the tampering of the witnesses?

Is the material on record not sufficient for this Court to draw a legitimate inference that it is only on account of sheer power and position of the main accused that the entire trial has been reduced to a farce and could be termed as a mock trial? I have no hesitation in rejecting the arguments of the learned counsel appearing for the accused persons that merely because the witnesses turned hostile, the Court cannot order a retrial in exercise of its extraordinary powers under Article 226 of the Constitution of India.

A very feeble argument has been canvassed before me that none of the witnesses complained to the Presiding Officer that they were being threatened or induced by the accused persons. A witness, who has been administered dire threats or won over would never dare to utter a single word. It was for the Presiding Officer and the prosecuting agency to look into the matter and see to it that all the witnesses deposed freely and without any fear in their mind.”

20. Quoting extensively from the judgment of this Court in Ramesh and others v. State of Haryana4 wherein a serious note of witnesses turning hostile in criminal cases has been highlighted and various reasons noted therein making the witnesses retract their statements before Court and turning hostile, the High Court has stated that in the instant case, the realistic view of the matter would demonstrate that the major cause for turning witnesses hostile was the result of threat and intimidation. We may mention that in para 44 of the judgment in the case of Ramesh and others, following reasons were assigned for witnesses turning hostile:

“44. On the analysis of various cases, following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile:

“(i) Threat/intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of Stock Witnesses.

(v) Protracted Trials.

(vi) Hassles faced by the witnesses during investigation and trial.

(vii) Non-existence of any clear-cut legislation to check hostility of witness.”

45. Threat and intimidation has been one of the major causes for the hostility of witnesses…”

21. The High Court has commented about the present case as under:

“63. The case on hand is not one in which the witnesses turned hostile on account of the “culture of compromise”, as explained by the Apex Court. The case on hand is one in which threats and intimidation have been the major causes for the hostility of the witnesses. The Court, therefore, is expected to deal with this type of cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually loose faith in the efficacy of the system of the judiciary itself, which, if it happens, will be a sad day for any one to reckon with one.”

22. At the same time, discussing the law governing de novo trial, the High Court has accepted the fact that such de novo trial or retrial of the accused should be ordered in exceptional and rare cases where such courts becomes indispensable to avert the failure of justice. Keeping in view this caution, the High Court proceeded to discuss the issue as to whether such a power of directing retrial can be exercised in writ jurisdiction.

Answering this question in affirmative, the High Court took support of the judgment of Punjab and Haryana High Court wherein it had taken suo moto cognizance of a matter in which the accused persons came to be acquitted and the State also did not prefer any appeal against the acquittal.

A news item in this regard was published in The Hindustan Times dated November 14, 2007 on the basis of which cognizance was taken and the Court declared trial of the accused persons to be wholly vitiated and non est in law. While doing so, in exercise of power under Article 226 of the Constitution of India, the Court had explained the contours of this power in the following words:

“33. We are conscious of the fact that in the present case, we are essentially exercising our jurisdiction under Article 226 of the Constitution and we are not acting as an appellate court under the provisions of the Code of Criminal Procedure. The question that will, therefore, arise is the availability of the writ power to deal with the situation and to issue necessary and appropriate directions in the matter.

34. The power under Article 226 of the Constitution is incapable of a precise definition as to its contours and extent. The jurisdiction under Article 226 may require a severely circumscribed exercise in a given case though, in another, the use of the power could be wide and expansive.

The extent to which the writ power is to be exercised will depend upon the facts of a given case, though the ultimate objective of such exercise would always be to secure justice and to strike at injustice. The Courts, therefore, will have to rise to the occasion or else they may fail as the learned trial Court did in the present case. In a situation where the trial held against the two accused clearly depicts monstrous perversities and gross abuse of process of law and yet no appeal against the acquittal of the two accused had been preferred, the Court can remain a passive onlooker only at the cost of being faulted by posterity.

The exercise of the writ jurisdiction to interfere with the verdict of a criminal trial must, therefore, be made. New paths will have to be chartered and innovations made to deal with the myriad situations that may arise from time to time.”

23. The High Court also referred to the decision in the case of Ayodhya Dube v. Ram Sumer Singh5, wherein a three-Judge Bench of the Supreme Court, while explaining the decision in the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh6 observed that: “…we only wish to say that the criminal justice system does not admit of ‘pigeon holing’. Life and the Law do not fall neatly into slots. When a court starts laying down rules enumerated (1), (2), (3), (4) or (a), (b), (c), (d), it is arranging for itself traps and pitfalls. Categories, classifications and compartments, which statute does not mention, all tend to make law ‘less flexible, less sensible and less just.'”

24. Many more judgments touching upon the expansive powers of the Constitutional Courts under Articles 32 and 226 of the Constitution of India are also cited and argument of the counsel for the accused persons that High Court should not indict the trial court proceedings at this stage is brushed aside with the following discussion:

“85. In view of the above, the contention canvassed on behalf of the accused persons that the writ application under Article 226 of 56 23 the Constitution of India seeking a retrial even before the pronouncement of the judgment by the Trial Court is not maintainable, is rejected. To tell the writ applicant that he should wait for the final outcome of the trial, and if ultimately, the accused persons are acquitted, he may file an appeal before the Appellate Court will be nothing, but adding insult to the injury.

It is a matter of common experience that the criminal appeal, be it one of conviction or acquittal takes years before the same is disposed of finally. The passage of time by itself would prove detriment to the interest of the prosecution. It is very easy for the learned counsel appearing for the accused persons to argue that the Trial Court has to yet appreciate the evidence on record and reach to an appropriate conclusion. In my view, what is left now to appreciate when 105 witnesses outright have been declared hostile. It is the brazen highhandedness on the part of the accused persons which warrants retrial.

The distortion in the present case is so brazen that even the worms turned. Ultimately, whatever may be the outcome of the retrial, the Court should not shut its eyes and raise its hands in helplessness saying that what can be done. The witnesses should also be made to realise that they cannot take things lightly and owe a great responsibility when they are appearing before the Court to depose in a trial where the accused persons are charged with a serious offence of murder. If such would be the attitude of the Courts, the judiciary will be reduced to a mere laughing stalk.”

25. The aforesaid thought process is carried further by the High Court while discussing another related argument of the accused persons, namely, the prosecuting agency could have preferred an application under Section 311 of the Cr.P.C. for recalling of the witnesses and further that even in an appeal, the prosecution was at liberty to pray for leading additional evidence under Section 391 of the Cr.P.C. and, therefore, the Court should not order retrial. This argument has also been authoritatively and emphatically rejected with detailed discussion. We are not taking note 24 of those details as this argument was not pressed before us by the counsel for the accused persons in their appeals.

26. Summing up the discussion, the High Court concluded that in this case retrial was the only solution to prevent the miscarriage of justice. In the process, the High Court has also directed that the Presiding Officer who was conducting a trial should not be allowed to continue. Since, a plea was raised by the learned senior counsel appearing for the appellants that the adverse remarks which are made by the High Court against the Presiding Officer should be expunged, we are reproducing below the observations of the High Court in this behalf:

“94. I have reached to the conclusion without any hesitation that retrial is the only solution to prevent the miscarriage of justice. If ultimately retrial is to be ordered, the same should be conducted by any other Presiding Officer because this Court has lost confidence in the present Presiding Officer. I could have observed many things as regards the Presiding Officer, but, for one good reason, I have restrained myself. My observations would have only brought a bad name for this institution. For me, the image and prestige of this institution and the judiciary as a whole is supreme. It is said that the life of law is justice and it is for the Judge to breath life into law. Men of character inspired by high ideals are needed to infuse life and spirit in the skeleton of law. Let the High Court on its administrative side look into the matter.”

27. The aforesaid discussion led to allowing the writ petition and passing the directions for de novo trial which have already been reproduced.

28. We have discussed the judgment of the High Court, impugned in these appeals, at some length, with a specific purpose in mind. It would be relevant to point out that the arguments addressed by learned senior counsel M/s. Mukul Rohatgi, Neeraj Kishan Kaul and N.D. Nanavati appearing for different accused persons, were the same arguments which were advanced before the High Court and, therefore, we deemed it proper to narrate the manner in which the High Court has dealt with these arguments.

Another related objective for discussing the judgment of the High Court in some detail was that since we are in complete agreement with the approach of the High Court in the manner in which the issue of retrial has been dealt with in the facts of this case, it would not be necessary for us to spell out and restate those very reasons which have prevailed with the High Court.


29. We may hasten to add that normally such a retrial has to be ordered by the Appellate Court while dealing with the validity and correctness of the judgment of the trial court as this power is expressly conferred upon the Appellate Court by Section 386 of the Cr.P.C. However, in exceptional circumstances, such a power can be exercised by the High Court under Article 226 or by this Court under Article 32 of the Constitution of India. In fact, there are judicial precedents to this effect which have already been mentioned above.

There are no shackles to the powers of the Constitutional Court under these provisions, except self-imposed restrictions laid down by Courts themselves. But for that, these powers are plenary in nature meant to do complete justice and to inhibit travesty of justice. Therefore, we are largely in agreement with the conclusion arrived at by the High Court to the effect that the present case was one of those exceptional cases where possibility of witnesses getting hostile because of inducement or threats cannot be ruled out.

30. We are not suggesting that Mr. Solanki and his nephew are the persons responsible for the murder of Amit Jethwa. That charge which is levelled against them and other accused persons has to be proved in the trial by cogent evidence. We are also mindful of the principle that standard of proof that is required in such criminal cases is that the guilt has to be proved beyond reasonable doubt. However, at the same time, it is also necessary to ensure that trial is conducted fairly where witnesses are able to depose truthfully and fearlessly.

Old adage judicial doctrine, which is the bedrock of criminal jurisprudence, still holds good, viz., the basic assumption that an accused is innocent till the guilt is proved by cogent evidence. It is also an acceptable principle that guilt of an accused is to be proved beyond reasonable doubt. Even in a case of a slight doubt about the guilt of the under trial, he is entitled to benefit of doubt. All these principles are premised on the doctrine that ‘ten criminals may go unpunished but one innocent person should not be convicted”. Emphasis here is on ensuring that innocent person should not be convicted.

Convicting innocence leads to serious flaws in the criminal justice system. That has remained one of the fundamental reasons for loading the processual system in criminal law with various safeguards that accused persons enjoy when they suffer trials. Conventional criminology has leaned in favour of persons facing trials, with the main objective that innocent persons should not get punished.

31. At the same time, realisation is now dawning that other side of the crime, namely, victim is also an important stakeholder in the criminal justice and welfare policies. The victim has, till recently, remained forgotten actor in the crime scenario. It is for this reason that “victim justice” has become equally important, namely, to convict the person responsible for a crime. This not only ensures justice to the victim, but to the society at large as well.

Therefore, traditional criminology coupled with deviance theory, which had ignored the victim and was offender focussed, has received significant dent with focus shared by the discipline by victimology as well. An interest in the victims of the crime is more than evident now7. Researchers point out at least three reasons for this trend. First, lack of evidence that different sentences had differing impact on offenders led policy-makers to consider the possibility that crime might be reduced, or at least constrained, through situational measures.

This in turn led to an emphasis on the immediate circumstances surrounding the offence, of necessity incorporating the role of the victim, best illustrated in a number of studies carried out by the Home Office (Clarke and Mayhew 1980). Second, and in complete contrast, the developing impact of feminism in sociology, and latterly criminology, has encouraged a greater emphasis on women as victims, notably of rape and domestic violence, and has more widely stimulated an interest in the fear of crime.

Finally, and perhaps most significantly, criticism of official statistics has resulted in a spawn of victim surveys, where sample surveys of individuals or households have enabled considerable data to be collated on the extent of crime and the characteristics of victims, irrespective of whether or not crimes become known to the police. It is for this reason that in many recent judgments rendered by this Court, there is an emphasis on the need to streamline the issues relating to crime victims.

32. There is a discernible paradigm shift in the criminal justice system in India which keeps in mind the interests of victims as well. Victim oriented policies are introduced giving better role to the victims of crime in criminal trials. It has led to adopting two pronged strategy. On the one hand, law now recognises, with the insertion of necessary statutory provisions, expanding role of victim in the procedural justice. On the other hand, substantive justice is also done to these victims by putting an obligation on the State (and even the culprit of crime) by providing adequate compensation to the victims. The result is that private parties are now able to assert “their claim for fair trail and, thus, an effective ‘say’ in criminal prosecution, not merely as a ‘witness’ but also as one impacted“.

33. That apart, it is in the larger interest of the society that actual perpetrator of the crime gets convicted and is suitably punished. Those persons who have committed the crime, if allowed to go unpunished, this also leads to weakening of the criminal justice system and the society starts losing faith therein. Therefore, the first part of the celebrated dictum “ten criminals may go unpunished but one innocent should not be convicted” has not to be taken routinely. No doubt, latter part of the 9 10 30 aforesaid phrase, i.e., “innocent person should not be convicted” remains still valid.

However, that does not mean that in the process “ten persons may go unpunished” and law becomes a mute spectator to this scenario, showing its helplessness. In order to ensure that criminal justice system is vibrant and effective, perpetrators of the crime should not go unpunished and all efforts are to be made to plug the loopholes which may give rise to the aforesaid situation.

34. The position which emerges is that in a criminal trial, on the one hand there are certain fundamental presumptions in favour of the accused, which are aimed at ensuring that innocent persons are not convicted. And, on the other hand, it has also been realised that if the criminal justice system has to be effective, crime should not go unpunished and victims of crimes are also well looked after. After all, the basic aim of any good legal system is to do justice, which is to ensure that injustice is also not meted out to any citizen. This calls for balancing the interests of accused as well as victims, which in turn depends on fair trial. For achieving this fair trial which is the solemn function of the Court, role of witnesses assumes great significance. This fair trial is possible only when the witnesses are truthful as ‘they are the eyes and ears’ of the Court.

35. We are conscious of the fact that while judging as to whether a particular accused is guilty of an offence or not, emotions have no role to play. Whereas, victims, or family of victims, or witnesses, may become emotive in their testimonies, in a given case, as far as the Court is concerned, it has to evaluate the evidence which comes before it dispassionately and objectively.

At the same time, it is also a fact that emotion pervades the law in certain respects. Criminal trials are not allusive to the fact that many a times crimes are committed in the ‘heat of passion’ or even categorised as ‘hate crimes’. Emotions like anger, compassion, mercy, vengeance, hatred get entries in criminal trials. However, insofar as the Judge is concerned, most of these emotions may become relevant only at the stage of punishment or sentencing, once the guilt is established by credible evidence, evaluated objectively by the Court.

The aforesaid factors, then, become either mitigating/extenuating circumstances or aggravating circumstances. We make it clear that these factors have not influenced us. We also expect that the trial court will not go by such considerations insofar as first stage is concerned, namely, evaluating the evidence to decide as to whether accused persons are guilty of the offence or not. That part is to be performed in a totally objective manner. Reason is simple. The manner in which the murder of 11 32 Amit Jethwa is committed may be cruel or ruthless. However, in the first instance it has to be examined as to whether the accused persons are responsible for the said murder or they (or some of them) are innocent.

36. Keeping in mind the aforesaid jurisprudential philosophy of criminal law, let us examine the events and eloquent facts of this case, with a deeper sense. A cumulative and non-disjunctive stare at those facts would amply justify the conclusion of the High Court, and approaching the case in a right perspective. It would be more so, when examined in the background in which events took place right from the day of murder of the complainant’s son. It has come on record that the victim was an activist who had been taking number of cases which are taken note of by the High Court in para 4.3 of the impugned judgment.

It is also an admitted fact that the victim Amit Jethwa had filed a Public Interest Litigation (PIL) in the High Court against illegal mining within 5 kms. radius from the boundary of the Gir Sanctuary. In that petition, he had pleaded for protection of environment generally and the biodiversity of Gir Forest, in particular. Mr. Solanki and his nephew were got impleaded in the said PIL whose names emerged during the pendency of that petition.

37. After the murder of the said activist, the case was registered with the Sola Police Station. But the investigation was lackadaisical. The complainant was forced to approach the High Court to seek necessary directions for proper investigation. The High Court was compelled to intervene and it transferred the investigation to an independent investigating agency, i.e., CBI. It is only thereafter that investigation progressed and chargesheets were filed.

It also needs to be borne in mind that soon after Mr. Solanki was released on bail, application for cancellation of bail was filed by the complainant with the allegations that Mr. Solanki was extending threats to the complainant, his family members as well as witnesses. Even some witnesses complained to this effect. What is revealing that this application is supported by the CBI affirming the stand of the complainant to the effect that witnesses are threatened.

38. Trial is expedited on the directions of the Court and witnesses start turning hostile. It is difficult to say, at least, prima facie, that in the given scenario, the CBI, during investigation, would have compelled the witnesses to give statements against the accused persons. In any case, that is also a matter to be finally tested at the time of trial. However, it is stated at the cost of repetition that requirement of a fair trial has to be fulfilled. When the trial takes place, as many as 105 witnesses turn hostile, out of 195 witnesses examined, is so eloquent that it does not need much effort to fathom into the reasons there for. However, when the aforesaid facts are considered cumulatively, it compels us to take a view that in the interest of fair trial, at least crucial witnesses need to be examined again.

39. Having depicted our thought process which is generally in tune with the approach adopted by the High Court, we need to enter caveat on two aspects:

(i) Whether it was a case where entire de novo trial is necessitated?

(ii) Whether the High Court is justified in passing strictures against the Presiding Officer of the trial court?

40. Insofar as first aspect is concerned, it transpires that the CBI had stated before the High Court that de novo trial may not be necessary and the purpose would be served by recalling 46 witnesses, out of which witnesses are cited as eye-witnesses. We feel that the examination of all the witnesses once again in de novo trial may not be appropriate in the circumstances of this case. On the order passed by this Court for conducting day to day trial, the trial court could record the deposition of 195 witnesses over a period of one year.

Obviously, in the process of giving priority to this case by fixing it for evidence, practically on every working day, same would have happened at the cost of adjourning many other cases. Directing a trial court to spend this kind of time once again is a tall order and the same purpose which is sought to be achieved by the High Court could be served by re-examining only those witnesses which are absolutely necessary. After all, out of 195 witnesses, if 105 witnesses have been declared hostile, 90 other witnesses have been examined and cross-examined and their deposition is not required to be recorded again. Further, among them, there would be many officials/formal witnesses as well.

Likewise, some of the witnesses though turned hostile, their testimony may not have much bearing. In this scenario, we had asked Mr. Nadkarni, learned ASG who appeared for CBI to discuss the matter with CBI and on objective and fair assessment, give the list of those witnesses afresh deposition whereof is absolutely essential. After undertaking the aforesaid exercise and on instructions from CBI, Mr. Nadkarni stated that apart from 8 eye-witnesses, more witnesses need to be necessarily examined. Out of those, 15 persons are witnesses for circumstantial evidence and 3 are panch witnesses relating to various panchnamas.

He was categorical that when all 8 eye-witnesses are examined afresh along with other 18 witnesses as aforesaid, it would subserve the purpose for which trial is reordered. Mr. Rohatgi, in response, had stated, without 36 prejudice to this contention that no such retrial was necessary at all, direction should be confined to 8 eye-witnesses only if at all some witnesses need to be re-examined. Since we have rejected the contention of the learned counsel of the accused persons on the merits of the case, we are of the opinion that witnesses, list whereof was furnished by Mr. Nadkarni in the Court with copies to the learned counsel for the accused persons, should be re-examined.

41. Coming to the second aspect of remarks against the Judge, no fault can be formed about the general observations of the High Court about the role of the trial court judge who is not supposed to be a mute spectator when he finds that witnesses after witnesses are turning hostile. Following general comments are made by the High Court in this behalf:

“86. Criticizing the sharp decline of ethical values in public life even in the developed countries much less developing one, like ours, where the ratio of decline is higher is not going to solve the problem. Time is ripe for the Courts to take some positive action.

Sections 195 and 340 of the Cr. P.C. could hardly be termed as the effective measures to combat with the menace of the witnesses turning hostile. If the witnesses have been won over in one way or the other, they are bold enough to even face the prosecution under Section 340 of the Cr. P.C. However, the same ultimately does not serve any purpose because the guilty goes unpunished. In the recent times, the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a sharp judgment so as to achieve the yardstick of disposal.

These days when crime is looming large and humanity is suffering and society is so much affected thereby, the duties and responsibilities of the Courts have become much more. Now the maxim let hundred guilty persons be acquitted, but not a single innocent be convicted’ is, in practice, changing world over and the Courts have been compelled to accept that the ‘society suffers by wrong convictions and it equally suffers by wrong acquittals’. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

The need of the hour is ‘robust judging’. The trial Judge is the linchpin in every case, and he has also its eyes and ears. He is not merely a recorder of facts, but a purveyor of all evidence, oral and circumstantial. It is said that a good trial Judge needs to have a ‘third ear’ i.e. hear and comprehend what is not said. When a material eyewitness, one after the other start resiling from their statements made before the police, this must obviously excite suspicion in the mind of the trial Judge to probe further and question the witness (even if the prosecutor does not do so).

(emphasis supplied)”

42. At the same time, condemnation of the Presiding Officer and going to the extent of damning him, albeit, in an oblique manner, may not be justified in the facts of this case. No doubt, it was expected of the Presiding Judge to play more active and positive role. However, if error is committed on that front, it is also not appropriate to arrive at other extreme conclusions against that Presiding Officer in the absence of any cogent evidence against him.

We were also informed that the said Presiding Officer is at the verge of retirement and is going to retire within a couple of months, after rendering long service of more than 30 years. This Court has time and again stated that the High Court should not lightly pass 38 strictures against the judges in the subordinate judiciary {See – Awani Kumar Upadhyay v. High Court of Judicature of Allahabad and Others and Amar Pal Singh v. State of Uttar Pradesh and Another13}.

43. At the time of hearing, we were informed that in routine transfers of judicial officers, the Presiding Officer who was dealing with this matter stands transferred to another city in the State of Gujarat. Therefore, it was agreed by learned counsel for the accused persons as well that, for this reason alone, he ceases to be the Presiding Officer of CBI, Court No. 4, Ahmedabad and, therefore, would not be dealing with this matter in any case. But, we feel that direction to take up the matter against him on administrative side does not seem to be appropriate.

44. Accordingly, we dispose of the appeals with modification of the direction of the High Court in respect of aforesaid two aspects. In the first instance, instead of entire de novo trial, only 26 witnesses would be examined afresh as per the list furnished by the CBI. Secondly, direction to look into the matter against the Presiding Judge on administrative side of the High Court is set aside.

45. With this, we advert to the application filed by the complainant for cancellation of bail. As mentioned above, application for cancellation of bail has been filed on the ground that Mr. Solanki had been threatening the witnesses; threats have been extended to the complainant and his family members as well for whose protection CBI had written to the DGP, Gujarat and it is also stated that apprehension of the complainant expressed earlier which can be discerned from the events that have taken place.

Coupled with that, a very pertinent and significant factor is that even CBI has affirmed the aforesaid plea of the complainant with categorical assertion that the witnesses are threatened by Mr. Solanki. In this scenario, prima facie case for cancellation of bail has been made out. In this behalf, we may usefully refer to the following discussion in State of Bihar v. Rajballav Prasad Alias Rajballav Prasad Yadav Alias Rajballabh:

“23. Keeping in view all the aforesaid considerations in mind, we are of the opinion that it was not a fit case for grant of bail to the respondent at this stage and grave error is committed by the High Court in this behalf. We would like to reproduce following discussion from the judgment in Kanwar Singh Meena v. State of Rajasthan (SCC pp. 186 & 189, paras 10 & 18)

“10. … While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all.

The High Court or the Sessions Court can cancel bail even in cases where the order granting bail  suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail.

The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail.

***

18. Taking an overall view of the matter, we are of the opinion that in the interest of justice, the impugned order granting bail to the accused deserves to be quashed and a direction needs to be given to the police to take the accused in custody.”

24. As indicated by us in the beginning, prime consideration before us is to protect the fair trial and ensure that justice is done. This may happen only if the witnesses are able to depose without fear, freely and truthfully and this Court is convinced that in the present case, that can be ensured only if the respondent is not enlarged on bail. This importance of fair trial was emphasised in Panchanan Mishra v. Digambar Mishra, while setting aside the order of the High Court granting bail in the following terms: (SCC pp. 147-48, para 13) “. We have given our careful consideration to the rival submissions made by the counsel appearing on either side.

The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail 41 order from tampering with the evidence in the heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the interest of the prosecution.

It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.”

25. Such sentiments were expressed much earlier as well by the Court in Talab Haji Hussain v. Madhukar Purshottam Mondkar in the following manner: (AIR p. 379, para 6)

“6. … There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country.

In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked.”

46. In this hue, we need to examine as to whether purpose can be served by banning the entry of Mr. Solanki in the city of Gujarat.

It was passionately argued by Mr. Rohatgi that during the period aforesaid witnesses are examined, Mr. Solanki can be barred from entering Gujarat. He even offered that Mr. Solanki would remain in Delhi during that period. In normal circumstances, we would have accepted this suggestion of Mr. Rohatgi. For examining this argument, we have to keep in mind the principle laid down by this Court in Masroor v. State of Uttar Pradesh and Another15, expressed in the following words:

“15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned.

In this context, the following observations of this Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan are quite apposite: (SCC p. 691, para 6) “6. … Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.” We, thus, require to adopt a balancing approach which takes care of right of liberty of Mr. Solanki as an undertrial and at the same time the interest of the society in general, viz., the fair trial is also fulfilled.

47. Going by the exceptional circumstances in which retrial is ordered by the High Court, and is being maintained in principle, with only modification that instead of all witnesses,  witnesses would be re-examined, we are of the opinion that in order to ensure that there is a fair trial in literal sense of the term, at least till the time eight eye-witnesses are re-examined, Mr. Solanki should remain in confinement and he be released thereafter with certain conditions, pending remaining trial. We, therefore, dispose of Criminal Miscellaneous Petition No. 14006 of 2015 with the following directions:

a) Bail granted to Mr. Solanki by this Court vide order dated February 25, 2014 stands cancelled for the time being. He shall be taken into custody and shall remain in custody during the period eight eye-witnesses are re-examined.

b) The trial court shall summon 26 witnesses who are to be examined afresh. In the first instance, 8 eye-witnesses shall be summoned and examined on day to day basis. Once their depositions in the form of examination-in-chief and cross-examination are recorded, Mr. Solanki shall be released on bail again on the same terms and conditions on which he was granted bail earlier by this Court by order dated February 25, 2014. After Mr. Solanki comes out on bail, there shall be an additional condition, namely, till the recording and completion of the statements of other witnesses, he shall not enter the State of Gujarat.

To put it clearly, after Mr. Solanki is released on bail, he shall immediately move out of the State of Gujarat and shall not enter the said State till the completion of remaining evidence, except on the days of hearing when he would be appearing in the court. It will be open to the trial court to add any further conditions, if the circumstances so warrant.

c) The trial court shall also endeavour to record the remaining evidence as well as expeditiously as possible by conducting the trial on day to day basis.

48. Appeals and applications stand disposed of in the aforesaid terms.

NEW DELHI;

OCTOBER 30, 2017


*[Criminal Appeal No. 1854 of 2017 arising out of SLP (Criminal) No. 4965 of 2017] [Criminal Appeal No. 1855 of 2017 arising out of SLP (Criminal) No. 5086 of 2017] [Criminal Appeal No. 1856 of 2017 arising out of SLP (Criminal) No. 5309 of 2017] [Criminal Appeal No. of 2017 arising out of SLP (Criminal) No. 5321 of 2017]

Santosh Kumar Satishbhushan Bariyar Vs State of Maharashtra-Law of Death penalty explained

13-05-2009-

Criminal Law-min

Keywords-Death Penalty-Special reason-Pardon to accomplice

JT 2009 (7) SC 248 : (2009) 7 SCALE 341 : (2009) 6 SCC 498 : (2009) 9 SCR 90

(SUPREME COURT OF INDIA)

Santosh Kumar Satishbhushan Bariyar Appellant
Versus
State of Maharashtra Respondent

AND

State of Maharashtra Appellant
Versus
Sanjeevkumar Mahendraprasad Roy and ANOTHER Respondent

(Before : S. B. Sinha and Cyriac Joseph, JJ.)

Criminal Appeal Nos. 1478 of 2005 and 452 of 2006; Decided On: 13-05-2009

Criminal Procedure Code, 1973—Sections 366, 363, 387, 164 and 307—Penal Code, 1860—Sections 302, 364A and 120B—Arms Act, 1959—Sections 4 and 25—Evidence Act, 1872—Section 30.

Counsel for Parties:

Sushil Kumar, Sr. Adv., Prabhash Kr. Yadav, V.K. Monga, C.P. Yadav, Aditya Kumar, Menakshi Kumar, Vinay Arora and Sudarshan Singh Rawat, Advs

Ravindra K. Adsure, Anjani Kumar Mishra, Gautam Godara, Advs. for V.N. Raghuparthy, Adv. and Rana Rami Singh, Adv.

JUDGMENT

S.B. Sinha, J—

INTRODUCTION

1. These two appeals arise out of a common judgment of conviction and sentence dated 12th August, 2005 passed by the High Court of Judicature at Bombay in Confirmation Case No. 2 of 2004 and three connected appeals; one filed by the State and two by the accused, whereby and whereunder it confirmed and accepted the reference made to it in terms of Section 366 of the Code of Criminal Procedure, 1973 in the case of Santoshkumar Satishbhushan Bariyar (appellant in Criminal Case No. 1478 of 2005), and upheld the conviction and sentence of life imprisonment in the case of the other accused (respondents in Criminal Appeal No. 452 of 2006).

2. Whereas Criminal Appeal No. 1478 of 2005 has been preferred by Santoshkumar Satishbhushan Bariyar (A1) (hereinafter referred to as “the appellant”), the State has filed Criminal Appeal No. 452 of 2006 praying for enhancement of sentence for Sanjeevkumar Mahendraprasad Roy (A2) and Sanotshkumar Shrijailal Roy (A3).

3. Leave in these matters was granted by this Court by orders dated 28th October, 2005 and 17th April, 2006 respectively.

BACKGROUND FACTS

4 . The facts in brief are that the accused were said to have hatched a conspiracy to abduct either one Abhijeet Kothari or one Kartikraj (the deceased) and to demand a ransom of ` 10 lacs from the victim’s family. Kartikraj was the one who was eventually kidnapped. He was working as a junior clerk in Central Railways at Pune. Ramraj, his father (PW-49) was, at the relevant time, working as Manager in NABARD, Hyderabad. Santosh Ramraj (PW-50), the younger brother of the deceased was staying with his father.

5 . Santosh Ramraj received a phone call on 8th August, 2001 at his residential telephone number disclosed by the caller, that his brother Kartikraj was in his custody. Ransom for a sum of ` 10 lacs was allegedly demanded. He was threatened that if the said amount was not paid within 24 hours then Kartikraj would be killed. The family of the deceased is said to have received some more threatening calls thereafter. Ramraj (PW-49), the father of the deceased also talked to the caller and asked him to give them time till the next day morning so that he could make arrangements for the money.

6. Ramraj (PW-49) thereafter talked to his friend Dattatraya Bhandange (PW-2) who, at the relevant time, was working as Manger in NABARD, Pune. Bhandange (PW-2) did his best to trace out Kartikraj but failed in his attempts.

7. A draft of the First Information Report was faxed by Ramraj to Bhandange’s (PW-2)’s Pune office, requesting him to lodge the same at the concerned Police Station. A photograph of Kartikraj was also sent along.

8. Pursuant thereto, a First Information Report was lodged for offences punishable under Sections 363 and 387 of the Indian Penal Code. The investigation was handed over to the Crime Branch. Santoshraj (PW-2) informed the Investigating Officer, API Lotlikar on telephone that he had again received a phone call from the kidnappers, asking him to come to Bombay with ` 10 lacs and a mobile phone. To this API Lotlikar asked him to inform the caller that instead of going himself, he would be sending a friend of his to Bombay with the money. He told him to tell to the caller that the friend’s name was Sham Naidu and that his mobile number was 9822******. Santoshraj acted accordingly. Kidnappers thereafter started calling API Lotlikar on his mobile phone thinking him to be Sham Naidu. Thus, keeping the kidnappers engaged in one conversation or the other, a trap was laid for them at Juhu on 12th August, 2001. Pursuant thereto Kumar Gaurav (PW-1), the approver and Accused Nos. 2 and 3, Sanjeevkumar Mahendraprasad Roy and Sanothskumar Shrijailal Roy were arrested. Accused No. 1, Santosh Kumar Satishbhushan Bariyar, was arrested at Andheri Railway Station. Whereabouts of Kartikraj was, however, not disclosed. The accused were thereafter produced before the Police Inspector, Dilip Bhaskar Shinde (PW-53) on 13th August,2001 in his office at Pune and were subsequently arrested.

9. One of the accused Kumar Gaurav, who has since been granted pardon, addressed a letter to the Commissioner of Police, Pune City on or about 29th October, 2001 stating that Kartikraj had been murdered by the accused on 8th August, 2001. He expressed his repentance. He also expressed his desire to make a confession. He was produced before J.M.F.C., Pune at 2.00 p.m. on 31st October, 2001. He was produced again on 1st November, 2001 when he made a statement under Section 164 of the Code of Criminal Procedure, which was recorded.

10. Upon completion of investigation, a chargesheet was filed whereupon cognizance of the offence was taken. The case was ultimately committed to the Court of Sessions by the learned Magistrate by an order dated 3rd January, 2002.

11. Before the learned Sessions Judge, Police Inspector Dilip Bhaskar Shinde (PW-53) made an application purported to be under Section 307 of the Code of Criminal Procedure on or about 21st March, 2002 praying for grant of pardon to Kumar Gaurav (PW-1). The learned Sessions Judge passed an order on 3rd April, 2002 granting pardon to him.

PROSECUTION CASE

12. As per the statement of the Kumar Gaurav (PW-1) on which the prosecution principally relies upon, he himself, Santosh Kumar Roy (A3) and Sanjeeb Kumar Roy (A2) were in search of better career prospects and all three of them decided to try their luck in the city of Bombay. Since they had no place to stay, Sanjeeb Kumar Roy (A2) contacted the appellant who was, at the relevant time, living in Pune. He was able to arrange a temporary accommodation for all of them at Kudale Patil Aangan Society in Pune.

13. As per Kumar Gaurav (PW-1), they hatched a plan to earn around 10 to 15 lacs by kidnapping two Santosh Kumar Bariyar’s (A1’s) friends by demanding ransom from their families. Appellant is said to be the master mind behind the entire plan; it was he who had floated the idea of kidnapping. According to him, he had two friends of his in mind, namely Abhijeet Kothari, whose father was a doctor, and Kartikraj, (the deceased) whose father was the Manager in NABARD. Both the families, as per the appellant, being rich, it was expected that they would be able to get a hefty sum of money as ransom upon kidnapping either of them. As per his plan if any difficulties arose they would kill the victim. He told them that they would cut the body into pieces and throw them at some place after putting them in different bags. He asked all three, whether they were ready for such a plan. All of them consented.

14. Once all of them agreed, Santosh Kumar Bariyar (A1) asked Kumar Gaurav (PW-1) to prepare a list of articles they would require for putting this plan of theirs into action. On the list were Hacksaw Blades and a sickle in case they had to cut the body. Also on it were ropes for tying up the victim; Polythene bags for putting in pieces of the dead body; rexin bags for putting in the polythene bags containing the pieces of the dead body; Sim cards for using mobile phones to contact the family of the victim and lastly Dettol to be used as a deodorant.

15. The day thereafter Santosh Kumar Bariyar (A1) also showed them the place they would be able to dispose of the body in case any need arose therefor. On the same day, in the evening, all the accused shifted to Amarpali Society which was provided to them by an agent of the appellant. It was at the said place that they decided to put their plan into action. They spent the rest of the day purchasing the items on the list they had prepared the night before, requisite amount wherefor was provided by the appellant.

16. Thereafter on 6th August, the appellant tried to contact both Abhijeet Kothari and Kartikraj. He could not get in touch with Abhijeet Kothari, but he was able to procure the contact number of the deceased. He assured all three of them that by the next day he would be able to bring Kartikraj to the flat. When asked by others, how he could be so sure, he explained that he had promised him a party in connection with his marriage and, according to him, Kartikraj would never refuse, if he is invited to a party.

17. Next day, i.e., on the 7th August, Santosh Kumar Bariyar (A1) contacted Kartikraj (the deceased) and convinced him to come to his place. In the night he brought Kartikraj to his Apartment. Kartikraj, believing that he had been invited to celebrate his friends’ marriage watched movies with them till almost midnight. Around midnight the appellant gave a purported signal to Sanjeeb Kumar Roy (A2) to execute the plan. Appellant then went behind the deceased and placed a sickle on his neck. Thereafter both the hands of the deceased were tied with a rope and his mouth with a napkin. The deceased was then dragged to the toilet where he was assaulted with kicks and blows. All this went on for two hours. Then the accused called up the family of the deceased and asked them to pay a ransom of ` 10 lacs if they wanted to see Kartikraj alive again.

18 . However the life of the deceased could have been saved had the landlord of the apartment who had come to check up on his flat the next morning suspected anything foul in the house, but unfortunately he did not. Apprehending that they might be caught, Santosh Kumar Bariyar (A1) and Kumar Gaurav (PW1) decided that it would no longer be safe to keep the deceased alive and that it was in their best interest to kill him. To end his life the appellant and Sanjeeb Kumar Roy (A2) tied a rope around his neck and pulled at it from both ends. The deceased tried to struggle but his movement stopped after sometime. His dead body was then dragged to the toilet. Santosh Kumar Bariyar (A1) then separated the head of the deceased with the hacksaw blade and a sickle. He then kept the head in a polythene bag. Thereafter he separated both the hands of the deceased. The hands too were kept in polythene bags. He then asked Sanjeeb Kumar Roy (A2) to cut the legs of the deceased, which he did. Kumar Gaurav (PW-1) and Sanjeeb Kumar Roy (A2) packed the legs into separate bags.

19. Approximately two hours were spent in cutting the body of the deceased. They then disposed of these bags containing the body parts of the deceased at different places. They also disposed of the belongings of the deceased in a similar fashion. They thereafter also cleared off all the items from the flat.

20. The next day they again called up the family of the deceased demanding ransom from them even though they had already killed their victim. They were assured by the family that they would get the ransom money but needed some more time to arrange it. It was this greed of theirs which ultimately lead to their arrest.

JUDGMENT OF THE TRIAL JUDGE

21. The prosecution examined 54 witnesses while two witnesses were examined by the defence. Relying primarily on the said evidence, the judgment of conviction and sentence was recorded by the learned Sessions Judge. The learned Sessions Judge convicted accused No. 1 of the offences punishable under Section 302 read with Section 120B as also under Sections 364A read with 120B of the Indian Penal Code. He was sentenced to death. Accused Nos. 2 and 3 were convicted of the offences punishable under Section 302 read with Section 120B as also under Sections 364A read with 120B of the Indian Penal Code. They were sentenced to suffer rigorous imprisonment for life. Besides, all the accused were found guilty of the offences under Sections 387 read with 120B; 201 read with 120B of the Indian Penal Code and Sections 4 and 25 of the Indian Arms Act and were sentenced for various terms accordingly.

CONTENTIONS RAISED

22. Mr. Sushil Kumar, learned senior counsel appearing on behalf of the appellant in Criminal Appeal No. 1478 of 2005, would submit:

(i) The courts below committed a serious illegality in recording the judgment and conviction primarily on the basis of the evidence of PW-1, Kumar Gaurav, despite the fact that he had retracted his confession, as would appear from his letter dated 6th November, 2001 (Article B).

(ii) The evidence of learned Magistrate (PW-54) could not have been relied upon by the learned Sessions Judge inasmuch there were enough materials to show that when the charge sheet was filed on 9th November, 2001 none of the accused was produced, during the period 9.11.2001 and 1.1.2002. Since PW-1 was not produced in Court there was no occasion for him to inform the Magistrate that he was not the author of Article B.

(iii) The learned Sessions Judge could not have exercised its jurisdiction under Section 307 of the Code of Criminal Procedure having regard to the fact that the requirements as contained in Sub-section (4) of Section 306 of the Code of Criminal Procedure had not been complied with.

(iv) As grant of pardon to Kumar Gaurav (PW-1) was illegal, his evidence could not have been taken into consideration as a witness examined on behalf of the prosecution and the same should have been considered to be a statement made by the accused against his other co-accused only as envisaged under Section 30 of the Indian Evidence Act.

(v) As the prosecution case hinges on the statement of Kumar Gaurav (PW-1) and the circumstantial evidence, whereupon the courts below have relied upon being not consistent with guilt of the accused; the appellant is entitled to acquittal.

(vi) In any view of the matter the quality of the evidence adduced by the prosecution is such for which the death penalty could not be imposed, particularly in view of the fact that the trial court had erroneously held that there was no mitigating circumstances therefor.

23. The learned Counsel for the State, however, supported the impugned judgment as regards the death penalty on the appellant. In support of Criminal Appeal No. 452 of 2006 relating to Sanjeevkumar Mahendraprasad Roy (A2) and Sanothskumar Shrijailal Roy (A3) it was argued that the sentence awarded to them was shockingly inadequate and that the same be enhanced to penalty of death, since the crime they had committed falls within the purview of ‘rarest of the rare cases’.

24. It was urged that Sanjeeb Kumar Roy (A2) and Santosh Kumar Roy (A3), being equal party to the crime, having had played similar role in the commission thereof, they also deserved award of death penalty. It was furthermore argued that there was not a single mitigating circumstance in favour of the accused to award to them the lesser penalty of life imprisonment.

QUESTIONS INVOLVED

25. Two principal questions, therefore, which arise for our consideration are:

(A) Whether the learned Sessions Judge acted illegally in granting pardon to Kumar Gaurav (PW-1) ; and

(B) Whether the case in hand can be said to be a ‘rarest of rare cases’

26. so as to enable the courts below to award the death penalty.

LEGALITY OF THE ORDER GRANTING PARDON

27. We shall first deal with the order of the learned Sessions Judge granting pardon to Kumar Gaurav (PW 1).

28 . Sections 306 and 307 of the Code of Criminal Procedure, 1973, which are relevant for our purpose, read as under:

306. Tender of pardon to accomplice : (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this Section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into, or trying the offence, at any stage of the inquiry or trial, may tender pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

(2) This Section applies to-

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952);

(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under Sub-section (1) shall record-

(a) his reasons for so doing

(b) whether the tender was or was not accepted by the person to whom it was made;

and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under Sub-section (1)-

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under Sub-section (1) and has been examined under Sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case-

(a) commit it for trial-

(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate ;

(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952, (46 of 1952), if the offence is triable exclusively by that Court ;

(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

307. Power to direct tender of pardon: At any time after commitment of a case but before judgement is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.

28. Section 306, thus, empowers the Chief Judicial Magistrate or a Metropolitan Magistrate or a Magistrate of the First class inquiring into or trying the offence to tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. The said provision indisputably applies to the cases triable exclusively by a Court of Sessions.

29. The Magistrate tendering pardon is required to record his reasons for so doing and to further record whether the tender was or was not accepted by the person to whom it was made. Sub-section (4) of Section 306 of the Code of Criminal Procedure mandates that such a person accepting tender of pardon must be examined as a witness in the trial. Sub-section (5) of Section 306 of the Code of Criminal Procedure provides that where a person has accepted tender of pardon made under Sub-section (1) and has been examined under Sub-section (4), the Magistrate taking cognizance of the offence shall commit it for trial, without making any further inquiry in the case.

30. Whether the terms “on the same condition” occurring in Section 307 of the Code of Criminal Procedure refer to Sub-section (4) of Section 306 thereof and as in the instant case apart from the purported statement made by Kumar Gaurav (PW-1) under Section 164 of the Code of Criminal Procedure, which had been retracted, as no other statement had been taken from him by the learned Magistrate, the order granting pardon in his favour was illegal, is the question.

31. In our opinion, the submission of Mr. Sushil Kumar does not merit acceptance.

32. Sub-section (4) of Section 306 is procedural in nature. It is necessary to be followed only by a Magistrate as he would not have any jurisdiction to try the case himself. The learned Sessions Judge before whom the case is committed for trial must be informed as to on what basis pardon had been tendered.

33. Section 307 does not contain any such condition. The power of the learned Sessions Judge is independent of the provisions contained in Section 306 thereof. The condition mentioned in Section 307 refers to the condition laid down in Sub-section (1) of Section 306, namely that the person in whose favour the pardon has been tendered, will make a full and true disclosure of the whole of the circumstances within his knowledge. The power of a Sessions Court is not hedged with any other condition.

34. The order of learned Sessions Judge dated 3rd April, 2002 shows that the learned Judge not only applied his mind on the application (Ext. P-7) for grant of pardon filed by the Investigating Officer but also examined the appellant by putting relevant questions to him.

35. The learned Sessions Judge, therefore, did not pass the order dated 3rd April, 2002 only on the basis of the purported confessional statement made by Kumar Gaurav (PW-1) on 1st November, 2001. It was not done mechanically. If in law it was not necessary for the learned Magistrate to forward a copy of the confessional statement made by Kumar Gaurav (PW- 1) under Section 164 of the Code of Criminal Procedure or to record a separate statement of the said witness for the purpose of complying with the provisions of Section 306 of the Code of Criminal Procedure, the question as to whether he had retracted from his confession or not would not be of much relevance as regards exercise of power by the learned Sessions Judge under Section 307 of the Code.

36. We may, however, notice that the learned Magistrate in his evidence categorically opined that Kumar Gaurav (PW-1) had told him that he had not signed the said application retracting his confession. It may be that the said fact was not borne out from the judicial records, which were sent to the learned Sessions Judge with the order of committal, but then we have no reason to disbelieve the statement of the learned Magistrate.

37. Strong reliance has been placed by the learned senior counsel upon a judgment of this Court in Rampal Pithwa Rahidas and OTHERS v. State of Maharashtra, 1994 CriLJ 2320 and in particular the following passage:

…We find ourselves unable to place any reliance on his untrustworthy and unreliable evidence and in that view of the matter, we refrain even from expressing any opinion about the effect of the alleged non-compliance with the provisions of Section 306(4) IPC read with Section 307 IPC, as admittedly after the grant of pardon by the order dated 24.4.1987, no statement of Ramcharan approver was recorded till he appeared at the trial as PW 49. It is only after the grant of pardon that the status of an accused is changed into that of a witness and the law enjoins upon the Courts to record the statement of the approver immediately after pardon is granted to him so that he may consider himself bound by that statement and failure to do so at the trial would render him liable for prosecution. That exercise was not performed in this case.

38. It was contended that it was obligatory on the part of the learned Sessions Judge to comply with the requirements of Sub-section (4) of Section 306 of the Code of Criminal Procedure. We, with respect, could not find that any such proposition of law was laid down in the said judgment as such.

39. A bare perusal of the said decision clearly goes to show that the evidence of approver was found to be wholly untrustworthy and unreliable. In that situation, the court refrained itself from expressing any opinion about the effect of the alleged non-compliance with the provisions of Section 306(4) of the Code of Criminal Procedure read with Section 307 thereof.

40. In the case before us the pardon granted by the learned Sessions Judge was legal. Whereas the pardon was granted on 3.04.2002, PW-1 was examined on 29.07.2002. Thus, his evidence was recorded only after grant of pardon.

41. In Narayan Chetanram Chaudhary and ANOTHER v. State of Maharashtra, 2000 CriLJ 4640 , a Division Bench of this Court, in an almost similar situation, viz., where the confessional statement was kept in a sealed cover and wherein also the learned Sessions Judge granted pardon, declined to hold that only because some delay had occurred in granting pardon, no reliance could be placed thereupon. It was furthermore opined that what was mandatory was the examination of the accomplice. Non- examination of the approver at the committal stage by the committing Magistrate, if rectified later, would not lead to any prejudice to the accused, stating:

27. There is no legal obligation on the Trial Court or a right in favour of the accused to insist for the compliance with the requirement of Section 306(4) of the Cr.PC. Section 307 provides a complete procedure for recording the statement of an accomplice subject only to compliance of conditions specified in Sub-section (1) of Section 306. The law mandates the satisfaction of the Court granting pardon, that the accused would make a full and true disclosure of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. It is not necessary to comply with the requirement of Section 306(4) when the pardon is tendered by the Trial Court. The Trial Court, in this case has taken all precautions in complying with the provisions of the Section 306(1) before tendering pardon to accused Raju, who later appeared as PW. 2. We do not find any violation of law or illegality in the procedure for tendering the pardon and recording the statement of PW.2.

42. If it is to be held that in each and every case pardon can only be granted at the initial stage, the power conferred upon the Sessions Judge to grant under Section 307 of the Code of Criminal Procedure for all intent and purport shall become otiose.

43. The order of the learned judge granting pardon to the Approver, Kumar Gaurav is, therefore, legal and valid.


LAW ON DEATH PENALTY

44. A Constitution Bench of this Court in Bachan Singh v. State of Punjab, 1980 CriLJ 636 repelled the challenge of constitutionality to death penalty by laying down the framework law on this point. Bachan Singh (supra) serves as a watershed moment in the history of death penalty jurisprudence in India as it severed Indian judiciary’s normative ambivalence on the subject.

45. It was pronounced after the new legislative policy (in form of Section 354(3) of the Code of Criminal Procedure, 1973) came into force. The impact of this legislative change was variously interpreted by this Court, and this disparity in interpretation triggered Bachan Singh (supra). One such case, which had laid down an interpretation of Section 354(3) was Rajendra Prasad v. State of Uttar Pradesh, 1979 CriLJ 792 .

46. Bachan Singh court noted that death penalty is acknowledged in the constitution. Also the new sentencing procedures were held to be to be in the nature of safeguards and as a guidance sentencing. The sentencing procedure was taken to be orienting the death punishment towards application in very selective situations. On the aforementioned reasoning, the court upheld death punishment, substantively and procedurally.

47. There are three broad values emerging from Bachan Singh (supra):

1. INDIVIDUALIZED SENTENCING

48 . For an effective compliance of sentencing procedure under Section 354(3) and Section 235(2) Cr.P.C, sufficient discretion is a pre-condition. Strict channeling of discretion would also go against the founding principles of sentencing as it will prevent the sentencing court to identify and weigh various factors relating to the crime and the criminal such as culpability, impact on the society, gravity of offence, motive behind the crime etc. Bachan Singh (supra) also holds the same view. It was held in Bachan Singh (supra) that:

173. Thirdly, a standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be judicial. It tends to sacrifice justice at the altar of blind uniformity. Indeed, there is a real danger of such mechanical standardisation degenerating into a bed of procrustean cruelty.

174. Fourthly, standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. When Parliament as a matter of sound legislative policy, did not deliberately restrict, control or standardise the sentencing discretion any further than that is encompassed by the broad contours delineated in Section 354(3), the court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do.

49. The court while discussing Furman v. Georgia 408 U.S. 238 (1972) in this regard held the following:

192. It appears to us that in Gregg v. Georgia and the companion cases, the Supreme Court of U.S.A. was obliged to read down the requirements of Furman and to accept these broadly worded, loose- ended and not-all-inclusive ‘standards’ because in the area of sentencing discretion, if it was to retain its judicial character, exhaustive standardisation or perfect regulation was neither feasible nor desirable.

50. In this context, Saibanna v. State of Karnataka, (2005) 4 SCC 165 makes an interesting reading. The accused therein was a life convict. While on parole, he committed murder of his wife and daughter. This Court sentenced him to death on a reasoning, which effectively made death punishment mandatory for the category of offenders serving life sentence, opining:

…A prisoner sentenced to life imprisonment is bound to serve the remainder of his life in prison unless the sentence is commuted or remitted and that such sentence could not be equated with any fixed term. See Gopal Vinayak Godse v. State of Maharashtra, 1961 CriLJ 736a . If that be so, there could be no imposition of a second life term on the appellant before us as it would be a meaningless exercise.

18. In the teeth of Section 427(2) of the Code of Criminal Procedure, 1973 it is doubtful whether a person already undergoing sentence of imprisonment for life can be visited with another term of imprisonment for life to run consecutively with the previous one.

51. Mandatory death punishment (prescribed under Section 303 of Indian Penal Code) was stuck down as unconstitutional by this Court in Mithu v. State of Punjab, 1983 CriLJ 811 . This Court observed:

…If the law provides a mandatory sentence of death as Section 303 of the Penal Code does, neither Section 235(2) nor Section 354(3) of the Code of Criminal Procedure can possibly come into play. If the court has no option save to impose the sentence of death, it is meaningless to hear the accused on the question of sentence and it becomes superfluous to state the reasons for imposing the sentence of death. The blatant reason for imposing the sentence of death in such a case is that the law compels the court to impose that sentence. The ratio of Bachan Singh, therefore, is that, death sentence is Constitutional if it is prescribed as an alternative sentence for the offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life.

52. Justice O. Chinnappa Reddy, J. in his concurring opinion agreed with the majority opinion and observed:

25. Judged in the light shed by Maneka Gandhi and Bachan Singh, it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable (sic irresuscitable) is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fAIR , just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional.

53. See also Reyes v. R. (2002) UKPC 11 : 12 BHRC 219; Hughes, R. v. (Saint Lucia) (2002) UKPC 12; Fox v. The Queen; Bowe v. The Queen and Coard and OTHERS v. The Attorney General (Grenada) (2007) UKPC 7

54. Saibanna (supra) to that extent is inconsistent with Mithu (supra) and Bachan Singh (supra).

2. THRESHOLD OF RAREST OF RARE

55. 2(A). Sentencing Procedure

The analytical tangle relating to sentencing procedure deserves some attention here. Sentencing procedure deserves an articulate and judicial administration. In this regard, all courts are equally responsible. Sentencing process should be so complied with, that enough information is generated to objectively inform the selection of penalty. The selection of penalty must not require a judge to reflect on his/her personal perception of crime. In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karantaka, 2008 CriLJ 3911 , the court notes that the awarding of sentence of death “depends a good deal on the personal predilection of the judges constituting the bench.” This is a serious admission on the part of this Court. In so far as this aspect is considered, there is inconsistency in how Bachan Singh (supra) has been implemented, as Bachan Singh (supra) mandated principled sentencing and not judge centric sentencing.

56. There are two sides of the debate. It is accepted that rarest of rare case is to be determined in the facts and circumstance of a given case and there is no hard and fast rule for that purpose. There are no strict guidelines. But a sentencing procedure is suggested. This procedure is in the nature of safeguards and has an overarching embrace of rarest of Rare dictum. Therefore, it is to be read with Article 21 and 14.

Pre-sentence Hearing and “Special Reasons”

57. Under Section 235(2) and 354(3) of the Criminal Procedure Code, there is a mandate as to a full fledged bifurcated hearing and recording of “special reasons” if the court inclines to award death penalty. In the specific backdrop of sentencing in capital punishment, and that the matter attracts constitutional prescription in full force, it is incumbent on the sentencing court to oversee comprehensive compliance to both the provisions. A scrupulous compliance of both provisions is necessary such that an informed selection of sentence could be based on the information collected and collated at this stage. Please see Santa Singh v. State of Punjab, 1976 CriLJ 1875 ; Malkiat Singh and OTHERS v. State of Punjab, (1991) 2 SCR 256 ; Allaudin Mian v. State of Biharu ; Muniappan v. State of Tamil Nadu, 1981 CriLJ 726 ; Jumman Khan v. State of U.P., 1991 CriLJ 439 ; Anshad and OTHERS v. State of Karnataka,, (1994) 3 SCR 642 on this.

Nature of Information to be Collated at Pre-sentence Hearing

58. At this stage, Bachan Singh (supra) informs the content of the sentencing hearing. The court must play a proactive role to record all relevant information at his stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict etc. Quality of evidence adduced is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis.

59. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender. This issue was also raised in the 48th report of the Law Commission. Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence. Objective analysis of the probability that the accused can be reformed and rehabilitated can be one such illustration. In this context, guideline No. 4 in the list of Mitigating Circumstances as borne out by Bachan Singh (supra) is relevant. The court held:

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

60. In fine, Bachan Singh (supra) mandated identification of aggravating and mitigating circumstance relating to crime and the convict to be collected in the sentencing hearing.

2(B) Nature of Content of Rarest of rare Dictum

61. Rarest of rare dictum breathes life in “special reasons” under Section 354(3). In this context, Bachan Singh (supra) laid down a fundamental threshold in the following terms:

A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

62. An analytical reading of this formulation would reveal it to be an authoritative negative precept. “Rarest of rare cases” is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of “when the alternative option is unquestionably foreclosed”. Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:

1. that the case belongs to the rarest of rare category

2. and the alternative option of life imprisonment will just not suffice in the facts of the case

63. Rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum. The background analysis leading to the conclusion that the case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception.

64. A conclusion as to the rarest of rare aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the criminal. It was in this context noted:

The expression “special reasons” in the context of this provision, obviously means “exceptional reasons” founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal

65. Curiously in Ravji alias Ram Chandra v. State of Rajasthan, AIR 1996 SC 787 this Court held that it is only characteristics relating to crime, to the exclusion of the ones relating to criminal, which are relevant to sentencing in criminal trial, stating:

…The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal

66. We are not oblivious that this case has been followed in at least 6 decisions of this Court in which death punishment has been awarded in last 9 years, but, in our opinion, it was rendered per incuriam. Bachan Singh (supra) specifically noted the following on this point:

…The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration “principally” or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal

67. Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra, AIR 2009 SC 56 ; Mohan Anna Chavan v. State of Maharashtra, (2008) 11 SCC 113 ; Bantu v. The State of U.P., (2008) 11 SCC 113 ; Surja Ram v. State of Rajasthan, 1997 CriLJ 51 ; Dayanidhi Bisoi v. State of Orissa, 2003 CriLJ 3697 ; State of U.P. v. Sattan @ Satyendra and OTHERS, (2009) 4 SCC 736 are the decisions where Ravji Rao (supra) has been followed. It does not appear that this Court has considered any mitigating circumstance or a circumstance relating to criminal at the sentencing phase in most of these cases. It is apparent that Ravji Rao (supra) has not only been considered but also relied upon as authority on the point that in heinous crimes, circumstances relating to criminal are not pertinent.

68. 2(B) Alternative Option is foreclosed

Another aspect of rarest of rare doctrine which needs serious consideration is interpretation of latter part of the dictum – “that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” Bachan Singh (supra) suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose. death punishment, as will be discussed in detail a little later, qualitatively stands on a very different footing from other types of punishments. It is unique in its total irrevocability.

69. Incarceration, life or otherwise, potentially serves more than one sentencing aims. Deterrence, incapacitation, rehabilitation and retribution – all ends are capable to be furthered in different degrees, by calibrating this punishment in light of the overarching penal policy. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore puts an end anything to do with the life. This is the big difference between two punishments. Before imposing death penalty, therefore, it is imperative to consider the same.

70. Rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigor when the court focuses on the circumstances relating to the criminal, along with other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh (supra) sets the bar very high by introduction of Rarest of rare doctrine.

71. In Panchhi v. State of U.P., 1998 CriLJ 4044 , this Court also elucidates on “when the alternative option is foreclosed” benchmark in the following terms:

16. When the Constitution Bench of this Court, by a majority, upheld the constitutional validity of death sentence in Bachan Singh v. State of Punjab this Court took particular care to say that death sentence shall not normally be awarded for the offence of murder and that it must be confined to the rarest of rare cases when the alternative option is foreclosed. In other words, the Constitution Bench did not find death sentence valid in all cases except in the aforesaid freaks wherein the lesser sentence would be, by any account, wholly inadequate. In Machhi Singh v. State of Punjab a three-Judge Bench of this Court while following the ratio in Bachan Singh case laid down certain guidelines among which the following is relevant in the present case: ( SCC p. 489, para 38)

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

72. In Bachan Singh (supra), it was stated:

206. Dr Chitale has suggested these mitigating factors:

Mitigating circumstances.–In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impAIR ed his capacity to appreciate the criminality of his conduct.

207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.

73. 2(C) Role and Responsibility of Courts

Bachan Singh (supra) while enunciating rarest of rare doctrine, did not deal with the role and responsibility of sentencing court and the appellate court separately. For that matter, this Court did not specify any review standards for High Court and the Supreme Court. In that event, all courts, be it trial court, High Court or this Court, are duty bound to ensure that the ratio laid down therein is scrupulously followed. Same standard of rigor and fAIR ness are to be followed by the courts. If anything, inverse pyramid of responsibility is applicable in death penalty cases.

74. In State of Maharashtra v. Sindhi, 1975 CriLJ 1475 this Court reiterated, with emphasis, that while dealing with a reference for confirmation of a sentence of death, the High Court must consider the proceedings in all their aspects, reappraise, reassess and reconsider the entire facts and law and, if necessary, after taking additional evidence, come to its own conclusions on the material on record in regard to the conviction of the accused (and the sentence) independently of the view expressed by the Sessions Judge.

75. 2(D) Sentencing Justifications in Heinous Crimes

It has been observed, generally and more specifically in the context of death punishment, that sentencing is the biggest casualty in crimes of brutal and heinous nature. Our capital sentencing jurisprudence is thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of crime index. There may be other factors which may not have been recorded.

76. We must also point out, in this context, that there is no consensus in the court on the use of “social necessity” as a sole justification in death punishment matters. The test which emanates from Bachan Singh (supra) in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigor and fAIR ness are given primacy over sentiments and emotions.

77. In Panchhi (supra), the court downplayed the heinous nature of crime and relied on mitigating circumstances in the final opinion. The court held:

20. We have extracted the above reasons of the two courts only to point out that it is the savagery or brutal manner in which the killers perpetrated the acts on the victims including one little child which had persuaded the two courts to choose death sentence for the four persons. No doubt brutality looms large in the murders in this case particularly of the old and also the tender-aged child. It may be that the manner in which the killings were perpetrated may not by itself show any lighter side but that is not very peculiar or very special in these killings. Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the “rarest of rare cases” as indicated in Bachan Singh case. In a way, every murder is brutal, and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder.

78. In Vashram Narshibhai Rajpara v. State of Gujarat, 2002 CriLJ 2930 , this Court relied on the dictum of Panchhi and further explained the approach:

…As to what category a particular case would fall depends, invariably on varying facts of each case and no absolute rule for invariable application or yardstick as a ready reckoner can be formulated. In Panchhi v. State of U.P. it has been observed that the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the “rarest of rare cases”, as indicated in Bachan Singh v. State of Punjab and that every murder being per se brutal, the distinguishing factors should really be the mitigating or aggravating features surrounding the murder. The intensity of bitterness, which prevailed, and the escalation of simmering thoughts into a thirst for revenge or retaliation were held to be also a relevant factor.

79. This Court also gave primacy to mitigating circumstances in the final analysis:

10. Considering the facts of the case presented before us, it is on evidence that despite his economic condition and earnest attempt to purchase a house for the family after raising loans, the wife and daughters were stated to be not pleased and were engaging in quarrels constantly with the appellant. Though they were all living together the continuous harassment and constant nagging could have very well affected his mental balance and such sustained provocation could have reached a boiling point resulting in the dastardly act. As noticed even by the High Court the appellant though hailing from a poor family had no criminal background and it could not be reasonably postulated that he will not get rehabilitated or that he would be a menace to the society. The boy of tender age would also once for all be deprived of the parental protection. Keeping in view all these aspects, in our view, it could not be said that the imposition of life imprisonment would not adequately meet the requirements of the case or that only an imposition of the extreme punishment alone would do real or effective justice. Consequently, we direct the modification of the sentence of death into one of rigorous imprisonment for life, by partly allowing the appeal to that extent. In other respects the appeal shall stand dismissed. The appellant shall undergo the remaining period of sentence as above.

80. In Om Prakash v. State of Haryana, 1999 CriLJ 2044 , K.T. Thomas, J. deliberated on the apparent tension between responding to “cry of the society” and meeting the Bachan Singh (supra) dictum of balancing the “mitigating and aggravating circumstances”. The court was of the view that the sentencing court is bound by Bachan Singh (supra) and not in specific terms to the incoherent and fluid responses of society:

7. It is true that court must respond to the cry of the society and to settle what would be a deterrent punishment for an abominable crime. It is equally true that a large number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. It is also a truism as observed in the case of State of M.P. v. Shyamsunder Trivedi, SCC at p.273 that the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis, the society suffers and a criminal gets encouraged. Sometimes it is stated that only rights of the criminals are kept in mind, the victims are forgotten. Despite this it should be kept in mind that while imposing the rarest of rare punishment, i.e., death penalty, the court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case.

81. In Dharmendrasinh v. State of Gujarat, 2002 CriLJ 2631 , the court acknowledged that the crime committed was “no doubt heinous and unpardonable” and that two innocent children lost their lives for no fault of their, but the court chose to give force to mitigating circumstances in the following terms:

The offence was obviously not committed for lust of power or otherwise or with a view to grab any property nor in pursuance of any organized criminal or anti-social activity. Chances of repetition of such criminal acts at his hands making the society further vulnerable are also not apparent. He had no previous criminal record.

82. The court also stated the law in the following terms:

20. Every murder is a heinous crime. Apart from personal implications, it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position, imprisonment for life is the normal rule for punishing crime of murder and sentence of death, as held in different cases referred to above, would be awarded only in the rarest of rare cases. A number of factors are to be taken into account namely, the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed, has been committed for satisfying any kind of lust, greed or in pursuance of anti-social activity or by way of organized crime, drug trafficking or the like. Chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future and ultimately as held in several cases, mitigating and aggravating circumstances of each case have to be considered and a balance has to be struck. The learned State counsel as indicated earlier has already indicated the aggravating circumstances by reason of which it has been vehemently urged that sentence of death deserves to be confirmed.

83. Whether primacy should be accorded to aggravating circumstances or mitigating circumstances is not the question. Court is duty bound by virtue of Bachan Singh (supra) to equally consider both and then to arrive at a conclusion as to respective weights to be accorded. We are also bound by the spirit of Article 14 and Article 21 which forces us to adopt a principled approach to sentencing. This overarching policy flowing from Bachan Singh (supra) applies to heinous crimes as much as it applies to relatively less brutal murders. The court in this regard held:

Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency – a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception.

84. 2(E). Public Opinion in Capital Sentencing

It is also to be pointed out that public opinion is difficult to fit in the rarest of rare matrix. People’s perception of crime is neither an objective circumstance relating to crime nor to the criminal. Perception of public is extraneous to conviction as also sentencing, at least in capital sentencing according to the mandate of Bachan Singh (supra).

85. Rarest of rare policy and legislative policy on death punishment may not be essentially tuned to public opinion. Even if presume that the general populace favours a liberal DP policy, although there is no evidence to this effect, we can not take note of it. We are governed by the dictum of Bachan Singh (supra) according to which life imprisonment is the rule and death punishment is an exception. We are also governed by the Constitution of India. Article 14 and 21 are constitutional safeguards and define the framework for state in its functions, including penal functions. They introduce values of institutional propriety, in terms of fAIR ness, reasonableness and equal treatment challenge with respect to procedure to be invoked by the state in its dealings with people in various capacities, including as a convict. The position is, if the state is precariously placed to administer a policy within the confines of Article 21 and 14, it should be applied most sparingly. This view flows from Bachan Singh (supra) and it this light, we are afraid that Constitution does not permit us to take a re-look on the capital punishment policy and meet society’s cry for justice through this instrument.

86. The fact that we are here dealing with safeguards entrenched in the Constitution should materially change the way we look for reasons while awarding the death punishment. The arguments which may be relevant for sentencing with respect to various other punishments may cease to apply in light of the constitutional safeguards which come into operation when the question relates to extinguishment of life. If there are two considerations, the one which has a constitutional origin shall be favoured.

87. An inherent problem with consideration of public opinion is its inarticulate state. Bachan Singh (supra) noted that judges are ill-equipped to capture public opinion:

125. Incidentally, the rejection by the people of the approach adopted by the two learned Judges in Furman, furnishes proof of the fact that judicial opinion does not necessarily reflect the moral attitudes of the people. At the same time, it is a reminder that Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion: Not being representatives of the people, it is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned.

…The highest judicial duty is to recognise the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits.” As Judges, we have to resist the temptation to substitute our own value choices for the will of the people. Since substituted. judicial “made-to-order* standards, howsoever painstakingly made, do not bear the people’s imprimatur, they may not have the same authenticity and efficacy as the silent zones and green belts designedly marked out and left open by Parliament in its legislative planning for fAIR – play of judicial discretion to take care of the variable, unpredictable circumstances of the individual cases, relevant to individualised sentencing. When Judges, acting individually or collectively, in their benign anxiety to do what they think is morally good for the people, take upon themselves the responsibility of setting; down social norms of conduct, there is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large and despite their intention to abide by the dictates of mere reason, that they might write their own peculiar view or personal predilection into the law, sincerely mistaking that changeling for what they perceive to be the Community ethic. The perception of ‘community’ standards or ethics may very from Judge to Judge…

88. Justice Powell’s dissent in Furman (supra) also bears repetition in this regard:

But however one may assess amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery not the core of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, and not a judicial, function.

89. The constitutional role of the judiciary also mandates taking a perspective on individual rights at a higher pedestal than majoritarian aspirations. To that extent we play a countermajoritarian role. And this part of debate is not only relevant in the annals of judicial review, but also to criminal jurisprudence. Justice Jackson in West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943) also opined on similar lines:

The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

90. Public Opinion may also run counter to the Rule of law and constitutionalism. Bhagalpur Blinding case or the recent spate of attacks on right to trial of the accused in the Bombay Blast Case are recent examples. We are also not oblivious to the danger of capital sentencing becoming a spectacle in media. If media trial is a possibility, sentencing by media can not be ruled out. Andrew Ashworth, a leading academic in the field of sentencing, who has been at the center of sentencing reforms in U.K., educates us of the problems in factoring in public opinion in the sentencing. He (with Michael Hough), observes in an article, Sentencing and the Climate of Opinion (1996, Criminal Law Review):

The views of sentencing held by people outside the criminal justice system– “the general public”–will always be important even if they should not be determinative in court. Unfortunately, the concept of public opinion in relation to sentencing practices is often employed in a superficial or simplistic way. In this short article we have identified two major difficulties with the use of the concept. First, members of the public have insufficient knowledge of actual sentencing practices. Second, there is a significant but much-neglected distinction between people’s sweeping impressions of sentencing and their views in relation to particular cases of which they know the facts. When it is proclaimed that the public think the courts are too lenient, both these difficulties are usually suppressed.

To construct sentencing policy on this flawed and partial notion of public opinion is irresponsible. Certainly, the argument is hard to resist that public confidence in the law must be maintained. It is also hard to resist the proposition that public confidence in sentencing is low and probably falling. However, since the causes of this lie not in sentencing practice but in misinformation and misunderstanding, and (arguably) in factors only distantly related to criminal justice, ratcheting up the sentencing tariff is hardly a rational way of regaining public confidence.

This is not to deny that there is political capital to be made, at least in the short term, by espousing sentencing policies which have the trappings of tough, decisive action. However, the underlying source of public cynicism will not have been addressed; and once politicians embark on this route, they may be committing themselves long-term to a treadmill of toughness, “decisiveness”, and high public expenditure. The political costs of withdrawing from tough policies, once embarked on, may be too high for politicians of any hue to contemplate. The United States serves as an example.

If the source of falling public confidence in sentencing lies in lack of knowledge and understanding, the obvious corrective policy is to explain and to educate, rather than to adapt sentencing policy to fit a flawed conception of public opinion. But who should be the target of such explanation and education? We have serious doubts whether attempts to reach the ordinary citizen directly will have any impact at all. On the other hand, we think it feasible, within limits, to educate those who shape public opinion. Newspaper and television journalists, for example, responded well to the initiatives in the 1980s intended to curb the reporting of crime in ways that needlessly fuelled fear of crime. A similar initiative should now be mounted in relation to sentencing.

91. Capital sentencing is one such field where the safeguards continuously take strength from the Constitution, and on that end we are of the view that public opinion does not have any role to play. In fact, the case where there is overwhelming public opinion favouring death penalty would be an acid test of the constitutional propriety of capital sentencing process.

3. PRINCIPLED SENTENCING

92. 3(A). Mandate of Bachan Singh (supra) on Value of Precedents

This Court laid down rarest of rare dictum therein and thereby endorsed a broad sentencing threshold. It has been interpreted by courts in various ways.

93. It is important to note here that principled application of rarest of rare dictum does not come in the way of individualized sentencing. With necessary room for sentencing, consistency has to be achieved in the manner in which rarest of rare dictum has to be applied by courts.

94. Bachan Singh (supra) expressly barred one time enunciation of minute guidelines through a judicial verdict. The court held that only executive is competent to bring in detailed guidelines to regulate discretion. On this count judicial restraint was advocated. But at the same time, it actively relied on judicial precedent in disciplining sentencing discretion to repel the argument of arbitrariness and Article 14 challenge. An embargo on introduction of judicial guidelines was put therein but organic evolution of set of principles on sentencing through judicial pronouncements was not ruled out. This is how precedent aids development of law in any branch of law and capital sentencing can not be an exception to this.

95. Sentencing discretion is also a kind of discretion and is shall be exercised judicially in light of the precedents.

96. It observes that the superior courts must correct wrong application of Section 302. It is very obvious that appellate courts can not discharge review function without taking aid of established principles. In Jagmohan Singh v. State of U.P., 1973 CriLJ 370 , the Court’s observation in this context was subsequently followed noting:

…The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of punishment. The discretion in the matter of sentence is, as already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguards for the accused.

97. Bachan Singh (supra) elaborated on “well recognized principles” in the following terms:

197. In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on well recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By “well recognised principles” the court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. The legislative changes since Jagmohan — as we have discussed already — do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances, of the offence, due regard must be paid to the circumstances of the offender, also.

98. It continuing in the same vein held:

Cognizant of the past experience of the administration of death penalty in India, Parliament, in its wisdom, thought it best and safe to leave the imposition of this gravest punishment in gravest cases of murder, to the judicial discretion of the courts which are manned by persons of reason, experience and standing in the profession. The exercise of this sentencing discretion cannot be said to be untrammelled and unguided. It is exercised judicially in accordance with well recognised principles crystallised by judicial decisions, directed along the broad contours of legislative policy towards the signposts enacted in Section 354(3).

99. 3(B). Cases Where Death Penalty Was Imposed/Affirmed

In Ram Singh v. Sonia and OTHERS, 2007 CriLJ 1642 the accused couple had, in a most diabolic manner, ended the lives of their family members, which included the step brother of the wife, his children and even her own father, mother and sister, all with the motive of inheriting the family property. This Court noting the cold blooded and pre meditated approach in murdering the family while they were all sleeping considered it as a fit case for the imposition of death penalty on the couple.

100. In Prajeet Kumar Singh v. State of Bihar, 2008 CriLJ 3596 the accused had murdered the children of the family where he had been staying as a tenant for the past four years, while they were sleeping. He thereafter proceeded to attack the adult members of the family who on hearing the screams of their children had come to their rescue. The court noting the brutality of manner of the attack considered it a fit case for the imposition of death sentence.

101. In Mohan Anna Chavan (supra) the court upheld the death sentence imposed on a serial rapist. The accused had already been convicted twice for the raping a minor girl, but on the first occasion he was awarded a sentence only of two years and on the second, sentence of ten years rigorous imprisonment only. When the accused was convicted of raping and murdering two minor girls again, the court refused to interfere with the death sentence awarded by the lower courts.

102. In Bantu v. State of Uttar Pradesh (2008) 10 SCALE 336 the accused had, after raping a six year old girl, tried to conceal his crime by inserting a stick in her vagina which ultimately resulted in causing her death. The court noted that the depraved acts of the accused only deserved a death sentence.

103. In Shivaji @ Dady Shankar Alhat (supra) the accused had raped and murdered a nine year old girl. This Court therein rejecting the argument that the conviction having been based in circumstantial evidence, death penalty should not be awarded, affirmed the death penalty awarded by the lower court.

104. In State of U.P. v. Sattan, (2009) 4 SCC 736 , six members of a family were murdered by the accused leaving only three survivors over some personal enmity. The trial court awarded them death sentence. The High Court commuted the sentence to one of life imprisonment. The Supreme Court in appeal noting the brutality of murder held that the accused deserved only a death penalty.

105. 3(C). Cases Where Death Penalty was not Awarded/ Affirmed

In Ujjagar Singh v. State of Punjab, 2008 CriLJ 808 the accused had been convicted of murder and rape and accordingly sentenced to death by the lower courts. This Court in appeal, acquitting the accused only of the charge of rape because of the lack of evidence, noted that since the charge of rape formed a substantial portion of reasoning for causing the death, the death sentence on the accused could no longer be sustained, once he was acquitted on that charge. The sentence was accordingly altered to one of life imprisonment.

106. In Amrit Singh v. State of Punjab, 2007 CriLJ 298 the accused had raped a minor girl. The victim died a painful death because of bleeding from her private parts. The court, however, noted that the accused might not have had the intention of murdering the victim, but her death was only the unfortunate inevitable consequence of the crime, hence it did not fall within the rarest of the rare cases.

107. In Bishnu Prasad Sinha and ANOTHER v. State of Assam, 2007 CriLJ 1145 , this Court commuted the death penalty of the accused on the ground that the prosecution case was entirely based on circumstantial evidence.

108. In State of Maharashtra v. Prakash Sakha Vasave and OTHERS, AIR 2009 SC 1636 the accused had brutally attacked with axes the husband of their sister, who was having an illicit relationship with another woman. The trial court had found two of the accused guilty and sentenced them to death. In appeal the High Court acquitted the accused because of lack of evidence. This Court in appeal set aside the judgment of acquittal passed by the High Court but noticed that the case before it did not fall in the rarest of rare and deserved only a life imprisonment.

109. 3(D) Differing opinion in other cases

While dealing with a matter as to whether death penalty should be awarded or not, although the court ordinarily would look to the precedents, but, this becomes extremely difficult, if not impossible, in the context of the cases discussed above. There is no uniformity of precedents, to say the least. In most cases, the death penalty has been affirmed or refused to be affirmed by us, without laying down any legal principle.

110. In Aloke Nath Dutt and OTHERS v. State of West Bengal, (2006) 13 SCALE 467 this Court after examining various judgments over the past two decades in which the issues of rarest of rare fell for consideration, admitted the failure on the part of this Court to evolve a uniform sentencing policy in capital punishment cases and conclude as to what amounted to ‘rarest of rare’. Disparity in sentencing has also been noted in Swamy Shraddananda v. State of Karnataka (Swamy Shraddananda – I), (2007) 12 SCC 288.

111. In the aforementioned backdrop, we may notice a recent three-Judge Bench decision of this Court in Swamy Shraddananda @ Murali Manohar Mishra (supra). Aftab Alam, J., writing the judgment for the Three-Judge Bench held:

33. The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the judges constituting the bench.

34. The inability of the Criminal Justice System to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results. On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the Criminal Justice System. Thus the overall larger picture gets asymmetric and lop-sided and presents a poor reflection of the system of criminal administration of justice. This situation is matter of concern for this Court and needs to be remedied.

112. The issue of subjectivity has also been previously noticed by both academics and this Court. Professor Anthony R. Blackshield’s analysis in the mid 1970s showed this trend in the pre-Bachan Singh period. (see Journal of the Indian Law Institute 1979). This was also noticed by Bhagwati, J. in his dissenting judgment in Bachan Singh (supra).

113. In the post-Bachan Singh period, a joint report by the Amnesty International – India and People’s Union for Civil Liberties Report titled “Lethal Lottery: The Death Penalty in India, A study of Supreme Court Judgments in death penalty cases 1950-2006” and the Swamy Shraddananda (supra) judgment show quite clearly that not much has changed in this respect.

114. To assist future benches at considering the facts of individual cases however, the Constitution Bench in Bachan Singh (supra) did however note certain aggravating and mitigating factors mentioned by the Amicus Curie (drawn from jurisprudence from the USA as also Clauses (2)(a), (b), (c) and (d) of the already lapsed Indian Penal Code (Amendment) Bill, 1972). The Supreme Court did however endorse them, referring to them as “undoubtedly relevant circumstances and must be given great weight in the determination of sentence”.

115. Machhi Singh v. State of Punjab, 1983 CriLJ 1457 went further and made a tabular comparison of such mitigating and aggravating circumstances.

116. Yet as the above discussion has clearly shown, it is now clear that even the balance-sheet of aggravating and mitigating circumstances approach invoked on a case by case basis has not worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing system. It can be safely said that the Bachan Singh threshold of “rarest of rare cases” has been most variedly and inconsistently applied by the various High Courts as also this Court. At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty – the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh (supra) has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle. The situation is unviable as legal discretion which is conferred on the executive or the judiciary is only sustainable in law if there is any indication, either though law or precedent, as to the scope of the discretion and the manner of its exercise. There should also be sufficient clarity having regard to the legitimate aim of the measure in question. Constitution of India provides for safeguards to give the individual adequate protection against arbitrary imposition of criminal punishment.

117. Although these questions are not under consideration and cannot be addressed here and now, we cannot help but observe the global move away from the death penalty. Latest statistics show that 138 nations have now abolished the death penalty in either law or practice (no executions for 10 years). Our own neighbours, Nepal and Bhutan are part of these abolitionist nations while others including Philippines and South Korea have also recently joined the abolitionist group, in law and in practice respectively. We are also aware that on 18 December 2007, the United Nations General Assembly adopted resolution 62/149 calling upon countries that retain the death penalty to establish a worldwide moratorium on executions with a view to abolishing the death penalty.

118. India is, however, one of the 59 nations that retain the death penalty. Credible research, perhaps by the Law Commission of India or the National Human Rights Commission may allow for an up to date and informed discussion and debate on the subject.

CONSTITUTIONAL LAND SC APE ON CAPITAL SENTENCING: MINIMUM SAFEGUARDS

119. We have already dealt with the ratio of Bachan Singh (supra) in detail but here we would focus on the backdrop to the Rarest of rare dictum and the dilemma faced by the Bachan Singh court in this regard. The perspective which emerges from this reading showcases the constitutional riddle which is inherent to law on capital sentencing in India.

120. At the very outset Bachan Singh (supra) delineated the scope of the matter in the following terms:

The principal questions that fall to be considered in this case are:

(i) Whether death penalty provided for the offence of murder in Section 302, Penal Code is unconstitutional.

(ii) If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Section 354(3) of the Code of Criminal Procedure, 1973 is unconstitutional on the ground that it invests the Court with unguided and untrammeled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life.

121. In the ensuing discussion, the court held that Sections 302 Penal Code and 354(3) of the Code of Criminal Procedure, 1973 are constitutional but only after enunciating “broad guidelines and principles” which today govern the practice on capital sentence in all courts, be it trial courts or the appellate courts.

122. In one sense, the scope of Bachan Singh (supra) was fully met when it practically declared death penalty (procedurally and substantively) constitutional but the bench went on to entrench an unprecedented jurisprudence on the sentencing front. This jurisprudence, of which Rarest of rare dictum is the central part, forms the bed rock of death penalty jurisprudence. The way ahead shown by Bachan Singh (supra) is not merely in compliance of statutory safeguards under Section 354(3) and Section 235(2) but also of Rarest of rare dictum. Therefore, the overall legislative scheme on death penalty was cleared of constitutional challenge only after it was conjoined with the Rarest of rare dictum.

123. Thomas, J. also reached to a similar conclusion in Ram Deo Chauhan v. State of Assam, 2001 CriLJ 2902 :

A peep into the historical background of how death penalty survived Article 21 of the Constitution would be useful in this context.

Apart from the two schools of thought putting forward their respective points of view stridently – one pleading for retention of death penalty and the other for abolition of it – a serious question arose whether the law enabling the State to take away the life of a person by way of punishment would be hit by the forbid contained in Article 21 of the Constitution. In Bachan Singh v. State of Punjab (supra) the majority Judges of the Constitution Bench saved the death penalty from being chopped out of the statute book by ordering that death penalty should be strictly restricted to the tiniest category of the rarest of the rare cases in which the lesser alternative is unquestionably foreclosed.

124. On a deeper reading of Bachan Singh (supra) it becomes clear that the court was operating under two fundamental constraints while dealing with the constitutionality challenge:

Firstly, death penalty is mentioned in the Constitution (for instance under Article 161 and Article 72(1)(c). Constitutional recognition was taken to be a primary signal for the legitimacy for Section 302.

Secondly, owing to separation of power doctrine, the court took a deferential view towards Section 354(3) which was brought in to discipline the courts on death penalty by making life imprisonment the rule and death penalty exception.

125. Laboring under the aforementioned constraints, the death penalty was held constitutional. This affirmative response to constitutionality of death penalty presented another complicated challenge which related to administration of death penalty or in other words, sentencing of capital punishment. This has been universally considered as a vexed question of law and practice and has not been satisfactorily dealt with in any jurisdiction so far.

126. It is interesting to note here that this Court opined in State of Punjab v. Prem Sagar and OTHERS, 2008 CriLJ 3533 , as late as 2008, that there is no sentencing policy in India. But Bachan Singh (supra) treated death penalty as an exceptional penalty, different from any other punishment, and did lay down a policy prescription on sentencing, way back in 1980.

127. We have also noticed that in numerous decisions of this Court, constitutional guarantees have been invoked at some stage of capital sentencing. Similarly, rarest of rare dictum takes its colour from constitutional guarantees.

1. “JUSTICE” IN CAPITAL SENTENCING

128. Justice must be the first virtue of the law of sentencing. A sentencing court must consider itself to be a “forum of principle”. The central idea of such a forum is its continuing commitment to inhere a doctrinal approach around a core normative idea. “Principled reasoning” flowing from judicial precedent or legislation is the premise from which the courts derive the power. The movement to preserve substantial judicial discretion to individualize sentences within a range of punishments also has its basis in the court’s ability to give principled reasoning.

129. The claim of sentencing to being a principled exercise is very important to the independent and unpartisan image of judiciary. R. v. Willaert (1953) 105 C.C.C. 172 (Ont.C.A.) way back in 1953, envisaged the role of judge in sentencing as “an art–a very difficult art–essentially practical, and directly related to the needs of society.” We have now come from that description of court to court as “forum of principle”. This role is consistent with the constitutional mandate of due process and equal protection.

130. (See Ronald Dworkin, The Forum of Principle 56 NYU L. Rev. 469 (1981) for more on “forum of principle”; for more on justice and sentencing see Von Hirsch and Andrew Ashworth, The Sentencing Theory Debate: Convergence in Outcomes, Divergence in Reasoning Proportionate Sentencing: Exploring The Principles, Oxford University Press, 2005)

131. There is a fundamental relationship between the legitimacy of sentence belonging to a particular potency and the reasons accorded by the court to justify the same. This flows from the inherent nature of punishment which can be understood as a coercive force invoked by the state for a legitimate purpose. It was Bentham who said that “all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.” (See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in A Fragment of Government with An Introduction to the Principles of Morals and Legislation 281 (1948).)

132. The reasons which are accorded by the court to justify the punishment should be able to address the questions relating to fAIR distribution of punishment amongst similarly situated convicts. This may be called the problem of distributive justice in capital sentence. In this context, the inquiry under Article 14 becomes significant. FAIR ness in this context has two aspects:

First refers to fAIR distribution amongst like offenders

And the second relates to the appropriate criteria for the punishment.

133. The sentencing process, based on precedents around Bachan Singh (supra), should help us to determine specific, deserved sentences in particular cases. The reason as to why questions of justice play such an important part in the distribution of capital punishment, lies in the special nature of capital punishment itself. Distributive justice is a relative notion: one can never determine whether one has received one’s fAIR share except by comparison with that which has been allocated to others. Both questions are intertwined when we speak of Capital Sentence.

134. Scholars have described the problem of disparate sentencing variously. Characterizing a situation before sentencing reforms swept American jurisdiction, when judges were using personal judgments to decide the questions of sentencing, Marvin Frankel referred the practice as “wasteland in the law” and the general situation as one of “lawlessness.” (See Marvin E. Frankel, Lawlessness in Sentencing, 41 U. Cin. L. Rev. 1 (1972))

2. EQUAL PROTECTION CLAUSE

135. A survey of the application of Rarest of rare doctrine in various courts will reveal that various courts have given their own meaning to the doctrine. This variation in the interpretation of Rarest of rare analysis may amount to be constitutionally infirm because of apparent arbitrariness on the count of content of the doctrine.

136. The moot question is whether, after more than quarter of a century since Bachan Singh (supra) recognized death penalty as a constitutionally permissible penalty, we can distill a meaningful basis from our precedent on death penalty, for distinguishing the few cases in which the capital sentence is imposed from the many cases in which it is not? A similar question was put by Justice Stewart in Furman (supra). He noted death sentences are cruel and unusual in the same way as being “struck by lightning is cruel and unusual”. Moreover, the petitioners sentenced to death were seen as “capriciously selected random handful” and the question posed was whether the eighth amendment could tolerate death sentences “so wantonly and so freakishly imposed.” Today, it could be safely said in the context of Indian experience on death penalty that no standards can be culled out from the judge made law which governs the selection of penalty apart from broad overall guideline of Rarest of rare under Bachan Singh (supra).

137. Frequent findings as to arbitrariness in sentencing under Section 302 may violate the idea of equal protection clause implicit under Article 14 and may also fall foul of the due process requirement under Article 21. It is to be noted that we are not focusing on whether wide discretion to choose between life imprisonment and death punishment under section 302 is constitutionally permissible or not. The subject-matter of inquiry is how discretion under Section 302 may result in arbitrariness in actual sentencing. Section 302 as held by Bachan Singh (supra) is not an example of law which is arbitrary on its face but is an instance where law may have been arbitrarily administered.

138. In Swamy Shraddananda (supra), this Court noted arbitrariness-in-fact prevalent in the capital sentencing process with extraordinary candour:

Coupled with the deficiency of the Criminal Justice System is the lack of consistency in the sentencing process even by this Court. It is noted above that Bachan Singh laid down the principle of the Rarest of rare cases. Machhi Singh , for practical application crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for imposing death penalty. But the unfortunate reality is that in later decisions neither the Rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently. In Aloke Nath Dutta v. State of West Bengal Sinha J. gave some very good illustrations from a number of recent decisions in which on similar facts this Court took contrary views on giving death penalty to the convict (see paragraphs 154 to 182, pp.504-510 SCALE ). He finally observed that ‘courts in the matter of sentencing act differently although the fact situation may appear to be somewhat similar’ and further ‘it is evident that different benches had taken different view in the matter’. Katju J. in his order passed in this appeal said that he did not agree with the decision in Aloke Nath Dutt in that it held that death sentence was not to be awarded in a case of circumstantial evidence. Katju J. may be right that there can not be an absolute rule excluding death sentence in all cases of circumstantial evidence (though in Aloke Nath Dutta it is said ‘normally’ and not as an absolute rule). But there is no denying the illustrations cited by Sinha J. which are a matter of fact.

32. The same point is made in far greater detail in a report called, “Lethal Lottery, The Death Penalty in India” compiled jointly by Amnesty International India and Peoples Union For Civil Liberties, Tamil Nadu & Puducherry. The report is based on the study of Supreme Court judgments in death penalty cases from 1950 to 2006. One of the main points made in the report (see chapter 2 to 4) is about the Court’s lack of uniformity and consistency in awarding death sentence.

33. The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the judges constituting the bench.

34. The inability of the Criminal Justice System to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results. On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the Criminal Justice System.

Thus the overall larger picture gets asymmetric and lop-sided and presents a poor reflection of the system of criminal administration of justice. This situation is matter of concern for this Court and needs to be remedied.

35. These are some of the larger issues that make us feel reluctant in confirming the death sentence of the appellant.

Equal protection clause ingrained under Article 14 applies to the judicial process at the sentencing stage. We share the court’s unease and sense of disquiet in Swamy Shraddananda case and agree that a capital sentencing system which results in differential treatment of similarly situated capital convicts effectively classify similar convict differently with respect to their right to life under Article 21. Therefore, an equal protection analysis of this problem is appropriate.

In the ultimate analysis, it serves as an alarm bell because if capital sentences cannot be rationally distinguished from a significant number of cases where the result was a life sentence, it is more than an acknowledgement of an imperfect sentencing system. In a capital sentencing system if this happens with some frequency there is a lurking conclusion as regards the capital sentencing system becoming constitutionally arbitrary.

139. We have to be, thus, mindful that the true import of Rarest of rare doctrine speaks of an extraordinary and exceptional case.

140. When the court is faced with a capital sentencing case, a comparative analysis of the case before it with other purportedly similar cases would be in the fitness of the scheme of the Constitution. Comparison will presuppose an identification of a pool of equivalently circumstanced capital defendants. The gravity, nature and motive relating to crime will play a role play a role in this analysis.

141. Next step would be to deal with the subjectivity involved in capital cases. The imprecision of the identification of aggravating and mitigating circumstances has to be minimized. It is to be noted that the mandate of equality clause applies to the sentencing process rather than the outcome. The comparative review must be undertaken not to channel the sentencing discretion available to the courts but to bring in consistency in identification of various relevant circumstances.

142. The aggravating and mitigating circumstances have to be separately identified under a rigorous measure. Bachan Singh (supra), when mandates principled precedent based sentencing, compels careful scrutiny of mitigating circumstances and aggravating circumstances and then factoring in a process by which aggravating and mitigating circumstances appearing from the pool of comparable cases can be compared.

143. The weight which is accorded by the court to particular aggravating and mitigating circumstances may vary from case to case in the name of individualized sentencing, but at the same time reasons for apportionment of weights shall be forthcoming. Such a comparison may point out excessiveness as also will help repel arbitrariness objections in future.

144. A sentencing hearing, comparative review of cases and similarly aggravating and mitigating circumstances analysis can only be given a go by if the sentencing court opts for a life imprisonment.

3. THE “RAREST” OF “RARE CASES”

145. Bachan Singh (supra) laid down its fundamental threshold in the following terms:

A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the Rarest of rare cases when the alternative option is unquestionably foreclosed.

146. To translate the principle in sentencing terms, firstly, it may be necessary to establish general pool of rare capital cases. Once this general pool is established, a smaller pool of rare cases may have to established to compare and arrive at a finding of Rarest of rare case.

4. Article 21

147. Right to life, in its barest of connotation would imply right to mere survival. In this form, right to life is the most fundamental of all rights. Consequently a punishment which aims at taking away life is the gravest punishment. Capital punishment imposes a limitation on the essential content of the fundamental right to life, eliminating it irretrievably. We realize the absolute nature of this right, in the sense that it is a source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the right to life. Right to life is the essential content of all rights under the Constitution. If life is taken away all, other rights cease to exist. South African constitutional court in S v. Makwanyane 1994 (3) SA 868 (A) captures the crux of right to life in following terms:

Prisoners are entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed.

A prisoner is not stripped naked, bound, gagged and chained to his or her cell. The right of association with other prisoners, the right to exercise, to write and receive letters and the rights of personality referred to by Innes J are of vital importance to prisoners and highly valued by them precisely because they are confined, have only limited contact with the outside world, and are subject to prison discipline. Imprisonment is a severe punishment; but prisoners retain all the rights to which every person is entitled under Chapter 3 subject only to limitations imposed by the prison regime that are justifiable under section 33. Of these, none are more important than the Section 11(2) right not to be subjected to “torture of any kind . . . nor to cruel, inhuman or degrading treatment or punishment.

There is a difference between encroaching upon rights for the purpose of punishment and destroying them altogether. It is that difference with which we are concerned in the present case.

148. This Court has acknowledged Death Punishment to be the most extraordinary penalty in various decisions. In Shankarlal Gyarasilal Dixit v. State of Maharashtra, 1981 CriLJ 325 the court held:

Unfaithful husbands, unchaste wives and unruly children are not for that reason to be sentenced to death if they commit murders unconnected with the state of their equation with their family and friends. The passing of the sentence of death must elicit the greatest concern and solicitude of the Judge because, that is one sentence which cannot be recalled.

149. Therefore, in the context of punishments, the protections emanating from Article 14 and Article 21 have to be applied in the strictest possible terms. At this juncture, it is best to point out that the ensuing discussion, although applicable in constitutionality context, is carried out in the context of sentencing of death punishment. In every capital sentence case, it must be borne in mind that the threshold of rarest of rare cases is informed by Article 14 and 21, owing to the inherent nature of death penalty. Post Bachan Singh (supra), capital sentencing has come into the folds of constitutional adjudication. This is by virtue of the safeguards entrenched in Article 14 and 21 of our constitution.

150. Article 21 imposes two kinds of limitations, which overlap in their reach, on punishments:

151. 4(A). Due process requirement

With non-capital punishments, a more severe punishment for one offender than another is commonly accepted, even in similar circumstances. The infinite gradations of guilt and the limits of human capacity to judge cause us to overlook differential treatment of apparently similar convicts. As the relative severity of punishment increases, however, it becomes more difficult to overlook sentencing disparities. Death is the most severe of all punishments.

152. The US Supreme Court has acknowledged that there is a profound and immeasurable gap between a death sentence and a life sentence. In Woodson 428 U.S. at 305 the court held that there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. (see also Lockett 438 U.S. at 604 In Rummel v. Estelle 445 U.S. 263, 272 (1980), the Court noted that challenges to the excessiveness of particular sentences have rarely been successful in non-capital cases.

153. Fairness to any capitally sentenced convict, therefore, requires an assessment of the relative propriety of the sentence. Because of their irrevocability and severity, the Constitution requires greater reliability and fAIR ness from sentencing courts for capital sentences than for non- capital sentences.

4(B). Proportionality Requirement

154. The Canadian Charter of Rights makes provision for the limitation of rights through a general clause. Section 1 of the Charter permits such reasonable limitations on Charter rights “as can be demonstrably justified in a free and democratic society”. In R. v. Oakes (1986) 1 S.C.R. 103 it was held that in order to effect a limitation, there has to exist a sufficient objective to warrant the limitation of the right in question. There should also be proportionality between the limitation and such objective. In a frequently- cited passage, Dickson, J. described the components of proportionality as follows:

There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfAIR or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in the first sense, should impAIR ‘as little as possible’ the right or freedom in question: R v. Big M Drug Mart Limited (supra).

Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the charter right of freedom, and the objective which has been identified as of ‘sufficient importance’.

155. During the sentencing process, the sentencing court or the appellate court for that matter, has to reach to a finding of a rational and objective connection between capital punishment and the purpose for which it is prescribed. In sentencing terms, “special reasons” as envisaged under Section 354(3) Code of Criminal Procedure have to satisfy the comparative utility which capital sentence would serve over life imprisonment in the particular case. The question whether the punishment granted impAIR s the right to life under Article 21 as little as possible.

156. R. v. Chaulk (1990) 3 S.C.R. 1303 suggested that the means must impAIR the right “as little as is reasonably possible”. The court held:

Where choices have to be made between “differing reasonable policy options”, the courts will allow the Government the deference due to legislators, but “(will) not give them an unrestricted licence to disregard an individual’s Charter rights. Where the Government cannot show that it had a reasonable basis for concluding that it has complied with the requirement of minimal impAIR ment in seeking to attain its objectives, the legislation will be struck down.

157. The fact that capital sentence is a live penalty in India; we should strive to tune the practice to the evolving standards of a maturing society. The normative thresholds attached thereto and evolving constitutional sensibilities shall continue to throw fresh challenges. We have not fully resolved the dilemma arising from the fact that the Constitution prohibits excessive punishment borne out of undue process, but also permits, and contemplates that there will be capital punishment arising out of an exercise of extremely wide discretion. This dilemma is inherently difficult to resolve. And we should refrain from enforcing any artificial peace on this landscape.

158. While chosing for one option or the other, these constitutional principles must be borne in mind. The nature of capital sentencing is such that it is important that we ask the right questions. Tony Bottoms very aptly puts this general sentencing dilemma, which become much more acute in capital sentencing. He comments, that “justice” and punishment when applied to sentencing are “asymmetrical concepts, in the sense that it is reasonably easy to establish what is unjust or undeserved, but not what, precisely, is just or deserved.” (See Anthony Bottoms, The Philosophy and Politics of Punishment and Sentencing, in The Politics of Sentencing Reform 20 (C.M.V. Clarkson & R. Morgan eds., 1995))

159. Principle of prudence, enunciated by Bachan Singh (supra) is sound counsel on this count which shall stand us in good stead – whenever in the given circumstances, there is difference of opinion with respect to any sentencing prop/rationale, or subjectivity involved in the determining factors, or lack of thoroughness in complying with the sentencing procedure, it would be advisable to fall in favour of the “rule” of life imprisonment rather than invoking the “exception” of death punishment.

SENTENCING IN THIS CASE – BACHAN SINGH TEST

160. Let us now examine the relevant factors relating to sentencing in this case, keeping in mind the letter and spirit of the Bachan Singh (supra).

161. Kumar Gaurav (PW-1) has given the details of the incident. We have already noted his statement before the court primarily on the deposition of the said Approver, Kumar Gaurav, whereupon the prosecution relies to establish that the accused deserves the harshest punishment.

162. Accused No. 1 however has a different story to tell. As per him he himself, Kumar Gaurav (PW-1) and Kartikraj (the deceased) had staged a fake kidnapping to extract money from Kartikraj’s parents. It is evident from his deposition that all persons involved were in the night of the incident having a party at his flat situated in Amrapali Society. They were drunk. They had watched movies all night on the VCR. They made a phone call at the residence of the father of Kartikraj, demanding ransom. It was done only on the suggestion of Kumar Gaurav (PW-1), the Approver. It was he who had suggested that they could earn a good amount pretending to kidnap someone amongst them. Kartikraj was chosen since his father was from a wealthy family. It was Kartikraj himself who had dialed his father’s number and handed over the phone to Kumar Gaurav (PW-1).

163. As per the appellant, they had continued the party even on the next day. Since all the liquor had been consumed he himself and the deceased had at about 4.00 p.m. gone out to purchase some more liquor. Thereafter he had left the place to finish his work and when he came back, he found Kartikraj lying in front of the toilet having sustained head injuries. We may notice his statements from the judgment of the learned Sessions Judge in the following terms:

Thereafter, as he had some work, he dropped Kartikraj to that flat and went to finish his work. Thereafter, when he came back to that flat, he saw Kartikraj lying in front of the toilet sustaining head injury. Approver – Kumar Gaurav and his two friends found frightened and worried. Thereafter, when he inquired with them as to what happened, Kumar Gaurav told him that after Kartikraj brought bottles of Rum, he drunk very fast and got drink very heavily and while going to the toilet, fell down etc. Thereafter, when he suggested to take Kartikraj to a doctor, approver Kumar Gaurav said that since he made ransom call, nobody would believe them that Kartikraj fell unconscious accidentally after drinking heavily. Thereafter, approver Kumar Gaurav told him that in fact Kartikraj is dead and he has confirmed by checking his pulse. After hearing this, he got very scared and told Kumar Gaurav that they must inform police and now, the joke has gone too far. But, Kumar Gaurav told that he has thought about everything and asked him to dispose of the motorcycle of Kartikraj. Accordingly, he left the flat and under mental stress and fear, he wandered here and there and finally abandoned the motorcycle in wee hours of morning. Thereafter, he did not go back to the flat of Amrapali Society. On 9.8.2001 in the evening, he received phone call of Kumar Gaurav (P.W.1) asking him to come to Mumbai at Dadar immediately and threatened him that if he did not go as per his directions to Mumbai, he will inform his name to the police. Therefore, he followed whatever was being told by approver Kumar Gaurav. When he went to Pariera Housing Society flat at Naigaon, Mumbai, he saw Kumar Gaurav (P.W.1) and Accused Nos. 2 and 3 there. There he was told by Kumar Gaurav (P.W.1) that he himself and his associates have disposed of the dead body of Kartikraj and further told him that the father of Kartikraj is still ready to pay ransom and that he would be sending the amount to Mumbai and he (Kumar Gaurav P.W.1) will collect the amount. Thereafter when Kumar Gaurav (P.W.1) went to collect the amount of ransom, he was asked by Kumar Gaurav (P.W.1) to stand near Andheri Railway Station. Accordingly, when he was standing near Andheri Railway Station, police along with Kumar Gaurav (P.W.1) came there and accosted him. Thus, according to Accused No. 1 Santoshkumar Bariyar, death of Kartikraj is accidental and his dead body is disposed of by Kumar Gaurav (P.W.1) and his friends. But, he does not know as to how the dead body of Kartikraj was disposed of.

164. We may also notice the reasoning of the courts below in imposing death sentences on the appellant. The learned Sessions Judge as regards the appellant noted:

…It is Santoshkumar Bariyar’s mastermind which was responsible for the ultimate act of brutal killing of Kartikraj and it is, (he) who directed the accused Nos. 2 and 3, so also, Kumar Gaurav (PW-1) to catch hold Kartikraj while strangulation and further it is, (he) who directed Accused Nos. 2 and 3 and approver Kumar Gaurav (PW-1) to cut the dead body of Kartikraj. Not only this, but it is, (he) who acted nastly and inhumanly manner by twisting right leg of Kartikraj when one of the other accused could not cut in the right leg of Kartikraj. Therefore, I am of the opinion that it will not be possible to reform and rehabilitate the accused No. 1 by imposing (a) minimum sentence of imprisonment for life. Hence, I hold that this is a rarest of rare case.

165. The sentence was affirmed by the High Court stating:

…Examined from all angles, we feel that PW 1 has established that the main architect of the conspiracy is A1. It was hatched by all the accused and carried out as per the directions of A1. A1 showed extreme depravity in cutting the dead body and ensuring that it was disposed of. The lust for money continued till the accused were arrested….

166. However while imposing the sentence of imprisonment for life on Sanjeeb Kumar Roy (A 2) and Santosh Kumar Roy (A 3) the learned Sessions Judge noted:

As far as the Accused Nos. 2 and 3 are concerned, it is evident from the proven facts that they accepted the plan of Accused No. 1 only for monetary gain. The plan was possessed by accused No. 1 only. The Accused Nos. 2 and 3 as well as the approver Kumar Gaurav were motivated by accused No. 1 Santosh Kumar Bariyar and therefore, they all hatched (a) criminal conspiracy. Hence it cannot be disputed that the Accused Nos. 2 and 3 participated in the commission of (the) crime at the behest of Accused No. 1 Santosh Kumar Bariyar, which can be considered as a mitigating circumstance. Considering this mitigating circumstance and ages of Accused Nos. 2 and 3, in my view, it will be just and proper to give them an opportunity to reform and rehabilitate by imposing minimum sentence of life imprisonment.

167. The High Court refused to interfere with the question of the sentence on the said accused in the following words:

…Though it is true that A2 and A3 have actively participated in the crime, the brain behind it is A 1. A2 and A3 have carried out dictates of A1. This is a mitigating circumstance. Hence, we are not inclined to enhance the sentence.

168. The doctrine of proportionality, which appears to be the premise whereupon the learned trial judge as also the High Court laid its foundation for awarding death penalty on the appellant herein, provides for justifiable reasoning for awarding death penalty.

169. However while imposing any sentence on the accused the court must also keep in mind the doctrine of rehabilitation. This, considering Section 354(3) of the Code, is especially so in the cases where the court is to determine whether the case at hand falls within the rarest of the rare case.

170. The reasons assigned by the courts below, in our opinion, do not satisfy Bachan Singh Test. Section 354(3) of the Code provides for an exception. General rule of doctrine of proportionality, therefore, would not apply. We must read the said provision in the light of Article 21 of the Constitution of India.

171. Law laid down by Bachan Singh (supra) and Machhi Singh (supra) interpreting Section 354(3) of the Code should be taken to be a part of our constitutional scheme.

172. Although the Constitutional Bench judgment of the Supreme Court in Bachan Singh (supra) did not lay down any guidelines on determining which cases fall within the ‘rarest of rare’ category, yet the mitigating circumstances listed in and endorsed by the judgment gives reform and rehabilitation great importance, even requiring the state to prove that this would not be possible, as a precondition before the court awarded a death sentence. We cannot therefore determine punishment on grounds of proportionality alone. There is nothing before us that shows that the appellant cannot reform and be rehabilitated.

173. In Dhananjoy Chatterjee v. State of W.B., (1994) 4 SCC 220, this Court has taken notice of the fact that shockingly large number of criminals go unpunished thereby increasingly encouraging the criminals and in the ultimate making justice suffer by weakening the system’s credibility. Although the increasing number of cases which affect the society may hold some value for the sentencing court, but it cannot give a complete go-by to the legal principle laid down by this Court in Bachan Singh (supra) that each case has to be considered on its own facts.

174. Mr. Adsure has placed strong reliance on a decision of this Court in Mohan and OTHERS v. State of T.N., 1998 CriLJ 3276 to contend that the manner in which the murder was committed itself point out that all the accused deserved death penalty. In our opinion the facts of that case are clearly distinguishable from the present one. That case involved the murder of a minor. It clearly is not applicable to the present case. Moreover, the court in that case too recognized that proper and due regard must be given to the mitigating circumstances in every case.

175. Further indisputably, the manner and method of disposal of the dead body of the deceased was abhorrent and goes a long way in making the present case a most foul and despicable case of murder. However, we are of the opinion, that the mere mode of disposal of a dead body may not by itself be made the ground for inclusion of a case in the “rarest of rare” category for the purpose of imposition of the death sentence.

176. It may have to be considered with several other factors. This Court has dealt with the issue in Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 2 SCR 1009 . In this case of dowry death, the head of the deceased was severed and her body cut into nine pieces for disposal. This Court however expressed doubts over the efficacy of the deterrent effect of capital punishment and commuted the death sentence to one of RI for life imprisonment.

177. The issue of deterrence has also been discussed in the judgment of Swamy Shraddananda – I (supra), thus:

70. It is noteworthy to mention here the Law Commission in its Report of 1967 took the view that capital punishment acted as a deterrent to crime. While it conceded that statistics did not prove these so-called deterrent effects. It also said that figures did not disprove them either.

                                                                                (Emphasis supplied)

178. Most research on this issue shows that the relationship between deterrence and severity of punishment is complicated. It is not obvious how deterrence relates to severity and certainty. Furthermore, criminal policy must be evidence-led rather than based on intuitions, which research around the world has shown too often to be wrong. In the absence of any significant empirical attention to this question by Indian criminologists, we cannot assume that severity of punishment correlates to deterrence to an extent which justifies the restriction of the most fundamental human right through the imposition of the death penalty. The goal of crime reduction can be achieved by better police and prosecution service to the same or at least to a great extent than by the imposition of the death penalty.

179. In this respect, we may furthermore add here that in the most recent survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 2002, it was stated:

… it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment.

(See Roger Hood, The Death Penalty: A World- wide Perspective, Oxford, Clarendon Press, third edition, 2002, p. 230)

See also Kennedy v. Lousiana 128 S. Ct. 2641

MITIGATING CIRCUMSTANCES

180. Determination, as to what would be the rarest of rare cases, is a difficult task having regard to different legal principles involved in respect thereof. With the aforementioned backdrop, we may notice the circumstances which, in our opinion, should weigh with us for not imposing the extreme penalty.

181. The entire prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind. We will assume that in Swamy Shraddananda (supra), this Court did not lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty not would be permissible. But, even in relation thereto the question which would arise would be whether in arriving at a conclusion some surmises, some hypothesis would be necessary in regard to the manner in which the offence was committed as contra-distinguished from a case where the manner of occurrence had no role to play. Even where sentence of death is to be imposed on the basis of the circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case. We must, however, add that in a case of this nature where the entire prosecution case revolves round the statement of an approver or dependant upon the circumstantial evidence, the prudence doctrine should be invoked. For the aforementioned purpose, at the stage of sentencing evaluation of evidence would not be permissible, the courts not only have to solely depend upon the findings arrived at for the purpose of recording a judgment of conviction, but also consider the matter keeping in view of evidences which have been brought on record on behalf of the parties and in particular the accused for imposition of a lesser punishment. A statement of approver in regard to the manner in which crime has been committed vis-’- vis the role played by the accused, on the one hand, and that of the approver, on the other, must be tested on the touchstone of the prudence doctrine

182. The accused persons were not criminals. They were friends. The deceased was said to have been selected because his father was rich. The motive, if any, was to collect some money. They were not professional killers. They have no criminal history. All were unemployed and were searching for jobs.

183. Further if age of the accused was a relevant factor for the High Court for not imposing death penalty on accused No. 2 and 3, the same standard should have been applied to the case of the appellant also who was only two years older and still a young man in age. Accused Nos. 2 and 3 were as much a part of the crime as the appellant. Though it is true, that it was he who allegedly proposed the idea of kidnapping, but at the same time it must not be forgotten that the said plan was only executed when all the persons involved gave their consent thereto.

184. It must be noted that the discretion given to the court in such cases assumes onerous importance and its exercise becomes extremely difficult because of the irrevocable character of death penalty. One of the principles which we think is clear is that the case is such where two views ordinarily could be taken, imposition of death sentence would not be appropriate, but where there is no other option and it is shown that reformation is not possible, death sentence may be imposed.

185. Section 354(3) of the Code of Criminal Procedure requires that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons thereof.

186. We do not think that the reasons assigned by the courts below disclose any special reason to uphold the death penalty. The discretion granted to the courts must be exercised very cautiously especially because of the irrevocable character to death penalty. Requirements of law to assign special reasons should not be construed to be an empty formality.

187. We have previously noted that the judicial principles for imposition of death penalty are far from being uniform. Without going into the merits and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this Court, that life imprisonment is the rule and death penalty an exception. Each case must therefore be analyzed and the appropriateness of punishment determined on a case-by- case basis with death sentence not to be awarded save in the ‘rarest of rare’ case where reform is not possible. Keeping in mind at least this principle we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. There are no special reasons to record the death penalty and the mitigating factors in the present case, discussed previously, are, in our opinion, sufficient to place it out of the “rarest of rare” category.

188. For the reasons aforementioned, we are of the opinion that this is not a case where death penalty should be imposed. The appellant, therefore, instead of being awarded death penalty, is sentenced to undergo rigorous imprisonment for life.

189. Subject to the modification in the sentence of appellant (A1) mentioned hereinbefore, both the appeals of the appellant as also that of the State are dismissed.

 

Ram Chander & Ors.  VS State of Haryana[SC 2017 JANUARY]

KEYWORDS: Murder- Expert Evidence

Supreme Court-min

Merely because no expert opinion was obtained to prove as to whether bones recovered were human or animal bones, in our view, would not weaken the case of prosecution in the light of overwhelming evidence available on record to prove the complicity of the appellants

Murder-Sections 148, 302 read with Section 149 and 201 of the Indian Penal Code,1860

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 658-659 OF 2010

 January 02, 2017

Ram Chander & Ors.  VS State of Haryana 

Bench: A.K. Sikri, Abhay Manohar Sapre

J U D G M E N T
Abhay Manohar Sapre, J.

1) These appeals are filed against the common final judgment and order dated 12.08.2008 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal Nos. 448-DB and 395-DB of 1998 whereby the Division Bench of the High Court dismissed the appeals filed by the appellants herein and upheld the judgments/orders of conviction and sentence rendered by the Trial Court.

2) The case of the prosecution is as under:

One Hari Singh (since dead) was married to Messo (deceased). Out of this wedlock, the couple was blessed with three daughters, namely, Dholi alias Krishna, Sumitra and Raj Bala. Raj Bala was aged around 15 years and the youngest amongst the three daughters. Both Dholi and Sumitra were married at a place (village) called Kagdana whereas Rajbala was unmarried.

3) Hari Singh has two brothers, namely, Sohan Lal (accused – since dead) and Bhoop Singh. Sohan Lal has four sons, namely, Ram Chander, Ranbir alias Randhir, Ram Kumar and Om Parkash (accused- appellants herein). Messo has one sister Guddi (PW- 9) who is married to Bhoop Singh.

4) Messo and Raj Bala (mother and daughter) were living in one house at village Arnianwali. Guddi was their next-door neighbour. Messo was in search of a boy for Raj Bala and had selected one boy from a place called Manak Dewan for which talks had been going on for the last one month or so from the date of incident. The engagement ceremony was accordingly fixed for 22.09.1996 at Arnianwali. Dholi alias Krishna (married daughter of Messo) had, therefore, come to her mother’s place at Arnianwali on 19.09.1996 to help her mother and sister–Raj Bala for the ceremony.

5) On 20.09.1996, around 3 p.m. Sohan Lal along with his four sons, namely, Ranbir, Ram Chander, Ram Kumar and Om Parkash, came to the house of Messo and told her to desist from settling the marriage of Raj Bala with a boy from Manak Dewan. Sohan Lal said that they could settle it according to their own choice. Sohan Lal, who was not happy with the marriage proposal, expressed his total unhappiness and did not want the marriage proposal to fructify. He then threatened Messo that in case she did not agree to his proposal then both (Messo and Raj Bala) would not see the sun the next day. After giving this threat, Sohan Lal along with his sons (appellants herein) left the place. Dholi and Guddi were present along with Messo and Raj Bala when Sohan Lal and his four sons had come.

6) Messo fearing with the threat of Sohan Lal asked her daughter Dholi to go immediately to her brother, Ram Sarup at village Dhigtania which was around 20 KM away from her house and inform him about happening of such incident with her. Dholi, accordingly, went there and narrated the incident to Ram Sarup-her maternal uncle. She then stayed overnight with Ram Sarup.

7) On 21.09.1996, in the early hours, when Dholi and Ram Sarup accompanied by one Om Prakash-Sarpanch of Village Dhigtania reached to the house of Messo, they found both, Messo and Raj Bala, missing from the house. They, therefore, went to the house of Guddi (PW-9), who was living next to the house of Messo. They noted that Guddi was weeping and was in the state of shock.

8) When they inquired from her about the whereabouts of Messo and Raj Bala, Guddi told them that Sohan Lal and his four sons had come in the night and murdered Messo and Raj Bala, burnt their bodies in house and carried the remains of the dead bodies and ashes in a cart driven by the tractor from her house to an unknown place.

9) This led to the registration of FIR bearing No.197 (Ex-PA-1) dated 21.09.1996 by Dholi at Police Station Nathusari Chopta naming Sohan Lal and his four sons (appellants herein) as accused persons for committing the murder of her mother-Messo and sister–Raj Bala. The police authorities then started investigation, visited the spot, recorded the statements of the witnesses, prepared the spot map, recovered several articles from the spot and arrested the accused persons. On being interrogated, the accused made disclosure statements about the manner in which ashes/bones of both the deceased were disposed of in a nearby Canal known as-Sheranwali Canal and also disclosed the place where the weapons used in commission of the offence and tractor with cart were kept. On such disclosure being made, the police made recoveries of the articles at the instance of the accused.

10) After completion of the investigation, the case was committed to the Court of Sessions and the accused persons were charged for commission of the offences punishable under Sections 148, 302 read with Section 149 and 201 of the Indian Penal Code,1860 (for short ‘IPC’).

11) On 07.08.1997, Om Parkash-one of the accused escaped from police custody from Civil Hospital Sirsa. Proceedings under Sections 82 and 83 of the Criminal Procedure Code,1973 (for short ‘the Code’) were initiated against him. He was declared ‘Proclaimed Offender’ and proceedings under Section 299 of the Code were ordered to be taken up against him. The trial of other accused, however, proceeded on merits.

12) The prosecution, in support of his case, examined as many as 11 witnesses whereas the defence did not choose to lead any evidence. Proceedings under Section 313 of the Code were carried out. After completion of the trial, the Trial Court (Additional Sessions Judge, Sirsa), vide judgment dated 27.07.1998, convicted Sohan Lal, Ranbir @ Randhir, Ram Chander and Ram Kumar for the offences punishable under Sections 148, 302/149 and 201/149 IPC and sentenced them to undergo rigorous imprisonment for a period of one year each under Section 148 IPC. Ram Chander and Ranbir @ Randhir to undergo imprisonment for life under Section 302 IPC and to pay a fine of Rs.5000/- each, in default of payment, further to undergo rigorous imprisonment for a period of one year each. Sohan Lal and Ram Kumar were sentenced to imprisonment for life under Section 302/149 IPC and to pay a fine of Rs.5000/- each, in default of payment of fine, further to undergo rigorous imprisonment for a period of one year each. All the four accused were sentenced to undergo rigorous imprisonment for a period of two years each for the offences punishable under Section 201/149 IPC. All the sentences were ordered to run concurrently.

13) After arrest of Om Parkash on 22.02.1999, a separate trial was conducted against him and after its completion, the Trial Court, by a separate judgment dated 7/8.08.2000, convicted him for the offences punishable under Sections 148, 302/149 and 201/149 IPC and sentenced him to undergo rigorous imprisonment for one year under Section 148 IPC imprisonment for life and fine of Rs.5000/- with default clause under Section 302/149 IPC and rigorous imprisonment for two years under Section 201/149 IPC. All the substantive sentences were ordered to run concurrently.

14) Against the judgment of conviction and order of sentence dated 27.07.1998, Sohan Lal, Ram Chander, Ram Kumar and Ranbir @ Randhir filed Criminal Appeal No. 448-DB of 1998 before the High Court.

15) Against the judgment of conviction and order of sentence dated 7/8.9.2000, Om Parkash filed separate Criminal Appeal No. 395-DB of 2000 before the High Court.

16) The appeals were heard together. By impugned judgment dated 12.08.2008, the High Court dismissed both the appeals. During the pendency of the appeals before the High Court, Sohan Lal died, therefore, appeal against him stood abated.

17) Aggrieved by the said judgment, all the accused have filed these appeals by special leave before this Court questioning the legality and correctness of their conviction and sentence.

18) Heard Mr. Naresh Kaushik, learned counsel for the appellants (accused) and Mr. Sanjay Kumar Visen learned counsel for the respondent- State. We also perused the written submissions submitted by the learned counsel for the parties.

19) Learned counsel for the appellants (accused) while assailing the legality and correctness of the impugned order, reiterated the same submissions which were pressed in service though unsuccessfully by the appellants before the two courts below resulting in their conviction.

20) In substance, the submissions were that firstly, the appellants were falsely implicated in the incident inasmuch as none of the appellants were connected with the commission of the offence in question in any way so also their complicity in the commission of the offence could not be established by the prosecution for want of evidence against any of them.

21) The second submission was that neither the motive for commission of the offence and nor the presence of any of the appellants either jointly and individually was proved at the time of the commission of the offence by the prosecution and the evidence adduced by the prosecution is not sufficient to implicate the appellants for commission of the offence.

22) The third submission was that the two Courts below erred in placing reliance on the evidence of the so-called eye-witness-Guddi (PW-9) as according to the learned counsel, her testimony, if scanned properly would neither inspire confidence and nor will command creditability due to her close relationship with the deceased family.

23) The fourth submission was that apart from the evidence of Guddi (PW-

9), no independent eye-witness to the incident was examined by the prosecution, therefore, it is not safe to rely on the uncorroborated testimony of Guddi (PW-9) for sustaining the appellants’ conviction.

24) The fifth submission was that when the prosecution claimed that on the strength of disclosure statement of one accused, they recovered “Ashes and Bones” from the canal, this itself renders the case of the prosecution wholly unacceptable because ashes could never be recovered from canal.

25) The sixth submission was that it looked highly improbable that no villager could witness the incident except Guddi(PW-9). This, according to learned counsel, is sufficient to hold that the prosecution failed to establish the complicity of the appellants in commission of the crime.

26) The seventh submission was that no expert opinion was obtained to find out as to whether bones recovered were human bones or animal bones?

27) It is basically these submissions, which were elaborated by the learned counsel for the appellants with reference to the evidence on record.

28) In reply, learned counsel for the respondent supported the impugned order and contended that since both the Courts below, on proper appreciation of evidence, have held that the appellants were involved in the commission of the offence in question and committed brutal murder of two innocent ladies, mother and daughter, and further both the Courts have given cogent reasons while rejecting their submissions and hence there arises no reason to interfere in the impugned order.

29) Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeals.

30) At the outset, we may take note of one legal principle consistently reiterated by this Court since inception that it is not the function of this Court to re-assess evidence and an argument on a point of fact which did not prevail with the Courts below cannot avail the appellants in this Court (see observation of learned Judge – Saiyid Fazl Ali, J. while speaking for the Bench in the case of Lachhman Singh and others vs State (AIR 1952 SC 167).

31) Here is a case where the Trial Court and the High Court, on appreciating the entire oral evidence, recorded categorical concurrent findings of fact against the appellants (accused) about their complicity in commission of crime in question which resulted in killing of mother and her unmarried daughter.

32) Both the Courts below held that firstly, it were the appellants who had come to the house of Messo (mother) and threatened her that she (Messo) should not pursue her daughter, Raj Bala’s marriage with the boy from Manak Diwan, otherwise both will not see the sun the next day. Secondly, noticing that both did not pay any heed to the threat, the appellants came to Messo’s house in the midnight with a pre-determined mind to eliminate Messo and Raj Bala. Thirdly, the appellants accomplished their plan by mercilessly killing Messo and Raj Bala with the use of gandasa when both were in fast asleep. Fourthly, the appellants first caught hold of Messo and chopped her head with Gandasa and then did the same to Raj Bala and then put them on a cot and put mattresses and wood sticks over their bodies and poured kerosene/diesel and set their bodies to fire. Fifthly, the appellants then removed the ashes and bones from the place of occurrence in a tractor and all this was witnessed by Guddi (PW-9) who was living as next door neighbour of the deceased. Sixthly, Guddi (PW-9) was a reliable eye- witness whose evidence did not suffer from any infirmities or/and inconsistencies. Seventhly, the ashes, human bones, plastic bags, Gandasa used in execution of the offence were recovered from the canal and house at the instance of the respective appellants on the strength of individual disclosure statements made during their interrogation. Eighthly, the defence did not adduce any evidence to demolish the case of the prosecution and nor statements of the accused made under Section 313 of the Code, in any manner, could demolish the case of the prosecution on any material points. Ninthly, the case set up by the prosecution was proved with the aid of evidence adduced by witnesses, namely, PW-1 to PW-11.

33) As observed supra, the aforementioned nine main findings of the Sessions Court were affirmed by the High Court after appreciating the oral evidence. These findings of fact being concurrent in nature are usually binding on this Court. This Court, being the last Court of appeal, does not re-visit and re-appreciate the entire oral evidence de novo in its jurisdiction under Article 136 of the Constitution unless there are strong and prima facie reasons to do so pointing out therein any apparent legal and jurisdictional error prejudicing any rights of the accused.

34) However, since this Court granted leave to file appeal to the appellants against the impugned order of the High Court and hence we considered it just and proper to have a re-look to the evidence of material witnesses with a view to find out whether the concurrent findings of the two Courts below are based on proper appreciation of evidence or any of these findings call for any interference.

35) As mentioned above, the only eye-witness to the incident in question is Guddi (PW-9). Both the Courts below found her testimony to be natural, credible and consistent.

36) Guddi (PW-9) is the real sister of the deceased Messo and she was living next to the house of Messo. She, in her evidence, narrated in detail her family tree and their inter se relations including her relation with the accused family.

37) She stated that Sohan Lal-one of the accused (since dead) was her husband’s (Bhoop Singh’s) real elder brother and the accused are Sohan Lal and his sons. She stated that Sohan Lal and his sons (appellants) had come to Messo’s house in the afternoon on the date of incident (incident had occurred in midnight the same day) and held out a threat to her and Raj Bala that marriage proposal of her daughter with the boy from Manak Diwan should not be materialized and if it is not cancelled then she and her daughter will not see the sun the next day. She stated that Sohan Lal gave this threat to Messo in her presence and in presence of Dholi (PW-8) who had come to Messo to extend help for engagement ceremony of Raj Bala.

38) She stated that Messo on hearing the threat asked Dholi-her daughter to go to her maternal uncle (Ram Sarup) – who was the resident of nearby village and bring him with her, if possible.

39) She stated that Dholi immediately left to the house of Ram Sarup and on reaching there she told him about the incident. Dholi stayed back overnight with Ram Sarup.

40) She then stated that during mid-night hours, she heard some noise in the house of Messo. She, therefore, woke up and came out to find out the cause of noice. She stated that between her house and the house of Messo, there is one common wall with sufficient space, which enables anyone to peep through easily in both the houses.

41) She stated that she came near to the joint wall and through space in the wall saw that Ram Chander (accused) and Randhir (accused) were holding Gandasas in their hands whereas Sohan Lal (accused) and Om Prakash (accused) had caught hold of Masso’s hand and legs and Ram Chander (accused) with his gandasa gave blow on Messo’s neck, which completely severed Messo’s neck from her body.

42) She stated that Ram Kumar (accused) then caught hold of Raj Bala who was on a separate cot and Ranbir (accused) with his gandasa gave blow on Raj Bala’s throat due to which her neck was completely severed from her body. The accused persons then put both the bodies on one cot along with their severed heads and put mattresses on the dead bodies. Sohan Lal then put some wood sticks by the side of the cot and poured two tins of diesel/kerosene on the cot and set the cot ablaze with matchstick.

43) She stated that Ranbir (accused) then came to her (Guddi‘s) house and took their tractor and camel cart to Messo’s house. He dumped ashes, bones and other burnt material in the tractor and proceeded with the tractor to an unknown place. She stated that before leaving, Ram Chander plastered the place of occurrence with mud and cow-dung and cleaned the place. She stated that she told about this incident to Bhoop Singh but on hearing it, he ran away out of fear.

44) She stated that next morning when Ram Sarup, Dholi and Om Prakash- Sarpanch came, she narrated the entire incident to them, which eventually led to filing of FIR by Dholi immediately in the concerned nearby Police Station naming therein the appellants as the culprits of commission of the offence.

45) Dholi (PW-8) corroborated the evidence of Guddi (PW-9) on material points such as (1) all the accused visiting Messo’s house and giving threat in her presence to Messo and Raj Bala, (2) Raj Bala’s marriage proposal with a boy from Manik Dewan (3) She having left to her uncle’s place at the request of her mother Messo to inform him about the incident (4) her family relations with the accused and with other family members and lastly, what Guddi (PW-9) told her about the entire incident and the manner in which it was accomplished by the accused on her reaching the house next day morning with Ram Sarup and Om Prakash.

46) Ram Sarup (PW-10) also corroborated the version of Guddi (PW-9) and Dholi (PW-8) on all material points. He stated that when he along with Dholi and Om Prakash went to Guddi, she was weeping and frightened. On being consoled, she narrated the entire incident (mentioned above) to them.

47) The evidence of the Investigating Officer Hardawari Lal (PW-11) and Kiran Kumar (PW-7) who was the Scientific Assistant (Forensic Science Laboratory) proved that the blood stains were found on the walls and earth and also fresh mud and cow-dung was found on the walls and when it was removed, blood stains were noticed on the bricks of the wall. Kiran Kumar (PW-7) also corroborated the existence of joint wall with sufficient space available in the common wall as stated by Guddi (PW- 9).

48) The evidence of Investigating Officer (PW-11) also proved the recoveries of articles on the basis of disclosure statements made by respective appellants (accused). The seized articles were proved and exhibited.

49) It is with this evidence, the question arises as to whether the two Courts below were justified in placing reliance on the evidence of Guddi (PW-9) for resting the appellant’s conviction?

50) On scanning the aforementioned evidence, we are of the considered opinion that both the Courts below were justified in accepting the evidence of Guddi (PW-9) for resting the appellants’ conviction upon it. We, while concurring with the reasoning and the conclusion of both the Courts below, give our reasons infra. In our view, the following facts are proved with the aid of evidence.

51) First, Guddi (PW-9) was next-door neighbour to the house of both the deceased where the incident took place. Second, she was closely related to the deceased family and the family of the accused. Third, she knew the accused persons and the family members of the deceased very well much prior to the date of incident being a part of the same families. Fourth, she was fully aware of the marriage issue of Raj Bala. Fifth, she was present at the time of threat given by Sohan Lal and his sons (accused) to Messo. Sixth, she was able to see the incident graphically due to sufficient space available in the common wall. Seventh, Scientific Assistant, Kiran Kumar (PW-7) on inspection of the place of occurrence proved that the common wall has space. He said “there was open space between this wall and the room”. Eighth, it also corroborates with the evidence of Hardawari Lal(PW-11) and the spot map (EX-PU) of the place of incidence that the wall and the open space therein did exist; Ninth, Guddi’s narration of entire incident is so graphic that it looks natural. It also shows how confidently she was able to narrate the role of every accused in commission of the offence. Tenth, the existence of blood stains on wall and earth coupled with fresh mud and cow dung put on the walls/earth duly proved by Hardawari Lal, Investigating Officer(PW-11) and Kiran Kumar (PW-7) corroborates Guddi’s statement that “Ram Chander – one of the accused before leaving the place of occurrence cleaned the place with mud and cow-dung”. Eleventh, it is not possible to give description of an incident in such graphic manner and that too by a middle aged illiterate housewife unless she had actually seen such incident and why should Guddi (PW-9) give evidence against the appellants and falsely implicate them when there is no evidence to prove their previous animosity; Twelfth, motive to eliminate the two deceased was proved by Guddi against the appellants and lastly, nothing could be brought out to shake her testimony in cross-examination.

52) The submission of learned counsel for the appellants that since Guddi (PW-9) was in close relation with the deceased persons, she should not be believed for want of evidence of any independent witness, deserves to be rejected in the light of the law laid down by this Court in Dalbir Kaur and Ors. vs. State of Punjab, (1976) 4 SCC 158, and Harbans Kaur and Anr. vs. State of Haryana, (2005) 9 SCC 195, which lays down the following proposition:

“There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused.”

53) In Namdeo?Vs.?State of Maharashtra, (2007) 14 SCC150, this Court further held:

“38. ………. it is clear that a close relative cannot be characterised as an “interested” witness. He is a “natural” witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the “sole” testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.”

54) We follow and apply this well settled principle of law for rejecting the submissions of learned counsel for the appellants.

55) In the light of aforementioned twelve reasons, we are of the view that Guddi (PW-9) was rightly held to be an eye-witness and the two Courts rightly relied upon her sworn testimony for sustaining the appellants’ conviction.

56) This takes us to the next argument of learned counsel for the appellants. It was urged that the alleged recovery of articles on the strength of disclosure statement of the accused and in particular the “ashes and the bones” from the canal is not possible. We do not agree.

57) In our view, there is no evidence to prove the fact as to whether the canal from where the recovery of ashes and bones was made had any water therein or not at the relevant time. We do not find that any question was put to any witness on this issue and secondly, no independent evidence was brought on record to prove as to whether the canal was full of water or had no water therein. In any event, one could not dispute that bones were recovered from the canal. In the absence of any evidence, which could otherwise be led in any form, this submission at this stage is, therefore, not acceptable.

58) This takes us to the next argument of learned counsel for the appellants. Learned Counsel urged that why the prosecution did not examine any independent witness from the village other then Guddi (PW-9).

59) We find no merit in this submission for more than one reason. First, no such argument was advanced before the two courts below. Second, the incident had taken place during midnight when all the villagers were fast asleep. Third, no evidence was adduced to prove that near the place of incident, there were many houses and lastly, had the injury been caused by the Gun Shot, it would have created some noise in the nearby locality and attract the attention of the villagers. Such was, however, not the case because the weapon used in commission of the offence was ‘Gandasa’.

60) In our considered opinion, the disclosure statements made by the accused during their interrogation on the basis of which the recoveries of articles were made such as – gandasa, bones, ashes, blood stained bricks and earth, tractor with cart, two plastic cans smelling diesel oil, which were duly proved by the Investigating Officer are sufficient to sustain the conviction when it is examined in the context of oral evidence. Merely because no expert opinion was obtained to prove as to whether bones recovered were human or animal bones, in our view, would not weaken the case of prosecution in the light of overwhelming evidence available on record to prove the complicity of the appellants.

61) It is the consistent view of this Court that minor discrepancies, even if noticed, would not affect the prosecution case, if there is a sufficient independent evidence to sustain the conviction. (See – Vijay @ Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191, Paras 23 & 23). In this case, the evidence adduced was found sufficient to sustain the conviction and we find no good ground to take a different view from the one taken by the two Courts below and concur with their findings and views by giving our own reasons mentioned supra.

62) In view of foregoing discussion, the appeals are found to be devoid of any merit. The appeals thus fail and are accordingly dismissed. In case if any of the appellants is on bail, his bail bond stands cancelled and he is directed to be taken into custody forthwith to undergo remaining period of sentence awarded to him by the Sessions Court.

[A.K. SIKRI]

[ABHAY MANOHAR SAPRE]

State of TAMIL NADU through Superintendent of Police CBI/SIT Appellant Versus Nalini and others[ALL SC 1999 May]

 KEYWORDS:- Rajib Gandhi Murder Case-disrupting the sovereignty of India-Murder-

Supreme Court-min

Date :- 11-05-1999

Offence under Section 302 read with Section 120-B of IPC it would be advantageous to consider whether prosecution could sustain offences under TADA

AIR 1999 SC 2640 : (1999) 3 SCR 1 : (1999) 5 SCC 253 : JT 1999 (4) SC 106 : (1999) 3 SCALE 241 : (1999) CriLJ SC 3124

(SUPREME COURT OF INDIA)

State of TAMIL NADU through Superintendent of Police CBI/SIT Appellant
Versus
Nalini and others Respondent

WITH

T. Suthenthiraraja alias Santhan and others Appellant
Versus
State by DSP, CBI, SIT, Chennai Respondent

WITH

P. Ravichandran and others Appellant
Versus
State by DSP, CBI, SIT, Chennai Respondent

WITH

Robert Payas and others Appellant
Versus
State by DSP, CBI, SIT, Chennai Respondent

WITH

S. Shanmugavadivelu and others Appellant
Versus
State by DSP, CBI, SIT, Chennai Respondent

WITH

S. Nalini and others Appellant
Versus
State by DSP, CBI, SIT, Chennai Respondent

(Before : K. T. Thomas, D. P. Wadhwa And S. S. M. Quadri, JJ.)

Death Ref. No. 1 of 1998 (arising out of D. No. 1151 of 1998) with Crl. Appeal No. 321 of 1998 with Crl. Appeal No. 322 of 1998 with Crl. Appeal No. 323 of 1998 with Crl. Appeal No. 324 of 1998 with Crl. Appeal No. 325 of 1998, Decided on : 11-05-1999.

Counsel for the Parties:

Altaf Ahmed, Addl.Solicitor General, N. Natarajan, S. Siva Subramaniam Sr. Advocates, Jacob Daniel, Mariaputham, Romy Chacko, S. A. Matoo, Ms. Meenakshi Arora, A. D. N. Rao, P. Parmeshwaran, N. Chandra-sekharan, S. Duraisamy, T. Ramadass, Ilamgovan, Sunder Mohan, B. Gopikrishna Jai Srilank, K. Vijaykumar, V. Rama Subramaniam, T. Raja, K. Thennan and D. K. Singh Advocates, with them, for the appearing parties.

Judgement

Thomas, J—Rajiv Gandhi, a former Prime Minister of India was assassinated on 21-5-1991 at a place called Sriperumbudur in Tamil Nadu. The assassin was an adolescent girl named Dhanu who was made into a human bomb and she got herself exploded at 10.19 p.m. at very close proximity to the visiting former Prime Minister. In a trice the life of Rajiv Gandhi was snuffed out and his body was smashed into smithereens. As for the assassin nothing except a few pieces of charred limbs and her sundered head were left behind. In the explosion lives of 18 others also got extinguished. Investigation pointed to a minutely orchestrated cabal, masterminded by some conspirators to extirpate the former Prime Minister from this terrestrial terrain. In the final charge-sheet made by the Central Bureau of Investigation (CBI) all the 26 appellants now before us, were arraigned as members of the conspiracy which targetted, inter alia, Rajiv Gandhi. The Special Judge who tried the case found all the 26 appellants guilty of various offences charged, the gravamen of them being Section 302 read with Section 120-B, IPC. All of them were hence convicted of those offences and all of them were sentenced to death.

2. These appeals by right are under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act (TADA for short). The Special Judge submitted the records to this Court for confirmation of the death sentence. We heard all the above matters together at great length, perhaps the longest heard criminal appeal in this country. Shri Altaf Ahmad, Additional Solicitor General who was assisted by a team of Advocates argued the prosecution side adroitly and with great dedication. The accused’s side was represented by Shri N. Natarajan, Senior Counsel who was assisted by array of counsel with meticulous preparation and admirable resourcefulness.

3. We were verily benefitted by the remarkable contribution made by the counsel for both sides. We record our uninhibited thanks to them.

4. We may narrate, as briefly as possible, the events which preceded and succeeded the assassination as they would unfurl the conspectus of the case. The genesis can be traced to a movement which burgeoned in Sri Lanka for ventilating the grievances of the people of Tamil origin and for making certain demands for the Tamil speaking people of the island. Under the leadership of one Veluppillai Piribhakaran, a militant organisation called “Liberation Tigers of Tamil Eelam” (hereinafter referred to as ‘LTTE’ as the abbreviation) came to existence in the island. When the movement became belligerent the Government of Sri Lanka adopted sterner measures to curb their activities. Eventually a series of confrontations took place between the Government of Sri Lanka and the activists of LTTE.

5. When Sri Lankan Government found it difficult to meet the situation by themselves, the Government sought assistance from Government of India for tackling the problem. This was reciprocated by the Government of India. Some parleys took place between the diplomats of both nations in 1987. The President of Sri Lanka (Mr. Jaya-wardhane) and the Prime Minister of India (Sri Rajiv Gandhi) met together at New Delhi and Veluppillai Piribhakaran was also invited to be involved. An accord was signed by the aforesaid three persons by which Indian Government agreed, inter alia, to form a cadre called Indian Peace Keeping Force (IPKF for short). One of the tasks assigned to the force was to disarm LTTE militants. Pursuant to the terms of the accord Government of India despatched large number of IPKF personnel to Sri Lanka. While discharging their duties the IPKF committed many excesses which became inhuman conduct towards the followers of LTTE. Consequently hostility developed in the minds of LTTE cadre towards IPK Force. To register their protest against such excesses one of the LTTE hardcore activists by name Dileepan undertook a fast and he succumbed to it after a few days.

6. Skirmishes became rampant between members of the IPK Force and LTTE activists. In October 1987, a vessel carrying 17 LTTE functionaries was intercepted by the Sri Lankan Navy while patrolling on the high seas and the passengers were held captives. Leaders of LTTE made a bid to save them by appealing to the Indian Government to intervene, but there was no response. 12 out of 17 captives committed suicide by consuming Pottasium Cyanide. There was counter-attack on IPK Force when LTTE commandos captured a ship carrying provisions for the army, and in the encounter which ensued 11 Indian soldiers were killed.

7. In the meanwhile one Varadaraja Perumal who was an accredited leader of a rival organisation called Eelam Peoples Revolutionary Liberation Front (EPRLF) got elected from the Northern Zone as a follow-up step of the terms of Sri Lanka-India Accord to which reference was made above. Later the Indian Government under the leadership of Rajiv Gandhi agreed for making a gradual deinduction of IPK Force from Sri Lanka.

8. In the general election which was held in 1989, a new Government headed by Sri V. P. Singh as Prime Minister came to power in India. The new Government accelerated the process of deinduction of IPK Force. However, the said Government did not last long and another Government with Sri. K. Chandrashekhar as Prime Minister assumed office. That Government too did not last long and the political changes in India reached a stage when the Lok Sabha was dissolved and the President of India issued a notification for fresh election. Rajiv Gandhi started campaigning for the Congress (I) Party. He made his views public when a correspondent of Amrit Bazar Patrika interviewed him which was published in the Sunday Magazine of the newspaper on the 12th and 19th of August, 1990. The pith of the interview, concerning Sri Lankan policy, was that Rajiv Gandhi did not favour withdrawal of the IPK Force from Sri Lanka and he was critical of the approach made by V. P. Singh Government towards Sri Lanka.

9. In the election manifesto published by Congress (I) for the ensuing general election the party reiterated its commitment to the India-Sri Lanka agreement of July 1987 as the basis for the settlement of outstanding issues relating to the Tamil population of Sri Lanka, and assured to ensure the territorial integrity of Sri Lanka.

10. The events which took place subsequent thereto were so intertwined with the above-narrated political developments that this case cannot be understood without etching the afore-presented backdrop. We may now proceed to describe the prosecution case.

11. A criminal conspiracy was hatched and developed by the hardcore LTTE cadre which spread over a long period of 6 years commencing from July 6, 1987 and stretching over till May 1992. The main objects of the conspiracy were:(1) to carry out acts of terrorism and disruptive activities in Tamil Nadu and other places in India during the course of which to assassinate Rajiv Gandhi and others, (2) to cause disappearance of evidence thereof, (3) to harbour all the conspirators living in India, and (4) to escape from being apprehended and to screen all those who were involved in the conspiracy from legal consequences.

12. As a follow-up step of the conspiracy, during the first half of its period LTTE commandos arrived on the Indian shore in different batches. The first batch arrived on 12-9-1990 which consisted of Perumal Vijayan (12th accused) and his wife Selvaluxmi (13th accused) and Bhaskaran (14th accused). They were seen off at Jaffna in Sri Lanka by one of the top ranking hardcore LTTE leader by name Sivarasan.

13. It is appropriate to mention now itself that the said Sivarasan would have been one of the most seriously involved accused in this case, but he is not alive now as he abruptly ended his life when he was sure of being nabbed by the police. Among the conspirators nobody else seems to have played a greater role on the Indian soil than what Sivarasan had played. Sivarasan reached India sometime in December, 1990 and in collaboration with those who arrived in the first batch he managed to secure a house building in a locality called Kodangiyoor at Madras.

14. The next batch consisted of Robert Payas (9th accused), his wife and sisters and Jayakumar (10th accused) together with his wife Shanthi (11th accused). They arrived in India in September, 1990. They took another house on rent at a more secluded locality in Kodangiyoor as suggested by Sivarasan who too started residing therein. The third batch consisting of Ravichandran (16th accused) and Suseendran (17th accused) came to India on December 17, 1990. Murugan (3rd accused) reached India in January 1991 and Radhayya (7th accused) and Chandralekha alias Athirai alias Guari (8th accused) reached India in April 1991. In the meantime two persons, Arivu (18th accused) and Irumborai (19th accused) went back to Sri Lanka in the company of another important LTTE activists called Baby Subramaniam. They collected instructions from Veluppillai Piribhakaran. Sivarasan was shuttling between India and Sri Lanka quite often during the above period.

15. The final arrivals were the most dedicated hardcore LTTE commandos who were brought on the Indian soil by Sivarasan on 1st of May, 1991. That batch consisted of the girl Dhanu (who offered herself to become the human bomb) and her close friend Suba besides Santhan (2nd accused), Shankar (4th accused), Vijayanandan (5th accused) and Sivaruban alias Ruban (6th accused). They were seen off at Sri Lanka by a man called Pottu Omman (who was described as Chief of Intelligence wing of LTTE).

16. The targets of the conspiracy, according to the prosecution, were Fort St. George at Madras (which houses the Government Secretariat of Tamil Nadu and a lot of important State Government buildings), Tamil Nadu Police Headquarters and other police stations, Vellore Fort (in which the Central Jail is situate), Krishna Raja Sagar Dam (Karnataka), Vidhan Soudha at Bangalore. Among the persons the targets were Rajiv Gandhi, Varadaraja Perumal and certain other unspecified but identified personage.

17. Pursuant to the scheme of the conspirators, photos of Fort St. George, Madras Police Headquarters and a few other police stations were taken and forwarded them to the top leaders of LTTE at Sri Lanka. A sketch of Vellore Fort was drawn up which too was despatched to the island.

18. Sivarasan sheltered Suba and Dhanu for a few days in the house of Jayakumar (A-10) and shifted them to the house of Vijayan (A-12). As instructed by Sivarasan a wireless set was installed in the house of Vijayan (A-12) and fitted it with operational facilities as Station No. 910. Another wireless set was installed in the house of Robert Payas (A-9). In October 1990, a house was taken on rent by Nalini (A-1) at High Court Colony, Villivakkom, Madras. Murugan (A-3), Suba and Dhanu used to see Nalini and Sivarasan. In March 1991, another house was taken on rent by Rangan (A-24) at Park Avenue, Madras and one more house was taken by him at Bangalore. Both houses were taken on rent as per the instructions given by Sivarasan.

19. When information reached that Rajiv Gandhi was addressing a meeting at Marina Beach, Madras on 18-4-1991 four persons – Nalini (A-1), Murugan (A-3), Suba Sundaram (A-22) and one Haribabu went to the meeting place. The conspirators thought of conducting a trial for the purpose of assassinating Rajiv Gandhi. When they got information that V. P. Singh, a former Prime Minister, was addressing a meeting at Madras on 7th May, 1991 Sivarasan took Suba and Dhanu to that place (Nandanam, in Madras), Nalini (A-1), Murugan (A-3) and Arivu (Perarivalan) and Haribabu also accompanied them. The idea was to give advance training to Suba and Dhanu as to how to go near a former Prime Minister. V. P. Singh arrived at the meeting place only during the wee hours of 8th May, 1991. Before V. P. Singh could address the gethering, Nalini (A-1), Dhanu and Suba made a bid to garland the visiting former Prime Minister on the rostrum of the meeting. The success of the aforesaid trial emboldened Suba and Dhanu and they on 9th May, 1991 conveyed their confidence in achieving the target to Akila who was Deputy Chief of Intelligence wing of LTTE. (Akila was also put in charge of the Women Wing of the organisation).

20. With the success they felt achieved in the trial run the main conspirators started acting swiftly. On 11-5-1991, Nalini (A-1) took Suba and Dhanu to a tailoring shop and purchased some clothes including a Salwar-Kameez. On 17-5-1991, Sivarasan and Santhan (A-2) sent Sivaruban (A-6) to Jaipur to find out a hide-out for the conspirators and to take the same on rent under a pseudonymous name.

21. The tour programme of Rajiv Gandhi was published in the local newspapers on 19-5-1991 and then Sivarasan came to know that Rajiv Gandhi would address a meeting at Sriperumbudur on 21st May, 1991. Sivarasan determined not to miss that opportunity. He ascertained all about Sri-perumbudur from Nalini (A-1) and then he told Nalini that the target was only Rajiv Gandhi.

22. On 20-5-1991, Arivu (A-18) purchased a 9-Watt golden power battery from a shop. Sivarasan deputed Kanagasabapathy (A-7) to go to Delhi to fix up a house as a hide-out to be used during the days after accomplishing the target. Sivarasan confabulated with Nalini (A-1), Murugan (A-3), Arivu (A-18) and Haribabu at the house of Jayakumar (A-10). Sivarasan instructed Nalini to take half a day’s leave under some pretext or the other. Arivu (A-18) and Bhagyanathan (A-20) procured a Kodak film and supplied it to Haribabu who was a freelance photographer.

23. On 21-5-1991, Haribabu bought a garland made of sandalwood presumably for using it as a camouflage (for murdering Rajiv Gandhi). He also secured a camera. Nalini (A-1) wangled leave from her immediate boss (she was working in a company as P. A. to the Managing Director) under the pretext that she wanted to go to Kanchipuram for buying a saree. Instead she went to her mother’s place. Padma (A-21) is her mother. Murugan (A-3) was waiting for her and on his instruction Nalini rushed to her house at Villivakkom (Madras). Sivarasan reached the house of Jayakumar (A-10) and he got armed himself with a pistol and then he proceeded to the house of Vijayan (A-12).

24. Sivarasan directed Suba and Dhanu to get themselves ready for the final event. Suba and Dhanu entered into an inner room. Dhanu was fitted with a bomb on her person together with a battery and switch. The loosely stitched Salwar-Kameez which was purchased earlier was worn by Dhanu and it helped her to conceal the bomb and the other accessories thereto. Sivarasan asked Vijayan (A-12) to fetch an auto-rickshaw.

25. The auto-rickshaw which Vijayan (A-12) brought was not taken close to his house as Sivarasan had cautioned him in advance. He took Suba and Dhanu in the autorickshaw and dropped them in the house of Nalini (A-1). Suba expressed gratitude of herself and her colleagues to Nalini (A-1) for the wholehearted participation made by her in the mission they had undertaken. She then told Nalini that Dhanu was going to create history by murdering Rajiv Gandhi. The three women went with Sivarasan to a nearby temple where Dhanu offered her last prayers. They then went to “Parry’s Corner” (which is a starting place of many bus services at Madras). Haribabu was waiting there with camera and garland.

26. All the 5 proceeded to Sriperumbudur by bus. After reaching there they waited for the arrival of Rajiv Gandhi. Sivarasan instructed Nalini (A-1) to provide necessary cover to Suba and Dhanu so that their identity as Sri Lankan girls would not be disclosed due to linguistic accent. Sivarasan further instructed her to be with Suba and to escort her after assassination to the spot where Indira Gandhi’s statue is situate and to wait there for 10 minutes for Sivarasan to reach.

27. Nalini (A-1), Suba and Dhanu first sat in the enclosure earmarked for ladies at the meeting place at Sriperumbudur. As the time of arrival of Rajiv Gandhi was nearing Sivarasan took Dhanu alone from that place. He collected the garland from Suba and escorted Dhanu to go near the rostrum. Dhanu could reach near the red carpet where a little girl (Kokila) and her mother (Latha Kannan) were waiting to present a poem written by Kokila on Rajiv Gandhi.

28. When Rajiv Gandhi arrived at the meeting place Nalini (A-1) and Suba got out of the enclosure and moved away. Rajiv Gandhi went near the little girl Kokila. He would have either received the poem or was about to receive the same, and at that moment the hideous battery switch was clewed by the assassin herself. Suddenly the pawn bomb got herself blown up as the incendiary device exploded with a deadening sound. All human lives within a certain radius were smashed to shreds. The head of a female, without its torso, was seen flinging up in the air and rolling down.

In a twinkle, 18 human lives were turned into fragments of flesh among which included the former Prime Minister of India Rajiv Gandhi and his personal security men, besides Dhanu and Haribabu. Many others who sustained injuries in the explosion, however, survived.

29. Thus the conspirators perpetrated their prime target achievement at 10.19 p.m. on 21-5-1991 at Sriperumbudur in Tamil Nadu.

30. After hearing the sound of explosion Nalini (A-1) and Suba ran across and reached Indira Gandhi statue. Sivarasan joined them without delay. He confirmed to them that Rajiv Gandhi was murdered and conveyed that their comrade Haribabu was also killed in the blast. Then they proceeded to a nearby house, took water therefrom and then escaped in an autorickshaw. They reached the house of Jayakumar (A-10).

31. Sivarasan transmitted wireless message to the LTTE supremo in Sri Lanka regarding the killing of Rajiv Gandhi. Pottu Omman, the Chief of intelligence of LTTE confirmed receipt of the message and in reply sent certain queries.

32. The next phase of activities of the conspirators consisted of attempts to abscond, to screen the offenders and to destroy the evidence regarding conspiracy.

33. On 24-5-1991 the newspapers published a photograph of Dhanu holding a garland in her hand at Sriperumbudur in the company of a few other females waiting for the arrival of Rajiv Gandhi. On seeing it Pottu Omman sent a wireless query to Sivarasan whether Dhanu was identifiable in the photo. Sivarasan, Suba, Nalini (A-1), her husband Murugan (A-3) and mother Padma (A-21) proceeded to Tirupati to offer thanks-giving worship to the Lord, and they returned Madras on the next day. Sivarasan thereafter moved from place to place and Suba was shifted to different houses.

34. In the first week of June 1991, Sivarasan felt that he was within the penumbra of suspicion of the police. Thereupon he entrusted the remaining work to be carried out by Murugan (A-3). Though Sivarasan advised Nalini to escape to Sri Lanka she did not do so for practical reasons known to her. She and her husband Murugan (A-3) again proceeded to Tirupati on 9-6-1991 in cognito. Murugan got his head tonsured by way of redeeming a vow.

35. By the middle of June, photographs of Nalini (A-1) and Suba appeared in the newspapers. Sivarasan kept Pottu Omman informed of the developments in India through wireless transmissions.

36. On 11-6-1991 Bhagyanathan (A-20) and Padma (A-21) were arrested by the police. Three days later Nalini (A-1) and Murugan (A-3) were arrested. The said development was communicated by Sivarasan to the LTTE Headquarters at Sri Lanka and thereafter he in the company of Suba and Dhanasekaran (A-23), Rangan (A-24) and Vicky (A-25) and one LTTE activist by name Nehru had skulked to Bangalore and concealed themselves in a house at Indira Nagar. Irumborai (A-19) was already accommodated in that house. On 16-8-1991 they shifted to another house situated at Kananakuntte in Bangalore.

37. The police got some scent regarding the above hide-out and they rushed to that place. But by the time the police could trace them out, Sivarasan, Suba, Nehru and Amman and other LTTE activists, who too were hiding in the same house, ended their lives by committing suicide. The remaining accused were arrested on different days at different places.

38. On completion of the investigation the CBI laid charge-sheet against all the 26 appellants besides Valuppillai Piribhakaran (the Supremo of LTTE), Pottu Omman (the Chief of intelligence wing of LTTE) and Akila (Deputy Chief of intelligence) for various offences including the main offence under Section 302 read with Section 120 and Sections 3 and 4 of the TADA. In the charge-sheet names of 12 other persons were also mentioned as co-conspirators. Among them two had died at the spot (Dhanu and Haribabu) and the remaining 10 persons died subsequently. Their names are:(1) Sivarasan alias Raghuban (2) Suba alias Nitya alias Mallika (3) Nehru alias Nero (4) Suresh Master (5) Amman alias Gangai Kumar (6) Driver Anna alias Keerthy (7) Jamuna alias Jamila (8) Shanmugham (9) Trichy Santhan alias Gundu Santhan (10) Dixon.

39. All steps taken to apprehend three of the main accused (1) Veluppillai Piribhakaran (2) Pottu Omman and (3) Akila did not succeed and hence they were proclaimed as absconding offenders. Remaining 26 persons (who are appellants before us) were charged for offences under Section 302 and Sections 326, 201, 212 and 316 read with Section 120-B of IPC; Section 3 sub-section either (2) or (3) or (4) of the TADA. Ravichandran (A-16) and Suseendran (A-17) were, in addition, charged under Section 5 of the TADA. Less serious offences under certain provisions of Explosive Substance Act, Arms Act, Passport Act, Foreigners Act and Wireless Telegraphy Act were indicted on a few accused. (It is not necessary to pinpoint the different offences mentioned in the charge-sheet against each accused as the same shall be referred to when we consider the liability of the each accused.)

40. The Special Judge, after a marathon trial, convicted all the 26 accused of all the main offences charged against each of them. He sentenced all of them to the extreme penalty under law (i.e. death) for the principal offence under Section 302 read with Section 120-B, IPC. In addition thereto A-1 was again sentenced to death under Section (3)(1)(ii) of the TADA. Ravichandran (A-16) and Suseendran (A-17) were further convicted under Section 5 of TADA and were sentenced to imprisonment for life. For other offences of which the accused were convicted the trial Court awarded sentences of lesser terms of imprisonment.


41. Before we proceed to discuss the evidence relating to the main offence under Section 302 read with Section 120-B of IPC it would be advantageous to consider whether prosecution could sustain offences under TADA (except the offence under Section 5 thereof which was fastened only against Ravichandran (A-16) and Suseendran (A-17) as that can be dealt with separately).

42. To constitute any offence under sub-section (2) or sub-section (3) of Section 3 of TADA the accused should have either committed a terrorist act or have done something concerning a terrorist act which is sine qua non for convicting the accused under either of the sub-sections. If terrorist act is absent in the perpetration of any crime it may still amount to certain offences under the ordinary law for which there is procedure and penalty already prescribed by law. But if any such crime should be dealt with under TADA it must be inter-linked with “terrorist act” as defined thereunder.

43. “Terrorist act” is defined in Section 2(1)(h) of the TADA, by giving “the meaning assigned to it in sub-section (1) of Section 3” and the expression “terrorist” is mandated to be construed accordingly. It is therefore necessary to look at Section 3(1) more closely. We may extract the first three sub-sections of Section 3:

“(1) Whoever with intent to overawe the Government as by law established or to strike terror in people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.

(2) Whoever commits a terrorist act, shall,-

(i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall be liable to fine;

(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.”

44. A reading of the first sub-section shows that the person who does any act by using any of the substances enumerated in the sub-section in any such manner as are specified in the sub-section, cannot be said to commit a terrorist act unless the act is done “with intent” to do any of the four things:(1) to overawe the Government as by law established; or (2) to strike terror in people or any section of the people; or (3) to alienate any section of the people; or (4) to adversely affect the harmony amongst different sections of the people.

45. When the law requires that the act should have been done “with intent” to cause any of the above four effects such requirement would be satisfied only if the dominant intention of the doer is to cause the aforesaid effect. It is not enough that the act resulted in any of the four consequences.

46. It must be recapitulated now that the constitutional validity of Section 3 of TADA was challenged in this Court and a Five-Judge Bench has upheld the provisions in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 by striking a note of caution that since provisions of TADA tend to be very harsh and drastic containing stringent provisions they must be strictly construed. The Bench approved the observations made by Ahmadi, J. (as the learned Chief Justice then was) in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja, (1990) 4 SCC 76:

“Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law.”

(Para 8)

47. Dealing with the facts of that case where the accused was alleged to have killed one Raju and another Keshav for gaining supremacy in the under-world this Court has stated that “a mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under Section 3(1) of the Act” and then observed thus:

“The consequence of such violence is bound to cause panic and fear; but the intention of committing the crime cannot be said to be to strike terror in the people or any section of the people.”

48. A two-Judge Bench of this Court has considered the distinction between the act done with the requisite intent and another act which had only ensured such consequences. In Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, Dr. Anand, J. (as the learned Chief Justice then was) has stated thus:

“Thus unless the act complained of falls strictly within the letter and spirit of Section 3(1) of TADA and is committed with the intention as envisaged by that section by means of the weapons etc. as are enumerated therein with the motive as postulated thereby, an accused cannot be tried or convicted for an offence under Section 3(1) of TADA.”

(Para 11)

49. The further reasoning contained in the Judgment is the following:

“Likewise if it is only as a consequence of the criminal act that fear, terror or/and panic is caused but the intention of committing the particular crime cannot be said to be the one strictly envisaged by Section 3(1), it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create that result, would attract the provisions of Section 3(1) of TADA. Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the section, the offence would not attract Section 3(1) of TADA.”

(Para 11)

50. The Bench on the aforesaid reasoning, concluded thus:

“Thus, the true ambit and scope of Section 3(1) is that no conviction under Section 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by Section 3(1) by means of the weapons etc. as enumerated in the section and was committed with the motive as postulated by the said section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by Section 3(1) to achieve the objective as envisaged by the section, an accused should not be convicted for an offence under Section 3(1) of TADA.”

(Emphasis supplied)

(Para 15)

51. Two other decisions rendered by a Two-Judge Bench of this Court were cited before us. In Girdhari Parmanand Vadhava v. State of Maharashtra, (1996) 11 SCC 179 it has been pointed out that the intention of the wrong doer can be inferred from the circumstances. After referring to the case law i.e. Hitendra Vishnu Thakur, (supra) the Bench had held that “terrorist activity is not confined to unlawful activity or crime committed against an individual or individuals but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and tranquillity, social and communal harmony, disturbing or destablising public administration and threatening security and integrity of the country. In the instant case, the intention to strike terror in the minds of the people can be reasonably inferred because Birju declared such intention in no uncertain terms by indicating that Vaibhav should be killed in order to send the message to the people in the locality that if the demand of Birju and his associates was not met, extreme consequence of killing of an innocent person would be resorted to.”

52. In Mohd. Iqbal M. Shaikh v. State of Maharashtra, (1998) 4 SCC 494 the same combination of learned Judges reiterated the principle by reference to Hitendra Vishnu Thakur, (supra) and inferred from the facts of the case that the offence fell under Section 3 of TADA.

53. Thus the legal position remains unaltered that the crucial postulate for judging whether the offence is a terrorist act falling under TADA or not is whether it was done with the intent to overawe the Government as by law established or to strike terror in the people etc.

54. Learned Additional Solicitor General endeavoured to show that the intention of the conspirators was to overawe the Government of India. His contention was that assassination of Rajiv Gandhi was a follow up action for restraining the Government from proceeding with the implementation of India-Sri Lanka Accord. In other words, the focus of the conspirators was the Government of India and Rajiv Gandhi was targeted to deter that focal point, according to learned Additional Solicitor General. This contention can be examined by a reference to the evidence in this case.

55. It is true, LTTE leaders were bitterly critical of “India-Sri Lanka Accord” which was signed on 22-7-1987. Any one who criticised the policy of a Government could not be dubbed as a terrorist unless he had done any of the acts enumerated with the object of deterring the Government from doing anything or to refrain from doing anything.

56. Veluppillai Piribhakaran addressed a meeting on 4-8-1987, the text of the speech was published which is marked in this case as Ext. 354. In the said speech he used strong language to criticise “India-Sri Lanka Accord” and the manner in which it was made. But no word of hatred was expressed towards the Government of India though he aired his opposition towards Sri Lankan Government which he described as “Sinhala Racist Government”. He also spoke bitterly against the Sri Lankan Tamil leaders who supported the Accord. About the Indian Government and its Prime Minister the LTTE supremo said the following:

“The Indian Prime Minister offered me certain assurances. He offered a guarantee for the safety and protection of our people. I do have faith in the straight forwardness of the Indian Prime Minister and I do have faith in his assurances. We do believe that India will not allow the racist Sri Lankan State to take once again to the road of genocide against the Tamils. It is only out of this faith that we decided to hand over our weapons to the Indian peace keeping force.”

57. It must be remembered that political changes which occurred in India thereafter had brought a new Government under the leadership of V. P. Singh as Prime Minister in 1989. The IPKF inducted into Sri Lanka was gradually withdrawn in a phased manner, which process was commenced during the Prime Ministership of Rajiv Gandhi himself and continued during the Prime Ministership of V. P. Singh. The attitude of LTTE towards Government of India, during the aforesaid period, can be seen from what their own official publication “Voice of Tigers” had declared in its editorial column in the issue of the said journal dated 19-1-1990 (which is marked as Ext. 362). The editorial reads as follows:

“In the meantime, the defeat of Rajiv Congress Party and the assumption to power of the National Front alliance under Vishwanath Pratap Singh has given rise to a sense of relief and hop to the people of Tamil Eelam. The LTTE has already indicated to the new Indian Government its desire to improve and consolidate friendly ties with India. The new Indian leadership responded positively according to Mr. Karunanidhi, the Tamil Nadu Chief Minister, the role and responsibility of mediating with the Tamil Tigers. The LTTE representatives who had four rounds of talks with the Tamil Nadu Chief Minister in Madras, are firmly convinced that the Tamil Nadu Government and the new Indian administration are favourably disposed to them and the V. P. Singh’s government will act in the interests of the Tamil speaking people by creating appropriate conditions for the LTTE to come to political power in the North-Eastern Province.”

58. The above editorial is a strong piece of material for showing that LTTE till then did not contemplate any action to overawe the Government of India. Of course the top layer of LTTE did not conceal their ire against Rajiv Gandhi who was then out of power.

59. In this context it is important to point out what Veluppillai Piribhakaran, who went underground in Sri Lanka and resurfaced on 1-4-1990 after a period of 32 months of disappearance had said. (The news about his re-emergence was published in the newspaper – a copy of which has been marked as Ext. 363). The LTTE supremo had told the newsmen then as follows:

“We are not against India or the Indian people but against the former leadership in India who is against the Tamil liberation struggle and the LTTE.”

60. Nothing else is proved in the case either from the utterances of the top brass LTTE or from any writings edited by them that anyone of them wanted to strike fear in the Government either of Centre or of any State.

61. From the aforesaid circumstances it is difficult for us to conclude that the conspirators intended, at any time, to overawe the Government of India as by law established.

62. Nor can we hold that the conspirators ever entertained an intention to strike terror in people or any section thereof. The mere fact that their action resulted in the killing of 18 persons which would have struck great terror in the people of India has been projected as evidence that they intended to strike terror in people. We have no doubt that the aftermath of the carnage at Sriperumbudur had bubbled up waves of shock and terror throughout India. But there is absolutely no evidence that any one of the conspirators ever desired the death of any Indian other than Rajiv Gandhi. Among the series of confessions made by a record number of accused in any single case, as in this case, not even one of them has stated that anybody had the desire or intention to murder one more person along with Rajiv Gandhi except perhaps the murderer herself. Of course they should have anticipated that in such a dastardly action more lives would be vulnerable to peril. But that is a different matter and we cannot attribute an intention of the conspirators to kill anyone other than Rajiv Gandhi and the contemporaneous destruction of the killer also.

63. Alternatively, even if Sivarasan and the top brass of LTTE knew that there was likelihood of more casualties that cannot be equated to a situation that they did it with an intention to strike terror in any section of the people.

64. In view of the paucity of materials to prove that the conspirators intended to overawe the Government of India or to strike terror in the people of India we are unable to sustain the conviction of offences under Section 3 of TADA.

65. The next endeavour is to see whether the conspirators did any “disruptive activities” so as to be caught in the dragnet of Section 4(1) of TADA. The sub-section reads:

“Whoever commits or conspires or attempts to commit or abets, advocates, advises, or knowingly facilitates the commission of, any disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.”

66. “Disruptive activity” is defined in sub-section (2). It is extracted below:

“For the purposes of sub-section (1), ‘disruptive activity’ means any action taken, whether by act or by speech or through any other media or in any other manner whatsoever,-

(i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or

(ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union.”

67. An attempt was made to bring the case within the ambit of sub-section (3) of Section 4 of TADA on the strength of the assassination of Rajiv Gandhi and also on the strength of death of a number of police personnel at Sriperumbudur on the fateful night. Sub-section (3) reads thus:

“Without prejudice to the generality of the provisions of sub-section (2), it is hereby declared that any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, which-

(a) advocates, advises, suggests or incites; or

(b) predicts, prophesies or pronounces or otherwise expresses, in such manner as to incite, advise, suggest or prompt,

the killing or the destruction of any person bound by oath under the Constitution to uphold the sovereignty and integrity of India or any public servant shall be deemed to be a disruptive activity within the meaning of this section.”

68. The killing of a public servant or killing of any other person bound by oath would be an offence under the Indian Penal Code. But it must be noted that such killing, as such, is not a disruptive activity, Certain type of actions which preceded such killing alone is regarded as a disruptive activity through the legal fiction created by sub-section (3). Such actions include advocating, advising, suggesting, inciting, predicting, prophesying, pronouncing or prompting the killing of such persons.

69. In other words, all the preceding actions directed positively towards killing of such persons would amount to disruptive activity, but not the final result namely, the act of killing of such person.

70. If there is any evidence, in this case, to show that any such preceding act was perpetrated by any of the appellants towards killing of any police officer who was killed at the place of occurrence it would, no doubt, amount to disruptive activity. But there is no such evidence that any such activity was done for the purpose of killing any police personnel.

71. However, there is plethora of evidence for establishing that all such preceding activities were done by many among the accused arrayed, for killing Rajiv Gandhi. But unfortunately Rajiv Gandhi was not then “a person bound by oath under the Constitution to uphold the sovereignty and integrity of India.” Even the Lok Sabha stood dissolved months prior to this incident and hence it cannot be found that he was under an oath as a Member of Parliament.

72. The inevitable fall out of the above situation is that none of the conspirators can be caught in the dragnet of sub-section (3) of Section 4 of TADA.

73. What remains to be considered for Section 4(1) of TADA is whether any disruptive activity falling within the ambit of the definition in sub-section (2) has been established. The attempt which prosecution has made in that regard, is to show that the conspirators intended to disrupt the sovereignty of India. To support the said contention, our attention was drawn to the confessional statement of A-3 (Murugan), A-18 (Arivu and the photographs proved as M.Os. 256 to 259 which were seized from the bag of A-3 (Murugan). The said items of evidence show that photos of Fort St. George, Madras (which houses the Government Secretariat of Tamil Nadu and the Legislative Assembly and Legislative Council), Police Headquarters, Central Jail within Vellore Fort etc. had been taken and despatched to the LTTE top brass of Sri Lanka.

74. It is too much a strain to enter a finding, on such evidence, that the above activities were unmistakably aimed at disrupting the sovereignty of India. The sketch of Vellore Fort (which houses the Central Jail) was drawn up, most probably, for planning some operation to rescue the prisoners (belonging to LTTE who have been interned therein). That of course would be an offence but not an activity which falls within the purview of Section 4 of TADA.

75. We are, therefore, unable to sustain the conviction of appellants for offences under Section 3 or 4 of TADA.


76. Now we have to proceed to consider whether the prosecution has succeeded in establishing the remaining offences found against the appellants.

77. We may put on record the following concessions made by the learned counsel for all the appellants at the Bar:

(I) Prosecution has successfully established that Rajiv Gandhi was assassinated at 10.19 P.M. on 21-5-1991 at Sriperumbudur by a girl named Dhanu who became a human bomb and got herself exploded in the same event; and that altogether 18 persons, including the above two, died in the said explosion.

(II) There is overwhelming evidence to show that assassination of Rajiv Gandhi was resulted from a conspiracy to finish him.

(III) It is also established by the prosecution beyond doubt that Sivarasan alias Raghuvaran who was a top brass of LTTE was one of the kingpins of the said conspiracy.

78. We may also record at this stage that the two points which are seriously disputed by the learned counsel for the appellants are the following:(1) Assassination of Rajiv Gandhi was not the only focal point of the conspiracy. (2) Appellants were participants in the conspiracy.

79. In other words, the defence contended that the conspiracy was made only to assassinate Rajiv Gandhi and that none of the appellants had participated in the conspiracy.

80. For deciding the aforesaid major area of dispute, prosecution heavily relies on the statements allegedly made by a number of appellants and recorded purportedly under Section 15 of TADA. (Such statements will, hereinafter, be referred to, for convenience, as confessional statements of the accused). Such confessional statements were recorded by the Superintendent of Police, CBI/SPG who was deputed in the Special Team of Investigation. Every one of such confessional statements has been signed by the person who is shown as the maker thereof. Such confessional statement consists of inculpatory admissions, narrations which are neither inculpatory nor exculpatory, and incriminating roles attributed to other co-accused. It was not disputed before us that all such confessional statements, if duly recorded, are admissible in evidence in view of Section 15 of TADA. It is necessary to extract that Section which reads thus:

“15. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person (or co-accused, abetter or conspirator) for an offence under this Act or rules made thereunder.

(Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused).

(2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily.

81. Learned counsel for the defence made a bid to exclude the confessional statements from the purview of admissibility in this case on the premise that no offence under TADA could be found against any of the accused and hence the confessional statements would wiggle into the can of inadmissibility and consequently it cannot be used for offences outside TADA. To buttress up the said contention, learned counsel invited our attention to the following observations made by a two-Judge Bench of this Court in Bilal Ahmed Kaloo v. State of A. P. (1997) 7 SCC 431 (Para 5):

“While dealing with the offences of which the appellant was convicted there is no question of looking into the confessional statement attributed to him, much less relying on it since he was acquitted of all offences under TADA. Any confession made to a police officer is inadmissible in evidence as for these offences and hence it is fairly conceded that the said ban would not wane off in respect of offences under the Penal Code merely because the trial was held by the Designated Court for offences under TADA as well. Hence the case against him would stand or fall depending on the other evidence.”

82. Shri Altaf Ahmed, learned Additional Solicitor General submitted that the above observations do not lay down the correct proposition of law and it requires reconsideration, more so because the two-Judge Bench did not advert to Section 12 of TADA. That apart, the Bench adopted that view partly because the counsel for respondent in that case had conceded to the said position. We are inclined to consider the position afresh.

83. Section 12 of the TADA enables the Designated Court to jointly try, at the same trial, any offence under TADA together with any other offence “with which the accused may be charged” as per the Code of Criminal Procedure. Sub-section (2) thereof empowers the Designated Court to convict the accused, in such a trial, of any offence “under any other law” if it is found by such Designated Court in such trial that the accused is found guilty of such offence. If the accused is acquitted of the offences under TADA in such a trial, but convicted of the offence under any other law it does not mean that there was only a trial for such other offence under any other law.

84. Section 15 of the TADA enables the confessional statement of an accused made to a police officer specified therein to become admissible “in the trial of such a person”. It means, if there was a trial of any offence under TADA together with any other offence under any other law, the admissibility of the confessional statement would continue to hold good even if the accused is acquitted under TADA offences.

85. The aforesaid implications of Section 12 vis-a-vis Section 15 of TADA have not been adverted to in Bilal Ahmed’s case (supra). Hence the observations therein that “while dealing with the offences of which the appellant was convicted there is no question of looking into the confessional statement attributed to him, much less relying on it, since he was acquitted of the offences under TADA” cannot be followed by us. The correct position is that the confessional statement duly recorded under Section 15 of TADA would continue to remain admissible as for the other offences under any other law which too were tried along with TADA offences, no matter that the accused was acquitted of offences under TADA in that trial.

86. While it is not disputed that a duly recorded confessional statement is substantive evidence in a trial of offences under TADA as against the maker thereof, learned counsel for the defence contended that its use against the co-accused (which was tried in the same case) is only for a limited purpose, i.e. to be used for corroborating other evidence. In support of the contention learned counsel relied on the decision of a two-Judge Bench of this Court in Kalpnath Rai v. State (1997) 8 SCC 732. The ratio of that decision, on this point, is that “a confession made admissible under Section 15 of TADA can be used as against a co-accused only in the same manner and subject to the same conditions as stipulated in Section 30 of the Evidence Act.”

87. Shri Altaf Ahmad, learned Additional Solicitor General pleaded for reconsideration of the aforesaid legal position adumbrated in the said decision and contended that the non obstante limb in Section 15(1) of TADA (notwithstanding anything in the Code or Indian Evidence Act”) is a clear legislative indicator to permit a confession made by an accused against a co-accused to be used with the same force as it can be used against the confessor himself. He further contended that the position became clearer after the sub-section was amended by Act 43 of 1993.

88. We shall first examine whether the amendment as per Act 43 of 1993 has improved the position from the pre-amendment position. Before the amendment sub-section (1) of Section 15 read thus:

“15. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or rules made thereunder.” After the amendment in 1993 the sub-section reads in the present form (which has been extracted supra). The main changes in the sub-section, after the amendment, are addition of the words “or co-accused, abettor or conspirator”, and insertion of a new proviso to the sub-section as “Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.”

89. In this case we may refer to another provision in TADA (Sec. 21) which also underwent much changes as per the same amending Act. That provision has a perceptible bearing on Section 15(1) of TADA. That provision, in specific terms, empowered the Designated Court to draw certain presumptions. Section 21(1), as it stood before 1993 amendment, read thus:

“21. Presumption as to offences under Section 3.- (1) In a prosecution for an offence under sub-section (1) of Section 3, if it is proved-

(a) that the arms or explosives or any other substances specified in Section 3 were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature, were used in the commission of such offence; or

(b) that by the evidence of an expert the finger prints of the accused were found at the site of the offence or on anything including arms and vehicles, used in connection with the commission of such offence; or

(c) that a confession has been made by a co-accused that the accused had committed the offence; or

(d) that the accused had made a confession of the offence to any person other than a police officer,

the Designated Court shall presume, unless the contrary is proved, that the accused had committed such offence.”

90. Act 43 of 1993 has snipped out clause (c) which contained the words “that a confession has been made by a co-accused that the accused had committed the offence” and clause (d) which contained the words “that the accused had made a confession of the offence to any person other than a police officer” of Section 21(1).

91. No doubt, the amendment carried out in Section 15(1) and in Section 21 (1) was in one package. It was done with a definite purpose. Before amendment the Designated Court had a duty to presume that an accused had committed the offence if his co-accused had, in a confession, involved the former. The words “shall presume” in Section 21(1) denoted that it was the duty of the Court to draw such presumption. (See Section 4 of the Evidence Act).

92. This means, the Court should have treated the confession of one accused as against a co-accused to be substantive evidence against the latter, and in the absence of proof to the contrary, the Designated Court would have full power to base a conviction of the co-accused upon the confession made by another accused.

93. But the amendment of 1993 has completely wiped out the said presumption against a co-accused from the statute book. In other words, after the amendment a Designated Court could not do what it could have done before the amendment with the confession of one accused against a co-accused. Parliament has taken away such empowerment. Then what is it that Parliament did by adding the words in Section 15(1) and by inserting the proviso. After the amendment the Designated Court could use the confession of one accused against another accused only if two conditions are fulfilled:(1) The co-accused should have been charged in the same case along with the confessor. (2) He should have been tried together with the confessor in the same case. Before amendment the Designated Court had no such restriction as the confession of an accused could have been used against a co-accused whether or not the latter was charged or tried together with the confessor.

94. Thus the amendment in 1993 was a clear climbing down from a draconian legislative fiat which was in the field of operation prior to the amendment in so far as the use of one confession against another accused was concerned. The contention that the amendment in 1993 was intended to make the position more rigorous as for a co-accused is, therefore, untenable.

95. While considering the effect of the non-obstante limb we can see that Section 15(1) of TADA was given protection from any contrary provision in the Evidence Act. But what is it that Parliament did through Section 15(1) regarding a confession made to a police officer? It has only made such confession “admissible” in the trial of such person or the co-accused etc.

96. There are provisions in the Indian Evidence Act which prohibited admissibility of certain confessions, e.g. Section 25 of the Evidence Act prohibited proving any confession made by an accused to a police officer.

Section 26 prohibited proving any confession made by an accused to any person while that accused was in the custody of police. Section 27 permitted only a very limited part of the information supplied by the accused to a police officer, whether it amounts to a confession or not.

97. What Section 15(1) of TADA has done was to remove the said ban against admissibility of confessions made to police officer and brought it on a par with any other admissible confessions under the Evidence Act. A confession made to a Magistrate is admissible under the Evidence Act, and a confession made by an accused to any person other than a police officer, if the accused was not in police custody, is also admissible under the Evidence Act.

98. The upshot of the above discussion is that the effect of the non obstante clause, when read with the words “shall be admissible in the trial of such person or a co-accused or abettor or conspirator” would only mean that the confession made to a police officer under Section 15(1) shall also become a confession like other admissible confessions under the Evidence Act. But it was not even in the legislative contemplation of Parliament to elevate a confession made to a police officer to a status even higher than a judicial confession recorded by a Magistrate.

99. What is the evidentiary value of a confession made by one accused as against another accused apart from Section 30 of the Evidence Act ? While considering that aspect we have to bear in mind that any confession when it is sought to be used against another has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used.

100. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a co-accused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because Section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as relevant evidence against another person. It is only Section 30 of the Evidence Act which, at least, permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by other statute. So, if Section 30 of the Evidence Act is also to be excluded by virtue of the non-obstante clause contained in Section 15(1) of TADA, under what provision a confession of one accused could be used against another co-accused at all ? It must be remembered that Section 15 (1) of TADA does not say that a confession can be used against a co-accused. It only says that a confession would be admissible in a trial of not only the maker thereof but a co-accused, abettor or conspirator tried in the same case.

101. Sir John Beaumont speaking for five law lords of the Privy Council in Bhuboni Sahu v. The King AIR 1949 PC 257 had made the following observations:

“Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of ‘evidence’ contained in S. 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.

(Para 9)

102. The above observations had since been treated as the approved and established position regarding confession vis-a-vis another co-accused. Vivian Bose, J., speaking for a Three-Judge Bench in Kashmira Singh v. State of Madhya Pradesh (1952) SCR 526 had reiterated the same principle after quoting the aforesaid observations. A Constitution Bench of this Court has followed it in Hari Charan Kurmi and Jogia Hajam v. State of Bihar, (1964) 6 SCR 623, Gajendragadkar, J (as he then was) has stated the legal principle thus (Paras 13 and 14):

“The point of significance is that when the Court deals with the evidence by an accomplice, the Court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under S. 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars. The statements contained in the confessions of the co-accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused person, the Court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. The difference in the approach which the Court has to adopt in dealing with these two types of evidence is thus clear, well-understood and well-established.”

Thus the established position which gained ground for a very long time is that while a confession is substantive evidence against its maker it cannot be used as substantive evidence against another person even if the latter is a co-accused, but it can be used as a piece of corroborative material to support other substantive evidence. The non obstante words in Section 15(1) of TADA are not intended to make it substantive evidence against the non-maker, particularly after amendments were brought about in the sub-section through Act 43 of 1993.

103. Having set the legal position thus, we have now to consider the legal evidence to see whether prosecution has proved the disputed points.

104. The prime aim of the conspiracy, in this case, was to assassinate Rajiv Gandhi. The stand of the prosecution is that the Sri Lanka-India Accord (signed on 27-7-1987) was resented against by the LTTE top brass for reasons more than one. The acrimony was further fomented up with the LTTE repressives heaped up by the IPKF. The editorials published in the “Voice of Tigers” (the main publication of LTTE) and the articles reproduced in the compilation made under the nomenclature “Satanic Force” were replete with vituperative epithets expressed by LTTE activists against the said Accord and the actions which IPKF did against them. Rajiv Gandhi was not spared from the vitriolic onslaughts made through such publications. PW-75 (Basant Kumar) said that he was assigned with the work of preparing “Satanic Force”, by LTTE top brass Veluppillai Piribhakaran, Pottu Omman and another person called Balasingam, containing strong criticism against IPKF and Rajiv Gandhi. PW-75 (Basant Kumar) accepted the work on payment of ` 2,000/- per month.

105. We have pointed out earlier that LTTE was very much concerned about the general elections to the Lok Sabha in the year 1991. They felt that if Rajiv Gandhi came back to power, IPKF would again go to Sri Lanka which means lot more attrocities heaped upon LTTEs and the goal “Tamil Eelam” would again elude like a mirage.

106. In all probabilities a criminal intent to kill Rajiv Gandhi would have sprouted in the minds of LTTE top brass at the aforementioned stage. There is not even a speck of doubt in our mind that the criminal conspiracy to murder Rajiv Gandhi was hatched by at least 4 persons comprising of Veluppillai Piribhakaran, Pottu Omman, Sivarasan and Akila. It could have been the scheme of the conspirators to enlist more persons in the field for the successful implementation of their targets.

107. We have no doubt from the circumstantial evidence in this case, that Dhanu, the girl who transformed into a human bomb, and her friend Suba were unflinchingly committed commandos of LTTE and they were also brought into the conspiracy ring by the top brass of LTTE. Circumstances proved in this case regarding the aforesaid core points are too many. However, we are spared from the task of enumerating all such circumstances as learned counsel for the accused have fairly conceded about the sufficiency of circumstances which have been proved in this case to establish the aforesaid points.

108. Learned counsel for the appellants have focussed their attack on the indictment against individual accused. They endeavoured to show that none of the appellants was involved in the criminal conspiracy to assassinate Rajiv Gandhi. Hence that is the most disputed point in this case.

109. Before proceeding to discuss the evidence, we have to deal with yet another legal point canvassed by Shri Altaf Ahmed, learned Additional Solicitor General, regarding the amplitude of Section 10 of the Evidence Act. Such a decision is necessary to decide what exactly is the evidence of conspiracy. Learned Additional Solicitor General contended that the width of the provision is so large as to render any statement made by a conspirator as substantive evidence if it has succeeded in conforming with the other conditions of the Section. Such a contention became necessary for him to bring the confessional statement of one conspirator against another conspirator as substantive evidence if there is any legal hurdle in doing so under Section 15 of TADA, as we have already found that confession of one accused is not substantive evidence against another though it can be used for corroborative value. Section 10 of the Evidence Act, can, in this context, be extracted below:

“Things said or done by conspirator in reference to common design.- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.” 110. The first condition which is almost the opening lock of that provision is the existence of “reasonable ground to believe” that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement “In reference to their common intention”. Under the corresponding provision in the English Law the expression used is “in furtherance of the common object”. No doubt, the words “in reference to their common intention” are wider than the words used in English Law, (vide Sardar Sardul Singh Caveeshar v. State of Maharashtra, (1964) 2 SCR 378.

111. But the contention that any statement of a conspirator, whatever be the extent of time, would gain admissibility under Section 10 if it was made “in reference” to the common intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlies in Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10.

112. Way back in 1940, the Privy Council has considered this aspect and Lord Wright, speaking for Viscount Maugham and Sir George Rankin in Mirza Akbar v. King-Emperor, AIR 1940 PC 176 has stated the legal position thus:

“The words ‘common intention’ signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party.”

(Page 180)

113. In Sardul Singh Caveeshar v. The State of Bombay, (1958) SCR 161 a Three-Judge Bench has reiterated that the rule of agency is the founding principle of Section 10 of the Evidence Act. A Two-Judge Bench of this Court in State of Gujarat v. Mohammed Atik, (1998) 4 SCC 351 has followed the said position and held thus:

“It is well-nigh settled that Section 10 of the Evidence Act is founded on the principle of law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so, once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made ‘in reference to their common intention.”

(Para 14)

114. Whether a particular accused had ceased to be a conspirator or not, at any point of time, is a matter which can be decided on the facts of that particular case. Normally a conspirator’s connection with the conspiracy would get snapped after he is nabbed by the police and kept in their custody because he would thereby cease to be the agent of the other conspirators. Of course we are not unmindful of rare cases in which a conspirator would continue no confabulate with the other conspirators and persists with the conspiracy even after his arrest. That is precisely the reason why we said that it may not be possible to lay down a proposition of law that one conspirator’s connection with the conspiracy would necessarily be cut off with this arrest.

115. In this case, prosecution could not establish that the accused who were arrested, continued to conspire with those conspirators remaining outside. Prosecution cannot contend that the confession made by one accused in this case can be substantive evidence against another accused under Section 10 of the Evidence Act. At any rate we cannot uphold the contention that confessions made by an accused can be used as substantive evidence against the another co-accused on the principle enunciated in Section 10 of the Evidence Act.

116. The conclusion on the above score is that confessional statement made by an accused after his arrest, if admissible and reliable, can be used against a confessor as substantive evidence, but its use against the other co-accused would be limited only for the purpose of corroboration of other evidence.

THE CASE AGAINST A-1 (NALINI):

117. A-1 (Nalini) is the sole surviving conspirator who participated in the assassination, if the prosecution case is correct. The principal item of evidence available in this case is her own confessional statement (Ext. P-77) recorded on 9-8-1991. (She was arrested on 14-6-1991). She was aged 27 during the relevant period and has passed M. A. degree. She is the daughter of another co-accused (A-21 – Padma) and sister of yet another co-accused (A-20 – Bhagyanathan). She had fallen in love with one Murugan (who is accused No. 3) during the period of conspiracy and it is claimed that their marriage was solemnised on 21-4-1991 (within 9 months thereof she gave birth to a female child). She was working as Private Secretary to the Managing Director of a private company – M/s. Anabante Silicons.

118. The evidence in this case shows that A-1 (Nalini) much before her marriage quarrelled with her mother and brother and shifted her residence to No. 11, High Court Colony, Villivakkom, Madras. It is during the said time that A-3 (Murugan) got acquainted with her and gradually the familiarity grew into a love affair between them. A-3 (Murugan) was a committed LTTE member. In April 1991, A-1 (Nalini) came into contact with Sivarasan.

119. Ext. P-77 confessional statement contains the following facts as to have been stated by A-1 (Nalini):When she was contemplating with the idea of vacating the house at Villivakkom she was dissuaded from doing so by A-3 (Murugan) as Sivarasan was expected to bring two girls from Sri Lanka. On 2-5-1991 Sivarasan brought those two girls (Suba and Dhanu) to her house. Her mind changing process started thereafter as Murugan, Suba and Dhanu were narrating various acts of atrocities which IPKF heaped on LTTE followers in Sri Lanka. Suba told Nalini of a horrendous story of how 7 little girls were raped and killed by the soldiers of IPKF. She was made to believe that Rajiv Gandhi was the person responsible for all such atrocities. She developed vengeful attitude towards Rajiv Gandhi and she too agreed to retaliate. She realised that the two girls were brought for the purpose of carrying out a very dangerous retaliatory step. Sivarasan had told Nalini to play the role of a chaperone to Suba and Dhanu wherever they went.

120. In Ext. P-77, A-1 (Nalini) is alleged to have further stated that on 7-5-1991 she took Suba and Dhanu, under the instructions of Sivarasan to Nandavanom (Madras) where V. P. Singh (a former Prime Minister) was addressing a meeting. Suba and Dhanu tried to garland V. P. Singh. Later Sivarasan scolded A-1 (Nalini) for not taking the girls to the rostrum. It was then that Nalini realised as to how the murder was planned to be perpetrated.

121. In the confessional statement A-1 (Nalini) is alleged to have stated that on 11-5-1991 she chaperoned Suba and Dhanu to a readymade garments shop at Puruswakkom (Madras) and bought a chooridar suit (orange and green coloured) and a dupatta. On 17-5-1991, Sivarasan told her of Rajiv Gandhi’s Tamil Nadu programme and asked her to attend one of the meetings. She confessed in her statement (Ext. P-77) that by then it was certain for her that Rajiv Gandhi was going to be killed. Sivarasan collected the details of the topography of Sriperumbudur from her and warned her not to divulge the contents of that conversation to any one else. She was instructed to take leave from her office on 21st May, 1991 under some false pretext.

122. She had narrated in the confessional statement the events which happened on the day of assassination and also on its preceding day. According to her, Sivarasan met her on 20-5-1991 at 6.00 P.M. and told her that the venue of the meeting was at Sri-perumbudur, and she should take half day casual leave and not more and that she should make herself available in the house at 3.00 p.m. on the next day for being picked up for escorting Suba and Dhanu. On 21st May, 1991 Nalini took half a day’s leave and she went to her mother’s house at Roypetta (Madras) where A-3 (Murugan) was waiting who told her to hurry up lest Sivarasan would be annoyed. So she reached her house at about 3.00 p.m. A little while thereafter Sivarasan reached the same house with Suba and Dhanu. According to her, Dhanu was then wearing an orange/green coloured chooridar and was hiding something in her dress. Suba told Nalini that Dhanu was going to create history by murdering Rajiv Gandhi. At. 4.00 p.m. Nalini took Suba and Dhanu to the bus stop. On the way Haribabu also joined them. He had a garland with him.

123. It is further stated in Ext. P-77 that A-1 (Nalini) along with Suba, Dhanu Haribabu and Sivarasan reached the place of occurrence at 7.30 p.m. They stopped at the spot where there was a statue of Indira Gandhi. Sivarasan gave instructions to A-1 (Nalini) about the role to be performed by her just before and after the murder, if successful. By following the said instructions she along with Suba ran across Indira Gandhi statue and waited for Sivarasan. Within a few minutes Sivarasan rushed to them and said Rajiv Gandhi and Dhanu died and Haribabu also died. Sivarasan gave Nalini a pistol which she handed over to Suba. They hurriedly left the place and on the way got some water to drink from a roadside house and then they went in an auto-rickshaw and reached Kodingyoor at 1.30 a.m. in the night.

124. The rest of the confessional statement (in Ext. P-77) relates to the hectic movements made by her in association with other accused. It is further recorded therein that on 13-6-1991, A-1 (Nalini) and A-3 (Murugan) went to Davangere (in Karnataka) and stayed in the house of Shashikala (PW-132). A-1 (Nalini) told Shashikala of what all happened regarding Rajiv Gandhi’s murder.

125. The above were the statements said to have been made by A-1 (Nalini) in Ext. P-77. The Designated Court acted on the said confessional statement as valid and proved and reliable.

126. A three-fold attack was made against Ext. P. 77 by Sri N. Natarajan, learned senior counsel for the accused. First is that the confession was not signed as provided in Rule 15 of the TADA Rules, 1987. Second is that it was not certified as required by the Rules. Third is that the confession was extracted by coercive methods and is therefore unreliable.

127. Rule 15(3) says that the confession shall be signed by its maker and also the police officer who recorded it. Further, the police officer “shall certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person.”

128. Ext. P-77 was recorded in as many as 18 pages. All the first 16 pages contain the signatures of A-1 (Nalini) but the last two pages don’t have the signatures. The requirement that confessional statement shall be signed by the maker has been substantially complied with despite the slip in obtaining the signature in the last two pages. According to PW-52 – the Superintendent of Police who recorded it, the said slip was an inadvertent omission. But that omission does not mean that a confession was not signed by her at all. The certificate which is required by Rule 15(3) has also been made at the foot of Ext. P-77, but that happened to be made on one of the two pages where the signature of A-1 is absent.

129. On the facts we are not persuaded to uphold the contention that Rule 15(3) has not been complied with. That apart, even if there was such an omission the question is whether it would have injured the accused in her defence. Section 463 of the Code permits such an approach to be made in regard to the omissions in recording the confession under Section 164 of the Code. That approach can be adopted in respect of the confession recorded under Section 15 of the TADA as well. The resultant position is that the said omission need not be countenanced since it was not shown that the omission has caused any harm to the accused.

130. The contention that the confession was extracted by coercive methods is not supported by any material. We may point out that when A-1 (Nalini) was produced before the Judicial Magistrate soon after recording the confession she did not even express any complaint regarding the conduct of any personnel of the Special Investigation Team. Ext. P-77 has, in fact, reached the Judicial Magistrate on the next day itself and thereafter it was kept under sealed cover.

131. The confessional statement of A-1 (Nalini) in Ext. P-77, according to Shri Altaf Ahmad learned Additional Solicitor General, is corroborated by other substantive evidence and also by the confessional statements made by a number of other accused in this case. PW-132 (Shashikala) who is a teacher said that she got acquainted with A-1 in 1990 and A-1 visited her in the school when she was teaching, on 13-6-1991. Then A-3 (Murugan) was also with her. A-1 (Nalini) introduced A-3 (Murugan) as her brother by name Das. PW-132 further stated that when they (three persons) went to her house A-1 told her that her husband, a Sri Lankan Citizen, had brought two girls to Madras. PW-132 has also stated in her evidence that Nalini told her that it was she who took those girls to the meeting place at Sriperumbudur where Rajiv Gandhi came and in the incident which happened there, one of the girls died. PW-132, on hearing the said news, became frightened. Then both A-1 and A-3 implored her not to disclose it to anybody else.

132. The aforesaid evidence of PW-132 – a teacher, was fully believed by the trial Judge. We have no reason to take a different view on that evidence. Its corroborative value is unassailable because A-1 herself admitted in her confessional statement that she made such a disclosure to PW-132.

133. Another item of corroborative evidence is M. O. 144 Video Cassette. (It was viewed on the video in the trial Court as well as by us in the Supreme Court). It was the vide cassette of the meeting held at Nandavanam (Madras) in the early hours of 18-5-1991 which was addressed by V. P. Singh. PW-93 (Suyambu) said in his evidence that he attended the said meeting. When he was shown the video cassette replayed in the Court he identified Sivarasan who was sitting at the meeting place, just left to the said witness. It was videographed by PW-81 (Manivanam) as instructed by PW-77 (Gandhi). PW-77 also identified Sivarasan in the video. We have noticed the presence of A-1 (Nalini) in the meeting when M. O. 144 was displayed in this Court, with the help of a photograph in which A-1’s figure could be discerned by us and admitted by the defence counsel to correct.

134. On the next day of the said meeting, i.e. 9th May, two letters were sent by Suba and Dhanu jointly to Sri Lanka, one to Pottu Omman and the other to Akila, They are Ext. P. 96 and Ext. P-95 respectively. Prosecution has proved that they were the letters written by the aforesaid two girls. We do not deem it necessary to refer to all the materials made available to prove the authorship of those letters because they are no more.

135. In Ext. P-96, the girls wrote to Pottu Omman “we are confident that we would be successful in completing the job for which we came as we expect a similar opportunity . . . . . . . . .” In Ext. P-95 they wrote to Akila like this:

“We are confident that the work for which we came would be finished promptly as we are expecting another appropriate opportunity . . . . . . . . It would be implemented during this month itself . . . . . . . Every word which you (Akila) had said to us would remain in our mind till last.”

136. The aforesaid telling circumstances confirm the truth of what A-1 has divulged in Ext. P-77.

137. PW-179 (Gunathilal Soni) said in his evidence that he was manager of a retail textile shop called “Queen Corner” at Puruswakkom and that on 11-5-1991, a chooridar (with orange and green colours) was sold to three ladies one of whom was A-1 (Nalini). From the photograph shown to the witness he identified the other lady as Dhanu. The Cash Book which he maintained was marked as Ext. P-899 and the copy of the Bill for the said choorider was marked as Ext. P-900.

138. It could be argued that it was not possible for any textile retail seller to identify the person who had purchased the goods only once. That may be so. But here PW-179 save one reason for remembering A-1 (Nalini) and the girls, that they insisted on quick delivery of the stitched goods on the same day itself and then PW-179 took measurements of Dhanu. Within a few days the witness say the photo of Dhanu in newspapers wearing the chooridar of that colour. That apart, the investigating officer could trace out PW-179 only because A-1 (Nalini) told him of the place wherefrom the chooridar was purchased. That portion was admitted in evidence under Section 27 of the Evidence Act. The cumulative effect is that the testimony of PW-179 can be treated as true evidence. It is a highly corroborating material.

139. PW-96 (Sujaya Narayan) was an officer in M/s. Anaband Silicon Private Ltd. where A-1 (Nalini) was working as Private Secretary to the Managing Director. He gave evidence that A-1 (Nalini) took half a days leave on 21-5-1991 saying that she wanted to go to Kanchipuram to purchase sarees and left office by 12 noon.

140. One of the most striking corroborative evidence for A-1’s confession regarding her participation in the assassination scene of Rajiv Gandhi is the testimony of PW-32 (Anusuya). She is a woman Sub-Inspector who was deputed to do duty at the venue of the meeting to be addressed by Rajiv Gandhi at Sriperumbudur. She was one of the injured in the bomb blast. Nobody can dispute that she was on duty because she had come in the photo M. O. 33. It was taken just before the occurrence. Pointing out Dhanu in the photograph PW-32 (Anusuya) said in her evidence that she was found moving with two male persons at the scene of occurrence before the arrival of Rajiv Gandhi. One of them, on being questioned by PW-32, claimed to be a press photographer (it is with reference to Haribabu). The witness identified the other person as Sivarasan. PW-32 identified A-1 Nalini (who was present in the trial Court) as one of the ladies who attended the meeting place. She identified A-1 from the photograph when M. O. 32 photograph was shown to her. There was no dispute about the genuineness of the above said photograph. We have absolutely no reason to doubt the correctness of M. O. 32.

141. PW-215 (Samundeeswari) said in her evidence that she is a resident at Sriperumbudur and that on 21-5-1991, while she was standing outside her house at about 10.45 p.m. waiting for her son to return, she found two ladies and one male getting into her house and they asked for water to drink. She gave them water. The witness identified A-1 as one of the ladies and identified Sivarasan and Suba with the help of M. O. 105 photograph. The witness said that she had a dialogue with those visitors. After giving them water she asked them about Rajiv Gandhi’s arrival and they replied to her that Rajiv Gandhi died even before reaching 7 feet away from the meeting place. The witness said that after drinking water the said three persons went towards Madras side. The significance of the evidence of PW-215 is that Investigating Officer succeeded in discovering her house on the information supplied by A-1 (Nalini).

142. PW-183 is an equally important witness. He is an auto-rickshaw driver at Thiruvallur. He said in his evidence that he took some person in his auto-rickshaw and dropped them at the place of the meeting to be addressed by Rajiv Gandhi. As he parked the vehicle a little away he overheard the announcement through loudspeaker that Rajiv Gandhi was arriving, but within a shortwhile a bomb-blast took place and all were found running helter-skelter. He also escaped from the place riding his auto-rickshaw. According to him, on the way two ladies and one male got into his auto-rickshaw and he took them right up to Madras and dropped them at Teynampet. The witness identified A-1 (Nalini) as one of the ladies and the male who travelled in his auto-rickshaw as Sivarasan and the other lady as Suba. M. O. 183 and M. O. 105 photographs were shown to the witness to help him to identify Sivarasan and Suba. He had sufficient opportunity to identify them as all of them were talking many things in their long distant drive in the auto-rickshaw.

143. It is unnecessary to refer to the remaining evidence which prosecution pointed out as further corroborating the confessional statements of A-1 (Nalini) in Ext. P-77, as we think that in view of the already large number of items of evidence the truth of the confession stands established.

144. From the above, we come to the conclusion that prosecution has succeeded in proving, beyond reasonable doubt, that A-1 (Nalini) was one of the conspirators and she participated in the act of assassination of Rajiv Gandhi by playing a very active role.

A-2 SANTHAN ALIAS RAVIRAJ:

145. Santhan (A-2) is a Sri Lankan citizen. He was aged 22 during the relevant time. The evidence shows that he was a card-holder of the intelligence wing of the LTTE. He studied up to 5th standard in a school at Jaffana. He came in contact with Sivarasan and they eventually become close to each other. In February 1988, Sivarasan suggested to him to continue his studies at Madras and LTTE would meet his expenses. Pursuant thereto he came to India in February 1990 and secured admission at Madras Institute of Engineering Technology. His educational expenses were met by LTTE. He was arrested in connection with Rajiv Gandhi murder case on 22-7-1991. His confessional statement was recorded on 17-9-1991 by the Superintendent of Police as per Section 15 of TADA. It is marked as Ext. P-104. The incriminating admissions contained in Ext. P-104 are the following:

Sivarasan persuaded A-2 (Santhan) to join him for liquidating one Padmnabha who was leader of EPRLF which was considered to be a rival organisation of Sri Lankan Tamils. A-2 (Santhan) accepted the assignment and began closely following the movements of Padmnabha and transmitted the information from time to time to Sivarasan. With the help of such information Sivarasan succeeded in getting Padmnabha gunned down on 19-6-1990 through some assassins. On the next day Sivarasan and A-2 (Santhan) left India and on arrival at Sri Lanka A-2 (Santhan) was profusely praised by Pottu Omman and Veluppilli Piribhakaran for the role he played in achieving the target of finishing Padmnabha.

146. By last week of April 1991 Pottu Omman gave a directive to A-2 (Santhan) to proceed to Tamil Nadu in the group lead by Sivarasan. On 1-5-1991 the group reached kodingyoor in India. The said group consisted of Sivarasan, Suba, Dhanu, A-6 (Sivaruban) and Nehru etc. besides A-2 himself.

147. On the evening of 9-5-1991, Sivarasan took A-2 (Santhan) to Marina Beach, Madras and introduced him to photographer Haribabu (who died in the bomb explosion at Sriperumbudur), A-3 (Murugan) and A-18 (Arivu). In the night he was taken to the residence of A-10 (Jayakumar). On the next day he was taken to the house of photographer Haribabu where he (A-2) stayed for about a week. During this period Sivarasan gave ` 1,000/- to him for buying clothes.

148. On 15-5-1991, A-2 (Santhan) met a top LTTE leader called Kanthan and handed over to him a letter sent by Sivarasan. Kanthan entrusted A-2 with a sum of ` 5 lacs to be handed over to Sivarasan. A-2 handed over the amount to Sivarasan in instalments as and when the latter asked for it. It was on 16-3-1991 that Sivarasan divulged to A-2 (Santhan) that Veluppillai Piribhakaran had great confidence in A-2 (Santhan) particularly after his performance in the murder of Padmnabha. Sivarasan also disclosed to him that Suba and Dhanu were brought for the purpose of murdering Rajiv Gandhi.

149. Next day Sivarasan collected ` 10,000/- from A-2 (Santhan) and on the succeeding day Sivarasan again collected another ` 10,000/- out of the balance amount. Under Sivarasan’s instructions A-2 (Santhan) gave ` 4,000/- to A-6 (Srivaruban). Next day evening A-2 (Santhan) took A-6 (Sivaruban) to Marina Beach where Sivarasan was waiting.

150. On 21-5-1991, which was the day of assassination of Rajiv Gandhi, A-2 (Santhan) met Sivarasan and saw the latter preparing himself. A pistol was concealed by him beneath his kurta, and Sivarasan checked up with A-2 (Santhan) whether it was visible from outside. A-2 gave a nod that nothing was visible and then Sivarasan left the place. It was on the said night that Sivarasan left the place. It was on the said night that Sivarasan told him that Rajiv Gandhi was murdered. He also said that Dhanu too died. It was only on the next day that Sivarasan revealed to A-2 (Santhan) that Haribabu died. On 27-5-1991 Sivarasan moved to Madras and instructed A-2 (Santhan) to hand over ` 5,000/- to A-10 (Jayakumar). A-2 (Santhan) was moving from place to place thereafter and finally on 30-5-1991 he went to Sundara Lodge. PW-111 (Vijayendran) conveyed to A-2 a message from Sivarasan that the latter should meet him. Pursuant to that, A-2 (Santhan) met Sivarasan on the next day. By that time Sivarasan had removed his moustache.

151. Sivarasan told A-2 (Santhan) that thenceforth it was A-3 (Murugan) who would look after the work which Sivarasan was to continue in India. A-2 booked three bus tickets to Coimbator in psuedonymous names.

152. On 7-6-1991 Sivarasan and Suba met A-2 (Santhan) and asked him to handover a cover to A-3 (Murugan). A-2 (Santhan) learnt from A-3 (Murugan) that Sivarasan had instructed A-3 to murder one Chandrahasan. When A-3 (Murugan) asked A-2 (Santhan) as to the cause for which Chandrahasan was to be murdered A-2 (Santhan) replied that such a murder was planned for diverting the attention of CBI.

153. In the further portion of the confessional statement Ext. P-104, A-2 (Santhan) has narrated those occasions when he and Sivarasan met together. Among them an important meeting was on 11-5-1991 at 7.00 p.m. They met at the house of A-5 (Vijayanandan).

154. Sivarasan wanted A-2 to keep his two bags and conceal the same at Kollivakkom. It was done so on the succeeding day itself. On 28-6-1991, Suresh Master (an LTTE leader) directed A-2 (Santhan) to shift A-8 (Athirai) to some other place to escape from the catch of police. Pursuant thereto A-2 (Santhan) took A-8 (Athirai) to a house at Pammal and stayed there for a night. Next day A-2 (Santhan) handed over the wireless set to Suresh Master at the house of Vijayan.

155. The aforesaid are the prominent incriminating circumstances narrated in Ext. P. 104. If the aforesaid confession is true it would be a justifiable inference that A-2 (Santhan) was very much involved in the conspiracy. The vivid details which Ext. P-104 contains would, in all probabilities, have been supplied by A-2 (Santhan) himself because he alone knew what all he did and where all he went and whom all he met.

156. Regarding the truth of the contents of Ext. P-104 we may verify whether it is corroborated by other evidence.

157. PW-120 (Sundarmani) is the father of photographer Haribabu. He said in his evidence that on 6-5-1991 his son Haribabu brought A-2 (Santhan) to his house and he stayed there for one week, for which Haribabu had to implore his mother because there was lack of space in the house and other female members of the family were also residing there. PW-111 (Vijayandran) is a cinema actor. He has a Doctorate from a US University. He deposed that Sivarasan came into contact with him pretending to be his admirer and on 8-5-1991 Sivarasan visited him along with A-2 (Santhan). Those items of evidence can be seen as details mentioned by A-2 (Santhan) in his confessional statement.

158. PW-285 (R. Sivaji) was a Superintendent of Police who arrested A-2 (Santhan). In his evidence it has come out that when A-2 (Santhan) was questioned the police officer got the information regarding the place where 3 plastic bags and one cloth bag were kept. The particular portion of the statement, it was admitted in evidence, has been marked as P-1396. Those bags were actually given to A-2 (Santhan) by Sivarasan after returning from Tirupaty. Those articles were seized pursuant to the information for which Ext. P-1397 Mahassar was drawn up. M. O. 1083 is a bag which was identified as containing the clothes and cosmetics and other materials belonging to Suba. M. O. 1129 is a bag which contained articles of Sivarasan including a diary maintained by him.

159. PW-62 (Vimla), a teacher by profession narrated how she and her daughters were duped by Sivarasan when he brought Athirai (A-8) to their house under some false pretext without knowing that they were the persons involved in the assassination of Rajiv Gandhi. PW-62 (Vimla) was closely associated with A-8 (Athirai). PW-62 in her evidence said that A-2 (Santhan) was visiting A-8 (Athirai) and that once A-2 (Santhan) told the witness that CBI might perhaps search her house also A-2 (Santhan) took A-8 (Athirai) away from the house of PW-62 (Vimla) on the direction of Sivarasan. We have absolutely no reason to disbelieve the evidence of PW-62. She said that the moment she came to know that those persons were suspected by the police in the Rajiv Gandhi murder case she screamed and implored to spare her and her daughters.

160. From the above corroborative items of evidence we are assured of the truth of the confession made by A-2 (Santhan) as recorded in Ext. P-104. We are hence of the view that prosecution has succeeded in proving that A-2 (Santhan) was also one of the conspirators in the Rajiv Gandhi assassination conspiracy.

A-3 MURUGAN ALIAS DAS:

161. Murugan was aged 21 at the time of the occurrence in this case. He belongs to Sri Lanka. He was a committed LTTE follower. After working for his organisation at Jaffana for a considerable period he was deputed by LTTE top brass to India for carrying out “an important mission”. He was arrested in connection with Rajiv Gandhi murder case on 14-6-1991. Prosecution relies on the confessional statement said to have been given by him on 9-8-1991 to the Superintendent of Police. It was marked in this case as Ext. P-81.

162. In that confessional statement it is said that he joined the “Suicide Squad” of LTTE and he came to India in January 1991. He was received by Sivarasan at Kodiakarai. He got sketches of Fort St. George, Madras and Vellore Fort prepared under the instructions of his bosses in Sri Lanka. Photographer Haribabu went with him to Vellore Fort for that purpose and he got it photographed. Besides that, certain other Government buildings were also photographed by the said Haribabu. It was A-3 (Murugan), according to his own confession, who persuaded A-1 (Nalini) to associate with LTTE work by giving her repeated narrations of attrocities committed by IPKF soldiers on LTTE members. He made Nalini to become revengeful towards Rajiv Gandhi. He said that he had knowledge that Sivarasan and other top brass of LTTE were planning to murder an important personage of India. He knew it from the conversation he had with Sivarasan.

163. In Ext. P-81, A-3 (Murugan) has further stated that Sivarasan told him to find out a girl from India for garlanding Rajiv Gandhi at a public meeting. This happened during the last week of March 1991. Then he realised that Rajiv Gandhi was the target. He believed that Rajiv Gandhi was responsible for all the attrocities which IPKF committed in Sri Lanka. He said that it was in April 1991 that Sivarasan brought Suba and Dhanu to India. Then A-3 suggested that services of Nalini could be utilized for concealing the Sri Lankan identity of the girls. He further confessed that, on 18-4-1991 he along with Nalini and Haribabu attended the public meeting which Rajiv Gandhi addressed at Marina Beach, Madras during which Haribabu took photos of Rajiv Gandhi and supplied the photos to him and Sivarasan.

164. He also confessed in Ext. P-81 that on 7-5-1991 he attended the public meeting at Madras addressed by V. P. Singh and that A-1 (Nalini), the two girls (Dhanu and Suba), Sivarasan and Haribabu were also with him then. He further confessed that the said function was attended by them for the purpose of conducting a trial as to how far the two girls would be able to go near the rostrum and garland a former Prime Minister. He mentioned in Ext. P-81 that Sivarasan scolded them for the failure to click the camera when the former Prime Minister was garlanded.

165. In Ext. P-81 he also referred to a letter written by Baby Subramaniam to Bhagyanathan (A-20) and two other letters written by Dhanu and Suba to Pottu Omman and Akila (Ext. P-95 and Ext. P-96). A-3 (Murugan) further confessed in Ext. P-81 that on 20-5-1991 Sivarasan visited him and alerted him to be ready for the meeting to be addressed by Rajiv Gandhi next day. On 21-5-1991, A-3 (Murugan) alerted A-1 (Nalini) to move fast and reminded her that Sivarasan, Suba and Dhanu might be waiting for her.

166. In the further portion of the confessional statement A-3 (Murugan) stated that Sivarasan expressed to him that he had accomplished his work though Haribabu and Dhanu died in it. He stated further that on 25-5-1991 he along with A-1 (Nalini) and Suba accompanied Sivarasan to Tirupaty to visit the temple of Lord Venkateshwara. During that trip Sivarasan told him that it was with the help of a belt bomb connected to two switches that Dhanu could explode the bomb and that it was Veluppillai Piribhakaran’s decision to utilize the girls to retaliate against Rajiv Gandhi because IPKF attrocities were done mostly on women. He also confessed that on 7-6-1991 he himself, Sivarasan, Suba and A-2 (Santhan) met together at Astataka Temple and took a decision to go back to Sri Lanka.

167. In substance A-3 (Murugan) has admitted in Ext. P-81 that he rendered a lot of help in carrying out the target of conspiracy i.e. the assassination of Rajiv Gandhi, though he did not go to Sriperumbudur. Except for the general criticism made against the prosecution case that all confessions were extracted by coercive methods no specific criticism has been raised as against Ext. P-81. We have no reason to think that Ext. P-81 is tainted due to any reason whatsoever.

168. Nonetheless, we can act on Ext. P-81 only if we are assured by other corroborative evidence. Prosecution has placed reliance on the confession of A-1 (Nalini) to be used as corroborative version. Learned counsel for the defence cautioned us that the version of one accomplice should not be used to corroborative the version of another accomplice. Be that as it may, we have come across several other items of evidence which are of great corroborative value.

169. PW-120 (Sundarmani) who is the father of photographer Haribabu, said in his evidence that on 20-5-1991 A-3 (Murugan) went to his house in search of Haribabu and as the latter was not available A-3 (Murugan) instructed the witness to inform Haribabu about the visit, and that no sooner than Haribabu was told about it he left the house.

170. Ext. P. 521 is a forged press accreditation card in the name of A-3 (Murugan) containing his photo also. This was seized from the house which A-3 (Murugan) had taken on rent. Evidently it was a preparation to attend public meetings addressed by persons like Prime Minister or a former Prime Minister.

171. After the arrest of A-3 (Murugan) PW-282 (Inspector of CBI) seized six baggage which were buried in a pit. The baggage contained, among other things, Ext. P-95 and Ext. P-96 (Letters written by Suba and Dhanu to Pottu Omman and Akila after attending the meeting addressed by V. P. Singh on 17-5-1991). PW-86 (Mariappan) said in his evidence that he was staying in the house of one Sanmugham at Kodiakarai opposite to which some Sri Lankan people were staying, A-3 (Murugan) was one among them. PW-86 stated that one day A-3 (Murugan) told him to hand over a box to the witness and asked him to keep it till he returned from Madras. After A-3 (Murugan) left he was asked by his master (Sanmugham’s brother) to bury the box. It contained six items. He collected those six items and tied them together in a plastic bag and buried them. It must be remembered that PW-86 was pointed out by A-3 when the CBI Inspector (PW-282) questioned him after the arrest.

172. PW-233 (Bharathi) said that she was staying at Royapetta, Madras and in the same house another family consisting of A-20 (Bhagyanathan) and his mother A-21 (Padma) were residing. She said about the number of occasions when Sivarasan and A-3 (Murugan) were frequenting the house. She further said that she saw A-3 (Murugan), A-18 (Arivu) and A-20 (Bhagyanathan) in association with photographer Haribabu visiting the house and food was prepared for them. Sivarasan was also seen visiting them.

173. There is much evidence to prove that A-3 (Murugan) went to Tirupaty in the company of Sivarasan, Suba and Nalini on 25-5-1991. In this context we took into consideration that confession made by A-1 (Nalini) in which she has narrated her association with A-3 (Murugan) and the places which they visited together. We have dealt with those aspects earlier.

174. With the above corroborative items of evidence we are confident in relying on the confessional statement of A-3 (Murugan), as recorded in Ext. P-81, to be a true version. The active and positive involvement of A-3 (Murugan) in the conspiracy for assassinating Rajiv Gandhi looms large in the said confession. We have therefore no doubt that A-3 was also one of the conspirators.

175. A-4 to A-8 can be considered at a stretch, among them A-7 and A-8 can be considered together. Unlike the earlier considered accused A-4 to A-7 did not give any confessional statement to any person. Though A-8 gave a confessional statement his involvement, if at all any, in the conspiracy, cannot be seen different from that of A-7. So the first effort is to find out whether there is any circumstance or other evidence to prove the complicity of any one of those accused. Of course the trial Court found all of them to be members of the conspiracy and convicted them of it.

A-4 SHANKAR:

176. A-4 (Shankar) has two other names, one is Koneswaran and the other is Russo. The circumstances unfurled in evidence as against him are these:(1) He was a full-fledged LTTE member and came to India on 1-5-1991 in the group of 9 persons including Sivarasan, Suba and Dhanu. (2) Ext. P-1062 (a sheet of paper) shows that A-4 (Shankar) would have met A-3 (Murugan) at Kodiakkarai and then the phone number of A-1 (Nalini) would have been supplied to him. (3) On 21-5-1991 he was staying at Esware Lodge which was a place frequented by Sivarasan. (4) In Ext. P-401 (a wireless message sent by Sivarasan to Pottu Omman on 9-6-1991) it was mentioned:

“I got news that one of my associates was caught at Nagapattinam and he has told all the news about me.” (5) When the news of arrest of A-4 was published Sivarasan communicated that fact to Pottu Omman. (6) In Ext. P-1253, a diary, Sivarasan has mentioned having paid a sum of ` 10,000/- to A-4. (7) In Ext. P-439, Sivarasan has mentioned payment of ` 5,000/- to A-4 (Shankar).

177. The Special Judge of the Designated Court reached a conclusion, on the strength of the above narrated circumstances, that A-4 (Shankar) was a member of the conspiracy. It was contended by the learned counsel for the defence that the above circumstances may, at the most, show that A-4 (Shankar) was actively involved in LTTE work because there is nothing to suggest that he ever knew that Rajiv Gandhi was going to be murdered. Of course the first among those circumstances has a strong tendency to create suspicion in our mind against A-4 (Shankar) but in the total absence of anything to show that the 9 passengers in the boat had talked about the assassination programme of Rajiv Gandhi or at least that Sivarasan or Suba or Dhanu would have divulged it to others, there is great practical difficulty to fix up a premise that all of them shared any intention to murder Rajiv Gandhi when they set out the voyage from that island to India. It must be remembered that LTTE had several activities, even apart from murdering Rajiv Gandhi. So merely because a person is shown to be an active worker of LTTE that by itself would not catapult him into the orbit of the conspiracy mesh in order to murder Rajiv Gandhi. It cannot be forgotten that a conspiracy for that purpose would be strictly confined to a limited number of persons, lest, any tiny leakage is enough to explode the entire bubble of the cabal.

178. At any rate, we find it difficult to concur with the conclusion reached by the Special Judge that the aforesaid circumstances would unerringly point to the involvement of A-4 (Shankar) as a conspirator to assassinate Rajiv Gandhi. The worst that could be concluded from the aforementioned circumstances, assuming that they being all proved by the prosecution in this case, is that A-4 (Shankar) was also an ardent LTTE votary having close acquaintance with Sivarasan. But from that step of conclusion it is not legally permissible to ascend on to the highest tier and reach the final conclusion that he too was in the conspiracy to murder Rajiv Gandhi.

A-5 VIJAYANANDAN:

179. As against A-5 (Vijayanandan) the circumstances established are the following:(1) He too was in the 9 member group which clandestinely came to India on 1-5-1991. He had only a forged passport. (2) He stayed in Komala Vilas Lodge, Madras on 8th and 9th of May 1991 by showing a false address and also on a false pretext “to attend a marriage”. (3) PW-75 said that A-5 stayed in his house and during then he was fuming with acerbity towards Rajiv Gandhi. (4) In a diary of Sivarasan (M. O. 180) there is an entry showing that an amount of ` 50,000/- was given to “Hari Ayyah” on 8-5-1991.

180. In the first place we may point out that there is no substantive evidence in this case to show that A-5 (Vijayanandan) had another alias name as Hari Ayyah. Of course it is seen stated so by A-2 (Santhan) in the confessional statement but it has not been put to A-5 (Vijayanandan) when he was questioned under Section 313 of the Code. Even if it was put it is doubtful whether the said entry in the diary could have been used against A-5. However, the trial Court upon the said circumstances reached the conclusion that he too was a member of the conspiracy.

181. It must be borne in mind that LTTE was a proscribed organisation in Sri Lanka and their members were indulging in secret activities for attaining a goal of independent Tamil Eelam in Sri Lanka. There were many, who were members of LTTE, living in India without exposing themselves lest they would be caught by the Sri Lankan authorities. Even prosecution has no case that all those who were members of the LTTE were also members of the conspiracy to murder Rajiv Gandhi. So the mere fact that someone was shown to be an LTTE votary and acquainted with the other accused persons in this case that by itself would not entangle him into the cobweb of the conspiracy to murder Rajiv Gandhi.

182. As in the case of A-4 (Shankar) the circumstances arrayed by the prosecution against A-5 (Vijayanandan) may, at the worst, show him to be an active LTTE votary. But beyond that stage the circumstances would not push him into the dragnet of the conspiracy.

A-6 SIVARUBAN:

183. A-6 (Sivaruban) was a boy in his teens when the incident took place. He also belongs to Sri Lanka. His left leg was amputated. Nevertheless he was an active LTTE member. The circumstances pitted against him by the prosecution are the following:(1) He was one among the 9 persons who arrived in India from Sri Lanka on 1-9-1991 in the company of Sivarasan. It was a clandestine voyage. (2) He was sent to Jaipur on 19-5-1991 by Sivarasan at the expense of LTTE. Though it was ostensibly for fixing up an artificial leg for him there is no evidence to show that the leg was fixed at Jaipur. (3) He stayed in Golden Hotel, Jaipur from 19-5-1991 to 23-5-1991 and then he shifted to Vikram Hotel, Jaipur. (4) M. O. 667 series which were seized from the house occupied by A-3 (Murugan) on 15-6-1991 contained a folio showing the telephone number and the address of A-6 (Sivaruban) at Jaipur. In a search conducted by the Inspector of CBI, Jaipur at Vikram Hotel on 20-6-1991 telephone numbers of A-15 (Thambi Anna) as well as A-9 (Robert Payas) were found out among the materials seized therefrom. (5) Ext. P. 1200 is a letter which A-2 (Santhan) had written to A-6 (Sivaruban) dated 18-6-1991 in which A-6 was asked to shift from Vikram Hotel immediately.

184. The Special Judge of the Designated Court highlighted two features. First is, why should A-6, who is not a senior leader of LTTE, be sent to Jaipur when artificial leg could have been fixed at places like Madras and Bangalore. Second is, during the long period when he was in Jaipur he could not get the artificial leg fixed. Learned Special Judge took into account those features along with the circumstances enumerated above and came to the conclusion that there is force in the prosecution contention that A-6 (Sivaruban) was deputed to Jaipur for finding out a hide-out for Sivarasan and Suba to escape after assassination of Rajiv Gandhi.

185. There is no justification for reaching such a rash inference on the said evidence. If A-6 (Sivaruban) required an artificial leg it is not a proper query – why he could not have got it fixed at any other place. (It is an admitted fact that the institute at Jaipur for providing artificial legs is a very renowned one). Why one is preferring a particular Centre to a less renowned place for such reparative devices, is too difficult a question for another person to answer. That apart, we do not know whether a period of one month is too long for completing the process of artificial leg attachment or whether any work was in progress at the Center. At any rate no material has been placed in regard to those aspects.

186. A circumstance which created suspicion in the mind of the investigating agency was that A-6 (Sivaruban) also came to India along with the other 8 persons on 1-5-1991. That might be the reason why the associates of A-6 cautioned him that he too would be caught by the police and advised him to shift to another place. No doubt that is an incriminating circumstance against A-6 (Sivaruban). But it is too much a strain to jump to the conclusion, with the help of the aforesaid circumstance, that A-6 (Sivaruban) was also a conspirator for assassinating Rajiv Gandhi.

A-7 KANAGASABAPATHY AND A-8 ATHIRAI:

187. While considering the involvement of A-7 (Kanagasabapathy) it would be expedient to consider the case of A-8 Athirai alias Sonia (also called Gowri). Such a course was adopted by the trial Court and we too feel that such a course would be advantageous. In fact the learned counsel for the defence addressed arguments as for A-7 and A-8 together.

188. It must first be pointed out that no confessional statement was recorded by any person from A-7. A confessional statement attributed to A-8 is marked as Ext. P-97. We will refer to the said confessional statement before proceeding to other evidence concerning the said two accused.

189. A-8 is a girl hailing from Sri Lanka. She was in her teens during the days of conspiracy. Two of her sisters are now in Switzerland living with their husbands. A-8 (Athirai) had a love affair with a boy named Anand, but he died in a raid conducted by IPKF during 1989. She was recruited in the LTTE at the age of 16 and she was given a training in shooting. It was from her confessional statement that we got the idea of placement of Dhanu and Suba in the LTTE ranking. The former was a member of “Black Women Tiger” and the latter was a member of the Army Branch of LTTE. The following facts are also mentioned in Ext. P-97:

When she was studying in 6th Standard LTTE people visited her school and started the campaign for enlisting support from school children. She was then only aged 13. After reading a lot of literature on freedom struggle, Tamil culture etc. she decided to join LTTE when she was aged 16. She was christened by Veluppillai Piribhakaran. She learnt shooting with AK-47. She was made to believe that IPKF, instead of protecting the Tamils was fighting against them and committing all sorts of attrocities on the innocent Tamilians of Sri Lanka.

190. In March 1991, Pottu Omman told her that if she would go to India the LTTE would meet all her expenses. She was introduced to A-7 (Kanagasabapathy). She understood that her work in India was to collect information about certain marked places in Delhi for facilitating the work of LTTE. She and A-7 (Kanagasabapathy) together left Sri Lanka and they reached India by boat in April, 1991 and they stayed together in the house of a relative of A-7. Sivarasan helped her with money. After the murder of Rajiv Gandhi Sivarasan told her that thenceforth she would be looked after by A-2 (Santhan) as Sivarasan was apprehending arrest.

191. We have not found out any material whatsoever from the aforesaid confessional statement regarding her involvement in the conspiracy for Rajiv Gandhi murder. That young girl could not be attributed with even any knowledge that Rajiv Gandhi would be murdered. The worst that could be found against her is that her young mind was transformed into a stormy petrel to LTTE through brainwashing. That does not mean that she should necessarily have been cobbled into the conspiracy.

192. Over and above the circumstances pitted against A-7 on a par with A-8 (Athirai) it is proved that A-7 had gone to Delhi on 20-5-1991 with the money supplied by Sivarasan. He was accompanied by a person called Vanan and they both stayed in Delhi till 30-5-1991. Trial Court drew an inference that Sivarasan would have sent A-7 (Kanagasabapthy) to New Delhi for fixing up a hideout. Even if it was so, where is the evidence to show that A-7 was ever conspired with for the murder of Rajiv Gandhi?

193. In this connection reference has to be made to the testimony of two witnesses. PW-109 (Jai Kumari) is the niece of A-7 (Kanagasabapathy). She has stated in Court that she has seen her uncle A-7 in the company of A-8 (Athirai) visiting “Hissinboathams” (the famous bookseller) at Mount Road, Madras. They bought a map of Delhi and they were found enquiring for a book containing the addresses of VIPs. On 2-5-1991 Sivarasan was found talking with them and a few days thereafter they went away with Sivarasan, though A-7 used to visit her again infrequently. The witness said that when she saw the photo of Sivarasan connecting him with the murder of Rajiv Gandhi she asked her uncle about it. Then A-7 answered thus:

“You are simply imagining many things. For Heaven’s sake don’t entertain any bad things about me and A-8. Otherwise you have to face God’s punishment.”

194. The Special Judge of the Designated Court drew an inference from the above talk of A-7 that he would have had the knowledge of the object of conspiracy. The above words said to have been used by A-7 to his niece could as well have been said as he was certain that he was not involved in the murder of Rajiv Gandhi. But the trial Court took it the other way around.

195. PW-62 (Vimla) who is a teacher has stated in her evidence that it was Sivarasan who brought A-8 (Athirai) to her house and requested for accommodating her also in the house. (The witness has narrated how she came into acquaintance with Sivarasan). PW-62 further said that Sivarasan visited her house a couple of days after Rajiv Gandhi was killed and he talked with A-8 (Athirai). But later when the witness happened to see the photo of Sivarasan in the newspapers connecting him with the murder of Rajiv Gandhi she asked A-8 (Athirai) whether there was any truth in the news. A-8 strongly repudiated it and said that Sivarasan was a press reporter and he would have gone there to make a report of the function. Sivarasan visited A-8 on the same afternoon and then PW-62 (Vimla) requested Sivarasan to take A-8 away from that house. Sivarasan then said that he would not visit that house again. At the same time he warned the witness like this:

“If anybody would identify him and give information about him he would meet the same fate as Padmnabha had”. Thereafter Sivarasan did not visit PW-62 at all. It was A-2 (Santhan) who later took A-8 (Athirai) away from that house.

196. We have no reason to disbelieve the testimony of PW-62 or that of PW-109. We have no doubt from the aforesaid evidence that A-7 and A-8 were very close to Sivarasan who had taken much interest in them. But the question is, will that alone lead us to the conclusion that A-7 and A-8 were also associated with Sivarasan to the conspiracy to murder Rajiv Gandhi? In this connection it is well to remember that all those who worked for LTTE cause were familiar with Sivarasan. It is true that all conspirators had worked in unison with Sivarasan and they were all ardent LTTE personnel. But the converse cannot be a necessary inference i.e. all those LTTE personnel who associated with Sivarasan should have been brought within the radius of the conspiracy to murder Rajiv Gandhi as participants thereof.

197. We entertain genuine doubt, in spite of the association that A-7 and A-8 had with LTTE Movement and also with Sivarasan, whether those two accused would have conspired with others in murdering Rajiv Gandhi.

A-9 ROBERT PAYAS:

198. Robert Payas was aged 25 during the relevant period. While he was in Sri Lanka he associated himself with LTTE work. He arrived in India on 20-9-1990. He was arrested in connection with Rajiv Gandhi murder case on 18-6-1991. Ext. P-85 is said to be the confessional statement given by him to the Superintendent of Police on 15-8-1991.

199. It has been narrated in Ext. P-85 that IPKF caught A-9 (Robert Payas) and detained him for 15 days along with some others, and during that time the army men committed a lot of attrocities in the houses of the detained persons. A suckling child of A-9 died in the army action. A-9 and his colleagues developed bitter hatred towards IPKF and the other rival organisations headed by Padmnabha.

200. The incriminating statements in Ext. P-85 are the following:

A-9 was in close contact with Kanthan (a senior LTTE leader) and Sivarasan, who came to India for carrying out a certain dreaded act. LTTE was bearing all the expenses of A-9 and his family and Sivarasan used to visit him frequently. In February 1991, Sivarasan and A-3 (Murugan) went to the house of A-9 and stayed there for a couple of days. A-2 (Santhan), Sivarasan and Kanthan used to chalk out plans for their movements while staying in the house of A-9. In the beginning of May, 1991, Sivarasan brought Santhan to the house of A-9. On 5-5-1991 Sivarasan and A-2 (Santhan) had a talk with Haribabu, A-3 (Murugan), A-18 (Arivu) and A-9 (Robert Payas) at Marina Beach, Madras. Between 15th and 20th of May 1001, Kanthan, A-2 (Santhan) and two other persons of LTTE used to meet each other in the house of A-9 and while they were in dialogue Sivarasan was keeping them in close contact through phone.

201. It is further stated in Ext. P-85 that A-9 remained in his house on 21-5-1991 from the afternoon till next day expecting some message from Sivarasan. On 24th May, 1991 Sivarasan went to the house of A-9 riding a motorcycle but he felt that he could not see Kanthan in A-9’s house. A-9 told that fact to Kanthan on the next day. On 27th May 1991, A-9 and A-2 (Santhan) decided between themselves to escape from the police. So he with his wife and sisters proceeded to Thiruchandur and from there they moved to other places in cognito.

202. From the above confessional statement recorded in Ext. P-85 it can be seen that A-9 had a serious involvement in the conspiracy with Sivarasan and others for assassinating Rajiv Gandhi. But the question is whether Ext. P-85 can be treated as a reliable evidence. So our next effort is to find out whether there are other corroborating evidence.

203. Prosecution relied on the evidence of PW-197 (Dr. Claud Fernandez) who is a Dental Surgeon. He said in his evidence that he was residing just in front of the building where A-9 was residing. According to him, on the next day of the assassination of Rajiv Gandhi crackers were exploded in the house of A-9. The witness well remembers that A-9 and A-3 together visited his clinic. The aforesaid evidence of PW-197 has some corroborative value. There is no contention that the witness is speaking falsehood.

204. PW-59 (Raghu) has a Photo Studio at St. Thomas Mount, Madras. He said that A-9 and Sivarasan went to his studio on 15-9-1990 and got two photographs taken. Sivarasan then wrote his name and address in the records of the studio as follows:

“R. Subaraj,

85 Gangai Amman Street,

Kodambakkam (Madras)”

His version is supported by documentary evidence such as Exts. P-176 to P-184 (all are records kept in the studio).

205. In M. O. 180 Diary, which is proved to be the diary of Sivarasan, there are umpteen entries showing various amounts paid to A-9. It is not disputed that the said diary belonged to Sivarasan and the entries were made at his instance.

206. In Ex. P-81 confessional statement, A-3 (Murugan) stated that a wireless set was installed in the house of A-9 at Porur by LTTE militant Kanthan. It was from that wireless set Sivarasan used to contact Pottu Omman at Sri Lanka. 207. The aforesaid items of evidence proved in this case have rendered the confessional statement made by A-9 in Ext. P-85 as wholly true. We therefore, concur with the finding of the Special Judge that A-9 (Robert Payas) was very much involved in the conspiracy to assassinate Rajiv Gandhi.

A-10 JAYAKUMAR:

208. Jayakumar is the brother-in-law of A-9 (Robert Payas). (His sister Prema is A-9’s wife). A-10 was lead into LTTE movement. He was sent to India in September 1990. He was arrested in connection with Rajiv Gandhi murder case on 26-6-1991. A confessional statement which is marked as Ext. P-91 is attributed to A-9. The incriminating statements in it are the following:

As IPKF committed lots of attrocities on LTTE people A-10 (Jayakumar) along with others felt very much annoyed. (A-9’s little child died in one such IPKF action). So LTTE had decided to teach the leaders concerned a lesson. On 20-9-1990 A-10 reached India and met a hardcore LTTE personnel Nishananthan (who was also called Nixon). A house was arranged at a place called Porur for which an amount of ` 5,000/- was paid to the owner. Kanthan (another top ranking LTTE leader) used to supply money to A-10 and also to his brother-in-law A-9. A wireless set was installed by Kanthan inside the house of A-10 in order to facilitate the hardcore LTTE personnel to contact their Sri Lankan counterparts. Once he was told by Kanthan that a high ranking LTTE leader (Sivarasan) would be arriving in India for carrying out a dangerous plot. A similar information was passed on to him by his brother-in-law Robert Payas also. As Kanthan told him that a house was to be arranged for Sivarasan it was so arranged at Kodingayoor. In December 1990, Sivarasan was brought to A-10’s house by his brother-in-law. He was directed to render all help to Sivarasan and he knew very well that the mission of Sivarasan was to execute a dangerous plot. Sivarasan used to supply enough money to A-10 (Jayakumar). Once Sivarasan brought a suit-case consisting of his diary, dress, a pistol and one AK-47 gun besides plenty of bullets. The pistol was concealed in a book in which a cavity was made out for containing the firearm. Sivarasan used to carry the suitcase wherever he went. Once he went to Sri Lanka and on his return he brought Suba and Dhanu. This was on the 2nd of May, 1991. A-10 knew that Sivarasan brought those two girls for accomplishing the retaliatory plot. A-10 understood that Rajiv Gandhi was the focus of their hatred. He asked his wife to stitch a cloth cover for keeping the pistol of Sivarasan.

209. Regarding the activities on 21-5-1991, A-10 (Jayakumar) is said to have confessed in Ext. P-91 that he saw Sivarasan keeping the pistol concealed and set out for the public meeting at Sriperumbudur. By midnight Sivarasan returned with Suba and Nalini and it was confirmed that Rajiv Gandhi was killed by Dhanu. He saw Sivarasan going upstairs for talking with Santhan.

210. The further incriminating portions in Ext. P-91 are:On 22-5-1991, A-10 prepared meals for Sivarasan, Suba and Nalini and it was only on 23rd that Sivarasan left the house. Before leaving Sivarasan kept all his things in the suitcase, (except the pistol) and entrusted the pistol to A-10. The suitcase was put in a pit dug by A-10. As instructed by Sivarasan the pit was closed with a concrete slab and a painting was given on its surface.

211. The above is the substance of the confession contained in Ext. P-91. If that statement can be accepted as reliable we have no doubt that it would afford enough materials for concluding that A-10 (Jayakumar) was actively involved in the conspiracy to assassinate Rajiv Gandhi. In order to verify the truth of it we have to turn to other evidence which prosecution has adduced for corroboration purposes.

212. The first corroborative material pressed into service by the prosecution is the confessional statement made by his brother-in-law Robet Payas (A-9) in Ext. P-85. We have earlier found it acceptable and hence it can be regarded as a material to ensure confidence about the truth of the statement contained in Ext. P-91. Another item of evidence is the testimony of PW-63 (Smt. Kottammal). She is an employee of the Tamil Nadu State Electricity Board. She said that when she completed the house construction at Kodingayoor it was rented out to A-10 (Jayakumar) and his wife Shanti. Ext. P-217 is the rent agreement executed for the said purpose. PW-85 (Swaminathan) who is a nearby resident has stated that by the third week of December, 1990 he saw A-10 and his wife occupying the new house of Kottammal. He also said that Sivarasan used to visit that house frequently and A-2 (Santhan) was also staying in that house from 6th May, 1990 onwards. The witness remembers that Sivarasan started staying in that house from 22nd May onwards. He remembers the date because he knew that Rajiv Gandhi was murdered on the previous day. Nalini and Suba were also with Sivarasan. PW-85 further said that he noticed distribution of sweets in the house of A-10 by noon on 22nd May, 1991.

213. PW-200 (Smt. Meera) who is another neighbouring resident gave evidence almost in the same manner as PW-85. What she further said was that Sivarasan was a regular visitor in the house of A-10 from January, 1990 onwards and the witness noted Sivarasan bringing two girls in the first week of May, 1991.

214. Testimony of those witnesses was believed by the trial Court and we have no reason to take a different view. It is clear that the aforesaid items of evidence are of much corroborative value.

215. There is yet another circumstance which gives assurance about the involvement of A-10 with the conspiracy. When he was arrested and interrogated by PW-288 (Raghauthamam-one of the chief investigating officers) the accused gave the information that he had buried the suitcase and on the strength of the said statement the suitcase was unearthed. Ext. P-437 is the Mahassar which was prepared for it. (The statement which A-10 made pursuant to which the suitcase was unearthed was separately marked as Ext. P-1436). The articles contained the diaries of Sivarasan, the Sri Lankan Passport of A-2 (Santhan) besides some live cartridges and M.O.157 (which is a Tamil dictionary in which a cavity was carved out for keeping a pistol). PW-85 is a witness to the unearthing of the suitcase. He has stated that fact in his evidence.

216. Over and above the afore-narrated corroborative pieces of evidence prosecution has produced still further items of evidence. But we do not think it necessary to refer to all of them since we are fully satisfied even with the evidence already discussed above that the concessional statement contained in Ext. P-91 was made by A-10 and it is a true confession. We therefore conclude without hesitation that prosecution has succeeded in proving that A-10 (Jayakumar) was an active participant in the conspiracy for assassination of Rajiv Gandhi.

A-11 SHANTHI:

217. She is the wife of A-10 (Jayakumar). Except the fact that she accompanied her husband from Sri Lanka in September, 1990 and continued to live with him in India we are unable to find any involvement for her in the conspiracy to murder Rajiv Gandhi. Learned Special Judge has considered her case, tagging it with her husband’s case. We may point out, in this context, that no confession could be recorded from her under Section 15 of TADA. We have not come across any material, apart from her living with her husband A-10 (Jayakumar), to suggest that she had any role in the conspiracy. It is very unfortunate that for the role played by her husband she has been sentenced to death under Section 302 read with Section 120B of the Indian Penal Code.

A-12 VIJAYAN ALIAS PERUMAL VIJAYAN:

218. Vijayan was arrested on 8-7-1991 in connection with Rajiv Gandhi murder case. Ext. P-101 is a confessional statement said to have been recorded from him on 3-9-1991 by the Superintendent of Police as per Section 15 of TADA. We will first refer to the following incriminating passages in Ext. P-101:

A-12 (Vijayan) was conducting a workshop in Sri Lanka, but with the commencement of IPKF operation in the island the workshop ran into doldrums. That was a time when his wife was pregnant. He therefore thought of going to India for availing themselves of medical facilities, but then he found a hurdle that every Sri Lankan Tamil citizen wanting to leave the island had to pay ` 1500/- and two gold sovereigns to LTTE Movement. As A-12 (Vijayan) was in penury he approached LTTE leaders for exonerating him from the financial liability in crossing over to India.

219. He was then introduced to Sivarasan by a close relative. Sivarasan offered to meet all his expenses in going to India on a condition that he should work for LTTE. A-12 accepted the condition. On 12-9-1990, he, his wife (A-13) and his father-in-law (A-14) reached Rameshwaram. After getting themselves registered as Sri Lankan refugees they moved to Tuticorin.

220. In December 1990, Sivarasan visited them at Tuticorin and persuaded A-12 to shift his residence to Madras and take a house on rent so that the new arrivals of LTTE could also be accommodated therein. Sivarasan paid him ` 10,000/-. So he and his family shifted to Madras.

221. On 2-5-1991 Sivarasan brought a suitcase containing a wireless set and wanted A-12 (Vijayan) to keep it in his house. One person by name Nehru was also present along with Sivarasan. Sivarasan told A-12 that two girls would be brought from Sri Lanka for an important work and requested to keep that information secret. Sivarasan paid him ` 10,000/- again.

222. After 3 days, Sivarasan brought Suba and Thanu to the house of A-12. He directed A-12 to dig a pit for keeping the wireless set as well as some guns. A-12 obeyed and he was helped by Nehru in digging the pit. On 21-5-1991 Sivarasan visited A-12’s house at 12.30 noon and asked Thanu and Suba to get ready. Then the two girls went inside a room and after about an hour came out dressed up for going out. Sivarasan took the girls in an auto-rickshaw and left. On the next day Sivarasan reached A-12’s house and disclosed to him that Rajiv Gandhi was murdered. He asked Nehru to transmit the message to Sri Lanka.

223. The remaining part of the confessional statement in Ext. P-101 contains the directives which Sivarasan gave to A-12 (Vijayan) which the latter had obeyed. But there is nothing in Ext. P-101 to show that A-12 ever knew before 22-5-1991 that Rajiv Gandhi would be murdered. Of course, he could have inferred that the important work which Sivarasan suggested would be some criminal activity but that does not mean he should necessarily have inferred that Sivarasan was targeting Rajiv Gandhi and was contemplating his assassination.

224. No doubt A-12 was very much used by Sivarasan without letting him know of his plan to murder Rajiv Gandhi. Nor did anyone else tell A-12 about it. Even from among the articles which PW-281 – a police officer recovered from his house (as per Ext. P-1359 Mahassar) nothing could be attributed to A-12 regarding his knowledge that Sivarasan was planning to murder Rajiv Gandhi.

225. But after the murder of Rajiv Gandhi A-12 (Vijayan) had helped Sivarasan very much to escape from being caught. In that endeavour he helped Suba also. It might be that Sivarasan could secure such assistance from A-12 on the strength of the financial assistance which he lavishly gave to A-12 and his family at the time of need. But we are unable to stretch the inference further backward to think that A-12 played any part in the conspiracy to murder Rajiv Gandhi.

A-13 SELVALUXMI:

226. Selvaluxmi is the wife of A-12 (Vijayan). Except that she was living with her husband she had no other role apart from what her husband did. She was arrested on 16-5-1992. Trial Court dealt with the case of A-13 in conjunction with that of her husband A-12 (Vijayan). We note that the investigating agency could not elicit any confession from her. The result is there is practically nil evidence to show that A-12 was ever involved in the conspiracy to assassinate Rajiv Gandhi.

A-14 BHASKARAN:

227. Bhaskaran is the father-in-law of A-12 (Vijayan) and father of A-13 (Selvaluxmi). His involvement in the conspiracy was considered by the trial Court conjointly with the discussion pertaining to A-12 and A-13. As from him also the investigating agency could not elicit any confession under Section 15 of TADA.

228. Though there is no evidence to show that he had any prior knowledge of the plan to murder Rajiv Gandhi there is evidence to show that after A-14 (Bhaskaran) came to know of the assassination he tried to protect Sivarasan and others from being caught or detected.

229. PW-97 (Chokkanathan) is the brother-in-law of A-14 (Bhaskaran). That witness has said in his evidence that on 21-6-1991 his brother-in-law (A-14) expressed a desire to have a larger house on rent by saying that such a house was necessary to accommodate certain important person. A-14 (Bhaskaran) initially hesitated to divulge the identity of those important persons to PW-97, but later he disclosed that the house was meant for Sivarasan and Suba who were involved in Rajiv Gandhi murder case. PW-97 said that on hearing the said information he refused to help his brother-in-law, but his brother-in-law became very angry and gave a warning that if the information is divulged to the police he (PW-97) might have to meet his end. Next morning A-14 left the house of PW-97.

230. Shri Altaf Ahmad, learned Additional Solicitor General contended that the aforesaid conduct of A-14 is enough to draw the inference that A-14 was also privy to the conspiracy. But we are unable to stretch the inference to such a farthest extent. The evidence of PW-97 would certainly indicate that A-14 was interested in securing a safe place for Sivarasan and Suba to escape from police detection and also to save them from being caught by the police. It is quite possible that he would have been persuaded to help Sivarasan and Suba on the strength of the help which Sivarasan rendered to the family. It may be possible to go one more step further that perhaps Sivarasan would have disclosed to A-14 that Rajiv Gandhi was murdered at his behest and sought the help of A-14 to escape from police detection.

231. We can only conclude that A-14 would have harboured Sivarasan and Suba and also tried to screen them from being caught by the police.

A-15 SHANMUGAVADIVELU ALIAS THAMBI ANNA:

232. He was arrested on 16-5-1992. The Superintendent of Police recorded a statement on 17-5-1992. Claiming that it is a concessional statement it was marked by the prosecution as Ext. P-139. But its admissibility was resisted on the ground that it does not contain any passage which incriminates him. We will just reproduce the contents of what he said in Ext. P-139.

233. In the year 1987, he and his wife with two children and his nephew left Sri Lanka and reached India. He had to get permission from LTTE for leaving Sri Lanka and Kittoo (LTTE leader) helped him in that regard. In the first week of May 1991, Sivarasan and A-2 (Santhan) sought his help to get an introduction to PW-62 (Vimla) – a teacher. He obliged them. Later A-2 met him and requested him to keep some good amount in safe custody. As he agreed to do so A-2 (Santhan) gave him ` 1.25 lacs on one occasion (which was about a week prior to the murder of Rajiv Gandhi) and on a subsequent occasion A-2 (Santhan) entrusted ` 3.20 lacs to him. About 4 days prior to Rajiv Gandhi murder A-2 (Santhan) collected ` 70,000/- from him and a week after the assassination A-2 collected ` 3.12 lacs from him and after some days the balance amount was also collected. A couple of days later A-8 Athirai visited him, by which time the photo of Sivarasan appeared in newspapers as having involved in Rajiv Gandhi murder case. Thereupon A-15’s wife resented any LTTE people visiting the house. A-15, in fact, asked A-2 (Santhan) as to why the photo of Sivarasan appeared in newspapers as involving in Rajiv Gandhi murder case. A-2 explained that there is nothing to worry about it.

234. The above are the important contents in Ext. P-139. It is needless to point out that the said statement is lacking any inculpative admissions. On the contrary, it is mostly exculpative. Even apart from that, prosecution could not adduce any tangible evidence against A-15 (Shanmugavadivelu), not even to doubt that he had any involvement in the conspiracy to murder Rajiv Gandhi. Of course, the conspirators would have found A-15 as a reliable person for keeping their money. We must not forget the fact that A-15 hailed from Sri Lanka and he got some help from LTTE people for going away from the island to India. The mere fact that A-2 (Santhan) had chosen A-15 as a safe person to keep money is hardly sufficient to conclude that he was involved in Rajiv Gandhi murder conspiracy.

A-16 RAVICHANDRAN AND A-17 SUSEENDRAN:

235. In dealing with the case against the above two accused we have necessarily to delink the offences under Sections 3(3) and 3(4) and 5 of TADA and Section 5 of the Explosive Substances Act and Section 3(1) of the Arms Act, for a certain obvious reason. It is an admitted fact that A-16 and A-17 were tried in another criminal case for the aforesaid offences read with Section 120-B of Indian Penal Code, inter alia, certain other counts of offences. A-16 and A-17 and a host of some other persons were arrayed in CC7 of 1992 before a Designated Court, Poonamallai, Chennai (Madras). As per judgment dated 23-1-1998 they were convicted of those offences and sentenced to varying terms of imprisonment. It is also an admitted fact that the said judgment has become final and the convicted persons involved therein have undergone the punishment period.

236. Shri N. Natarajan, learned senior counsel for A-16 and A-17 contended that those accused are not liable to be tried again for the said offences since the facts now stated by the prosecution were substantially the same as were involved in CC 7 of 1992. Shri Altaf Ahmad, learned Additional Solicitor General made a strong bid to show that as the said trial was not in connection with the assassination of Rajiv Gandhi the facts cannot be regarded as the same. We have no doubt that A-16 and A-17 cannot use the judgment in CC 7 of 1992 as a shield against the charge under Section 302 read with Section 109-B and under Section 212 of IPC. But the other offences found against them were based on the same facts of which they were tried for such offences of CC 7 of 1992. This can be discerned from the narration of facts in the aforesaid case.

237. Learned counsel for the accused had produced a certified copy of the judgment in CC 7 of 1992. A-16 (Ravichandran) in this case was arrayed as A-2 in that case and A-17 (Suseendran alias Mahesh) in this case was arrayed as A-13 in that case. Relevant portion showing the facts in that case appearing in paragraph 2 of the judgment is extracted here:

“A.1 to A. 32 together and in separate groups at various places such as Palaly, Jaffna in Sri Lanka, Coimbatore, Udumalpet, Pollachi, Madras, Vaniyambadi, Palani, Kaniyur, Dindigul and Pudukkottai conspired together and agreed to do illegal acts by illegal means like to form an armed force by name ‘Tamil National Retrieval Troop’ with an intention to overawe the Government established by law, cessation of Tamil Nadu from Indian Union and to strike terror in people and to exhort members of TNRT, to indulge in disruptive activities and make preparations for the same to fulfil their object, to achieve their object by procuring arms, ammunitions, bombs, wireless sets and other explosive substances, to loot police armouries in Tamil Nadu for the said purpose, to aid, abet, advice and knowingly render assistance for acts preparatory to terrorist and disruptive activities and to harbour terrorists and disruptionists and persons who conspire or attempts to commit or advocate, abet, advise or incite or knowingly facilitate the commission of a terrorist or disruptive activity, everyone did their best at different stages to achieve their common design.”

238. The period of the aforesaid activities, as involved in that case, covered between 1987 and end of 1991. Section 300(1) of the Code of Criminal Procedure contains the ban against a second trial of the same offence against the same person. Sub-section (1) reads thus:

“A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2), thereof.”

239. The well-known maxim ‘nemo debet bis vexari pro eadem causa” (no person should be twice vexed for the same offence) embodies the well established Common Law rule that no one should be put to peril twice for the same offence. The principle which is sought to be incorporated into Section 300 of the Procedure Code is that no man should be vexed with more than one trial for offences arising out of identical acts committed by him. When an offence has already been the subject of judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts.

240. Though Article 20(2) of the Constitution of India embodies a protection against second trial after a conviction of the same offence, the ambit of the sub-article is narrower than the protection afforded by Section 300 of the Procedure Code. It is held by this Court in Manipur Administration v. Thokehom Bira Singh, AIR 1965 SC 87 that “if there is no punishment for the offence as a result of the prosecution, Article 20(2) has no application”. While the sub-article embodies the principle of autrefois convict Section 300 of the Procedure Code combines both autrefois convict and autrefois acquit.

241. Section 300 has further widened the protective wings by debarring a second trial against the same accused on the same facts even for a different offence if a different charge against him for such offence could have been made under Section 221(1) of the Code, or he could have been convicted for such other offence under Section 221(2) of the Code. In this context it is useful to extract Section 221 of the Procedure Code.

“221. Where it is doubtful what offence has been committed.- (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.”

242. As the contours of the prohibition are so widely enlarged it cannot be contended that the second trial can escape therefrom on the mere premise that some more allegations were not made in the first trial. We have absolutely no doubt that the offences which we have indicated above were fully covered by the trial in CC 7 of 1992, and therefore the prosecution is debarred in this case from proceeding against A-16 and A-17 for the aforesaid offences. Consequently the conviction and sentence passed by the Designated Court as per the impugned judgment for offences under Sections 3(3), 3(4) and 5 of TADA and also Section 5 of the Explosive Substances Act as well as Section 3(1) of the Arms Act on A-16 and A-17 are hereby set aside.

243. Now, we have to consider the case of A-16 (Ravichandran) for the offences under Section 302 read with Section 120-B of IPC as a member of the criminal conspiracy to assassinate Rajiv Gandhi.

244. A-16 (Ravichandran) is a Sri Lankan citizen. He was arrested on 20-10-1991 in connection with Rajiv Gandhi murder case. The Superintendent of Police (CBI) has recorded a statement which is said to contain the confession made by A-16 on 14-2-1992. It is marked in this case as Ext. P-121. The incriminating statements, as for this case contained in Ext. P-121 can be extracted after excluding the facts which were the subject matter of CC 7 of 1992.

245. A-16 (Ravichandran) and his companion A-17 (Suseendran) reached India in December 1990. He met Sivarasan as instructed by him near Devi Theatre. A few days hence Sivarasan handed over to A-16 a sum of ` 1.5 lacs for buying any kind of vehicle for the use of LTTE movement. Sivarasan gave A-16 a contact number (2343402) for any urgent need which might arise. A-16 went to the house of A-10 Jayakumar at Kodingayoor along with Sivarasan and on his instructions went to the Airport at Madras to know how security arrangements were in force when a VIP arrived. A-16 reported to Sivarasan that the first gate of the old Airport could be used for sneaking in. A-16 reminded Sivarasan that three months have already elapsed after they reached India but still A-16 did not know the target. Sivarasan then replied:

“We need not go in search of the target but the target would come in search of us.” Sivarasan further assured A-16 that the crucial situation would arrive very soon.

246. The further incriminating statements in Ext. P-121 are the following:

Sivarasan asked A-16 to start a make-believe Travel Agency at Delhi. A-16 collected ` 2 lacs from Sivarasan and a few days later collected a further sum or ` 4 lacs for the said purpose. However, Sivarasan cautioned him to start the Travel Agency only after getting definite instructions from him. Pottu Omman (one of the topmost LTTE hardcore) supplied a particular code number to A-16 for transmitting wireless messages. They are:No. A.9 for A. 17, and No. P. O. 91 for Pottu Omman. On 1st or 2nd of May 1991, A-16 met Sivarasan near Shanti Theatre (Madras) as directed in a letter which he got from his aunt (Lokmatha). On 13th or 14th of May, A-3 (Murugan) reached the same place with a suitcase. In the presence of A-16 one of the LTTE petrel “Sokkan” asked A-3 (Murugan) “why the work of Sivarasan has not yet reached the target? and A-3 gave the following reply:

“why worry, it would take place and it must happen.” Thereafter A-16 kept silence without putting further questions.

247. On 20-5-1991, A-16 was in the house opposite to Shanmugham’s house. At 12.30 in the night the news that Rajiv Gandhi was killed was communicated to them. Then he and others left the place. Sokkan later told A-16 that death of Rajiv Gandhi was advantageous for LTTE movement.

248. The remaining portion of the confession in Ext. P. 121 relates to the joint activities of himself, Sivarasan, Suba and A-17. When much later he heard that Sivarasan and Suba died by consuming capsules he felt very sad. The rest of the statement relates to his continued contacts with Pottu Omman and other leaders of the LTTE.

249. If the aforesaid confession is true and reliable it can be treated as a safe foundation for resting a finding that A-16 was involved in the conspiracy to murder Rajiv Gandhi. True, A-16 did not divulge in so many words in that confession about the identity of the target of Sivarasan. But it is very clear from Ext. P-121 that A-16 knew about it. In December 1990, he was deputed to India to carry out the execution of an “important mission” and he was instructed to obey the direction of Sivarasan for that purpose. When he knew that Rajiv Gandhi was a target he wanted to get that confirmed from Sivarasan and that is why he asked Sivarasan in plain language – whether it was Rajiv Gandhi. The silence adopted by Sivarasan helped him to confirm it. All the activities done by him thereafter were in facilitation of the aforesaid common design. It has now to be considered whether the confessional statement made by A-16 has been corroborated in material particulars.

250. PW-206 (Lokmatha), the aunt of A-16, has said in her evidence that Sivarasan was found contacting A-16 in March 1991, and on another occasion Sivarasan entrusted one letter to her for handing over to A-16. The witness said that when the letter was given to A-16 he read it and immediately went out of the house. On 23-5-1991 Sivarasan again visited her house, but when he noted that A-16 was absent there he gave one more letter to the witness to be handed over to A-16. A couple of days thereafter PW-206 handed over that letter to A-16. He left the house and from the next day she found Sivarasan and A-16 in her house and both of them left together.

251. PW-217 is the husband of PW-206 and gave evidence substantially in tune with the version of his wife.

252. PW-133 (Karpagam) and her husband Shanmugham Sundaram (PW-208) said in their evidence that A-17 (Suseendran) visited them on 28-5-1991 along with Suba, and A-17 introduced her as his wife by name Mallagi whom he recently married. Both the witnesses believed that representation to be true and thought that a wedding gift should be presented to them. They purchased a wrist watch and gave it to A-17 as wedding present. Later A-17 and Suba paid ` 1000/- as price of the wrist watch saying that they were in need of it. They stayed in the house of those witnesses. In their evidence they said that on 2-6-1991 Sivarasan together with A-16 visited A-17. Later the witness saw the photo of Suba in the newspaper connecting her with Rajiv Gandhi murder. When A-17 was asked about it he first denied it and later admitted it and said that her name was Suba. However, A-17 gave a warning to both the witnesses not to disclose such things to anyone else.

253. Ext. P-149 is the diary of Sivarasan in which there is an entry showing that Sivarasan met A-16 near Devi Theatre. PW-56 (Utham Singh) said that he was running a grocery shop under the caption “Ebenezer Stores” at Porur. The telephone number of his Stores is 2343402. The witness said that some Sri Lankans who were residing nearby were availing themselves of the said telephone facility for calling outside. He mentioned Sivarasan, A-2 (Santhan), Kanthan etc. among those who used the telephone. It was the said number which Sivarasan had supplied to A-16 as a contact number.

254. Ext. P-411 dated 16-6-1991, Ext. P-417 dated 19-6-1991, Ext. P-419 dated 20-6-1991 and Ext. P-423 dated 21-6-1991 are all wireless messages sent by Pottu Omman. Those messages contain exhortations that A-16 should help Sivarasan to escape to Sri Lanka.

255. The above items of evidence which corroborate the confessional statement of A-16, give us confidence to believe that Ex. P-121 is a true version of A-16’s involvement in Rajiv Gandhi’s murder. So it can safely be concluded that A-16 was also a member of the criminal conspiracy.

256. As for A-17 a confessional statement is attributed to him claiming that it was recorded under Section 15 of the TADA (Ext. P-123). Here also we have to exclude those portions which relate to the offences covered by CC 7 of 1992. The remaining incriminating statements in Ext. P-123 are the following:

In December 1990, he met Sivarasan. Pottu Omman asked him to go to Tamil Nadu. He went to Madras and met A-16 at Marina Beach (Madras) and A-16 asked him to recruit more people to LTTE. He then set out on a tour to Pollachi, Coimbatore, Palani, and reached Madras on 26th May, 1991. He met A-16 at Madras. When he met Sivarasan at Thiruvallur Bus Stand (Madras) Suba was introduced to him. They all went to Trichi.

257. A-17 has further said that he went with A-16 and Suba to Pollachi where he and Suba stayed in the house of PW-208 by pretending that Suba was his wife called Mallagi and Sivarasan was her brother.

258. It is not necessary to reproduce the further portion of the confessional statements as they relate to the efforts to save Sivarasan and Suba. We have no doubt that A-17 would have got information as to how Rajiv Gandhi was murdered at least when he met Suba and Sivarasan. But there is nothing in the confessional statement to indicate that he knew it at any time before the assassination. Nor is there any material which points to A-17’s knowledge prior to 21-5-1991 about Sivarasan’s target. Of course Ext. P-121 and the evidence of PW-206, PW-217, PW-133, PW-208 and PW-181 as also the recovery of the walkie-talkie as per Ext. 1172 would show that A-17 was actively helping Sivarasan and Suba to escape from the clutches of law. But that is not enough to credit him with the advance knowledge of Rajiv Gandhi’s murder. It is equally possible that he, on coming to know of the predicament of LTTE personnel like Sivarasan and Suba, would have developed a desire to help them. But that is not enough to conclude that he had prior knowledge that Rajiv Gandhi would be murdered.

A-18 PERARIVALAN ALIAS ARIVU:

259. He was aged 20 during the relevant period. He is the son of a Tamil poet called “Kuyildasan”. He was arrested on 18-6-1991 in connection with the murder of Rajiv Gandhi. PW-52 (Superintendent of Police, CBI) has recorded a confessional statement attributed to him. It is marked as Ext. P-87.

260. The following inculpatory passages in Ext. P-87 are said to be the confessions made by him:He had close association with LTTE people from 1989 onwards. He was selling LTTE publications such as “Tamil Eelam” and “Urumal”. While he was in Sri Lanka he had an opportunity to meet Veluppillai Piribhakaran and other leaders of LTTE. The former sought A-18’s help for LTTE services. It excited him. When he learnt that Tamil people in Sri Lanka were suffering a lot due to the attrocities committed by IPKF he developed a vengeful attitude towards Rajiv Gandhi. In the second week of October, 1990 he and A-19 (Irumborai) reached India by boat along with some other LTTE people. From February, 1991 onwards he was residing with A-20 (Bhagyanathan) in a house at Roypetta, Madras. A-3 (Murugan) was also staying there. In March 1991, A-18 accompanied A-3 (Murugan) to Vellore for preparing a sketch of the Fort because LTTE prisoners were interned there. Blasting of Vellore Fort for rescuing LTTE prisoners was one of the programme of LTTE in India.

261. In the further portion of Ext. P-87 it is stated that Kanthan, Sivarasan and Nixon were visiting A-3 (Murugan) occasionally and from their conversation A-18 understood that they were planning to carry out a very dangerous task. A-18 had his own persons to think that the target of the said dangerous task was Rajiv Gandhi. In fact, Sivarasan asked him in April 1991 whether A-18 could work in unison with him and then A-18 agreed to do so. After this Sivarasan went to Sri Lanka.

262. After Sivarasan came back from Sri Lanka he asked A-18 to get a large sized car battery and some clips etc. A-18 bought a battery from a shop near LIC Building at Madras by giving a false name “Rajan” and a false address. He bought some wire and other accessories from another shop near Midland Theatre. A-18 took Sivarasan to a motor shop on 4-5-1991 and bought a motorcycle in his own name but giving a wrong address. He also bought two batteries (9-Vole Golden Power Battery) and handed them over to Sivarasan for using to blast bomb.

263. On 7-5-1991 he attended the public meeting addressed by V. P. Singh at Madras along with Suba, Thanu, A-3 (Murugan) and A-1 (Nalini). He bought a multimeter from a shop at Richie Street, Mount Road, Madras as Sivarasan wanted them.

264. He further confessed that on 20-6-1991, he went to A-20 Bhagyanathan’s house. There he found Sivarasan, A.1 (Nalini), A.3 (Murugan) and Haribabu. Sivarasan divulged to them about the public meeting which Rajiv Gandhi might address on the next day. A-18 (Arivu) thereupon gave a colour film (Kodak) to Haribabu.

265. On 21-5-1991, A-18 (Arivu) and A-20 (Bhagyanathan) went to see a film at 9.30 p.m. While returning he came to know that Rajiv Gandhi was murdered. So on the next day he packed up his things including TV and VCR and kept them in the house of a friend of him. On 23-5-1991, Sivarasan met him and gave full details of the incident in which Rajiv Gandhi died. Sivarasan conveyed to them that Haribabu also died in the bomb-blast. Sivarasan then asked A-18 (Arivu) to make all efforts to retrieve the dead body of Haribabu.

266. As days passed A-18 (Arivu) felt that he would be caught by the police. He therefore left his friends and stayed with his parents at Jolarpet. It was during the said period that Sivarasan’s photo was published in the newspapers connecting him with Rajiv Gandhi’s murder.

267. If the above incriminating portions in Ext. P-87 can be relied on as true confession they would uphold the prosecution case for convicting A-18 of criminal conspiracy to murder Rajiv Gandhi.

268. One of t he contentions raised against the said concession is that A-18 (Arivu) was not given any time for reflection after eliciting that he was prepared to give a confession. But a perusal of the proceedings which led to the recording of Ext. P-87 shows that on 14-8-1991 preliminary questions were put to him by PW-52 (Superintendent of Police, CBI) but no confession was recorded on that date. It was on 15-8-1991 that PW-52 called him again. Even from the first question put to A-18 (Arivu) it is clear that the interval was intended to afford a period of reflection for A-18. The Superintendent of Police, CBI (PW-52) has also said the same thing in his evidence. In such a situation there is no scope for contending that A-18 was not afforded sufficient opportunity for reflection.

269. It seems there are lot of circumstances to assure the truth of the statements in Ext. P-87.

270. M.O. 49 is the sketch of the Vellore Fort which is said to be prepared by A-18 (Arivu). PW-75 (Basant Kumar – a freelance artist) has said in his evidence that he was engaged by LTTE people for printing books. He said that A-18 met him in February 1991, and gave him certain telephone numbers. One was that of Kittoo who was then in London. It was intended for effecting payments regarding the printing charges. The witness further said that A-18 gave him a letter of Veluppillai Piribhakaran in which receipt of the books printed by him was acknowledged. By the beginning of May 1991, A-18 took this witness to Trichi and introduced him to A-2 (Shanthan). The witness further said that A-18 was found fuming with hatred towards Rajiv Gandhi for the attrocities which IPKF committed in Sri Lanka. On 10th May, 1991, A-18 went to this witness’s house with Sivarasan. We have no reason to disbelieve the above testimony of PW-75.

271. PW-23 (Bharathi – a nurse) is the sister of A-20 (Bhagyanathan). She said in her evidence that A-3 (Murugan), A-18 (Arivu) and A-20 (Bhagyanathan) were staying in the same house. M.O. 286 – a diary of Sivarasan contains the entry regarding the amount paid to A-18.

272. PW-149 (Latha) said that she had acquaintance with LTTE people through A-20 (Bhagyanathan). She identified A-18 as one of the LTTE strong men. The witness said that she saw A-18 (Arivu) and A-20 (Bhagyanathan) conversing with each other at the press where this witness was working.

273. PW-91 (Moideen) is a salesman in Hindustan Training Company, Roypetta High Road, Madras. He said in his evidence that during second week of May, 1991, A-18 (Arivu) had purchased two batteries from his shop. He mentioned a reason for remembering that it was A-18 who purchased the batteries. Whatever be the reason, the fact remains that it was on the strength of the information supplied by A-18 that the Investigating Officer (PW-266 Venkateswaran) came to know of PW-91’s shops. The inference is therefore irresistible that A-18 would have pointed out the shop and PW-91 the salesman as the person from whom A-18 had purchased two “9-Volt Golden” batteries.

274. In this context it is significant to note that a little portion of one battery was recovered from the place of occurrence. When that was tested at the Forensic Laboratory it was found to be the portion of a 9-Volt golden battery.

275. Another item of evidence to corroborate the confession of A-18 is the further portion of the testimony of PW-266. The witness said that from the interrogation of A-18 he came to know of PW-88 (Dalip Chodia) who is dealer of a firm called “International Tyre Service” at Mount Road, Madras. The copy of a Cash Bill was proved through PW-88 as Ext. PW-447. It is in respect of a Bill issued in the name of one Rajan, Door No. 6, Lady Madhavan Street, Mahabalipuram, Madras. The Bill is in respect of selling an Exide Battery No. EM-3878.

276. PW-281 (M. Narayanan) is the Deputy Superintendent of Police, CBI. He said in his evidence that when he interrogated A-18 on 2-8-1991, he got the information that LTTE books and literature and cassettes were kept by A-18 in the house of PW-210. Pursuant to the said information 49 items were recovered from the said house. Ext. 1344 is the Mahassar prepared for that purpose. It contains the list of the articles which is consistent with the statement made by A-18.

277. We have no reason to disbelieve or reject the above items of evidence. It is not necessary to refer to yet other items of evidence which prosecution has presented for corroborating the confessional statement of A-18 (Arivu) because even with the help of those which we have adverted to above we are satisfied that A. 18’s confession in Ext. P-87 has been corroborated in material particulars.

278. We therefore reach the conclusion that A-18 (Arivu) was actively involved in the criminal conspiracy to assassinate Rajiv Gandhi.

A-19 IRUMBORAI:

279. Irumborai is an Indian citizen. His original name was Duraisingam. After he joined the Rationalists’ Organisation of Dravida Kazhakam he changed his name as Irumborai. In a meeting of Dravida Kazhakam held in 1985 a resolution was adopted to give full support to the Tamil liberation movements in Sri Lanka.

280. A-19 (Irumborai) was arrested on 9-10-1991. The most important item of evidence placed by the prosecution against him is Ext. P-117 which is a statement recorded by PW-52 (Superintendent of Police, CBI) on 3-12-1991 under Section 15 of TADA which is said to be a confessional statement. No doubt Ext. P-117 contains inculpatory statements about A-19 trying to screen the offenders in Rajiv Gandhi murder case and to harbour some of them. But on the crucial question whether he was a party to the conspiracy to assassinate Rajiv Gandhi, following portion of the statement would throw light.

He was in contact with A-2 (Santhan), Suresh Master and some other leaders of LTTE. In the second week of May 1991 he went to Trichi as per the instructions of Suresh Master is leader of LTTE) and collected an amount of ` 15,000/- from A-2 (Santhan) to be delivered over to Suresh Master. Then he was told by A-2 (Santhan) that LTTE was making arrangements to kill “an important leader quickly.”

281. It is clear that A-19 (Irumborai) did not then understand who that leader was because A-19 then asked A-2 (Santhan) whether that leader could be “Vazhappadi”. A-2 (Santhan) in his answer did not confirm it or deny it but expressed ignorance about the identity of the person and also about the manner by which it was to be accomplished. A-19 (Irumborai) further said in the confessional statement that when he heard the above answer from A-2 (Santhan) he did not talk with anybody else on that subject. He also said that he knew that Rajiv Gandhi was murdered in a bomb blast only on 22-5-1991. On hearing the news he became frightened.

282. The rest of the confessional statement relates to the help rendered by him to Sivarasan, Suba, Nehru, Vicky etc. to hide themselves from police catch.

283. Thus it is not discernible from the confessional statement whether he knew that Rajiv Gandhi was going to be murdered. But his own thinking was that it was Vazhappadi (a local leader of Tamil Nadu) who was the target. When that doubt was eliminated there is no material to show that he knew that the target of the plotters was Rajiv Gandhi. Prosecution relies on a letter which Trichy Santhan (a top ranking LTTE personnel) had written to A-19. That letter is dated 7-9-1991 and is marked as Ext. P-128. (It is not necessary to embark on a discussion regarding the proof of Ext. P-128 – letter written by Trichy Santhan, as the defence counsel has agreed that it can be taken as proved). In Ext. P-128 an advice seems to have been given to A-19 (Irumborai) like this:

“Don’t say that Rajiv incident was known before.”

284. It is admitted that Trichy Santhan died later. Prosecution wants to press into service the aforesaid advice of Trichy Santhan to prove that as a matter of fact A-19 knew about Rajiv Gandhi incident earlier and that is why he was advised not to say so.

285. There are two hurdles before we take up that piece of evidence into consideration. First is that it was a statement made by a person who is now dead. It does not relate to any transaction of the circumstances which resulted in his death. So the statement would not fall within the ambit of Section 32 of the Evidence Act. Second is that if the statement has to be brought within the ambit of Section 10 of the Evidence Act the precondition has to be satisfied that we must have reason to believe that A-19 and Trichy Santhan were members of the conspiracy to murder Rajiv Gandhi. Even assuming that the said statement can be brought under Section 10 of the Evidence Act, the question is – will it be a conclusive inference therefrom that the sender of the letter knew that fact earlier? It could be an advice given to A-19 (Irumborai) that he should not loosely talk that he knew about Rajiv Gandhi’s murder earlier. It does not necessarily mean that A-19 (Irumborai) knew it earlier.

286. Even taking the alternative interpretation, the worst is that the sender of the letter (Trichy santhan) would have believed that the sendee had advance knowledge of Rajiv Gandhi’s murder. Could it not have been possible for A-19 to clarify to Trichy Santhan that there was no need to give such an advice because he in fact did not know about it earlier.

287. In whatever way it is looked at we have difficulty to credit A-19 (Irumborai) with the advance knowledge of Rajiv Gandhi’s murder on such a fragile material.

288. We are therefore inclined to extend to A-19 the benefit of reasonable doubt regarding his involvement in the conspiracy for assassinating Rajiv Gandhi though we are fully satisfied that he was involved in helping the offenders to escape from police.

A-20 BHAGYANATHAN:

289. Bhagyanathan is an Indian citizen. He is the brother of A-1 (Nalini) and son of A-21 (Padma). During the relevant period he was aged 25. He has passed B.Com. degree examination. He and his mother were residing in the Nurses Quarters of “Kalyana Nursing Home,” Madras where his mother was working. His father was a Sub-Inspector of Police.

290. He was arrested on 10-6-1991 in connection with Rajiv Gandhi murder case. PW-52 Superintendent of Police, CBI recorded a statement from him which is marked as Ext. P-69. Prosecution wants to treat it as a confessional statement recorded under Section 15 of the TADA. The following are said to be the inculpative statements in Ext. P-69.

291. In 1988, A-20 (Bhagyanathan) got himself acquainted with Muthuraja who was an important person in LTTE and they became friends. Through him A-20 secured friendship with Baby Subramaniam – another LTTE senior leader. A-20 was allured to LTTE movement by Muthuraja. In course of time he became friendly with A-18 (Arivu). Muthuraja arranged a press to be transferred to A-20 and he agreed to print LTTE publications at that press.

292. According to A-20, he and his family shifted the residence to a house at Roypetta on 26-1-1991. He accommodated A-3 (Murugan) also to stay in the said house as Muthuraja requested him to do so. His mother raised objections to the said accommodation but he prevailed upon her to agree. Muthuraja went back to Sri Lanka in February 1991.

293. The further contents in Ext. P-69 are that A-3 (Murugan) brought Sivarasan to the house of A-20 in the month of April 1991. He sent a letter to Baby Subramaniam on 9-5-1991 offering full co-operation for the cause of Tamil liberation in Sri Lanka. The letter was sent per A-3 (Murugan). On 20-5-1991, Haribabu visited the house of A-20 at Roypetta. A Kodak film was obtained from Arivu and A-20 gave it to Haribabu.

294. Regarding the activities on the day of assassination of Rajiv Gandhi A-20 (Bhagyanathan) has stated in Ext. P-69 that on 21-5-1991 A-18 (Arivu) and himself went to the house of Muthuraja. A-18 who returned to the house at 9.30 p.m., after seeing a cinema show, came to know of Rajiv Gandhi’s murder. The other confessions in Ext. P-69 are that on 23-5-1991 Sivarasan reached the house and informed them that Haribabu also died; and on 24-5-1991, A-20 (Bhagyanathan) compelled his mother to go along with Sivarasan, Suba and A-1 (Nalini) to Tirupaty. The confession shows that A-20 (Bhagyanathan) destroyed LTTE stickers which remained with him. When he saw the photo of Sivarasan in the newspapers connecting him with Rajiv Gandhi’s murder case A-20 became very much bewildered.

295. The above statement of A-20 (Bhagyanathan) cannot be taken as a confession. He did not know that Rajiv Gandhi was going to be assassinated. He did not say anything in Ext. P-69 which would have at least impliedly connected him with Rajiv Gandhi’s murder or the conspiracy. He was, of course, a strong sympathiser of LTTE.

296. Even assuming that the statement recorded in Ext. P-69 is a confessional statement there is no confession that A-20 ever knew that Rajiv Gandhi was going to be assassinated.

297. One of the materials which prosecution has pressed into service as a circumstance involving A-20 (Bhagyanathan) with the conspiracy is Ext. P-128 letter which is said to have been written by Trichy Santhan to A-19 (Irumborai) on 7-9-1991. We have already discussed about the proof of that letter and so we proceed on the assumption that the letter was written by Trichy Santhan. The following passage in the letter is made use of by the prosecution as against A-20 (Bhagyanathan):

“Speaking about the mistakes of Raghuvaran’s people like Arivu, Baby Anna Press, Haribabu and Subhasundaram, such things would not have occurred if our own people were utilised as was done in the case of Padmnabha.”

298. It is not disputed that the reference to Raghuvaran means Sivarasan, Baby Anna means A-20 (Bhagyanathan), Subha-sundaram means A-22 and Arivu means A-18.

299. The first question is how far is that reference in Ext. P. 128 admissible as against A-20. The writer of that letter Tichy Santhan is now no more. The letter does not spent to any transaction of the circumstances which resulted in his death. Nor has the cause of his death come into question in this case. Hence, the said reference cannot fall under the purview of Section 32 of the Evidence Act.

300. But the greater effort made was to bring it within the ambit of Section 10 of the Evidence Act. The primary condition to invoke the said section is the existence of “reasonable ground to believe” that Trichy Santhan and A-20 (Bhagyanathan) had conspired together to commit an offence. When the very question whether A-20 was a party to the conspiracy, is being considered the aforesaid primary hurdle forecloses the use of the contents of Ext. P-128 as against A-20 (Bhagyanathan).

301. Barring the above materials we are unable to find that A-20 was party to the conspiracy to murder Rajiv Gandhi.

A-21 PADMA:

302. She is the mother of A-1 (Nalini) and A-20 (Bhagyanathan). As pointed out earlier she is a nurse. She was arrested on 10-6-1991 in connection with Rajiv Gandhi’s murder.

303. We may say at the outset, regarding A-21 (Padma), that it is very unfortunate that she too was convicted as a conspirator in Rajiv Gandhi murder case and was sentenced to hanging. We are unable to find anything which involves her in the conspiracy. Of course there is some evidence to show that A-21 (Padma) is privy to accommodate some of the offenders in Rajiv Gandhi murder case. At the most she is liable to be convicted of that offence.

304. Ext. P-73 is said to be a confessional statement given by PW-21 on 7-8-1991 and that too was recorded under Section 15 of the TADA. A-21 is said to have confessed the following:

Muthuraja brought A-3 (Murugan) to her house in February 1991. A-21 (Padma) was not willing to accommodate him in the house. But she was prevailed upon by A-3 (Murugan) not to raise any objection. A-3 (Murugan) used to help the family with money. Sivarasam was brought to her house by A-3 in March or April 1991. On 20-5-1991, Sivarasan brought Suba and Thanu to her house. Till then they were in the house of A-1 at Villivakkom. Some medicines were given by A-21 to Thanu as she had a sprain on the leg.

305. A-21 (Padma) has further said in Ext. P-73 that in the morning of 21-5-1991 she went to her Nursing Home as usual and returned in the evening. Late in the night she came to know of the assassination of Rajiv Gandhi when A-18 and A-20 told her about it.

306. In the further portion of Ext. P-73 she has stated that on 23-5-1991, she came to know from her daughter (A-1 Nalini) the details of the killing of Rajiv Gandhi at Sriperumpudur. According to A-21 she became frightened on hearing the said information and at the same time she started worrying about her daughter (A-1 Nalini) and her son-in-law (A-3 Murugan). When the photo of Thanu appeared in the newspapers A-21 (Padma) started entertaining a fear that she too would be embroiled in the case.

307. The above is the substance of her statement in Ext. P-73. A reading of it would show that A-21 had no inkling whatsoever that Rajiv Gandhi was going to be murdered. Of course, as a mother it was a concern for her when she knew that her daughter (A-1) and her son-in-law (A-3) were wanted by the Police in connection therewith.

308. The only inculpative statement in Ext. P-73 is that she harboured the offenders in her house after coming to know that they were involved in the murder of Rajiv Gandhi. She is liable to be convicted of that.

A-22 SUBHA SUNDARAM:

309. He is a photographer. He was running a Photo Studio by name “Subha News Photo Service” at Madras. Haribabu was a cameraman attached to the said Photo Studio. (Haribabu died along with Thanu during the bomb blast at Sriperumpudur.) No confessional statement was elicited from A-22 which could be used under Section 15 of TADA. Hence prosecution had to depend upon certain circumstances alone for establishing the charge against him. Such circumstances are the following:

(1) Ext. P-544 is an article prepared by A-22 on 5-8-1989. (It was written in the handwriting of PW-116 – Girija Vallabha on the dictation given by A-22). Ext. P-544 contains a scathing criticism of the activities of IPKF in Sri Lanka.

(2) The camera which Haribabu carried to the scene of occurrence belonged to A-22.

(3) On 22-5-1991, A-22 told some others that he and Haribabu met together on 21-5-1991. (PW-108 Santhana Krishna), PW-120 (Sundaramony) and PW-151 (Ravisankaran are the witnesses who spoke about it.)

(4) When a search was conducted by the police in the Photo Studio of A-22 on 5-6-1991. LTTE literature and cassettes were recovered. Ext. P-1354 is the Search List prepared then.

(5) In a letter which Trichy Santhan wrote to A-19 (Irumborai) on 7-9-1991 (Ext. P-128) he criticised the supporters of Sivarasan. Among such supporters the name of A-22 was mentioned by Trichy Santhan.

(6) PW-172 (Ramamurthy) another photographer who happened to be at the place of occurrence said in his evidence that A-22 asked him whether he could have brought back the camera of Haribabu from the scene of occurrence.

(7) PW-205 (Smt. Parimalam) a cousin of Haribabu said that she got a phone call in the name of A-22 advising her to remove all the papers and cassettes from the house of Haribabu.

(8) PW-258 (Vazhappari Ramamurthy) said that A-22 told him on 23-5-1991 and also on 27-5-1991 to enquire about the camera which Haribabu carried to Sriperumpudur.

(9) A-22 persuaded the father of Haribabu to issue a press statement that Haribabu had no knowledge in Rajiv Gandhi murder case. In fact A-22 drafted that statement for the witness.

The trial Court found that all the above 9 circumstances were proved and are reliable. On that basis the Special Judge further found that A-22 was a member of the conspiracy, and that he had harboured the offenders. Learned counsel for A-22, contended that even if all the above circumstances are found to be legal evidence it would not form a complete chain for the Court to draw any conclusive inference.

310. We too are of the definite view that the aforesaid circumstances, even if all of them are assumed to be legal evidence, would hardly be sufficient to prove the involvement of A-22 in the conspiracy to murder Rajiv Gandhi.

311. That apart, if the circumstances are individually analysed, many of them cannot be treated as incriminating circumstances at all. A-22 would have been a critic of IPKE activities in Sri Lanka. He would have been a sympathiser of LTTE movement. Those two premises are discernible from the aforesaid circumstances.

312. Of course there is one circumstance which, if found reliable, would be incriminating to A-22. It was spoken to by PW-205 (Parimalam) that A-22 phoned her up and advised her to remove the incriminating articles from the house of Haribabu. But the difficulty regarding that evidence is, PW-205 (Parimalam) never knew A-22 and she had never heard his voice earlier. So her evidence is hardly sufficient for holding that A-22 called her over the phone. Anybody else could have called her in the name of A-22.

313. Most probably A-22 was the owner of the camera which Haribabu took to Sriperumpudur. So A-22’s concern was to get his valuable property back. He would have sought the help of others for that purpose. The conduct of A-22 can only show that he evinced much interest for securing his property. But that can hardly be a circumstance which is consistent only with the guilt of the accused.

314. We cannot therefore concur with the finding of the trial Court that A-22 was a member of the conspiracy to assassinate Rajiv Gandhi.

A-2 DHANASEKARAN alias RAJU:

315. He was arrested on 13-10-1991 in connection with Rajiv Gandhi’s murder. He was conducting a Motor Transport Company at Tuticorin. Ext. P-11 is the record containing his statement which PW-52 (Superintendent of Police, CBI) recorded on 4-11-1991. It is sought to be used as his confessional statement.

316. But the difficulty with Ext. P-11 is, it shows clearly that A-23 had absolutely no knowledge about the murder of Rajiv Gandhi. The following passage in Ext. P. 113 would bear testimony to it:

“On 21st May, I was in my house at Mettur. Then only I heard the news that Rajiv Gandhi died due to bomb explosion at Sriperumbudur. The news was flashed through papers and television. Later, I came to know that LTTE organisation is the main cause for that assassination and Sivarasan, Subha and Thanu were involved in that murder.”

Of course, his statement thereafter in Ext. P-11 shows that he too was involved in helping the offenders to escape. It is not necessary to refer to those passages in Ext. P-113 because learned counsel for the accused has fairly conceded that he is not attacking the finding of the trial Court regarding the offence under Section 212 of the I.P.C.

317. One circumstance which the trial Court used against A-23 is that he purchased a Maruti Gypsy (M.O. 540) on 14-11-1990. There is evidence to prove that fact. There is also evidence to prove that the said vehicle was used by Sivarasan, Suba and others for moving from one place to other, but all such travels were subsequent to the assassination of Rajiv Gandhi. The trial Court concluded on the strength of the aforesaid evidence like this:

“Thus M.O. 540 Maruti Gypsy purchased in November, 1990 in Salem before the assassination of Rajiv Gandhi was used by A-24, and Sivarasan, Subha and A-26 and other accused, after the assassination of Rajiv Gandhi. The close association between these accused is thus proved by the prosecution beyond doubt. Purchase of M.O. 540 Maruti Gypsy and its subsequent use by the members of the conspiracy also proves the involvement of A-23 in the accomplishment of the object of conspiracy.”

318. The aforesaid leap jump to such a conclusion is impermissible and contrary to the well established principles governing circumstantial evidence. We therefore dissent from the trial Court’s conclusion regarding A-23’s involvement in the conspiracy to murder Rajiv Gandhi.

A 24 RAJASURIYA alias RANGAN:

319. He is a Sri Lankan citizen. He was aged 27 during the relevant time. He was arrested on 29-8-1991 in connection with Rajiv Gandhi murder. PW-52 (Superintendent of Police, CBI) recorded his confessional statement on 23-10-1991 as per Section 15 of TADA. It is marked as Ext. P-109.

320. A-24 (Rangan) has stated in Ext. P-109 that he was working for LTTE in Sri Lanka and he reached India in 1989 and that he stayed at Thiruvanniyur. He was conducting a Travel Agency business without obtaining the required permission for it. He said that he was making fake travel documents for his clients and he was closely associated with LTTE movement in India. He further stated that in April 1991, he got acquainted with Trichy Santhan and Suresh Master and A-18 (who were all senior leaders of LTTE). A-24 (Rangan) was given an assignment to look after the injured LTTE fighting men. In Ext. P-109 he further said that in May 1991 he was asked by Suresh Master to arrange transportation of LTTE men to different places. But A-24 did not say that he had any knowledge about Rajiv Gandhi’s murder before the assassination took place. In June 1991, A-24 himself gave hospitality to Sivarasan, Suba and Suresh Master and thereafter they were helped to escape by a Tanker Lorry.

321. It is not necessary to extract the further portion in the confessional statements as they contain his admissions regarding the activities which he carried on for helping Sivarasan and others to escape from police nabbing. We have no doubt that A-24 had harboured the offenders and helped them to escape from the police net.

322. But regarding the crucial fact whether A-24 had any involvement in the conspiracy to assassinate Rajiv Gandhi, the confessional statement is of no help because it does not even indicate that he had any prior knowledge about the same.

323. PW-65 (Mridula) is the wife of A-26 (Ranganath). She said in her evidence that on 2-8-1991 her husband brought A-24 and some other persons who are accused in the Rajiv Gandhi murder case. Suba was also among such persons. On the next day, a green Maruti Gypsy van reached their house. When she viewed the television programme she knew that Sivarasan and Suba were wanted by the police in connection with the aforesaid case. PW-230 (Selvaraj) was the person who drove the Tanker Lorry. PW-22 (Sathyamoorthy) said that on 8-8-1991 A-24 brought a Maruti Gypsy for painting. The witness painted it with white colour.

324. The above items of evidence would also help in finding that A-24 was actively helping the accused to escape from the police. Learned Additional Solicitor General argued that considering the fact that he was an active LTTE votary and also considering his activities during the post assassination days it is possible to draw an inference that he too was involved in the conspiracy to murder Rajiv Gandhi.

325. Such an inference is not a necessary inference, for, it is equally possible to think that A-24 being an active LTTE votary, would have decided to help other LTTE people to escape from the police clutches though he knew about their involvement in the assassination of Rajiv Gandhi only after he himself came to know that the former Prime Minister was assassinated.

A-25 VIGNESWARAN alias VICKY:

326. He is a Sri Lankan citizen. He was aged 28 during the relevant period. He was, by profession, a cleaner of vehicles. He was arrested on 4-2-1992 in connection with Rajiv Gandhi murder case. A statement was elicited from him on 24-2-1992 which has been marked as Ext. P. 127. Prosecution treated it as a confessional statement under Section 15 of the TADA.

327. A-25 (Vicky) has admitted in Ext. P-127 that he was working for LTTE movement from 1985 onwards. He moved to India when his house was destroyed by Sri Lankan Army in 1987. He was acquainted to Trichy Santhan by middle of 1990. Another LTTE member called Dixon was introduced to him. When he was staying in Trichy he was doing some business in medicines for which Trichy Santhan extended financial help to him.

328. In the further portion of Ext. P-127 he has stated that 2 days after the murder of Rajiv Gandhi he was told by Trichy Santhan not to venture to stay in Trichy any more. Hence he decided to shift to Coimbatore and agreed to take over all the medicines for which Trichy Santhan had placed orders. He came to know of Sivarasan only after the newspapers published the photo of that person though he had seen him before.

329. The rest of the statements in Ext. P-127 contain clear admissions of the activities of A-25 (Vicky) for helping Sivarasan, Suba etc. to escape from the police. However, there is absolutely no statement of him in the document which could be used to involve him in the conspiracy to murder Rajiv Gandhi. Apart from his role in helping some of the accused who were wanted by the police in Rajiv Gandhi murder case there is no evidence to suggest that A-25 (Vicky) had even knowledge that Rajiv Gandhi would be murdered by anyone whom he knew.

330. The trial Court, after referring to various items of evidence, concluded in paragraph 2373 of the judgment that “A-25 was also instrumental in the transportation of Sivarasan, Suba and Nehru from Madras to Bangalore in M.O. 543 Tanker Lorry driven by PW-230 Selvaraj.” It is a conclusion which needs no interference.

331. But thereafter learned Special Judge proceeded to mention that A-25 identified the photo of the Tanker Lorry and also the photos of Sivarasan, Suba and Nehru and even the photos of dead body of Suba, Suresh Master and Sivarasan. The trial Court adverted to his association with Trichy Santhan. After making reference to such facts learned Special Judge made a long leap to reach the next conclusion like this:

“All the above evidence and circumstances would go to establish the active part played by A-25 in consonance with the directions of Trichy Santhan in furtherance of the object of the conspiracy.”

332. We are unable to uphold the second conclusion regarding A-25 (Vicky) for want of any evidence and also for the reasons set out by us in the preceding paragraphs.

A-26 RANGANATH:

333. The trial Court at the close of the discussion of evidence against A-26 has entered the following finding in paragraph 2419 of the judgment:

“From the foregoing discussion and analysis of evidence proved by the prosecution it has to be concluded that A-26 harboured Sivarasan and Suba, who were proclaimed offenders and the other accused A-24 Rangan, Nehru, Suresh Master, Driver Anna and Amman in his house at Puttanahalli and subsequently at Konanakunte voluntarily and willingly without any fear to his life.”

334. The above is the only finding on facts which the learned trial Judge appears to have made regarding the role of A-26. Thereafter no discussion is seen made about his activities. But learned Judge had held in paragraph 2451, that A-26 is also guilty of the offence under Section 120-B read with section 302, I.P.C. and rest of the offences included in the charge.

335. We have no difficulty to concur with the finding of the trial Court that A-26 (Vicky) is guilty of offences under Sections 212 and 216 of the Indian Penal Code. In this context we may point out that PW-65 is the wife of A-26 and apart from her evidence the testimony of PW-218 (Anjanappa), PW-223 (Rajan) and PW-229 (Jayasankar) were read out to us. In the trial Court a plea was made on behalf of A-26 that he is protected by Section 94 of the Indian Penal Code. We do not think it necessary to advert to that plea now in view of the concession made by the learned counsel for A-26 that the appeal as for A-26 is not pressed regarding the offences under Sections 212 and 216 of the I.P.C. because the accused concerned had already undergone the sentence of imprisonment awarded by the trial Court as for those two counts.

336. But at the same time we have to point out that there is absolutely no evidence whatsoever for connecting A-26 with the conspiracy to assassinate Rajiv Gandhi. In fact, the prosecution did not even bother to establish that A-26 had no knowledge that anybody would be plotting to murder Rajiv Gandhi. It is very unfortunate that the trial Court has convicted A-26 also of the offence under Section 120-B read with Section 302, I.P.C. and sentenced him to be hanged.

337. Now, we come to the stage of deciding who are all liable to be convicted and of which offences. We may point out that learned counsel for the accused submitted at the Bar that it is not worthwhile, at this distance of time, to press the appeal of the appellants as against the conviction under Sections 212 and 216 of I.P.C., Sec. 14 of the Foreigners Act, Sec. 6(1-A) of Wireless and Telegraphy Act, 1933, Sec. 3 of the Wireless Act and Sec. 5 of the Explosive Substances Act as well as Sec. 12 of the Passports Act.

338. For the reasons set out in the preceding paragraphs of this judgment we confirm the conviction of the offence under Sec. 120-B read with Sec. 302, I.P.C. as against A-1 (Nalini), A-2 (Santhan alias Raviraj), A-3 (Murugan alias Thas), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran alias Ravi) and A-18 (Perarivalan alias Arivu). We shall deal with the question of sentence for the said offence separately. However, we set aside the conviction and sentence passed on all the accused under Section 120-B of the I.P.C. read with all the other counts of offences (except Sec. 302, I.P.C.). We also set aside the conviction and sentence passed by the trial Court on those appellants who were convicted of offences under Sec. 3(3), Sec. 3(4) and Sec. 5 of TADA.

339. We confirm the conviction passed by the trial Court for the offences under Secs. 212 and 216 of the I.P.C., Sec. 14 of the Foreigners Act, 1946, Sec. 25(1-B) of the Arms Act, Sec. 5 of the Explosive Substances Act, Sec. 12 of the Passports Act, and Sec. 6(1-A) of the Wireless and Telegraphy Act, 1933, in respect of those accused who were found guilty of those offences. However, as the sentence awarded by the trial Court in respect of those offences did not exceed imprisonment for a period of two years we are not disposed to disturb the sentence passed by the trial Court on those counts. It is for the jail authorities to consider the question of releasing those accused who have already undergone the period of rigorous imprisonment for two years, and against whom there is no conviction confirmed under any other counts of offence, as they are entitled to be set at liberty forthwith.

340. In other words, except A-1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arivu) all the remaining appellants shall be set at liberty forthwith.

SENTENCE REGARDING OFFENCE UNDER SECTION 302 READ WITH SECTION 120-B OF I.P.C.:

341. Now we have reached the proximity of the terminus of a long journey. But the remaining stage is the hardest and the most tedious sector – to decide on the sentence passed for the offence under Section 302 read with Section 120-B, I.P.C.

342. We have before us only two alternatives – death or life term. The trial Judge opted to award the former for all the 26 appellants. This was dubbed as amounting to judicial massacre by the defence counsel, while the Additional Solicitor General endeavoured to justify the imposition of extreme penalty.

343. A fervent plea was made to us that the high profile of the celebrity dimension of the targetted victim should not colour our judicial vision in determining the sentencing extent. But the other side of the picture was etched by pleading that the Court cannot adopt a Nelson’s eye to the stark reality that the target of the dastardly intrigue was a leader who represented bulk of the nation’s population in whom the nation reposed its faith and trust for a full term. Be such factors as they may – we would proceed to discharge the task as law enjoins.

344. Both sides cited a number of decisions of this Court in support of their respective pleas – one for retention of the sentence and the other for choosing the next alternative. Decisions which held the field before the introduction of the Code of Criminal Procedure, 1973 do not afford any help because the Criminal Procedure then obliged the Court to pass death sentence for murder as a general proposition and the alternative sentence could be awarded only in exceptional cases for which the Court was then required to advance special reasons. After 1973, there was a complete reversal to the approach. Thereafter, life imprisonment was made the normal sentence for murder and death penalty was allowed to be passed only in exceptional cases. The criminal Courts were required to state special reasons for choosing the latter. But the decisions rendered during the aforesaid second stage were divided into two categories with the pronouncement of the decision of this Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

345. During pre-Bachan Singh period the Sessions Court was free to choose death penalty in any case where special reasons could be advanced. But during post – Bachan Singh period even that was drastically changed as the Constitution Bench made it impermissible to award death sentence except in rarest of the rare cases wherein the lesser alternative is unquestionably foreclosed.

346. As the law which has been pronounced in such unreserved language on the subject, holds the field ever thereafter we are required to remind ourselves of the legal position adumbrated by the Constitution Bench in Bachan Singh’s case (supra). The following is the ratio which emerged after making a detailed analysis of various view points on the sustainability of the provision empowering the Court to pass death sentence:

“It is therefore imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

(Para 209)

347. The Constitution Bench, however, did not agree with the approach adopted by a three-Judge Bench of this Court in Rajendra Prasad v. State of U.P., (1979) 3 SCC 646, that focus of special reasons has shifted from the crime to the criminal. On that part, the majority view in Bachan Singh (supra) is the following:

“As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of ‘special reasons’ in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case.”

(para 201)

Their Lordships accepted the broad contours of the circumstances cited before them by one of the learned counsel as having mitigating impact. The Constitution Bench has observed, on the aforesaid submission of the counsel, as follows:

“We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.”

Three such circumstances which the Court was told about are the following:

(1) The age of the accused – if the accused is young or old the sentence of death should be avoided.

(2) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(3) That the accused acted under duress or domination of another person.

348. Bearing the above principles in mind we have now to determine whether the death sentence passed by the trial Court should be confirmed or not in respect of the 7 accused whose conviction of the offence under Section 30 read with Section 120-B we have confirmed. There can be no two opinions that looking at the crime conspectus of what was perpetrated at Sriperumbudur it was most dastardly to the superlative degree. Those who machinated to bring about such a horrendous crime cannot normally escape the extreme penalty of law. As the law enjoins that we have to look at the criminals also we are duty bound to look at it from that perspective also.

349. The conspirators in the Rajiv Gandhi assassination can be vivisected into four broad categories.

First, those who formed the hardcore nucleus which took the decision to assassinate Rajiv Gandhi.

Second, those who induced others to join the ring and played active as well as supervisory roles in the conspiracy.

Third, those who joined the conspiracy by inducement whether through indoctrination or otherwise.

Fourth those among the conspirators who participated in the actual commission of murder.

350. Persons who fall within the first category cannot normally escape from capital punishment if their case ends in conviction. Veluppillai Piribhakaran, Pottu Omman, Akila, Sivarasan and Trichy Santhan have been described as persons falling within the radius of the first category. As they were not tried for the offences so far we refrain from observing anything concerning them in the sphere of sentencing exercise.

351. However, we can hold with certainty that A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) belonged to the second category even if they slip out of the first. They were not merely carrying out the orders of the first category personnel but they made others to work according to their directions in order to achieve the target. The role played by them was prominently direct and active. They were in the leadership layer among the conspirators. We are not able to find out anything extenuating as for the said three persons in their activities for implementation of the decisions of the cabal.

352. We therefore confirm the extreme penalty imposed by the trial Court on A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) for the offence under Section 302 read with Section 120-B of the I.P.C.

353. A-1 (Nalini) belongs to the fourth category. In the normal spectrum of consideration death penalty is the first priority to be chosen for her. She is an elderly and educated woman. One gets the impression, on reading her confession, that she was led into the conspiracy by playing on her feminine sentiments. She became an obedient participant without doing any dominating role. She was persistently brain-washed by A-3 (Murugan) who became her husband and then the father of her child. Suba and Thanu would certainly have etched a woefull picture regarding the attrocities committed by IPKF on women and girls of Tamil origin in Sri Lanka. By such indoctrinative exercises she would have honestly believed in the virtue of offering her help to the task undertaken by the conspirators. In the confessional statement made by her brother A-20 (Bhagyanathan) he revealed one fact i.e. A-1 (Nalini) had confided to him on 25-3-1991 itself that as a matter of fact she realised only at Sriperumpudur that Thanu was going to kill Rajiv Gandhi. Perhaps that may be a true fact. But she would not have dared to retreat from the scene as she was tucked into the tentacles of the conspiracy octopus from where it was impossible for a woman like A-1 (Nalini) to get extricated herself. She knew how Sivarasan and Santhan had liquidated those who did not stand by them. Padmnabha’s episode would have been a lesson for her. Considering the fact that she belongs to the weaker sex and her helplessness in escaping from the cobwed of Sivarasan and company the mere fact that she became obedient to all the instructions of Sivarasan, need not be used for treating her conduct as amounting to “rarest of the rare cases” indicated in Bachan Singh’s case (supra).

354. Another consideration which we find difficult to overlook is – she is the mother of a little female child who would not have even experienced maternal huddling as that little one was born in captivity. Of course the maxim “Justicia non novit patrem nee matrem” (Justice knows no father nor mother) is a pristine doctrine. But it cannot be allowed to reign with its rigour in the sphere of sentence determination. As we have confirmed the death sentence passed on the father of that small child an effort to save its mother from gallows may not militate against jus gladii so that an innocent child can be saved from imposed orphanhood.

355. Thus, on an evaluation of the plus and minus, pros and cons we persuade ourselves to save A-1 (Nalini) from gallows. Hence the sentence passed on her is altered to one of imprisonment for life.

356. What remains is the case of A-9 (Robert, Payas), A-10 (Jayakumar), and A-16 (Ravichandran). They do not belong to the first or even to the second category. They were LTTE followers and they just obeyed the commands of leaders like Sivarasan who had the capacity to dominate over them. We are inclined to alter their sentence from death penalty to imprisonment for life. We order so.

357. The appeals filed by all the 6 accused and the proceedings submitted by the Special Judge of the Designated Court under Section 366 of the Code of Criminal Procedure are disposed of in the aforementioned terms.

358. D. P. Wadhwa, J—I have studied the draft judgment prepared by my learned and noble brother K. T. Thomas, J. It is a Judgment so well written, but, regrettably, I find myself unable to agree with him entirely both on certain questions of law and conviction and sentence proposed by him on some of the accused. Moreover, keeping in view the fact that since sentence of death passed on 26 accused by the Designated Court has been submitted to this Court for confirmation evidence needs to be considered in somewhat greater detail, I venture to render separate judgment.

359. On the night of 21-5-1991 a diabolical crime was committed. It stunned the whole nation. Rajiv Gandhi, former Prime Minister of India, was assassinated by a human bomb. With him 15 persons including 9 policemen perished and 43 suffered grievous or simple injuries. Assassin Dhanu an LTTE (Liberation Tigers of Tamil Elam) activist, who detonated the belt bomb concealed under her waist and Haribabu, a photographer (and also a conspirator) engaged to take photographs of the horrific sight, also died in the blast. As in any crime, criminals leave some footprints. In this case it was a camera which was found intact on the body of Haribabu at the scene of the crime. Film in the camera when developed led to unfolding of the dastardly act committed by the accused and others. A charge of conspiracy for offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), Indian Penal Code (IPC), Explosive Substances Act, 1908, Arms Act, 1959, Passport Act, 1967, Foreigners Act, 1946, and the Indian Wireless Telegraphy Act, 1933 was laid against 41 persons, 12 of whom were already dead having committed suicide and three absconded. Out of these, 26 faced the trial before the Designated Court. Prosecution examined 288 witnesses and produced numerous documents and material objects. Statements of all the accused were recorded under Section 313 of the Code of Criminal Procedure (Code). They denied their involvement. The Designated Court found them guilty of the offences charged against them. Thereafter all the accused were heard on the question of sentence. Designated Court awarded death sentence to all of them on the charge of conspiracy to murder. “A judicial massacre”, bemoaned Mr. Natarajan, learned senior counsel for the accused, and rightly so in our opinion. Designated Court also sentenced each of the accused individually for various offences for which they had been separately charged.

360. In view of the provisions of Section 20 of TADA, Designated Court submitted the sentence of death to this Court for confirmation. The accused also filed appeals under Section 19 of TADA challenging their conviction and sentence.

361. The accused have different alias and while mentioning the accused name it may not be necessary to refer to them with all their respective alias and alias of an accused will be indicated wherever necessary. There is no dispute about these alias. For proper comprehension of the facts it will be appropriate to refer to the appellants as accused.

362. Three absconding accused are (1) Prabhakaran, (2) Pottu Amman alias Shanmuganathan Sivasankaran and (3) Akila alias Akilakka. Prabhakaran is alleged to be the supreme leader of Liberation Tigers of Tamil Elam (LTTE) – a Sri Lankan Tamil Organization, who along with Pottu Amman, Chief of Intelligence Wing of LTTE, Akila, Deputy Chief of Women Wing of LTTE, and others designed criminal conspiracy to assassinate Rajiv Gandhi and commit other offences in pursuance thereof.

363. Deceased accused (DA) who are alleged to be the members of the conspiracy and died either by consuming cyanide or in the blast or by hanging are:

1. S. Packiachandran alias Raghuvaran alias Sivarasan

2. Dhanu alias Anbu alias Kalaivani

3. Subha alias Nithya

4. S. Haribabu

5. Nehru alias Nero alias Gokul

6. N. Shanmugam alias Jayaraj

7. Trichy Santhan alias Gundu Santhan

8. Suresh Master

9. Dixon alias Kishore

10. Amman alias Gangai Kumar

11. Driver Anna alias Keerthy

12. Jammu alias Jameela

The accused, who are put on trial and are appellants before us, are:

A-1. S. Nalini,

A-2. Y. Suthendraraja alias Santhan

A-3. Srinaran alias Murugan alias Thas alias Indu Master

A-4. Shankar alias Koneswaran

A-5. D. Vijayanandan alias Hari Ayya

A-6. Sivaruban alias Suresh alias Suresh Kumar alias Ruban

A-7. S. Kanagasabapathy alias Radhayya

A-8. A. Chandralekha alias Athirai alias Sonia alias Gowri

A-9. B. Robert Payas alias Kumaralingam

A-10. S. Jayakumar alias Jayakumaran alias Jayam

A-11. J. Shanthi

A-12. S. Vijayan alias Perumal Vijayan

A-13. V. Selvaluxmi

A-14. S. Bhaskaran alias Velayudam

A-15. S. Shanmugavadivelu alias Thambi Anna

A-16. P. Ravichandran alias Ravi alias Pragasam

A-17. M. Suseendran alias Mahesh

A-18. G. Perarivelan alias Arivu

A-19. S. Trumborai alias Duraisingam

A-20. S. Bhagyanathan

A-21. S. Padma

A-22. A. Sundaram alias Subha Sundaram

A-23. K. Dhanasekaran alias Raju A-24. N. Rajasuriya alias Rangan

A-25. T. Vigneswaran alias Vicky

A-26. J. Ranganath

364. Prosecution case is that Prabhakaran, Pottu Amman, Akila and Sivarasan master-minded and put into operation the plan to kill Rajiv Gandhi which was executed by Sivarasan, and Dhanu, of the two assassins (other being Subha), with the back-up of other accused, who conspired and abetted them in the commission of the crime which included providing them safe haven before and after the crime. Charge of conspiracy is quite complex and when analysed it states that 26 accused before us, and those absconding, deceased and others, are charged with having entered into criminal conspiracy between July, 1987 and May, 1992 at various places in Sri Lanka and India to do or cause to be done illegal acts, namely:-

1. to infiltrate into India clandestinely,

2. to carry and use unauthorized arms, ammunition and explosives,

3. to set up and operate unauthorized wireless sets to communicate with LTTE leaders in Sri Lanka from time to time,

4. to cause and carry out acts of terrorism and disruptive activities in Tamil Nadu and other places in India by use of bombs, explosives and lethal weapons so as to scare and create panic by such acts in the minds of the people and thereby to strike terror in the people,

5. in the course of such acts to assassinate Rajiv Gandhi, former Prime Minister of India and others, who were likely to be with him,

6. to cause disappearance of evidence thereof and to escape,

7. to screen themselves from being apprehended,

8. to harbour the accused and escape from the clutches of law, and

9. to do such other acts as may be necessary to carry out the object of the criminal conspiracy as per the needs of situation,

and in pursuance of the said criminal conspiracy and in furtherance of the same to carry out the object of the said criminal conspiracy:

(I) Santhan (A-2), Murugan (A-3), Shankar (A-4), Vijayanandan (A-5), Ruban (A-6), Kanagasabapathy (A-7), Athirai (A-8), Robert Payas (A-9), Jayakumar (A-10), Shanthi (A-11), Vijayan (A-12), Selvaluxmi (A-13), Bhaskaran (A-14), Rangam (A-24) and Vicky (A-25) along with the deceased accused Sivarasan, Dhanu, Subha, Nero, Gundu (Trichy) Santhan, Suresh Master, Dixon, Amman, Driver Anna and Jamuna infiltrated into India from Sri Lanka clandestinely and otherwise on different dates during the said period of criminal conspiracy;

(II) Shanmugam (DA) amongst them arranged to receive, accommodated and rendered all assistance to the members of the conspiracy;

(III) Robert Payas (A-9), Jayakumar (A-10), Shanthi (A-11), Vijayan (A-12), Selvaluxmi (A-13) and Bhaskaran (A-14) after having come over to India secured houses at Porur and Kodungaiyur in Madras at the instance of Sivarasan (DA) for accommodating one or other of the co-conspirators from time to time and for chalking out the modalities of the course of action to be followed for the achievement of the object of the said criminal conspiracy;

(IV) Nero (DA) established contacts with Prabhakaran (absconding) through Pottu Amman (absconding) through illegally operated wireless sets brought into India by Sivarasan (DA) through illicit channel from the house of Vijayan (A-12);

(V) Kanagasabapathy (A-7) and Athirai (A-8) came to India through illicit channel and set up hide outs in Delhi;

(VI) Sivarasan (DA) brought Santhan (A-2), Shankar (A-4), Vijayanandan (A-5) and Ruban (A-6) along with the deceased accused Dhanu, Subha, Nero and Driver Anna to Kodiakkaraj and got them all accommodated in several places in Tamil Nadu to be of assistance in carrying out the object of criminal conspiracy;

(VII) (a) Arivu (A-18) visited Jaffna and other places in Sri Lanka along with Irumborai (A-19) clandestinely in June 1990, purchased a Kawasaki Motor Cycle on 4-5-1991 at Madras to facilitate quick movement of himself and one or the other of the co-conspirators,

(a-1) arranged payment for printing the compilation described as “The Satanic Force” and sent one copy of the same to Prabhakaran (absconding) through Sivarasan (DA) and another set through Murugan (A-3), (b) purchased and provided a battery for operating the wireless apparatus and other two battery cells, which were used as detonator in the belt bomb used by Dhanu (DA) for the murder of Rajiv Gandhi and 15 others:

(VIII) Shankar (A-4), Vijayanandan (A-5) and Ruban (A-6) along with Driver Anna (DA) rendered all assistance necessary therefor;

(IX) Sivarasan decided to murder Rajiv Gandhi, former Prime Minister of India in the public meeting to be held at Sriperumbudhur on 21-5-91 on learning that Rajiv Gandhi was to address the meeting on the said day and finalized the method of operation to murder him by enlisting the services of Nalini (A-1) to be of help at the scene of crime;

(X) Arivu (A-18) handed over the film roll for the purposes of taking photographs of events to Haribabu (DA), who also purchased a sandal wood garland from Poompuhar Handicrafts, Mount Road Madras to be used for garlanding Rajiv Gandhi at the scene of occurrence by Dhanu (DA) so as to gain access to the VVIP under the guise of garlanding;

(XI) Dhanu equipped herself with the necessary apparel in order to hide a belt bomb and detonator attached thereto for detonating the same when she was in close proximity to Rajiv Gandhi;

(XII) Haribabu (DA) met Suba Sundaram (A-22) on 21-5-1991 and thereafter took a Chinon camera from a friend for taking photographs at the scene of offence and loading the camera with the film already provided by Arivu (A-18);

(XIII) Nalini (A-1) along with the deceased accused Sivarasan, Dhanu and Subha met Haribabu at Parrys Corner, Broadway Bus Stand and proceeded to the venue of the public meeting at Sriperumbudur on the evening of 21-5-1991 where Nalini (A-1) provided cover to Dhanu and Subha and when Rajiv Gandhi arrived at the scene of occurrence at about 10.10 p.m. Dhanu gained access nearer to Rajiv Gandhi and while in close proximity to Rajiv Gandhi Dhanu detonated the improvised explosive device kept concealed in her waist belt at about 10.20 p.m. resulting in the blast and assassinated Rajiv Gandhi and 15 others and also by killing herself (Dhanu) and also causing the death of Haribabu accused and causing injuries to 43 persons;

(XIV) Nalini (A-1) along with the deceased accused Sivarasan and Subha immediately fled from the scene of occurrence, reached the house of Jayakumar (A-10) and Shanthi (A-11) and took shelter in Jayakumar’s (A-10) house;

(XV) Suba Sundaram (A-22) attempted to retrieve the camera used by Haribabu from the scene of occurrence, caused destruction of documents and material objects linking Haribabu in this case and arranged to issue denial in the press about any connection of the said Haribabu with the LTTE;

(XVI) Bhagyanathan (A-20) and Padma (A-21) rendered all assistance and harboured the deceased accused Sivarasan Subha, Murugan (A-3) and Arivu (A-18);

(XVII) Nalini (A-1), Murugan (A-3) and Padma (A-21) accompanied the deceased accused Sivarasan and Subha to Tirupathi, where Nalini (A-1) did “Angapradakshinam”;

(XVIII) Nalini (A-1) and Murugan (A-3) hide themselves in different places in Tamil Nadu and Karnataka State in order to evade arrest;

(XIX) Dhansekaran (A-23), Rangam (A-24) and Vicky (A-25) harboured the deceased accused Sivarasan, Subha and Nero by transporting them and concealing them inside a tanker lorry bearing No. TN-27-Y-0808 belonging to Dhanasekaran (A-23) from Madras to Bangalore;

(XX) Nero (DA) operated the wireless set and communicated with the absconding accused Prabhakaran and Pottu Amman and conveyed the developments on behalf of the accused Sivarasan;

(XXI) the deceased accused Nero, Gundu Santhan, Suresh Master, Dixon, Amman and Driver Anna rendered all assistance to the deceased accused Sivarasan;

(XXII) Rangam (A-24) rendered all assistance to Sivarasan and others by transporting them in a Maruthi Gypsy in Bangalore and other places in Karnataka purchased by Dhanasekaran (A-23) using LTTE funds;

(XXIII) Ranganath (A-26) harboured the accused Rangam (A-24) and the deceased accused Sivarasan, Subha, Nero, Suresh Master, Amman, Driver Anna and Jamuna at Knonnakunte, Bangalore and on 19-8-1991 the deceased accused Sivarasan, Subha, Nero, Suresh Master, Amman, Driver Anna and Jamuna committed suicide;

(XXIV) Shanmugavadivelu alias Thambi Anna (A-15) rendered financial assistance to Sivarasan and to one or other of co-conspirators to carry out the object of conspiracy and abetted the commission of the said offence;

(XXV) Nalini (A-1) to Ranganath (A-26) caused the disappearance of evidence of murder of Rajiv Gandhi;

and thereby Nalini (A-1) to Ranganath (A-26) committed offences punishable under Section 120-B of IPC read with Sections 302 of IPC, 326 of IPC, 324 of IPC, 201 of IPC, 212 of IPC and 216 of IPC; Sections 3, 4 and 5 of Explosive Substances Act of 1908, Section 25 of Arms Act of 1959; Section 12 of Passport Act, 1967; Section 14 of the Foreigners Act, 1946; Section 6(1A) of the Wireless Telegraphy Act, 1933 and Sections 3, 4 and 5 of TADA of 1987.

365. Including the charge of conspiracy, which is charge No. 1, there are 251 other charges framed against the accused for having committed various offences in pursuance to the conspiracy under Charge No. 1. Out of these Nalini (A-1) has been charged on 121 different counts. Second charge against her is that in pursuance to the conspiracy and in the course of the same transaction and in furtherance to the common intention of the accused she and the deceased accused Sivarasan, Dhanu, Subha and Haribabu did “commit murder of Rajiv Gandhi and others, who were likely to be with him on 21-5-1991 at about 10.20 p.m. at Sriperumbudur in the public meeting where Nalini (A-1) was physically present at the scene of crime and provided the assassin Dhanu (deceased accused (DA)) the necessary cover from being detected as a foreigner, which enabled the assassin to move freely in the scene of crime and gain access nearer to Rajiv Gandhi to accomplish the object of conspiracy, where Dhanu did commit murder and intentionally caused the death of Rajiv Gandhi by detonating the improvised explosive device which was kept concealed in her waist belt when she was in close proximity to Rajiv Gandhi and thereby she (Nalini) committed an offence punishable under Section 302 read with Section 34 IPC.”

366. Charges 3 to 17 are also under Section 302 read with Section 34 IPC for having caused the death of persons, who were in close proximity to Rajiv Gandhi. Charges 18 to 34 are under Section 326/34 IPC for voluntarily causing grievous hurt to the persons who were in close proximity to Rajiv Gandhi at the time of explosion. Charges 35 to 60 are under Section 324 read with Section 34 IPC for voluntarily causing hurt to the persons at the same time. Charges 61 to 119 are under Section 3(2) TADA read with Section 34 IPC. In these charges under Section 3(2) TADA it is mentioned that Nalini (A-1) committed terrorist acts by providing cover to Dhanu (DA) who detonated the improvised explosive device resulting in the bomb blast and in the murder of Rajiv Gandhi and others. Charge No. 120 is for offence under Section 3(3) TADA and this charge is as under:-

367. That Nalini (A-1) in pursuance of the said criminal conspiracy referred to in Charge No. 1, and in the course of the same transaction she in furtherance of the common intention, of Nalini (A-1) she proceeded to Sriperumbudur along with Sivarasan, Subha, Dhanu and Haribabu on the night of 21-5-1991 at about 10.20 p.m. in the public meeting having knowledge of the commission of the terrorist act viz., explosion of bomb for killing Rajiv Gandhi and others and causing injuries to those, who were likely to be around him, and also striking terror in the people and rendered assistance to the terrorists Dhanu, Sivarasan and Subha prior to the terrorist act by taking them to the bus, hotel, the venue of public meeting and the like and intentionally aided the said terrorist act by being present on 21-5-1991 at Sriperumbudur in the public meeting, where the terrorist act was committed by Dhanu by detonating the improvised explosive device kept concealed in her waist belt resulting in the bomb blast, and with intent to aid and facilitate the commission of the said terrorist act Nalini (A-1) provided a cloak to Dhanu and Subha from being easily identified as Sri Lankan Tamils at the scene of crime and also facilitated the escape of the above said accused concerned in the crime, and thus Nalini (A-1) abetted the commission of the terrorist act and acts preparatory to the terrotist act or knowingly facilitated the commission of the terrorist act and acts preparatory to the terrorist act and thereby Nalini (A-1) committed the offence punishable under Section 3(3) of the TADA of 1987.

368. Last charge against Nalini (A-1) is under Section 4(1) TADA read with Section 34 IPC for having committed offence under Section 4(3) TADA for killing of nine police officials, who were public servants and were at that time with Rajiv Gandhi on duty.

369. Santhan (A-2) has been charged for an offence under Section 3(3) TADA and Section 14 of Foreigners Act (Charges 122 and 123). Other accused have also been similarly charged. As to how all the accused have been charged and whether found guilty or not and sentences passed against them by the Designated Court can be set illustrated by the table given hereunder:-

CHARGES

COMMON TO ALL 26 ACCUSED

CHARGE NO. OFFENCE U/S FINDING SENTENCE
1 120-B r/w 302, 326, 324, 201, 212, 216 of IPC
3, 4, and 5 of Explosive Substances Act
25 of Arms Act
12 of Passport Act Guilty Death
14 of Foreigners Act
6 (1-A) Wireless and Telegraphy Act
3, 4 and 5 of TADA Nalini (A-1)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
2 to 17 302 r/w 34 IPC Guilty Death (16 counts)
18 to 34 326 r/w 34 IPC Guilty 3 Years RI (13 counts)
35 to 40 324 r/w 34 IPC Guilty 1 year RI (6 counts)
41 to 60 324 r/w 34 IPC Not Guilty Acquitted (20 counts)
61 to 76 3 (2) (i) of TADA r/w 34 IPC Guilty Death (16 counts)
77 to 99 3 (2) (ii) of TADA r/w 34 IPC Guilty (not guilty for 79, 82, 84, 93 Acquitted for four counts) Life (19 counts)
100 to 119 3 (2) (ii) of TADA r/w 34 IPC Not guilty Acquitted (20 counts)
120 3(3) TADA Guilty Life (Life imprisonment)
121 4(3) TADA and 4(1) r/w 34 IPC Guilty Life
Santhan (A-2)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
122 3(3) TADA Guilty Life
123 14 of Foreigners Act Guilty 2 years RI
Murugan (A-3)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
124 3(3) TADA Guilty Life
125 14 of Foreigners Act Guilty 2 years RI
126 6(1-A) of Indian Wireless and Telegraphy Act Guilty 2 years RI
Shankar (A-4)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
127 3(3) TADA Guilty Life
128 14 of Foreigners Act Guilty 2 years RI Vijayanandan (A-5)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
129 3(3) TADA Guilty Life
130 14 of Foreigners Act Guilty 2 years RI
Ruban (A-6)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
131 3(3) TADA Guilty Life
132 14 of Foreigners Act Guilty 2 years RI
Kanagasabapathy (A-7)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
133 3(3) TADA Guilty Life
134 3(4) TADA Guilty Life
135 212 IPC Guilty 2 years RI
136 14 of Foreigners Act Guilty 2 years RI
Athirai (A-8)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
137 3(3) TADA Guilty Life
138 3(4) TADA Guilty Life
139 212 IPC Guilty 2 years RI
140 14 of Foreigners Act Guilty 2 years RI
Robert Payas (A-9)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
141 3(3) TADA Guilty Life
Jayakumar (A-10)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
142 3(3) TADA Guilty Life
143 3(4) TADA Guilty Life
144 212 IPC Guilty 2 years RI
145 3(1) and 25 (1-B) (a) Arms Act Guilty 2 years RI Shanthi (A-11)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
143 3(4) TADA Guilty Life
144 212 IPC Guilty 2 years RI
145 3(1) and 25 (1-B) (a) Arms Act Guilty 2 years RI
146 3(3) TADA Guilty Life
Vijayan (A-12)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
147 3(3) TADA Guilty Life
148 3(4) TADA Guilty Life
149 212 IPC Guilty 2 years RI
150 6(1A) of Indian Wireless and Telegraphy Act Guilty 2 years RI
Selvaluxmi (A-13)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
148 3(4) TADA Guilty Life
149 212 IPC Guilty 2 years RI
150 6(1A) of Indian Wireless and Telegraphy Act Guilty 2 years RI
151 3(3) TADA Guilty Life
Bhaskaran (A-14)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
148 3(4) TADA Guilty Life
149 212 IPC Guilty 2 years RI
152 3(3) TADA Guilty Life
Shanmugavadivelu (A-15)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
153 3(3) TADA Guilty Life Ravi (A-16)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
154 3(3) TADA Guilty Life
155 3(4) TADA Guilty Life
156 212 IPC Guilty 2 years RI
157 5 of TADA Guilty Life
158 5 of Explosive Substances Act Guilty 2 years RI
159 3(1) and 25(1-B)(a) Arms Act Guilty 2 years RI
Suseendram (A-17)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
160 3(3) TADA Guilty Life
161 3(4) TADA Guilty Life
162 212 IPC Guilty 2 years RI
163 5 of TADA Guilty Life
164 5 of Explosive Substances Act Guilty 2 years RI
165 3(1) and 25(1-B)(a) Arms Act Guilty 2 years RI
Arivu (A-18)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
166 3(3) TADA Guilty Life
167 to 182 109 and 302 IPC Guilty Death (16 counts)
183 to 199 109 and 326 IPC Guilty (13 counts)183, 184, 86, 187, 189, 191 to 198. 200 to 205, 226 to 228 Acquitted of charges 185, 188, 190 and 199 (4 counts) 3 years RI (13 counts)
200 to 225 109 and 324 IPC Guilty (6 counts) 200 to 205 acquitted on 20 counts (206 to 225) 1 year RI
226 6(1-A) of Wireless and Telegraphy Act and 109 IPC Guilty 2 years RI
227 12 of Passport Act Guilty 3 months RI
228 4(3) TADA punishable u/s 4(1) TADA and 109 IPC r/w 34 IPC Guilty Life
Irumborai (A-19)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
229 3(3) TADA Guilty Life
230 3(4) TADA Guilty Life
231 212 IPC Guilty 2 years RI
232 12 of Passport Act Guilty 3 months RI
Bhagyanathan (A-20)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
233 3(3) TADA Guilty Life
234 212 IPC Guilty 2 years RI
Padma (A-21)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
235 3(3) TADA Guilty Life
236 212 IPC Guilty 2 years RI
237 6(1-A) Wireless and Telegraphy Act Guilty 2 years RI
Suba Sundaram (A-22)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
238 3(3) TADA Guilty Life
239 212 IPC Guilty 2 years RI
Dhanashekaran (A-23)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
240 3(3) TADA Guilty Life
241 3(4) TADA Guilty Life
242 212 IPC Guilty 2 years RI Rangam (A-24)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
243 3(4) TADA Guilty Life
244 212 IPC Guilty 2 years RI
245 14 Foreigners Act Guilty 2 years RI
Vicky (A-25)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
246 3(4) TADA Guilty Life
247 212 IPC Guilty 2 years RI
248 14 of Foreigners Act Guilty 2 years RI
Ranganath (A-26)
CHARGE NO. OFFENCE U/S FINDING SENTENCE
249 3(4) TADA Guilty Life
250 216 IPC Guilty 2 years RI
251 212 IPC Guilty 2 years RI

370. Before we consider the evidence and the arguments advanced by both the parties it may be more appropriate to set out various provisions of law which are the subject-matter of the charges against the accused.

THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987

“2. Definitions.- (1) In this Act, unless the context otherwise requires,-

(a) to (c) **********

(d) “disruptive activity” has the meaning assigned to it in section 4, and the expression “disruptionist” shall be construed accordingly;

(e) to (gg) **********

(h) “terrorist act” has the meaning assigned to it in sub-section (1) of Section 3, and the expression “terrorist” shall be construed accordingly;

Section 3. Punishment for terrorist acts.- (1) Whoever with intent to overawe the Government as by law established or to strike terror in people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.

(2) Whoever commits a terrorist act, shall,-

(i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall be liable to fine;

(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

(4) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist shall be punishable with imprisonment for a term which shall not be less than five years but which may extent to imprisonment for life and shall also be liable to fine.

(5) Any person who is a member of a terrorists gang or a terrorists organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

(6) Whoever holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which shall not be less than five years but which may extent to imprisonment for life and shall also be liable to fine.

Section 4. Punishment for disruptive activities.- (1) Whoever commits or conspired or attempts to commit or abets, advocates, advises, or knowingly facilitates the commission of, any disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

(2) For the purposes of sub-section (1), “disruptive activity” means any action taken, whether by act or by speech or through any other media or in any other manner whatsoever.-

(i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or

(ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union. Explanation.- For the purposes of this sub-section-

(a) “cession” includes the admission of any claim of any foreign country to any part of India, and

(b) “secession” includes the assertion of any claim to determine whether a part of India will remain within the Union.

(3) Without prejudice to the generality of the provisions of sub-section (2), it is hereby declared that any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, which-

(a) advocates, advises, suggests or incites; or

(b) predicts, prophesies or pronounces or otherwise expresses, in such manner as to incite, advise, suggest or prompt,

the killing or the destruction of any person bound by oath under the Constitution to uphold the sovereignty and integrity of India or any public servant shall be deemed to be a disruptive activity within the meaning of this section.

(4) Whoever harbours or conceals, or attempts to harbour or conceal, any disruptionist shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

5. Possession of certain unauthorized arms, etc., in specified areas.- Where any person is in possession of any arms and ammunition specified in columns 2 and 3 of Category 1 and III (a) of Schedule I to the Arms Rules, 1962, or bombs, dynamite or other explosive substances unauthorisedly in a notified area, he shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

6. Enhanced penalties.- (1) If any person with intent to aid any terrorist or disruptionist, contravenes any provision of, or any rule made under, the Arms Act, 1959 (54 of 1959), the Explosives Act, 1884 (4 of 1884), the Explosive Substances Act, 1908 (6 of 1908), or the Inflammable Substances Act, 1952 (20 of 1952), he shall, notwithstanding anything contained in any of the aforesaid Acts or the rules made thereunder be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

(2) For the purposes of this section, any person who attempts to contravene or abets, or attempts to abet, or does any act preparatory to the contravention of any provision of any law, rule or order, shall be deemed to have contravened that provision, and the provisions of sub-section (1) shall, in relation to such person, have effect subject to the modification that the reference to “imprisonment for life” shall be construed as a reference to “imprisonment for ten years”.

15. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made thereunder:

Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.

(2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily.

25. Overriding effect.- The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.

28. Power to make rules.- (1) Without prejudice to the powers of the Supreme Court to make rules under Section 27, the Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) regulating the conduct of persons in respect of areas the control of which is considered necessary or expedient and the removal of such persons from such areas;

(b) the entry into, and search of,-

(i) any vehicle, vessel or aircraft; or

(ii) any place, whatsoever,

reasonably suspected of being used for committing the offences referred to in section 3 or section 4 or for manufacturing or storing anything for the commission of any such offence;

(c) conferring powers upon,-

(i) the Central Government;

(ii) a State Government;

(iii) an Administrator of a Union territory under article 239 of the Constitution.

(iv) an officer of the Central Government not lower in rank than that of a Joint Secretary; or

(v) an officer of the State Government not lower in rank than that of a District Magistrate.

to make general or special orders to prevent or cope with terrorist acts or disruptive activities;

(d) the arrest and trial of persons contravening any of the rules or any order made thereunder;

(e) the punishment of any person who contravenes or attempts to contravene or abets or attempts to abet the contravention of any rule or order made thereunder with imprisonment for a term which may extend to seven years or for a term which may not be less than six months but which may extend to seven years or with fine or with imprisonment as aforesaid and fine;

(f) providing for seizure and detention of any property in respect of which such contravention, attempt or abetment as is referred to in clause (e) has been committed and for the adjudication of such seizure and detention, whether by any Court or by any other authority.”

TADA Rules

15. Recording of confession made to police officers.- (1) A confession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such confession is made and if that is not practicable, in the language used by such police officer for official purposes or in the language of the Designated Court and it shall form part of the record.

(2) The confession so recorded shall be shown, read or played back to the person concerned and if he does not understand the language in which it is recorded, it shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his confession.

(3) The confession shall, if it is in writing, be-

(a) signed by the person who makes the confession; and

(b) by the police officer who shall also certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person and such police officer shall make a memorandum at the end of the confession to the following effect:-

“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

Sd/-Police Officer.”

(4) Where the confession is recorded on any mechanical device, the memorandum referred to in sub-rule (3) in so far as it is applicable and a declaration made by the person making the confession that the said confession recorded on the mechanical device has been correctly recorded in his presence shall also be recorded in the mechanical device at the end of the confession.

(5) Every confession recorded under the said section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Designated Court which may take cognizance of the offence.

INDIAN PENAL CODE (IPC)

“120-A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,-

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a Criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

120-B. Punishment of Criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

302. Punishment for murder.- Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

326. Voluntarily causing grievous hurt by dangerous weapons or means.- Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

324. Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

201. Causing disappearance of evidence of offence, or giving false information to screen offender.- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false.

if a capital offence shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

if punishable with imprisonment for life and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

if punishable with less than ten years’ imprisonment and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.

212. Harbouring offender.- Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment.

if a capital offence shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine;

if punishable with imprisonment for life, or with imprisonment and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both.

“Offence” in this section includes any act committed at any place out of India, which, if committed in India, would be punishable under any of the following sections, namely, 302, 304, 482, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and every such act shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in India.

Exception.- This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender.

216. Harbouring offender who has escaped from custody or whose apprehension has been ordered.- Whenever any person convicted or charged with an offence, being in lawful custody for that offence, escapes from such custody,

or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours or conceals that person with the intention of preventing him from being apprehended, shall be punished in the manner following, that is to say,

if a capital offence if the offence for which the person was in custody or is ordered to be apprehended is punishable with death, he shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

if punishable with imprisonment for life, or with imprisonment if the offence is punishable with imprisonment for life or imprisonment for ten years, he shall be punished with imprisonment of either description for a term which may extend to three years, with or without fine;

and if the offence is punishable with imprisonment which may extend to one year and not to ten years, he shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of the imprisonment provided for such offence, or with fine, or with both.

“Offence” in this section includes also any act or omission of which a person is alleged to have been guilty out of India, which, if he had been guilty of it in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise liable to be apprehended or detained in custody in India, and every such act or omission shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in India.

Exception.- The provision does not extend to the case in which the harbour or concealment is by the husband or wife of the person to be apprehended.”

EXPLOSIVE SUBSTANCES ACT, 1908

“3. Punishment for causing explosion likely to endanger life or property.- Any person who unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property, shall, whether any injury to person or property has been actually caused or not, be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment for a term which may extend to ten years, to which fine may be added.

4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property- Any person who unlawfully and maliciously-

(a) does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion in India of a nature likely to endanger life or to cause serious injury to property; or

(b) makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in India, or to enable any other person by means thereof to endanger life or cause serious injury to property in India;

shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with transportation for a term which may extend to twenty years, to which fine may be added, or with imprisonment for a term which may extend to seven years, to which fine may be added.

5. Punishment for making or possessing explosives under suspicious circumstances.- Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to fourteen years, to which fine may be added, or with imprisonment for a term which may extend to five years, to which fine may be added.”

ARMS ACT, 1959

3. Licence for acquisition and possession of firearms and ammunition.- (1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:

Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.”

“25 (1-B) Whoever-

(a) acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3;

**********

shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine.

Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.”

PASSPORTS ACT, 1967

“12. Offences and penalties.- (1) Whoever –

(a) contravenes the provisions of Section 3; or

(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or

(c) fails to produce for inspection his passport to travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or

(d) knowingly uses a passport or travel document issued to another person; or

(e) knowingly allows another person to use a passport or travel document issued to him;

shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five thousand rupees or with both.

(1-A) Whoever, not being a citizen of India,-

(a) makes an application for a passport or obtains a passport by suppressing information about his nationality, or

(b) holds a forged passport or any travel document,

shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees.

(2) Whoever abets any offence punishable under sub-section (1) or sub-section (1-A) shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence.

(3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rules made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.

(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence.”

THE FOREIGNERS ACT, 1946

“14. Penalties.- If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if such person has entered into a bond in pursuance of Cl. (f) to sub-section (2) of Sec. 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting Court why such penalty should not be paid.”

“3(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner,-

(a) to (e) **********

(f) shall enter into a bond with or without sureties for the due observance of as in alternative to a enforcement of any or all prescribed or specified restrictions or conditions,

(g) **********

and make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may in the opinion of the Central Government be expedient or necessary for giving effect to this Act.”

INDIAN WIRELESS TELEGRAPHY ACT, 1933

“6(1-A) Whoever possesses any wireless transmitter in contravention of the provisions of Section 3 shall be punished with imprisonment which may extend to three years, or with fine which may extend to one thousand rupees, or with both.

3. Prohibition of possession of wireless telegraphy apparatus without licence.- Save as provided by Section 4, no person shall possess wireless telegraphy apparatus except under and in accordance with a licence issued under this Act.”

INDIAN EVIDENCE ACT, 1872

“10. Things said or done by conspirator in reference to common design.- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

Explanation.- “Offence” as used in this section, includes the abetment of, or attempt to commit, the offence.”

371. Having set out provisions of law we may refer to the preliminary submissions of Mr. N. Natarajan, senior advocate, who appeared for all the accused except Shanmugavadivelu alias Thambi Anna (A-15). He submitted that he is not challenging the convictions of various accused under the Foreigners Act, Passport Act, Explosive Substances Act, Indian Wireless and Telegraphy Act, Arms Act and Sections 212 and 216 IPC. This he said was on account of the fact that for offences under these Acts accused were awarded sentence of imprisonment for two years or for a period less than two years which in any case has to be set off under Section 428 of the Code as they had been under detention throughout the period during trial. We are thus left to consider offences under Sections 120-B IPC, 302/34 IPC, 326/34 IPC, 324/34 IPC and under Sections 3, 4 and 5 of TADA.

372. Opening his arguments Mr. Natarajan submitted that the first charge gives the over all view of the case of the prosecution. In brief he said there were five facets of conspiracy alleged by the prosecution against the accused, namely, (1) clandestine infiltration into India, (2) hiring of safe accommodation for the conspirators, (3) unauthorized wireless operation by them, (4) assassination of Rajiv Gandhi and others on 21-5-1991, and (5) harbouring of offenders in order to escape from India and disappearance of evidence. The prosecution evidence propounds a criminal conspiracy. Mr. Natarajan was right in his submissions when he said it would be futile to contend that there was no conspiracy. The questions that arise for consideration are as to what is the object of that conspiracy, who were members of the conspiracy, whether any offence under TADA is made out and whether it was a case of conspiracy to murder and causing grievous and simple hurt by use of bombs. Assuming that whatever prosecution evidence has led to be admissible and reliable there is no conspiracy to commit any offence under TADA and the conspiracy is only to commit the murder of Rajiv Gandhi. On the question of motive of the crime, we find, there is no dispute. For past couple of years there has been unrest in the north part of Sri Lanka, a neighbouring country which area is inhabited mostly by Tamils. These Tamils or Tamilians complained of atrocities committed by the majority community of Sinhalis inhabiting in south of Sri Lanka. To protect the rights of the Tamils various organizations came up in Sri Lanka, foremost being the Liberation Tigers of Tamil Elam (LTTE). This Organization claimed to be the only representative body of the Tamils. For the independence of Tamil area in Sri Lanka arm struggle started between LTTE and Sri Lankan army. On this account there was turmoil in Sri Lanka resulting in the influx of Tamil refugees to India from Sri Lanka and by 1987 the problem, it appeared, was getting out of hands. During the arm struggle LTTE was having a free field in India. To support its struggle against Sri Lankan army cadre of LTTE had been operating from Indian soil for the purpose of arms training, treatment of injured LTTE people, supply of medicines and other provisions, collection of funds, printing and publishing of propaganda material, buying of provisions like petrol, diesel, wireless equipments, explosives and even cloths.

373. An Indo-Sri Lankan Agreement to establish peace and normalcy in Sri Lanka was entered into on 29-7-1987. It was signed by Rajiv Gandhi, Prime Minister of the Republic of India and J. R. Jayewardena, President of the Democratic Socialist Republic of Sri Lanka. After the agreement was signed Prime Minister Rajiv Gandhi made a statement in the Rajya Sabha on the Agreement which he said aimed “at bringing to an end the difficult conflict which has afflicted our friendly neighbour Sri Lanka for years” and that the conflict assumed acute dimensions over the last four years endangering the very stability, unity and integrity of Sri Lanka. The agreement among other things envisaged lifting of emergency in the eastern and northern provinces of Sri Lanka by 15-8-1987, holding of elections, constitution of interim council, etc. Cessation of hostilities was to come into effect all over the island within 48 hours of the signing of the Agreement and all arms presently held by Tamil militant groups were to be surrendered, in accordance with an agreed procedure, to authorities to be designated by the Government of Sri Lanka. Sri Lanka will grant a general amnesty to political and other prisoners now held in custody under the Prevention of Terrorism Act and other Emergency laws. Para 2.16 of the Agreement provided as under:-

2.16. These proposals are also conditional to the Government of India taking the following actions if any militant groups operating in Sri Lanka do not accept this frame work of proposals for a settlement, namely,

(a) India will take all necessary steps to ensure that Indian territory is not used for activities prejudicial to the unity, integrity and security of Sri Lanka.

(b) The Indian Navy/Coast Guard will co-operate with the Sri Lanka Navy in preventing Tamil militant activities from affecting Sri Lanka.

(c) In the event that the Government of Sri Lanka requests the Government of India to afford military assistance to implement these proposals, the Government of India will co-operate by giving to the Government of Sri Lanka such military assistance as and when requested.

(d) The Government of India will expedite repatriation from Sri Lanka of Indian citizens to India who are resident there, concurrently with the repatriation of Sri Lankan refugees from Tamil Nadu.

(e) The Government of India and Sri Lanka will co-operate in ensuing the physical security and safety of all communities Inhabiting the Northern and Eastern Provinces.

The Indo-Sri Lankan Accord had thus the following features:-

1. It contains a package for the devolution of political power recognising the Northern and Eastern province of Sri Lanka as the traditional homeland of the Tamils.

2. It gives to India a “Guarantor” role in the implementation of the devolution package and the other provisions within the frame work of “United Sri Lanka”.

3. It takes account of India’s security concerns in the area.

374. In pursuance to the Agreement Indian forces called the Indian Peace Keeping Force (IPKF) went to Sri Lanka on 29-7-1987. After the initial somewhat reluctance to acceptance LTTE got disillusioned with the accord which is reflected from the following factors:-

1. The Accord ruled out separate Tamil Elam in Sri Lanka and so went against the objectives of LTTE to form an independent Tamil Elam.

2. LTTE looked towards India with certain expectations under the Accord, which according to it, were not fulfilled. It was the way the Tamil refugees of Sri Lanka were rehabilitated by Sri Lankan Government which was not to the satisfaction of LTTE.

3. In the interim council to be formed under the Accord LTTE was given less seats though it claimed to be the sole representative body of Sri Lankan Tamils.

4. On 15-9-1987 one Dileepan of LTTE went on hunger strike in Sri Lanka. He took fast against the atrocities committed by IPKF and for Government of India not acting properly. He died fasting on 26-9-1987.

5. 17 important functionaries of LTTE were captured by Sri Lankan Navy in the first week of October, 1987. They were being taken to Colombo for interrogation. LTTE approached Government of India for their release. Government of India did not vigorously pursue the matter and while it was negotiating with the Sri Lankan Government to secure their release, 12 of them committed suicide by consuming cyanide.

6. In the night of 3/4-10-1987 when IPKF convoy was carrying ration it was attacked by LTTE and 11 Indian soldiers were killed. It was the flash point of breach between IPKF and LTTE and active confrontation between the two started. Prabhakaran, supreme leader of LTTE, went underground.

7. The agreement or the accord, as it is normally called ultimately, did not find favour with LTTE and in spite of the agreement activities of LTTE on the Indian soil continued growing substantially.

375. LTTE became opposed to the Accord and also against the IPKF. Prabhakaran at one stage even said that it was stabbed in the back by agreeing to the accord and had been betrayed. There was more influx of refugees to India. Now LTTE complained of atrocities committed by IPKF on the Tamils in Sri Lanka and accused IPKF of torture, rape, murder, etc. As to what led India to enter into the Accord with Sri Lankan Government and the background of the ethnic trouble in Sri Lanka and also reservations expressed on the Accord, there is the statement of R. M. Abhyankar (PW-173), Joint Secretary in the Ministry of External Affairs, Government of India. Two volumes of the book “Satanic Force” (MO-124 and MO-125) were published in India at the behest of LTTE which contained compilation of speeches of Prabhakaran and other articles and photographs showing the atrocities committed by IPKF on Tamils in Sri Lanka after the Accord and the animosity which Prabhakaran developed towards Rajiv Gandhi. The book was compiled by N. Vasantha Kumar (PW-75). He is an artist by profession. The printing and publishing of the book was authorised and financed by LTTE. It was published in January, 1991 and contains information up to March, 1990. In his statement Brig. Vivek Sapatnekar (PW-186), who was earlier in-charge of IPKF operations in Sri Lanka, also stated that the Accord was not having the support of LTTE. MO-125 (Volume 2 of “Satanic Force”) contained the news item published in the Indian Express of April, 1990 which quotes the speech by Prabhakaran saying that he was against the former leadership in India and that LTTE was not against India or Indian people. These two volumes of “Satanic Force” contain over 1700 pages. No article or writing has been pointed out from the “Satanic Force” from which it could be inferred that it was ever in the contemplation of Prabhakaran or any other functionary of LTTE questioning the sovereignty and territorial integrity of India rather they identified Rajiv Gandhi with the Accord and the atrocities committed by IPKF. In the editorial in the official Journal of LTTE ‘Voice of Tigers’ dated 19-1-1990 the following comment appears:-

“In the meantime, the defeat of Rajiv’s Congress Party and the assumption to power of the National Front alliance under Viswanath Pratap Singh has given rise to a sense of relief and hope to the people of Tamil Elam. The LTTE has already indicated to the new Indian Government its desire to improve and consolidate friendly ties with India. The new Indian leadership responded positively accrediting to Mr. Karunanidhi, the Tamil Nadu Chief Minister, the role and responsibility of mediating with the Tamil Tigers. The LTTE representatives who had four rounds of talks with the Tamil Nadu Chief Minister in Madras, are firmly convinced that the Tamil Nadu Government and the new Indian administration are favourably disposed to them and the V. P. Singh’s government will act in the interests of the Tamil speaking people by creating appropriate conditions for the LTTE to come to political power in the North-eastern Province.”

376. It may be noted that in general elections in India Congress was defeated and new Government under V. P. Singh as Prime Minister had taken over. Withdrawal of IPKF from Sri Lanka was completed on 24-3-1990. In March, 1991 general elections in India were again announced. First phase of elections was over on 20-5-1991 and next phase was to be held on 23-5-1991. This second phase was postponed for 15 days on account of assassination of Rajiv Gandhi on 21-5-1991.

377. Aveek Sarkar (PW-255) had an interview with Rajiv Gandhi which was published in the Sunday magazine issue of August 12-19, 1990. The interview is dated July 30/31, 1990. In the interview Rajiv Gandhi supported the Accord and criticized V. P. Singh in withdrawing the IPKF. He said there was no rationale behind the withdrawal and as things till then had not stabilized and Accord had not been fully implemented. In the Congress manifesto which was released in 1991 for Lok Sabha elections Congress supported the Accord. This manifesto was brought on record in the statement of K. Ramamurthi (PW-258), who was the President of Tamil Nadu Congress Committee at the relevant time.

378. Rajiv Gandhi in August, 1990 predicted general elections in the country in early 1991. In the writings and articles in the two volumes of “Satanic Force” there were scathing attacks on Shri Rajiv Gandhi, who was projected as the perpetrator of the sufferings of Tamils in Sri Lanka by sending IPKF. Prabhakaran when he came out of his hiding after about two and a half years he made statement in April, 1990 that he was against the former leadership, namely, Rajiv Gandhi. Though the Congress lead by Rajiv Gandhi was out of power in 1990 there was clear indication of mid-term poll and perceptible upswing in the popularity of Rajiv Gandhi. LTTE apprehended the reversal of the Government of India’s policy of non-interference towards Sri Lanka and with the possibility of return of Rajiv Gandhi as Prime Minister. Rajiv Gandhi stood for territorial integrity of Sri Lanka and for role of various Tamil organisations in Sri Lanka for any Tamil solution. LTTE on the other hand claimed to be the sole representative body of Tamils there.

379. It was on this account, submitted Mr. Natarajan, that there was conspiracy to eliminate Rajiv Gandhi in order to prevent him from coming back to power. He said LTTE perceived the accord as object to stop creation of separate Tamil Elam which went against the basic objective of LTTE. The creation of separate Tamil Elam was thwarted by the induction of IPKF and in the fight with IPKF more Tamil Sri Lankan died than they died fighting Sri Lankan army. IPKF committed atrocities on Tamils in Sri Lanka. LTTE thus turned against the Government of India and the former leadership as it identified Rajiv Gandhi and his Government as bringing the struggle of Sri Lankan Tamils to square one. Rajiv Gandhi and the congress manifesto supported the Accord even after IPKF had been withdrawn from Sri Lanka. Mr. Natarajan said that motive was not to overawe the Government of India or to create terror as was being alleged by the prosecution. Animosity of LTTE was only against Rajiv Gandhi who was identified with the Accord. Prabhakaran, the supreme leader of LTTE, had clearly stated more than once that he was not against one Indian Government and the Indian people.

380. According to prosecution conspiracy was activated with the publication of an interview of Rajiv Gandhi in Sunday magazine and now the conspiracy was put into operation. First group of conspirators to achieve the object of conspiracy arrived in India on September 12, 1990. This group consisted of Vijayan (A-12), Selvaluxmi (A-13) and Bhaskaran (A-14). Bhaskaran (A-14) is father of Selvaluxmi (A-13). They arrived at Rameshwaram in India like other refugees from Sri Lanka and got themselves registered. At Jaffna in Sri Lanka they were seen off by deceased a