# STATE OF MAHARASHTRA ETC. ETC. " v. SUKHDEO SINGH AND ANR. ETC ETC

- **Citation:** [1992] 3 S.C.R. 480
- **Court:** Supreme Court of India
- **Decided:** 1992-07-15
- **Case number:** Death Reference . E Case No. 1 of 1989
- **Bench:** Am. Ahj\1Adi, K. Ramaswamy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-etc-etc-v-sukhdeo-singh-and-anr-etc-etc-11482
- **Pages:** 57

## Headnote

Penal Code, 1860-Sections 302, 307 and 3~rosecution for murder
of General Vaidya-Trial under TADA-Conviction and death sentence by
Designated Court-Validity of.
c
Penal Code, 186Q-Sections 120B, 302, 307, 465, 468, 471and212 and
-
Sections 3 and 4 of the Te"orist and Disruptive Activities :Act, 1985 and
Section 10 of the Passport Act-Charges under against the accused-Conviction and death sentence of accused 1 and 5 u/ss. 302, 307, 34, /PC and
acquittal of other accused by Designated Court-Appreciation of evidence by
D Supreme (Jourt-Findings of Designated Court approved.
Evidence Act, 1872-Section 9-Test Identification parad~After long
lapse of time, first time in Court-£vidential value of.
E
Evidence Act, 1872-Sections 3, 73-Appreciation of evidenc~
~-
Evidence regarding identity of author of document-Expert opinionReliability of-Comparing documents by Court-Effect of-Identification of
accuse~vidential value of.
-
Code of Criminal Procedure, 1973-Section 311-Statements recorded
F
undel"-Evidential value of-Plea of guilt tantamount to admission of all facts
constituting offence-Court's duty.
Te"orist and Disruptive Activities Act, 1985-Sections 3(2)(i) or- (ii)
and 3(3) read with sections 120B, 465, 468, 471, 419, 302, 307, 34,
/PC-Charged under-Procedure to be adopted.
G
Code of Criminal Procedure, 1973-Section 235(2)-conviction and
death sentence pronounced on same day-Legality of.
The Prosecution case was that on the orders of the then Prime
Mini!!ter, the then Chief of the Armed Forces, General Vaidya, was as·
H signed the task of flushing out militants who had taken refuge in the
480
-
STATE v. SUKHDEO SINGH
481
Golden Temple. Some militants were killed and a part of the Golden A
Temple was damaged in the Blue Star Operation.
The militants vowed to avenge the deaths of their colleagues and to
punish those who were responsible for the descreation of the Golden
Temple. The then Prime Minister was assassinated on 31.10.1984.
General Vaidya after his retirement o~ 31.1.1986 decided to settle
down with his wife in Pone. As their Bungalow was under construction,
they shared the bungalow occupied by another Major General in Pune.
B
On 26.5.1986, when General Vaidya and his wife shifted to their new C
bungalow, they were provided only the service's of only one armed Head
<::onstable for security duty.
On 10.8.1986, at about 10 a.m., General Vaidya with his wife went for
_ shopping accompanied with the securityman. General Vaidya was driving
the Car with his wife sitting i_!l the front seat to his left and the securityman D
sitting in the near seat just behind her. After shopping, at about 11.30 a.m.,
while they were returning to their residence via Rajendrasinghji Road,
General Vaidya, slowed down to negotiate a turn to the right at the square
in front of his residence, at the intersection of Rajendrasinghji and Ab·
himanyu Roads. At that point of time, a red Ind-Suzuki motor cycle -eame E
parallel to the car on the side of General Vaidya and the person occupying
the pillion seat of the motor cycle fired three shots from close range at the
head of the deceased. Before his wife and securityman co~ld realise what
had happened, General Vaidya slumped on his wife's shoulder. The motor
cyclists drove away and could not be located. As General Vaidya lost
control over the car, it surged towarCis a cyclist. The cycle came under the
car, and the car stopped at a short distance in front of a compound wall.
The cyclist escaped by jumping off the cycle. The injured General Vaidya
was carried to the Command Hospital in a passing by green matador van,
which was fetched by the securityman. In the Hospital General Vaidya was
declared dead.
F
G
The securityman immediately informed the L.I.B. Office about the
incident and at the place of the incident the securityman's formal com·
plaint was recorded by a Police Inspector, and the investigation was
commenced. A Panchnama of the scene of occurrence was drawn up by the
Inspector in the presence of w

## Text

_Characters 0–39,884 of 147,471. This is a partial read: ask again with offset=39884 for what follows._

A
STATE OF MAHARASHTRA ETC. ETC.
"
v.
SUKHDEO SINGH AND ANR. ETC .. ETC.
JULY 15, 1992
B
[AM. AHJ\1ADI AND K. RAMASWAMY, JJ.}
Penal Code, 1860-Sections 302, 307 and 3~rosecution for murder
of General Vaidya-Trial under TADA-Conviction and death sentence by
Designated Court-Validity of.
c
Penal Code, 186Q-Sections 120B, 302, 307, 465, 468, 471and212 and
-
Sections 3 and 4 of the Te"orist and Disruptive Activities :Act, 1985 and
Section 10 of the Passport Act-Charges under against the accused-Conviction and death sentence of accused 1 and 5 u/ss. 302, 307, 34, /PC and
acquittal of other accused by Designated Court-Appreciation of evidence by
D Supreme (Jourt-Findings of Designated Court approved.
Evidence Act, 1872-Section 9-Test Identification parad~After long
lapse of time, first time in Court-£vidential value of.
E
Evidence Act, 1872-Sections 3, 73-Appreciation of evidenc~
~-
Evidence regarding identity of author of document-Expert opinionReliability of-Comparing documents by Court-Effect of-Identification of
accuse~vidential value of.
-
Code of Criminal Procedure, 1973-Section 311-Statements recorded
F
undel"-Evidential value of-Plea of guilt tantamount to admission of all facts
constituting offence-Court's duty.
Te"orist and Disruptive Activities Act, 1985-Sections 3(2)(i) or- (ii)
and 3(3) read with sections 120B, 465, 468, 471, 419, 302, 307, 34,
/PC-Charged under-Procedure to be adopted.
G
Code of Criminal Procedure, 1973-Section 235(2)-conviction and
death sentence pronounced on same day-Legality of.
The Prosecution case was that on the orders of the then Prime
Mini!!ter, the then Chief of the Armed Forces, General Vaidya, was as·
H signed the task of flushing out militants who had taken refuge in the
480
-
STATE v. SUKHDEO SINGH
481
Golden Temple. Some militants were killed and a part of the Golden A
Temple was damaged in the Blue Star Operation.
The militants vowed to avenge the deaths of their colleagues and to
punish those who were responsible for the descreation of the Golden
Temple. The then Prime Minister was assassinated on 31.10.1984.
General Vaidya after his retirement o~ 31.1.1986 decided to settle
down with his wife in Pone. As their Bungalow was under construction,
they shared the bungalow occupied by another Major General in Pune.
B
On 26.5.1986, when General Vaidya and his wife shifted to their new C
bungalow, they were provided only the service's of only one armed Head
<::onstable for security duty.
On 10.8.1986, at about 10 a.m., General Vaidya with his wife went for
_ shopping accompanied with the securityman. General Vaidya was driving
the Car with his wife sitting i_!l the front seat to his left and the securityman D
sitting in the near seat just behind her. After shopping, at about 11.30 a.m.,
while they were returning to their residence via Rajendrasinghji Road,
General Vaidya, slowed down to negotiate a turn to the right at the square
in front of his residence, at the intersection of Rajendrasinghji and Ab·
himanyu Roads. At that point of time, a red Ind-Suzuki motor cycle -eame E
parallel to the car on the side of General Vaidya and the person occupying
the pillion seat of the motor cycle fired three shots from close range at the
head of the deceased. Before his wife and securityman co~ld realise what
had happened, General Vaidya slumped on his wife's shoulder. The motor
cyclists drove away and could not be located. As General Vaidya lost
control over the car, it surged towarCis a cyclist. The cycle came under the
car, and the car stopped at a short distance in front of a compound wall.
The cyclist escaped by jumping off the cycle. The injured General Vaidya
was carried to the Command Hospital in a passing by green matador van,
which was fetched by the securityman. In the Hospital General Vaidya was
declared dead.
F
G
The securityman immediately informed the L.I.B. Office about the
incident and at the place of the incident the securityman's formal com·
plaint was recorded by a Police Inspector, and the investigation was
commenced. A Panchnama of the scene of occurrence was drawn up by the
Inspector in the presence of witnesses and the empty cartridges and other H
482
SUPREME COURT REPORTS
(1992) 3 S.C.R.
A articles were recovered therefrom.
B
c
On 7.9.1986, two persons riding a red Ind-Suzuki motor cycle collied
with a truck. They were thrown oft' the motor cycle and sustained injuries.
A bag containing arms and ammunition was also thrown oft'. They hurriedly collected the spilled articles. When the people, who had collected
there went tO assist them, they behaved in an abrasive manner and one of
them, who.was identified as accused No.1 raising his revolver threatened
to shoot, which raised the crowd's suspicion and the matter was reported
to Police Inspector of Pimpri Police Station. Police swung into action and
caused the arrest of the accused Nos.1 and 2. They were charge-sheeted
under section 307, IPC for that incident. (Later they were convicted ·and
sentenced for that otl'ence.) While they were being taken in a jeep to the
Primpri Police Station, the accused raised slogans of "Khalistan Zindabad" and proudly proclaimed that they were the assailants of the
deceased General Vaidya.
· D
In the course . of investigation it came to light that apart from
E
accused Nos. 1 and 2, other terrorists namely accused Nos. 3 to 5 and the
absconding accused Nos. 6 to 9 were involved in the conspiracy allegedly
hatched for assassinating the deceased General immediately after his
retirement and on depletion of the security cover.
.,
On 14.8.1987, the accused Nos. 1 and 2 and others were charge
shee:ed under sections 1208, 302, 307, 465, 468, 471 and 212, IPC, and
sections 3 and 4 of the Terrorist and Disruptive Activities Act, 1985 and
section 10 of the Passport Act.
·
F
The Presiding Judge of the Designated Court held that the prosecu-
·f
tion failed to prove beyond reasonable doubt that the accused before him
)"'
and the absconding accused had entered into a criminal conspiracy to
commit the murder of General Vaidya; that accused No. 5 was driving the
motor cycle with accused No.1 on the pillion seat; that accused No.1 fired
G the shots from close range killing General Vaidya and injuring his wife
who was seated next to him; that the crime in question was committed in
furtherance of the common intention of accused No.1 and accused No. 5
to cause the murder of General Vaidya.
~
The Judge of the Designated Court convicted accused No.1 under
H sections 302 and 307, IPC for the. murder of General Vaidya and for
STATE v. SUKHDEO SINGH
483
-~ ,,
attempting to take the life of his wife. Accused No. S was convicted under A
section 302 and section 307 read with section 34, IPC. Accused Nos. 1 and
S were sentenced to death subject to confirmation of sentence by this
Court. They were also sentenced to rigorous imprisonmebt for 10 years for
the oft'ence under section 307. The substantive sentence were ordered to
run concurrently. Accused 1 and 5 were acquitted of all other charges B
levelled against them. Accused Nos. 2,3 and 4 were acquitted of all the
..
charges levelled against them •
Accused 1 and S did not file. any appeal against their convictions by
the Designated Court.
-
In the Death Reference No.1 of 1989 and in the Criminal Appeal No. c
17 of 1990, the State questioned before this Court the correctness of the
~-
grounds on which the trial Court acquitted the accused Nos. 2 to 4 of all
the charges levelled against them and the acquittal of accused 1 and S of
the other charges levelled against them besides sections 302, 307/34, IPC.
D
The State also submitted that the statement of the accused recorded
)
under section 313 of the Code of Criminal Procedure, 1973 was sufficient
~
to prove their involvement in the commission of the crime and such
statement also corroborated the prosecution case.
~
The accused contended that if there was no evidence or circumstance E
appearing in the prosecution evidence implicating the accused with the
commission of the crime with which they were charged, there was nothing
for the accused to explain and their examination under section 313 of the
Code was wholly unnecessary and improper and should be totally discarded and their admissions, if any, wholly ignored; that since the convicF
tion and sentence were pronounced on the same day, the capital sentence
awarded to the accused should not be confirmed.
Dis~issing the Criminal Appeal and disposing of the Death Reference, this Court, while confirming the conviction order and sentence
passed by the Designated Court.
G
_.__
HELD : 1.01 No weight can be attached t~ such identification more
so when no satisfactory explanation is forthcoming for the investigation
otracer's failure to promptly hold a test identification parade. [501E]
1.02. The direct evidence, if at all, regarding the identity of the persons H
484
SUPREME COURT REPORTS
(1992) 3 S.C.R.
A
who moved about in different assumed names is either wholly wanting or is
of such a weak nature that it would be hazardous to place reliance ~hereon
without proper corroboration. The direct evidence regarding identity of the
culprits comprises of (i) identification for the first time after a lapse of
considerable time in Court or (ii) identification at a test identification
B
c
parade. In the case of total strangers, it is not safe to place implicit reliance
on the evidence of witnesses who had just a fleeting glimpse of the person
identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. In the
present case it was all the more difficult as indisputably the accused persons had since changed their appearances. [506C-E]
1.03 Test identification parade, if held promptly and after taking the
necessary precautions to ensure its credibility, would lend the required
assurance which the court ordinarily seeks to ad on it. In the absence of
such test identification parade it would be extremely risky to place implicit
reliance on identification made for the first time in Court after a long lapse
D
of time and that too of persons who had changed their appearance. [506F]
E
F
G
Kanan & Ors. v. State of Kera/a, (1979] 3 SCC 319, relied on.
1.04. Before a Court can act on the opinion evidence of a handwriting
expert two things must be proved beyond any manner of doubt, namely, (i)
the genuineness of the specimen/admitted handwriting of the concerned
accused and (ii) the handwriting expert is a competent, reliable and
dependable witness whose evidence inspires confidence. (5088]
1.05 Evidence regarding the identity of the author of any document
can be tendered (i) by examining the person who is convel'8ant and familiar
with the handwriting of such person or (ii) through the testimony of an
expert who is qualified and competent to make a comparison of the
disputed writing and the admitted writing on a scientific basis and (iii) by
the court comparing the disputed document with the admitted one. [509F]
1.06 Since the science of identification of handwriting by comparison
is not an . infallible one, prudence demands that before acting on such
opinion the Court should be fully satisfied about the authorship of the
admitted writings which is made the sole basis for comparison and the
Court should also be fully satisfied about the competence and credibility
H
of'the handwriting expert. It is indeed true that by nature and habit, over
-
,...,
.
~
STATE v. SUKHDEO SINGH
485
a period of time, each individual develops certain traits which give a A
-
distinct character to his writings making it possible to identify the author
but it must at the same time be realised that since handwriting experts are
generally engaged by one of the contesting parties they, consciously or ,
unconsciously, tend to lean in favour of an opinion which is helpful to the
party engaging him. [509H-510A]
B
1.07 When one comes across cases of conflicting opinions given by
two handwriting experts engaged by opposite parties. It is necessary to
~ exercise extra care and caution in evaluating their opinion before accepting
the same. So courts have as a rule of prudence refused to place implicit
faith on the opinion evidence of a handwriting expert. Normally courts c
have considered it dangerous to base a conviction solely on the testimony
--
of a handwriting expert because such evidence is not regarded as conelusive. Since such opinion evidence cannot take the place of substantive
evidence, courts have, as a rule of prudence, looked for corroboration
before acting on such evidence. True it is, there is no rule of law that the D
evidence of a handwriting expert cannot be acted upon unless substantially
corroborated but courts have been slow in placing implicit reliance on such
opinion evidence, without more, because of the imperfect nature of the
science of identification of handwriting and its accepted fallibility. There
is no absolute rule of law or even or prudence which has ripened into a
rule of law that in no case can the court base its findings solely on the E
),..
opinion of a handwriting expert but the imperfect and frail nature of the
"'
science of identification of the author by comparison of his admitted
handwriting with the disputed ones has placed a heavy responsibility on
the courts to exercise extra care and caution before acting on such opinion.
Before a court can place reliance on the opinion of an expert, it must be F
shown that he has not betrayed any bias an~ the reasons on which he has
based his opinion are convincing and satisfactory. It is for this reason that
'"(
the courts are wary to act, solely on the evidence of a handwriting expert;
'
that, however, does not mean that even if there exist numerous striking
-tipeculiarities and mannerisms which stand out to identify the writer the
court will not act on the expert's evidence. In the end it all depends on the G
character of the evidence of the expert and the facts and circumstances of
each case. [510B-GJ
_...._
1.08 A handwriting expert is a competent witness whose opinion
evidence is recognised as relevant under the provisions of the Evidence Act H
~
I ..
486
SUPREME COURT REPORTS
(1992) 3 S.C.R.
A
and has not been equated to the class of evidence of an accomplice. It
would, therefore, not be fair to approach the opinion evidence with
suspicion but the correct approach would be to weigh the reasons on which
it is based. The quality of his opinion would depend on the soundness or
the reasons on which it is founded. But the court cannot afford to overlook
B
the fact that the Science of identification of handwriting is an imperfect
and frail one as compared to the science of identification of finger-prints;
courts have, therefore, been wary in placing implicit reliance on such
opinion evidence and have looked for corroboration bot that is not to say
that it is a rule of prudence or general application regardless of the
,...;
circumstances of the case and the quality of expert evidence. No hard and
c fast rule can be laid down in this behalf but the Court has to decide in
each case on its· own merits what weight it should attach to the opinion of
the expert. [513A·CJ
-
Ram Narain v. State of U.P., (1973) 2 SCC 86; Bhagwan Kaur v.
D
Maharaj Krishan Sharma, (1973) 4 SCC 46 and Murari Lal v. State of M.P.,
~
(1980) 1 sec 704, referred to.
· 1.09 Although section 73 specifically empowers the court to compare
the disputed writings with the specimeo/adniitted writings shown to be
genuine, prudence demands that the Court should be extremely slow in
E venturing an opinion on the basis of mere comparison, more so, when the
quality of evidence in respect of specimen/admitted writings is not of high
·~
standard. [514FJ
..
1.10 It is not advisable to venture a conclusion based on such
comparison having regard to the state of evidence on record in regard to
F
the specimen/admitted writings of the accused Nos. 1 and 2. [514G]
1.11 Except for a couple of minor contradictions there is nothing
)-'"
brought out in his cross-examination to doubt PW 16's (Security man)
testimony regardiag identification of accused No.1 as the person who fired
·..\-
G the shots at General Vaidya. The presence of this witness at the time of
occurrence cannot and indeed was not doubted. So also it cannot be denied
that he had an opportunity to identify the assailant. There is no serious
infirmity in bis evidence Which would cast a doubt as regards. his Iden·
tification of accused No.1. [517C]
~
H
1.12 PW 14, the cyclist, did not notice an autorickshaw but in court's
STATE v. SU.KHDEO SINGH
487
view that cannot cast any doubt on the credibility of PW 16. His attention A
..
was rivetted at the car and the motor cycle after he heard the shots and
there was no need for him to notice the autorickshaw. [5188]
2.01 Section 313 of the Code is a statutory provision and embodies
the fundamental principle of fairness based . on the maxim audi alteram
partem. It is trite law that the attention of the accused must be specifically B
invited to inculpatory pieces of evidence or circumstances laid on record
with a view to giving him an opportunity to offer an explanation if he
~ chooses to do so. The section imposes a heavy duty on the court to take
great care to ensure that the incriminating circumstances are put to the
accused and his response solicited. The words 'shall question him' clearly c
bring out the mandatory character of the clause and cast an imperative
-
duty on the court and confer a corresponding right on the accused to an·
· opportunity to offer his explanation for such incriminating material appearing against him. [5268-5278)
...
~
2.02 The stage of examination of the accused under clause (b) of D
sub-section (1) of section 313 reaches only after the witnesses for the
prosecution have been examined and before the accused is called on to
enter upon his defence. At the stage of closure of the prosecution evidence
and before recording of statement under section 313, the judge is not
expected to evaluate the evidence for the. purpose of deciding whether or E
.,,J...
not he should question the accused. After the section 313 stage is over he
has to hear the oral submissions of counsel on the evidence adduced before
pronouncing on the evidence. The trial judge is not expected before he
examines the accused under section 313 of the Code, to sift the evidence
-
and pronounce on whether or not he would accept the evidence regarding
any incriminating material to determine whether or not to examine the
F
accused on that material. To do so would be to pre-judge the evidence
'-(
without hearing the prosecution under section 314 of the Code. [527C-E]
.
2.03 It is only where the court finds that no incriminating material has
surfaced that the accused may not be examined under section 3_13 of the G
Code. Ifthere is material against the accused he must be examined. [527F)
2.04 In the instant case it is not correct to say that no incriminating
4...
material had surfaced against the accused, particularly accused No. 5, and
hence the trial judge was not justified in examining the accused under
section 313 of the Code. [527G]
H
.,
488
SUPREME COURT REPORTS
[1992] 3 S.C.R.
A
2.05 Since no oath is administered to the accused, the statements
made by the accused will not be evidence Stricto sensu. That is why
-
sub-section (3) says that the accused shall not render himself liable to
-....._...
punishment if he gives false answers. [52iH]
B
2.06 The answers given by the accused in response to his examination
under section 313 can be taken into consideration in such inquiry or trial.
This much is clear on a plain reading of the above sub-section. Therefore,
though not strictly evidence, sub-section (4) permits that it may be taken
into consideration in the said inquiry or trial. [528C]
~
c
State of Maharashtra v. R.S. Chowdhari, (1967] 3 SCR 708; Hate Singh
v. $tate of Madhya Bharat, 1955 Crl. L.J. 1933 and Narain Singh v. State of
Punjab, (1963] 3 SCR 678, relied on.
-
lit Bahat:.ur Chetri v. State of Arunacha/ Pradesh, 1977 Crl. L.J. 1833
and Asokan v. State of Kera/a, 1982 Crl. L.J. 173, distinguished.
_l
D
2.07 The plea of guilt tantamounts to an admission of all the facts
constituting the offence. It is, therefore, essential that before accepting and
acting on the plea the Judge must feel satisfied that the accused admits
fact i.e. ingredients constituting the offence. The plea of the accused must,
E
therefore, be clear, unambiguous and unqualified and the Court must be
satisfied that he has understood the nature of the allegations made against
~
him and admits (hem. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied the law permits the Judge trying the case to record a
conviction based on the plea of guilt. If, however, the accused does not
--......
F
plead guilty or the learned Judge does not act on his plea he must fix a
date for the examination of the witnesses, i.e. the trial of the case. There
is nothing in this Chapter which prevents the accused from pleading guilty
at any subsequent stage of the trial. But before the trial Judge accepts and
~
acts on that plea he must administer the same caution unto himself. This
'
G plea of guilt may also be put forward by the accused in his statement
recorded under section 313 of the Code. (5308-D]
2.08 In the instant case, besides giving written confessional statements, both accused No. 1 and accused No. 5 admitted to have been
~
involved in the commission of murder of General Vaidya. It is pointed out
H that both the accused have unmistakably, ~nequivocally and without any
~
(•
STATE v. SUKHDEO SINGH
489
reservation whatsoever admitted the fact that they were responsible for the A
-y
murder of General Vaidya. [530E]
2.09 Accused No. 1 did not name accused No. 5 as the driver of the
motor cycle, perhaps he desired to keep him out, but accused No. 5 has
himself admitted that he was driving the motor cycle with accused No.1 on B
the pillion seat and to facilitate the crime he had brought the motor cycle
in line with the Maruti car so that accused No.1 may have an opportunity
of firing at his victim from close quarters. There is, therefore, no doubt
~
whatsoever that both accused No.1 and accused N.o. 5 were acting in
concert, they had a common intention to kill General Vaidya and in
furtherance of that intention accused No.1 fired the fatal shots. [530F-G] c
2.09 The trial Judge was justified in holding that accused No.1 was
guilty under section 302 and accused No. 5 was guilty under section 302/34,
IPC. (5308)
3.01 In the instant case, the accused were tried under the section D
3(2)(i) or (ii) and 3(3) provisions of TADA Act and the Rules made
thereunder along with the offences under sections 1208, 465, 468, 471, 419,
302 and 307, IPC. They were also charged for the commission of the
aforesaid offences with the aid of section 34, IPC. Under section 13(4) the
procedure which the Designated Court must follow is the procedure E
prescribed in the Code for the trial before a Court of Session. [531H-532C]
3.02 The Trial Judge took the view that since the murder of General
Vaidya was also on account of his involvement in the Blue Star Operation
his case stood more or less on the same footing and hence fell within 'the F
rarest of a rare' category. This line of reasoning adopted by the Trial Judge
is unassailable. The accused persons had no remorse or repentence, in fact
"---(
they felt proud of having killed General Vaidya in execution of their plan.
[532H-SJ3B]
Kehar Singh & Ors. v. State (Delhi Administration), (1988) 3 SCC 609, G
relied on.
19'
4.01 The choice of sentence had to be inade after giving the accused an
--Jtl._
effective and real opportunity to place his antecedents, social and economic
background, mitigating and extenuating circumstances, etc., before the
Court, for otherwise the court's decision may be vulnerable. (533D]
H
490
SUPREME COURT REPORTS
(1992] 3 S.C.R.
A
Allaudin Mian v. State of Bihar, (1989] 3 SCC 5; Milkiat Singh v. State
of Punjab, JT (1991) 2 SC 190 (Paragraph 18); Jumman Khan v. State of
U.P., [1990} Suppl. 3 SCR 398 and Kehar Singh & Ors., v. State, (1988] 3
sec 609, referred to.
4.02. Having regard to the well planned manner in which they exB
ecuted their resolve to kill General Vaidya they were aware that there was
every likelih9od of the Court imposing the extreme penalty and they would
have, if they so desired, placed material in their written statements or
would have requested the Court for time when their statements under
section 313 of the Code were recorded, if they desired to pray for a lesser
C sentence. Their resolve not to do so is reflected in the fact that they have
not chosen to file and appeal against their comictions by the Designated
Court. In the present case the requirements of section 235(2) of the Code
have been satisfied in letter an spirit and no prejudice is shown to have
occurred to the accused. [53SC]
D
4.03 The conviction of accused No.I under section 302 and 307, IPC
and accused No. 5 under sections 302 and 307, IPC, both read with section
34, IPC and the sentence of death awarded to both of them is confirmed.
[53SE]
CRIMINAL APPELLATE JURISDICTION : Death Reference
. E
Case No. 1 of 1989.
WITH
Criminal Appeal No. 17 of 1990.
F
From the Judgment and Order dated 21.10.89 of the Pone DesigG
nated Court in Terrorist Sessions Case No. 2 of 1987.
Altaf Ahmed, Additional Solicitor General, V.V.Vaze, S.B.
,._.
Takawane, S.MJadhav, A.S.Bhasme and Ms. A.Subhashini fdr the Complainant/ Appellant.
R.S.Sodhi, Harshad Nimbalka, P.G, Sawarkar and I.S. Goel for the
Accused/ Respondent.
The Judgment of the Court was delivered bf
H
AHMADI, J. General A.S.Vaidya, the then chief of the Armed
---
STATE v. SUKHDEO SINGH [AHMADI, J.]
491
Forces was, on the orders of the then Prime Minister Smt. Indira Gandhi, A
,,
assigned the difficult and delicate task of flushing out militants who had
taken refuge in the Golden Temple at Amritsar. During this operation,
known as the Blue Star Operation, some militants were killed and a part
of the Golden Temple known as Harminder Saheb was damaged. Both the
them Prime Minister Smt Indira Gandhi and General Vaidya had, thereB
fore, incurred the wrath of the Punjab militants for what they called the
desecration of the Golden Temple. They, therefore, vowed to avenge the
deaths of their colleagues and punish all those who were responsible for
~J
the damage to the Golden Temple. After the assassination of Smt. Gandhi
on 31st October, 1984, it is the prosecution case, they waited for General
Vaidya to retire on 31st January, 1986 so that the security cover which c
would then stand reduced may not be difficult to penetrate. After his
retirement General Vaidya decided to settled down in Pune in the State of
Maharashtra.
1After· his retirement on 31st January, 1986, General Vaidya and his
wife Bhanumati left Delhi for Pune. As their bungalow at Pune was still D
under construction, they shared bungalow No. 20 at Queens Garden, Pune,
occupied by Major General Y.K. Yadav. General Vaidya owned a Maruti
Car bearing Registration No. DIB 1437 which reached Pune on the next
day i.e. 1st February, 1986. Between 4th and 16th February, 1986 General
Vaidya and his wife went to Goa for a brief holiday. They returned to Pune E
on 16th February, 1986. They continued to reside in the bungalow occupied
~
by Major General Y.K. Yadav. General Vaidya was required to be
hospitalised from 24th March to 7th April, 1986 as he was suspected to be
suffering from jaundice. During his stay in bungalow No. 20, Queens
Garden, two Police Sub-Inspectors were available on security duty, one for
himself and another for Major General Yaday but after his discharge from F
the hospital and on their shifting to their bungalow at 47/3, Koregaon Park
-'"(
with effect from 26th May, 1986 only one armed Head Constable, Ramchandra Kshirsagar, was on security duty with him. Although the name
plate of General Vaidya was displayed on one of the two posts of the
entrance gate to bungalow No. 20 at Queens Garden, no such name plate G
was displayed at bungalow No. 47/3, Koregaon Park.
..
On the morning of 10th August, 1986, General Vaidya and his wife
~
left their bungalow with the securityman Ramchandra Kshirsagar for shopping in their Maruti Car No. DIB 1437 at about 10.00 a.m. The car was
being driven by General Vaidya with his wife sitting in the front seat to his H
492
SUPREME COURT REPORTS
(1992] 3 S.C.R.
A
left and the securityman sitting in the rear seat just behind her. After the
shopping spree was completed at about 11.30 a.m. and while they were
returning to their residence via Rajendrasinghji Road, the car had to take
a turn to the right at the square in front of 18 Queens Garden at the
intersection of Rajendrasinghji and Abhimanyu roads. To negotiate this
B
c
turn General Vaidya who was driving the vehicle slowed down. At that
point of time a red Ind-Suzuki motor cycle came parallel to the car on the
side of General Vaidya and the person occupying the pillion seat of the
motor cycle fired three shots from close range at the head of General
Vaidya. Before his wife and securityman could realise what had happened,
General Vaidya slumped on the shoulder of his wife Bhanumati. The motor
cyclists drove away and could not be located. An auto-rickshaw passed by.
As General Vaidya lost control over the vehicle the car surged towards a
cyclist Digamber Gaikwad. The latter, in order to save himself, jumped off
the cycle. The cycle came under the Maruti Car. and as a result the car
stopped at a short distance in front of a compound wall. Immediately
D thereafter the securityman stepped out of the vehicle and went in search
of some bigger vehicle to carry General Vaidya to the hospital. A Green
Matador Van which wa passing by was fetched by the securityman in which
the injured General Vaidya was carried to the Command Hospital where
he was declared dead. ·
E
F
G
The securityman immediately informed the L.I.B. Office about the
incident which information was received by Police Inspector Garad. On
receipt of the information the Commissioner of Police and his Deputy
arrived at the hospital and questioned the securityman who narrated the
incident to them. Thereupon the securityman was asked to go to the
Control Room. On reaching the Control Room he received a message from
Inspector Mohite requiring him to return to the place of the incident where
his formal complaint was recorded by Inspector Mohite. A Panchnama of
the scene of occurrence was drawn up by Inspector Mohite in the presence
of witnesse~ and the empty cartridges and other articles were recovered
therefrom.
As stated earlier, the assailants of General Vaidya had made good
their escape from the scene of occurrence after the incident. On 7th
September, 1986, two persons riding a red Ind-Suzuki motor cycle collided
with a truck. They were thrown off the motor cycle and sustained injuries.
H A bag containing arms and ammunition was also thrown off but they
-
STATE v. SUKHDEO SINGH [AHMADI, J.]
493
,,
hurriedly collected the spilled articles. When members of the public who A
had collected there immediately after the accident went to assist them they
behaved in an abrasive manner and one of them, later identified as accused
No.1 Sukhdev Singh @ Sukha, raised his revolver and threatened to shoot,
which raised the suspicion of the crown prompting one Narayan Bajarang
Pawar to report the matter to Inspector A.I. Pathan of Pimpri Police B
Station. Inspector Pathan swung ii .to action and along with the informant
and his staff members, including Sub-Inspector Nimbalkar, went in search
of the two motor cyclists. Inspector Pathan went to the pimpri Railway
Police Station and asked P.S.I. M.K.Kadam of that Police Station to
immediately go to the place of the accident and guard the same until
further orders. Inspector Pathan, on return, noticed two persons passing c
-
by Vishal Talkies and as one of them was limping his suspicion was aroused
whereupon he drove his vehicle near them and pounced on one of them,
~
later identified as accused No.2 Nirmal Singh @ Nima. Accused No. 1
Sukha tried to run away but P.S.l. Nimbalkar gave a chase and caught hold
of him and brought him to Inspector Pathan. Before he was overpowered, D
it is the prosecution case, that accused No.1 Sukha unsuccessfully tried to
fire a shot at P.S.I. Nimbalkar to make good his escape. It may here be
mentioned that both accused No.1 and accused No.2 were charge-sheeted
under section 307, IPC, for that incident and were ultimately convicted and
sentenced.
E
After both accused No.1 and accused No.2 were apprehended by
Inspector Pathan and P.S.I. Nimbalkar they were searched and weapons
-
like pistol _and revolver along with live cartridges were recovered from
them. They were also carrying certain papers concerning the red IndSuzuki moto~ cycle and they too were attached. As a seizable crowd had F
gathered on the road Inspector Pathan thought it wise to cause the seizure
memorandum to be recorded at the Pimpri Police Station. The prosecution
case is that while the two persons were being taken in a jeep to the Pimpri
Police Station they raised slogans of "Khalistan Zindabad" ·and proudly
proclaimed that they were the assailants of General Vaidya. After reaching
G
....
the Police Station all the articles which were found in the possession of
~
these two persons were attached under a seizure memorandum. Inspector
Pathan suspected that the pistol which was found from them may have been
the weapon used for killing General Vaidya and hence he sent the weapons
as well as the cartridges attached from the scene of occurrence to the
aallistic Expert who reported that the cartridges found from the place H
494
SUPREME COURT REPORTS
(1992) 3 S.C.R.
A where General Vaidya was shot were fired from the pistol which was
recovered from the possession of these two persons after their arrest on
7th September, 1986. In the course of investigation it came to light that
besides accused Nos.1and2 certain other persons described as territorists,
namely, accused No.3 Yadvinder Singh, accused No.4 Avtar Singh, accused
B No.5 Harjinder Singh and absconding accused Sukhminder Singh @ Sukhi,
Daljit Singh @ Bittoo @ Sanjeev Gupta, Jasvinder Kaur, and Baljinder
Singh @ Raju were involved in the conspiracy allegedly hatched for assassinating General Vaidya immediately after his retirement and on depletion
of the security cover. Accused Nos.1 and 2 and others named hereinabove
were charge sheeted on 14th August, 1987 under sections 120B, 302, 307,
C 465, 468, · 471 and 212, IPC sections 3 and 4 of Terrorist and Disruptive
Activities Act, 1985, hereinafter called 'TADA', and section 10 of the
Passport Act.
In regard to the charge of conspiracy, forgery, etc., the prosecution
D case is that absconding accused Sukhi hired a flat sometime in OctoberNovember 1985 at 7, Antop Hill, Bombay. Thereafter he came to Pune and
stayed in Dreamland Hotel in the assumed name of Rakesh Sharma. On
January 26, 1986 he shifted to and registered himself as Ravindra Sharma
in Hotel Gulmohar on the pretext that he was visiting the city for business
purposes. He was accompanied by another person. They gave a false
E address that they were residents of 307, Om Apartments, Bombay. While
in Pune an advertisement appeared in the local daily Maharashtra Herald
offering a flat No. G-21, Salunke Vihar, Pune on hire. This flat was in the
possession of Major A.KMadan and he was desirous of letting it out to
repay the instalments of the loan taken for meeting the construction cost
F
of the said flat. He had entrusted this work of finding a suitable tenant to
one V .R.Hallur and had given a Power of Attorney to him for that purpose.
The said V.R.Hallur approached the Estate Agents Bhavar Sanghavi and
disclosed that he was desirous of letting out the flat on a rent ranging
between Rs.1200 ~d Rs. 1500 with a deposit ranging between Rs. 12,000
and Rs. 15,000 . The Estate Agents published an advertisement in the local
G newspaper Maharashtra Herald, in consequence whereof one person identifying himself as Ravindra Sharma approached the Estate Agent and
finalised the deal by paying Rs. 15,000 in cash as deposit and agreeing to
pay rent at the rate of Rs. 1500 per month and went on to pay advance
rent for three months i.e. Rs. 4500 to the said V.R. Hallur. The deal was
H dosed on 30th January, 1986. It is the prosecution case that this flat was
•
-
-
STAIB v. SUKHDEO SINGH [AHMADI, J.]
495
•
hired as the conspirators needed an operatio11al base in Pune to facilitate A
'
the killing of General Vaidya.
The prosecution case further is that on 3rd May, 1986 the 7, Antop
Hill flat at Bombay was raided and besides arms and ani'munition an
English novel Tripple was found on the cover page whereof someone had B
scribbled the number of General Vaidya's Maruti Car. Clothes of different
'--·
sizes were also found indicating the presence of more than one person. On
8th May, 1986 an Ind-Suzuki motor cyde bearing No. MFK 7548 was
purchased in the name of Sanjiv Gupta from its owner Suresh Shah through
R.V. Antapurkar, a salesman. Accused No.1 is reported to have lived in
Hotel Ashirvad, Pune on 9th June, 1986. Accused No.1 lived in Hotel Amir c
.._
in Room No. 517 on 11th June, 1986, in Hotel Jawahar in Room No. 206
on the next day and in Hotel Mayur in Room No. 702 on 13th June, 1986.
_)_
On the same day he is shown to have stayed in Hotel Commando, Bandra,
Bombay in Room in 402. The Union Bank robbery took place on that day.
The motor cycle was sent for servicing on 1st July, 1986. Sukhi left for D
U.SA. on· a forged passport on 14th July, 1986 and was arrested there.
According to the prosecution they lived in different hotels in different
assumed names for drawing up a plan to kill General Vaidya.
~
Now we enter the crucial stage. According to the Prosecution, in E
pursuance of the conspiracy hatched to kill General Vaidya, Accused
Nos.1, 2 and 5 left Ambala cantonment for Doorg on 3rd August, 1986 by
138 UP Chhatisgadh Express. The form for reservation of sleeper berths
dated 29th July, 1986, Exh. 700, is alleged to have been filled by Accused1
No.1, of course in an assumed name. They reached Doorg on 5th August,
1986 and left for 'B,9mbay on the next day by Gitanjali Express. From F
Bombay the prosecution alleges that they w~nt to Pune. Prosecution has
'
'-
'
also ten~ered eviden_ce ·to show that on 9th August, 1986, accused Nos.1
and 5 made inquiries concerning the whereabouts of a retired military
officer in the neighbourhood of General Vaidya. After accomplishing the
task accused No.1 returned to Bombay by 7.30 p.m. and stayed in Hotel G
Neelkanth, Khar, in the assumed name of Pradeep Kumar. On 6th Septem-
-11ber, 1986, accused Nos.1 and 2 are stated to have stayed in Hotel Dalmond,
Bandra, Bombay, in the assumed names of Ravi Gupta and Sandeep
Kumar before their arrest at Pune on 7th September, 1986 by Inspector
Pathan. This, in brief, are the broad outlines of the alleged conspiracy
perpetrated by the accused persons and the absconding accused to kill H
"'
496
SUPREME COURT REPORTS
[1992] 3 S.CR.
A
General Vaidya. To prove these circumstances a large number of docu- •
ments and ocular testimony of several witnesses came to be tendered by
'
the prosecution before the Designated Coiirt.
The investigation revealed that on the date of the incident the motor
B cycle was driven by accused No.5 Harjinder singh @ Jinda with accused
No.1 Sukhdev Singh @ Sukha in the pillion seat. The shots were fired by
accused No.l from the pillion seat at close range after accused No.5 had
·---1
brought the motor cycle in line with the front window of the driver's seat
of the Maruti Car.