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Santoshanand Avdoot @ Ghanshyam … vs State on 14 August, 2014

Delhi High Court Santoshanand Avdoot @ Ghanshyam … vs State on 14 August, 2014Author: S. P. Garg

* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 7th NOVEMBER, 2013

DECIDED ON : 14th AUGUST, 2014

+ CRL.A. 443/1976

SANTOSHANAND AVDOOT @ GHANSHYAM PRASHAD &

ANR. ….. Appellants Through : Ms.Sima Gulati, Advocate with

Ms.Shikha Pandey, Advocate for

A1.

Mr.Arvind Kumar, Advocate with

Mr.Radhe Shyam Sharma and

Mr.Ranjan Sharma, Advocates for

A3.

VERSUS

STATE ….. Respondent Through : Mr.Narender Mann, Spl.P.P. with

Mr.Manoj Pant, Advocate.

Insp. Yasir Arafat.

AND

+ CRL.A. 436/1976

RANJAN DWIVEDI @ RAMJANAM DWIVEDI …. Appellant

Through : A-2 in person.

VERSUS

STATE ….. Respondent Through : Mr.Narender Mann, Spl.P.P. with

Mr.Manoj Pant, Advocate.

Insp. Yasir Arafat.

CORAM:

HON’BLE MR. JUSTICE S.P.GARG

Crl.A.Nos.443/1976 & 436/1976 Page 1 of 201 S.P.GARG, J.

1. The appellants – Santoshanand Avadhoot @ Ghan Shyam Prasad (A-1); Ram Janam Dwivedi @ Ranjan Dwivedi (A-2) and Sudevanand Avadhoot @ Misri Lal Yadav (A-3) impugn a judgment dated 28.10.1976 of learned Addl. Sessions Judge in Sessions Case No. 9/1976 arising out of RC 11/75/CIU/SPE/CBI by which they were held guilty for committing offences under Section 120 B (1) Indian Penal Code (in short „IPC‟). A-1 and A-3 were also held guilty under Section 307 IPC and Section 4 (b) Explosive Substances Act 1908. By an order dated 01.11.1976, A-1 and A-3, were sentenced as under :

(i) Rigorous imprisonment (in short „RI‟) for seven years under Sections 120B (1) read with Section 115 IPC.

(ii) RI for ten years under Section 307 IPC for the attempt to murder CJI.

(iii) RI for ten years under Section 307 IPC for the attempt to murder Sh.Ajoy Nath Ray.

(iv) RI for ten years under Section 307 IPC for the attempt to murder Jamadar Jai Nand.

Crl.A.Nos.443/1976 & 436/1976 Page 2 of 201 (v) RI for ten years under Section 307 IPC for the attempt to murder driver Inder Singh.

(vi) RI for seven years under Section 4 (b), Explosive Substances Act, 1908.

A-2 was awarded RI for four years under Section 120B(1) read with Section 115 of IPC.

2. The sentences enumerated at Nos. (ii) to (vi) were to operate concurrently but only after A-1 and A-3 had served out the sentence mentioned at No. (i).

(A) Facts in brief

3. The factual matrix in which the appellants came to be prosecuted and convicted has been set out in detail by the Trial Court. I need not, therefore, recapitulate the same all over again except to the extent it is necessary. Shorn of details, the prosecution case as reflected in the charge-sheet is as under :

4. In a macabre incident which took place on 20.03.1975 at about 04.15 P.M. the assailants threw two hand-grenades in the car in an attempt to murder Sh.A.N.Ray, the then Chief Justice of India (in short : CJI) when he was proceeding with his son Ajoy Nath Ray from the Crl.A.Nos.443/1976 & 436/1976 Page 3 of 201 Supreme Court to his residence in a staff car bearing registration No. DL C 6431 driven by PW- Inder Singh. PW-Jai Nand, Security Officer / Jamadar was present inside the car in the front seat. The hand-grenades were thrown after the car had covered a distance of about 200 metres from gate – „A‟, exclusively reserved for Supreme Court Judges at the intersection of Tilak Marg and Bhagwan Das Road when it pulled up there on account of STOP signal. The nefarious designs of the assailants did not yield any result and providentially the hand-grenades thrown inside the car did not explode. Apparently, the assailants failed to accomplish the dangerous mission. PW- Jai Nand who had seen an „individual‟ throwing „something‟ wrapped in a handkerchief inside the car through the window where CJI was sitting, questioned him as to what he was doing there. Instead of giving reply / response, the assailant suddenly started running towards Bhagwan Dass Road. It prompted Jai Nand to get out of the car and chase the assailant shouting „pakro – pakro‟. The culprit entered into a taxi parked nearby at Bhagwan Dass Road; came out of it immediately; fled towards Garhwal House; jumped over it; crossed its front gate and disappeared. SI Om Prakash, PW- Const.Jai Lal, PW-Ramji Lal and many others joined PW-Jai Nand to chase the assailant but in vain. Crl.A.Nos.443/1976 & 436/1976 Page 4 of 201 The police machinery swung into action promptly on getting information from Police Control Room. Insp.Sajjan Singh, SHO Tilak Marg Police Station along with his team of police personnel reached the spot after receiving the wireless message from SI Inder Singh. He made an unsuccessful search for the culprit and returned to the crime scene at about 05.10 P.M. He examined the spot of occurrence, prepared a rough sketch (Ex.P-106) of the crime scene and seized various articles. He lodged First Information Report after recording Jai Nand‟s statement (Ex.P16). Two unexploded hand-grenades (Ex.A3 and Ex.A4) lying near the rear portion of the car, handkerchiefs (Ex.A5 and Ex.A6) were taken into possession. Services of Major S.K.Sharma, Garrison Engineer were requisitioned to defuse the hand-grenades. Statements of the witnesses conversant with the facts were recorded. On 21.03.1975, the investigation was transferred to Crime Branch, Delhi Police. One Abrol arrested as a suspect was subsequently got discharged for want of evidence.

5. The assailants without indicating their identity claimed responsibility for the attack and conveyed the information to various newspapers. „The Indian Express‟ published a news-item developed out of a communication Ex.P10 received from „unknown sources‟ on 24.03.1975. Similar communication (Ex.P11) was received in the office of Crl.A.Nos.443/1976 & 436/1976 Page 5 of 201 „The Statesman‟. PW-16 (Prakasha Rao), Deputy News Editor sent it to the police as it contained dangerous matter. Communications Ex.P12 & Ex.P13 were dispatched to „The Hindustan Samachar‟ and „The Hindustan Times‟. Letter (Ex.P14) contained in an envelope (Ex.P14/A), addressed to CJI was received by his Private Secretary in between March 23 and 30, 1975 when he was on tour to Punjab. Sh.S.K.Gupta, Registrar, Supreme Court, received it on April 01 or 02, 1975 after return from Punjab and he forwarded it to Superintendent of Police (Security).

6. It is relevant to note that CBI had earlier registered RC1/75- CIA-1/SPE under Section 120B IPC; 302 IPC and Sections 3 & 4 of the Explosive Substances Act, 1908 pertaining to Sh.L.N.Misra murder in a bomb-blast at Samastipur in Bihar. A-1 had already been arrested in the said proceedings in Patna on June 17, 1975. Feeling nexus between L.N.Misra murder case and the present one, Delhi Administration made a request to Delhi Special Police Establishment for investigation in the present case as well. CBI thereon formally registered the present case as RC11/75(CIU)/SPE/CBI dated June 30, 1975 at 05.40 P.M. and the investigation was assigned to Sardari Lal, DSP, CIU.

7. A-1 was formally arrested in this case on June 30, 1975 at 08.30 P.M. Pursuant to disclosures made by him during police remand, A- Crl.A.Nos.443/1976 & 436/1976 Page 6 of 201 2 was arrested on 06.07.1975 and various articles including three diaries (Ex.P123, Ex.P124 and Ex.P125) were recovered from his residence. Vikram and A-3 were arrested at Bhagalpur on July 24, 1975 in some other case. They were formally arrested in the instant case on July 27, and brought to Delhi by air on July 28, 1975. A-1 to A-3 declined to participate in Test Identification Parade (in brief : TIP) fixed for July 30. Vikram during police remand from July 31 to August 14, 1975, expressed desire to record confessional statement (Ex.P9) voluntarily on August 14, 1975 before Sh.R.D.Aggarwal (PW-20), Addl. Chief Metropolitan Magistrate. Vikram was granted conditional pardon by Chief Metropolitan Magistrate and was made an approver on August 22, 1975.

8. During further investigation, CBI arrested Ram Nagina Prasad at Icchapur on July 18, 1975 in L.N.Misra murder case. On July 25, 1975, pursuant to disclosure statement (Ex.P142) at his instance hand- grenade (Ex.A9) was recovered from near the bamboo wall of meat shop of Jagdish at Icchapur.

9. During extensive and marathon investigation, CBI recorded statements of number of witnesses conversant with the facts. Anonymous letters (Ex.P10 to Ex.P14) were collected. From the approver‟s disclosures, CBI came to know about the activities of the conspirators in Crl.A.Nos.443/1976 & 436/1976 Page 7 of 201 relation to the object and scheme of the conspiracy and the manner in which the object of the conspiracy was sought to be achieved and executed. On A-1‟s interrogation, CBI came to know about his association with PW-55 (Shiv Raj Singh) doing Ph.D. in Indian Agricultural Research Institute, Delhi. On July 05, 1975, DSP B.R.Puri (PW-71) recovered guest register (Ex.P122) containing entry (Ex.PW-122/A) relating to reservation of accommodation in the hostel for two days i.e. March 20 & 21, 1975 by him for a guest „Pawan Kumar of Azamgarh‟. It revealed that the said reservation was made at A-1‟s instance and the accommodation was used by him to stay with A-3. On A-2‟s interrogation, it came to light that he had booked a berth in second class on March 15, 1975 in the name of „Pankaj Kumar‟ to perform journey from Delhi to Howrah by a train departing Delhi on March 25, 1975 at the instance of A-1. A-1 allegedly asked A-2 on March 21, 1975 for another reservation in the said train in the name of „Ramesh Kumar‟. After recording statements of the relevant witnesses and scanning relevant railway documents, it revealed that A-1 and A-3 had performed the journey on the tickets reserved in fictitious names by A-2. The investigating agency discovered on A-1‟s interrogation that Tilak Raj Bhatia (PW-4) and Charan Singh (PW-5) had knowledge about the movements of A-1 and his associates at the time of Crl.A.Nos.443/1976 & 436/1976 Page 8 of 201 commission of the crime. In their statements recorded on July 10, 1975, PW-4 and PW-5 confirmed the account of the occurrence later on given by the approver.

10. During further investigation, the exhibits were sent to Central Forensic Science Laboratory for examination and its reports were collected. Specimen handwriting and signatures of the appellants were obtained and sent for comparison with the questioned documents. The Chief Investigating Officer obtained the required sanction (Ex.P-153) from the Administrator of Union Territory of Delhi for the prosecution of A-1, A-3 and Ram Nagina Prasad under Sections 4 & 6, Explosive Substances Act, 1908. On completion of investigation, CBI submitted the final report to the Chief Metropolitan Magistrate on August 28, 1975. The learned Chief Metropolitan Magistrate recorded the statement of Vikram, the approver, on various dates between December 03, 1975 and January 14, 1976 and committed the case to the Court of Sessions by an order dated January 23, 1976.

11. After hearing both the sides and considering the record of the case, the Trial Court did not find sufficient ground to proceed against Ram Nagina Prasad for the offence of criminal conspiracy to kill CJI. For the reasons given in the order dated 14.05.1976, Ram Nagina Prasad was Crl.A.Nos.443/1976 & 436/1976 Page 9 of 201 exonerated of the charge under Section 120B IPC. He was charged- sheeted for committing offences under Sections 4(b) & 6, Explosive Substances Act. Joint charges under Section 120B IPC were framed against the appellants. A-1 and A-3 in addition were charged for committing offence under Section 307 IPC and 4(b) Explosive Substances Act. The appellants abjured their guilt and claimed trial. The prosecution examined 85 witnesses in all on various dates. Statements of the appellants were recorded under Section 313 Cr.P.C. The Trial Court undertook a very elaborated exercise by putting almost 171 questions to the appellants with respect to the evidence brought on record and the circumstance appearing against them to give an opportunity to explain. The appellants denied their complicity in the crime and pleaded false implication. Plea of alibi was set up by A-1 & A-3. The defence examined eight witnesses and relied upon documents (Ex.D1 to Ex.D67).

12. The Trial Court examined the grievances raised by the appellants elaborately. After appreciating the evidence and considering the rival contentions of the parties, the Trial Court by the impugned detailed judgment acquitted Ram Nagina Prasad of the charge and convicted the appellants for the offences described previously. Being Crl.A.Nos.443/1976 & 436/1976 Page 10 of 201 aggrieved and dissatisfied, they have preferred the appeals. It is pertinent to note that State did not challenge Ram Nagina Prasad‟s acquittal. (B) Submissions / Arguments on behalf of the Appellants

13. I have heard the learned counsel for the parties at great length on various dates.

14. Learned counsel for A-3 strenuously urged that the Trial Court did not appreciate the evidence in its true and proper perspective. He stressed that Vikram‟s statement cannot be read into evidence. He informed that during the pendency of instant appeals, in Crl.A.No.174/2012, „Sudevanand vs. State‟, 2012 (3) SCC 387, Supreme Court by an order 19.01.2012 ordered to recall PW-Vikram for further cross-examination. CBI, however, could not trace Vikram and expressed inability to examine him. He further urged that under Articles 141, 142 and 144 of the Constitution of India, this Court was bound to follow the order dated 19.01.2012 in letter and sprit. Besides this, the Supreme Court doubted the truthfulness, honesty and reliability of the statement of Vikram as he (PW-Vikram) had made two diametrically opposite statements one before CBI (in the instant case) and other before CID in Danapur Jail on 30.09.1978. Adopting an alternative argument, counsel urged that even if approver‟s statement is taken into consideration, he is Crl.A.Nos.443/1976 & 436/1976 Page 11 of 201 not a reliable and trustworthy witness and under Section 3 of the Evidence Act, his statement cannot be read as part of evidence. Vikram knowingly furnished false address, fake surety and dishonest undertaking not to leave Delhi till trial in L.N.Misra case was over. The said trial is still continuing and despite issuance of non-bailable warrants, he chose not to appear before the Court. CBI was hand-in-glove with approver Vikram from the beginning and was solely responsible for his abscondance. Learned counsel further urged that statement of PW-1, approver Vikram, is beyond the parameters of Section 306 Cr.P.C. An accomplice who needs pardon from the trial of the offence must be involved in the crime and that his acts must constitute wilfully taking part in the said crime. In the instant case, PW-1 was not a willing party to the crime. He obeyed A-1 without application of mind. His statement has not been corroborated in material particulars by any independent witness. PW-4 (Tilak Raj Bhatia), PW-44 (Rajbir Singh), PW-55 (Shiv Raj Singh) and PW-57 (Raj Singh) were defectors from the „Organisation‟ and were themselves suspects. Their role was not different from that of PW-Vikram. Their statements recorded under Sections 161 and 164 Cr.P.C. were not voluntary as during Emergency they were kept in detention for number of days and forced to Crl.A.Nos.443/1976 & 436/1976 Page 12 of 201 give evidence as per CBI‟s dictates. They could not corroborate the statement of PW-Vikram.

15. Counsel further urged that the prosecution could not establish if the appellants hatched „criminal conspiracy‟ to base conviction for the offence under Section 120B IPC. Relying upon various judgments, Counsel pointed out that acts subsequent to the achieving of the object of conspiracy have to be ignored from the essential elements of conspiracy. Any subsequent act which though unlawful, would not make the accused a part of the conspiracy. If two views are possible, the one favourable to the accused has to be adopted. He further emphasised that the prosecution is required to stand on its own legs and cannot get any advantage from the explanations given by the accused under Section 313 Cr.P.C. Mere false explanation in answer to a question under Section 313 would not come within the purview of additional link or circumstance against the accused towards his guilt. He emphasised that mere membership of an „Organisation‟ cannot incriminate a person unless he is proved to have resorted to the acts of violence. In the instant case, Anand Marga, an „association‟ or „Organisation‟ (hereinafter to be referred as „Organisation‟) was banned by Central Government after internal Emergency in June, 1975. The appellants and Vikram were falsely Crl.A.Nos.443/1976 & 436/1976 Page 13 of 201 implicated as they were members of the banned „Organisation‟ and were allegedly associated together. A-3 was never a party to criminal conspiracy for committing the murder of the CJI. There is no evidence if A-3 had attended any meeting where any such conspiracy was discussed. Statement made by approver cannot be taken as independent evidence and is inadmissible under Section 10 of the Evidence Act.

16. Counsel further argued that since the prosecution case was based upon circumstantial evidence, it was legally required to prove each and every fact or circumstance beyond reasonable doubt. The circumstances so proved must form a chain where the inference is only of the crime committed and that the evidence should be such which goes only to prove that the alleged conspirators had committed the crime and that there is no other hypothesis or theory sustainable except indicating directly towards the guilt of the accused. The Counsel pointed out various omissions in the statement of PW-57 (Raj Singh) whereby he did not name A-3 to be the „individual‟ who stayed with PW-Vikram on the night of 19.03.1975 at his house. There was no independent corroboration to PW-57 (Raj Singh)‟s statement who remained in police custody from July 01 to July 09 and never went to the office during this period. Criticising PW-4 (Tilak Raj Bhatia)‟s testimony, he pointed out that he did not know Crl.A.Nos.443/1976 & 436/1976 Page 14 of 201 A-3 but identified him after the police had shown him. Similarly, PW-5 (Charan Singh) did not know A-3. The Trial Court rightly observed that A-3‟s refusal to participate in the TIP was justified and could not be used against him. PW-30 (Ramesh Kumar Bagdi)‟s statement in the identification of A-3 was not reliable. He categorically admitted that requisition slip (Ex.P57) was shown to him in June, 1975 when in fact such a slip was allegedly recovered by the police on 13.07.1975 from PW- 25 (Prem Prakash Sharma). He did not utter a word about A-3‟s presence in the train with A-1. Evidence of Foot Print Expert, PW-38 (P.S.Nayyar), was violative of Article 20(3) of the Constitution of India. While in police custody, A-3 was subjected to custodial violence and was forced to wear chappals (Ex.A1 and Ex.A2). That was an effort of CBI to make him a witness against himself. Since the Trial Court did not believe A-3‟s disclosure statement (Ex.P101), reliance on the statement of PW-53 (Shiv Charan) regarding purchase of „hawai‟ chappals from his shop on 20.03.1975 was not permissible. CBI could not establish cogent evidence regarding stay of A-3 in the hostel. PW-55 (Shiv Raj Singh) did not talk to A-3 on any of the days including March 25.

17. Counsel further urged that period of hatching of conspiracy was described in the charge. Acts committed prior or after the said period Crl.A.Nos.443/1976 & 436/1976 Page 15 of 201 of conspiracy are not within its ambit. The FIR talks only of „one assailant‟ but CBI in complete disregard of the said FIR changed the prosecution story during investigation. On the same set of evidence, Ram Nagina Prasad was acquitted. Thus conviction of A-3 under Section 4 (b) of the Explosive Substances Act was not acceptable. Counsel further emphasised that investigation and trial were not fair, transparent and legal. CBI started investigation on 30.06.1975 when internal Emergency had already come into operation. It is unbelievable that CBI knew it on that very day that A-1, A-3 and Vikram were involved in the aforesaid attack. This fact was entertained by various CBI investigators especially PW-71 (B.R.Puri), DSP, CBI, who was already involved in the investigation of various cases including Anand Murti‟s case and L.N.Misra murder case. PW-71 was absolutely prejudiced against the workers of the „Organisation‟ and influenced the Chief Investigating Officer to involve the appellants in this case. The investigation was completely biased, motivated and mala-fide.

18. Counsel further urged that sentence order itself was illegal under Section 31 Cr.P.C. which provides that maximum consecutive sentence cannot exceed more than fourteen years. Finally, the counsel urged that A-3 has suffered agony of trial for more than 37 years. He Crl.A.Nos.443/1976 & 436/1976 Page 16 of 201 deserves acquittal due to long delay in disposal of the appeal. Since, there is no minimum sentence provided under Section 307 IPC, the appellant (A-3) can be acquitted under Section 482 Cr.P.C.

19. Reliance was placed on the authorities : „V.M.Mathew vs. V.S.Sharma and ors.‟, 1995 (6) SCC 122; „Shahbuddin vs. State of Delhi‟, 2012 VII Apex Decisions (Delhi) 711; „Sarwan Singh Rattan Singh vs. State of Punjab‟, AIR 1957 SC 637 (1); „State vs. Nalini‟, 1999 (5) SCC 253; „Hanumant vs. State of Madhya Pradesh‟, 1952 SCR 1091; „Sharad Birdhi Chand vs. State of Maharashtra‟, 1984 (4) SCC 116; „State vs. Navjot Sandhu‟, 2005 (11) SCC 600; „Babubhai vs. State of Gujarat & ors.‟, 2010 (12) SCC 254; „State of Gujarat vs. Mohammad Atik‟, 1998 (4) SCC 351; „Arup Bhuyan vs. State of Assam‟, 2011 (3) SCC 376; „Indra Das vs. State of Assam‟, 2011 (3) SCC 380; „Mohd. Aman, Babu Khan & anr. vs. State of Rajasthan‟, 1997 (10) SCC 44; „Chatter Singh vs. State of M.P.‟, 2006 (12) SCC 37 & „A.B.Bhaskara Rao vs. Inspector of Police, CBI, Vishakhapatnam‟, 2011 (10) SCC 259.

20. Learned Counsel for A-1 primarily argued on similar lines. She relied on the judgments : „Arun Kumar Sharma vs. State of Bihar‟, 2010 (1) SCC 108; „Ranjit Singh vs. State‟, 1997 (V) AD (Delhi) 689; „Mrinal Das and ors. vs. The State of Tripura‟, 2011 (9) SCC 479; Crl.A.Nos.443/1976 & 436/1976 Page 17 of 201 „Rampal Pithwa Rahidas and ors. vs. State of Maharashtra‟, 1994 Cril.L.J.2320; „Karunakaran vs. State of Tamil Nadu‟, AIR 1976 SC 383; „Raj Kumar Singh @ Raju @ Batya vs. State of Rajasthan‟, 2013 (V) AD (SC) 433; „Dr.Sunil Kumar Sambhudayal Gupta and ors. vs. State of Maharashtra‟, 2010 (13) SCC 657; „Sukhvinder Singh and ors. vs. State of Punjab‟, 1994 (5) SCC 152 & „Avdesh vs. State‟, (2000) ILR 6 (Delhi)

101.

21. A-2 who argued in person urged that PW-Vikram was not a reliable witness. After the Emergency came to an end in 1977, CID in Bihar informed Bihar Government about the cases registered against Anand Margies whereby CBI falsely implicated them to cover up the real culprits. Bihar Government took the matter seriously and investigated it through their officials. They found that approver Vikram was forced through horrific torture to toe the line of CBI. He retracted his confession via tape recording by the jail Superintendent and also verbally repeated that statement to the Chief Secretary, Bihar. Chief Minister of Bihar, requested Mr. Justice V.M.Tarakunde to give legal opinion. After perusing the relevant documents of the case, Justice Tarakunde came to the conclusion that case was false and was of the view that there should be a fresh probe into the incident and innocent persons should be discharged. Crl.A.Nos.443/1976 & 436/1976 Page 18 of 201 PW- Vikram was directed to be recalled to confront him with the statement recorded in Danapur jail but CBI deliberately opted not to produce him. He further argued that there were various discrepancies, omissions and improvements in the statements of the approver Vikram. Moreover, he never attributed any role to him. A-2 was never present in any meeting to have the slightest knowledge of existence of any such conspiracy. PW-Vikram admitted that he did not know if A-2 was a conspirator or not. He further argued that he had never shown the CJI to A-1 in the Supreme Court. Moreover, this circumstance was not enough to show his involvement in the conspiracy. The other alleged overt act that he (A-2) obtained railway tickets for A-1 and A-3 in the fictitious names is not incriminating in nature as the alleged conspiracy was hatched, implemented and finished on 20.03.1975 itself. Moreover, these tickets did not in any manner further the alleged conspiracy. At the relevant time, A-1 was an accused in the self-immolation case of Acharya Dhineshwarand. He was one of the lawyers for the „Organisation‟ at that time. He did not communicate directly with A-1 but acted through a „parokar‟. It cannot be assumed that he and A-1 had direct contact or vice versa. Even for the sake of argument if in order to avoid arrest in self- immolation case, A-1 or his parokar wanted to obtain train tickets on his Crl.A.Nos.443/1976 & 436/1976 Page 19 of 201 behalf in some fictitious names for usual travel and requested him (A-2) to book them, it was wholly reasonable as the said reservation for train tickets did nothing whatsoever to assist or advance the cause of conspiracy of 20.03.1975. A-2 was arrested during Emergency being a follower of the banned „Organisation‟. A-2 had no motive to make an attempt to murder the CJI. The Trial Court was not correct to conclude that motive was sufficiently shown merely by drawing an interference of his being an Anand Margi. The prosecution witnesses examined by the police against A-2 were defectors from the „Organisation‟. The „Organisation‟ to which A-2 was attached never preached violence. His denial to be a follower of the „Organisation‟ in 313 statement cannot be taken as an additional link to complete the chain as the prosecution was required to stand on its own legs. A-2 further urged that he was never a party to the criminal conspiracy and never participated in it in any form. He relied upon the precedents : „State of T.N. vs. Nalini & ors.‟,1999 (5) SCC 253; „Sharad Birdhi Chand vs. State of Maharastra‟, 1984 (4) SCC 116, „Kailash Gour & ors. vs. State of Assam‟, 2012 (2) SCC 34; „Tanviben Pankaj Kumar Divetia vs. State of Gujarat‟, 1997 (7) SCC 156; „State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru‟, 2005 (11) SCC 600; „Sri Indra Das vs. State of Assam‟, 2011 (3) SCC 380 (383); „Joint Crl.A.Nos.443/1976 & 436/1976 Page 20 of 201 Anti-Fascist Refugee Committee vs. McGrath‟, 341 US 123; „Hanumant vs. State of MP‟, 1952 SCR 1091 and „Babubhai Vs. State of Gujarat and ors.‟, 2010 (12) SCC 254.

(C) Submissions / Arguments on behalf of CBI

22. Controverting the arguments of the appellants, learned counsel for CBI urged that Vikram‟s evidence was reliable and it passed the test of „General Reliability‟. It remained unshaken and un-impeached despite grueling cross-examination spanning over eight days by as many as four counsel. Vikram was able to recall material names, places, dates and other relevant details. Evidence made by Vikram has been duly corroborated in material particulars. The confession made by Vikram was further corroborated in terms of the sequence of events i.e. the events and conspiracy prior to the date of incident, as well as the events after escape made by the accused persons from the site of incident. He further stressed that the observations of Hon‟ble Supreme Court in order dated 19.01.2012 have been taken out of context and are being wrongly relied upon by the appellants. These observations were only with respect to the limited question of the calling the witness for re-examination. At no stage, did the Supreme Court materially deal with the evidence given by Vikram before the Trial Court nor did it juxtapose with alleged statements made before Crl.A.Nos.443/1976 & 436/1976 Page 21 of 201 the jail authorities in Danapur. The Supreme Court never tested the evidence of Vikram proved on the anvil of „reliability‟. The observations at best constitute obiter and are not law in terms of Article 141 of the Constitution of India. Vikram could not be produced for cross- examination as he was not traceable despite sincere efforts made by CBI. He was not available either in Delhi or his native place in Bihar. His brother Parmanand informed that he last met him in the year 1980-1981 in Danapur jail and after that his family had made efforts to trace him but could not find him. His whereabouts are not known and it is doubtful if he is still „alive‟ or „dead‟. Under Section 33 of the Evidence Act, Vikram‟s statement is admissible. Evidence given by PW-Vikram in L.N.Misra case is also admissible in the present proceedings where he (PW-Vikram) clearly stated that his statements before jail authorities were obtained against his wishes and were incorrect. He further urged that Vikram‟s availability was not known to either of the parties when the matter was pending before the Supreme Court. Vikram was discharged in this case in 1976 and was released on bail in L.N.Misra case in 1985. As the matter is 38 years old and he has not been heard or seen by any of his relatives who would have naturally heard of him if he had been alive, it should be presumed that he is „dead‟ under Section 108 of the Evidence Act and his Crl.A.Nos.443/1976 & 436/1976 Page 22 of 201 evidence is admissible. CBI had no role when Vikram was released on bail after 11 years. PW-Vikram was examined before the Courts eight times at different stages and his stand remained consistent. Alleged statements recorded before the Jail Authorities, Danapur, without any authority of law and in complete violation of legal provisions were inadmissible in evidence. Report of the Justice Tarakunde was only an opinion and is not an admissible piece of evidence. There was a conflict of interest as A-2 was junior of Justice Tarakunde and as a lawyer, had appeared in the case on his behalf. The alleged retraction dated 30.09.1975 was in the knowledge of the appellants right through the beginning and Vikram was confronted with such material in the year 1981 in L.N.Misra case. However, the appellants deliberately did not rake up the said issue till 1998 for seeking summoning of Vikram for further examination and waited for 17 years to ensure that Vikram would not be available for further cross-examination. As per material available on record, there is no doubt that Vikram was an accomplice with the appellants in an attempt to murder the CJI.

23. Counsel further urged that pardon under Section 306 granted to him was legal as Vikram was very much part of the conspiracy and played active role to achieve its object. The appellants never challenged Crl.A.Nos.443/1976 & 436/1976 Page 23 of 201 the grant of pardon to him. From Vikram‟s evidence, it is clear that he has made full and true disclosures of the whole of the circumstances within his knowledge, involving himself directly in the crime and also specifying the role played by the appellants. The investigation was honest, fair and transparent. Gopalji, Mahender Pratap Singh and Abrol were not proceeded with despite their arrest in the case.

24. Apart from the evidence of Vikram, the independent evidence of Raj Singh, Jai Nand, Inder Singh, Charan Singh, Tilak Raj Bhatia and Parasnath clearly established that Vikram was an accomplice and part of the conspiracy. The prosecution collected direct and circumstantial evidence to corroborate approver Vikram in material particulars. Documents Ex.P23 and Ex.P25 (requisition slips) and address of A-1 at point Q20 in Ex.P127 (diary of A-2 which are in his hand) coupled with oral evidence, proved complicity of A-2 in the conspiracy. Once it is proved that the appellants had conspired to commit the murder of CJI, acts, declarations and conduct (during the existence of the conspiracy) of each of the conspirator in reference to their common intention are admissible against them. He further urged that a false plea taken in 313 statement can be considered as an additional circumstance if other circumstances proved and established point out the guilt of the Crl.A.Nos.443/1976 & 436/1976 Page 24 of 201 accused. In the end, he urged that the sentence awarded to the appellants is commensurate with the offence committed by them. Mere pendency of appeal for the last about 37 years is no ground to modify or alter the sentence. Reliance has been placed on : „SCBA vs. UOI‟, AIR 1998 SC 1895, „Amrit Das vs. State of Bihar‟, 2000 (5) SCC 488; „Municipal Corporation of Delhi vs. Gurnam Kaur‟, 1989 (1) SCC 101; „Nagesh vs. State of Karnatka‟, 2012 (6) SCC 477; „State of U.P. vs. M.K.Antony‟, AIR 1985 SC 48; „Tribhuvan Nath vs. State of Maharastra‟, (1972) 3 SCC 511; „K.Hasim vs. State‟, 2005 (1) SCC 237; „Mohd.Aman & anr. vs. State of Rajasthan‟, 1997 (10) SCC 44 & „Ambika Prasad Thakur vs. Ram Ekbal Raj‟, AIR 1966 SC 605.

(D) Analysis and Appreciation of Evidence

25. Before embarking on an evaluation of the rival submissions, it would be apposite to note that the „Organisation‟ undeniably had no hand in the crime. CBI did not implicate / suspect the „Organisation‟ in any manner for any active or passive role in the crime. The „Organisation‟ cannot be condemned for individual acts of its followers for any criminal activity. To say that CBI was not favourably disposed or had any malice / bias towards it has no credible foundation.

Crl.A.Nos.443/1976 & 436/1976 Page 25 of 201

26. It is significant to note that prosecution case rests upon direct, circumstantial and documentary evidence described in detail below. A broad overview of the core evidence brought by the prosecution to bring home the charges may now be discussed :

(a) PW-78 (Insp.Sajjan Singh), PW-85 (Sh.A.N.Ray, CJI) & PW-6 (Inder Singh) – About the incident

27. PW-78 (Insp. Sajan Singh), SHO, PS Tughalak Road with his police personnel rushed to the spot after getting information from the Police Control Room at 04.40 P.M. and made futile attempt to locate the culprit. After recording Jamadar – Jai Nand‟s statement (Ex.P16), he lodged First Information Report and conducted required proceedings about seizure of the car, „hawai‟ chappals (Ex.A1 and Ex.A2) and preparation of their sketches (Ex.P18 and Ex.P19). PW- Major Sharma from the Army arrived and defused the hand-grenades. He got the crime scene photographed. Statements of SI Om Parkash, Ramji Lal, Inder Singh, Jai Nand, Major Sharma and Const. Jai Lal were recorded by him that day. In the cross-examination, he disclosed that SI Om Parkash had given him two digits of the number of the taxi as DLT-14 or 41.

28. The investigation of the case was transferred to the Crime Branch next day. There are no allegations that the FIR was manipulated, Crl.A.Nos.443/1976 & 436/1976 Page 26 of 201 ante-timed or recorded after due deliberations and consultations. This witness, obviously, had no extraneous consideration to make out a false case against the appellants who were not even suspects that time.

29. PW-85 (Sh.A.N.Ray), Chief Justice of India, stepped in the witness box and gave detailed account of the occurrence without implicating any individual. He deposed that some „object‟ had dropped near the foot of his son on the mat after hitting on his left arm near the shoulder. Within a split second, another „object‟ dropped in the car from the right side and fell on the foot board. He further deposed that noting „someone‟ running, Jamadar Jai Nand (PW-2) chased him towards Mandi House. CJI was able to observe that fleeing man was a bit tallish and thin. He further told that Jamadar who lived in the quarters attached to his residence informed him in the evening that he was not able to catch that man despite chase. He fairly admitted that he was not aware if the two „objects‟ had been thrown in the car through two different windows. He had no suspicion on anyone. He denied the suggestion that the two „objects‟ already planted in the upper rack of the car in its rear portion had fallen after the car stopped at the red signal. There was no basis / foundation for such a suggestion which was not consistent with the suggestions given to other witnesses.

Crl.A.Nos.443/1976 & 436/1976 Page 27 of 201

30. PW-85‟s evidence is relevant to the extent that after the „objects‟ were thrown inside the car, Jamadar – Jai Nand immediately got out of it to chase the fleeing man shouting „pakro-pakro‟. The features of the fleeing man i.e. tallish in height and thin from legs described by the witness tallied with the physical feature of A-3. It corroborates PW-2‟s version that two „objects‟ had fallen in quick succession.

31. PW-6 (Inder Singh), driver in the targeted car was able to see the assailant fleeing the spot and chased by PW-Jai Nand shouting „pakro- pakro‟. He also succeeded to observe features and clothes worn by the fleeing man which matched with the description given by other PWs. He recorded his statement under Section 161 Cr.P.C. same day. (b) PW-2 (Jai Nand), PW-7 (Om Prakash), PW-33 (Ramji Lal) & PW-65 (Jai Lal) – Chasers – About the incident and identity of A-1 & A-3

32. PW-2 (Jai Nand) Jamadar in the Supreme Court was attached to CJI since 1969. His presence in the car at the time of attack is not under challenge. He was in a position to observe the sequence of events Insp.Sajjan Singh who went to the spot recorded Jai Nand‟s statement (Ex.P-16). It formed the basis of First Information Report. This statement made by PW-2 in the FIR brings out important facts leading to the offence Crl.A.Nos.443/1976 & 436/1976 Page 28 of 201 and the part of the statement as quoted by the Trial Court in the impugned judgment reads :

“No sooner did the car pull up at the stop line then a young man nearly 5‟.8” in height, sallow complexion, medium built, wearing a light sky blue shirt and brown pants came to the car from the left side (i.e. east side) foot path of Tilak Marg and threw something at the Chief Justice in the car. I heard the thud of that object falling in the car, turned round and saw that that man had thrown another object in the rear seat of the car. That man then went behind the car and ran towards Bhagwan Dass Road. I immediately opened the

door, got out and chased that man, shouting „pakro, pakro‟. He entered a taxi waiting at Bhagwan Dass Road. Seeing me still chasing him, he got out of the taxi and started running. A constable in uniform who had heard my shouts tried to intercept that man, but he succeeded in eluding him and crossing into the Garhwal House over its gate.

Constable Jai Lal (I learnt his name subsequently) and I and some other persons including SI Om Prakash (I learnt his name later) continued the chase. That man scaled the rear gate of Garhwal House and disappeared behind the Haryana House. He had earlier discarded his chappals at the road near the car. On my return to the car after the chase, I found that the Chief Justice and his son had already gone back to the Supreme Court. Driver Inder Singh, who was present near the car, told me that, that man had thrown hand grenades in the car. I myself saw the hand grenades lying on the floor board of the car, rear-side. Two kerchiefs and a piece of newspaper were also lying nearly. I can identify that man.”

33. The complainant gave a graphic detail of the incident at the earliest available opportunity. He claimed to have witnessed the assailant Crl.A.Nos.443/1976 & 436/1976 Page 29 of 201 who had thrown the hand-grenade in the car; described his identifying features and asserted to identify him. While appearing as PW-2, Jai Nand proved the version given to the police at the first instance without major variations. He deposed that after hearing the „sound‟ of something falling inside the car on the side on which son of the Chief Justice was sitting, he looked that side, but could see nothing. When he turned behind, he saw „another‟ person, standing on the side of the car where the Chief Justice was sitting. The said „man‟ wrapped „something‟ in a handkerchief and threw through the window at the place where CJI was sitting. He explained that the said „man‟ had come close to the car. When he inquired as to what he was doing, the „man‟ wearing a light blue shirt and pants of brown colour, immediately ran away. He chased him shouting „pakro – pakro‟. The said „individual‟ ran towards Bhagwan Dass Road and entered into a waiting taxi at Bhagwan Dass Road but instantaneously came out of it and ran. On hearing him „pakro – pakro‟, a constable from DDA flats tried to catch hold of him but he succeeded eluding him (the constable), and crossed the gate of Garhwal House. The witness further stated that he saw one of the chappals being discarded by him on the right- hand side of the car. The other chappal was discarded at some distance from there. These were „hawai‟ chappals with a strap. He and other Crl.A.Nos.443/1976 & 436/1976 Page 30 of 201 chasers crossed the Garhwal House in pursuit of the assailant. He could see that „man‟ only up to the rear gate of the Garhwal House and thereafter, he disappeared. After crossing the rear gate, he went up to Haryana Bhawan but could not find the assailant. He returned to the scene of occurrence at about 05.00 or 05.15 P.M. where the police had already arrived. PW-2 (Jai Nand) identified A-3 to be the assailant who was chased by him. He also identified A-1 to be the „individual‟ to whom he had seen standing behind the car and „staring‟ around. He elaborated that A-3 did not have any beard or long hair that time. He further deposed that on July 30 or 31, 1975, he went to Tihar jail for identifying the culprits but the identification parade did not take place.

34. In the cross-examination (on behalf of A-1), the witness revealed that the police recorded his statements in March, July and August, 1975. He explained and clarified that he had only heard the „sound‟ of the first article falling in the car and was unaware whether that article was thrown inside the car from the left or right side. He was emphatic that he only saw „one‟ man throwing an article into the rear seat of the car only once and his description was given by him to the police. He admitted the suggestion that the description of that „man‟ standing behind the car was similar to that of A-1 minus his beard and long hair. Crl.A.Nos.443/1976 & 436/1976 Page 31 of 201 He denied the suggestion that he had mentioned about the „second‟ man standing behind the car for the first time in his statement before CBI. The witness was emphatic to say that he could not say definitely whether the „man‟ to whom he had chased had thrown both the hand-grenades or only one. He claimed that he saw A-1 face to face from close quarter. His statement was recorded at about 06.00 P.M. at the spot and it took 15 minutes. The witness further revealed that he did not note the number of the taxi.

35. In the cross-examination (on behalf of A-3), he asserted that the „man‟ to whom he saw on the left side rear window of the car was standing hardly a half feet away from the car. He had thrust his hand inside the car while throwing the hand-grenade. The said „man‟ had already left the spot before his getting out of the car and he had chased him shouting „pakro – pakro‟ and not „chor – chor‟. The witness further revealed that window panes of the car were already down while leaving the Supreme Court. He saw the face of the fleeing culprit thrice; First, when he was standing near the car; second time when he entered into the taxi; and lastly, when he was scaling the front gate for one or two seconds each time. The distance between the taxi and the car was about 200 or 225 yards.

Crl.A.Nos.443/1976 & 436/1976 Page 32 of 201

36. He elaborated that he only saw „something‟ falling in the handkerchief and had heard the „Thud‟ of falling of the second article. He denied the suggestion that he had seen „someone‟ else fleeing from the scene of occurrence and that A-3 was falsely implicated at the instance of the police.

37. On scrutinizing the entire statement, it is clear that despite searching and lengthy cross-examination, no material discrepancies could be elicited to disbelieve the cogent and reliable version narrated by this independent and natural witness who had no ulterior motive to give detailed account of the occurrence and to describe the feature of the assailant to whom he had seen fleeing from the spot (after throwing an article inside the car). Presence of the witness and his reaction soon after the occurrence to chase the culprit was quite natural and reasonable. His presence with CJI was not accidental, but consistent with his duties. He had no prior animosity or acquaintance with any of the accused to create a false evidence at the instance of the police or CBI. None of the assailants was named or implicated by him in his statement (Ex.P-16). The discrepancies, omissions and improvements highlighted by learned counsel for the appellants are not material to suspect his testimony in its entirety. The horrible occurrence was sudden and unexpected. It was not Crl.A.Nos.443/1976 & 436/1976 Page 33 of 201 expected from the witness to describe it minutely in the FIR. The primary object of the FIR from the point of view of the informant is to set the criminal law in motion. The prompt and early reporting of the occurrence with all its vivid details gives an assurance regarding truth of the prosecution version. It is vital and valuable piece of evidence for appreciating the evidence led at the trial. It is manifest that an FIR is not intended to be a very detailed document and is meant to give only the substance of the allegations made.

FIR is not an encyclopedia. It need not contain an exhaustive account of the incident. Non-mentioning of minute details thereon does not mean that the facts do not exist and its author was not aware of the details. At that point of time, recording of the statement (Ex.P-16) was to set the police machinery into motion. There is every possibility of minor mismatch between the version recorded in 161 Cr.P.C. and the statement given in Court. In „Naresh Kumar vs. State‟, 206 (2014) DLT (1) DB, this Court held :

“It is a settled legal position that the statement of any witness recorded by the police officer during the

course of investigation is not a substantive piece of evidence and the same can be used only for the limited purpose of contradicting prosecution. No sanctimony

Crl.A.Nos.443/1976 & 436/1976 Page 34 of 201 has been attached to the statement of a witness

recorded by the police during the course of

investigation as before the police witness is susceptible to all kinds of pulls and pressures to follow a

particular line and therefore, ultimately it is deposition of a witness before the Court of Law which is held to be sanctimonious……”

38. PW-2 (Jai Nand), whenever confronted with the statement (Ex.P-16) gave plausible explanation and clarified the mismatch. The material facts deposed by him remained unchallenged and uncontroverted in the cross-examination. Futile attempt was made to argue that the witness had initially introduced the story of „one‟ assailant in the FIR. Subsequently, in connivance with CBI, he made significant improvements in his Court deposition and introduced the theory of „two‟ assailants who had thrown the hand-grenades inside the car. Scanning the contents of the FIR, it transpires that the witness was sure that a young „man‟ whose description was given in the FIR had thrown an „object‟ in the rear seat of the car. He did not in categorical terms rule out the presence of „some one‟ else. In Court statement, he gave reasonable and acceptable explanation. Apparently, the shocking incident had taken place unexpectedly in a fraction of second. The occupants in the car were taken by surprise and did not know as to what had really happened. The Crl.A.Nos.443/1976 & 436/1976 Page 35 of 201 unprecedented event bewildered all of them. When PW-2 (Jai Nand) heard the thud / noise / sound of an „object‟ falling in the car at the first instance, his natural reaction was to turn back and find out as to what exactly had happened. At that moment, he saw an „individual‟ standing on the side of the car throwing the „object‟ through the open window. The witness had even asked the „man‟ as to what he was doing. When the said „individual‟ ran away, PW-2 immediately chased him shouting „pakro – pakro‟. He did not state in so many words that the first „object‟ of which he had heard the noise / thud was handiwork of the assailant who had thrown the „object‟ through the window. He had not stated or disclosed that both the objects were thrown inside the car by „one‟ and the same individual. After return from unsuccessful chase to A-3, he found that two hand-grenades were thrown inside the car. In the cross-examination, the witness elaborated and explained that he was not a witness when the first hand-grenade was thrown inside the car and had not seen the said „assailant‟. During investigation, it revealed that A-1 was the assailant to whom the witness had seen standing behind the car „staring‟ while the other assailant who had thrown the hand-grenade had fled the spot and was chased by him. Even in his deposition before the Court, PW-2 (Jai Nand) did not depose if A-1 had thrown the object / hand-grenade inside Crl.A.Nos.443/1976 & 436/1976 Page 36 of 201 the car. Neither this witness nor the investigating agency had any clue about the perpetrators of the crime at that time. The appellants‟ contention of introduction of „two‟ men theory subsequently is devoid of any merit.

39. PW-2 (Jai Nand) made a positive identification of A-1 and A-3 in the Court. Earlier, he had gone to Tihar Jail to participate in the TIP. On July 30, 1975, A-1 and A-3 declined to join the TIP. In written applications (Ex.P2 & Ex.P3), they attempted to justify refusal for non- participation in TIP alleging that their faces remained uncovered and they were shown to witnesses at the airport and out side the Courtroom where they were produced. They, however, did not name the officer who had directed them to uncover their faces. They also did not name any specific individual to whom they were shown. No complaint was lodged or made by them to the Metropolitan Magistrate before whom they were produced that day. It is worthy to note that in the cross-examination, not a single question was put to PW-2 (Jai Nand) if he had gone to Delhi Airport on July 28, 1975 or at Tis Hazari Courts, or that he was among the individuals who had seen them that day. The application for holding TIP proceedings was moved in promptitude without any delay soon after the culprits were brought to Delhi. Remand application (Ex.P-30) and order of the Court (Ex.P-30/A) reflect that A-1 and A-3 were produced in muffled Crl.A.Nos.443/1976 & 436/1976 Page 37 of 201 faces and no grievance was raised by them that time. PW-2 (Jai Nand) had no extraneous consideration to falsely identify A-1 and A-3 in the Court. It is trite to say that the substantive evidence is the evidence of identification in Court. The facts, which establish the identity of the accused persons are relevant under Section 9 of the Evidence Act. PW-2 (Jai Nand) had reasonable, fair and sufficient opportunity to observe and note the broad features of the assailant (A-3) to whom he had seen throwing the hand-grenade inside the car. The occurrence had taken place during day time on March 20, 1975 when there was sufficient light at the spot. It enabled PW-Jai Nand to identify the assailant. Not only PW-2 (Jai Nand) had witnessed A-3 throwing the hand-grenade inside the car, he had given a long chase and had seen him attempting to take shelter in the taxi standing nearby and then coming out of it soon thereafter and escaping after going inside the Garhwal House. It is quite possible for him to remember the features of the assailant as he had direct confrontation / encounter with A-3. No suggestion was put in the cross-examination that the description given by the witness in FIR did not tally with the features of A-3. Regarding A-1, the witness had merely a fleeting glance and had purportedly seen him while standing behind the car after he had come out of the car to chase A-3. He did not describe his features at that time. Crl.A.Nos.443/1976 & 436/1976 Page 38 of 201 Corroboration will be required to establish A-1‟s identity in these circumstances.

40. On a consideration of the evidence, this Court holds its disagreement with the Trial Court that the prosecution had failed to establish by the evidence of PW-2 (Jai Nand) with regard to identification of the culprits. In „Harijana Thiru Pala and Others vs. Public Prosecutor, High Court of Andhra Pradesh‟, Supereme Court observed : “Doubtless the High Court in appeal either against an order of acquittal or conviction as a Court of first appeal has full power to review the evidence to reach to its own conclusion “

In „Shyam Babu and Others vs. State of Haryana‟, AIR 2009 SC 577, Supreme Court held that where the accused persons had refused to join TIP, it would speak volumes, about their participation in the crime.

41. A fair reading of the evidence tendered by this witness makes it evident that he has stated the facts seen by him in a simple manner without any noticeable embellishments. What is mentioned by the witness is that he had seen A-3 running and „hurriedly‟ entering into the taxi and fleeing thereafter. It was not explained by A-3 what made him to run away from the spot, entering into taxi and then disappearing from the spot. Nothing was suggested if A-1 or A-3 were available outside Delhi. PW-2 Crl.A.Nos.443/1976 & 436/1976 Page 39 of 201 is certain about the identity of A-3 and the role played by him in the occurrence.

42. Another equally important witness is PW-7 (Om Prakash) who was posted in Special Branch of CID in March, 1975 and was on ten days‟ leave for preparation of LLM studies. He lived in quarter No. 4, Type-III at Tilak Marg. On March 20, 1975, at about 04.15 P.M., he was going on cycle to his flat from the side of Tilak Bridge. He deposed that when he reached near the traffic lights, he heard people shouting „pakro – pakro‟at Bhagwan Dass Road. He saw an „individual‟ in white uniform with a white turban (identified PW-2) chasing the culprit wearing a blue shirt, badami pants, slim in body, sanwla complexion, short moustaches and hair. He joined the chasers. The fleeing man entered into a taxi standing at Bhagwan Dass Road near DDA flats; soon came out of it; fled towards Garhwal House and entered into it by scaling over its gate. He identified A-3 to be the individual who was being chased. He further deposed that A-3 was unable to be caught and he returned to the spot. He also saw two „chappals‟ lying on the right side of the car. He identified A- 3 at R.K.Puram after he declined to join TIP in Tihar.

43. In the cross-examination, he stated that Jai Nand (PW-2) was with him on return to the scene of occurrence from Haryana Bhawan. He Crl.A.Nos.443/1976 & 436/1976 Page 40 of 201 admitted that in his statement (Ex.D8) to the CBI, he had given the number of the taxi, DLT something like “14‟, „49‟ or „69”. He admitted that in his statements (Ex.D18 and Ex.D19), he had not mentioned about the „chappals‟ lying at the spot. He denied the suggestion that statement given by him in the Court was a hearsay account given to him by the Jamadar on their way back.

44. Replying to the question put on behalf of the A-3, he recalled that it was Jamadar who was shouting „pakro – pakro‟. He denied the suggestion that he had to wait at the traffic lights for 50 seconds from the time he had heard „pakro – pakro‟ until the traffic light turned green. He explained that face of the fleeing culprit was seen thrice; first when he entered the taxi; second when he came out of it and third when he scaled over the rear gate for 10-15 seconds each time. He denied that false evidence was given by him expecting departmental promotion.

45. On examination of the testimony of this independent witness, it transpires that he has corroborated the version given by PW- Jai Nand without major variations. Presence of this witness was natural and probable as he had residential accommodation in flats at Tilak Marg near the crime spot and had given chase to an „unknown‟ culprit. It cannot be accepted that he was a planted witness. His statement under Section 161 Crl.A.Nos.443/1976 & 436/1976 Page 41 of 201 Cr.P.C. was recorded the same day when even the identity of the assailants was not known. The witness being in responsible official job was not expected to falsely implicate an innocent one. He gave minute detail of the sequence of event which prompted him to chase the fleeing culprit even though he was not aware as to what was the offence committed by him. Being a police officer, his natural instant reaction on hearing the shouts of „pakro – pakro‟ was to chase the fleeing culprit. In the performance of his duty, among other chasers, he attempted to catch hold of the fleeing man. Soon after return to the spot, he described the salient features of the fleeing man and volunteered to participate in the TIP. In Court, he had no hesitation to recognize and identify A-3 to whom he had given an unsuccessful chase. In the absence of prior animosity or ill-will, this witness had no extraneous consideration to falsely identify him. It is true that for certain omissions in the statements (Ex.D18 and Ex.D19) recorded by police and CBI, he has been confronted. However, these omissions or improvements do not discredit the version given by him on material facts. Presence of this witness at the spot was not challenged in the cross-examination.

46. Another important witness on similar facts examined by the prosecution is PW-65 (Jai Lal, Ex. Constable). In March, 1975, he was Crl.A.Nos.443/1976 & 436/1976 Page 42 of 201 posted in the demolition squad of the DDA at Vikas Bhawan and was on duty at the residence of Sh. Jag Mohan, Vice Chairman, DDA, flat No. 1 at 7, Bhagwan Dass Road, New Delhi. On March 20, 1975, at about 04.15 P.M., after hearing shouts of „pakro – pakro‟, he went out on the patari and witnessed 4 or 5 persons coming from Tilak Marg side chasing a culprit who wanted to enter the DDA flats. Being at the gate, he stood ready to catch hold of him but the assailant jumped over into Garhwal House locked at that time after eluding him. He prompted PW-Ramji Lal on duty in the inquiry office to block him near the rear gate of Garhwal House. PW-Jai Lal identified A-3 to be the assailant to whom he had chased unsuccessfully. In the cross-examination (on behalf of A-1), he further highlighted that a taxi was standing at a distance of nearly 50 yards from the gate.

47. In the cross-examination (conducted by A-3), he explained that he saw the face of the culprit only once when he came face to face while he stood poised for catching hold of him in his arm. He reasoned for not running towards the culprit to catch hold of him, because he himself was coming to his direction to enter the gate.

48. On a consideration and appraisement of the deposition of this independent public witness, it reveals that he had no concern with Delhi Crl.A.Nos.443/1976 & 436/1976 Page 43 of 201 police or CBI and was on duty at the relevant time near the spot. It makes him a credible and reliable witness and his testimony inspires implicit confidence. He was not acquainted with the fleeing man and was not aware as to what crime he had committed. Being on duty at the residence of Vice Chairman, DDA it was natural for him to chase the fleeing man after hearing shouts of „pakro – pakro‟. He joined other chasers to apprehend the fleeing man whose identity was not known to him. In his statement recorded on the same day by Delhi police, he gave detailed account of the occurrence and unsuccessful chase. The witness had direct confrontation with the fleeing man who wanted to enter DDA flats to escape. When this witness got ready to apprehend him, he eluded him and went inside the Garhwal House by jumping into it. Again, this witness chased him to that place. Presence of this witness at the spot has not been denied or disputed. No ulterior motive was assigned to him to make false statement. The name of this witness emerged on the day of occurrence itself. The fact that the fleeing man was not named by him shows that he had no animosity with anyone to fabricate a false story. The witness had clear and reasonable opportunity to observe broad features of the fleeing man as his face was seen by him from close quarters during day time. He was transferred after 2 or 3 days of the occurrence and nothing has Crl.A.Nos.443/1976 & 436/1976 Page 44 of 201 emerged if he remained in contact with the police thereafter to see the culprit at the time of his production in the Court. In the absence of any material inconsistency, I find his testimony in consonance with the testimonies of PW – SI Om Prakash and PW-Jai Nand. All these witnesses unequivocally identified A-3 to be the assailant chased by them soon after the crime.

49. PW-33 (Ramji Lal Sharma) working as Assistant Wireman at DDA Flats situated at No.7, Bhagwan Dass Road, deposed on similar lines. On hearing the shouts of „pakro – pakro‟, he was among the chasers to apprehend the culprit who disappeared after scaling Garhwal House. PW-33 (Ramji Lal Sharma) recognized A-3 to be the culprit who was chased by him that time. Presence of the witness being on official duty is not under challenge. He corroborated the version given by other chasers and also saw A-3, entering into a taxi standing nearby. He claimed that he had seen the face of the culprit for 2 / 3 seconds. He admitted the suggestion that “it is correct that on turning into the Bhagwan Dass Road, I had gone up to traffic lights and stopped there.” Apparently, the version given by the witness to have chased the assailant has not been denied. This official witness having no animosity with A-3 had no reason to falsely implicate him. Presence of this witness emerged on the day of Crl.A.Nos.443/1976 & 436/1976 Page 45 of 201 incident itself when Delhi Police recorded his statement under Section 161 Cr.P.C.

50. From the statements of the witnesses referred above, it stands established that after hand-grenades were thrown inside the car of the CJI, PW – Jai Nand and others gave a chase to the fleeing assailant. The said assailant after discarding the „hawai‟ chappals at the spot ran to escape in a taxi standing nearby and entered into it hurriedly. He immediately came out of it and jumped into Garhwal House to avoid apprehension by the chasers including PW – Jai Nand. But for this exercise, there was every possibility of his apprehension as the gap between the two was very short. Since the occurrence had taken place during broad day light in March, the chasers had clear and sufficient opportunity to observe and note the broad features of the said man. The description and identifying features of the fleeing man were described / mentioned by the chasers in their statements recorded soon after the incident. The assailant was subsequently, identified as A-3 in the Court by the witnesses at the time of their examination. Adverse inference is to be drawn against A-3 for not participating in TIP without justifiable reasons. A-3 had fled the spot soon after the „object‟ was thrown by him from the left window of the car. Jamadar even had some confrontation when he enquired from him as to Crl.A.Nos.443/1976 & 436/1976 Page 46 of 201 what he was doing. A-3 did not give plausible explanation as to what had led him to be present there to throw the „object‟ inside the car. A-3 was unable to explain as to why he was running away from that place. No suggestion was put in the cross-examination to any witness that on the relevant date and time, A-3 was available / present at a different specific place. In 313 statement, A-3 did not claim his presence at any other particular place. He claimed that he did not return to Delhi, after he left it in the end of 1970. However, he was conspicuously silent as to where else his place of residence or work was thereafter. It was imperative for A-3 facing serious allegations of a murderous assault on CJI to specifically disclose his presence on that day at a particular place of residence / job. However, he did not reveal anything. Adverse inference under Section 106 Evidence Act is to be drawn against A-3 as these facts which were within his special knowledge were not divulged. In 313 statement, he admitted his arrest along with Vikram on July 24, 1975, at Bhagalpur. Again, he did not explain as to how he had come into contact with Vikram and how they happened to be together at Bhagalpur for any specific purpose. A-3 holding an important position as „Avadhoot‟ in the „Organization‟, disclosed that after he left Delhi, he went to different places including Madras and Bombay. However, he did not examine any Crl.A.Nos.443/1976 & 436/1976 Page 47 of 201 witness or produce any document to show that he continued to work regularly at a particular place till 20 March, 1975. He also did not produce any document to show his whereabouts from March 20, 1975 to July 24, 1975 when he was arrested. This small piece of evidence showing his presence at his place of job or residence would have exonerated him of all the charges.

(c) PW-5 (Charan Singh) – Movement on day of incident and identity of A-1 & A-3

51. The prosecution examined PW-5 (Charan Singh), an illiterate licenced taxi driver plying taxi (DLT-1469 make Ambassador) at Gole Market, Taxi Stand for the last ten years. He is the most crucial natural witness having no affiliation with any of the parties. No ulterior motive was attributed to him for making false statement. He had no criminal antecedents and never appeared as a witness in any criminal case.

52. In his Court statement, he gave detailed account of the occurrence that took place on 20.03.1975. He elaborated that on that day at about 02.00 P.M. at Gole market, Taxi Stand, an old man (identified as Tilak Raj Bhatia – PW-4) hired the taxi for sight-seeing and took him to his companions standing at a distance of 20 / 25 yards (identified as A-1, A-3 and PW-Vikram). They occupied the rear seat and Tilak Raj Bhatia Crl.A.Nos.443/1976 & 436/1976 Page 48 of 201 sat next to him in the front seat. The taxi was first taken to Budha Jayanti Park where all of them went inside it to return after 15 / 20 minutes. Thereafter, it was taken to India Gate via Shanker Road and Rail Bhawan. There, they all consumed ice cream from an ice-cream vendor. All the passengers except Tilak Raj Bhatia went to Amar Jawan Jyoti. After returning to the taxi, A-1 ordered to take the taxi to Children‟s Park. Again, they all except Tilak Raj Bhatia went inside Children‟s Park and returned after 15 or 20 minutes. A-1 thereafter, asked him to hurry up to Bhagwan Dass Road as they had to meet someone there or else would miss him. He drove to Bhagwan Dass Road by the side of Patiala House Court via Tilak Marg and stopped the taxi at the left hand side of Bhagwan Dass Road near an electric pole. All the three passengers in the rear seat got out of the taxi, asking Tilak Raj Bhatia to wait in the taxi. After about ten minutes, he heard the voice of „pakro – pakro‟ from the side of Tilak Marg. A man (identified A-3) came running from that side wanted to enter into the taxi from left hand side rear door but he was not allowed to do so as it was not available for hire. A-3, wore a blue shirt, Badami colour pants and was barefoot. He went into Garhwal House after scaling its closed gate. 5 or 7 persons chased him shouting „pakro – pakro‟ and two of them crossed the gate of the Garhwal House in his pursuit. He Crl.A.Nos.443/1976 & 436/1976 Page 49 of 201 further deposed that A-1 returned to the taxi after 2 or 3 minutes of A-3‟s entry in the Garhwal House and asked him to drive him to Connaught Circus. Since he had some doubts, he refused to go and got his fare ` 18.50/- as per meter reading. Thereafter, A-1 and Tilak Raj Bhatia went away in the direction of Supreme Court and he drove the taxi to Connaught Place. PW-Charan Singh further elaborated that A-1 had carried a black colour bag in his hand inside the taxi; he took it with him while going inside Budha Jayanti park and Children‟s Park. At Bhagwan Dass Road, when the passengers sitting in the left rear seat (A-1, A-3 and Vikram) went out, they left behind the black bag in the taxi. PW-Charan Singh identified A-1 in the Court adding that he had no beard, long hair and moustaches that time. After recognising A-3 in the Court, he recalled that he had occupied middle rear seat and had disappeared in Garhwal House. He identified Vikram, the approver, to be their third companion.

53. He further deposed that in the 7th month of the year 1975, the police along with Tilak Raj Bhatia approached him at Gole Market, Taxi Stand. He recognised him (PW-Tilak Raj Bhatia) and thereafter, he was taken to R.K.Puram. He and Tilak Raj Bhatia went to Central Jail Tihar for participation in identification parade which did not take place. After 10 / 12 days, he was called at R.K.Puram where Vikram and A-3 were shown Crl.A.Nos.443/1976 & 436/1976 Page 50 of 201 to him. His taxi in question was seized which he got released on „superdari‟.

In the cross-examination, he explained that after purchase of the taxi from Naldev Singh, he was plying it for the last four years and his badge number was 15262. He was in prescribed khaki uniform that day. He described the details of the route taken to finally reach Bhagwan Dass Road. He informed that the three individuals were visible to him for a distance of 5 / 7 yards at Bhagwan Dass Road till they separated from each other. About Vikram, he informed that he did not see him crossing into the Garhwal House. Vikram did not return to the taxi. He denied the suggestion that he had demanded money from the accused persons to pay off ` 8,000/- debt to Gurdial Singh and on their refusal, the false statement was given. He claimed that he did not owe money to anyone. He disclosed that A-1 was wearing canvas shoes, whereas Vikram and Tilak Raj Bhatia were in black leather shoes and boots respectively. He stated that Tilak Raj Bhatia did not ask the three passengers as to whom they wanted to meet and why they were in a hurry. He admitted that he did not catch hold of A-3 to prevent him from entering the taxi. He came to know about the incident the following day. On return to the taxi stand, he did not talk to any of his friends or colleagues as to what had happened. Crl.A.Nos.443/1976 & 436/1976 Page 51 of 201 He denied the suggestion that he was taken into custody and was beaten by the police at R.K.Puram.

54. I have critically examined the evidence tendered by this witness. His version appears to be natural and probable. The appellants could not elicit any material discrepancies or contradictions in the cross- examination to disbelieve the version narrated by him minutely; his deposition on material facts remained unchallenged and unrebutted. Barring minor omissions in his earlier statements (Ex.D-9 and Ex.D-10), there were no noticeable improvements or deviations. No oblique motive was assigned to this illiterate and rustic witness to implicate the appellants. He had neither any grudge to grind against the appellants nor anything has been suggested to him. He was not acquainted with them. He had witnessed the sequence of events while performing his duty as taxi driver and had taken the passengers from one destination to other on payment of fare. He identified A-1 and A-3 besides approver Vikram and PW-4 (Tilak Raj Bhatia) in the Court to be the passengers who had travelled in the taxi on that day and had ultimately left them at Bhagwan Dass Road near the place of incident. He had visited Tihar jail to participate in TIP which the assailants declined to join. PW-5 gave vivid and detailed account as to how the passengers had visited various places Crl.A.Nos.443/1976 & 436/1976 Page 52 of 201 before arriving at the spot. The accused persons did not deny their presence in the taxi that day. They did not offer reasonable explanation of their visit to various places prior to arriving at the crime scene; did not give any justification for abandoning their idea to go for sight-seeing. Apparently, the assailants before arriving at the destination had taken the taxi here and there to squander the time. His omission to report the incident to the police at the first instance does not dilute or dent his testimony. Moreover, he was not sure as to what really had happened or if the passengers in the taxi were the real assailants. Being unacquainted with the appellants, there was least possibility of this witness to lodge report with the police. His statement inspires complete confidence as he had no attachment / connection with the „Organisation‟ to which the assailants belonged. His entire version is in consonance with the testimony of PW-Tilak Raj Bhatia and that of approver- Vikram. CBI was not aware of him and reached to him when PW-4 (Tilak Raj Bhatia) took them to Gole Market, Taxi Stand where he was expected to be present with taxi. To lend credence to his testimony certain suggestions put to him in the cross-examination are worth-noting. “It is correct that when they hired my taxi, the meter showed the minimum charges at ` 1.60; I deny the suggestion that I could not recognise Sudevanand (A-3) and that I Crl.A.Nos.443/1976 & 436/1976 Page 53 of 201 refused to let him enter the taxi thinking that the same had been hired by other passengers; I deny the suggestion that a police man came to me and arrested me and thereafter he asked me that I would not be released unless I told the whole thing to him.” There exist no ground to eschew his evidence especially when the Trial Court found his evidence trustworthy and relied upon it. He candidly stated all that he had seen. The tenor of his evidence is such that it is not possible to say that he has falsely implicated the accused. His evidence has a ring of truth. When he suspected something amiss, he refused to carry the passengers further. (d) PW-4 (Tilak Raj Bhatia) – Conspiracy, Movements on the day of incident – identity of A-1 & A-3

55. Star witness examined by the prosecution is PW-4 (Tilak Raj Bhatia). Undisputedly, he was ardent follower of the „Organisation‟ since 1966 having complete faith in it. However, in 1973, he drifted from the said „Organisation‟ due to self-immolation by some followers to secure release of Anand Murti @ Baba. Notwithstanding that, he continued to maintain previous contacts and connections with his fellows and stood surety for Gunadhishanand and other after the self-immolation episode. He and A-1 were known to each other since 1969 and gradually the familiarity grew. A-1, an accused in the self-immolation case was wanted Crl.A.Nos.443/1976 & 436/1976 Page 54 of 201 by police. It is not clear whether he was Proclaimed Offender. However, PW-84 (R.L.Bhagat, Advocate) who represented State as Addl. Public Prosecutor in case titled „State vs. Acharya Puriyanand and Others‟ was certain that A-1 was a Proclaimed Offender. PW-4 deposed that A-1 established connection with him in June or July, 1974 when he (A-1) came at his shop at Punchkuin Road and took him to Pusa Institute where he was introduced to PW- Shiv Raj Singh in a park. A-1 visited him again next day at his shop and took him to the hostel where Shiv Raj Singh stayed. A-1 requested him to arrange / procure arms and ammunitions and to remain in contact with Shiv Raj Singh. A-1 again met him in January, 1975 at his shop and enquired about delay in procuring the arms.

56. In Court statement, PW-4 corroborated the version given by PW-5 (Charan Singh), taxi driver, on all relevant and material facts. He deposed that on 20.03.1975, A-1 came at his shop at about 02.00 P.M. and took him to Rama Krishna Marg near Punchkuin Road on the pretext to have something urgent to talk. A-1 introduced him with his two companions, one of whom (Vikram) was already known to him. The other (A-3) had purportedly come from Bihar for sight-seeing. On A-1‟s request, he hired a taxi of a Sardarji from Gole Market, Taxi Stand. He further deposed that they all i.e. A-1, A-3 and Vikram took seats in the Crl.A.Nos.443/1976 & 436/1976 Page 55 of 201 rear seat of the car and he sat next to the taxi driver in the front seat. Thereafter, the taxi was taken to Budha Jayanti Park where they all four went inside the park with the bag. After return to the taxi within 15 or 20 minutes, they went to India Gate and ate ice creams from an ice-cream vendor for which payment was made by A-1. Leaving him and the taxi driver, the trio went to Amar Jawan Jyoti; returned after 10 minutes; occupied their original seats in the taxi and proceeded to Children‟s Park. On return after 10 or 15 minutes, they appeared to be in a hurry. A-1 commanded the taxi driver to hurry up to Bhagwan Dass Road as he had to meet someone there or else they would miss him. The taxi drove to Bhagwan Dass Road via Stadium and Tilak Marg and the driver stopped it at Bhagwan Dass Road near an electric pole by the side of DDA flats facing Connaught Circus at about 04.00 P.M. A-1, A-3 and Vikram got out the taxi and went away towards Supreme Court telling them to wait. After a little while, the driver and he came out of the taxi. Vikram stopped at the corner of DDA flats at the crossing; A-1 stood at the opposite corner of the crossing of Bhagwan Dass Road and Tilak Marg and A-3 stopped at the traffic lights towards Supreme Court. The witness further disclosed that after 5 or 7 minutes, noise of „Pakro-Pakro, Bhag Gaya – Bhag Gaya‟ attracted his attention and he saw an individual (identified as A-3) running Crl.A.Nos.443/1976 & 436/1976 Page 56 of 201 bare foot; entering the taxi by opening the door. Since the taxi did not start, A-3 immediately exited and ran towards Garhwal House. A Constable came running from the side of DDA flats, attempted to intercept but he eluded him and scaled the closed gate of Garhwal House and went inside it. 4 or 5 other chasers were unsuccessful to catch hold of him. He and the taxi driver were in a fix as to what had happened. Soon, A-1 came from Supreme Court side and commanded the driver to take the taxi to Connaught Circus. On getting suspicious, the driver declined and got his fare ` 18/-. A-1 took his black bag from the taxi and they both proceeded towards Tilak Bridge. When he enquired from A-1 about his two companions, he advised him to keep quiet. After A-1 parted company at the juncture of Sikandra road and Tilak Marg, he came to his shop by a bus and did not see A-1‟s companions thereafter.

57. In the cross-examination, he reiterated the version stated in examination-in-chief and did not deviate on material aspects. Despite searching and detailed cross-examination, nothing cogent and material could be extracted to shatter his testimony or to disbelieve him. No ulterior motive was assigned to this witness implicating the accused persons with whom he had strong bonds being followers of the same „Organisation‟. He admitted that he did not report the police about the Crl.A.Nos.443/1976 & 436/1976 Page 57 of 201 incident after reading about it in the newspaper on 21.03.1975. He explained that he did not do so due to fear and was apprehensive of elimination like other defectors. He denied the suggestion that he was threatened by the police to give the evidence as desired or else he would be arrayed as an accused. He had no acquaintance with the taxi driver before and denied that he was connected with him since partition days. He explained that CBI officials met him after the occurrence in July, 1975 at his shop and enquired if he knew A-1. Thereafter, at Gole Market, Taxi Stand, he identified PW-5 (Charan Singh) whose taxi was hired that day. In para No.31 of the cross-examination, the witness gave graphic detail of the route taken by them from Gole Market from where the taxi started and finally halted at Bhagwan Dass Road. In the cross-examination (on behalf of the A-3), the witness disclosed that he had participated in Satyagraha at Delhi after the case of self-immolation at Delhi to secure the release of Baba. Suggestion was put that he knew very well that A-1 was a fugitive from justice and that he went along with him at that time because he wanted to help him. He came to know about A-1‟s arrest in July 1975. He denied the suggestion that the code word “Foreign radio” was suggested by him. He denied that he had taken all the three persons along with him right up to the taxi stand. In the cross-examination (on behalf of A-1), he Crl.A.Nos.443/1976 & 436/1976 Page 58 of 201 disclosed that he had pointed out towards a taxi driver at the taxi stand when he came out of the taxi after 30 or 40 minutes of their reaching. He denied the suggestion that in his statement recorded earlier he had not given the number of taxi as it could result in its seizure. He admitted that in his statement (Ex.D7) from portion „B‟ to „B‟, he did not mention that A-3 had opened the door of his taxi, got into it and then came out. He explained that actually that was what had happened. He admitted that he did not see the „chappals‟ at Tilak Marg.

58. I have scanned the testimony of this crucial witness. The defence has not made any dent in his evidence by cross-examining him. Certain omissions / improvements in his earlier statements recorded before the CBI / Court were not enough to discredit his testimony in its entirety. Various suggestions put to him in the cross-examination lend credence to the prosecution case about the presence of this witness in the taxi in question. PW-4 had arranged the taxi in question from a Taxi Stand at Gole Market near his place of work and had accompanied the appellants without nurturing any suspicion as it was pretended that A-3 who had come from Patna would like to go for sight-seeing in the taxi. Since the taxi was taken at different locations i.e. India Gate, Children‟s Park, Buddha Park before arriving at the place of occurrence, this witness had Crl.A.Nos.443/1976 & 436/1976 Page 59 of 201 no reasons to doubt or suspect the bonafide of A-1 with whom he was associated since long and did not nurture any grudge. Apparently, he was not aware of the plan to be executed by A-1, A-3 and approver Vikram that day. He was very much used by A-1 without letting him know of his exact plan. His testimony is in consonance with PW-5 (Charan Singh). PW-4 and PW-5 corroborate the version given by approver Vikram regarding the incident that took place on March 20, 1975. Assertions on relevant facts have remained unchallenged and uncontroverted in the cross-examination. PW-4 even did not lodge any complaint with the police about the incident apparently to save the culprits. Only when the police reached to him after A-1‟s disclosures, he divulged the sequences of the events that occurred on March 20, 1975. PW-4‟s statement describes the occurrence in its proper course. I do not find it appropriate to discard his statement as not inspiring confidence. The statements of the witness must be appreciated in proper perspective.

(e) Extrajudicial confessions – Made by A-1 – Evidentiary Value

59. The next important piece of evidence / circumstance relied upon by the prosecution is extra judicial confessions alleged to have been made by A-1 to PW-44 (Ranbir Singh), PW-55 (Shiv Raj Singh) and PW- Crl.A.Nos.443/1976 & 436/1976 Page 60 of 201 57 (Raj Singh), soon after the incident. PW-55 deposed that on March 20, 1975 at about 09.00 P.M. at A-1‟s instance, he called PW-Ranbir Singh in his room. A-1 gave them a „draft‟ written in Hindi to prepare its copies. He further testified that on reading the draft, they found that it contained matter about the hand-grenades thrown at CJI earlier that evening. Thereupon, at their enquiry, A-1 told them “he (A-1) and his companion had thrown bombs at the Chief Justice and that the said bombs had not exploded”. He also stated in the context that “it was the Baba‟s iccha that Sh.Ray may live longer for some time so that he could mend his ways.” PW-44 also deposed on similar lines and corroborated the version of PW-55 (Shiv Raj Singh) without deviation. He deposed that A- 1 during his frequent visits to Shiv Raj Singh in PG hostel after 1972 used to call him in his room in the hostel. On March 20, 1975 at about 08.30 or 09.00 P.M. A-1 called him through Shiv Raj Singh in his room; gave them a Hindi draft to make number of copies. When they read the draft and found that there was mention of throwing of hand-grenades on the car of CJI, Shiv Raj Singh asked A-1 as to what all that was about. A-1 made the above referred confession. PW-Ranbir was fair enough to admit in the cross-examination that A-1 had not given the names of his companions and they on their own, did not enquire about their number and other Crl.A.Nos.443/1976 & 436/1976 Page 61 of 201 details from him. The reason for this was that they were afraid of A-1 and wanted to cut the matter short; they were not interested in knowing the number of his companions and their names. He further admitted that he did not tell any of these things to his wife or the police.

60. PW-55 (Shiv Raj Singh) further deposed that second extrajudicial confession was made by A-1 when he visited him on March 24, 1975 at about 09.00 or 10.00 A.M. He told him that they had succeeded in achieving the object of writing those copies etc. because the same had been published in the papers. He boasted saying, “See, we had done the L.N.Mishra kand and I and my companions had thrown hand- grenades into the car of Chief Justice of India. So long as the Baba‟s icchha was with us, none of us can be discovered and arrested”. There is no cross-examination on this aspect.

61. Another confessional statement about the crime was made to PW-57 (Raj Singh) with whom A-1 had close association since the time he joined the „Organisation‟ in 1967. A-1 was frequent visitor to his house. On 19th March 1975, he, A-3 and Vikram had stayed at his residence. After the occurrence on March 20, 1975, A-3 came to his house at about 05.45 P.M. in a nervous state of mind. As per Raj Singh‟s testimony, he was perplexed. A-1 also arrived there at about 06.30 P.M. Crl.A.Nos.443/1976 & 436/1976 Page 62 of 201 PW- Raj Singh recalled that both A-1 and A-3 embraced, kissed and congratulated each other. They left his house advising him to remove all literature concerning the „Organisation‟. PW-Raj Singh further deposed that on March 21, 1975 morning when he was reading „The Nav-Bharat Times‟ carrying news of unsuccessful attempt on the life of CJI, A-1 arrived there. He confronted A-1 with the news and enquired if it was their handiwork. On that, A-1 nodded in affirmation. The exact words uttered were :

“I put the news item to him and inquired if that was their handiwork. He nodded I expostulated asking what sin had been committed by poor Shri Ray that they had tried to kill him. Santoshanand replied that perhaps I did not know that Shri A.N.Ray is a Mahapapi and that he had rejected several applications of the Baba in the Supreme Court and that he is a stooge of the Government. It was the grace of the Baba that this Badmas had escaped death from the two hand grenades which they had thrown on

him. It was the Lila of the Baba that Shri Ray had

survived in spite of the fact that they had thrown two hand grenades on him, whereas Shri L.N.Misra had died although they had thrown only one hand grenade on him and he had received comparatively minor injuries.

Behold the Lila of the Baba that the one whom he wishes to die dies and the one whom he does not wish to die survives in spite of two hand grenades thrown on him. By the grace of the Baba, they had escaped scot free from both the occurrences.”

62. In the cross examination, A-1 did not put any suggestion denying the above confession. PW-57 (Shiv Raj Singh) recalled that when Crl.A.Nos.443/1976 & 436/1976 Page 63 of 201 he requested A-1 to leave him alone as he was a government servant, he (A-1) got enraged and threatened that if he disclosed any such thing, he would meet the same fate as had been felled L.N.Misra. Extra judicial confessions described above before PW-Shiv Raj Singh, PW-Ranbir Singh and PW-Raj Singh on various dates have remained un-challenged and un-assailed in the cross-examination and were never retracted. There was nothing unusual for A-1 to make extra judicial confessions to these persons as they were not strangers to him and he had reposed complete confidence in them. A-1 was in close association with them since long and had taken their assistance for the execution of his plan about which they were not aware. A-1 had requested PW-55 (Shiv Raj Singh) to provide accommodation in the hostel in the assumed name. PW-44 (Ranbir Singh) was even requested to procue arms to get Baba released through violent means. A-1 had approached them after the occurrence to prepare copies of draft. It was reasonable and natural spontaneous reaction of the PW-55 and PW-44 to enquire on reading contents of the draft as to how the incident had taken place. A-1 cunningly did not divulge the names of his companions who were associated with him in throwing of the bombs. A-1 and his associates took shelter at the residence of PW-Raj Singh on the night intervening 19/20.03.1975. A-1 Crl.A.Nos.443/1976 & 436/1976 Page 64 of 201 handed over certain letters to PW- Raj Singh to post at GPO. These witnesses came to know about A-1‟s involvement about throwing of the hand-grenades on CJI‟s car only when extra judicial confessions were made by him. These witnesses did not nurture any grievance against A-1 prior to the incident and had assisted him at various stages as per his request without having inkling of his nefaroius plan. They had no extraneous reasons to make false statements.

63. In the instant case, the extra judicial confessions made by A- 1 are free from any suspicion as to their voluntary character and have also a ring of truth in it. There is nothing improbable in A-1‟s making extra judicial confessions to these independent witnesses. The witnesses have reproduced the exact words used by A-1 as nearly as possible to convey that A-1 and his companions were the perpetrators of the crime. These extra judicial confessions can be relied upon along with other evidence for conviction and are incriminating circumstances against A-1. The Court is not oblivious of the fact that evidence about extra judicial confession in the very nature of things is a weak piece of evidence. But in a case where the evidence of extra judicial confession on scrutiny is found to be free from legal infirmity and the Court believes the witnesses before whom the confession is made and is satisfied that the Crl.A.Nos.443/1976 & 436/1976 Page 65 of 201 confession was voluntarily, then in such a case conviction can be based on such evidence. The law does not require that the evidence of extra judicial confession should in all cases be corroborated. In „State of U.P. vs. M.K.Anthony‟, AIR 1985 SC 48, the Supreme Court observed : “15. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some

other credible evidence. The courts have considered

the evidence of extra-judicial confession a weak piece of evidence. See Jagta v. State of Haryana :

1974CriLJ1010 and State of Punjab v. Bhajan Singh

and Ors. : 1975CriLJ282 In Sahoo v. State of U.P. :

1966CriLJ68 , it was held that ‘an extra-judicial

confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime.’ Before evidence in this behalf is

accepted, it must be established by cogent evidence

what were the exact words used by the accused. The

Court proceeded to state that even if so much was

established, prudence and justice demand that such

evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of

evidence. In that case, the evidence was that after the commission of murder the accused was heard

muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However, in Pyara Singh v. State of Punjab (1978) 1 SCR 661,

this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extra-

judicial confession appears to have been treated as a Crl.A.Nos.443/1976 & 436/1976 Page 66 of 201 weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial

confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is

brought out which may tend to indicate that he may

have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are

clear, unambiguous and unmistakably convey that the

accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the

evidence of extra-judicial confession is reliable, trust- worthy and beyond reproach the same can be relied

upon and a conviction can be founded thereon.”

64. Considering the consistency and the coherence of the statements of the independent witnesses bearing on the confessions of the accused, the Court is satisfied that their evidence to the said effect is untainted and true. The confessions made by A-1 voluntarily in the normal course without any pressure, are direct acknowledgment of the guilt of the offence in question. The confessions contain a probable catalogue of events and there is nothing improbable or unbelievable in it. These appear to be spontaneous account studded with such vivid details about Crl.A.Nos.443/1976 & 436/1976 Page 67 of 201 background and the manner of committing of crime in question which only perpetrator of crime could know. Moreover, the confessions fit in well with the rest of the evidence and other facts and surrounding circumstances discussed in this judgment. The evidence relating to these extra-judicial confessions is found credible after being tested on the touch stone of credibility and acceptability. These can solely form the basis of conviction qua A-1.

(f) Stay at PW-57 Raj Singh’s residence on the night intervening 19/20.03.1975 – PW-Vikram, A-1 and A-3.

65. PW-57 (Raj Singh), Post-graduate of 1956, resident of Mehrauli, a government servant with Municipal Corporation of Delhi as School Inspector (Physical Education) was also follower of the „Organisation‟ since 1967 and used to participate in its various activities. He was acquainted with A-1, A-3 and PW-Vikram who used to visit and stay occasionally at his residence while going to perform „Kapalik Sadhana‟ near his residence. He deposed that in April, 1974, A-1 came to his newly built house at about 10.00 P.M. At first instance, he had a little difficulty to recognize him as he had removed his beard and cut his hair short. A-1 spent the night with him and visited him twice or thrice thereafter. He disclosed that A-1 used to feel sad / sentimental due to Crl.A.Nos.443/1976 & 436/1976 Page 68 of 201 imprisonment of Baba. Elaborating his visit along with A-3 and PW- Vikram on March 19, 1975 at around 07.30 or 08.00 P.M., he deposed that A-3 and PW-Vikram with whom he was familiar before had secret conversation on the terrace for about half an hour. A-1 informed him that it was not possible to secure Baba‟s release through constitutional means and no other course was left except to shake the Government for release of Baba even at the cost of his own life. He further deposed that on March 20, 1975 at around 05.00 A.M., A-1, A-3 and PW-Vikram got up and after taking bath and break fast, they left the house at around 08.00 or 08.30 A.M., carrying a black bag with them. At about 05.30 P.M. when he returned from his office, A-3 came in a distracted mood and was very much nervous and perplexed. A-1 also arrived there at about 06.30 P.M. Vikram did not come to him that night. The assertion of the witness about stay of A-1 and A-3 along with Vikram on the night intervening 19/20.03.1975 at his residence remained unchallenged in the cross- examination. No reasons were suggested by A-1 and A-3 for their stay at PW-57‟s residence on the said night. It confirms their presence in Delhi soon before the occurrence. In the absence of any infirmity, this Court has no reasons to discard the version given by this witness who had no Crl.A.Nos.443/1976 & 436/1976 Page 69 of 201 animosity with the appellants. The testimony of this witness is in tune with that of PW-Vikram – approver.

(g) Stay at Hostel in PG Guest House – A-1 & A-3’s involvement

66. Specific case of CBI was that at A-1‟s instance, PW-55 (Shiv Raj Singh) had reserved a room for two days in PG Guest House of the Pusa Institute in the fictitious name of „Pawan Kumar from Azamgarh‟ and that entry (Ex.PW-122/A) in PG Guest House register (Ex.P-122) was made in this regard. While appearing as PW-55 (Shiv Raj Singh) a Ph.D. student at the institute in 1975 gave narration as to how he came into contact with A-1 through Sh. Kanwaldhari in 1972. A-1 was editor of the „Prout‟ published from D-41, South Extension Part-I, New Delhi and was an „Awadhoot‟ wearing saffron clothes and supporting a beard and long hair. He was regular visitor to Pusa Institute. He further deposed that he acceded to A-1‟s request to let him stay in the hostel during his visits to Delhi. On March 18 or 19, 1975 at A-1‟s request, he made reservation of a room in the hostel for some Anand Margies who were expected to arrive in the name of „Pawan Kumar from Azamgarh‟. Entry (Ex.PW-122/A) at page 32 in the name of „Pawan Kumar‟ made on March 20, 1975 was in his handwriting and contained his signatures at portion mark Q5A in register (Ex.P-122). He further deposed that A-1 and A-3 had stayed in the Crl.A.Nos.443/1976 & 436/1976 Page 70 of 201 room reserved by him. The key of the room was collected by A-1 in the evening of March 20, 1975 at around 05.30 P.M. A-1 and A-3 met him on March 25 at about 06.00 A.M. after they had delivered the key of the room to the chowkidar. In the cross-examination, he elaborated that he had put his signatures on Ex.PW-122/A at Q5A in the morning of March 20, 1975, at the time of making reservation and payment of advance of `2/-. He denied the suggestion that receipt for payment was issued to him on March 22, 1975. He was fair enough to say that he did not personally visit the room reserved by him. He denied the suggestion that the „guest‟ for whom the room was reserved had left it on March 22, at 05.00 P.M. The appellants did not suggest the name of any such „guest‟ and purpose of his visit. PW-55 was unaware as to who had made the rest of the entry in Ex.PW-122/A. In further cross-examination, he informed that on inquiry from A-1 as to who else was staying with him in the room on March 20, 1975 at about 12‟o clock in the night A-1 named A-3. He reasoned to provide accommodation to A-1 being fellow Anand Margi. He was unaware if accommodation was used for A-3‟s stay also.

67. On examination of the ocular testimony of this independent public witness who was well acquainted with A-1 being fellow Anand Margi, it is clear that he had no extraneous consideration to make a false Crl.A.Nos.443/1976 & 436/1976 Page 71 of 201 statement regarding reservation of accommodation in PG Hostel for his stay in the name of „Pawan Kumar from Azamgarh‟ as instructed by him. The documentary evidence confirms his assertion. Register (Ex.P-122) containing entry (Ex.PW-122/A) at Sl.No. 432 was seized after a considerable period in July, 1975 by CBI. It contained number of various entries with detailed particulars up to entries recorded at serial number 1028. Also receipt book (Ex.D-40) containing receipt at serial number 2584 in the name of „Pawan Kumar‟ pertaining to reservation of room number 227 for ` 2/- was seized in July, 1975. It contained various entries subsequent to it till entry 2600. Apparently, there was least possibility of forging or fabricating these documents / entries maintained in the ordinary course of business by an independent agency. The appellants examined DW-1 (Ram Chander), a caretaker in PG Hostel from Pusa Institute in defence. However, on the relevant date, he was on leave and had resumed duties after the expiry of leave on March 24, 1975. Needless to say that the entries, after his joining, were in his handwriting. The genuineness and correctness of both register (Ex.P-122) containing entry (Ex.PW-122/A) and receipt (Ex.D-40) were not questioned. Various doubts raised by appellants‟ counsel during trial were out-rightly rejected in paras 184 to 189 with sound reasons in the impugned judgment. The appellants did not Crl.A.Nos.443/1976 & 436/1976 Page 72 of 201 summon the relevant witness who had officiated in the absence of regular caretaker on the relevant date. Para 189 records that Badrinarayan, the Assistant Caretaker to whom Shiv Raj Singh had made the payment on March 20, 1975 was summoned as a defence witness but he was not examined despite his appearance in the Court on August 02, 1976. No reasonable explanation has been offered for not examining the Assistant Caretaker whose signatures finds mention on the receipt (Ex.D-40). There is no substance in the appellants‟ plea that PW-55 cannot be trusted as the form which was required to be filled for reservation was not produced before the Court. Nothing has come on record if any form was filled up by PW-55 at the time of getting the room reserved. DW-1 (Ram Chander) informed that earlier a form was required to be filled by the concerned student. Before January 1975, no such register as Ex.P-122 was being maintained. The only record maintained at that time in the shape of forms. After January 1975, the register as well as the form represented the record for such reservation. It appears that PW-55 made entries in the register (Ex.P-122) directly without filling the form. No such question was asked from this witness if he had filled up any such „form‟. The necessity to fill up the form was for the reason to incorporate the particulars subsequently in the register (Ex.P-122). Since the witness had made entries directly in Crl.A.Nos.443/1976 & 436/1976 Page 73 of 201 the register (Ex.P-122), there was no need to fill up the form particularly when the concerned caretaker was not available. DW-1 (Ram Chander) has admitted that whenever the form was not available, entries could be made directly in the register. In his evidence, he disclosed that the form relating to entry (Ex.PW-122/A) was delivered by him to Kuldeep Singh, Sr.Technical Assistant, PG Hostel. However, no such form was seized by the Investigating Officer Mr.Puri and he was not questioned in that regard. Moreover, the appellants did not summon Kuldeep Singh to substantiate if any such form was delivered to him. In fact, a specific suggestion was put in the cross-examination that the witness had reserved the accommodation for the „guest‟ who had left the hostel on March 22, 1975 in the evening. This lends credence to the assertion of the witness about reservation of the accommodation by making relevant entry in the register (Ex.P-122). The prosecution has established beyond doubt that the accommodation was reserved by PW-55 at the instance of A-1, and A-1 and A-3 stayed in the said accommodation as the key of it was taken by A-1 from this witness in the evening on March 20. It further establishes presence of A-1 and A-3 in Delhi on these dates. No specific suggestion was put that A-1 had not stayed in the accommodation reserved by this witness. It was within the special knowledge of A-1 and A-3 as to why and for what purpose they Crl.A.Nos.443/1976 & 436/1976 Page 74 of 201 had stayed in the said accommodation in the name of non-existant person „Pawan Kumar from Azamgarh‟ or during which period to which period they stayed in the said accommodation and where else they went after vacating it. All these facts have not been divulged by A-1 or A-3. Reservation of accommodation in the assumed name for stay during the relevant period and complete denial about it is an incriminating circumstance showing their unreasonable conduct during crucial period when the occurrence took place.

(h) Purchase of new chappals – By A-3 on 20.03.1975

68. Another circumstance which prominently sheds light on the involvement of A-3 relates to the discovery of factum of purchase of new pair of „hawai‟ chappals by him soon after the incident as well as identification of the shop from where the chappals were purchased.

69. As in any crime, criminals leave some foot prints, chappals (Ex.A1 & Ex.A2) whose photographs (Ex.PW-107 to Ex.PW-119) taken by police photographer – Khayali Ram (PW-47) discarded by the assailant were seized at the spot by PW-Inp.Sajjan Singh soon after the incident by a seizure memo (Ex.P-17). During investigation, these chappals were found to be that of A-3. PW-1 (Vikram) deposed that these were the same „hawai‟ chappals which were discarded by A-3 while fleeing the spot on Crl.A.Nos.443/1976 & 436/1976 Page 75 of 201 the right side of the car. He further deposed that A-3 had worn these chappals on the day of occurrence while leaving PW- Raj Singh‟s residence in the morning. No suggestion was put by A-3 to disown chappals (Ex.A-1 and Ex.A-2) or that he did not wear them at that time. PW-2 (Jai Chand), an independent witness, having no animus, identified A-3 to be the assailant who discarded the chappals on the right hand side of the car at some distance and which were seized after preparing sketches Ex.P18 and Ex.P19 bearing his signatures. PW-4 (Tilak Raj Bhatia)‟s statement that A-3 was wearing blue shirt, biscuit colour pants and chappals on the day of occurrence and he had seen him running bare foot after the incident when he came to the taxi and opened the door remained unchallenged in the cross-examination. PW-5 (Charan Singh), taxi driver, corroborated his version and stated that he had seen A-3 running bare foot. Similar is the testimony of PW-6 (Inder Singh) who deposed that when he came out of the car, he saw chappals of the fleeing man lying at a distance of 3 or 4 yards on the right hand side of the car. PW-41 (HC Surenderpal Singh), on duty at gate „A‟ at Supreme Court on March 20, 1975 informed the Control Room and SHO PS Tilak Nagar about the incident between 04.15 P.M. and 04.30 P.M. and disclosed about „chappals‟ lying near the car. PW-17 (SI Inder Singh) recorded message in Crl.A.Nos.443/1976 & 436/1976 Page 76 of 201 the prescribed form (Ex.P-45). The factum of chappals lying at the spot finds mention in Ex.P-45. There is specific mention about it in the FIR too. From the testimonies of all these witnesses, it stands established that while leaving PW-Raj Singh‟s residence for the mission on 20.03.1975, A-3 had worn chappals (Ex.A-1 and Ex.A-2) and these were discarded by him soon after the crime while fleeing bare foot from the spot apparently to escape fastly. This Court finds that it was not suggested even remotely to PWs that A-3 was not wearing these chappals or the same were planted subsequently. PW-Insp. Sajjan Singh had no occasion to plant these chappals on the day of occurrence itself as none of the appellants was a suspect. There are no allegations against Delhi police for concocting a false story against the appellants. PW-38 (P.S.Nayar), Senior Scientific Officer, Incharge Finger Print Section, Central Forensic Science Laboratory, R.K.Puram, New Delhi, received chappals (Ex.A-1 and Ex.A- 2) on March 22, 1975 and prepared their photographs (Ex.P90 & Ex.P91) on March 24, 1975. The Trial Court examined the chappals (Ex.A-1 and Ex.A-2), photographs (Ex.P90 & Ex.P91) and the photographic transparencies of the footprints (Ex.P88 and Ex.P89) and was of the opinion that these (Ex.A-1 and Ex.A-2) were the chappals which A-3 was wearing and had abandoned at the spot.

Crl.A.Nos.443/1976 & 436/1976 Page 77 of 201

70. During police custody remand on August 13, 1975. A-3 in disclosure statement (Ex.P101) disclosed about purchase of new „hawai‟ chappals on March 20, 1975 evening from a shop in NDSC Part-I near a bank in New Delhi. A-3 led the police team to the shop being run under the name of M/s. Fair Deal, G-24, NDSC Part-I, New Delhi. In 313 statement, A-3 admitted about his visit to „Fair Deal‟ Shop in South Extension. PW-42 (B.L.Kumar), UDC in the office of Superintendent Surveyor of Work Aviation, CPWD, R.K.Puram, was associated in the investigation and disclosure statement of A-3 (Ex.P-101) was recorded in his presence. He deposed that after that they all including A-3 went to South Extension and A-3 pointed out the shop from where he had purchased the chappals; the name of said shop was „Fair Deal‟. The pointing out memo Ex.P-102 was prepared and A-3 wrote Ex.P-102/A there in his own hand and signatures. Cash memo book Ex.P-103 was seized vide memo Ex.P-104. His testimony remained unchallenged in cross-examination. Nothing was suggested if A-3 was threatened or forced to make the disclosure statement. This official witness had no ulterior motive to falsely implicate A-3.

The Trial Court for valid reasons rejected the documents (Ex.P101 and Ex.P102) being inadmissible under Section 27 of the Crl.A.Nos.443/1976 & 436/1976 Page 78 of 201 Evidence Act. However, it concluded that the new chappals purchased by A-3 from the said shop coupled with other circumstances and oral evidence was certainly a link in the chain of circumstantial evidence against him.

71. PW-53 (Shiv Charan), salesman, Fair Deal, South Ext. Part-I deposed that in August 1975, A-3 was brought by CBI at his shop. Identifying A-3, he recalled that he had come to the shop bare foot about 3 or 4 months prior to the said date and had purchased „hawai‟ chappals from their shop at about 05.30 or 05.45 P.M. on March 20, 1975. After seeing cash memo book (Ex.P103), cash memo (Ex.P103/A) bearing serial number 2377 therein, he identified his signatures thereon. He deposed that cash for sale of „chappals‟ was received by the proprietor and the cash memo was prepared by him. He had sold „hawai‟ chappals to him because the only item in their shop carrying a price of ` 7.95 was the „hawai chappals‟. Nothing was suggested to him that A-3 had not visited the shop to purchase „hawai‟ chappals. PW-54 (Wazir Chand), partner in M/s.Fair Deal, also supported him and deposed that the police had seized cash memo book (Ex.P103) from their shop vide memo (Ex.P104) on August 13, 1975. His son Vijay Kumar had put his signatures also in his presence on that. He identified A-3 who was brought by the police at his Crl.A.Nos.443/1976 & 436/1976 Page 79 of 201 shop in custody. He identified his signatures on Ex.P102 and Ex.P104. He disclosed that cash memo book (Ex.P-103) was maintained in the regular course of business. He denied the suggestion in that Ex.P102 had already been written out by the police before arrival in the shop. Both these witnesses had no animosity with A-3 to falsely recognize him as the customer who had purchased new „hawai‟ chappals from their shop. These chappals were not subject matter of the crime and were not a case property as such.

72. The circumstance of purchase of new chappals at about 05.30 or 05.45 P.M. from the shop at NDSC Part-I by A-3 lends credence to the testimony of PWs-1, 2, 4, 5 & 6 that soon after the occurrence, A-3 had fled the spot bare foot after discarding chappals at the spot. CBI was not aware of the existence of the shop in question prior to the recording of the A-3‟s disclosure statement (Ex.P101). They were not aware if A-3 had purchased new chappals from the shop on the day of incident. All these facts came into their knowledge pursuant to A-3‟s disclosure statement when he led them to the said shop where the sales man and the owner of the shop identified him as the customer who had purchased new „hawai‟ chappals from their shop. A-3 did not controvert these facts. He did not explain as to what had prompted him to urgently purchase new chappals Crl.A.Nos.443/1976 & 436/1976 Page 80 of 201 from PW-53 on March 20, 1975. He did not explain as to why he was forced to visit the said shop bare foot. All these facts were within A-3‟s special knowledge which he failed to explain / divulge. Under Section 106 Evidence Act, an adverse inference is to be drawn against him for not explaining them.

73. Purchase of new chappals on March 20, 1975 after PW-1 and other witnesses had seen him running barefoot after discarding chappals is an incriminating circumstance to connect A-3 with the crime and to establish his presence at the place of incident at the time of throwing of the hand-grenades. The factum of purchase of chappals reflects the post- event conduct of A-3 and is relevant under Section 8 of the Evidence Act.

74. The Trial Court accepted the opinion given by PW-38 (P.S.Nayar), Senior Scientific Officer, Incharge Finger Print Section, CFSL, R.K.Puram, New Delhi. PW-38 (P.S.Nayar) had examined chappals (Ex.A1 and Ex.A2), their photographs (Ex.P90 and Ex.P91) and photographic transparencies of footprints (Ex.P98 and Ex.P99), and was of the opinion that the impressions of the five toes and the ball of the feet on the chappals (Ex.A1 and Ex.A2) could have been formed by the feet of A-3. He also conducted the experiment by asking A-3 to wear the chappals (Ex.A1 and Ex.A2). He testified that as a result of the said Crl.A.Nos.443/1976 & 436/1976 Page 81 of 201 experiment, the marks made on the chappals (Ex.A1 and Ex.A2) exactly coincided with A-3‟s five toes, the ball of his feet and the sole of feet on both the chappals.

75. I am in agreement with the appellants‟ contention that the science of identification of foot print is not a fully developed science and no reliance can be placed upon it to base conviction. However, it is also true that the report of the expert can be taken as an additional link to corroborate the other clinching evidence on record. In the case of „Mohd.Aman, Babu Khan and Anr. vs. State of Rajasthan‟ in Crl.A.No.1749 with Crl.A.No.1833/1996 decided by the Supreme Court on 08.05.1997, it was held :

“So far as the foot prints are concerned, another

reason for which we feel it unsafe to accept the

evidence led in this regard is that the sample foot

prints were not taken before a Magistrate. This apart the science of identification of foot prints is not a fully developed science and therefore if in a given case – unlike the present one – evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence. “

The significance of the evidence of these witnesses is that Investigation Officer succeeded in discovering the shop of PW-Wazir Chand on the pointing out of A-3.

Crl.A.Nos.443/1976 & 436/1976 Page 82 of 201 (i) Preparation of Drafts (Ex.P10 to P14) and dispatch to newspapers & Supreme Court – by A-1

76. To link A-1 with the crime, the prosecution has relied upon documents (Ex.P10 to P14). The criticism against these documents are various and varied. Attempt has been made by A-1 to disown the documents.

77. PW-55 (Shiv Raj Singh) deposed that on March 20, 1975 at around 09.00 P.M., A-1 came and at his instance, he called PW- Ranbir Singh to his room. Giving a draft written in Hindi, A-1 asked them to prepare its copies. Since the draft contained objectionable material, they showed reluctance to prepare its copies. It agitated A-1 and he extended a threat. Thereafter, they prepared the copies in Hindi and delivered these to A-1. On seeing their handwriting, A-1 remarked that Ranbir‟s writing was not in order. The copies were prepared of the „draft‟ which carried the caption “Akhal Bhartiya Sashatra Viplvi Chhater/ Yuva Singh”. Ex.P10 consisted of two sheets which was in his hand and he had prepared this copy from the manuscript prepared by A-1. The draft prepared by A-1 did not have any date and the copies therefore, prepared by him also did not contain any date. The witness further deposed that again, on March 21, 1975 in the evening, A-1 came and gave him a „draft‟ to prepare its Crl.A.Nos.443/1976 & 436/1976 Page 83 of 201 copies. That was a letter addressed to Chief Justice, Sh.Ray and contained the same caption. He prepared seven or eight copies of that letter and delivered it to A-1. He had dated the copies as March 22, 1975 at A-1‟s instance as he had told him that the copies would be mailed on March 22, 1975. A-1 had got written from him addresses on number of envelopes including the one on which he had written the address of Sh.A.N.Ray, Chief Justice of India. The other envelopes were addressed to the editors etc., of the newspapers. Ex.P11, Ex.P12, Ex.P13, Ex.P14 and Ex.P14/A were the envelopes which were all in his hand. The witness further deposed that A-1 had read each and every copy prepared by him and had made „corrections‟ in them. In Ex.P11, A-1 had made the corrections and written the word “mend” at Q18/A. “Rule of Mrs. Indira Gandhi, it must not subjugate its” at Q3A in Ex.P12. This line had to be added by him because he had omitted to copy it out from the original „draft‟. Similarly, in Ex.P13 and Ex.P14, he had made corrections and written the word “mend” at Q4A and Q1A, respectively. The witness explained that on March 20 when he had prepared the Hindi draft, A-1 had also made corrections and added the words “Damit” and “Soshit” marked Q19A, and the word “Purn” marked Q19A. A-1 again visited him on March 22, evening. He came up with another Hindi draft and got the copies of that Crl.A.Nos.443/1976 & 436/1976 Page 84 of 201 draft prepared from him. The draft also carried the same caption as mentioned earlier. In the cross-examination, the witness fairly admitted that these letters, etc. were not mailed to his knowledge. A-1 had made the correction of a word “mend” in two or three copies only and not in all copies. He wrote the word “mend” in the rest of the copies in his own hand writing. He disclosed that after March 20, 1975, PW-Ranbir Singh had met him twice and thrice and they had discussed about the preparation of the copies of the draft and considered the risk involved in it and decided not to do any such thing in future. He admitted that there was no mention of A-1‟s name in the contents of the letter. The code words used in the letter were not known to him. He denied the suggestion that Ex.P10 to Ex.P14A were his handiwork and he falsely named A-1 to save his skin.

78. In the cross-examination (conducted by Sh. K.L.Sharma, Advocate), the witness stated that it was for the first time that he had heard or read the caption “Akhil Bhartiya Shashaster Viplavi Chhatar Yuva Sangh” on March 20, 1975. On scanning the testimony as a whole, it transpires that A-1 did not challenge his visits to PW-55 (Shiv Raj Singh) on March 20 and 21, 1975 to get prepare copies of the draft from him. No suggestion was put to the witness that no such corrections in Crl.A.Nos.443/1976 & 436/1976 Page 85 of 201 Ex.P11, Ex.P12, Ex.P13 & Ex.P14 were made by him (A-1) in his own hand writing or that these were forged or fabricated documents. PW-44 (Ranbir Singh) has corroborated PW-55 (Shiv Raj Singh) on all material facts in this regard. He deposed that on being threatened by A-1, they agreed to do his bidding and prepared three or four copies in Hindi. In the cross-examination, he elaborated that he had enquired from A-1 as to what he would do with the copies of the draft. A-1‟s reply to him was to carry on with the job of copying instead of wasting time in making such enquiries. He admitted the suggestion, “It is correct that Shiv Raj Singh and he were busy in preparing the copies simultaneously”. He admitted that he did not read the English draft. He further deposed that A-1 had explained at the spot that the draft would be published in the name of “Akhil Bharatiya Sashstar Viplvi Chhatter Yuva Sangh” so that nobody would come to know who had published it. Again, nothing material emerged in the cross-examination to discard his version. A-1 did not deny that the amendments in question were not made by him in his handwriting.

79. PW-57 (Raj Singh) supplemented the version given by PW- 54 and PW-55, and deposed that on March 22, 1975 at about 08.30 A.M., A-1 came to him and intended to accompany him to post certain letters at Crl.A.Nos.443/1976 & 436/1976 Page 86 of 201 Kashmiri Gate on the way to his office. When he offered to post the letters for him, A-1 delivered to him a packet wrapped in a piece of paper containing postal envelopes. The witness further deposed that at GPO, Kashmiri Gate when he opened the wrapper, he found that the very first envelope contained the address of Sh.A.N.Ray, CJI. He was unnerved on seeing it and could not pluck courage to see the other envelopes. He mailed all the letters into the mail box. He identified the envelope (Ex.P- 14A) addressed to Sh.A.N.Ray. In the cross-examination, nothing material could be extracted on this aspect and no suggestion was put that no such envelope was handed over by A-1 to him or it was not mailed by him. Contrary to that a suggestion was put “I deny the suggestion that I was myself a party to the conspiracy and that I mailed the letters because that was the job assigned to me”. This suggestion clinches the issue. These letters were subsequently, received in the offices of various newspapers. A-1 did not offer any explanation as to for what purpose, the drafts were prepared and dispatched to the offices of various newspapers and also to CJI. PW-50 S.K.Gupta, PW-51 V.G.Verghese (The Hindustan Times), PW-52 Abdul Rehman (The Indian Express) and PW-58 B.K.Joshi (The Times of India) have confirmed this version.

Crl.A.Nos.443/1976 & 436/1976 Page 87 of 201

80. PW-8 (Ujjawal Prakash) joined the „Organisation‟ in 1957. He joined services of Tata but resigned in 1966 at the instance of his Guru Anand Murti. He held various important positions in the „Organisation‟. In 1970, he came to work as Office Secretary in Delhi in the newly opened office of PBI at 13, Ferozshah Road. In his deposition, he claimed that A-1 was known to him since long and they had regular visiting terms in 1970. A-1 was working as editor of the „Prout‟ published from D-41, South Extension Part-I, New Delhi and he used to meet him frequently at 13, Ferozshah Road and D-41, South Extension Part-I, New Delhi. He claimed that he was quite familiar with the handwriting of A-1 both in Hindi and English. He identified A-1‟s handwriting on Ex.P10 (marked Q19A); Ex.P11 (marked Q18A); document Ex.P12 (marked Q3A); Ex.P13 (marked Q4A), Ex.P14 (marked Q1A). He further identified document (Ex.P15) and stated that this document in its entirety was in the handwriting of A-1. He also recognized that in Ex.P22 the writing marked A1 to A72 were in the handwriting of A-1. In the cross-examination, he denied that he, Vikram and Naval agreed to become witnesses in the present case as a part of conspiracy with others including Madhvanand and Krishnanand. No suggestion was put to the witness that A-1 had no close association with him or that he was not familiar with his Crl.A.Nos.443/1976 & 436/1976 Page 88 of 201 handwriting. No suggestion was put that the handwriting on the questioned documents were not that of A-1. Since this witness had worked with A-1 in Delhi in the same „Organisation‟ and was acquainted with him since long, his testimony regarding identification of his handwriting on the questioned documents cannot be doubted. Similar is the testimony of PW-49 (Sudhir Kumar Basedar) who joined the „Organisation‟ in 1962 and was made an „Avadhoot‟ in 1965. He deposed that in 1968 or 1969 he brought Vikram from Ranchi to Delhi and was in close contact with A-1 and Vikram. He was incharge of D-41, South Extension, New Delhi. A-1 was working as an editor of „Prout‟ under him. He claimed that he had seen A-1 writing and signing and was familiar with his handwriting and signatures. He also identified handwriting on Ex.P10 to Ex.P15 at questioned portions to be that of A-1. He also identified exercise book Ex.P22 and writings marked A-1 to A-72 therein both in English and Hindi and testified that these too were in A-1‟s handwriting. In the cross- examination, he denied the suggestion that after leaving the „Organisation‟, he became a regular informer and tout of the police. A-1, Vikram, Nitesh Kumar, Gundadhishanand, etc. used to reside at D-41, South Extension. Bank account was also in A-1‟s name. He saw his writings many a times and used to receive letters from A-1. No suggestion Crl.A.Nos.443/1976 & 436/1976 Page 89 of 201 was put to the witness that he was not acquainted with the handwriting and signatures of A-1 or that the handwriting on the questioned documents were not that of A-1.

81. PW-1 (Vikram) who had long association with A-1 identified his signatures on Ex.P10 to Ex.P15. He deposed that he was familiar with the handwriting and signatures of A-1 and had seen him writing and signing umpteen times at D-41, South Extension Part-I, New Delhi when he had been editing the papers there both in Hindi and English. The entire contents of the document Ex.P15 were in A-1‟s handwriting. The statement has remained unchallenged in the cross-examination.

82. The Trial Judge in para (343) of the impugned judgment himself examined the disputed corrections marked Q19A, Q18A, Q3A, Q4A and Q1A with the standard and specimen writings of A-1 and also with his writing in the application Ex.P2 and was of the considered opinion that all the disputed corrections were authored by A-1.

83. The Trial Court relied upon the testimony of handwriting expert PW-48 (B.Lal), who gave definite opinion that the disputed corrections marked Q19A in Ex.P10 and marked Q3A in Ex.P12 were authored by the same person (A-1) who wrote the specimen / standard writings. The Trial Court relied upon the opinion of the handwriting Crl.A.Nos.443/1976 & 436/1976 Page 90 of 201 expert as per the law existing at the time of delivery of the judgment. Even if, report of handwriting expert is excluded in view of recent judgment of this Court „Sapan Haldar & Anr. vs. State‟, Crl.A.No.804/2001 decided on 25.05.2012, it would not dilute the conclusion arrived at by the Trial Court about A-1 to be the author of the questioned hand-writing in view of positive and cogent evidence given by PWs-Vikram, Ujjawal Prakash and Sudhir Kumar Basedar who were well conversant and familiar with his handwriting. Moreover, the trial Court itself had examined the questioned and specimen handwriting to arrive at the said conclusion. Discretion lies with the Court to form an opinion inter alia as to the identity of the handwriting and in so doing, it is always permissible for the Court to compare on its own.

84. From the testimonies of witnesses, it reveals that A-1 had drafted the original Hindi manuscript of which he caused a copy (Ex.P10) to be prepared by Shiv Raj Singh on March 20, 1975. He made the corrections marked Q19A in his own handwriting that very night. On March 21, 1975, he got prepared the copies (Ex.P11 to Ex.P14A) of an open letter addressed to the CJI prepared from Shiv Raj Singh and made the corrections marked Q18A, Q3A, Q4A and Q1A in those documents in his own hand. A-1 did not offer any explanation as to why and under what Crl.A.Nos.443/1976 & 436/1976 Page 91 of 201 circumstances, his handwriting appeared on these questioned documents which contained objectionable material. He also failed to explain the purpose of preparing these inflammatory documents soon after the incident. These documents also confirm his presence in Delhi on these dates. Apparently, these documents are incriminating in nature and point an accusing finger at A-1 showing his participation in the crime.

85. The prosecution examined PW-51 (B.G.Verghese), Editor of The Hindustan Times in March, 1975 who deposed that the letter Ex.P13 received in their office was forwarded by him to Sh.N.K.Mukherjee, Home Secretary, Govt. of India vide covering letter Ex.P80. PW-52 (Abdul Rahman), Chief Reporter, The Indian Express, in March 1975 deposed that document Ex.P10 consisting of two sheets was received in their office on March 22, 1975. A news item (Ex.P131) was developed and published in „The Indian Express‟ on March 24, 1975. Ex.P132 was published in „The Times of India‟. PW-50 (S.K.Gupta), Registrar, Supreme Court of India, in March 1975 deposed that envelope (Ex.P14/A) was received by him from the Principal Private Secretary to Chief Justice of India. The document (Ex.P14) was in that envelope at that time and the envelope contained the address of CJI. The envelope along with its contents was passed on to him either on April 01 or 02, 1975. He Crl.A.Nos.443/1976 & 436/1976 Page 92 of 201 forwarded Ex.P14 with the envelope to Sh. P.N.Mehra, S.P.Security along with other documents. Apparently, A-1 not only prepared the documents (Ex.P10 to Ex.P14A) but also sent / mailed these to various newspapers and to the Chief Justice of India at Supreme Court. The open letter addressed to the Chief Justice of India was mailed after the unsuccessful attempt on his life to intimidate him.

(j) Performance of journey by A-1 & A-3 on 25.03.1975

86. After analyzing the evidence of various witnesses including DSP B.R.Puri (PW-71), Sardari Lal (PW-21), Harbhagwan (PW-9), Vishnu Datt Sharma (PW-10), B.R.Bakshi (PW-11), Jit Singh (PW-12), Prem Prakash Sharma (PW-25), and the documents Ex.P-23 to Ex.P-27, Ex.P-57, Ex.P-58, Ex.P-77, Ex.P-78 and Ex.P-127 minutely, the Trial Court concluded that A-2 admittedly wrote Ex.P-23 and Ex.P-25 and that thereby, he made reservation of a berth in a three-tier sleeper coach in the name of „Pankaj Kumar‟ on March 15, 1975 and of a seat in the sitting compartment in the name of „Ramesh Kumar‟ on March 21, 1975 for journey by 2-Down, Kalka- Howrah Mail which departed from Delhi Main on March 25, 1975. It also relied upon the testimonies of PW-24 (Ram Prakash Babbar), PW-23 (Bhagat Ram Ahuja), PW-31 (P.S.Yadav), PW-32 (Hari Singh) and PW-40 (Surjeet Singh Ahluwalia) to conclude Crl.A.Nos.443/1976 & 436/1976 Page 93 of 201 that A-2 made use of two different names and addresses (of Pankaj Kumar and Ramesh Kumar) which were fictitious and non-existant. Under the heading „Solution of the Riddle of Fictitious Names‟, relying on the oral and documentary evidence, the Trial Court found that A-1 and A-3 were the individuals who performed the actual journey on the strength of reservation (Ex.P-23 and Ex.P-25) in the said train. During arguments, A- 2 did not categorically deny and controvert the incriminating circumstance proved against him in this regard. In his written submissions, he urged that these tickets reserved in the fictitious names for A-1 and A-3 did not further the alleged conspiracy which was hatched, implemented and finished on March 20, 1975 itself. At the relevant time, A-1 was an accused in a self-immolation case of Acharya Dhineshwaranand of which he and his co-accused were later acquitted. A-2 being lawyer for the followers of the „Organisation‟ at that time had defended A-1 in that case. He further urged that from the contents of the diary (Ex.P-137) containing an unsigned letter (Ex.P-4), seized from his house, it is apparent that A-1 did not communicate directly with him but acted through a „parokar‟. In order to avoid arrest in the self-immolation case in which A-1 was absconding, he (A-1) or his „parokar‟ simply wanted to obtain train tickets on his behalf in some fictitious name for his usual travel and requested Crl.A.Nos.443/1976 & 436/1976 Page 94 of 201 him (A-2) to book them. This explanation is wholly reasonable, as reservation for train tickets did nothing whatsoever to assist or advance the cause of conspiracy executed on March 20, 1975. Apparently, A-2 half heartedly denied the reservation made vide Ex.P-23 and Ex.P-25. The prosecution was able to bring on record overwhelming evidence to prove that A-1 and A-3 travelled on that day in the said train on the strength of these tickets.

87. Crucial testimony in this regard is that of PW-56 (Suresh Chand Samanta) who was unacquainted with the appellants prior to the incident and did not nurture any ill-will or grievance to falsely implicate them. Being an Assistant Director, Tourist office, Government of India at Calcutta, he visited Delhi to appear in an interview before UPSC on March 24, 1975 for the post of Director of Tourism. Being a responsible officer he was not expected to make a false declaration. He deposed that on March 25,1975, he left Delhi for Calcutta by Kalka-Howrah Mail at 08.00 A.M. He identified A-1 unerringly to be his co-passenger in the said train who occupied the lower berth and with whom he had conversation in English on tourism during day time. He further disclosed that A-1 did not have beard that time and perhaps was wearing bushirt and pants. Another passenger Ramesh travelling in the said compartment who was going to Crl.A.Nos.443/1976 & 436/1976 Page 95 of 201 Calcutta to see his mother had also conversed with him. He came from Calcutta to Delhi on July 29, 1975 or so, to identify A-1 at Tihar jail. In the cross-examination, the witness answered all the queries of the appellants‟ counsel about his visit to Delhi. He disclosed that during journey both, he and A-1 had taken food together; lunch was also shared by them. He became very friendly with A-1 on the way and had given his visiting card to him. A-1 was wearing a hearing-aid at that time. He denied the suggestion that A-1‟s photograph was shown to him and on the strength of that photograph, he identified him in the Court of Sh.Oberoi. Scanning the testimony of this witness reveals that despite thorough cross- examination, his testimony could not be shattered. The witness who had no prior animosity with A-1 was not expected to give false statement being a responsible officer. The prosecution was able to produce evidence on record that this witness actually travelled in the train on that day. It is not unusual for the passengers to become familiar with each other during long journey and develop some intimacy. Since the witness had spent long time with A-1 during the journey and had direct conversation with him, he had sufficient, reasonable and fair opportunity to note and observe the broad features to recognize him at a subsequent date. CBI was able to reach to this witness after scanning the reservation chart prepared for that Crl.A.Nos.443/1976 & 436/1976 Page 96 of 201 day. This witness not only identified A-1 but also willingly agreed to participate in the TIP which the appellant declined to join. In his Court statement, this witness had no hesitation to recognize and identify A-1. There are no valid reasons to discard the cogent, reliable and un- impeachable statement of this independent public witness. This witness was fair enough not to implicate A-3.

88. PW-30 (Ramesh Kumar Bagdi), a clerk working with Ambica Trade Corporation at G.B.Road, Delhi, supported and corroborated the version given by PW-56 (Suresh Chand Samanta) about their journey in Kalka-Howrah Mail on March 25, 1975. He deposed that on that day, he was allotted berth in the three tier sleeper vide requisition slip Ex.P-57 and he travelled by Kalka-Howrah Mail, Delhi. He identified A-1 having a hearing aid in his ears to be co-passenger on the lower berth on his right side. He recalled that A-1 had played mouth organ. He travelled with him right upto Howrah. He also recognized A-3 to be the „passenger‟ who often used to visit A-1 during the journey at different stations. He identified A-1 with certainty as he had long conversation with him. He was not very sure to identify A-3 to be the „passenger‟ who used to visit A-1. Putting his finger on A-3, he stated that „perhaps‟ he was the person who had been visiting A-1 in the compartment. This independent Crl.A.Nos.443/1976 & 436/1976 Page 97 of 201 witness had no reasons to make false statement. Discrepancies in his statement about visit of Insp. R.N.Tiwari to him in June, 1975 were dealt with cogent reasons by the Trial Court. It came to the conclusion after minute discussion that PW-30 was a truthful witness though a simple person. The Trial Court came to conclude that Mr.Tiwari had visited him only on July 20, 1975 when his statement was recorded. There are no sound reasons to disbelieve the witness as CBI was able to trace him on the strength of requisition slip (Ex.P-57) which contained his address. He was not a witness to the incident and was not acquainted with A-1 or A-3 before. He specifically gave distinctive features of A-1 whereby he used to play mouth organ in the compartment and had a hearing-aid. A-3 though not identified with „certainty‟ was disclosed to be the „possible‟ passenger who at a halting station had missed to alight. Despite minor discrepancies as to when his statement was recorded or if photo of A-1 was shown to him, his evidence inspires confidence. The fact that he did not identify A-3 with „certainty‟ and admitted that photo of A-1 was shown to him prior to Test Identification Proceedings shows that he did not conceal any fact.

89. Ocular testimonies of both PW-30 and PW-56, co-passengers coupled with depositions of official witnesses Gurmukh Singh (PW-28), Crl.A.Nos.443/1976 & 436/1976 Page 98 of 201 Nand Lal Dass (PW-61), Sewa Ram (PW-29), K.B.Mishra (PW-62), A.K.Sharma (PW-67) and Kishan Lal (PW-68), establish beyond doubt that A-1 travelled on March 25, 1975 from Delhi to Howrah. It belies his assertion that he was not present in Delhi before March 25, 1975. No explanation was offered as to what was the purpose of his visit to Delhi. The facts as to when he (A-1) visited Delhi; where he stayed before his departure on March 25, 1975; how and by whom the tickets were reserved in the fictitious names, etc. were all within his special knowledge and to some extent, A-3‟s knowledge. However, none of them gave plausible explanation to the incriminating circumstances. Under Section 106 Evidence Act, adverse inference is to be drawn against them. They 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. Unnatural conduct of the appellant (A-1) to travel in a fictitious name out of Delhi soon after the occurrence is an incriminating circumstance to connect him with the crime.

(k) Testimony of PW-1 Vikram – The approver

90. The central evidence in the case consists of the testimony of PW-Vikram who turned approver and narrated the essential details of the Crl.A.Nos.443/1976 & 436/1976 Page 99 of 201 prosecution case and the manner in which the appellants hatched the conspiracy and executed it on March 20, 1975.

At the outset, learned counsel for A-3 strenuously urged that it would be inappropriate for this Court to rely on PW-1‟s testimony in view of the specific directions by Supreme Court in Crl.A.No. 174/12 (arising out of SLP (Crl.) No. 6489/06) decided on 19th January, 2012. He urged that the Supreme Court doubted / suspected the truthfulness, honesty and reliability of Vikram‟s statement in view of two diametrically opposite statements; one made before CBI; and, the other before CID in Danapur jail on 30.09.1978. The Supreme Court was of the view that one of the statements of Vikram was false. Since it was very difficult to say at that stage which of the statements was true and which of the statements was made under the influence, threat or coercion by the State officers or CBI, PW- Vikram was directed to be recalled for further examination. Counsel further urged that it is a case in which CBI has deliberately kept back the witness and has not deliberately produced him for cross- examination. Vikram‟s statement before Trial Court requires to be excluded from consideration while disposing of the appeal on merits. PW- Vikram was the corner-stone of the prosecution case and that the entire edifice virtually crumbled down in the absence of his evidence. Counsel Crl.A.Nos.443/1976 & 436/1976 Page 100 of 201 relied upon various judgments, „Director of Settlements, Andhra Pradesh & ors. vs. M.R.Apparao & anr.‟, 2002 (4) SCC 638; „Commissioner of Income Tax vs. M/s.Sun Engineering Works (P) Ltd.‟, 1992 (4) SCC 363; „Union of India (UOI) & ors. vs. Dhanwanti Devi & ors.‟, 1996 (6) SCC 44; „G.K.Dudani & ors. vs. S.D.Sharma & ors.‟, AIR 1986 SC 1455; „Narinder Singh vs. Surjit Singh‟, AIR 1984 SC 1359 & „Spencer & Company Ltd. & Anr. Vs. Vishwadarshan Distributors Pvt. Ltd. & Others‟,1995 (1) SCC 259, to emphasize that under Articles 141 and 142 of the Constitution of India, the law laid down by Supreme Court is bound to be followed in letter and spirit. This Court cannot deviate from the observations made in the order dated 19.01.2012. It was further contended that CBI was hand in glove with Vikram from the very inception. They did not oppose grant of bail to him. Vikram did not furnish correct address and produced fake sureties whose credientials were not verified by CBI. He violated the bond condition not to leave Delhi till trial in L.N.Mishra case was over. Learned Counsel for CBI urged that all sincere efforts were made to find out the whereabouts of Vikram but he could not be traced at his last known address and the address given in the bail bonds furnished before the Court. It is even not clear whether he is „dead‟ or „alive‟ as he has not been heard or seen after his release by any of his relatives. Under Crl.A.Nos.443/1976 & 436/1976 Page 101 of 201 Section 33 Evidence Act, Vikram‟s statement is required to be read for consideration.

91. It is a matter of record that Crl.M.No. 5700/98 was filed on September 16, 1998 by the appellants to summon Vikram, the approver, for further cross-examination in terms of Section 145 of the Evidence Act. The said application was disposed of by this Court by an order dated November 22, 2006. The appellants challenged the order in Supreme Court. After considering the relevant contentions and observing that Vikram had made diametrically opposite statements, and CBI and State (CID) seemed to be at logger-heads with one accusing the other of manipulating and using Vikram for its own designs and that one of the statements of Vikram was false, the Supreme Court set aside that part of the High Court order and directed it to summon Vikram for his further examination with reference to his statement made in Danapur jail on 30.09.1978 by the appellants and if so desired by the CBI. It further reveals that CBI was directed to furnish on record the latest address of the witness Vikram to summon him for cross-examination. Various status reports have been placed on record by CBI on different dates. Efforts were made to find out Vikram at the address given in the bail bond furnished by him in the Court of Sh.V.B.Bansal, the then learned Addl. Sessions Judge, Crl.A.Nos.443/1976 & 436/1976 Page 102 of 201 New Delhi, on 28.11.1985. Attempts were made to reach to surety Chander Prakash at 2433, Jahangirpuri, Delhi and at his office address in Usha Electricals at R-2/1, Jindapur Road, Uttam Nagar. However, neither Vikram nor Chander Prakash were found available at the addresses given at Delhi. CBI again visited village Tirar, Tehsil Sanhola, District Bhagalpur, Vikram‟s native place. Status report reveals that CBI officials met Vikram‟s elder brother Parmanand Dass but he was not aware of his whereabouts since his detention in Danapur jail, Patna. His elder brother and two sisters were found to have expired. Two sisters Kaushalya Devi and Priya Devi who lived in their matrimonial home in Jagdishpur village were also found dead. CBI officials met Mahender Harijan, Kaushalya Devi‟s son who gave the said information. He also was not aware of Vikram for the last about 40 years. It further reveals that CBI published the information in newspapers, the photocopies of which have been placed on record calling upon the public in general to inform it about Vikram‟s whereabouts. The concerned responsible CBI Officers have furnished affidavits with regard to the efforts made to find out Vikram. The appellants have also not produced on record any

document to show if after his release in 1985, Vikram lived at a particular address or place. There is nothing to infer that CBI deliberately and Crl.A.Nos.443/1976 & 436/1976 Page 103 of 201 intentionally withheld Vikram for cross-examination. Vikram after his arrest on July 24, 1975, continuously remained in custody till his release on bail in 1985. Prior to his arrest, he was attached to the „Organisation‟ and had no private accommodation to live in. He abandoned his native place at the age of about 14 or 15 years. A long period has since elapsed after his release in 1985. It is not the case of the appellants that during this period Vikram was seen or heard at any specific place. It is not clear whether he is „alive‟. Various reports placed on record demonstrate that sincere and reasonable efforts were put by CBI to ensure / procure his presence before the Court. Adverse inference cannot be drawn against CBI for withholding the witness deliberately. There is nothing on record to show that CBI was hand in glove with Vikram and was instrumental in his release. The proceedings in the instant case had already been terminated long back in 1976 and Vikram had examined himself as a witness / approver in L.N.Mishra case. This Court vide order dated 18.10.1985 granted bail to him in L.N.Misra case. It was for the Trial Court to ensure that the surety bond furnished by Vikram was genuine and sound. At no stage prior to moving of the application in 1998, the appellants accused CBI of their connivance in the release of Vikram. Crl.A.Nos.443/1976 & 436/1976 Page 104 of 201

92. I have gone through the order dated 19.01.2012. In my view, observations therein are confined only with respect to the limited question of recalling the witness for re-examination. At no stage, the Supreme Court judged the reliability or admissibility of Vikram‟s statements, one before CBI in Delhi and the other before Danapur jail. Under Section 145 Cr.P.C. PW- Vikram was required to be examined to find out as to which of the versions was correct. There are no observations / directions in the order to exclude the statement made by Vikram before Trial Court altogether in case of his non-availability. Apparently, recall of PW-1 (Vikram) for cross-examination was subjet to his availability. I find no merit in the appellants‟ plea that Vikram‟s statement given before the Court warrants outright rejection / exclusion due to CBI‟s inability to produce him for cross-examination.

93. Under Section 33 Evidence Act when it is wholly beyond the power of a party to produce a witness on account of his death or incapacity to give evidence or being kept out of the way by the other side or when his presence cannot be obtained without unreasonable amount of delay or expense or he cannot be found, his previous deposition is admissible in a subsequent judicial proceeding in proof of the facts stated therein, when all the following conditions are fulfilled : (1) that the Crl.A.Nos.443/1976 & 436/1976 Page 105 of 201 evidence was given in a judicial proceeding or before any person authorized by law to take it; (2) that the first proceeding was between the same parties as the second proceeding or between representatives in interest of the parties to the second proceedings; (3) that the party against whom the deposition is tendered had a right and full opportunity of cross-examining the deponent when the deposition was taken; (4) that the issues involved are the same or substantially the same in both proceedings; (5) that the winess is incapable of being called at the subsequent proceedings (on account of death or incapability of giving evidence or being kept out of the way by the other side or an unreasonable amount or delay or expense or he cannot be found).

94. In „Satnam Singh (Dead) by LRs. And Others vs. Sadhu Singh and Others‟, JT 2001 (Suppl.1) SC 545, The Supreme Court held that where the examination-in-chief of a witness has been completed but he could not be put for cross-examination on account of his death, the evidence of such witness cannot be rejected. Relevant para of the judgment reads :

“3……………… So far as the question whether the plaintiffs failed to prove the agreement for sale is concerned, the First Appellate Court as well as the

Crl.A.Nos.443/1976 & 436/1976 Page 106 of 201 High Court rejected the evidence of plaintiffs on

irrelevant ground. It has come on evidence on record that Teja Singh, one of the attesting witnesses, after his examination-in-chief died and therefore, he could not put up for cross-examination. Under such

circumstances, the evidence of Teja Singh could not

have been excluded.”

95. This Court in „Krishan Dayal vs. Chandu Ram‟, 1969 ILR (Delhi) 1090, held that the statement of a witness in examination-in-chief which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination and the absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement and so far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief, the Court has to keep in view the facts and circumstances of each individual case.

96. In „Turner Morrison and Co., Bombay vs. K.N.Tapuria and others‟, 1993 Crl.L.J. 3384, PW-4 (Kashiprasad Kedia) had deposed before the Trial Court prior to the framing of the charge but was not available to the prosecution thereafter. When he was initially available to Crl.A.Nos.443/1976 & 436/1976 Page 107 of 201 the Trial Court and his examination-in-chief was recorded, he was cross- examined at great length on behalf of accused No.2, though accused No.1 declined to cross-examine him at that stage. The prosecution made reasonable efforts to procure his presence but his whereabouts were unknown. The evidence of the witness was considered admissible. It was held that non-availability of the witness at a later stage of the same proceeding will not render the evidence inadmissible since an opportunity to cross-examine was afforded to the defence at the time when the witness was examined.

97. In „Jose vs. State of Kerala‟, 1973 Cri.L.J. 687, the Supreme Court while dealing with Section 33 of the Evidence Act held that where the presence of a witness examined in the Court of the committing Magistrate cannot be obtained without an amount of delay and expense which, under the circumstances of the case, the Court considers unreasonable, and there was evidence to show that the attempts were made to secure his presence in the Trial Court, his evidence can be brought on record and will constitute substantive evidence.

98. In the instant case, PW-Vikram was available to the appellants throughout the trial which culminated in final disposal in 1976. He was cross-examined at length by the appellants on various dates. He Crl.A.Nos.443/1976 & 436/1976 Page 108 of 201 was available for appearance before the Court being in custody till 1985 before his release on bail in L.N.Misra case. In fact, he was confronted with the statement made by him before Danapur jail in the said proceedings. It is pertinent to note that the appellants had moved CM.No.6300/1998 to bring on record the statement of PW-Vikram recorded in Sessions Case No. 121/1996 (RC.No. 175 titled CBI vs. Santoshanand and ors.), pending in the Court of the then learned Sessions Judge Ms.Sharda Aggarwal. This Court allowed the application vide order dated 22.11.2006. As observed above, efforts were made by the prosecution to secure his presence in compliance with the order of the Supreme Court but he was not available at both the addresses in Delhi as well as in Bihar. There is nothing on record to show that CBI did not make diligent search and reasonable exertion to trace the witness. Of course, the evidence of PW-Vikram who could not be recalled for cross-examination would be viewed with a great degree of caution. Endeavour will be made to act upon such testimony only if it is materially corroborated or supported by the surrounding circumstances.

99. Next limb of argument of the appellants‟ counsel is that PW- Vikram is wholly unreliable and no reliance can be placed on his evidence. The story given by the approver was a tissue of lies and was Crl.A.Nos.443/1976 & 436/1976 Page 109 of 201 wholly improbable. Despite issuance of non-bailable warrants in L.N.Mishra case, Vikram chose not to appear. Conduct and character of the approver Vikram make him absolutely unreliable and untrustworthy witness. Counsel further urged that statement of PW-Vikram is not a statement which could come within the parameters of Section 306 Cr.P.C. as he was never a willing party to the crime. The pardon granted to him under Section 306 Cr.P.C. was illegal and unjustified as to his own showing he was not a party to the crime. His position was not better than that of PW-4 (Tilak Raj Bhatia), PW-55 (Shiv Raj Singh) and PW-57 (Raj Singh). The investigation is tainted and unfair. It is mystery as to how PW-Vikram was taken as an accomplice or a conspirator when PW-4, PW-55 & PW-57 with similar roles were associated as prosecution witnesses. Total investigation including its trial was conducted by CBI during Emergency era. PWs-44, 55 and 57 were illegally detained by CBI and made to give evidence as per their dictates. They were bound down for recording statements under Section 164 Cr.P.C. He further urged that the evidence of Vikram approver could not improve the prosecution case. Countering the appellants‟ contentions, CBI counsel urged that evidence of Vikram has to be appreciated, keeping in view the entire evidence and the fact that he was examined before the Court eight times at Crl.A.Nos.443/1976 & 436/1976 Page 110 of 201 different stages and he remained consistent and supported the case of the prosecution in its entirety. He made a voluntary statement under Section 164 Cr.P.C. before the ACMM twice on 14.08.1975 and 16.08.1975. He again made statement before the Court of CMM, Delhi while he was examined under Section 306 Cr.P.C. before grant of pardon. Before the case was committed to the Court of Sessions for trial, Vikram was examined by the committal Court in L.N.Mishra case. During trial, Vikram was examined as PW-1 over a period of time and his testimony runs into about 225 pages. His examination as PW-2 in L.N.Mishra case runs into 340 pages. Regarding statement allegedly made by Vikram before Superintendent jail on 30.09.1978 at Danapur, it was strongly urged that Vikram retracted that statement during his deposition, subsequently, in L.N.Mishra case. The statement made before Danapur jail authorities was recorded without any authority of law and in complete violation of legal provisions which were outside the legal frame work. The said statement is not admissible in evidence and appears to have been procured putting him in fear. The evidence has been recorded in a manner unknown to law. He further contended that report of Justice Tarakunde was only an „opinion‟ and was not an admissible piece of evidence. There was a conflict of interest in submitting the report as A-2 was one of his Crl.A.Nos.443/1976 & 436/1976 Page 111 of 201 juniors and was represented by him (Justice Tarakunde) in the case. The appellants never challenged the authenticity of the statement till 1998. They waited for seventeen years to recall him knowing well that the said evidence would not be available. There is nothing on record to show that Vikram was an untrustworthy witness or he gave false evidence. As per material available on record there is no doubt that Vikram was an accomplice with the appellants in an attempt to murder the CJI. He was part of the conspiracy and played an active role to achieve the object of the conspiracy.

100. Before adverting to the credibility of testimony of PW- Vikram, it is pertinent to note that Vikram recorded his statement under Sections 164 Cr.P.C. during investigation before PW-20 (Sh.R.D.Aggarwal), Addl. Chief Metropolitan Magistrate. PW-1 (Vikram) was produced before him on August 12, 1975 at 03.00 P.M. He put certain questions reproduced in Ex.P7 and directed Vikram to be produced on August 14, 1975 at 10.00 A.M. He was ordered to be kept segregated from others in the jail. As per PW-20‟s testimony. After recording the statement (questionnaire) of Vikram, he had satisfied himself that there was no inducement or threat of any kind and Vikram wanted to make statement on his own accord. He again explained to Vikram that he was Crl.A.Nos.443/1976 & 436/1976 Page 112 of 201 being sent to judicial custody so that he could compose himself and think over as to whether he wanted to make statement. He also explained to Vikram that he should not be under any kind of fear, because he would not be sent back to police custody. On August 14, 1975, PW-20 explained the whole position to Vikram once again. After satisfying himself that no pressure of any kind had been exerted and no police officer or jail officers had met Vikram during custody, he finally apprised Vikram that he was not bound to make any statement before him or that any such statement (if made) could be read in evidence against him. Vikram‟s statement (Ex.P8) was recorded in question-answer form. After satisfying that Vikram wanted to make a statement voluntarily without any inducement or pressure of any kind, PW-20 recorded his statement (Ex.P9) at 11.35 A.M. when none else was present inside the Court room. Certificate appended is Ex.P9/A. Vikram also made endorsement (Ex.P9/C) in his own hand and signatures. In the cross-examination, PW-20 denied the suggestion that CBI and police officers were present in the Court room throughout when Vikram‟s statement was recorded on August 14, 1975. He fairly admitted that oath was administered to Vikram before recording his statement. He denied the suggestion that Vikram had made the statement as he was pressurized by administering the oath. He denied the suggestion that copy Crl.A.Nos.443/1976 & 436/1976 Page 113 of 201 of the statement of Vikram as recorded by CBI was in his possession while recording his statement.

101. On scanning the testimony, it reveals that all the necessary precautions were taken by the Judicial Magistrate. He was satisfied that the statement under Section 164 Cr.P.C. was being made by Vikram voluntarily and was not the result of any duress or coercion by the police. It was recorded after due warning and providing sufficient time to reflect. Vikram was aware that he was making a statement before a Judicial Magistrate independent of the police. PW-20 had given assurance of protection against any apprehension, inducement, pressure and threat, etc. Necessary certificate regarding the statement to be voluntary and free from any pressure was appended by the Judicial Officer. Despite lengthy cross-examination, nothing emerged to infer that mandatory requirements of Section 164 Cr.P.C. were not adhered to before recording the statement or that the Judicial Officer had any ulterior or extraneous consideration to connive with CBI to record false statement at their behest as alleged. Vikram himself appeared as PW-1 and categorically deposed that on August 12, 1975, he told Sh.R.D. Aggarwal of his desire to make a statement regarding the incidents at Samastipur resulting in the death of L.N.Misra and subsequent attack on Chief Justice of India. He further Crl.A.Nos.443/1976 & 436/1976 Page 114 of 201 deposed that he was given two days‟ time to reflect before making statement. He was given further time to think over and was asked to sit in the Court room and calmly deliberate about it. Statement (Ex.P9) under Section 164 Cr.P.C. was made by him voluntarily of his own free will without being influenced by anyone in any manner. The reason to make statement was that he was convinced that he had done a wrong thing and by giving that statement, he wanted to unburden himself. In the cross- examination, nothing was suggested to him if the statement given by him was under pressure or that necessary procedural safeguards were not adhered to by the Judicial Magistrate in recording the statement. At no stage, PW-1 (Vikram) challenged the genuineness and authenticity of the statement (Ex.P9) made by him before the Judicial Magistrate.

102. Vikram appeared as an approver before the Court and was examined as PW-1. His Court statement runs into 162 pages (152 paras). He gave detailed account as to how he joined the Organisation in 1965 when he was still a student of 9th class. He gave detailed history of his association with the Organisation; the places where he stayed and performed various jobs till July, 1974. During his short stay at D-41, South Extension Part-I, he was introduced to A-1 an „Avadhoot‟, editor of newspaper “Prout” printed and published from there. A-2, A-3, PW-4 Crl.A.Nos.443/1976 & 436/1976 Page 115 of 201 (Tilak Raj Bhatia) and PW-Raj Singh were visitors to the said premises. In the end of 1972, he went to Jaipur and stayed there as Press Manager till June 1974. He participated in a rally organized by the „Organisation‟ to secure the release of Baba Anand Murti on April 23, 1973 and was arrested for violation of the orders under Section 144 Cr.P.C. on April 24; remained in detention for about a month or so. Acharya Dhaneshanand had committed self-immolation in the Purana Qila. After his release, he went back to Jaipur and returned to Delhi in June, 1974 as press at Jaipur had gone out of order. He resumed work in the press at Delhi and began to live there.

103. Vikram further deposed that on July 01 or 02, 1974 when he had gone to South Extension market at about 02.00 or 02.20 P.M. A-1 called him by his name Vikram from a distance. At first instance, he was unable to recognize A-1 as he had shaved off his beard and moustache. A- 1 was wearing pant and shirt at that time. When he (Vikram) recognized him from voice and face and enquired as to why he (A-1) had changed his dress and appearance, A-1 told him that it was to avoid the police who was searching him after self-immolation of Dhaneshanand. A-1 told Vikram that they needed men of revolutionary type who could secure Baba‟s release by armed revolution. On that, he (Vikram) placed himself Crl.A.Nos.443/1976 & 436/1976 Page 116 of 201 at A-1‟s disposal and agreed to do anything entrusted to him. A-1 asked him to meet him at Pusa Gate at about 08.00 or 08.30 A.M. next day. As per PW-1‟s testimony, he met A-1 at Pusa Gate who took him to the room of Shiv Raj Singh in the hostel of Pusa Institute. A-1 told him that rallies and the self-immolation had no effect on the Government with the result that Baba could not be released; the only way to secure the release of the Baba was through armed revolution. PW-1 declared to carry out any orders given to him in that behalf as he had devoted his entire life to Baba. At A-1‟s command, he shaved off his beard and cut the hair short. An assumed name „Subir‟ was given to him by A-1.

104. PW-1 further testified that A-1 handed over a closed envelope and a packet to deliver to Budhishwaranand @ Amar Singh at Bhagalpur at Anand Margi Primary School without disclosing its contents. He left Delhi the same day by Upper India Express and delivered the articles to Budhishwaranand @ Amar Singh who hailed from Unnao District, U.P. He introduced him to Gopal ji in village Chautham, District Monghyr and asked him to contact him in time of need and emergency; they all used to have meetings at his farm at a distance of 5 / 7 miles from Chautham. He further deposed that on July 13, 1974 at about 10.00 or 11.00 when he and Budhishwaranand @ Amar Singh were standing near a Crl.A.Nos.443/1976 & 436/1976 Page 117 of 201 tomb in the vicinity of Anand Margi Primary School, the police arrested Budhishwaranand @ Amar Singh. He informed A-1 about Budhishwaranand @ Amar Singh‟s arrest and his inability to pick up the bag. On that, A-1 got annoyed and told him that the said packet contained three hand-grenades. The witness further testified that he had attended two or three meetings for armed revolution at Gopalji‟s house and at Tilhar farm which were also attended by A-1, A-3, Arteshanand and Gopalji etc. A-1 used to address those meetings and refrain of his talk in all the meetings was that they could not secure the release of Baba by legal means and they would have to collect as many arms as possible and take resort to armed revolution. On A-1‟s instructions, he went to Narkatiya Ganj and Chamua for collection of arms and met Paras Nath and Roop Nath Misir but could not succeed to procure arms from them. In November 1974 in a meeting at Rajgir, A-1 exhorted them to work for „Shastra Krantikari Yuvak Sangh‟ and each one of them should enroll at least 25 members of strong determination.

On March 17, 1975, he met A-3 at Ashok Lodge near Gandhi Maidan at Patna where A-1 had hired a room for the members to hold secret meetings etc. On enquiry, A-3 told him that A-1 had gone to Delhi and they were to reach there. On March 18, 1975, he and A-3 left Patna Crl.A.Nos.443/1976 & 436/1976 Page 118 of 201 and arrived at Delhi on March 19. The witness revealed that A-3 had carried a black bag with a zip from Patna to Delhi. At the time of leaving Ashok Lodge, A-3 had asked him to be careful about the black bag which contained three hand-grenades and it should be handled with care. At Delhi, they went to Mehrauli bus stand where A-1 met and took them to the house to PW-Raj Singh at Mehrauli and they spent the night there. On March 20, when PW-Raj Singh was making arrangement for breakfast, A- 1 told him and A-3 that “Ray sahib who is the Chief Justice of India is a „Mahapapi‟ in as much as he had rejected the bail application of Baba ji and had refused to transfer the case outside the State of Bihar relating to Baba ji”. A-1 also said that “he (Ray sahib) was openly a henchman of the Indira Sarkar‟. Indira Sarkar had appointed him Chief Justice by superseding 2 / 3 other judges”. He also emphasized that „so long as he occupies the office of the Chief Justice of India it would be difficult to secure justice for Baba ji‟. A-1 declared that “he (Ray Sahib) had to be finished off, and that we had therefore to go towards the Supreme Court”.

105. The witness further informed that they arrived at the Supreme Court from Mehrauli by a bus at about 09.30 A.M. A-1 told them that it would not be advisable to attack the car of the Chief Justice of India in the morning hours due to rush of people and it would be easier to attack in the Crl.A.Nos.443/1976 & 436/1976 Page 119 of 201 evening when the car would stop at traffic lights, at the junction of Tilak Marg and Bhagwan Dass Road. At about 10.00 A.M. A-1 spotted the car with a flag flying on the bonnet coming from the direction of India Gate. Only Chief Justice was sitting in the back seat.

106. Revealing the movements on that day, PW-Vikram recalled that A-1 took him and A-3 to Rama Krishna park at Panchkuin Road at about 11.00 A.M. There, in the park, A-1 told him that in the evening when the car of the Chief Justice would stop at the traffic lights, he would throw a hand-grenade into the car from the right side; A-3 would similarly throw a hand-grenade from the left side. He further told him that if any of those present there tried to chase A-1 or A-3, he (Vikram) would throw a hand-grenade at the chasers. He was asked to stand on the corner towards the DDA flats at the crossing of Tilak Marg and Bhagwan Dass Road. A-1 also showed him a torch which contained only a glass tube filled with whitish liquid and told him that after being broken on the ground, it would emit smoke to serve as a smoke screen to escape without being seen by the crowd. A-1 told him that before throwing the hand-grenade, he should break the tube to create smoke screen and in case any among the crowd chased them, he should throw the hand-grenade at them. They stayed in the park till 02.00 P.M. A little before 02.00 P.M. A-1 had gone towards Crl.A.Nos.443/1976 & 436/1976 Page 120 of 201 the direction of Panchkuin Road leaving him and A-3 behind in the park. After 10 or 15 minutes, A-1 came back accompanied by PW-4 (Tilak Raj Bhatia) who had a radio shop at Panchkuin Road.

107. The witness further stated that A-1 told PW-4 (Tilak Raj Bhatia) to arrange a taxi as they wanted to visit places in Delhi. PW-4 (Tilak Raj Bhatia) took all of them to Gole Market and booked a taxi driven by a Sardar ji. In the taxi, first they went to Budha Jayanti Park, then to India Gate and thereafter to Children‟s Park. At India Gate, they all including the driver ate ice-creams. While visiting Amar Jyoti, A-1 exhorted them to take inspiration from it. At Children‟s Park, all the three went inside it. A-1 and A-3 went away to return after easing themselves at about 03.45 P.M. A-1 and A-3 returned after 10 or 15 minutes. A-1 ordered the taxi to hurry up to the Bhagwan Dass Road as he wanted to meet someone there, lest he should miss him. They came to DDA flats near Bhagwan Dass Road and stopped the taxi there. It was about 04.00 P.M. They all got down from the taxi. A-1 opened the bag; took one hand- grenade for himself, gave one each to him and A-3. He also gave him a torch containing a tube. The empty bag which contained clothes, etc. was left behind in the taxi. PW- Tilak Raj Bhatia and the driver were asked to keep sitting in the taxi till their return.

Crl.A.Nos.443/1976 & 436/1976 Page 121 of 201

108. Highlighting the role played by each of them in the execution of the plan, PW-Vikram continued to reveal that after taking respective position at the spot, a little later, the car of CJI flying the flag came out of the gate reserved for the Judges. It stopped at the traffic lights, due to red light, at the crossing of Tilak Marg with Bhagwan Dass Road. He further revealed “No sooner did the car of the Chief Justice stop there than Santoshanand (A-1) rushed towards the car with the hand-grenade wrapped in the handkerchief in his hand. He went up to the right side rear window of the car. Similarly, Sudevanand (A-3) also reached the rear window on the left side of the car carrying the hand-grenade wrapped in a handkerchief. Santoshanand (A-1) threw the hand-grenade into the car and immediately he went towards Sudevanand (A-3) from behind the car. Sudevanand (A-3) also threw the hand-grenade into the car and then ran in the direction of Bhagwan Dass Road from behind the car.” He further disclosed that while fleeing the spot, A-3 discarded „V‟shape „hawai‟ chappals on the right side of the car. Describing the post-event situation, Vikram informed that Jamadar of Chief Justice and others chased A-3 shouting „Pakaro-Pakaro‟. He was also among the chasers. A-3 entered into the waiting taxi; came out of it; went towards the Garhwal House and scaled over its gate. He also entered Crl.A.Nos.443/1976 & 436/1976 Page 122 of 201 inside the Garhwal House and threw the hand-grenade and torch in the bushes. He did not see A-3 thereafter. The witness gave detailed account as to how from there, he first went to Mandi House, then to Regal Cinema, Koria Pul, Shahadara and finally to Ghaziabad. He left for Patna by Upper India Express. From Patna, he went to Chakia. After a few days, on enquiry from A-3, he falsely informed him due to fear of A-1 that he had broken the tube but it had no effect. On 07.04.1975, he met A-1 at Ashoka Lodge and apprised him that he had broken the tube as advised. A-1 got angry for discarding the hand-grenades in the bushes and directed him to go back and search it out. On 09.04.1975, he went to the house of Raj Singh in Mehrauli and under the guise of a „Kabari‟, went near Garhwal House to retrieve the hand-grenade but finding the police presence there, he did not dare to go and returned to Patna. The witness revealed that meetings were held at Tilhar which were attended by all of them including A-1 and A-3. Again, attempt was made by him to procure arms but in vain. On 24.07.1975, he and A-3 were arrested at Bhagalpur. PW-Vikram identified handwriting and signatures of A-1 on various documents (Ex.P10 to Ex.P15).

109. Vikram was cross-examined at length. He gave detailed answers to the questions put to him regarding his arrest at Bhagalpur and Crl.A.Nos.443/1976 & 436/1976 Page 123 of 201 the statement made by him in Samastipur case. He did not have any hesitation to admit that prior to July 24, 1975, he had complete faith in Baba and considered him incarnation of the God. He gave description of the CJI to whom he was able to recognise if appeared before him. He was confronted with the statement (Ex.D1) recorded under Section 161 Cr.P.C. where he had omitted to state certain facts. He gave explanation for the said omissions. He told that on July 27, 1975, he was produced before a Magistrate. While handing over his custody to CBI, he asked him to keep his face covered to participate in TIP. He declined to participate in the TIP on July 30 in Tihar jail. On August 01, 1975 during police custody remand, he disclosed everything to the police. The pardon was granted to him in Samastipur incident in October, 1975. Regarding his arrest at Bhagalpur, he disclosed that he and A-3 were on their way to the Court in a rickshaw. They had left the house at Nath Nagar on July 24, at about 12 or 01 o‟clock and were arrested in between 02.00 to 03.00 P.M. He denied the suggestion that he was a police informer and had been instrumental in getting these persons arrested wherever he went. He further denied that he had planned to get A-1 and A-3 arrested at Gopalji‟s house and that it was just a matter of chance that they had left earlier.

Crl.A.Nos.443/1976 & 436/1976 Page 124 of 201

110. Elaborating the crime-spot, he revealed that the taxi stood at a distance of about 40 yards and was visible from the place where he had taken up position. The constable was between him and the taxi and the distance was 25 or 30 yards. He denied the suggestion that A-3 did not enter the taxi because for one reason or the other it did not start. The witness explained that subsequently, on enquiry from A-3 as to why he had not escaped in the taxi after entering into it, he gave the reason that it did not start. He disclosed that the gentleman who was sitting with the CJI on the rear seat was 25 years of age, fair complexion and as tall as he himself was. He admitted discarding of the hand-grenades after his escape from the scene of Samastipur Kand due to fear of arrest by the police. He expressed ignorance if the hand-grenades fallen from his hands had subsequently come in the hands of a child and exploded there injuring someone.

111. Answering the varied queries, he further revealed that while chasing A-3 after the incident, he had crossed Tilak Raj Bhatia before running to the Garhwal House. He was not aware as to why Tilak Raj Bhatia was included in the team that day as it was for A-1 to decide to whom to include and not to include. He was not aware if Tilak Raj Bhatai was a party to the conspiracy. He further informed that he and A-3 had Crl.A.Nos.443/1976 & 436/1976 Page 125 of 201 travelled by Assam Mail from Patna to Delhi without reservation of seats. The train arrives at Delhi at 05.00 or 06.00 P.M. after its departure on the previous day at 10.00 or 11.00 P.M. He denied the suggestion that he travelled from Patna to Delhi by Delhi Express on March 18 after making reservation and was not in Delhi on March 19 evening. He claimed that there was no quarrel between him and A-1 and denied the suggestion that he had hit A-1 on the forehead with an iron rod in 1972. He added that throughout his association with A-1, he had good relations with him. A-1 had trained him in the use of hand-grenades.

112. Depicting the crime scene, he disclosed that at the place of occurrence, A-1 and A-3 held their respective hand-grenades in one hand from the middle of the lever. To his view, A-1 took out the hand-grenade from his right pocket in his right hand; covered it with the handkerchief taken out from the left hand pocket. A-1 had thrown the hand-grenade into the car after getting quite close to it. The car of CJI had stopped at the traffic lights with its front wheels touching the „stop‟ line. The word “STOP” was written in a very bold letters cutting across the entire lane of the signal stop.

113. Regarding his visit to Pusa Institute, he deposed that he travelled to the said institute by bus. Shiv Raj‟s room from the Pusa Gate Crl.A.Nos.443/1976 & 436/1976 Page 126 of 201 was at a distance of ½ or ¾ km. He further disclosed that Raj Singh‟s house was at a distance of about a furlang from the bus stand and it was a „pakka‟ house having two or three rooms.

114. In the cross-examination (on behalf of A-3), the witness gave detailed account regarding his family; his association with the Organisation; the oath administered to him by Parkashanand ji; his participation in the various activities of various wings of the Organisation; his association with A-1, A-3 and other active members of the Organisation including Madhavanand; philosophy of the Organisation and his meetings with Anand Murti ji twice. He denied the suggestion that he was expelled from the „Organisation‟ for abducting a girl and committing theft. He further denied that due to his frustration for failure to get a job, he became a whole time worker in the „Organisation‟. He gave the names of various Anand Margis who had defected from the „Organisation‟. He was not aware if Madhavanand, Onkaranand, Naval Kishore, Ujjawal, Chiranand and Chidatamanand had defected from the „Organisation‟. He gave detailed account of the meetings that took place at Gopalji‟s house and added that A-1, A-3, Gopal ji, Artheshanand and he had attended the said meetings. He was not aware if any attempt was made to poison Baba Ji to death in the jail. He denied the suggestion that he joined A-1 because Crl.A.Nos.443/1976 & 436/1976 Page 127 of 201 he was enraged over the news that attempt had been made to poison Baba in jail and added that he was, however, at one, with A-1 to secure Baba‟s release by any means. He gave detailed account regarding Sadhana Pitha Training (SPT) in 1969 at Varansi. He disclosed that he did not know Sudhir Kumar Basedar and was not aware if the original name of Advetanand was Sudhir Kumar Basedar. He was questioned regarding his association with Khub Lal who had introduced him to Paras Nath in connection with procurement of arms. He stated that he had gone to Narkatia Ganj in October 1974 for this purpose. He denied the suggestion that he was arrested at Varansi on the alleged charge of conspiracy by Anand Margis to kill Indira Gandhi, the then Prime Minister of India.

115. About Tilak Raj Bhatia, he disclosed that he had visited his shop twice or thrice and he (PW-4) knew him by the name of Vikram. He denied the suggestion that he used to go to Tilak Raj Bhatia‟s house for delivering newspapers „Prout‟. He admitted that PW-4 (Tilak Raj Bhatia) did not meet him at all after this occurrence. He denied the suggestion that he had told Tilak Raj Bhatia that day that they were in possession of hand- grenades and that they were out to kill the CJI.

About PW-Raj Singh, he told that he had been visiting the press earlier and he had also visited his house five or six times before Crl.A.Nos.443/1976 & 436/1976 Page 128 of 201 March 19, 1975. Raj Singh had been residing in a different house at that time which was at a distance of 1500 to 2000 yards from the house where he was living on March 19. He denied that when he had left Raj Singh‟s house in the disguise of a „kabari‟, he told him that he got entangled in that affair by deceit and that he had not done any such thing. He admitted acquaintance with Janki Prasad who had become a member of „Akhil Bhartiya Shastra Vipalavi Chhatar Yuva Sangh‟. He was not aware if Janki Prasad was an agent of CBI and that he in league with him got A-3 arrested. Denying the suggestion that Janki Prasad was the third passenger in the rickshaw at Bhagalpur where he and A-3 were arrested, he added that he had seen Janki Prasad at the railway station on July 24, 1975 but did not meet him.

116. In para-87 of the statement, he disclosed that he was aware of topography of the area due to distribution of the „paper‟ from time to time during the period he had been working in the local press. About crime scene, he disclosed that the car of the Chief Justice arrived at the traffic lights 5 or 7 minutes after he had taken up position. He admitted that but for the red lights, their decision was not to throw the hand-grenades. He elaborated that their plan was that in case the car did not stop there, they would try some other time. It had not been decided as to when and where Crl.A.Nos.443/1976 & 436/1976 Page 129 of 201 the other attempt was to be made. Their next programme in event of the car not stopping there depended upon A-1. A-1 had told them that as soon as the hand-grenades exploded, they would escape in the taxi in the resultant confusion. There was no contingency plan in the event of the taxi not being available there. He denied the suggestion that false statements were made by him in the Court because he had joined hands with Datgatanand, Vishokanand and Parkashanand in league with the CBI.

117. In the cross-examination on behalf of Ram Nagina Prasad (since acquitted), he denied the suggestion that he was given only a torch without any tube in it and that the said torch was supposed to itself emit smoke. He further disclosed that the sikh gentleman who drove the taxi was wearing khaki pants and shirt, brown colour turban and was aged about 35 or 40 years. He categorically stated that neither did he ask the police to make him an approver nor did the police ask him to become an approver. All that he had said was that he was prepared to state the truth regardless of its consequences. He agreed to be a party to the conspiracy of throwing the hand-grenades and breaking the tube, because the element of fear never entered his mind. He did not break the tube because the hand-grenades did not explode.

Crl.A.Nos.443/1976 & 436/1976 Page 130 of 201

118. Replying the questions put in the cross-examination on behalf of A-2, he stated that in the newspapers in 1975 he read that the government had banned the „Organisation‟. He denied the suggestion that from the very beginning, he had joined the „Organisation‟ with a plan to get into it and do espionage work inside it, get some Anand Margis involve in criminal cases and then become an approver. He denied that after his arrest on July 24, 1975, he was subjected to severe beatings by the police or that he was served with food and drinks and was entertained to induce him to make a statement as they wanted. He admitted that there was no talk at all about the conspiracy to kill the CJI in any of their meetings held in the State of Bihar. He claimed that when he was engaged in all these activities, he knew that he was running the risk of his life but that did not bother him because he was prepared to do anything for Baba. He stated that he did not give any suggestion to A-1 and A-3 any time by way of dissent or otherwise because they were his leaders and it was his duty to follow them. Denying the suggestion that A-1 himself used to go to the Supreme Court for the „paravi‟ of bail applications, PW-Vikram added that Acharya Ram Tanuk, a lawyer, used to visit the Supreme Court for this purpose and stay at D-41, South Extension during his visits to Delhi. It is apt to note here that name of Sh.Ram Tanuk, Advocate, finds Crl.A.Nos.443/1976 & 436/1976 Page 131 of 201 mention in various orders of the Supreme Court (Ex.P-95, Ex.P-96 and Ex.P-98) whereby he represented the head of the „Organisation‟. He denied the suggestion that the tube was not broken to create smoke screen, because he was a dishonest man and was in league with CBI. He explained that he did not avail the taxi for his escape, because he wanted to go after A-3 for his help. He admitted that he had followed A-3 keeping in mind that if anybody tried to catch him, he would kill him by throwing the hand-grenade.

119. On analysis of the broad features of Vikram‟s evidence described above, it reveals that PW-Vikram has given detailed account from the inception to the end of all the events and his testimony is quite expatiated. He was a dedicated follower of the „Organisation‟ which he joined in 1965 during his childhood. He had utmost faith in the „Organisation‟ and was ready and willing to sacrifice his life for its cause. He was an active whole time worker of the „Organisation‟ and had deep knowledge about its philosophy. He had close association with A-1 and was ready and willing to obey his command at all costs. He participated in various meetings attended by A-1 and A-3 in Delhi and outside Delhi. On the day of arrest on July 24, 1975, he was with A-3 at Bhagalpur. Though various suggestions have been put regarding his wrong doings in the Crl.A.Nos.443/1976 & 436/1976 Page 132 of 201 „Organisation‟, no evidence emerged on record to show if at any time his bonafide was suspected or he was expelled from the „Organisation‟. Nothing has come on record if A-1 or A-3 or the „Organisation‟ had any grievance whatsoever against his conduct and behaviour before recording statement under Section 164 Cr.P.C. Even in Tihar jail, he had declined to participate in TIP as advised by A-1. He was in a fix to make complete disclosure of the facts during investigation till August 11 by CBI. When he was produced on August 12, 1975 before Sh.R.D.Aggarwal, ACMM, he expressed desire to record statement under Section 164 Cr.P.C. In the statement given to the Judicial Magistrate as well as before the Court, he not only clearly implicated A-1 and A-3 but also involved himself for actively participating in the execution of the conspiracy to throw hand- grenades on the car in which CJI was travelling. His involvement in the incident had come prior to his arrest on July 24, 1975 in this case.

120. Despite lengthy and indepth cross-examination on various dates, the appellants were unable to extract or elicit any material discrepancy or variation to doubt the version narrated by him. He gave minute detail of the events as to how A-1 had instigated / exhorted him to resort to illegal means for release of Baba from jail; how he had participated in the execution of the plan on March 20, 1975. The Crl.A.Nos.443/1976 & 436/1976 Page 133 of 201 appellants were unable to shatter his testimony on vital aspects or to bring out any major infirmity in it. Learned counsel for the appellants assailing the statement of approver on various grounds pointed out numerous alleged contradictions and improvements in his statement. True, Vikram has made certain improvements in his deposition before the Court and the facts deposed in the Court were omitted to be so mentioned in his statements recorded under Section 161 Cr.P.C. or 164 Cr.P.C. However, when confronted the witness gave elaborate explanation for their omissions and furnished reasonable clarifications. The discrepancies / improvements referred to by the appellants‟ counsel are minor, insignificant, natural and not material. Marginal variations in the statement cannot be dubbed as improvements as these are in fact details and description of the narrations extracted by the defence counsel in the lengthy cross-examination of the approver. It may be worthwhile to notice that wherever any alleged contradiction or improvement was confronted to the witness, the learned Trial Court had made a note of it in the statement at the time of recording of the deposition of the witness. These omissions do not go to the root of the prosecution case to shake its basic structure. The law is very clear on this aspect; only such omissions which amount to contradiction in material particulars can be used to discredit the Crl.A.Nos.443/1976 & 436/1976 Page 134 of 201 testimony of a witness. In „Narayan Chetanram Chaudhary & anr. vs. State of Maharastra‟, 2000 (8) SCC 457, the Supreme Court held : “Only such omissions which amount to contradiction in material particulars can be used to discredit the

testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier

statements, the case of the prosecution become

doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of

observation differ from person to person. The

omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW. 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness.”

121. In „State of U.P. vs. M.K.Anthony‟, (supra), Supreme Court held :

“Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by

taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the : root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not Crl.A.Nos.443/1976 & 436/1976 Page 135 of 201 this benefit will have to attach due weight to the

appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with

individuals. Cross examination is an unequal duel

between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned Counsel for the respondent and

the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the

appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and

credible.”

122. I am satisfied that contradictions (if any) are only minimal and would not affect the claim of the prosecution case or discredit his statement. Contrary to that, various conflicting and inconsistent suggestions have been given to Vikram in the cross-examination which strengthen the deposition given by him in the Court regarding the role attributed to the appellants. PW-Vikram had no extraneous motive to make a false statement as he himself had remained in detention / custody for long ten years despite being granted pardon. The suggestions given to PW-Vikram in the cross-examination are worth-noting. Crl.A.Nos.443/1976 & 436/1976 Page 136 of 201 (i) I deny the suggestion that I became Avadhoot in the jail. (PW-Vikram never claimed himself to be an „Avadhoot‟). (ii) It is correct that the hand-grenades given to him for throwing for the Samastipur „kand‟ had been subsequently discarded by him in the same manner as I had discarded the hand- grenades in the present case. (Apparently suggesting active participation of the witness in the crime).

(iii) I deny the suggestion that I had been a police informer and had been instrumental in getting these persons arrested wherever I went. I deny the suggestion that I had planned to get (Santoshanand) (A-1) and (Sudevanand) (A-3) arrested at Gopalji‟s house and that it was just a matter of chance that they had left earlier.

(iv) I deny the suggestion that (Sudevanand) A-3 did not enter the taxi because for one reason or the other the taxi did not start. (v) I deny the suggestion that he (PW-Vikram) travelled from Patna to Delhi by Delhi Express on March 18 after making reservation. I deny that I was not in Delhi on March 19 evening.

Crl.A.Nos.443/1976 & 436/1976 Page 137 of 201 (vi) It is correct that I deliberately did not tell him about my participation in the armed revolution because I felt that he should not be told about it. It did not occur to me as to what would be the consequences if I disclosed this thing to him. (vii) I deny the suggestion that Visheshwaranand and I acted in concert for the „Samastipur Kand‟.

(viii) I deny the suggestion that I joined Santoshanand (A-1) because I was enraged over the news of an attempt to poison Baba in jail.

(ix) I deny the suggestion that I had shaved off my beard and cut my hair short a day before I went to Pusa Gate.

(x) I deny the suggestion that when I went to Raj Singh‟s house again and left in the disguise of a „kabari‟, I had told him that I got entangled in that affair by deceit and that I had not done any such thing.

(xi) I deny the suggestion that I used to go to Tilak Raj Bhatia‟s house for delivering the newspaper “Prout”. It is correct that I had not met Tilak Raj Bhatia at all after this occurrence. Crl.A.Nos.443/1976 & 436/1976 Page 138 of 201 (xii) I deny the suggestion that I had told Tilak Raj Bhatia that day (March 20) that we were in possession of hand-grenades and that we were out to kill the Chief Justice of India. (xiii) I deny the suggestion that Janki Prasad was the third passenger in the rickshaw at Bhagalpur where he and A-3 were arrested.

(xiv) I deny the suggestion that none of them told me that they had been procuring arms from Ram Nagina Prasad and that I have made my statement as recorded above merely on the basis of a conversation between (Santoshanand) A-1 and (Sudevanand) A-3 which was over heard by me.

(xv) I deny the suggestion that I had been given only a torch without any tube in it and that the torch given to me was supposed to itself emit smoke.

(xvi) It is correct that in all those meetings the attendance was never more than 5 or 6 persons.

(xvii) I deny the suggestion that I did not break the tube to create the smoke screen, because I was a dishonest man and was in league with the CBI.

Crl.A.Nos.443/1976 & 436/1976 Page 139 of 201 (xviii) It is correct that I had followed Sudevanand (A-3) keeping in mind that if anyone tried to catch him, I would kill him by throwing the hand-grenade.

123. Appellants‟ counsel were specifically asked about the purpose and relevance of these suggestions given to PW-Vikram in the cross-examination to which they had no answer.

124. The suggestions made in the cross-examination form part of the evidence on record. Those suggestions can be taken into consideration while determining whether the reply given was believable or not [„Jamal Ahmad & ors. vs. State of U.P.‟, 1979 ACR 185 (High Court of Allahabad)]. In „Hazara Singh vs. Jinder Singh & ors.‟, 1997 (1) SCALE 477, the Supreme Court observed, “…….On the contrary from the suggestion made to the witness Hazara Singh in cross-examination that the young wife of Dhyan Singh was a lady of easy virtues and was once found in compromising position with one Amar Singh, indicated that the accused did not dispute the earlier occurrence with Kulwant Singh.” In „Jesu Asir Singh & ors. vs. State through Inspector of Police‟, (2007) 12 SCC 19, the Supreme Court observed, “the question put in the cross- examination to a great extent probabilise the prosecution version. Though Crl.A.Nos.443/1976 & 436/1976 Page 140 of 201 questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant.”

125. I am conscious that the prosecution must stand on its own legs and it cannot derive any strength from the weakness of the defence. Though the suggestions made in the cross-examination is not evidence but certainly the same may be called into aid only to lend assurance to the prosecution case; particularly when other evidence establishes the guilt of the accused.

126. The appellants did not produce any evidence in defence to controvert or falsify the facts disclosed by PW-Vikram in his detailed examination before the Court. Nothing was suggested to him as to from where else he was arrested. PW-Vikram attributed and assigned definite and specific role to each of the appellants in the occurrence minutely. His assertion on vital facts remained unchallenged and uncontroverted in the cross-examination. In fact, Vikram‟s cross-examination is on fringes and reflects appellants‟ reluctance to question him on vital substantive aspects. All sorts of questions having no relevance with the main issues have been put to him even to test his knowledge about the philosophy of the „Organisation‟. Nothing was suggested to PW-Vikram, an active member of the „Organisation‟ about his presence on March 19 or 20, 1975. A-1 Crl.A.Nos.443/1976 & 436/1976 Page 141 of 201 and A-3 even did not deny their presence in Delhi during the relevant period. PW-Vikram was fair enough not to implicate A-2 for joining the conspiracy or assisting the conspirators in any manner in the execution of the conspiracy. The only role attributed to him was that A-1 had disclosed him that CJI was shown to him by A-2 in the Supreme Court. He did not implicate PWs – Tilak Raj Bhatia, Shiv Raj Singh or Raj Singh for joining the conspiracy. He was fair enough to reveal that before March 20, 1975 he was not aware if hand-grenades were to be thrown at the car of the CJI. He also disclosed that he was unable to procure arms and ammunitions despite efforts made by him. PW-Vikram‟s testimony clearly and un- erringly establishes the active role played by A-1 and A-3 in the execution of the plan.

127. I do not subscribe to the appellants‟ contention that pardon granted was not legal under Section 306 Cr.P.C. The principle of tendering pardon to an accomplice is to unravel the truth in a grave offence so that guilt of other accused persons concerned in commission of crime could be brought home. Detailing the object to grant pardon, Supreme Court in „Narayan Chetanram Chaudhary & anr. vs. State of Maharastra‟ (supra), held that the accomplice‟s evidence is taken on record as a matter of necessity in case where it is impossible to get Crl.A.Nos.443/1976 & 436/1976 Page 142 of 201 sufficient evidence of a heinous crime unless one of the participators in the crime is disposed to disclose the circumstances within his knowledge on account of tender of pardon. Approving the observations in „Suresh Chandra Bahri vs. State of Bihar‟, 1995 SCC (Crl.) 60, it held : “….The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence. ”

128. PW-Vikram actively participated and facilitated the commission of crime. He was privy to all the happenings at the time of incident. Apparently, the Trial Court took all precautions in complying with the provisions of Section 306 before tendering pardon to accused Vikram who appeared as PW-1. I do not find any violation of law or illegally in the procedure for tendering pardon to him. In my view, there was no legal impediment in the grant of pardon to Vikram. Moreover, the appellants never challenged the pardon during trial. Crl.A.Nos.443/1976 & 436/1976 Page 143 of 201

129. Before adverting to the Vikram‟s statement as approver, legal position highlighted in Para 36 of „Narayan Chetanram Chaudhary & anr. vs. State of Maharastra‟ (supra), after discussing various authorities about evidentiary value of the testimony of an approver is relevant to note, Supreme Court held :

“There is no antithesis between Section 133 and

illustration (b) to Section 114 of the Evidence Act, because the illustration only says that the Court ‘may’ presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption.

Reading the two together the position which emerges

is that though an accomplice is a competent witness

and though a conviction may lawfully rest upon his

uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in

the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self- confessed criminal, who, in so far as an approver is concerned, has to testify in terms of the pardon

tendered to him. The risk involved in convicting an

accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. All the same, it is necessary to understand that what has hardened into a rule of law is not that the Crl.A.Nos.443/1976 & 436/1976 Page 144 of 201 conviction is illegal if it proceeds upon the

uncorroborated testimony of an accomplice but that

the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make if safe to dispense with it.

XXXX XXXX XXXX

“….In Haricharan Gajendragadkar, C.J., speaking

for a live-Judge Bench observed that the testimony of an accomplice is evidence under Section 3 of the

Evidence Act and has to be dealt with as such. The

evidence is 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 not become virtually a part of the law that it is

corroborated in material particulars.”

130. Regarding nature and extent of corroboration, the Court held :

“For corroborative evidence the Court must look at the broad spectrum of the approver’s version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such may depend upon the facts of different cases. Corroboration need not be in the form of ocular

testimony of witnesses and may be even in the form of circumstantial evidence. Corroborative evidence must be independent and not vague or unreliable. Relying

upon its earlier judgment in Suresh Chandra Bahri’s

case (Supra) this Court in Niranjan Singh v. State of Punjab : 1996CriLJ2506 held that once the evidence of the approver is held to be trustworthy, it must be

shown that the story given by approver so far as an

Crl.A.Nos.443/1976 & 436/1976 Page 145 of 201 accused is concerned, must implicate him in such a

manner as to give rise to a conclusion of guilt beyond reasonable doubt. Insistence upon corroboration is

based on the rule of caution and not merely a rule of law.

131. The Supreme Court in „Mrinal Dass vs. State of Tripura‟, 2011 (9) SCC 479, held :

“17. Though a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an

approver, yet the universal practice is not to convict upon the testimony of an accomplice unless it is

corroborated in material particulars. The evidence of an approver does not differ from the evidence of any other witness save in one particular aspect, namely, that the evidence of an accomplice is regarded ab

initio as open to grave suspicion. If the suspicion

which attaches to the evidence of an accomplice be not removed, that evidence should not be acted upon

unless corroborated in some material particulars; but if the suspicion attaching to the accomplice‟s evidence be removed, then that evidence may be acted upon even though uncorroborated, and the guilt of the accused

may be established upon the evidence alone.

XXX XXX XXX

29. It is clear that once the evidence of the approver is held to be trustworthy, it must be shown that the story given by him so far as an accused is concerned, must implicate him in such manner as to give rise to a

conclusion of guilt beyond reasonable doubt.

Insistence upon corroboration is based on the rule of caution and is not merely a rule of law. Corroboration need not be in the form of ocular testimony of witnesses Crl.A.Nos.443/1976 & 436/1976 Page 146 of 201 and may even be in the form of circumstantial

evidence.”

132. Appreciation of Vikram‟s evidence shows that he is a reliable witness. In his examination-in-chief, he clearly stated that he was one of the accused in the case and during investigation he was arrested by the CBI. In categorical terms, he asserted that he was aware of the whole incident which led to the throwing of hand-grenades in the car of CJI and was also connected with and involved in the incident along with others.

133. From the judgment of the Trial Court, it is crystal clear that the Court was conscious of the credibility of the approver witness and insisted upon corroborative evidence in material particulars of the depositions made by him to see as to whether his evidence was reliable and whether the same was corroborated in material particulars to assume its trueness first. The Trial Court in its judgment referred to several corroborated circumstances and concluded that these assured the correctness and truthfulness of the version of the approver.

134. I have minutely scrutinized the evidence of PW-Vikram and the corroborative evidence discussed in detail above and find no substance in the submission of learned counsel for the appellants that the testimony of PW-Vikram has not been corroborated in material particulars. In the Crl.A.Nos.443/1976 & 436/1976 Page 147 of 201 evidence given by the approver before the Trial Court, he had definitely and unequivocally implicated A-1 & A-3 in the commission of the crime. The statement of PW-1 is vivid in explanation and inspires full confidence of the Court. The corroborative evidence to the aforesaid statement leaves no doubt in the mind of the Court regarding the involvement of the appellants. He recorded his statement under Section 164 Cr.P.C. before judicial authorities without any delay ruling out possibility of tutoring. The confessional statement recorded by Vikram amply proves the allegations. The evidence in Court does not suffer from any infirmity. PW-Vikram has spoken of presence of A-1 and A-3 during the whole transaction and has unequivocally attributed specific and definite role to each of them in the crime. In the morning, they all had gone to Supreme Court to observe the situation. They stayed and surveyed the area and decided to execute the plan in the evening. Vikram, who had no enmity with the appellants, has been very consistent about the factual matrix not only in his statements under Sections 161/164 Cr.P.C. but also before the Court and has supported the prosecution case fully. The statement of the approver inspires confidence including the conspiracy part which gets full support from the narration of the occurrence given by several other impartial witnesses. There is nothing wrong in accepting his entire Crl.A.Nos.443/1976 & 436/1976 Page 148 of 201 statement and true disclosure of the incident coupled with corroboration with the independent witnesses. Vikram is the solitary witness of all the circumstances to be used against the accused persons.

135. The analysis of the statements of various witnesses PW-2 (Jai Nand), PW-4 (Tilak Raj Bhatia), PW-5 (Charan Singh), PW-57 (Raj Singh), PW-55 (Shiv Raj Singh) and others, clearly strengthen the case of PW-Vikram (the approver) in all aspects including conspiracy / planning to attack CJI for rejection of bail; to make an attempt on his life, actual incident; role played by the assailants and subsequent events. I am satisified that by these statements, the prosecution has strengthened its case through PW-Vikram, the approver, and there is no reason to disbelieve his version. Judged on the background of the legal position as stated above, the evidence of PW-Vikram does not suffer from any infirmity to warrant rejection for his evidence is not really uncorroborated. Even circumstantial evidence can provide the corroboration. In the instant case, the evidence of PW-Vikram therefore, clearly meets the requirement of Section 114 (b) in the background of Section 133 of the Evidence Act. (E) Whether PW-4, PW-44, PW-55 & PW-57 were accomplices

136. Appellants‟ counsel strenuously urged to exclude the evidence tendered by these witnesses as they themselves were Crl.A.Nos.443/1976 & 436/1976 Page 149 of 201 accomplices / co-conspirators. All of them were aware about the conspiracy in question from the inception and facilitated the appellants in fulfilling its object in one way or the other. Counsel laid considerable stress on the fact that they did not lodge a complaint to the police to prevent the crime. They were in CBI custody for about ten days as suspects and remained absent from their duties. Initially, they were marked „absent‟ in their office record. Subsequently, absence period was treated as „regular‟ and they were taken to be on „duty‟. Apparently, they had every temptation to give evidence as desired by CBI. An accomplice cannot corroborate another. Corroboration of one tainted evidence by another tainted evidence can in no manner be called independent corroboration.

Dealing with this aspect in paras 181, 182 and 183, the Trial Judge concluded that they were not accomplices. I am in agreement with these findings. In „Sheshanna vs. The State of Maharashtra‟, AIR 1970 SC 1330, the Supreme Court explaining the meaning of an accomplice observed : “any party to the crime charged and someone who aids and abets the commission of the crime. “

Crl.A.Nos.443/1976 & 436/1976 Page 150 of 201 In „Satya Narayan vs. Hyderabad State‟, 1956 SC 379, the Supreme Court, after quoting with approval the following passage from Russel held :

“But a person may be present, and if, not aiding and abetting, be neither principal nor necessary; as, if „A‟, happens to be present at a murder and takes no part in it, nor endeavours to prevent it, or to apprehend the murderer, this course of conduct will not of itself

render him either principal or accessory.”

In „Jagannath vs. Emperor‟, AIR 1942 Oudh 221, it was held:

“7. …The word “accomplice” has not been defined by the Act, and should therefore be presumed to have been used in its ordinary sense. An accomplice means a

guilty associate or partner in crime, or who, in some way or other, is connected with the offence in question, or who makes admissions of facts showing that ho had a conscious hand in the offence. In my opinion where a witness is not concerned with the commission of the

crime for which the accused is charged, he cannot be said to be an accomplice in the crime….

8. In my opinion the word, “accomplice” is made at

times to bear improperly a larger meaning than is

permissible according to its accepted interpretation in law. An accomplice confesses himself a criminal who

has been concerned in the commission of a crime,

participles criminal, whether he is concerned in the strict legal propriety as principal in the first or second degree, or merely as accessory before or after the fact. It is well-settled law that all accessories before the fact, if they participate in the preparation for the Crl.A.Nos.443/1976 & 436/1976 Page 151 of 201 crime, are accomplices, but if their participation is limited to the knowledge that a crime is to be

committed they are not accomplices. Whether a person is or is not an accomplice depends upon the facts in each particular case considered in connection with the nature of the crime, and persons to be accomplices

must participate in the commission of the same crime as the accused persons in a trial are charged. If the evidence of a witness falls short of these tests, he is not an accomplice, and his testimony must be judged on

principles applicable to ordinary witnesses. Where a witness is not concerned with the commission of the

crime for which the accused is charged, in my opinion, he cannot be said to be an accomplice in the crime.

Persons coming technically within the category of

accomplices cannot be treated on precisely the same

footing. In the present ease there is no evidence that Bashir Beg participated in the preparation for the

crime. Ho, therefore, cannot be said to be an

accomplice in the crime, as I have said that it is well settled law that all accessories before the fact, if they participate in the preparation for the crime, are

accomplices.”

It further held that the burden of proving that a witness is an accomplice ordinarily is upon the body alleging it for the purpose of invoking the rule, namely the accused.

137. In the instant case, nothing emerged to infer if these witnesses had conscious hand in the crime or played an active role. It is unclear if any of them was privy to the „conspiracy‟ or was aware of its existence. None of them procured any arm or ammunition to carry out the Crl.A.Nos.443/1976 & 436/1976 Page 152 of 201 unholy plan of the „conspiracy‟. No incriminating material was recovered from their possession. This is true that they did not report or convey the information to the police at the relevant time but this by itself does not make them accomplices. The mere fact that a person did not reveal his knowledge of the intended crime to the authorities does not make him an accomplice. They have given reasonable explanation that due to threats extended by the appellant and being in fear, they refrained from doing so. (When a person under threat of death or other forms of pressure which he is unable to resist commits a crime along with others, he is not a willing participant in it but a victim of it. Such a person can hardly be called an accomplice („Sriniwas Mull Bairoliya & Anr. vs. Emperor‟, AIR 1947 PC 135). Omission to inform the authorities promptly does not constitute him an accomplice. An accused is a person who has concurred in the commission of an offence. Since all of them were followers of the same „Organisation‟ at one time, their association with the appellants during the relevant period cannot be taken incriminating to discredit their testimonies and entangle them in the cobweb of the conspiracy. They appear to be victims of circumstances. They were used by the appellants. They did not know the nature of conspiracy hatched by the accused persons. Their Crl.A.Nos.443/1976 & 436/1976 Page 153 of 201 evidence cannot be discarded as tainted evidence; they were to gain nothing by telling falsehood.

138. The appellants did not admit or confess themselves to be perpetrators of the crime. Specific and direct questions were put to the appellants‟ counsel during arguments to elaborate and explain as to with whom these witnesses were in „conspiracy‟ and what was its design or purpose. The appellants had no answer to it.

It is pertinent to note that application under Section 190 (b) Cr.P.C. on behalf of A-1 was moved before the Trial Court through Counsel to take cognizance against these witnesses for hatching conspiracy, harbouring criminals, failure to inform the authorities about commission of crime under Sections 120B/109/202/212 etc. and to try them jointly with the accused persons on 03.05.1976. This application was dismissed then and there as the Trial Court was not competent to take any such cognizance. It appears that the appellant did not challenge the order further. The contents of the application rather lend credence to the prosecution case whereby the appellants did not deny „conspiracy‟ in attacking CJI. Their only grievance was as to why these witnesses were not made accused along with them and why they were taken as witnesses. Crl.A.Nos.443/1976 & 436/1976 Page 154 of 201

139. Even if it is presumed that at one stage or the other, these witnesses assisted the appellants in some way or the other, it will not efface the crime committed by them (the appellants). The appellants cannot be exonerated or given clean chit due to failure of prosecution to put them on trial. In „Ranjit Singh vs. State‟, 1997 VAD (Delhi) 689, This Court observed that failure to put up Bhinderwala or anyone else for trial would not absolve the appellant of criminality on the charge of conspiracy. It observed :

“(246) According to Mr. Kalra, as per the case of the prosecution, Sant Jamail Singh Bhinderwala was the

moving spirit and principal conspirator. He was very much alive at the time when the challan was put up in Court for trial. A significant and substantial role was attributed to him in the police report submitted to the Court on completion of the investigation under Section 173, Cr.P.C. We are informed by Mr. Kalra that Sant

Jamail Singh Bhinderwala was reported to have died

much later. When asked why Sant Jamail Singh

Bhinderwala was neither arrested, nor put up as an

accused for trial in the case, Mr. Kaira frankly

conceded his inability to give any Explanation

whatsoever except that the Government developed

“cold feet”. Notwithstanding that lapse or omission, in view of the earlier discussion on the law of conspiracy, it would not affect the guilt of the appellant Ranjit Singh,

(247) In the light of the foregoing discussion, we find merit in the argument of Mr. Kalra and hold that there is sufficient evidence on record to prove that there was Crl.A.Nos.443/1976 & 436/1976 Page 155 of 201 culpable connection between the appellant and Sant

Jarnail Singh Bhinderwala and that the evidence on

record showing the conduct and acts of Sant Jamail

Singh Bhinderwala as well as things said and done by him are admissible in evidence against the appellant for the purpose of supporting his conviction on the

charge of criminal conspiracy. The impugned findings of the learned Trial Court to the contrary are

accordingly altered.”

140. It is well settled that all accessories before the fact, if they participate in the preparation of the crime are accomplices, but if their participation is limited to the knowledge that crime is to be committed, they are not accomplices.

(F) Motive (A-1 & A-3)

141. Normally, there is a motive behind every criminal act and for that reason investigating agencies as well as the Court try to ascertain as to what was the motive on the part of the accused to commit the crime in question while examining his complicity. In a case which is based upon circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. The Trial Court in para 103 of the judgment has dealt with this circumstance extensively and was of the definite view that A-1 and A-3 had strong and clear motive to commit the crime. Both, A-1 and A-3 were unflinchingly committed followers of the „Organisation‟ whose head / founder / preceptor to whom they considered Crl.A.Nos.443/1976 & 436/1976 Page 156 of 201 incarnation of God could not come out of jail due to rejection of the bail applications and transfer petition by the Bench headed by CJI. Evidence has come on record that A-1 developed the belief that so long as Sh.A.N.Ray (CJI) was the head of the judiciary, peaceful and legal means would not secure release of Anand Murti and that armed revolution was the only way to get him released. He developed a vengeful attitude towards the CJI. This prejudice and hatred impelled A-1 to take the extreme step. Apparently, the target of the dastardly intrigue was CJI. PW-Vikram was categorical to depose that even on March 20, in the morning, before leaving Raj Singh‟s house A-1 had told him and A-3 that CJI was „Mahapapi‟ and that he had rejected the bail and transfer applications of Anand Murti and that it would be difficult to secure the release of Anand Murti so long as he was CJI and therefore, he had to be finished off. The prosecution placed on record copies (Ex.P98 to Ex.P100) of the relevant documents from the records of the Supreme Court to show that CJI headed different Benches who dismissed the bail applications of Anand Murti and transfer petition during the period March 25, 1974 and October 30, 1974. Being a dedicated follower of the „Organisation‟ and having complete faith in the head of the „Organisation‟, it was the earnest desire of A-1 to get him released from detention at the earliest. The Crl.A.Nos.443/1976 & 436/1976 Page 157 of 201 attempts to get him released on bail or to get the matter transferred did not yield any result. It impelled A-1 even without taking into confidence the „Organisation‟ to hatch conspiracy with Vikram, A-3 and other followers of the „Organisation‟ to plan and attack CJI to get rid of him. For that end in mind, he in various meetings exhorted Vikram, A-3 and others to resort to armed revolution and even deputed them to procure arms. The planed conspiracy came to be executed on March 20, 1975 by them.

142. A-1 and A-3 had clear and strong motive of vengeance in committing the crime and this can be taken an incriminating circumstance under Section 8 of the Evidence Act.

(G) Circumstances against A-2 to prove conspiracy / A-2’s involvement

143. Now let us analyse the evidence against A-2 that is sought to be relied upon by the prosecution. Charge against A-2 was that on or about March, 18, 19 & 20, 1975, he hatched conspiracy with Vikram @ Subir @ Jaldhar Dass (since turned approver), A-1 and A-3 at Delhi and other places to commit the murder of CJI. At the outset, it may be mentioned that the CBI case hinged upon the following circumstances :

1. The CJI was shown to A-1 in the Supreme Court.

2. Reservation of tickets in the name of fictitious and non- Crl.A.Nos.443/1976 & 436/1976 Page 158 of 201 existant persons to provide escape route to A-1 and A-3.

3. False denial of proved facts in 313 statement.

4. Motive.

(a) Circumstance No.1 :

No specific findings have been recorded by the Trial Court on this circumstance. It is unclear as to when on a particular date, CJI was shown to A-1 in the Supreme Court by A-2. No evidence emerged to infer when A-1 contacted A-2 for this purpose and on which date and at what time, CJI was shown. In response to a specific query, CBI counsel fairly conceded absence of any evidence to confirm it. A-2, a lawyer in Supreme Court had no occasion / reason to take A- 1 with him solely for that purpose to CJI‟s room. Admitted position is that in 1975 or 1976, visits to the Supreme Court did not have any restrictions. Anyone concerned or connected with the matter could go to Supreme Court unhindered to watch the proceedings in open Court. The entry to the Supreme Court premises was not regulated as is the practice prevalent now-a-days. The Court room of CJI was an ear-marked one. There was no hitch for A-1 who was a regular visitor to Supreme Court in connection with various cases Crl.A.Nos.443/1976 & 436/1976 Page 159 of 201 to visit the Supreme Court. Moreoever, if a client or acquaintance accompanied an advocate, he had no power to stop him to see the court proceedings. No cogent and credible evidence was adduced as to when and where CJI was shown. None of the prosecution witnesses including PW-Vikram assigned any such overt act to A-2. The alleged A-1‟s disclosure to PW-Vikram relied upon in this regard is of no significant value. PW-Vikram in certain terms exonerated A-2 to be a member of the conspiracy. This innocuous circumstance has no intrinsic worth to be taken note and is not an incriminating circumstance. There are no allegations if A-2 apprised A-1 about the vehicle, its registration number etc. in which CJI used to travel. The car was targeted without verifying if CJI was present in it.

(b) Circumstance No.2 :

144. Appreciation of evidence led the Trial Court to conclude that A-1 and A-3 performed journey on March 25, 1975 after A-2 reserved berth in a three tier sleeper coach and a seat in a sitting compartment in the fictitious names of „Pankaj Kumar‟ and „Ramesh Kumar‟, respectively Crl.A.Nos.443/1976 & 436/1976 Page 160 of 201 on March 15 & 21, 1975 vide requisition slips Ex.P23 and Ex.P25. The Trial Court was of the view that this circumstance confirmed that A-2 had knowledge of the crime and carried out the job assigned by the co- conspirators.

145. This circumstance even if taken correct would not be sufficient to infer hatching of conspiracy by A-2 with co-convicts. Undoubtedly, the prosecution produced clinching evidence to establish reservation of tickets by A-2 in the fictitious names of „Pankaj Kumar‟ and „Ramesh Kumar‟ on March 15 and 21, 1975, respectively, which facilitated A-1 and A-3 to escape out of Delhi. The prosecution was however unable to collect credible evidence as to at whose instance the tickets were reserved by A-2. There is no evidence on record to infer that these reservations were done at the behest of only A-1. A-1 and A-3 were not in Delhi on March 15, 1975. Nothing is discernible if A-1 used to remain in constant touch or contact with A-2. As per Vikram‟s statement, A-1 had left Delhi after the incident of self-immolation. He avoided his arrest and was declared Proclaimed Offender. Vikram and A-3 were arrested for contravention of the prohibitory orders on April 24, 1973. After release from jail, Vikram went back to Jaipur around June, 1973 and returned to Delhi in the end of June, 1974. On July 01 or 02, 1974, he was Crl.A.Nos.443/1976 & 436/1976 Page 161 of 201 able to spot A-1 in South Extension market in disquised appearance. Vikram and A-3 left Patna by Assam Express on March 18, and arrived in Delhi on March 19, 1975 at about 06.00 P.M. A-1 was already in Delhi. It is unclear on which particular date and by which mode, A-1 arrived in Delhi. No evidence emerged if after coming to Delhi on or before March 15,1975, A-1 contacted / instructed A-2 to reserve tickets in unreal names, and if so, at what time and at which place. The prosecution did not produce any evidence to ascertain A-1‟s movements after his arrival in Delhi. It is not the prosecution case that A-1 had stayed with A-2 at his residence. A-2 has offered plausible / reasonable explanation that A-1‟s „parokar‟ who used to handle his cases had requested him to get the tickets reserved for A-1. The reason to reserve tickets in the name of fake individuals was to conceal A-1‟s identity and consequently his apprehension by police. Admitted position is that the Government had already banned the „Organisation‟. Since A-1 was avoiding police, reservation of tickets in fictitious names cannot be considered an unusual circumstance.

146. The crucial aspect is that only „one‟ ticket was reserved in the name of „Pankaj Kumar‟ on March 15, 1975 for A-1‟s travel to Hawrah on March 25, 1975. Another ticket for A-3 was reserved on March 21, Crl.A.Nos.443/1976 & 436/1976 Page 162 of 201 1975. As per prosecution, the purpose of reservation of the tickets was to provide an escape route to A-1 and A-3 who were instrumental in throwing the hand-grenades on CJI pursuant to the conspiracy hatched by them. The charges were of hatching criminal conspiracy by all the appellants and Vikram who subsequently turned approver. None of them was a suspect on March 20, 1975 and even before the date, investigation was taken over by CBI. Pursuant to the said conspiracy, the hand- grenades were thrown by A-1 and A-3 in the car. Vikram who had accompanied A-3 from Patna on March 19, 1975 had no intention to stay in Delhi after execution of the plan and he went to Patna by Upper India Express from Ghaziabad same evening. Had A-2 been aware of the conspiracy as alleged, he must have booked tickes for Vikram and A-3 also along with A-1 on March 15, 1975 itself. It is unclear as to why no reservation of ticket whatsoever was done for escape of Vikram who was equally responsible to execute the planned conspiracy. A-1 and A-3 were not expected to leave Vikram unprotected in Delhi to expose them on his arrest. The prosecution has not explained as to why A-2 who allegedly hatched conspiracy to attack and murder CJI did not get tickets reserved for escape of Vikram. A-2 was not aware that subsequently Vikram would turn approver.

Crl.A.Nos.443/1976 & 436/1976 Page 163 of 201

147. There is no evidence if A-1, A-3 and Vikram were ever seen in close association with A-2 any time. Admitted position is that A-2 though lived in Delhi never assisted co-convicts in procuring any hide- outs during their visits to Delhi; he was never asked to procure any arms or ammunitions to accomplish the mission; he never made available any weapon to the co-convicts. It is also admitted position that A-2 did not provide any logistics to the assailants on the day of occurrence. The prosecution did not ascertain A-2‟s presence on March 20, 1975 when the conspiracy was executed i.e. whether he was in Supreme Court performing his duties as a lawyer or was somewhere else. There is no evidence if A-2 was in touch with co-convicts on the day of incident or was conveyed the information in any manner about the attempt made on the life of CJI. Admittedly, none of the culprit went to A-2 for shelter. Post-event conduct of A-2 does not show if he attempted to abscond from Delhi. A-2 was not a suspect before A-1‟s arrest. When CBI raided A-2‟s residence in July, 1975 he was available in the house with his family. Nothing incriminating was recovered to ascertain his involvement or participation in the crime. A-2 had no contact or meetings with A-1 and A-3 any time after the incident.

Crl.A.Nos.443/1976 & 436/1976 Page 164 of 201

148. Mere reservation of tickets in the fictitious names by A-2 cannot be taken as conclusive proof of his prior knowledge of the conspiracy or deliberate participation in it. A-2 never participated or attended any meeting with co-conspirators in or outside Delhi. Vikram did not attribute any role to A-2 which in any way furthered the alleged conspiracy.

(c) Circumstance No.3 :

149. Falsity of defence under Section 313 Cr.P.C. was taken another incriminating circumstance to establish A-2‟s involvement in the conspiracy. The Trial Court concluded that A-2 denied himself to be the follower of the „Organisation‟; he admitted his visits to the office of the „Organisation‟ at D-41, South Extension Part-I, New Delhi, but denied his acquaintance with A-1 though he represented him as a lawyer in self- immolation case. In para 112 of the judgment, the Trial Court observed that the prosecution produced convincing evidence that A-2 was an Anand Margi at the relevant time and was frequent visitor to D-41, South Extension Part-I, New Delhi, where A-1 and Vikram used to reside and work for the „Organisation‟ for Anand Marg Publication. In para (120), it observed that past association of A-2 with Vikram, A-1 and A-3 interse at that place and else where, and its denial by A-2 was one of the Crl.A.Nos.443/1976 & 436/1976 Page 165 of 201 circumstances in the evidence relied upon by the prosecution to prove the charge of criminal conspiracy.

150. A-2 has given reasonable explanation for denial to be Anand Margi as it was a banned „Organisation‟ at that time and he feared arrest during Emergency era when MISA / DIR provisions were in vogue. Even an admission to be the member of the „Organisation‟ per se would not have strengthened the prosecution case as the „Organisation‟ itself was not a suspect. It is true that there is ample evidence on record to prove that A- 2 knew A-1 and admittedly, represented him as a lawyer in self- immolation case. A-2 had no reasons to deny his acquaintance with A-1. However, mere denial is not enough in the absence of any other incriminating material showing his knowledge or complicity in the crime.

151. The object of Section 313 Cr.P.C. is to establish a direct dialogue between the accused and the Court. The accused has a duty to furnish an explanation in his statement regarding any incriminating material that has been produced against him. In a recent case „Phula Singh Vs. State of Himachal Pradesh‟, 2014 (4) SCC 9, the Supreme Court observed that „if the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his Crl.A.Nos.443/1976 & 436/1976 Page 166 of 201 statement Under Section 313 Code of Criminal Procedure is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law.‟

152. Regarding denial of facts, the Trial Court itself took a reasonable view in para No. 257 of the judgment and observed : “The law is well established that in a case based on circumstantial evidence, total denial by the accused is only a circumstance to be taken into consideration as an additional link in the chain of circumstantial

evidence, if such evidence by itself, apart from its denial by the accused, is such as to rule out a

reasonable likelihood of the innocence of the accused.”

153. In „Tanviben Pankaj Kumar Divetia vs. State of Gujarat‟, (1997) 7 SCC 156, the Supreme Court held :

“….The court has drawn adverse inference against the accused for making false statement as recorded under Section 313 of the CrPC. In view of our findings, it cannot be held that the accused made false statements. Even if it is assumed that the accused had made false statements when examined under Section 313 of the

CrPC, the law is well settled that the falsity of the Defense cannot take the place of proof of facts which the prosecution has to establish in order to succeed….” Crl.A.Nos.443/1976 & 436/1976 Page 167 of 201

154. In „Sharad Birdhichand Sarda vs. State of Maharastra‟, 1984 (4) SCC 116, the Supreme Court held :

“….It is well settled that the prosecution, must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence…..

It will be seen that this Court while taking into

account the absence of explanation or a false

explanation did hold that it will amount to be an

additional link to complete the chain but these

observations must be read in the light of what this

Court said earlier, viz., before a false explanation can be used as additional link, the following essential

conditions must be satisfied;

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.

(2) the said circumstance point to the guilt of the

accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.”

155. These denials even if taken as adverse circumstance against A-2 do not establish his involvement in the conspiracy. A-2 admitted his visits on rare occasions to D-41, South Extension Part-I, New Delhi, for participation in its rituals. Failure to admit to be an Anand Margi thus cannot be used an incriminating factor against him. Mere membership of a banned „Organisation‟ cannot incriminate a person unless he is proved to have resorted to the acts of violence or incited people to imminent Crl.A.Nos.443/1976 & 436/1976 Page 168 of 201 violence or does an act in order to create disorder or disturbance of public peace by resort to imminent violence.

156. In „State (NCT of Delhi) vs. Navjot Sandhu‟ (supra), Supreme Court observed that “….seeking false answers given by him in the course of examination under Section 313 were not adequate enough to make up the deficiency in the evidence relating to the conspiracy”. S.A.R.Gilani in the examination under Section 313 took the plea that Shaukat was a mere acquaintance and he had not visited him. When asked questions about the telephonic contacts giving the numbers thereof, Gilani feigned ignorance of the telephone numbers of Shaukat and Afzal by giving evasive answers “I do not remember”. The Supreme Court observed „….still the fact remains that he did give false answers probably in his over-anxiety to wriggle out of the situation. That does not make an otherwise innocuous factor an incriminating circumstance‟. Gilani also came forward with a false version that the remark soon after the incident was made in the context of a domestic quarrel. The Supreme Court observed “….We can only say that his conduct, which is not only evident from this fact, but also the untruthful pleas raised by him about his contacts with Shaukat and Afzal, give rise to serious suspicion at least about his knowledge of the incident and his tacit approval of it. At the Crl.A.Nos.443/1976 & 436/1976 Page 169 of 201 same time, suspicion however strong cannot take the place of legal proof. Though his conduct was not above board, the court cannot condemn him in the absence of sufficient evidence pointing unmistakably to his guilt.” (d) Circumstance No.4 :

157. In para 112, the Trial Court observed that as in the case of A- 1 and A-3, the prosecution produced equally convincing evidence about A-2, that being a staunch Anand Margi at the relevant time, he too looked upon Anandmurti as God-Almighty. The Court concluded that “ït would be reasonable to believe that Anandmurti‟s dentention and the rejection of his bail applications by the Chief Justice of India and other Hon‟ble Judges must have triggered off equally strong feelings in A-2 against the Chief Justice of India.”

158. A-2‟s visits to D-41, South Extension Part-I, New Delhi and his representing some Anandmargies in various cases as a lawyer cannot be taken to show that he had knowledge or complicity in the crime. The prosecution was unable to prove or establish A-2‟s motive to join the conspiracy. The prosecution witnesses have given statements regarding outburst of A-1 and instigation by him to indulge in armed revolution on various dates. However, there is no evidence if any time, A-2 exhorted anyone to have recourse to violence after dismissal of the bail applications Crl.A.Nos.443/1976 & 436/1976 Page 170 of 201 of his „Guru‟. The prosecution was unable to prove any direct association of A-2 with A-1 in this regard. Gist of the offence is agreement to break the law. The unlawful agreement and not its accomplishment is the essence of crime of conspiracy. Mere knowledge or even discussion of the plan is not per se enough. Those who do not form the requisite intention cannot be roped in as conspirator on the basis of mere knowledge unless they commit acts or omissions from which a guilty „intention‟ can be inferred. The findings recorded by the Trial Court referred above are not based upon any clinching evidence. These are assumptions. There is no evidence that at any stage A-2 was agitated over the rejection of the bail. Observations of Supreme Court in „Kehar Singh & Ors. vs. State (Delhi Admn.)‟, 1988 (3) SCC 609, are relevant to note : “….Similarly as regards the observations made by the High Court that Balbir Singh shared indignation of

Beant Singh against Smt. Gandhi and was in a mood to avenge for the ‘Bluestar Operation’, there is no

evidence to support it. From the testimony of SI Madan Lal Sharma, PW 30 all that we could gather is that

after the ‘Bluestar Operation’ Balbir Singh was in an agitated mood and he used to say that the

responsibility of damaging the Akal Takht lies with

Smt. Gandhi and it would be avenged by them. From

this it cannot be inferred that Balbir Singh wanted to take revenge against the Prime Minister along-with

Beant Singh. This is not what is said by the witness. If expression of anger or protest on the ‘Bluestar

Crl.A.Nos.443/1976 & 436/1976 Page 171 of 201 Operation could be used as a piece of evidence or a

circumstance against accused then all that members of the Sikh community who felt agitated over the ‘Bluestar Operation must be held as members of the

conspiracy.”

(l) Conclusion

159. It is true that direct evidence is rarely available to prove conspiracy. The law on conspiracy has been discussed in detail in „State (NCT of Delhi) vs. Navjot Sandhu‟, 2005 (11) SCC 600. The Supreme Court while relying on „Major E.G. Barsay vs. State of Bombay‟, AIR 1961 SC 1762, held :

“…the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredients of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts”.

160. It further observed :

“90. In Nalini’s case, S.S.M. Quadri, J, pointed out that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is a sine qua non of the criminal conspiracy. Judge L. Hand, in Van Riper v. United States (13 F 2d. 961) said of

conspiracy: “When men enter into an agreement for an unlawful end, they become ad hoc agents for one

another and have made a partnership in crime.

Crl.A.Nos.443/1976 & 436/1976 Page 172 of 201

91. In Yashpal Mittal v. State of Punjab, Goswami, J, speaking for a three-Judge Bench analysed the legal

position relating to criminal conspiracy. At pages 610- 611, the learned Judge observed that “the very

agreement, the concert or league is the ingredients of the offence.” and that “it is not necessary that all the conspirators must know each and every detail of the

conspiracy”. It was then observed that “there must be unity of object or purpose but there may be plurality of means, sometimes even unknown to one another,

amongst the conspirators.

92. Dr. Sri Hari Singh Gour in his well known

‘Commentary on Penal Law of India’, (Vol.2, 11 th Edn. page 1138) summed up the legal position in the

following words:

“In order to constitute a single general conspiracy

there must be a common design. Each conspirator

plays his separate part in one integrated and united effort to achieve the common purpose. Each one is

aware that he has a part to play in a general

conspiracy though he may not know all its secrets or the means by which the common purpose is to be

accomplished. The evil scheme may be promoted by a

few, some may drop out and some may join at a later

stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be general plan to accomplish the common

design by such means as may from time to time be

found expedient.”

93. In State of H.P. v. Krishan Lal Pradhan, it was

reiterated that every one of the conspirators need not take active part in the commission of each and every one of the conspiratorial acts.

Crl.A.Nos.443/1976 & 436/1976 Page 173 of 201

94. In the case of State v. Nalini, S.S.M. Quadri, J, after a survey of case law made the following pertinent observations: (at paragraph 662)

“In reaching the stage of meeting of minds, two or

more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or

all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be

roped in as collaborators on the basis of mere

knowledge unless they commit acts or omissions from

which a guilty common intention can be inferred. It is not necessary that all the conspirators should

participate from the inception to the end of the

conspiracy; some may join the conspiracy after the

time when such intention was first entertained by any one of them and some others may quit from the

conspiracy. All of them cannot but be treated as

conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt

illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively

participated in the commission of those offences.

XXX XXX XXX

96. There is one particular observation made by

Jagannadha Shetty in Kehar Singh’s (supra) case

which needs to be explained. The learned Judge

observed:

“It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of

agreement. The express agreement, however, need not

Crl.A.Nos.443/1976 & 436/1976 Page 174 of 201 be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be

sufficient”.

The expression ‘physical manifestation’ seems to be the phraseology used in the Article referred to by the

learned Judge. However, the said expression shall not be equated to ‘overt act’ which is a different concept. As rightly stated by the learned senior counsel, Mr. Gopal Subramanium, the phrase has reference to the

manifestation of the agreement itself, such as by way of meetings and communications.

97. Mostly, the conspiracies are proved by the

circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the

conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. (Per

Wadhwa, J. in Nalini’s case (supra) at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must

be clearly established by reliable evidence and “the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other

hypothesis against the guilt is possible.” G.N. Ray, J. in Tanibeert Pankaj Kumar, observed that this Court

should not allow the suspicion to take the place of legal proof.

98. As pointed out by Fazal Ali, J, in V.C. Shukla v. State (Delhi Admn.), ” in most cases it will be difficult to get direct evidence of the agreement, but a

conspiracy can be inferred even from circumstances

giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit

an offence.” In this context, the observations in the Crl.A.Nos.443/1976 & 436/1976 Page 175 of 201 case Noor Mohammad Yusuf Momin v. State of

Maharashtra are worth nothing:

“…in most cases proof of conspiracy is largely

inferential though the inference must be founded on

solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors,

constitute relevant material.”

99. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal

conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the

complicity of the accused. (vide Esher Singh v. State of A.P.)

XXX XXX XXX

101. One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable

doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be

conscious and clear enough to infer their concurrence as to the common design and its execution. K.J. Shetty, J, pointed out in Kehar Singh’s case that “the

innocuous, innocent or inadvertent events and

incidents should not enter the judicial verdict.”

XXX XXX XXX

113. “….If there is proof to the effect that the accused played a role, attended to certain things or took steps consistent with the common design underlying the

Crl.A.Nos.443/1976 & 436/1976 Page 176 of 201 conspiracy, that will go a long way in establishing the complicity of the accused, though it is not a legal

requirement that the conspirator should do any

particular act beyond the agreement to commit the

offence.”

161. In view of the law enunciated above Supreme Court did not find Shaukat to a party to the „conspiracy‟ along with his cousin Afzal. The prosecution had relied upon the following important circumstances against him.

(1) Taking a room on rent along with Afzal at Christian Colony hostel into which Afzal inducted the terrorist Mohammed about a month prior to the incident.

Shaukat used to go there.

(2) The motorcycle of Shaukat being found at Indira Vihar, one of the hideouts of the terrorists which was hired by Afzal in the 1st week of December, 2001.

(3) His visits to Gandhi Vihar house which was also taken on rent by Afzal in December, 2001 to accommodate

the terrorists and meeting Afzal there quite often, as spoken to by P.W. 34.

(4) Accompanying Afzal and Mohammed for the purchase of motorcycle by Afzal.

(5) His frequent calls to Afzal especially on the date of attack.

(6) His leaving Delhi to Srinagar on the date of attack itself in his truck with Afzal who carried a mobile

phone, laptop used by terrorists and cash of Rs. 10

lakhs.

(7) The fear and anxiety with which he and his wife

conversed over phone on the night of following day.

Crl.A.Nos.443/1976 & 436/1976 Page 177 of 201

162. The Supreme Court observed :

” These circumstances, without anything more, do not lead to the conclusion that Shaukat was also a party to the conspiracy in association with the deceased

terrorists. The important missing link is that there was no occasion on which Shaukat ever contacted any of

the deceased terrorists on phone. Shaukat was not

shown to be moving with the deceased terrorists at any time excepting that he used to go with Afzal to the Boys hostel where Mohammed was staying initially and he

once accompanied Afzal and Mohammed to the mobile

phone shop. He did not accompany Afzal at the time of purchases of chemicals, etc. used for preparation of explosives and motor car used by terrorists to go to Parliament House. In the absence of any evidence as

regards the identity of satellite phone numbers, the Court cannot presume that the calls were received

from a militant leader who is said to be the kingpin behind the operations. The frequent calls and meetings between Shaukat and Afzal should be viewed in the

context of the fact that they were cousins. Though his inclination and willingness to lend a helping hand to Afzal even to the extent of facilitating him to flee away from Delhi to a safer place soon after the incident is evident from his various acts and conduct, they are not sufficient to establish his complicity in the conspiracy as such…..”

163. For the same reasons, S.A.R.Gilani‟s acquittal of the charges by this Court was affirmed by the Supreme Court despite the fact that Gilani was on intimate terms with Shaukat and Afzal and was conversing with them through his mobile no. 9810081228 frequently between the first week of November and the date of crucial incident. The prosecution had Crl.A.Nos.443/1976 & 436/1976 Page 178 of 201 alleged that Gilani was seen with the deceased terrorists in the house of Shaukat two or three days prior to 13th December. The Supreme Court observed “that there is no evidence to the effect that Gilani was maintaining personal or telephonic contacts with any of the deceased terrorists. There is no evidence of any participative acts in connection with or in pursuance of the conspiracy. He was not connected with the procurement of hideouts, chemicals and other incriminating articles used by the terrorists. Speaking from the point of view of probabilities and the natural course of conduct there is apparent reason why Gilani would have been asked to join the conspiracy. It is not the case of prosecution that he tendered any advice or gave important tips / information relevant to the proposed attack on Parliament. None of the circumstances would lead to an inference beyond reasonable doubt of Gilani‟s involvement in the conspiracy.”

164. In „State vs. Nalini & ors.‟, 1999 (5) SCC 253, A-4 was held guilty under Section 120B IPC by the Trial Court on the strength of following circumstances :

“(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.

Crl.A.Nos.443/1976 & 436/1976 Page 179 of 201 (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 Rs. 10,000/- to A-4.

(7) In Ext. P-439, Sivarasan has mentioned payment of Rs. 5,000/- to A-4 (Shankar).”

The Supreme Court observed :

“…..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 LITE had several activities, even apart from murdering Rajiv Gandhi. So merely

because a person is shown to be an active worker of

LITE that by itself would not catapult him into the orbit of the conspiracy mesh in order to murder Rajiv

Crl.A.Nos.443/1976 & 436/1976 Page 180 of 201 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.

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 afore-mentioned circumstances,

assuming that they being all proved by the prosecution in this case, is that A-4 (Shankar) was also an ardent LITE 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.”

165. About A-24 (N.Rajasuriya @ Rangan) who actively helped the accused to escape, the Supreme Court held :

“324. 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.”

166. The circumstances relied on by the prosecution are not sufficient at all to prove A-2‟s involvement in the conspiracy. No inference can be drawn with a reasonable degree of certainty that he was Crl.A.Nos.443/1976 & 436/1976 Page 181 of 201 having knowledge of the plan / conspiracy. The scanty evidence does not justify his conviction. The evidence on record does not bring out a high level of consciousness qua A-2 in the conspiracy.

(H) Involvement of A-1 & A-3

167. The ocular and circumstantial evidence supported by documentary proof elaborately discussed above coupled with PW- Vikram‟s statement as approver; and extra judicial confessions, etc. prove beyond reasonable doubt participation and involvement of A-1 and A-3 in the criminal acts committed by them which were the result of a carefully planned and meticulously executed conspiracy. Statement of PW-Vikram, approver, is of vital importance. Statement made by him is detailed, and descriptive. He is clear, categorical and has given sequence of events in great detail with precision. He has satisfied the double test i.e. his evidence shows that he is a reliable witness and it has received sufficient independent corroboration as discussed above under various heads which need no repetition here.

(i) Testimony of Police / CBI officials

168. No ground exists to believe that they were proceeded against by CBI mala-fide or in any bad faith. It was vehemently urged by the appellants‟ counsel that the investigation was unfair, biased and tainted. Crl.A.Nos.443/1976 & 436/1976 Page 182 of 201 Serious allegations were leveled against CBI officials including DSP B.R.Puri to be instrumental in the false implication of the appellants. He urged that from the day CBI started investigation i.e. 30.06.1975, it knew that A-1, A-3 and Vikram were involved in the attack of CJI. This fact was entertained by various CBI investigators especially, PW-71 (B.R.Puri), DSP, CBI, who was already involved in the investigation of various cases relating to the „Organisation‟ including Anand Murti‟s case and L.N.Misra case. DSP B.R.Puri was absolutely prejudiced against workers of the „Organisation‟ and therefore, influenced the Chief Investigating Officer to involve them. Refuting the arguments, CBI counsel urged that the investigation was carried out honestly, fairly and transparently. All the relevant facts for the just and fair decision of the case were brought before the Trial Court. Fairness of the prosecution is apparent from the circumstance that despite arrest of Gopalji and Mahender Pratap Singh, they were not prosecuted for deficiency of sufficient material. Mr.Abrol, who was arrested by Crime Branch of Delhi Police was discharged when his role was not found in this case.

169. The witnesses from the Police Department cannot per-se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and un-impeachability of their testimonies. In „Tahir Vs. State Crl.A.Nos.443/1976 & 436/1976 Page 183 of 201 (Delhi)‟, AIR 1996 SC 3079, Supreme Court observed „where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the credit worthiness of the prosecution case.’

170. In the instant case, it is significant to note that in the searching cross-examination, none of the official witnesses has given conflicting or evasive statements or shifted his stand. When their testimonies have not been varied from any spectrum, there are no valid reasons to discard it. No infirmity attaches to the testimonies of police officials merely because they belong to the force. In this case, CBI came into picture at a subsequent stage after the commission of crime on March 20, 1975. CBI was able to reach to the witnesses on the basis of documentary proof with them. These witnesses including PWs-Charan Singh, Tilak Raj Bhatia, Shiv Raj Singh, etc. independent witnesses from public having no personal vendetta with the appellants were associated in the investigation and they had no ostensible reasons to favour CBI. CBI succeeded to unearth the deep-rooted conspiracy and collected vital information which was hitherto unknown to it. None of the CBI officials Crl.A.Nos.443/1976 & 436/1976 Page 184 of 201 had any personal animosity with any of the appellants to falsely implicate them. Number of witnesses who deposed against the appellants were not expected to implicate them at CBI‟s instance. Those witnesses were committed followers of the „Organisation‟ and the appellants were in close association with them. The prosecution case does not rest on the sole testimonies of police officials but is based upon various other incriminating circumstances including the statement of PW-Vikram who turned approver and deposed against the appellants.

171. At no stage during investigation or trial or soon thereafter, any complaint was lodged against any of the CBI officials for their partisan investigation. No request was ever made for change of any specific CBI Investigating Officer. There are no sound reasons to disbelieve the statements of the police / CBI officials. PW-71 (B.R.Puri) conducted investigation on few dates and his credibility remained unchallenged in the cross-examination.

(ii) Criminal conspiracy

172. There is clear proof that A-1 and A-3 specifically intended to accomplish the aims of conspiracy by resort to violence. The law relating to criminal conspiracy has been discussed extensively in the impugned judgment and needs no further elaboration. I am in agreement with the Crl.A.Nos.443/1976 & 436/1976 Page 185 of 201 learned Counsel for the appellants that under Section 120 A IPC, offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. Unlawful agreement is the gist or essence of the offence of conspiracy. The offence takes place with the meeting of minds even if nothing further is done. It is not in dispute that once the object of conspiracy is achieved, any subsequent act which though unlawful, would not make the accused a part of the conspiracy. Criminal conspiracy is generally hatched in private or in secrecy. It is rarely possible to establish it by direct evidence. The offence can be proved by adducing circumstantial evidence or by necessary implication. Both, the existence of the conspiracy and its object have to be inferred from the circumstances and the conduct of the accused. Criminal conspiracy is a partnership in crime and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. Mere knowledge or discussion or generation of a crime in the mind of the accused is not sufficient. Learned CBI counsel agrees that Section 10 of the Evidence Act has been restricted to the continuance of the conspiracy. Any Crl.A.Nos.443/1976 & 436/1976 Page 186 of 201 statement made by a conspirator after the conspiracy is over or after the conspirator is arrested by the police, shall be outside the purview of Section 10 of the Evidence Act.

173. In the instant case, the prosecution has adduced overwhelming evidence coupled with statement of PW-Vikram, who turned approver to prove various incriminating circumstances. The prosecution has also relied upon extra judicial confessions. From the evidence enumerated above, inference can safely be drawn that A-1 developed a feeling that CJI was responsible for the continuous detention of Baba Anandmurti due to rejection of bail applications repeatedly and declining to transfer the case. He himself was absconding in the self- immolation case; had given up his usual dress to conceal identity and roamed in a disguised appearance. Even his close associates PW-Vikram and PW-Tilak Raj Bhatia were unable to recognize him at first instance. A-1 was the kingpin / mastermind of the conspiracy. He developed unfounded feeling that Baba could not be released from jail having recourse to legal means and decided to resort to violent means. For that end in mind, he instigated / exhorted the followers of the „Organisation‟ to procure arms. In various meetings, in which PW-Vikram and A-3 participated, A-1‟s refrain throughout was to go for armed revolution. He Crl.A.Nos.443/1976 & 436/1976 Page 187 of 201 associated PW-Vikram, the stanch follower of the „Organisation‟, who from his heart wanted release of Baba to whom he considered incarnation of God by all means. He put himself at A-1‟s disposal and agreed to do what he desired; even to sacrifice his life. A-3 was also joined in the conspiracy. A-3 and PW- Vikram travelled from Patna to Delhi, where A- 1 had already arrived to execute the plan. A-3 carried hand-grenades in a bag. Evidence has come on record that on March 20, 1975, in the morning, A-1 shared the minute details of the conspiracy and assigned specific role to PW-Vikram and A-3 in its execution. They all surveyed the area in the morning. On March 20, 1975, at about 04.30 P.M., A-1, A- 3 and PW-Vikram played active role to achieve the object of conspiracy. An unsuccessful attempt was made by them to hurl hand-grenades in the car in which CJI was travelling. The subsequent acts referred above further lead to the inference that A-1, A-3 and PW-Vikram were part of the conspiracy. A-1 and A-3 travelled under fictitious names to leave Delhi showing unnatural and unreasonable conduct relevant under Section 8 of the Evidence Act.

174. A-1 had taken assistance of PW-Vikram and A-3 to get release Baba by illegal means and had exhorted them to procure arms in various meetings much prior to its execution on March 20, 1975. It is not Crl.A.Nos.443/1976 & 436/1976 Page 188 of 201 necessary to precisely mention the starting point of conspiracy in the FIR / Charge-sheet as it is difficult to spell out with exactutude the details relating to the starting point of conspiracy. Nontheless A-1 divulged about the exact conspiracy and the minute plan how it was to be executed in the morning of March 20, 1975 to PW-Vikram and A-3. Under Section 120 A, it is not necessary that the agreement to do an illegal act must be entered into by all the conspirators at the same time. It is not required that each member of the conspiracy should be a member from the inception of the scheme. The scheme may be conceived by one person and others may join or agree to be part of it subsequently. It is not required that every member of the conspiracy should know the identity of all or other members of the conspiracy. It is also not necessary for the accused to know the detailed stages of conspiracy; mere knowledge of main object or purpose of conspiracy would suffice. In „Vikram Singh vs. State of Punjab‟, AIR 2010 SC 1007, Supreme Court dealt with a case where the accused had purchased Fortwin injection and Chloroform. It was held that since the purchase of these materials was an initial step towards the commission of the offence, the presence of accused Sonia though not referred by the witnesses at the time of actual kidnapping would not imply that she was not a privi to the conspiracy. In the case in hand, A-3 and Crl.A.Nos.443/1976 & 436/1976 Page 189 of 201 PW-Vikram were aware about the conspiracy hatched by A-1 on March 20, 1975, in the morning. Without objecting to it, they voluntarily participated in it and played their respective role in its execution. As discussed above, the prosecution was not able to establish if A-2 had knowledge of the said conspiracy or had participated in it in any manner. PW-Vikram and other prosecution witnesses examined by the prosecution did not attribute any overt act to A-2 in the conspiracy. (iii) Statement under Section 313 Cr.P.C.

175. A-1 and A-3 did not offer plausible explanation to the incriminating circumstances appearing against them and did not produce cogent, reliable and credible defence evidence to falsify / rebut the positive testimonies of prosecution witnesses. A-1 and A-3 took up the stand of complete denial of their involvement in the crime and offered no satisfactory explanation to the incriminating circumstance proved against them in their 313 statements. There was no occasion for them to deny every material piece of evidence as well as not to give any explanation when they were specifically asked for. Despite ample evidence on record they denied their presence in Delhi on the fateful day or soon before that. They even tried to implicate prosecution witnesses Tilak Raj Bhatia, Shiv Raj Singh, Raj Singh as accomplices / conspirators. They did not present Crl.A.Nos.443/1976 & 436/1976 Page 190 of 201 any specific defence to falsify the positive testimonies of the prosecution witnesses emerging against them. They gave conflicting suggestions. A-1 in his 313 statement admitted himself to be Editor of the „PROUT‟ while denying his stay at D-41, South Ext. Part-I, New Delhi. He further claimed that he did not visit Delhi after he left in March, 1973. He, however, was conspicuously evasive as to where he used to stay in Delhi and at what particular place he lived / stayed after March, 1973. He did not reveal as to where he was on March 20, 1975. He even denied his acquaintance with A-2 though admittedly he met him in jail on September 10, 1975 and represented him in a criminal case. He alleged that after his arrest on June 17, 1975 at Patna, he was tortured in several ways. But it is unexplained as to why he did not lodge any complaint before the Judicial Magistrate before whom he was produced for remand. No physical injury was noticed by the Judicial Magistrate on his body. A-1 did not claim that PW-Tilak Raj Bhatia, PW-Shiv Raj Singh and PW-Raj Singh were their accomplices and had deposed against them at CBI‟s instance or they were defectors.

176. Similar are the evasive replies of A-3. He also came up with the plea that after he left Delhi at the end of 1970, he never returned there. He too did not divulge where he lived thereafter and where was his Crl.A.Nos.443/1976 & 436/1976 Page 191 of 201 residence or place of job on March 20, 1975. He admitted his acquaintance and familiarity with PW-Tilak Raj Bhatia and PW-Vikram; his arrest along with PW-Vikram on July 24, 1975 at Bhagalpur. He did not reveal how and for what purpose he was with Vikram. He also never lodged any complaint to Judicial Magistrate for alleged physical and mental torture during custody. None of them examined any witness in defence to prove „alibi‟.

(iv) Acquittal of Ram Nagina Prasad

177. Learned counsel for the appellants urged that similar charge under Section 4 (b) Explosive Substances Act 1908 was framed against Ram Nagina Prasad who has since been acquitted. By no stretch of imagination, the said charge can be deemed to have been proved against A-3 since his presence at Icchapur (West Bengal) has not been proved at all. It would be risky to rely on the same set of evidence to base conviction of the appellants. Case of the appellants cannot be decided on any other scale and they should have been treated at par for giving benefit of doubt.

178. Acquittal of co-accused Ram Nagina Prasad would not automatically lead to the acquittal of the appellants. Since the evidence against Ram Nagina Prasad was lacking he was acquitted of the charges. Crl.A.Nos.443/1976 & 436/1976 Page 192 of 201 So far A-1 and A-3 are concerned, they stand on different footings. In their case, the prosecution has produced clinching evidence to establish their guilt whereby in the execution of the conspiracy, they threw hand- grenades Ex.A-3 and Ex.A-4 along with their associate PW-Vikram on March 20, 1975 in an unsuccessful attempt on the lives of occupants of the car. It was specifically mentioned / disclosed in the charges framed against them that they threw „hand-grenades‟. It is reasonable to infer that they were in possession of the explosives without licence illegally soon before using in the attack in Delhi. Apparently, omission to set out the said charge distinctly is inconsequential as no prejudice is shown to have caused to the appellants. The appellants were aware of the substance of the charge from the very inception. Neither the appellants were misled nor any prejudice, which has occasioned in failure of justice, has been caused to them. Moreover, no such plea was taken before the Trial Court any time. They never objected to the charges framed against them. At no stage during trial, they complained of any prejudice. Error in the charges about possession of Explosives only at Ichhapur and not in Delhi also is not fatal. They can be held liable for being in possession of the explosive substance. The charge in question contained two heads, one relating to Crl.A.Nos.443/1976 & 436/1976 Page 193 of 201 possession at Icchapur and other use of explosives on March 20, 1975 at Delhi.

179. Merely because some of the accused persons have been acquitted, does not lead as a necessary corollary that those who have been convicted must also be acquitted. If after sieving the untruth or unacceptable portion of the evidence residue is sufficient to prove the guilt of the accused, there is no legal impediment in convicting a person on the evidence which has been primarily disbelieved vis a vis others. It is always open to the Court to differentiate the accused who had been acquitted from those who were convicted. Acquittal of some of the accused does not necessarily result in acquittal of the rest. Hence, acquittal of Ram Nagina Prasad for the reasons in the impugned judgment is of no benefit to the appellants against whom the prosecution has produced credible evidence to the hilt.

(m) Conclusion

180. In the light of above discussion, I am of the view that the prosecution has successfully proved beyond reasonable doubt all the facts and circumstances by convincing evidence which directly point towards the involvement of A-1 and A-3 in the conspiracy to make an attempt on the life of CJI. The conclusion of guilt of A-1 and A-3 is fully established Crl.A.Nos.443/1976 & 436/1976 Page 194 of 201 and all the facts and circumstances so established are consistent with the hypothesis of their guilt. The proved facts and circumstances completely form a chain which go only to prove that A-1 and A-3 had committed the crime and there is no other hypothesis except indicating that the A-1 and A-3 conspired to commit the murder of CJI and in pursuance to the same, they attempted on his life on March 20, 1975 by throwing hand-grenades in his car. From the evidence, it is proved beyond doubt that only one view is emerging and it is that the A-1 and A-3 were guilty of committing the offence. Minor discrepancies, exaggerations and improvements highlighted by the appellants‟ counsel do not shake the basic structure of the prosecution case in the presence of overwhelming evidence against them. These so called lapses cannot be allowed to defeat the course of justice. No major lacuna in the investigation which was not restricted to Delhi was noticed. Attempt has been made to suggest that all witnesses including police officials, CBI personnel, experts and followers of „Organisation‟ had conspired against the appellants and they have been falsely implicated. No reason exists to draw such a conclusion. It is unbelievable that everyone would need without any ulterior motive to implicate the appellants in a false case.

Crl.A.Nos.443/1976 & 436/1976 Page 195 of 201 (I) Sentence order

181. Coming to the sentence order, Section 31 Cr.P.C. vests discretion in the Court to direct that the punishment shall run concurrently when a person is convicted at one trial of two or more offences. The Court may sentence the accused for such offences to the several punishments prescribed therefor, which such Court is competent to inflict. Such punishments would consist of imprisonment to commence the one after the expiration of the other in such order as the Court may direct subject to the limitation contained in Section 71 IPC. In terms of Section 31 (2) Cr.P.C. wherever the Court awards consecutive sentences, it shall not be necessary for the Court to send the offender for trial before a higher Court on the ground that the aggregate punishment for the several offences is in excess of the punishment which it is competent to inflict on conviction of a single offence. This, however, is further subject to the proviso to Section 31 (2) of the Code. The aggregate of the various sentences imposed in one trial is subject to two kinds of maximum limits :

(i) It should not exceed fourteen years.

(ii) It cannot exceed twice the maximum awardable by the sentencing Court for a single offence.

Crl.A.Nos.443/1976 & 436/1976 Page 196 of 201

182. In „Chatar Singh vs. State of M.P.‟, AIR 2007 SC 319, rigorous imprisonment imposed on the accused for twenty years in aggregate was set aside. The Supreme Court held that „provisos appended to said Section (Section 31) clearly mandate that the accused could not have been sentenced to imprisonment for a period longer than fourteen years.‟

183. In a recent case „Duryodhan Rout vs. State of Orissa‟ in Crl.A.Nos.2277-2278 of 2009 decided on 01.07.2014, the Supreme Court relied upon „Chatar Singh vs. State of M.P.‟ (supra) and held that Section 31 of Code of Criminal Procedure relates to sentence in cases of conviction of several offences at one trial. Proviso to sub-Section (2) to Section 31 lays down the embargo whether the aggregate punishment of prisoner is for a period of longer than 14 years.

184. This question also came up for consideration in „Zulfiwar Ali vs. State of U.P.‟, All LJp.1181 para 25, in which it was observed : “The opening words „In the case of consecutive

sentences‟ in Sub-section (2) of Section 31 make it

clear that this Sub-section refers to a case in which „consecutive sentences‟ are ordered. After providing that in such a case if an aggregate of punishment for several offences is found to be in excess of punishment which the court is competent to inflict on a conviction of single offence, it shall not be necessary for the court to send the offender for trial before a higher court. Crl.A.Nos.443/1976 & 436/1976 Page 197 of 201 After making such a provision, proviso (a) is added to this Sub-section to limit the aggregate of sentences which such a court pass while making the sentences

consecutive. That is this proviso has provided that in no case the aggregate of consecutive sentences passed against an accused shall exceed 14 years. In the instant case the aggregate of the two sentences passed against the Appellant being 28 years clearly infringes the

above proviso. It is accordingly not liable to be

sustained. “

185. This Court in „Vikram Kumar vs. State of NCT of Delhi‟, Crl.A.No. 36/2011 decided on 06.05.2013 held :

“It is thus evident that the learned Trial Court was competent to direct the sentences to run consecutively but for the fact that the sentence to imprisonment

cannot be longer than 14 years. The Appellant has

been awarded sentence for rigorous imprisonment for

14 years for offence under Sections 376(2)(f) IPC.

Thus if the sentences are to run consecutively the

sentence would exceed 14 years. In view of the legal position, the substantive sentences awarded to the

Appellant are directed to run concurrently. In the facts of the case I am not inclined to reduce the fine amounts and the sentences required to undergo in default

thereto. The impugned judgment of conviction and

order on sentence passed by the learned Trial court

are upheld with a modification that the substantive

sentences shall run concurrently. The appeal is

accordingly disposed of.”

186. In the instant case, sentence order reveals that sentences enumerated at Nos. (ii) to (vi) were to run concurrently but only after A-1 Crl.A.Nos.443/1976 & 436/1976 Page 198 of 201 and A-3 had served out the sentence mentioned at No.(i). Obviously, the aggregate sentence awarded comes to 17 years which is not permissible. Accordingly, sentence awarded to A-1 and A-3 under Section 120B (1) read with Section 115 IPC enumerated at No.(i) is reduced to RI for 4 years.

187. Considering the gravity of the offence whereby sinister attempt was made on the life of the CJI in a well-planned conspiracy with the use of highly sophisticated explosives (hand-grenades), the convicts (A-1 and A-3) deserve no leniency. Fortunately, the hand-grenades did not explode and a huge tragedy could be averted. The dangerous mission on accomplishment would have resulted in heavy casualties. Justice demands that Courts should impose punishments befitting the crime. Measure of punishment must depend upon the atrocity of the crime. There is no space for any leniency and prayer for that is misplaced. Despite claiming to be followers of the „Organisation‟ which did not preach violence, the convicts indulged in the most foul and senseless murderous attack / assault on CJI.

In „Kehar Singh vs. State (Delhi Administration)‟ (supra), the Supreme Court observed :

Crl.A.Nos.443/1976 & 436/1976 Page 199 of 201 “The crime charged is not simply the murdering of a

human being, but it is the crime of assassination of the duly elected Prime Minister of the country. The motive for the crime was not personal, but the consequences of the action taken by the government in the exercise of constitutional powers and duties. In our democratic

republic, if the government becomes subversive of the purpose of its creation, the people will have the right and duty to change it by their irresistible power of ballot and have the government of their own choice

wisely administered. But no person who is duly

constituted shall be eliminated by privy conspiracies.” Long pendency of a matter by itself would not justify lesser sentence or acquittal under Section 482 Cr.P.C. as urged. (J) ORDER

188. In the light of above findings, benefit of doubt is given to A-

2. A-2‟s appeal is accepted and he is acquitted of the charge. Conviction and sentence under Section 120 B IPC is set aside.

189. While maintaining and confirming the findings on conviction qua A-1 and A-3 under Section 120B (1) ; Section 307 IPC and Section 4 (b), Explosive Substances Act, 1908 as recorded by the Trial Court, sentence order is modified to the extent that sentence under Section 120B (1) read with Section 115 IPC will be four years instead of seven year. Other terms and conditions of the sentence order dated 01.11.1976 are left undisturbed. Sentences enumerated at Nos. (ii) to (vi) shall run Crl.A.Nos.443/1976 & 436/1976 Page 200 of 201 concurrently after A-1 and A-3 serve out the sentence enumerated at Sl.No.(i) in the impugned judgment.

The appeals filed by A-1 and A-3 are disposed of in the above terms. Pending application (if any) also stands disposed of. Trial Court record be sent back forthwith with the copy of the order. A-1 and A-3 shall surrender before the Trial Court on 21st August, 2014 to undergo the remaining period of substantive sentence. (S.P.GARG)

JUDGE

AUGUST 14, 2014 / tr

Crl.A.Nos.443/1976 & 436/1976 Page 201 of 201

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