(1) This judgment in Murder Reference No. 1of 1977 will dispose of not only Cr. Appeals No. 43/77 and 44/77 (filedby Sunil Batra), 68/77 and 123/77 (filed by VipinKumar Jaggi and Ravinder Nath Kapur, respectively), 186/77and 187/77 (filed by Shahwar Mohd. Khan), but also Cr. Appeal No.164 of 1977, referred by the State seeking to enhance the sentence onthe other three appellants except Sunil Batra (who will hereafter bereferred to as Sunil). For purposes of convenience Vipan Kumar JaggI will hereafter be referred to V. jaggi, the name which appears frequently:CD/78-2in evidence; Ravinder Nath Kapoor will hereafter be referred loas Ravi and Shahwar Khan as Shahwar only.
(2) Sunil has been convicted under Sections 120-B, 302, 396 as wellas under S. 395 read with Ss. 397 and 398 1. P. C. for having causedthe death of both Bansi Ram and Ram Niwas, the gun man and thedriver, respectively, of the green coloured van of the Union Bank ofIndia, Chandni Chowk (bearing No. Dhb 768, Ex. P. '15) and awarded the extreme penalty subject to the confirmation of this Court,under Sections 302 1. P. C. and 396 1. P. C. the lesser sentence, ofimprisonment for life, has been awarded under the other sections. Theother appellants V. Jaggi, Ravi and Shahwar have been convictedunder the aforesaid sections except that the conviction under S. 302 I. P. C. is only constructive, i.e., read with S. 34 1. P. C" for havingcaused the death of both Bansi Ram and Ram Niwas (gunman and thedriver, respectively, of the van of the United Bank of India, ChandniChowk). Each of them has been awarded imprisonment for life on allthe said counts. The sentences of imprisonment, in case of alli the fourappellants, have been ordered to run concurrently. Sunil and Shahwarwere convicted and sentenced under the Arms Act also.
(3) The learned counsel for the appellants, Mr. Ram Jethmalani andMr. R. K. Garg in particular, urged that the identification of personsnot previously known to the witnesses was the weakest type of evidence. Mr. Ram Jethmalani drew our attention to certain observationsmade by Glanville Williams in the course of his Hamlyn Lectures onThe Proof of Guilt (3rd Ed., pages 106-124). Glanville Williamsrefers to various writers on the subject including some well-known trials.In the case of Adolf Bech he was wrongly picked out at identificationparades by no fewer than 12 women who had been defrauded by himand to some of whom he also made love. Without being detained bythe possibilities of such error which Glanville Williams points out oreven by the recommendations made by the Royal Commission on PolicePowers in 1929 for improving the procedure for identification of thealleged culprits byconcerned witnesses, w& may refer to the observations..of Beg. J. (as he then was) in Yashwant & Ors. v. State of MaharaShtra(Criminal Appeals No. 175 of 1969 and No. 90 of 1970, decided on20-4-1972-Unreported Judgments (1972), p. 923 (930), para 20) :"It is well known that evidence as to identification, particularly ofpreviously unknown persons, is a deceptive kind of evidence which hasled to miscarriage of justice sometimes". There is need for caution inacting upon such evidence (vide Ramazan & Ors. v. Emperor, A. 1. R.1929 Sind 149).
(4) Mr. Ram Jethmalani also referred us to some decisions of Baydekar, J.(Cr. Appeal 1492 of 1951 decided on 19-2-1952; State v.MohanSingh Cr. Appeal No. 1071 decided on 5-12-1951; Rex v.Pratap Singh Naurasing & Ors. Cr. Appeal No. 361 of 1948 decided on24-8-1948) to stress the wea'k nature of such evidence. Mr. Jethmalanialso brought to our notice the Doctoral thesis of Patrick M. Wall on"Eye Witness Identification in Criminal Cases", published by CharlesC. Thomas (Springfield), Illinois, U.S.A., 2nd printing (1971) wherethe experience in this respect of several countries e.g. United States,Canada, Australia, England etc. has been collected : reference hasalso been made by Wall to a number of leading authorities on Evidence like Wigmore and McCormick. Wall explains the two types ofidentification, described in American parlance as a "show up" '(when'one person alone or his photo is shown to the concerned witn'ess(es)or line-up [where a number of persons are lined up along with thesuspect or a number of photographs shown to enable the concernedwitnesses) to identify the culprit(s)]. The Royal Commission of 1929had recommended two line-ups", one with the suspect and anotherwithout the suspect; but this was not found to be feasible to adoptin practice despite the greater measure of safety it would afford. TheEnglish practice has gone so far (contrary to ours) as to- permit apolice officer to give evidence partaining to identification of asuspectby a witness, despite his denying before the Court theft he identifiedthe suspect (Cross .on Evidence, 4th Edn., p. 51) (5) Mr. R. K. Garg, learned counsel for Shahwar, relied upon certainobservations of Hewart, C.J. in R. vs. Dwyer (1925) 2 K.' B. 799. Inthat case two photographs had been produced before the jury whoinspected it; this conveyed the suggestion that the prisoner, .whosephotographs were shown, had a prior criminal record. This did cause. prejudice to. the prisoner; the conviction was threfore quashed. .In anearlier decision (see R v. Malany. 1924 Cr. App. P. 2) it appears tohave been held that a judge need not caution a jury on the danger ofidentification of a culprit or his photogra'ph being shown to the witness prior to his examination in court; there was a going back onthis in Dwyer when Hewart, C.J. observed : "afterwards the witnesswho has so acted in relation to a photograph is not a useful witnessfor the purpose of identification, or at any rate the evidence of that'witness for the purpose of identification is to be taken subject to this,that lie has previously seen a photograph". This would mean thatthe trial judge should exclude that evidence or at least caution thejury. As Glanville Williams points out (at p. 123) in R v. Hinds,(1932) 2 K. B. 644 the court rejected the view taen in Dwyer and ineffect returned to Melany. Avory, J. while charging the jury hadobserved m Hinds : "............there is no objection to the police whoare seeking for ioformation as to the person or persons who may havecommitted a crime showing to persona who are able to identify thecriminal a photograph or series of photographs to see if they canpick out any of them which resembles the person whom they thinkthey would be able to identic. What is objectionable is, it a witnesshas identified an. accused person, for the police to try and corroboratethe evidence of that witness by showing him or her a photograph ofthe actual person whom they have already identified, but there is nosuggestion in this case that anything of that kind has been done. Thereis no ground for suggesting that the police have in any way infringedany rule of conduct in the showing of photographs to the witnesseswho have been called in this case". Approving the direction of the trialJudge to the jury in Hinds, Humphrey, J. observed, on page 647 : "IT is not essential to the summing up that the judge should state that theevidence of the witnesses who have identified the defendant at anidentification parade may possibly be of less weight by reason of theirhaving previously picked out his photograph from amongst those orother persons". Vis-a-vis showing photographs after arrest Avory,J" however, conceded (at page 464) that the matter would requireconsideration; in this respect reference was made to Rex v. Haslam(1925) 19 Cr. App. 59, where the court expressed the view that IT is undesirable that the photograph of a person already under arrestshould be shown to witnesses just before indentifying parade for thepurpose of seeing whether they pick out that person as the personwhom they suspect.
(6) The House of Lords (vide Arthurs v. Attorney General forNorthern Ireland (1971 55 Cr. App. page 161) considered it undesirable to lay down as a rule of law that a warning in some specificform or partly defined terms must be given. The following portionsfrom the' speech of Lord Morris of Borth-y-Gest are enlightening :
"IT is not contended that it should be laid down that evidenceof visual identification must be corroborated. What isurged is that there should be at requirement that a juryshould be told to bear in mind that there had been a numberof instances in the past where witnesses whose honestywas undisputed and whose opportunities for observation had been adequate bad made positive identificationswhich had subsequently been shown to be wrong andthat juries should be warned to be specially cautionsbefore accepting identification evidence, though they wouldbe at liberty to act upon it if after careful examinationof it in the light of all the other evidence they feltsatisfied beyond reasonable doubts as to its correctness".
"IT is the aim of all to strive to reduce to a minimum thersks of the conviction, of one who is in fact innocent. Ajudge will have this aim constantly in mind during hisconduct of a trial and in his direction to the jury. It ismanifest that in cases where the vital issue is whetherthe identification of the accused person is certain andreliable the judge must direct the jury with great care.However careful is his general directions as to the onusof proof, the judge will feel it necessary to deal specifically with all the matters relating to identification.
WHEREconviction will involve the acceptance of the challengedevidence of one or more witnesses in regaird to identification, a summing-up would be deficient, if it did notgive suitable guidance in regard to identification. Thecircumstances of individual cases will, however, greatlydiffer. Thus there may be cases in -which a witness cansay that at a certain place and time he saw and clearlyrecognised the accused person. If the accused person wassomeone who was well known to him or at least waswell known to him by sight and if the conditions atthe relevant time were such that there was nothing toimpede or to prevent recognition or to make recognitiondifficult, then a jury would mainly have to considerwhether the witness was both truthful and dependable".
(7) In Arthurs, the House of Lords was concerned with a case wherethe identifying witnesses knew the accused previously. In RobertWilliam Long, 1973 (57) Cr. Appeal Reports 871 the Court OfAppeal followed Arthurs in a case where he accused was unknownpreviously to the three witnesses who identified him. The summingup in that case was held by Lawton, J., who spoke for the Court ofAppeal, to be "adequate, clear and fair". The appeal was dismisseddespite the complaint to appellant's counsel that the summing updid not give the fury guidance upon the problem of identification.That was also a caSe of robbery of cash in a van belonging to a cooperative society; the occurrence was in the evening, a,t 4.30 P.M.;the robbers, who seized the cash and driven away the van weremasked; they had clubbed the driver of the van and also shot at the windscreen of a lorry, whose driver had trid to stop them. The pointsbearing on the identification by the witnesses in that case were pointout in the summing up. Yet, it was contended that no general wa;ing of thie dangers of such identification evidence had been giventhe jury, who had also not been alerted on the need for caututionLeave to appeal to the House of Lords was also declined, in spitof certifying the question of law as being of general importance :thequestion of the need to give a general warning to the jury.
(8) Mr. R. K. arg invited our 'attention to the contrary view taenby the High Court of Australia in Davies and Cody vs. The King(1946-37 & 57 Commonwealth Law Reports 170). That was a casewhere the accused alone had been exhibited to the witnesses.such a case a clear warning of the dangers which existed should begiven to the juury; absence of such warning would vitiate the conviction. The Supreme Court of Victoria, from whose decision the appealarose, had not regarded the prisoner being shown to the witnesssingly as a suspect, as exposing the accused to too much dangeras to warrant the setting aside of a conviction; the trial Judge wasnot required to include a general warning, of the kind discussearlier, in the summing up. Among other things, reliance was placedby the High Court of Australia on the practice of the English Courtthat such witness(es) are likely to alssent to the view that t. man shown corresponds to his recollection. It was further pointout by the Australian High Court that a witness is called uponsay whether any one, out of a number of persons shown to him, wasthe man concerned, his entire mental attitude will be different andthat the witness's "recollection should not be overlaid or in any way;affected by suggestions that a particular person in custody is eitherthe person previously seen by the witness or is the person suspectof or charged, with the crime. Moreover, inspection of a photographof the person in custody before viewing him naturally tends to impress on the mind the characteristics shown in the photograph, sothat the witness, however honest he maybe, tends to identify theperson in custody with the person shown in the photograph ratherthan with) the person whom he himself saw previously". The HighCourt of Australia wished that the view accepted in England shouuldapply to Victoria also.
(9) We have aheady referred to the decisions of the Hduse of Lords toand of the Court of Appeal, rendered in England, subsequent to Davis and Cody. The above Australian case was also somewatcomplicated by the fact that a witness for the prosecution badafterwards declared that his /evidence against the prisoner wasfalse.
(10) Some of the earlier Australian cases (noticed below) were alsostudied by us along with Mr. Garg, who argued this legal questionat great length.
(11) In Rex v. Bagley (1926 (3) Dominion Law Reports 717) anumber of English decisions have been discussed and it was pointedout that the witness should not be shown a single photograph of theculprit in order that he may be assisted, but there was no objectionto a bundle of photographs being shown without atiy suggestion.
(12) Rex v. Dean (1942 (1) Dominion Law Reports 702) containssome discussion of the legal position; it is, however, seen that a newtrial was ordered in. that case because the prosecution had shown tothe jury a photo of the culprit implying thereby that he had a previousrecord.
(13) Rex v. Smierciak (1947 (2) Dominion Law Reports 156) wasa case where a single photograph of a suspect was shown; he waslater arrested and charged. The conviction was quashed. On thispoint it will be useful to revert to The King v. Alfred George Hinds(1932 (2) Law Reports K. .B Div. 644) (Avory, J. tried the case;Eumphreys, J. spoke for the Court of Appeal) where it was pointedout that it was not essential to the sufficiency of the summing up thatthe judge should state that the evidence of witnesses who have identified the defendant at an identification parade may be possibly of lessweight by reason of their having previously picked out his photographfrom amongst those of other person ; this was so despite Dwyer (alreadydiscussed) and Rex v. Halsam (1925 19 Cr. App. 59) where it waspointed out that it was "undesirable that photographs of a person already under arrest should be shown to the witnesses just before attending an identification parade" etc. In Hinds, the factual position wasthat photographs were shown to the witnesses with the object of ascertaining whether they could pick out a person who was not yet incustody so that he may be arrested; this might be regarded as an"irregularity". Rex v. Smierciak referred to Dwyer but not to Hinds.
(14) The decision in R. v. Turnbull and others (1976 (3) All E.R.549) was brought to the notice of counsel for both sides by us,practically after both sides had addressed full arguments on the law bearing on proof of identity. Counsel appearing forthe appellants, especially Mr. Jethmalani and Mr. Garg, invited us toadopt the same view as Lord Widgery, C.J. had in that case. The discussion was indeed specially valuable owing to the observations con-cerning what is poor identification and what is not. Even in the caseof poor identification on which it is not safe to act upon by itself itcan be acted upon safely when there is supporting evidence. A delicate balance has been atruck reconciling the public interest in socialdefense and the need to avoid the danger of innocent men being convicted. The decision related, inter alia, to identification of one of theculprits from a moving car in a well-lit street; the same was foundsufficient and reliable when there was supporting evidence. In such asituation there could be no warrant for withdrawing the case from theJury. Mr. R. K. Garg, in partidular. insisted throughout his submissions,that we must rule out altogether the identity evidence in this case : hesaid that the identity evidence is weak or poor (as a fact), in termsof what the High Court of Australia had held. The High Court ofAustralia which followed the English law and practice in this respect.adopted it for Victoria, where the practice in this respect was different.
(15) Some of the excesses, caused by the former approaches based onconsideration of pure safety from the point of view of the accused andwithout any regard to the requirements of social defense, were soughtto' be avoided by the House of Lords. A charge to the jury was quashedpreviously, for mere failure to give a "general direction" about thelurking dangers quite after inhibiting the jury altogether from returning averdict of "not guilty" for that reason, the House of Lords attempted to set this right by not insisting on such a general direction; acharge specifically dealing with the strength and weakness of identityevidence was held sufficient. Lord Widgery, C.J. for his part, gavea number of hypothetical illustrations to drive home the point thatidentity evidence, likely to be considered insufficient without supporting evidence, would be safe to act upon when there is such supportingevidence-which would. as he pointed out, include "odd coincidences".One of them was the case of a culprit being seen only for a fleetingmoment, getting into a house shortly seen after the crime, which'housewas shown, altunde, to be that of his father. This "odd coincidence"permitted a safe conviction, where without it there would be no.safety. We only wish to add that such supporting evidence would indeed cover a wide spectrum.
(16) In this light we wish to refer to a few major parameters of thiscase the evidence of five bank employees, whose presence at thetime of occurrence could not be doubted. The rather wild suggestionsby Mr. arg during his submissions to us as to their being particepscriminis or even being seriously suspected of complicity, were not evenremotely supported by any suggestion to this effect. His theory thethere was at least yet another person involved in the occurrence, whoseinvolvement has been supressed, seems far less tenable. His furthercontention, that by reason of the 'exposure', as he called it, at theDev Nagar Police post on 25/12/1973 ; the identity evidenceshould be rejected out of hand, completely overlooks so many factorsbearing on the falsity of the defense that they were exposed to witnessesboth at Bhopal and at Delhi, their unjustified refusal to take part inthe identification parade arranged soon after the occurrence (to takeplace on 18/12/1973, almost within a week of their beingapprehended), the precautions taken by the police and facilities given tothe culprits to safeguard themselves against being identified by anybefore the identity parade, etc. (17) The suggestions made on behalf of the defense, concerning witnesses being given an opportunity of identifying them both) at Bhopaland at Delhi are even mutually destructive of each other. The caseof being photographed on the terrace of the Canara Bank, Bhopal isutterly falsified by the fact that the terrace could not even be approached by them and was not 'in the tenancy of the bank. The positive evidence of the concerned Magistrates is that they advised theculprits when they were produced to keep their faces muffled; yetthere was no complaint to them that either their faces were not keptmuffled or that any witness was allowed to see them, etc. To theseaspects we will be reverting later in greater detail; some reference tothem has become necessary even in this context to briefly indicate theuntenability of the argument of Mr. Garg, in particular, that becauseof the exposure on 25/12/1973, even if not earlier, the valueof the identity evidence has become useless. His reliance on decisionof the Australian High Court dealing with witnesses being allowed tosee any culprit or even his photo being shown prior to identificationparade or in court normally, does not seem to avail him, in the contextof the willful (wrong) refusal by the appellants in the present case totake part in the identity parade (which wals obviously done underadvice) and the reason for the said 'exposure' on 25/12/1973.Mr. Ram Jethmalani's argument that the avertment of V. Jaggi thathe was identified eal-lier and about his declining to participate in theparade having to be rated higher than even that of the rest of theappellants overlooks the fact that even V. Jaggi had his lawyer with'him when he did so. The culprits and their advisers obviously knewthat if they did not take part in the identity parade it would, in fact,take a very long time for the trial to commence and the identificationby the eye witnesses, for the first time m court and after such a longinterval of tune, would become very weak for that reason itself. Weform the view in this case, agreeing with the learned trial Judge, thatthe police were justified in what they did on 25/12/1973. Wefurther hold that this occasion was not abused by them in any manner,despite the 'exposure' the concerned witnesses did not identify anymore then those of whom they had given such identifying particularsas they could.
(18) The subsequent discussion, in the varying contexts and in details,will establish the bona fides of the step taken by the police in thisregard, the need for it, and the non-abuse of the said opportunity. Weare unable to agree with the contention of Mr. Garg that the bona fidesof the police is irrelevant and the entire identity evidence should betotally disregarded. The above course became necessary for at leasttwo very good reasons, both of them have been mentioned by thelearned trial Judge:-(1) The investigation could not have been fairlycompleted without it, (2) It was necessary to clear up whether therewere four or five culprits in the case. On the latter aspect the contention of Mr. Jethmalani, that the Police Officers could have easily madesure, on the statement which the eye-witnesses had before them already, that the culprits were stated to be 5 in number, overlooks thefact that this exercise might be regarded as easy (on the reading ofthose statements now) by hindsight; it was not so easy by foresightat least one could not make sure of this until all of them had beenapprehended and assembled at the Dev Nagar Police Post for theeye-witnesses, who had been examined by the police earlier, couldmake sure that five, not four, had participated in the crime. To thisaspect also we shall revert later when we discuss it in the light of themessage flashed by the police.
(19) Our attention has not been invited to any Indian decision whichdiscusses the exact paint argued by Mr. Garg. In some of the decisions brought to our notice on this aspect there are only some generalobservations to be found, they are not objected to by Mr. Kalra,Among those cited, it may be sufficient to notice the following : TheDelhi Administration v. Balakrishan, etc. . Pa-le-kar, J., who spoke for the Cdurt, drew the inference that the accusedhad been brought to the house of the witness, two and a half monthsafter the incident and before the test identification parade was heldbecause the police were unable to explain why the accused had been sotaken. Dua, J. has made some useful observations, but only of a general nature, in Rameshwar Singh v. State of Jammu and Kashmir and Hasib v. The State of Bihar . Chandarchud, J. made the following observation concerningrefusal to take part in anidentification parade in the following mannerinMulkh Raj Sikka v. Delhi Administration : "THEappellant resumed his duty on the morning of June 8when he was put under arrest by Inspector Avtar Singh.The attache-case which he was carrying contained issuesof the Statesman dated 1/06/1970 and of SundayStandard and Pratap dated 31/05/1970. These newspapers contained reports of the murder of Satish Chander. IT is clear that the appellant was aware all along that hisyoungest brother who was living with him was murderedin his own house. And yet the appellant neither made inquiries about the circumstances leading to the tragedy nordid he indeed go to his house to find out for himself asto what was the real truth. In this back-ground the appellant's refusal to participate in the identification parade ofto give specimens of his foot-prints is not difficult to gauge"
(20) Rajamannar J. put the matter thus in In re Sangiah (1948 A.I.R.Madras 113) following the earlier decision in Public Prosecutor v.Sankarapandia Naidu (1932 (32) Madras Weekly Notes 427) : "IDENTIFICATIONparades are held not for the purpose of givingdefense advocates material to work on, but in order tosatisfy investigating officers of the bona fides of the prosecution witnesses". (21) Desai, J., who seems to have written a long treatise, as it wereon identification of those previously unknown to witnesses, in SatyaNarain v. The State , seems to have gqpethe length of making a purely arithmetical reckoning to the effectthat if one witness alone identified it was not safe; if they were twothe risk was probably reduced; if they were three it became a certainty.With respect it seems to us that this does not admit of any such purelyquantitative test by the number of witnesses alone and regardless oftheir quality. (22) Without multiplying more decisions on this question we may nowrefer to what another scholar of great reknown, Wigmore (as distinguished from Glanville William), has to say on this question,Wigmore had criticised any rule that cornoboration 'was necessary in respect of identification in the following terms : "Acapable judiciary, and an effective jury system (both depending upon a conscientious citizenship and a sound condition of politics), are in the end the only real safeguardsof an innocent man" (Vol. 7, S. 2044, page 286). (23) In Arthurs, the House of Lords had, in the passage quoted above,said almost the same thing. It is worth repeating : "IT is not contended that it should be laid down that evidenceof visual identification must be corroborated" (57 Cr.Appeals 161, 168). (24) After setting out the above observations of Wigmore, Wall agreesthat there is "much truth" in the above statement. He adds, however,that "a capable judiciary, when it recognises so serious a problemas that of identification, may deem it wise to require corroborationof that type of identification evidence which experience has shownto be the most dangerously unreliable". (25) The long excursion into this interesting legal area, of utmost importance in criminal trials, serves to remind us of the dangers involvedand yet, at the same time, of the danger of adopting any rigid andpreconceived approach. The value to be placed upon the evidence ofwitnesses who identify persons previously unknown to them woulddepend on so many factors, which can not be exhaustively enumerated :what is considered sufficient and safe in one cgse may not be so inanother even if it is nearly of the same kind. The following observationsin Arthurs may well serve as a sample :
"THEjury were told that, even if Constable Spiers was satisfiedin his own mind that he had identified the accused, hemight have made a mistake. So there were very many matters to be considered. Was the light sufficient to enable theconstable to identify the accused as a person who threw petrol bombs ? If the only light was the light that came from the fire in the building or from the fire from the wicks ofthe petrol bombs, was that sufficient to enable the constableto identify the accused, even allowing for the acceptedfact that the constable knew the accused well ? Was thedirection of the flames such as to make it possible for theconstable, at the point where he said he was, to identifythe accused ? Could the constable see properly through thebarricade ? Did he make a real and true .identification ?
HADthe accused in fact left the barricade before the constable went to it? To these various questions the jury wereinvited to give their consideration".
(26) The contention, therefore, that regardless of the quality of the witnesses who so identify, the safety regarding which may be assured bythe kind of opportunity they had to identify the culprits, the light available and the duration of time they had etc, and the bona fides of The police in seeking assurance by asking the concerned witnesses to identifythem before the trial after they had refused to participate in an identification, the whole of such evidence (merely on account of the risk inherent in an exercise of that kind) should be discarded seems to havenot much to commend it. "That would mean that regardless of the contextsuch cases are fore-doomed to failure a result which more recent cases,in particular, wish to avoid. The progression of the law relating to thisaspect does serve to highlight the safety, in respect of such identificationlying with Judge (fortunately in India this is not complicated by a jurytrial) ; as Hall put it his 'capability'. Juris-piudenoe, which is afterall a higher form of prudence, may require that, at least in difficultcontexts it may be wiser to look for corroboration.
(27) In the case on hand, we have to remember that on 25/12/1973 the concerned witnesses had an opportunity of seeing the appellants and Public Witness 1 at the Dev Nagar police post but for this reason alonethe entire evidence does not. have to be rejected out of hand. Here wasno hole and corner affair; this was done openly. Copies of the statements of the concerned witness under Section 161 Criminal Procedure Code . (1973),disclosing such identification, had been supplied to the accused. Wehave been impressed by the evidence of P.Ws. 2 to 6; it is not as ifdespite the opportunity they had on 25/12/1973 all of themhad identified all concerned, the details pertaining to such identification have already been noticed.
(28) In the net analysis it appeared that some of the learned counsel torthe appellants. Mr. R. K. Garg, in particular, endeavored to relyupon certain statements under S. 161 Criminal Procedure Code ., almost as substantiveevidence in the case, without confronting the witnesses about them this is especially so in case of eye witnesses (P.W.2 to 7) .So far isSunil is concerned, he has been identified by all the Bank employes(P.Ws 2 to 6) but not Public Witness 7. Public Witness 2, in addition to P.Ws 3 to 7was able to identify Shahwar, who was occupying the driver's seat inthe bank van ; at the time of occurrence Shahwar was having droppingmoustaches like Chinese, long side whiskers and long head hair ; he wasalso putting on coloured glasses as he appears in the photo (Ex. P.W.I/P) ; at the trial, however, he was nursing a beard, which he didnot have at the time of the occurrence. P. W. 2 was also able to identifySunil and described him as having long head hair, long side whiskersand moustaches of full (not short) size as they appear in the two photographs (Exs. Public Witness I/Q and Public Witness I/QI). During the cross-examinationon behalf of Sunil Public Witness 2 added that the person who had the revolver(Sunil) was about 25 or 30 years by appearance ; he was only questionedabout his omission to tell the police about his having long side whiskers.He also admitted that in respect of Shahwar and Sunil he had describedthem as being strongly built ; though Shahwar was appreciably stouterit was by no means a wrong description of Sunil. Whether Public Witness 2 hadreferred to Sunil having moustaches at all and even if he did not whatimpact it has on his identification of Sunil has been already discussed ;it was explained even if there was any infirmity in Public Witness 2's identificationof Sunil the same did not affect the identification of Sunil by those whodid .There was no cross-examination of Public Witness 2 by Shahwar concerningomission by him, to state any of the facts, or contradiction saying anything differently.
(29) The above analysis partaining to the identification of the appellantsshows that everyone of them identified only to the extent he could;this is what makes their evidence appear so natural. No one speaksabout all the culprits or of all the physical features. It does not appear,therefore, that there is anything to lessen the quality of the identification ;three is mutual corroboration among them. It seems to us that theabove is especially valuable the naturalness of identification. The opportunity that each one of them had to identify them whenever theydid, was indeed sufficient; P.Ws 2 to 4 among them were able to seewhom they did for a longer duration-5 to 6 minutes the time Public Witness 7had to identify those whom he did and the distance from which he identified were both sufficient. Regarding the participation by each one ofthem, as spoken to by Public Witness I, there is ample corroboration to be hadfrom the evidence of P.Ws 2 to 7. There is, therefore, hardly anysubstance in the criticism of Mr. Garg that then-identification was poor'to start with and became hundred percent good after the exposure ofthe culprits to them at Dev Nagar Police post on 25/12/1973.As the above discussion shows it was not "poor" to start with; it didnot become "hundred percent good" after 25/12/1973, because none of the witnesses identified all the appellants. The abovecriticism also ignores the extent to which the said evidence corroboratesP.W. 1 and the ample corroboration, aliunde. there is.
REFUSALto participate in the identification parade fixed for 18/12/1973.
(30) The refusal to take part in the identification parade, arranged for 18/12/1973, much before they saw them at Dev Nagar PolicePost may now be considered in some detail.
(31) It is worth-recalling, in the first place, that the suggestion made concerning the above said witnesses being shown to them at Bhopal, theirhaving been taken to Bhopal and brought back by air along with theappellants to Delhi, are destructive of the suggestions that V. Jaggi wasshown to them at about the same time at Delhi soon after his arreston the 12th. The suggestions made on behalf of the other appellantsbeing identified at Bhopal are also of the same kmd.
(32) Secondly, sufficient precautions had been taken, as already noticed,to prevent the appellants and Public Witness 1 being observed by the witnesses inthis case; these precautions have been spoken to by a large numberof witnesses, namely, P.Ws 110, 115, 136, 140 and 142. P.Ws 82,III, 136, 140 spoke about Ravi's face which was muffled even at theKilol Cafeteria along with the rest, continuing to be muffled even whenhe was taken to his house by the police. P.Ws. 34, 61 and 81 had spoken to Public Witness l's face being muffled when he took the police party toP.Ws 34 and 67 and point it out leading to the seizure of the revolver(Ex. P. 9). The fact of Shahwar's face having been muffled was statedby P.Ws 98 and 115. Sunil was taken to the Jhoomri Talaya policestation at about 6.10 a.m. on the morning of 12/12/1973, andwas kept there till 11.15 a.m. from where he was taken to the house ofSri Krishan Dawar from whom a sum of Rs. 50,000 was recoveredfrom inside a brief case (Ex. P. 7), and later to the Canara Bank,Bhopal. During the former occasion P.Ws. 37 to 39 and 80 had seenSunil with the muffled face; P.Ws 40 and 42, who are both independent witnesses, had spoken to Sunil's face also having been muffledwhen he was at the Canara bank to point out Sunil's locker, fromwhich Rs. 65,000 were recovered.
(33) The A.D.M., Bhopal (P.W. 94), who had allowed an interview toShahwar's lawyer, also spoke about the faces of Public Witness I, Sunil, Shahwarand Ravi being muffled ; there was no complaint to Public Witness 94 of the appellants' faces being unmuffed. The persons (P.Ws 88, 136 and 142who were in the aircraft in which the above four culprits (other thanV. Jaggi) were brought to Delhi had also seen the faces of all the fourof them being muffled.
(34) P.W. 1 and Sunil had admitted in their written representations that they were muffled ; the latter had particularly mentioned about mufflingof faces till they landed at Delhi. None of them had complained to- the Chief Metropolitan Magistrate Mr. V. B. Andley (P.W. 102)about unmuffling at any time despite Public Witness 102 also (like Public Witness 94)instructing them to keep their faces muffled till the identification paradewas held. P. W. 142 had also spoken about this fact. The JailorCentral Jail, Tihar, (P.W. 87) has also spoken about the appellants(except V. Jaggi) who were brought from Bhopal having their facesmuffled when they were received in the jail, after being produced byP.W. 142 and remanded to judicial custody. The version of V. Jaggithat his face was unmuffled before he was taken to Mr. R. L. Guptahas already been rejected.
(35) All the above facts had been spoken to by Public Witness 1 himself. Hestated that their faces were kept muffled throughout; they had notgone to Budha Jayanti Park but were taken from the airport toP.W. 102 and from there to the Central Jail, Tihar.
(36) Refusal by the appellants to participate in the identification paradeto be held on 18/12/1973 was unjustified. The followingobservations of Chandrachud, J, speaking for the Supreme Court inMulkh Raj v. Delhi Administration seem appropriate in this context : "IT is clear that the appellant was aware all along that hisyoungest brother who was living with him was murderedin his own house. And yet the appellant neither madeInquiries about the circumstances leading to the tragedynor did he indeed go to his house to find out for himselfas to what was the real truth. In this back-ground theappellant's refusal to participate in the identification paradeor to give specimens of his foot-print.
(37) We are reserving for later discussion the evidence of Public Witness 1. Butit may be worth-noting even in this context that we are not at allimpressed by the argument that Public Witness 1 has been tutored to give thesedetails suit the prosecution case. We are in complete agreement withthe learned trial Judge that Public Witness 1 would not have been in a positionto give the detailed version he has given unless he had himself beena party to the conspiracy and execution as explained by him at suchlength. We ourselves perceived the difficulty of even setting out themass of facts, even after the hearing was over. The decided cases,listed before us (of which it is sufficient to cite only Muthuswami versusState of Madras (A.I.R. 1974 S.C.4) dealing with confessional statements by accused are not quite useful while evaluating anapprover'sstatement. When the accused makes a long statement, where he canindulge in his own flight of fancy, he cannot be tested by cross-examination ; but the approver, whose statement, if it has to be useful, tocontorn to the structure of the prosecution case and be corroboratedin material particulars, is often subject to the closest and minutecross examination; it is also made an oath.
(38) We only wish to add, to what the learned trial Judge has said,that the fact of Public Witness l's statement having been recorded continuouslyfor long hours (as requested by him owing to the situation in whichbe seems to have been) is not a factor which militates against thereality or genuineness of his statement ; it probably augments the weightto be attached to it. To these aspects, and more, we shall (as we havesaid) revert later.
(39) We shall now turn to a- few major aspects of the case. Ravi Along with Sunil and Shahwar were diopped earlier at Thompson Road;they were to begin operating as soon as the bank van was stoppedby the Ambassador car slowing down ahead of it; Sunil and Shahwaralone, among them, had gone into action; Ravi had done nothingthen, even though, according to plan Ravi had to snatch the guard'sgun Public Witness 1 and V. Jaggi were in the Ambassador car when the bankvan was stopped. Public Witness 2 could, in the very nature of things, notonly look at the two main actors, Shahwar and Sunil, but also easily remember them. Public Witness 2 had also not failed to notice another vehicle stopping ahead of the van for be had referred to this in Ex. Public Witness 2/C,but he also added that he could not observe the other two personssitting inside it. But later, at the place where the boxes were lifted)he saw was a "white Ambassador" car. Persons speaking about whatthey see during the course of a quick-moving and shocking event arcrarely in a position to mention by themselves aH the details soon afterwards ; they are able to recall them only gradually as and when theycome back to normal. Soon after the van slowed down (by reason ofthe car abead stopping) an explosion was heard and the van alsostopped. It is not surprising that even the driver had missed the significance of the white Ambassador car being ahead of the van; cangoing ahead of the van in such a busy locality as Thompson Roadare not likely to be particularly noticed in the absence of anythingspecial to attract attention. All that the driver could say in the circumstances was his stopping the van and coming out as soon as the souldinside the van was heard. This would be the natural instinct of anydriver. When he looked back he found blood coming out the mouthof gun man. He found a person standing close by. This was obviouslyShahwar. The driver said that he had caught hold of that personthough some othera say that the other person had caught hold of thedriver; it may well have been both, as noticed already. It was at thatpoint of time that the driver was shot at. He could only identify theperson who shot and the other person whom he caught hold of beingmone-an expression meaning non-Sikh. Having been seriously bound-ed the driver was not in a positoin to make a detailed statement; hiscondition was then critical according to Dr. P. N. Gupta (P.W. 86).
(40) The comment of Mr. Garg that reading the dying declaCration ofthe driver (Ex. Public Witness 86/B) together the ruqa (Ex. Public Witness 2/C)given by Public Witness 2 it is destructive of the prosecution case against Shahwar has nothing to commend it; this was only an attempt to blow up,out of all proportion, the brief statement which alone the driver wasable to make prior to his death and the inability of Public Witness 2 to mentionthe hulia of any other than Sunil and Shahwar. We should havethought that, if anything, the hulia being given in respect of Shahwar(in addition to Sunil) would perhaps make the prosecution case againstShahwar only stronger; even later in court Public Witness 2 did not identifyany other. Mr. Garg, appearing for Shahwar, stressed with all hismight the fact of the driver not having stated details P.Ws. 5 and 6had referred to a fair complexioned and tail person (Shahwar) catchinghold of driver's hand and to the attempt made at snatching-the obviousreference here is to snatching the key of the van. As already explainedby us, we are unable to see any absurdity or even contradiction. P.Ws.5 and 6 must have taken sometime at least to reach the right (driver's)side of the van after getting down from the left and before the driver,as he had stated in Ex. Public Witness 86/B, caught hold of Shahwar aftergetting down from the van, probably under the impression that Shahwarbad something to do with the explosion that was heard impelling himto stop the van. It is true that the driver could not, at that stage,have the faintest idea of the significance of the Ambassador car stoppingahead ; before he could see the car moving later and stopping at theentrance to the lane he had been shot. Public Witness 2 could only see, as heclaims, the driver falling down on Thompson road; Public Witness 2 was sittingin the van on the left side, facing that (right) side of Thompsonroad. In other words, Public Witness 2, while giving Ex. Public Witness 2/C, couldonly say that he suddenly heard the sound of explosion (dhamaka)and the gunman was seen injured on the face from where blood wasoozing; the driver opened the door of the van and got down; anarmed man (Sunil) opened the rear door of the van and aimed thefirearm against them and threatened them; later the other man (Shahwar) came to the steering of the jeep and drove the van to the secludedspot in Barren road. It is not as if Public Witness 2 did not have sufficient opportunity to see Shahwar, whom he had no difficulty in identifying-the strength, in a sense, of Public Witness 2's evidence is that he identified onlySunil and Shahwar. He had both plenty of time and opportunity to seeShahwar who drove the van from Thompson road to the secludedspot-the duration being about 5 to 6 minutes. There was no partitionbetween the driver's (front seat) and where P.Ws. 2 to 4 and thegunman were sitting ; Public Witness 2 could, from where he was sitting, clearlysee Shahwar driving the van without any difficulty and from such ashort distance-the photograph Ex. Public Witness 24/E4 in particular, showsthe interior of the van in such a manner as to bring this out clearly.P.W. 2 could also see Sunil clearly because he was the one who openedthe rear door of the van, after the gunman was shot and the vanstopped; he was also aiming the firearm at P.Ws. 2 to 4, who werethen inside the van, after getting Sunil into the van from the rearand threatening them not to shout or to look till they reached thesecluded spot when the van stopped at the secluded spot ; it was Sunilwho pointing the revolver at them asked P.Ws. 2 and 3 to transferthe boxes to the Ambassador car. The opportunity that Public Witness 2 thushad to identify both Sunil and Shahwar was thus sufficient; he was aresponsible officer of the Union Bank of India; the quality of hisidentification of both of them. was indeed very high. It seems to usthat regarding both Shahwar and Sunil (despite the question whetherP.W. 2 had referred to Sunil's moustache or not) is really high, of suchan order than a conviction of both of them merely on the basis of hisevidence would be quite safe; it is amply supported, in any case, bythe evidence of Public Witness 1 (as indeed Public Witness 's evidence concerning theirparticipation is supported by Public Witness 2's evidence) and so many othercircumstances which seems needless to set out here.
WHETHERthere were four or five culprits ?
(41) The debate whether there were four or five culprits--apart fromMr. Garg's effort to queer the pitch by introducing the theories ofthere having been more, at least one more, if not two, along withP.Ws. 2 to 6 in the van at the time of occurrence and one or moreamong P.Ws. 2 to 6 being privy to it (without any the least suggestionin this respect or warrant)-was possible until five of them, the appellants and Public Witness I, were asked to be identified by P.Ws. 2 to 7 atthe Dev Nagar Police post on 25/12/1973. Mr. Jethmalani,however, made the point that it was possible for the concerned policeofficials to have fixed the number as five even by reading the statements of the witnesses recorded under section 161, Criminal Procedure Code . Afterhaving given the contention of Mr. Jethmalani our most careful attention it seems to us that Mr. Jethmalani assumes a kind of insight ontheir part which may be easily possible by hindsight but not byforesight. The concerned eye-witnesses, who had been examined soonafter the occurrence by the police, themselves expressly stated that they came to know the fact of there being five culprits (not fourmerely) only when they saw all of them at the said outpost on 25/12/1973. It is important to note that the fact of suchidentification by P.Ws. 2 to 7 was not elicited during their chief examination; the details concerning the same were elicited only during thecross-examination. The fact of such identification was not, however,kept back by the prosecution because copies of the statements of theconcerned witnesses regarding such identification had been supplied tothe accused under section 173 Criminal Procedure Code . It was in this manner and forthe said reason that the details regarding such identification were elicitedfrom the concerned witnesses during cross-examination. It was onlynatural that no one could make sure (even if there was at least somesuspicion concerning five, not merely four, culprits being involved. Itwas plainly admitted by the concerned police officials that even whenthey were at Bhopal between December 5 and 10, 1973, they did notknow about the involvement of a transport carrier of Delhi (V. Jaggi)in this case; it is also worth recalling that the search warrants wereobtained at Delhi on the 10th only in respect of the appellants otherthan V. Jaggi, and Public Witness 1. There were, as already noticed to someextent, a few inherent difficulties in the case. Ravi had played practically no noticeable part in the occurrence at Thompson Road; Public Witness Ihad removed his turban and put on a handkerchief on his head, (Inthese modern days especially when a large number of youngmen growbeard and also have long head hair) merely because a person hadbeard (as Public Witness 7 said Public Witness 1 had) one could not make sure that theperson was a Sikh. The vernacular expression "Mone", generallydenote a non-Sikh-a clean shaven person as distinct from a Sikh-perhaps also added in its own way to the other difficulties in thisrespect. One might in this-what we described earlier as a musicalchair, situation try to take advantage by making it appear that he was,among five culprits, the fifth man : It is small wonder that the wirelessmessages flashed soon afterwards (repeatedly) were based on the ruqagiven by Public Witness 2 from which the presence of four, not five, couldalone be spelled out. Even before us it was suggested on behalf ofRavi that his participation in the occurrence had not been made out.Mr. Gaig contended that despite the recovery of nearly four lakhs(assuming it to be true) it might still be a case of his brother (SharadKapur, who is said to have brought it along with Shahwar from Delhito Bhopal by train) having kept the said amount there but it is inevidence that Ravi was also there when Sharad brought the moneyto 30 Civil Lines besides Ravi having disclosed to the police that hehad kept it in the office table drawer and not only without any explanation but also choosing to deny the recovery altogether.
IT is seen from the judgment of the learned trial Judge (para 647)that it was the contention of V. Jaggi's counsel that V. Jaggi's namewas later on added to make the number of culprits five. Beforeus it was contended by Mr. Garg that Shahwar's participation in thecrime had not been made out and that this could not be said to beestablished against Shahwar merely from the use of the jeep since hemay at best be entitled to joint use of it along with the rest of themembers of his family, including his brother Waqar Muhamad. Sofar as Ravi is concerned it was the evidence of Public Witness 4 which helpedfix his presence; P.W 4 identified Ravi as the person who got intothe bank van at the secluded spot-probably to check whether anythingelse than the two cash boxes which were being transferred from thevan to the car was inside the van-through the rear door and got outof the front driver's door by stepping, as he crossed over, on the frontseat leaving a blood foot-or-foot-wear print on the front seat.All these had to be pieced up only later to solve this puzzle of fouror five-this was so easy of solution when all the five had not onlybeen assembled at Dev Nagar Police post on 25/12/1973,but also identified by P.Ws. 2 to 7 to the extent and in the mannerthey did. The solution had not been rendered easier even by theevidence of Public Witness 7, who did not identify Sunil. The difficulty whichwas thus experienced in this regard does, in a sense, provide somesupport for the view that there had been no exchange of informationamong the concerned witnesses (or that they had compared notesamong themselves) when they were initially examined by the police ; ifthis had happened then the difficulty might have been solved to someextent but in no sense these could have a final or certain resolutionuntil 25/12/1973.
(42) In the above light an effort will now be made to analyze the evidence pertaining to wireless messages sent by the police.
(43) Inspector Tek Chand Chopra (P.W. 142) was cross-examined atlength about the wireless messages that were sent by the police subsequent to the occurrence, referring only to four b,ut not five culprits.Mr. B. L. Kaira drew our attention to Ex. D.W. 21)A, a messagedated 29/09/1973, disclosing that one of the assailants had'a beard and long hair, with a handkerchief on his head ; this was toemphasise the fact that this message contained a reference to Public Witness I, even this was not enough to suggest either that the culprits werefive in number. The Evening News dated 28/09/1973. (Ex.P.W. 1/2) did contain a report that one of the culprits was a Sikh,but it has not been explained on what material this publication wasmade; the concerned reporter could have made ?such an Inference himself or even got it from any passersby unknown even to the police.These aspects not being clarified one can only speculate about it.P.W.1 may have seen the press report on this particular before hemet Public Witness 33 that very night. probably prompting him to ask Public Witness 33on the morning of 29th whether the newspaper he was having with him contained any mention of a Sikh being involved; this again canbe nothing more than speculation; even without adverting to any ofthese, being specially vulnerable to easier identification, being the onlySikh among the culprits, it is easy to account for his nervousness whichprompted him to ask Public Witness 33 whether the newspaper contained anysuch report. Such reactions and impulses are of the moment. Reference is made here to some of these only to indicate how the evidenceof Public Witness 33 (also of Public Witness 1) to the above effect cannot be consideredto be so improbable as contended for the appellants. It is admittedby Public Witness 5, for instance, that he only made sure that one of the culprits being a Sikh only on 25/12/1973, at Dev Nagar PolicePost. This indeed was so; despite Public Witness 7's reference to beard andlong hair he could himself make sure of it only on 25/12/1973. All these, however, hardly bear on the point, whether the culprits were 4 or 5. The earliest wireless messages normally follow whatis contained in the F.I.R. which it turns was based on the ruqa givenby Public Witness 2, who saw only two culprits occupying the front seat of theAmbassador car in addition to two others whom he identified as Suniland Shahwar. Only when Public Witness 1 came out of the car to scare awayP.W. 7 that Public Witness 3 (who was following Public Witness 2) got an opportunityto see Public Witness 1 ; When Ravi was entering the Bank van through therear door, he was seen by Public Witness 4 (who was sitting inside the van inthe rear); Public Witness 7, who was standing in the Ahlyabai Road, to the leftof the Bank van, saw Ravi standing with a gun. Neither Public Witness 2 norP.W. 3, who were engaged in transferring the boxes, saw Ravi. Thevan and the car were parked within a distance of about 4 feet fromeach other; the dickey of the car had been lifted; the rear door of thevan was open-at an angle of 90ø. P. W. 7 did not see Sunil. as ithas been explained already. There was no difficulty, however, inP.W. 7 seeing Shahwar the tallest of the lot; he could identify all exceptSunil. whom he did not see. Sunil also was at the police station then,but Public Witness 7 did not identify him. This also supports our view thathe is a witness of truth who did not wish to identify any one he didnot see. When Public Witness 2 gave the ruqa he had not discussed it with anyother: notes had not been compared by them, among themselves orwith P.Ws. 5 and 6.
(44) The wireless messages which are flashed by the police and repeatedintermittently in such situations are usually on the basis of the F.I.R..without incorporating the additional material that becomes availablefrom time to time during the progress of the investigation. Public Witness 142made the specific statement, during cross-examination, that prior to 10/12/1973 they did not know the number of culprits to befive; only when they got some concrete information there was a breakthrough, resulting in the arrest of the appellants (Except V. Jaggi)and Public Witness 1 at Bhopal on December 11/12, 1973 and of V. Jaggi atDelhi soon thereafter (on 12th). We have necessarily to go into thecredibility or otherwise of the testimony of the eye witnesses as wellas Public Witness 1 and consider to what extent their evidence is corroboratedin material particular which need not be impaired in any way by theearliest wireless messages referring to 4 culprits, none of them being aSikh. What is being explained here is that there was no improbability inthe investigating agency entertaining the impression, to start with,that four culprits were involved; no significance can be attached tothe offence of robbery (not dacoity involving more than 4) beingmentioned in the earlier police proceedings, no significance cam, therefore, be attached to the statement in Ex. Public Witness 142DA (printed asitem No. 846, Vol. V-A, p. 292 containing supplement No. 2 toD. P. B. No. 215 dated 28-9-1973) describing "robbery cum murder"having taken place at Thompson Road. This was obviously on thebasis of Ex. Public Witness 2(C which merely referred to two persons in theAmbassador car and the descriptive patrticulars (Hulia) ware ofShahwar and Sunil alone. Ex. Public Witness 2/C dontains the following statement : "The description of the assailants is still not known. They werenon-Sikhs". The message requested that "a sharp look-out may bemaintained aind if any clue leading to the tracing of the case is foundimmediate information be passed on to the Superintendent of PoliceCrime and Railways Delhi by the quickest possible means". The reference made by the driver to 'Mone' only shows that they did not havelong hair. The driver did not have any opportunity to even look atP.W.I who was sitting in the front seat of the car ahead of the vanbecause he did not realise the importance of the car at all. The caseof Public Witness 1 having been one of the persons concerned in this incidentcould not be thus falsified. The credibility of Public Witness I, and it so to what extent his evidence could be acted upon, has to be considered opother grounds. In the light of the above discussion-of the evidence ofP.Ws.2 to 7, leaving for later discussion that of Public Witness I, it will beuseful to turn our attention to a few major aspects of the case.
(45) The first major aspect pertains to the question whether Ex. P. 9 wasthe revolver used in this case. i.e., whether the two crime bullets(Exs. P. 359 and P. 429, respectively) which pierced through the, .gunman and the driver respectively fired from Ex. P. 9 ?
(46) It seems to us that the revolver (Ex. P. 9, 455 Webley Scott,belonging to Rameshwar Public Witness 34), has been made out to have beenthe fire-arm from which the two bullets (Exs. P. 359 and P. 429) werefired. Doubts were sought to be thrown on the evidence of the AssistantDirector, Ballistics, Dr. G. R. Pershad (P.W. 109) who gave, as hisfinal opinion that the two crime bullets were fired from Ex. P. 9 but noother fire-arm. When Public Witness 109 gave his earlier opinion Ex. P. 9had not been sent to him. Doubts were sought to be thrown on thefinal opinion of Public Witness 109 that the two crime bullets were fired fromEx. P. 9 in two ways :-Firstly it was pointed out that according toP.W.1 he had borrowed Ex. P. 9 from Public Witness 67, the son of Public Witness 34,with the holster Ex. P. 10; Public Witness 67 said that Public Witness 1 had borrowed therevolver without the holster. But Public Witness l's evidence on this point issupported by the seizure memo (Ex. Public Witness 34/B) which specificallyrecords Ex. P. 9 having been inside Ex. P. 10 and that of Public Witness 34that Ex. P. 10 (the bolster) in his. Public Witness 1 had kept the holster wrappedin paper with the revolver inside it under his thighs when he wasdining. It does not at all seem likely that the revolver would have beenloaned without the holster, if there was one. As the subsequentstatement of Public Witness 1 would show that he was in Delhi, not at Bhopal,on 30/09/1973, the date which 1aa& 2nd teatve applicati0n (Ex.P.W.110 bears, yet we find Public Witness 67 making a few statemente fromwhich an inference was sought to be drawn that daring the datesmentioned by Public Witness 67, Public Witness 1 was in Bhopal on that day. Moredetailed reference will be made to this aspect later while discussingthe evidence of Public Witness 1 ; it has become necessary to referto it even here in order to indicatte how P.W 67,s evidence m this refrpect has to be appreciated. Secondly doubts were also thrown onthe testimony of Public Witness 109 about the possibility of the two crimebullets having been fired from the same revolver, namely. Ex. P. 9.
(47) So far as the first point is concerned, it seems to us, on a totalappreciation of the relevant aspects, that the omission to refer toleather case on the part of Public Witness 67 might well be due to forgetfulnessor it may even be for some other reasons upon which it is only possibleto speculate. The trial Judge thought that Public Witness 1 took Ex. P. 9 without .Ex. P. 10. The question whether Public Witness 1 borrowed Ex. P. 9 along withEx. P.IO and returned it along with Ex. P.IO has a bearing on theappreciation of the testimony of Public Witness 1; that there is mention ofEx. P. 10 having been seized along with Ex. P. 9 and Public Witness 67 claimedEx. P. 10 as his own does lend support to Public Witness l's version-thoughthe version given by Public Witness 67, in this aspect, is different. Public Witness 34 sworerhat Ex. P. 10 belonged to him. It does not admit of any doubt whateverthat at the time of the seizure Ex. P. 9 was inside Ex. P. 10; this hasbeen recorded in the memo Ex. P. dated 12/12/1973. IT is not likely that Ex. P. 9 was taken without Ex. P. 10. Dhananjay Singh,(P.W. 81), an advocate practicing at Bhopal has attested Ex. Public Witness 34/B ; he swore that the revolver was in a cover when Public Witness 67 broughtit along with 23 cartridges. Public Witness 81 lived only about a kilometer awayfrom Public Witness 34; he was a respectable witness of the locality. No significance can be attached to Public Witness l'a omission to tell the police aboutthe holster when it is mentioned specifically in the seizure memoEx. P. 34/B. The learned trial Judge did not rightly attach any significance to the slight error in copying the number of the revolverwhich had been described as .455. The identity of the revolver asthe fire-arm used in this case unmistakably fixed by the clinchingscientific evidence (of Public Witness 109) regarding the two crime bulletshaving been fired from Ex. P. 9. This was specifically stated inP.W. 109's report dated 18/12/1974 (Ex. Public Witness 109-K paras4-5 of "Result", Vol. 5-A, page 150), though in his earlier reportdated 11/11/1973 (Ex. Public Witness 109/F Vol. 5-A pp. 142-145,@ page 143 of para 2 of Result). Public Witness 109 had merely said that thetwo crime bullets appeared to have been fired from .455 revolver(from the same weapon) having seven lands with right hand twistof rifling, though "a definite opinion could not be given for want ofadequate data"; it is worth repeating that Ex. P. 9 had not been madeavailable to Public Witness 109 then.
(48) We may now summarise the evidence of the Ballistic Expert(P.W. 109) concerning E. P. 9 in greater detail. He found Ex. P. 9to be in working order; on visual examination, its two consecutivechambers were found fouled with, burnt products of powder-thoughthe barrel was clean; Chemical examination of this fuel in the twochambers revealed that it was of black powder. Obviously the twochambers had not been cleaned after the two shots were fired; onlythe barrel appears to have been cleaned.
(49) The question put to Public Witness 109, to the effect that he did not preparephotographs of other test bullets because they were totally dissimilarto the two crime bullets was rightly denied by Public Witness 109; it does notreveal sufficient insight into how striation match is done. Besides beinga first class M.Sc. in Mathematics Public Witness 109 obtained a Ph.D. inBallistics; he had been working in the Centra] Forensic Science Laboratory, New Delhi for six years previously. During that period he hadexamined a number of cases of fire-arms and had been giving expertevidence in the Courts at Rajasthan and Delhi. He denied the suggestion put to him that Ballistic Science was not sufficiently developed asto enable identification of fired bullets from a particular fire-arm. Hisview is supported by the treatises on the subject, to which there is noneed to refer except that of Dr. B. R. Shafl-rna, who is himself an expert and had studied them.
(50) In Forensic Science in Criminal Investigation and Trials by Dr. B.R. Sharma (2nd Ed. 1977) the undermentioned observations occur :
"THEidentification of fired ammunition is always carried outby comparison with test exhibits. Ordinarily, two testcartridges are fired. But in the case of some fire-aimseven one cartridge may be sufficient. In certain high gradefire-arms the marks are not clearly imprinted, when evena dozen cartridges may have to be fired. The number oftest cartridges is not material. The limiting factor is onlythe clarity of the marks. If clear marks are obtained onthe first cartridge, ii is not necessary to fire a secondcartridge. Formerly if was suggested that a number ofcartridges should be fired and the test exhibits be studiedinter se to establish the thumb print of the fire-arm. It isno longer necessary because individuality of each firearmis established", Regarding how the comparison is done Dr. Sharma says as follows,on page 279 :
"THEcomparison microscope and other comparison devicesare useful and convenient but they are not indispensable.All comparisons can be made by an ordinary microscopeand a photomicrographic camera. A camera with bellowextension and close-up attachment can replace photomicrographic camera; if necessary."
DR.Sharma also points out (at page 278) that "comparison work isbest carried out with a comparison microscope. The instrument is infact a combination of two microscopes, where the images formed bythe two objectives are brought in fodus in the same eye-piece through*prisms". This is the same arrangement as for photography; the comparative study made visually is also recorded photographically for presentation in a court. Public Witness 109 compared carefully the rifling mark on thebullets of 8 test cartridges (C.7, C.9 to C.13, C.16 and C-17) with therifling marks appearing on the two crime bullets (B.C. 1 and B.C. 2;Ex. P. 359 and P. 429). All the close chatracteristics, that is, numberof land marks and directions of twist on these bullets were found totally. He selected three test bullets (C.7, C.16 and C.17) having thebest marks for "thorough" comparison with the two crime bullets. Therepetitively appearing characteristic marks in the land and groov&marks of the three test bullets (C. 7, C. 16 and C. I?) were found totally with those in the two crime bullets.
(51) It is worthwhile to set out what Public Witness 109 had stated in the further report (Ex. Public Witness 109/K) dated 18th Febrtiary 1974 :
"4.Out of the 23 cartridges of parcel 'B' of memo dated19-12-1973, nine .455 Kynech cartridges (marked C/7 toC/15) contained black powder.
THEbullets of these nine cartridges (C/7 to C/15) have somepeculiar characteristics which tally with these on the twobullets (marked BC/I and BC/2) mentioned in my reportof even number dated 8-11-73. This indicates that the twobullets (BC/I and BC/2) could come from two cartridgessimilar to the nine cartridges (C/7 to C/15) of parcel'B'.
5.The two bullets (marked BC/I and BC/2 contained inparcel No. 1) of memo dated 29-9-1973 and parcelNo. 14 of memo dated 30-10-1976 respectively have beenfired from the revolver (W/l) in question."
HEhimself explained during the course of his evidence (pafge 931Vol. II-A) that out of the total of 23 cartridges which had been sentto him by the police in a parcel which had been marked 'B' 9 of them(marked C.I, C.7, C.9 to C.13, C.16 and C.17) were tested by himfrom the revolver (Ex. P.9). One of them (C/l) misfired probablybecause it was old; the rest (8) fired normally. Two bullets of allthe 8 cartridges were recovered in tact in the bullet recovery box forcomparison of markings on them. The firing on all the 8 cartridges,which were cartridges of the same type as of the two crime bullets,were conducted from various ranges and their effect on the targetwas also observed in order to compare the range of the blackening andtattooing with those of tests conducted by him earlier with .455 servicerevolver using Indian ammunition. He selected 3 test bullets (C.7,C.16 and C.17) as having the best marks on them for a thoroughComparison with the two crime bullets B.C. 1 and B.C. 2. The repetilively appearing characteristic marks in the land and groove marksof the three test bullets were found to tally with similar marks appearing on the two crime bullets. He compared and matched the two crimebullets with the test bullets with the help of a comparison microscopein all possible positions. This enabled him to come to the firm conclusion that the two crime bullets were fired from the same revolver fromwhich the test bullets had been fired; the revolver from which allof them were fired is Ex. P.9; the two crime bullets even like thetest bullets-which he himself fired from Ex. P. 9, could not have beenfired from any other similar weapon. He took four photomicrographsof the two crime bullets, B.C.2 and one test bullet (C.7) in differentpositions of the test. The four photographs are Exs. Public Witness 109/J.I andP.W.109/J.4; the negatives are Exs. Public Witness 109/J.5 to Public Witness 109/J.8.The test firing with Ex.P.9 also gave results regarding range of blackening and tattooing which approximated with the results given by himin the report which was given earlier (items 4 and 5 of Ex. Public Witness 109/F).
(52) The bullets in question, both the crime bullets as well as the testbullets, were machinemade; the three knurled cannelure with theirparticular design were present on all the 9 bullets which were testfired. There was no doubt a possibility, which Public Witness 109 would not ruleout, that the same type of cannelure design was found on othercartridges of .455 made by other manufacturers also, but Public Witness 109thought that the design in this case was peculiar; he could not findthem on cartridges of about half a dozen other makes examined byhim in the laboratory. He did not consider it necessary to photographbullets of other makes.
(53) Despite the crime bullets being mutilated identification marks enabling comparison being made were still to be found. There could beabout half a dozen major points of similarities in two bullets firedfrom the same revolver; there could also be dissimilarities but theywould be only in respect of fine striations which come in the land andgroove marks due to rifling of the barrel. There were such dissimilarities in the case of the crime bullets in this case, but they had not beenmentioned by him in the notes becaluse such dissimiliarities would befound in all the bullets fired from a particular fire-arm. He had foundhalf a dozen fundamental similarities. The conditions such as werecaused in this case-such as blackening on skin and tattooing on theclothes-could, however, be present in the case of firing by yet anotherservice revolver. But no two barrels can cause the same striations sincethe fine microscopic striations inside the land groove-marks on thebullets, caused by randum microscopic irregularities in the bore ofthe weapon, were always different between any two fire-arms. Whenquesioned about the following differences in the photographs taken byhim in this case Public Witness 109 answered as follows : "IT is not there in the photograph of C.7. It is true that in photograph Ex.P.W.109/J.4, there is to be seen a white patchand, thereafter a crevasse and, therefore, a white patchin respect of BC/2, while there is no such patch orcrevasse in the case of C.7. Again said-white patch isthere to some extent but not the crevice. There appearsa long line obliquely in respect of C.7 in photographEx. Public Witness 109(J.4, while there is no such line in respect ofBC/2 in the same photograph. In photograph Ex. Public Witness 109/J-4, a number of dents are to be observed in the photographs of BC/2 and C.7 but these acre not identical. Inphotograph Ex. Public Witness 109/J-3, there are to be seen wherepatches in respect of BC/2 and C/7 but they are notidentical. In BC/2 there appears a line below the whitepatch but similar lines is (sic) not to bte seen in thephotograph of bullet C.7. The dark parallel lines in thelower portion of the bullet BC/2 in the same Exhibit, thelower lines is broken by a' small curve though its extensionline in the test bullet C.7 is not so broken. In Ex. Public Witness 109/J-2 there is a large dent on the bottom of BC/I, there isno lodge .throughout the bullet on the left side, while (sic)streak in the dark horizontal line in the centre of thebullet, there are two curves cutting each other. Identical,marks are not present in the test bullet C.7. There is ablack furrow vertically to be seen in C.7. This is not tobe seen in BC/I of the same exhibit. There is a dent tobe seen in C-7 which is not to be seen in BC/I sameexhibit. There are some bla'ck marks to be seen in C-7which are not there in BC/I in the same exhibit. Theidentical striations on BC/I and C/7 in Ex. Public Witness 109/J-2do not run in the same length in the photograph. Thephotographs are dissimilar in respect of the broad dissimilarities though the striations on -which the identity isbased are in identical positions as illustrated in the photograph'' (54) The opinion of Public Witness 109 that the crime bullets were fired from Ex. P.9 and not from any other fire-arm thus remaining unshaken; it is amply supported by the observations to be found in Dr. Sharma's book. It seems needless to refer to other treaties on the subject since Dr. Sharma has explained the position clearly after study of some leading text-books on the subjects. Dr. Sharma is himself an expert in this field. Our own visual comparisons made with the the help of the photographic striations match done by Public Witness 109 for presentation in Court agree with the fnal opinion of Public Witness 109. The most importantfeature of this case, therefore, is that the two crime bullets have beenestablished to have been fired from Ex. P. 9 at the gunman and thedriver of the Bank van and that Ex. P. 9 had been recovered fromP. W. 34 as a reslult of being pointed out by P. W. I; the informationconcerning the same was obtained by the police from Shahwar to startwith (vide Ex. Public Witness 82/H). We find it more convenient to discuss thelegal aspects pertaining to all the statements made under section 27 of the Evidence Act in one place; we shall do so later.
(55) In this context, it is convenient to deal with the evidence concerning the injuries noticed on both the deceased persons in the light ofthe testimony of Public Witness 109. Whereas Dr. Suman Sain (not examined)had found charring of edges of the wound, which she described asan entry wound on the left side,1 cm diameter and the wound ofexit on the right 2 cm long, Dr. A. K. Ghosh (P.W. 143), who conducted the autopsy, had stated that at the site of this wound therewas no tattooing and no blackening. But, Dr. Suman Sain did notfind any charring at the wound of exit at the back. Dr. A. K. Ghoshhad also agreed that there was no tattooing or blackening at the siteof this wound. Whereas Dr. Suman Sain had no difficulty in recognising the wound in the upper neck behind the mandible on the left sideas having charred edges Dr. Suman Sain had prepared the out-patientticket (Ex. Public Witness 2/F) pertaining to the gunman in the ordinary courseof business and falls squarely within 32(2) of the Evidence Act.Dua, C.J. (as he then was) held in Om Prakash vs. State (1969 Cr. LJ.250) that reliance on report of a doctor, proved by the Head derkof a hospital, could not be faulted.
(56) Dr. Ghosh said the wound on the left side had an irregulareverted margins, as distinguished from the smooth, inverted clean cutmargins of the wound on the right lower jaw. Broadly speaking, whileaccording to Dr. Suman's report (Ex. Public Witness 2/F), the wound on theleft side was the wound of entry and the would on the right side wasthe exit wound (this corresponds to the situation of the gunman sittingon the right rear seat of the van, his left neck facing the rear entrancewith a grill), it seems to be just the reverse on the basis of Dr. A. K.Ghosh's evidence. A difficulty which has, been caused, in addition to.P.W. 143 not noticing the charring of edges on the left side, is thathe described the left side injury alls being "everted" edges and the rightside injury having "inverted''clean cut margins. Dr. Ghosh had, however, described the direction of the injury being obliquely downwardtowards the left; at the same breath he stated that the injury on theright side had smooth inverted clean cut margins and the injury onthe left having- irregular inverted margins. According to Public Witness 109 thewound of entry would have cleat cut margins if the bullet hits the body-directly without hitting anything intervening. What is important in thisconnecton is Public Witness 109 had noticed blackening outside the grill; he wasof the opinion that the fire-arm was fired while it was outside thegrill. This should have been the case. If the bullet hit the grill beforeit hit the body of the gunman it would not be possible to expect cleancut margins on the left side of the neck; Dr. Ghosh had himself foundonly irregular margins on the left side. Even generally speaking themere fact of edges being everted or inverted would not be determinative. It seems a pity that Dr. Ghosh stuck to his view despite the abovefeature being brought to his notice. This is not the first time we finddifficulty in dealing with Dr. Ghosh's medico-legal testimony; we hadoccasion to deal with a somewhat similar difficulty caused by Dr. Ghosh'sevidence, which we discussed at great length in Tirlochan Singh v.Chander Badan Singh & Another (Cr. Appeal No. 323 of 1974 decidedon 5-3-1976). We are, therefore, led to seriously suspect Dr. Ghosh'sunderstanding of a situation similar to the one in the preseat case.We have here the advantage of Dr. Suman Sain having noticed the injury on the left being not only charred but having everted edges. IT is af pity that Dr. Suman Sain could not be examined by reason ofher being in England at the time of the trial but the Casualty Card(Ex. Public Witness 2/F) containing the above-said details in her handwritinghas been proved by Public Witness 2. What is still more significant is that atthe time Dr. Suman Sain saw Bansi Ram (gunman) she had noticedbleeding from) the "exit" wound despite Bansi Ram having been declared dead. This bleeding was noticed shortly after death. Dr. Ghoshhaving conducted the autopsy much later, he did not probably havethe benefit of this observation.
(57) Mr. Rajinder Singh, who argued the case for Sunil Batra with considerable ability, did not claim that this would make any other difference in the appreciation of the evidence of eye witnesses in this case ;he only urged that it might have a bearing on the question of sentence.We shall revert to this aspect finally.
(58) What seems crucial for the present discussion is the distance fromwhich the gunman was shot at. Public Witness 109 stated, on the basis of hisexperience during the test firing from Ex. P.9, that he could findblackening marks up to 6 and a faint blackening up to 9, appreciabletattooing up to 26* and feeble tottooing up to 36'. K charringwas noticed by Dr. Suman Sain on the wound on the left side of thegunman's neck the shot could have been fired within a distance of 6The clothes of the gunmain had also been sent to the Forensic Laboratory, but since his clothes did not come into contact with the bulletP. W. 109, could not find any bullet hole or gun powder deposits on hisclothes-a feature which was present in the case of the clothes of thedriver (Ram Niwas) on the basis of which Public Witness 109 could say thatthe shot must have been fired from within two to three feet distance.The iron grill on the back of the Bank Van and on the two glasswindow panes (with fissure fractures) could have been caused by firingby a .455 revolver from a distance of approiximately 3" and the samehitting the glass after piercing through the neck. The shot appeared tohave been fired at an angle 'of 40 degrees approximately, causing crateking of the window glass pane.
(59) The distance from which the gunman was shot can be conclusivelydetermined by the charring on the grill; the total distance between theend of the revolver and the left neck of the gunman should have beenless than 12". No distortion of such understanding (as above) is thuseven possible by reason of the manner in which Dr. Ghosh unfortunately chose to describe the injuries noticed by him in the post mortemreport pertaining to the gunman and also during the course of hasexamination.
(60) This also seems to be a convenient occasion to refer to the evidenceof P-W- 109 pertaining to the pistol (Ex. P-8) being in working orderor not. In his statement (Ex. Public Witness 82/K) Shahwar had disclosed thathe had kept concealed the pistol in the steel almirah of his house ; hehad taken the police party led by Public Witness 142 to his: house and took outEx. P. 8, which was seized under Ex. Public Witness 98/B on the night of12-12-1973 itself.
(61) Girdhar (P.W. 82) whose evidence was discussed earlier and foundacceptable had attested Ex. Public Witness 82/K but not Ex. -P.W. 98/B; he hadnot attested Ex. P.W- 98/B because after Ex. Public Witness 82/K was recorded,he was present when Public Witness 142 interrogated Sunil.and came to knowabout Rs. 50.000.00 being with Sri Kishan Dawar (P.W. 82 attestedthat statement. Ex. Public Witness 82/L, also); thereafter he went along "fqfttPhool Chand Jam, Sunil, Shabwar aad Public Witness 142 to ShabjahanbadPolice Station afid from there Public Witness 142 took Shahwar to his house;only Phool Chand Jain, net Public Witness 82 went along with them to Shahwar'ahouse. It may be noticed, m this context, that from the Kitol ParkCafeteria the appellant (except V. Jaggi) and Public Witness 1 were taken toGandin Nagar police statical and kept m four separate rooms. As thedisclosures ware being made by each, of them the others were informedabout it. It was Public Witness 140 who iafonaed Shshwar aboat therecovery of the huge amount from Ravi; it was thet thatShahwar disclosed (P. W. 82/H) about the revolver and some bulletsbeing returned to Public Witness 67. There is nothing surprising in Shahwaralso thinking that the game was up and he took the police party to hishouse and" produced the key from underneath the bed of his cot, openedthe steel almirah and produced the pistol. Owing to this taking place inthe middle of night no other public witness than Phool Chand Jain wasthere; Public Witness 82 did not go there because he felt tired. In Ex. 82/HShahwar is stated to be a resident of Bare Mahal ; the relevant seizurememo (Ex. Public Witness 82/C) of the same date mentions Shahwar as a resident of Nawab Manzil. Nothing really seems to turn upon the so-calleddiscrepancy between Bare Mahal and Nawab Manzil, though muchfuss seems to have been made about this during the trial ; the formeris the area and the latter is the house.
(62) Even the suggestion made to Public Witness 82 contained an implicit assumption. as the learned trial Judge pointed out (para 413), that Shahwar made disclosures statements but allegedly due to torture ; however,Shahwar later on stated to the trial Court under Section 313 Criminal Procedure Code .,1973 that the disclosure statements were manipulated as signatureswere obtained from him on blank papers. While according to Public Witness I, P. 8 was not in working order because the trigger, when pulled,would get jammed, Public Witness 109 found that the standard obstruction in thebarrel of the pistol was found broken ; this was probably to conditionthe pistol for firing the bullets. Public Witness 109 did not have any gas cartridgeof 8 mm to test-fire from the said pistol ; he, therefore, test fired a .32cartridge with bullet through the pistol to examine its firing condition.The pistol fired normally but the bullet got lodged near the obstructionbecause of its slightly bigger size; during this process, of testing it,the pistol got damaged. The firing pin, as it was seen during the trial,was cocked by drawing the slide and released by drawing the trigger.P.W. 109 had referred to these features in his report (Ex. Public Witness -109/M) ; he considered it to be a fire-arm as defined in the Arms Act(54 of 1959). For this reason, however, it cannot be said that Public Witness l'sevidence is contrary to that of Public Witness 109. By reason of the standardobstruction in the barrel of the pistol having been broken the personsconcerned (specially those not used to fire-arms) may have genuinelythought that it was not in proper working order. Probably under suchan (even erroneous) impression none of them evidently bothered further about it. The substance of the matter was that it was considerednecessary to have yet another pistol ; it may be recalled that Sunil hadsuggested the need for two revolvers or pistols to scare away people.Their intention, at least initially, was not to use any such fire-arm inorder to hurt or kill any one ; they were needed more for the purposeof scaring away people. There being no difficulty about the revolver,OD/78-4in the context of a person having a loaded revolver from which onecould fire, it was sufficient for some one disc to merely hold the pistolin hand to serve as an effective threat; even a toy pistol might haveserved the purpose in such context. Ultimately the pistol was not usedat all; it was probably inside Shahwar's pocket When the driver wasshot at and the key of the van snatched from him. This was a deviationfrom their original plan. Mr. Kalra rightly conceded that we dre notmuch concerned with the pistol because no on& has said that it wasactually used during the occurrence ; he also rightly conceded that the conviction of Shahwar under the Arms Act was not justified becausethere could 'be no trial at Delhi in respect of an unlicensed pistol (Ex.P. 8) having been seized from Shahwar at Bhopal; Public Witness 35 was notable to identify Ex. P. 8 as one of the two fire-arms used for targetpractice; Public Witness 1 alone, among the witnesses examined in this case,spoke of Ex- P. 8 having been with the culprits at Delhi, but sincea conviction under the Arms Act is for a separate offence, Public Witness l'sevidence in this respect is not corroborated.
(63) Indeed there were other deviations too, Vke Ravi not snatching thegun from the gunman and Sunil himself having to shoot not only thegunman but the driver also. These deviations from the original plando not destroy, or even detract from, the truth of the plan' as finallymade. It might well be that they overlooked a few things despite theirdetailed planning; they had been changing some of the details of theplan on more than one question-as for instance, the driver havingto be immobilised by a person other than the one who shot at thegunman; The. original plan) it might be recalled, was that Ravi was tosantch the gun from the gunman. This was in all likelihood to preventothers sitting in the van from using it- But Ravi failed to do so. Despitehis need to be near the gunman, when Ravi had failed' to snatch the gun,Sunil had himself to fire at the driver also in an effort to snatch the keyfrom him when Shahwar was tackling him. After shooting at the driverSunil was able to come back at the rear of the van and get into it withone foot on the rear step. But none of those deviations from the originalplan will help us discard the entire version concerning the occurrence,as Mr. Garg wanted us to do. We cannot overlook "the fact that theappellants seem to have been really no better than amateurs; thequality of their planning, or even any gap between their plan andexecution, will have no appreciable impact on the massive evidencegainst them showing their association with each other and participation in this crime.
(64) An asbestos sheet, not exhibited, according to th evidence orP.W.J and Public Witness 35 was used for target practice in the house underconstruction of V. Jaggi at Greater Kailash. According to P. W.1 whenSunil and Shahwar were practicing with the revolver (Ex. P.9), tiring oneor two bullets in the air, V. Jagg's friend Anil Kumar Pun (P.W. 35)came to the terrace. ?.W. 35 had met V. Jaggi earlier at ConnaughtPlace and had been told about his house being constructed at GreaterKailash. After Public Witness 35 was introduced to Ravi, Shahwar and Public Witness I, were present, Sunil and Shahwar fired at' the top corners of theasbestos sheet, measuring 3"' x 1",' placed outside the wall of the terraceof V. Jaggi's house. According to Public Witness ' 35, who had been treated ashostile by the prosecutjon, the revolver was not fired during the periodof 10 minutes or less that he stayed at the terrace; he had only seenthem opening the weapon. The need to cross-examine him was felt bythe Special Public Prosecutor primarily on account of his saying thathe assumed that there was target practice; this was obviously with aview to help the accused. He was confronted with his prior statementunder Section 161 Criminal Procedure Code . (Ex. P-W. 35/C) where he had staledthat they were "doing target practice" with the revolver at an asbestossheet when he reached there; he then agreed that he had stated so(this would be substantive evidence). The asbestos sheet was recoveredas a consquence of being pointed out by V. Jaggi on 23/12/1973,by Inspector Shamsher Singh (P.W. 140). Ex. Public Witness 35/A is the pointing out memo prepared by Public Witness 140. It is very important to note thatit was V. Jaggi who had taken Public Witness 140 to Public Witness 35 on the same day.
(65) In his report (Ex. P.W 109/K) Public Witness 109 could not find anydefinite evidence of firing by .455 revolver on the asbestos sheet.
(66) Though Public Witness 35 deliberately sought to introduce some doubts onhis earlier version to the police and even his own sworn statement,initially, before the trial court when he said that he presumed that therewas target practice, he was even trying to go back on what he hadtold the court himself. He had categorically stated that he saw Suniland V. Jaggi, whom he knew ; he was introduced to Shahwar, Ravi andP.W. 1 ; he referred to Sunil and Shahwar having fire-arms (revolver).These are the substantive statements that he had made before the courtwhich, if true, can be acted upon. This is not a case where there is anyneed to act upon any of his prior statement to the police as substantiveevidence (this is not possible). Some of his prior statements to the'police as well as those under Section 16 Criminal Procedure Code . are referred to forappreciating this evidence; the latter could to used, as a prior statement under Section 157 of the Evidence Act, for corroboration. Hisbias in favor of his friends, Sunil and V. Jaggi, which is only natural,is clear from the kind of answers he gave in cross-examination ; we havetherefore, only to appreciate the evidence of Public Witness 1 and Public Witness 35.shall discuss the evidence of P. W. 1 last. So far as P. W. 35 is concernedit has to be borne in mind that he was a friend Jf V. Jaggi and it isnot at all likely, therefore, that the prosecution would have attemptedto introduce falsely a friend of the accused to figure as a witness. Hisbeing a witness to the target practice would not have been known tothe police but for V. Jaggi taking P-W. 140 to Public Witness 35 on the 23rd ;P.W. 1 was in judicial custody after he was brought to Delhi fromBhopal and when examined by the police on 21st had stated aboutP.W. 33, not Public Witness 35. This by itself shows that Public Witness 1 was not makinga clean breast of everything, even from the time he was arrested-thisis only to be expected from any person who is arrested till he isoffered pardon.
(67) It has been now settled by the Supreme Court in Sat Pal v. DelhiAdministration (A.I.R. 1976 Supreme Court 296) that the evidence ofa hostile witness is not to be necessarily discarded but may be actedupon if, on a consideration of all relevant matters, his evidence couldstill be acted upon. The evidence of a witness should not be discardedmerely because he is crossexamined by the party that called him. Inparagraph 51 (p. 308) Sarkaria, J. explained that this was "for the Judgeof fact" to consider; treating the testimony "as washed off the recordaltogether" merely because he is crossexamined is not correct. "If the Judge finds", Sarkaria, J. observed, "that in the process the credit ofthe witness has not been completely shaken, he may, after reading andconsidering the evidence of the witness as a whole, with due cautionand care, accept it, in the light of other evidence on record, that partof his testimony which he finds to be creditworthy and act upon it. If,however, the witness stood squarely and totally discredited, his evi-dence had to be discarded in toto as a matter of prudence". The lawhaving been declared in such clear terms it is not necessary to considerthe other cases of the Supreme Court rendered prior to the said decision. It is sufficient to refer to a later decision rendered by Goswami,J-, speaking for the Court, in Bhagwan Singh, v. State of Haryana which merely reaffirmed what was held in Sat Pal ;he pointed out that there was no legal bar to such testimony being Considered if corroborated by other reliable evidence. On thispoint the most important fact to recall is that Public Witness 1 checked in at 6.10P.M. at Jeevan Lodge on the same day (September 27, 1973). Thissets at rest the doubt, if any, which Public Witness 35 sought to create-whetherit had become dark by then, including the absurd suggestion to him,which he accepted, that the sun set at 5 P.M. in September. There isa statement made under S. 27 of the Evidence Act by V. Jaggi on 15/09/1973 relating to the stay of Ravi, Shahwar, and Public Witness 1 in thehotels specified by V. Jaggi in that statement (Ex. Public Witness 127/A) inasslimed names. The admissibility of these statements will be discussedsubsequently. It will be sufficient to note in this context that this is byitself a very strong piece of corroboration of the evidence of Public Witness 35 ;Ravi, Shahwar, and Public Witness 1 all of them belonging to Bhopal, were inDelhi then, as stated by Public Witness 35.
(68) The testimony of this witness was vehemently criticised by Mr.Jethmalani on some other grounds as well. He pointed out, relyingupon the decision of the Supreme Court in Shivaji Sahabrao Bobadev. State of Maharashtra ,that when there is only one witness speaking about a matter of someimportance corroboration should be insisted upon as a rule of prudenceunless it happens to be "sterling testimony of a competent honest man."The simplest answer to this contention, as a fact, is that there is suchcorroboration in this case.
(69) A further criticise was that he was a silent witness ; in other words,in. spile of his having seen them having a target practice a day prior tothe present occurrence, which attracted lot of notice in the press, he didnot inform any one else or even the police about it. Even this contentionis easily answered, on the facts, because there is nothing to show thathe could have suspected the appellants and Public Witness 1 as persons who wereinvolved' in the said occurrence. He had only seen them having shootingpractice which went on despite his presence there; he even felt badbecause he was not even offered a cigarette. The continuance of theshooting practice even after he reached there was such as would notinduce suspicion; it might have, on the other hand, made Public Witness 35suspicious if it was stopped as soon as he came there. Public Witness 35 was noteven asked any question concerning why he did not report this matterto any one else or to the police. More over, it would not be propelto expect a friend of V. Jaggi to expose him and his companions evenin the event of his having had any suspicion, no basis having been laidfor thinking that Public Witness 35 had entertained any suspicion. The contentionof Mr. Jethmalani that Public Witness 35, equally Public Witness 33, were in the positionof accessories after-the"fact, has nothing to commend it. An accompliceis one who is participis cmninis; the only two permissibleextensions are when a person receives stolen property with knowledge.that it is stolen or has been shown to have participated earlier in asimilar criminal act from which an inference of guilt is possible (videR. K. Dalmia v. The Delhi Admn., -following1954 A. C. 378). These decisions cited by Mr. Jethmalani do notseem to help him. On the other hand, there is judicial dicta available insupport of the view that merely because a person does not disclose hisknowledge of commission of a crime he does not become an accessoryafter the fact. A decision exactly in point is State of Bihar y. SrilalMejriwal ; it followed Ismail V. Emperor AIR1947 Ubore 220), which, m turn, follower Mahadeo v. The King (AIR1936 P.C. 242). We were not quite aide .to follow Mr- Jethmalani whenhe said that the above decisions do not touch what is implicit in theconcept of an accessory-after the fact; he probably meant that thewitness had done something which in its very nature partook of somecriminal element ; we fail to see how, on their showing, Public Witness 33 or Public Witness 35 can be said to have done anything in the nature of what may bedescribed as a criminal act-to characterize them as participis crimims.
(70) P.W. 35 had himself stated that he did not subsequently see thefive persons, whom he saw in the terrace that evening before he wasexamined under S. 161 Cr- P. C. It was V. Jaggi himself who hadbrought the police to P-W- 3 5/12/1973. He was stayingonly 400 yards away from the house under construction ; earlier whenV. Jaggi had met Public Witness 35 at Connaught Place he had told him abouthis building a house in Greater Kailash. There was therefore, nothingunnatural in his having called on V. Jaggi when he and his companionswere on the terrace of his house under construction. Public Witness 35 did saythat it was V. Jaggi's house under construction; there has been nocross-examination on the aspect. It is, therefore, not possible to urgethat it was not the house of V. Jaggi as he tried to make it appear forthe first time when he was questioned (Q. 85) under S. 313 Criminal Procedure Code .It was also brought to our notice that P. W. 35 had stated to Public Witness 140on 23/12/1973 that he had gone to the house of V. Jaggi atGreater Kailash "probably 2 days before the bank van robbery case";but this was only a rough statement made from memory concerningan incident which happened 3 months prior to his examination by The police.
(71) We have carefully considered the evidence of Public Witness 35 as a wholeand also listened carefully to the criticisms made of his evidence bythe learned counsel for the appellants. Public Witness 35 had an obvious bias forV. Jaggi ; this was only natural since he was a friend : Public Witness 35, therefore, had no compunction in obliging the defense by answering in theaffirmative questions put to him in leading form ; some of the importantquestions and answers have been carefully recorded by the learned trialfudge as questions and answers. It is apparent that the defense counselwere anxious to put to him some questions tending to throw some doubtson Public Witness l's identity; Public Witness 35 seems to have fully acconamodated thedefense in this respect.
(72) The more important feature of Public Witness 35's evidence is thateven the statements which he had made in court do not by themselvesthrow: any doubt on the truth of his evidence. He did meet the appellantsand Public Witness 1 that evenig. It was not suggested to P.W, 35 that he didnot go there that evening. On the other hand, the following questionand answer would themselves seem to surest that he had seen a Sikhgentleman cm the terrace : "QUESTION:The Sikh which you saw on the terrace was onewith flowing beard, dark complexion and height about fivefeet and aged 17/18 years- Is it so? Answer : Yes, something like that." (Vol. Ii, p. 505)
P.W.1 had, in point of fact, no flowing beard; he was said to beof dark complexion while he was fair ; his height was said to be 5 feetwhile it was about 6 feet. Bat it was later elicited from him in crossexamination by Mr. Kaira that Public Witness 1 was shown to him in thecourt room and that Public Witness 1 was taller than himself-he was 5' II"(pages 532-33). Having agreed with the suggestion that Public Witness 1 wasaged about 17/18 years, when questioned further about this by Mr.Kaira, Public Witness 35 said that he could not say whether Public Witness 1 was olderthan himself (28 or 29 years). Public Witness 35 had mentioned his own ageas 26 years when he gave his evidence. His age was elicited in cross-examination to be as 17/18 years while he was about 28 years. Thesesuggestions were calculatedly put to Public Witness 35 in order to get the neededaffirmative answers from him. The strategy adopted is so obviousrevealing the extent to which Public Witness 35 was anxious to help the defense-even by going to ridiculous lengths.
(73) Mr. Kalra rightly contends that he is entitled to take advantage ofthe suggestion which was to the effect that a Sikh gentleman wasthere and that according to Public Witness 35 he was none other than Public Witness 1 ;P.W. 35 had identified Public Witness 1 at Dev Nagar Police Post on 25/12/1973, a fact brought out during cross-examination of Public Witness 1.fiven before the trial court Public Witness 35 had identified Public Witness 1 as one ofthe persons whom he met that evening. Public Witness 35 had gone furtherto admit, in cross-examination by the accused, that the photographsof all the accused were shown to him ; though he denied the suggestionput to him by Mr. Kaira that he had said so to accommodate the accused, he had also stated in the trial court (vide pages 505, 535and 586 of Vol. II) that he gave the descriptions of those personsto the police before he identified them at Dev Nagar Police Poston 25/12/1973.
(74) He described both the weapons which they had as "revolvers"though they were, even according, to him, of different sizes. It is justpossible that a layman may mistake a pistol for a revolver but thefact of the matter is that he did not identify Ex. P. 8.
(75) On balance, it does not appear probable that the police would haveinvented a case of a target practice, some of the appellants taking parttherein, and Public Witness 1 having been present merely for the purpose ofgiving an occasion for Public Witness 1 to speak about it also also get coroborationfor what Public Witness 1 had said by falsely introducing, as a witness, onewho was a friend of at least two of them-Sunil and V. Jaggi. Thecriticism of his evidence on the ground that he was a chance witnesscannot be viewed in isolation since there was nothing unusual in aperson known to V. Jaggi just dropping in to find out what washappening in the house of a friend which was under construction whenhe saw a car-not necessarily V. Jaggi's car-standing outside. According to Public Witness 1 they had gone there in the Ambassador car; Public Witness 35obliged by saying in cross-examination that it was V. Jaggi's car;but he had not stated when questioned under section 164 Criminal Procedure Code .that it was V. Jaggi's car (Vol. Ii p. 504). A reading of Public Witness 35's evidence before the court conveys the impression that at all materialpoints he was crying to make his evidence accord as much as possiblein favor of the appellants. He mentioned the time of his going there as6.30 or 7 P.M.; it was the month of September and it would nothave been quite dark even if it were so. It was suggested to himby the Special Public Prosecutor that he had been to the house evenat 6 P.M. because the sun sets at 6.30 P.M. in the month of September ; this suggestion was based upon Public Witness 35's statement to The police about his having gone there at 6 P.M. (Ex. P-W. 35/C).Obviously the time mentioned was only approximate. The time ofarrival by Public Witness 1 at Jiwan Lodge (the evidence concerning whichwill be discussed later) was 6.10 P.M. If this entry is genuine,it shows that the target practice should have been over by about 5.30or 5.45 at the latest. There could have been no target practice aftersun set. It was admitted by Public Witness 35, in answer to a question on behalfof V. Jaggi in leading form, that it could be that the sun set inthose days even at 5 P.M.! V. Jaggi was his friend from schooldays. Hooda and Brar were the common friends of Public Witness 35 andV. Jaggi; they were in the same class in the same school; yet hemade it appear that V. Jaggi was not on good terms with Hoodaand Brar-to get over, as we shall see later, Public Witness l's statement abouttheir having been seen with V. Jaggi. Public Witness 35's statement was recordedunder section 164 Criminal Procedure Code . on 26-12-1973. He had gone even sofar as to agree with a specific suggestion put to him that his statementunder section 164 Criminal Procedure Code . was recorded in order to prevent him fromresiling from it. He also went so far as to say that he could notsay whether the revolvers were genuine ones. He had also spoken ofrival groups being headed by V. Jaggi and Hooda and Brar respectively at school. The trial court had considered some of the aboveadmissions made by Public Witness 35 during the course of cross-examinationwith a view to demolishing the prosecution case while granting permission to the Special Public Prosecutor to cross-examine Public Witness 35.The Special Public Prosecutor before concluding his cross-examinationput to him a series of suggestions (vide P. 535, Vol. II) tending toshow that such statements were made by Public Witness 35 only to accommodatethe appellants. The said suggestions are plausible. It is, therefore,only a question of appreciating the totality of his entire evidence;his leanings obviously were with the appellants. We are thus thrownback on the question which we posed earlier for ourselves: why did- the police introduce the evidence of Public Witness 35 at all in the case despitehis being a friend of the appellants, one who was affluent, a graduateand a' Sherwoodian like his friends Sunil and Ravi ? This seems topermit only one answer, namely, that Public Witness 35 had initially stated tothe police what he had seen the appellants and Public Witness 1 there. Hedid not have second thoughts when he was examined under Section 164 of the Code of Criminal Procedure, which examination was considerednecessary because he was a friend of V. Jaggi ; when he was examinedin court he had sought to push his evidence and stretch it to asfavorable a length as possible on the side of the appellants consistentwith his earlier statements, especially the one under S. 164 Criminal Procedure Code .We could see this from those portions of his evidence recorded inthe form of questions and answers; such answers as he was expectedto give in favor of the accued were practically put into his mouth inleading form. It is worth reporting that if the police wished to createfalse evidence on a matter like this it is hardly likely that they wouldhave relied upon a friend of V. Jaggi for his purpose.
STATEMENTSunder Section 27, Evidence Act. Recoveries fallingunder Section 8, Evidence Act.
(76) The statements under Section 27 of the Evidence Act are admissible in evidence only in so far as the information furnished by the accused lead distinctly to the recovery of anything deposed to, as causeand effect, regarding the same being a confession or not. Recoveriesmade as a result of the accused pointing them out would be admissibleas conduct of the concerned accused under section 8 of the EvidenceAct even when they are not preceded by any information given by the accused. Before discussing the individual statements of the appellantsalleged to have been made under section 27 of the Evidence Act itseems helpful to deduce a few legal principles from decided cases,to the extent to which they may be of relevance to this case.
IT would be convenient to refer first to Pulukuri Kottaya v. Emperor(A.LR. (34) 1947 P.C. 67). The accused in that case had stalednot only that he would produce a knife concealed in the roof ofhis house but that he had stabbed the deceased with that knife. Thelatter statement "with which I stabbed A" was clearly inadmissiblenot because it amounted to a confession but because it did got relateto the discovery of the knife in the house of the informant. Anystatement pertaining to the past user, or the past bistory, of theobject produced is not related to its discovery in the setting ia whichit is discovered. It is fallacious to treat the "fact discovered" as equivalent to the object produced. The fact discovered only embraces theplace from which the object is produced and the knowledge of the accused as to this; the information given, must relate distinctly tothis fact. The condition necessary to bring S. 27 into operation is thatthe discovery of a fact must be deposed to; thereupon so much of theinformation as relates distinctly to the fact thereby discovered maybe proved ; this is on account of some guarantee being afforded therebythat the information was true and could be safely allowed to be givenin evidence. The extent of the information admissible however, mustdepend on the exact nature of the fact discovered to which suchinformation is required to relate. Sir John Beaumont, who spokefor the Judicial Committee of the Privy Council, referred to Ss. 25 to 27 of the Evidence Act and emphasized S. 27 providing anexception to the prohibition imposed by the preceding sectionagainst receiving in evidence about facts deposed to by anaccused to a police officer; this exception alone enablescertain statements made by a person in police custody to beproved. The ban, it was pointed out, was presumably inspired bythe fear of the legislature that a person under police influence mightbe induced to depose by undue pressure. The information supplied bythe accused persons in custody in that case, that he would producea knife concealed in the roof of his house, did not lead to the discovery of a knife since, as Sir John Beaumont explained, "knives werediscovered many years ago". The statement leads to the discovery ofthe fact that a knife is concealed in the house of the informant tohis knowledge; if the knife is proved to have been used in the.commission of the offence the fact discovered is very relevant. Thedecision of the Full Bench of the Madras High Court in AthappaGoundan v. Emperor (A.I.R. 1937 Madras 618) was held to bewrong; on the other hand, the view taken by the High Court ofLahore in Sukhan v. Emperor (A.I.R. 1929 Lahore 344) was approved.In the Madras case the Court had admitted a confession on accountof the offer in the last sentence, as recorded (readily separable from the Best) to produce two bottles, a rope and the cloth ga!g which,according to the confession, had been used in, or be connected with,the commission of murder; the objects were in fact produced. TheHigh Court was impressed by the fact that the objects produced werenot themselves of an incriminating nature. Sir John Beaumont did notapprove of this reasoning and observed :
"THEdifficulty, however great, of proving that a fa'ct discoveredon information supplied by the accused is a relevant factcan afford no justification for reading into S. 27 somethingwhich is not there, and admitting in evidence a confessionbarred by S. 26. Except in cases in which the possession,or concealment, of an object constitutes the gist of theoffence charged, it can seldom happen that informationrelating to the discovery of a fact forms the foundationof the prosecution case. It is only one link in the chainof the prosecution case. It is only one link in the chainallowed by law."
(77) The Lahore view was that only that portion of information whichis the immediate and proximate cause of discovery of fact can beproved. The statement attributed to the accused in that case was:"I had removed the karas. I had pushed the boy into a well andpledged the karas with Alla Din". Shadi Lal, C.J" who spoke for themajority, held that portion of the statement where he had admittedpushing the boy into the well to be inadmissible ; it related to a separatematter which had no connection with possession of ornaments by Alla.Din, which was the only fact discovered. The pledging of the ornamentsby the prisoner with Alla Din from whom they were recovered was,however, admissible; it was in consequence of this statement that thediscovery was made.
(78) The above said decision of the Judicial Committee has been specifically followed by the Supreme Court in a number of cases.
(79) In Prabhoo v. State of Uttar Pradesh ,S. K. Das (as he then was). speaking for the Court observed as follows : "....the courts below were wrong in admitting in evidencethe alleged statement of the appellant that the axe hadbeen used to commit murder or the statement that theblood stained shirt and dhoti were his .... From themere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellantcommitted the murder. Even if somebody else had committed the murder and the blood stained articles had beenkept in the house, the appellant might produce the bloodstained articles when interrogated by the Sub-Inspector ofPolice. It cannot be said that the fact of production isconsistent only with the guilt of the appellant and inconsistent with his innocence."
(80) In other words, the equivocal fact of production consistent withboth the guilt and innocence of the appellant could not complete thechain of circumstantial evidence against him, an aspect which is explainred at some length in State of U.P. v. Deoma'n Upadhyaya (A.I.R.1960 S.C. p. 125), where the court in fact accepted as sufficient evidence the production of the blood stained weapon. It was explained inPrabhu that the circumstantial chain in Deoman Upadhyaya did notdepend merely on the production of the said weapon (a gandasa)but on other circumstances as well.
(81) The true principle of law, as explained by the Supreme Court inDeoman Upadhyaya, is that in a case of circumstantial evidence, consisting of several links, pointing to the accused as the principal assailantor culprit his mere silence or false explanation concerning one of important links in the chain of circumstantial evidence connecting itwith the occurrence would help complete that chain against him (onthis point, also vide Deonandan Misra' vs. State of Bihar, ). This presumption has been invoked against the accused invarious contexts. For instance, in Wasim Khan v. State of U.P. it was explained how when murder and robberyare simultaneously committed, the fact of the accused having beenfound to be in possession of the property of the deceased may itselfraise the presumption that he is the murderer, if such possession isrecent and unaccounted and there is corroborative evidence in supportof the presumption.
(82) In dealing with an equivocal statement, leading to production ofany object, which may be consistent, as already stated, with both withthe guilt and innocence of the accused, other corroborative circumstances would be required. But the discussion herein is confined to theextent to which statements made by the accused under S. 27 of theEvidence Act are receivable in evidence.
(83) If the police officer does not want to prove the information or anypart thereof, as explained in Rarnkrishan Mithanlal Sharma v. Stateof Bombay , section 27 would not come intooperation. In other words, only if the police officer wants to prove theinformation or a part thereof, the court would have to consider whetherit relates distinctly to the fact thereby discovered and allow the proofthereof only if that condition was satisfied. As it was further explainedin the said decision, the said information, sought to be proved by The police officer, would not be admissible when it amounts to a confession, unless there is the guarantee of the truth of it by reason ofthe discovery of some object, distinctly in consequence of that information ; when such object is discovered so much of the informationwould be admissible, regardless of the same amounting to a confession.
(84) In Jaffer Husain Dastagir v. The State of Maharashtra Mitter, J. speaking for the Court, explained how,in that case, the police already knew that the third accused had thestolen articles with him. There was, therefore, no "discovery" of anyfact connecting the accused with the receipt of the articles which werestolen, within the meaning of S. 27 of the Evidence Act. Reference wasmade to an earlier decision of the Supreme Court in K. ChinnaswamyReddy v. State of Andhra- Pradesh wherethe Supreme Court had different from the Sessions Judge who hadheld that part of the statement of the accused which related to hishaving hidden ornaments to be inadmissible. The Supreme Court,had observed that those words, namely, where he had hidden theornaments, had nothing to do with the past history of the crimeand were distinctly related to the actual discovery which took placeby virtue of that statement.
(85) The above is what Mitter, J. also explained in Jaffer Husain in the following manner :-
"INorder that the section may apply the prosecution mustestablish that the information given by the appellant ledto the discovery of some fact deposed to by him. It isevident that the discovery must be of some fact whichthe police had not previously learnt from other sourceand that the knowledge of the fact was first derived frominformation given by accused. If the police had no information before of the complicity of accused No. 3 with) thecrime and had no idea as to whether the diamonds wouldbe found with him and the appellant had made a statementto the police that he knew where the diamonds were andwould lead them to the person who had them, it earn besaid that the discovery of the diamonds which the thirdaccused was a fact deposed to by the appellant andadmissible in evidence under S- 27 However, if it beshown that the police already knew that accused No. 3had got the diamonds but did: not know where the saidaccused was to be found, it cannot be said that the information given by the appellant that accused No. 3 had thediamonds and could be pointed out in a large crowd atthe waiting hall led to the discovery of fact proving hiscomplicity with any crime within the meaning of S. 27.The fact deposed to by him would at best lead to the discovery of the whereabouts of accused No. 3"
"IFan accused charged with theft of articles or receiving stolenarticles, within the mean of S. 411 Indian Penal Code . states to The police, 1 will show you the articles at the place where I have kept them' and the articles are actually found there,there can be no doubt that the information given by him ledto the discovery of a fact, i.e., keeping of the articles bythe accused at the place mentioned. The discovery of thefact deposed to in such a case is not discovery of thearticles but the discovery of the fact that the articles werekept by the accused at a particular place. In principlethere is no difference between the above statement andthat made by the appellant in this case which in effectis that 1 will show you the person to whom I have giventhe diamonds exceeding 200 in number'. The only difference between the two statements is that a 'natmed person'is substituted for 'the place' where the article is kept. Inneither case are the articles or the diamonds the fact discovered."
(86) Another useful decision of the Supreme Court is Balbir Singh v.State of Punjab . In that case the accused madea statement to the police to the effect that he had buried gold ear-ringsnear a pipal tree and the ear-rings were recovered from the placepointed out by him. The learned Sessions Judge in that case haddrawn a distinction between possession and knowledge and held thatthe appellant merely knew where the cat-rings had been concealedand that he did not possess them. The High Court pointed out (a viewwhich was affirmed by the Supreme Court) that the distinction wasnot justified on the evidence on record and that the statement thatthe appellant had buried the gold rings was admissible under S. 27 of the Evidence Act.
(87) The caution adimmstered by the Supreme Court, which has to beexercised always, is to resist any attempt by the investigating officerto circumvent, by manipulation or ingenuity, the protection affordedby Ss 25 and 26 of the Evidence Act ; the Court has to be assured thatthe information furnished and the fact discovered are credible.
(88) In this context it will be useful to refer to yet another decisionof the Supreme Court in Mohmed Inayatnilah v. State of Maharashtra where the accused had made a statementto the following effect: "I will tell the place of deposit of the threeChemical drums which I took out from Haji Bunder on 1st August".It was pointed out by Sarkaria, J., speaking for the court, that thestatement had to be split up into its components and the admissiblehad to be separated from the inadmissible portions. Only those components or portions which were the immediate cause of the discoverywould be legal evidence and not the rest which must be excised andrejected. The first part of the statement that he would tell the placeof deposit of those drums was the immediate and direct cause of thefact discovered; this portion was admissible but the rest constitutedonly the past history of the drums or their theft by the accused ; notbeing two distinct and proximate .cause of the discovery it had tobe rilled out of evidence altogether. The above said admissible portiongives rise to two hypothesis, both of which were equally possible:(1) it was the accused, who had himself deposited the stolen drumsin the musafirkhana, or (2) that he only knew that the drums werelying at that place. The second hypothesis being wholly compatiblewith innocence he would be entitled to the benefit of doubt. But thefollowing observations of Sarkaria, J. brings out the crucial aspect ofthat case which would distinguish it from any of the statements to beconsidered in the present case : "ITwill be seen that he never said that it was he who haddeposited the drums at the place from which they wereproduced. It seems the latter part of the statement, whichwas an outright confession of the theft, was not completely ruled out of evidence and something of it wasimported into and superimposed on the first part of thestatement so as to fix the responsibility for deposit andpossession of the stolen drums there, on the accused."
(89) It was noticed that what is to be discovered is a material fact;the admissible portion of the information which has caused the discovery must be such as to connect the information and the fact ofdiscovery with each other as cause and effect. This principle wasexplained in Himachal Pradesh Administration v. Om Prakash . In this decision it was pointed out that a witnesscannot be said to be discovered in consequence of the informationgiven by the accused if nothing is to be found or recovered from himas a consequence of the said information, in other words, the statementwould not fall within S. 27 if the information merely discloses theidentity of the person but, the fact of the accused pointing out the saidwitness would be admissible under S. 8 of the Evidence Act. Thiswill be at par with the accused pointing out (even where it is notpreceded by any information given by him) a place from which arecovery of any article, shown to be incriminatory is found or recoverd. Recoveries made in the said way, independent of such searchesbeing conducted, would also not attract S. 103 of the Criminal Procedure Code . ; suchrecoveries could be proved even by the solitary evidence of an investigating officer if his evidence could otherwise be believed. Any suchdiscovery would, however, become inadmissible if the police partyknew where they were hidden .
(90) In the light of the above principles an effort will now be madeto analyze and discuss the disclosure statements alleged to have beenmade by the respective appellants in this case.
(91) The two disclosure statements made by him on 12/12/1973to Public Witness 142 ate Exs. Public Witness 82/J and Public Witness 82/L; on the samedate he made yet another disclosure statement (Ex. Public Witness 42/A)to Public Witness 142 are Exs. Public Witness 82/J and Public Witness 82/L; on the sametaken on rent a locker bearing No. 44 in Canara Bank, Bhopal on20-11-1973 and had placed therein the currency notes of Rs. 65,000.each currency note being of the denomination of Rs. 10, pertaining tothe Union Bank of India, Chandni Chowk, Delhi. He had also statedthat he had deposited Rs. 3,000 pertaining to the same bank in hisdeposit account No. 3518 opened on 2/11/1973 in three Installments ; he had referred to another sum of Rs. 10,000 in the shape ofcurrency notes of Rs. 10 each deposited in the same locker for whicha Draft No. 7376 dated 11-12-1973 was prepared in the name ofM/s. Nishan Spring (P) Ltd., Jabalpur. He could point out and securethe same and thereafter produced it. The fact of his having taken alocker on rent on 20/11/1973 was intimately connected withhis having placed the notes in the said locker.
(92) EX. Public Witness 82/J contains statements pertaining to the said Ambassador car having been used at the time of the occurrence and the stainsof blood on the car which were later washed in the garage. Statementsto the above effect except the car being in the garage would clearly beinadmissible. It also pertains to his having kept at sum of Rs. 20,000to Rs. 25,000 in his house after exchanging them; this would not beadmissible, since it is only a record of a past transaction.
EX.Public Witness 82/L refers to Sunil having kept a sum of Rs. 50,000in the form of hundred rupee and 10 rupee notes in a brief caselying in the office of his uncle Sri Kishan Dawar; Rs. 40,000, outof the same, were in the shape of 10 rupee currency notes and thebalance in the shape of 100 rupee notes, which he had not convertedinto 10 rupee durrency notes pertaining to the Union Bank. It alsorefers to his having got issued a Draft for Rs. 10,000 after depositingthe amount in the shape of currency notes pertaining to the UnionBank-a draft which was issued in favor of M/s. Nishan Spring (P)Ltd., Jabalpur, the receipt of which had also been taken into possessionby Public Witness 142 from Sunil. He had also referred to his opening an account in his name in the Canara Bank, Hamidia Road, Bhopal bydepositing the amount pertaining to the Union Bank. So tar as theamount left with Sri Kishan Dawar is concerned even in his statementunder S. 313 Criminal Procedure Code . he had admitted (in answer to Q. No. 219)that he had told the police about keeping a brief case containingRs. 50,000 at the office of his uncle. He had also then stated (inanswer to Question 235) that Rs. 65,000 were taken out of hislocker without his pointing out and, that the seals of the Union Bankwere not there"; he only represented that he was not carrying thekey of the locker. Sunil had also admitted (in answer to Q. 228) thatcertain recoveries. were made from No. 27 Sundar Nagar, which isin occupation of his mother, Rs. 35,757 in the form of currencynotes besides silver coins, silver plates and ornaments. These were nodoubt seized under Ex. P. W. 53/A but the recovered money andarticles were claimed to belong to the members of his family.
(93) For the sake of completeness alone it may be noticed in this context that in pursuance of an order passed by the A.D.M., Bhopal on 20/12/1973 (Ex. Public Witness 62/B) Harbans Lal Ahuja (P.W. 62),the Agent of the State Battik of India, Bhopal had surrendered to The police a packet of 100 rupee notes (Exs. P. 1. to 4/1-100) plus10 rupee notes bearing the seal of the Sorting Cell of the Union Bankof India, Karol Bagh, New Delhi ; these were seized under Exs. P. W.62/A. Sunil admitted (in answer to Q. 230) that Public Witness 62 had produced the currency notes but claimed that they had been planted by The police. Sunil also had admitted (in answer to Q. 233) that he hadproduced a draft against cash on 11/12/1973 which he gotcancelled on 12/12/1973. The cancellation and payment ofthe amount to the police was done by Sunil at the instance of The police (94) A few more recoveries made on' the pointing out of Sunil willbe referred to presently. The evidence pertaining to some of the recoveries has already been discussed. To the extent to which Sunilhimself took out and pointed out the place from where recoverieswere made that would be evidence of conduct falling within the scopeof S. 8 of the Evidence Act. Sunil is said to have made another disclosure statement on 12/12/1973 to Public Witness 142 (as per Ex.P.W. 96/A). It was in this statement that reference was made tohis keeping with his uncle Sri Kishan Dawar yet another sum otRs. 20,000. The same not being recovered this is not admissible. Hehad also referred then to his purchasing surgical white gloves fromBliss and Cotton, Connaught Place. Since the place was mentioned itwas possible to recover a cash memo (Ex. P. 12/B) of that companyrelating to the purchase of the fine pairs of white surgical hand rubbergloves but the person who had purchased had not been noted. Ex.P.W. 96/A also contains a statement that some days prior to 28/09/1973 jeep bearing No. Mpb 9828 was serviced from ESSOservice station near Ashoka Hotel. Car bearing No. Dhb 9254 (whiteAmbassador said to be involved in this case) was also got services from the same service station. He had also purcha'sed ammunition for.455 revolver at Delhi from the New Commercial Refrigeration, RamNagar, Delhi. The jeep No. Mpb 9828 was got repaired at LajpatNagar; blood stains on cash boxes were washed in the bath roomon the first floor of 27 Sunder Nagar (evidence pertaining to thesewill be discussed later).
(95) The disclosure statement (as per Ex. Public Witness 82/H) is alleged tohave been made by Shahwar to Public Witness 14 2/12/1973 tothe effect that Public Witness 1 had produced a revolver .455 bore and onebullet from his friend (P.W. 67). The evidence pertaining to therecovery of the same, not in the presence of Shahwar but in the presence of Public Witness I, has already been discussed.
(96) On the same day Shahwar is said to have made yet another disclosure statement (as per Ex. Public Witness 82/K) the admissible portionsof which acre that he had kept concealed the pistol 8 mm in a largesized steel almirah under the bedding of his cot and that he couldget the same recover after taking the key from there and afterunlocking the said almirah- He had also referred to jeep No. Mpb 9828parked in his porch. The evidence of Public Witness 82 has already been discussed at length ; he had referred to Public Witness 142 interrogating Shahwarand recording his statement (as per Exts Public Witness 82/H and Public Witness 82/K)after recording Ex. Public Witness 82/H, Public Witness 142 recovered the revolver fromP.W. 67. Having regard to the fact that it waS past mid night whenShahwar was interrogated and the discovery statements were recordedit was not evidently possible to get the attestation of any nearby witnesses. Shahwar's father was also an influential person in that locality.It has already been indicated how Public Witness 82 and Phool Chand Jain (notexamined), who were independent witnesses of the locality, had attested the disclosure statement, recoveries etc. made on December 11/12,1973.
(97) The pistol (Ex. P. 8) was recovered under a memo (Ex. Public Witness 9S/ which was prepared by Public Witness 115 ; the same had been attested byonly the brother of Shahwar in addition to Phool Chand Jain and aConstable. Public Witness 115 also gave evidence (so recorded in the memo aswell) tha,t Shahwar, out of his own accord, took out the key fromunder the bedding of his cot in the residential room of his house NawabManzir and after opening the steel almirah produced the said pistol.A vain effort was made to show that there was some discrepancyin the description of the place, whether it was Nawab Manzil. Thelearned trial Judge has discussed this portion at length and was notimpressed by any of the criticisms levelled on this portion of thecase ; we agree with him. Both the key and the pistol were recovered.The packet was sealed with the monogram KDS. The said seal wastaken from Phool Chand Jain and handed over to Constable KidarPande after use. When the police party led by Public Witness 115 was comingout after recovering Ex. P. 8 ShahwaT pointed out the jeep Mpb 9828parked under the projection which was seized under a memo (Ex.P-W. 98/C) which also was attested by the same set of witnesses.P.W. 115 did not make any entry at police station Shahijanabad inregard to Shahwar. Shahwar was handed over to Public Witness 115 outsidethe police station and from there they were led by Shahwar to his houseat Nawab Manzil. The house of Shahwar has been described in thememo (Ex. Public Witness 98/B) as being Nawab Manzil. It is no doubt truethat Public Witness 142 had obtained a search warrant from a Magistrate inDelhi, as noticed already, even on 10/12/1973 (as per Ex.P.W. 99/L-3 ) wherein there was a mention of the recovery of fire-armsto be collected. Without getting the key of the steel almirah whichwas kept concealed underneath the bedding of Shahwar's cot thealmirah could not have been opened and the pistol (Ex. P. 8) alsoCould not have been recovered. The search warrant was not utilised forthe reasons noticed already-there was no certain indication as to wherethe concerned articles, mainly the currency notes, were ; any prematuresearch could have rendered the attempt abortive. Shahwar himself hadsigned the disclosure statement (Ex. Public Witness 82/K) which he admitted ;he only claimed that the same had been, obtained by the police on ablank paper by force (in answer to Q. 217). There does not seemto be any doubt that Shahwar had made the disclosure as above leadingto the discovery of the pistol (Ex. P. 8). But for Shahwar's statementabout Public Witness 1 having got the revolver from Public Witness 67 and having returnedit there would not have been any recovery of the revolver (Ex. P. 9).P.W. I, after having been pointed out by Shahwar, led the policeparty (after Shahwar had made the statement) to the house of Public Witness 34/67. Regarding the criticism that the police had-prior informationabout the pistol as well as about Nawa'b Manzil and, therefore, theredisclosure statement was not admissible there seems to be no force init because, as already pointed out, the fact of having got earlier awarrant to search the house of Shahwar could not mean that the policeknew about the pistol (Ex. P. 8) having been kept concealed in thesteel almirah and the key of the atmirah having been concealed inShahwar's bedding under his cot. The fact, however, remains that ithas not been shown how Shahwar secured the pistol (Ex. P. 8). It wasan un-licensed one. The recovery of the pistol from Shahwar wouldefford corroboration in respect of Public Witness l's testimony concerning theplan according to which another pistol was thought to be necessarywhich Shahwar had procured. The concession of Mr. Kalra that Shahwar's conviction under the Arms Act can not be sustained has alreadybeen noticed.
(98) It is worth recalling that according to the original plan Shdhwarwas to shoot at the glunman with the revolver but he developed coldfeet even prior to the occurrence when they were in the RamblesRestaurant in Delhi; this led to Sunil offering to shoot the gunmanhimself with the revolver.
(99) On 11/12/1973 Public Witness 140 interrogated Ravi in the presenceof P.Ws. 82 and Iii and Phool Chand Jain when he made a statement (as per Ex. P. W. 82/D-1) that he had kept concealed currencynotes of the Union Bank of India, Delhi in the sum of about Rs. 4lakhs in the lower right side drawer of the office table in the outerroom of his residential house No. 30 Civil Lines which he could takeout after pointing out. The relevant details concerning this have beennoticed already at considerable length. The details pertaining to therecovery of these notes have also been discussed fully. The above said disclosure has been fully proved and no part of the disclosurestatement as recorded (Ex. P. W. 82/D-1) can be said to be eitherfalse or inadmissible. The observations of Sarkaria, J. in MohmedInayatullah, extracted above, would be directly applicable to thiscase. The disclosure statement related to the discovery of the fact, asdeposed to by Ravi ; it was of a relevant fact; the information givenby him related distinctly to the fact thereby discovered. As Sarkaria, J.has observed in that decision the word "distinctly" means directly,indubitably, strictly and unmistakably. Ravi, according to that state-ment, had kept concealed (and, therefore, had possession of) thecurrency notes concerned in the lower right side of the office tablelying in the outer room of his residential building; it was not a case ofhis having only mere knowledge about it. The part of the statementwhich was confession, of his having kept the money there and havingconcealed it, would be admissible in terms of S. 27 of the Evidence Act.
(100) The alleged disclosure statement, said to have been made by V. Jaggi(as per Ex. Public Witness 127/A) on December 15, 1973 was recordedby P. W. 142 and attested by Walaiti Ram (P. W. 60) whose evidencehas already been discussed at great length. The learned trial Judgepassed a separate order (Item 125, page 619 Vol. Ii of the printedrecord), regarding what portions of this statement are admissibleafter hearing arguments on both sides. After discussing the decision ofPulukuri Kottaya etc. he held as follows : The fact of discovery, inpursluance of the above statement, concerned the entries made infictitious names (Ashok Bhargav, Dixit and Shah) by the accusedpersons or some of them in the hotels from where registers with entries were seized and the knowledge of V. Jaggi in regard to these;was the first point for consideration; he held further, that the abovefact thus discovered, would be a relevant fact in a' case of conspiracyunder S. 120-B 1. P. C. The disclosure made by V. Jaggi led to thediscovery of the entries being fictitiously made in the hotel registers andhence would fall within the scope of S. 27 of the Evidence Act (101) For a clearer understanding of this aspect the following portions ofEx. P. W. 127/A, held by the trial court to be admissible, may be separately set out : "ON22/09/1973 Shahwar Khan, Harjit and RaviKapur stayed at Hotel Bright and got record fictitiousnames which were probably Ashok Bhargav. Dixit findShah..... One or two Jays prior to the occurrence SunilBatra purchased gloves from Connaught Circus. . . - . .On 28/09/1973 Shahwar Mohd. Khan and RaviKapur left Prabhat Hotel. They stayed there under assumed names and got recorded their names as Ashok Bhargavand Shah."
(102) It is contended on behalf of V. Jaggi that the fact of three of theabove-said appellants having stayed at the hotels concerned was knowneven previous to 15/12/1973, and after V. Jaggi's arrest (on 14/12/1973). Yet, it is argued, no effort was made by The police to go to the hotels concerned to find out from those registers. Theanswer to this by Shri Kaira is that even if the police had gone to thehotels they would not have been able to find out anything from concerned hotel registers since they would not have showed the fact of anyof the appellants having stayed there-this would become known onlyif the assumed or fictitious name's in which they stayed were alsoknown and this fact became known to P. W. 142 only when he recorded Ex. P. W. 127/A on 15/12/1973. It seems to usthat the said statement would, therefore, come under S. 27 of theEvidence Act.
(103) Mr. Jethmalani addressed, what seemed to us, a laboured argument,that the discovery of hotel registers will not fall under S. 27 of theEvidence Act. Shortly stated, his argument was that only the discoveryof physical objects as distinctly related to the facts deposed would comewithin its scope; since the hotel registers were the physical objects inthis case they could not be discovered; they are maintained by everyboarding house as required by law; there could be no discovery ofthem in the same way as "Knives could not be discovered", kniveshaving been discovered a long, long time agp. In other words, concealment of physical objects being a necessary precondition of admissibility under section 27 there was no such concealment in this case-the registers were open to inspection by any one and the police, inthis case, could have done so when even on 14/12/1973, V. Jaggihad stated, on interrogation by the police, about the stay of theappellants (except himself) in some hotels at Delhi. But it was onlyon 15th he had mentioned the details specifically as per Ex. P. W.127/A, setting out the assumed names under which each one of themstayed in the hotels. Bright and Prabhat and Jeevan Lodge. On 17th,V. Jaggi took the police to the respective hotels and the registers,containing those entries, were seized. We are not. even like the trialcourt, impressed by the argument of the registers themselves not Slavingbeen sealed, because, as rightly pointed out by the learned trial Judge,the concerned entries in each of them had been encircled and initialledand the contents were incorporated fully in the seizure memos. noneealing may have an impact only on the possibility of their being shownto the concerned witnesses, including P. W. 1; in fact, it was necessaryto show them to the concerned' witnesses (P. W. 1 was shown thoseregisters by the police) for fully and effectively questioning them; itmay also be necessary to interrogate the accused about them, beforeconcluding the investigation. Mr. Jethmalani's argument, somewhatattractice at first blush, seems to overlook the fact that without knowing the assumed names under which they stayed in the hotels it maynot have been possible to connect these entries with any of the accused;it would have been futile for the police to proceed to these hotelsimmediately after they interrogated V. Jaggi on 14/12/1973for they could have been none the wiser for it-unless they conductedan extensive and roaming investigation concerning every one whostayed in each of those hotels for the entire period checking and crosschecking every entry and concerning persons who were coming therepossibly from long distances; such efforts were not likely to be verysuccessful. If V. Jaggi had even on that day himself taken the police tothe hotels and pointed out the rooms of the respective hotels and pointedout where the concerned appellants and P. W. 1 stayed it might havebeen different; V. Jaggi did so only on the 17th. There is, therefore,no substance in the contention that when V. Jaggi stated to the policeabout the assumed names on the 15th they already knew about thison the 14th or that they could have come to know of this if they hadperused (and seized) the concerned registers. Nor is there any forcein the contention that even on the 17th V. Jaggi is not stated to havepointer out the entries in the registers ; he had not only mentioned onthe 15th assumed names under which each of them stayed in whichhotel but he had also pointed out the rooms where they stayed in theconcerned hotels-after which it was so easy to pick out the concerned entries.
(104) The above contentions, of a subsidiary nature, having been thusmet, it only remains to discuss the meaning of "concealment" whichis something that invariably precedes "discovery". When one talks ofdiscovery it is invariably in the sense of the thing discovered beingpreviously hidden from view. The cloak, which hides the physical ob-.ject discovered from view, may be due to physical or other reasons;it would certainly take in a case like the present where the assumednames may not have been known, even after making a reasonable effortto know them, but for the information given to the police. No difficultycan be perceived in this case on the ground of tile fact deposed to notdistinctly relating to the object thereby discovered, for the discovery ofthe concerned entries in the concerned hotels did distinctly relate tothe fact deposed. The object discovered was not so much the registerand the concerned entry therein ; the fact of the existence of these entriesin the concerned registers would not have been "discovered" exceptfor the specific information supplied giving the details (facts deposedby V. Jaggi) concerning their existence. This situation seems coveredby S. 27; there seems no warrant for the kind of interpretation putupon it by Mr. Jethmalani.
(105) Regarding the fact of V. Jaggi making the statement as per Ex.P- W. 127/A Mr. Jethmalani pointed out that V. Jaggi was not likelyto have made such a s,tatement having regard to what happened whenhe was produced before the Magistrate on 13-12-1973-his havingresisted the identification parade being held in respect of him and inview of Mr. Kaira himself not disputing the trial judge having excludedfrom consideration V. Jaggi's statement leading to the recovery of thekey of the Bank van. On the latter point Mr. Kalra's submission wasbased on the said statement not having been signed by V. Jaggi inthe face of Ex. Public Witness 127/A being signed by him; this does no: meanthat the said statement was a fabrication. It was indeed fair of Mr.Kaira, as he has been throughout the hearing before us, to have statedthat for the above reason he was not in a position to rely upon thestatement leading to the recovery of the key of the Bank van. As amatter of probability, however, it seems possible to view the statementof V. Jaggi about the key of the Bank van (being with him) withfavor; the key must have been with one of the culprits and it wasnot even suggested that it was with any one else or that there was anyduplicate key. We have already referred to P. W. 35 having beeninterrogated as a witness in this case when V. Jaggi, under handcuffs,took Public Witness 140 to Public Witness 35 on December 23rd. P. W. 35, though hebecame hostile, did not deny that V. Jaggi took P. W. 140 to him.On this basis it is seen that V. Jaggi was also giving information leadingto the progress of the investigation by the police despite his resistingit when advised by his father or other adviser. Ex. P. W. 127/A couldnot therefore, be rejected merely on the above ground urged by Mr.Jethmalani.
(106) Yet another criticism advanced by Mr. Ram Jethmalani was that ifV. Jaggi had refused to participate in identification parade on 13th heis not likely toi have made any discovery statement on the 15th. Itdoes not appear that for this reason alone Ex. P. W. 127/A may bedoubted; despite his father and lawyer having intervened on 13th itself V. Jaggi might have felt that when the other appellants and P. W. Ihad been arrested and recoveries made from them the gamewas up. Ambivalence, in any case, on his part cannot be ruled out.
(107) It is still further stated that on 22/12/1973, V. Jaggi madea disclosure statement (as per Ex. P. W. 481A) to P. W. 140 stalingthat he had kept the key of the Bank van in the drawer of his officetable. Public Witness 48 who has attested this disclosure statement has beenexamined Ex. Public Witness 48/B is the seizure memo which is also attested byP.W. 48. But that reasons shall be noticed later no reliance need beplaced on the recovery of key.
(108) While considering the evidence of P. W.I we shall revert to Jaggi again.
(109) Evidence of handwriting experts and others concerning certain documents relied upon by both the prosecution and the defense in supportof their respective cases.
(110) Section 47 of the Evidence Act provides that when the court has loform an opinion as to the person by whom any document is writtenor signed, the opinion of any person acquainted with the handwritingof that person is relevant ; direct evidence by a witness signing/writinga document stands on an even higher footing. Section 45 of the Evidence Act enables the court to form an opinion upon a point ofhandwriting after taking into consideration the opinion of an expert.The court may also, under S. 73 of the Evidence Act, compared thewritings or signatures with proved ones ; the court may directany person present in court to write, and then compare the words orfigures so written with those alleged to have been written by the sameperson. The present Section 73 corresponds to S. 48 of the repealed English Act 2 of 1955 with some modifications; prior to 1854 the Englishlaw did not allow the witness, even a jury (except in special circumstances) to compare two writings in order to find out whether theywere by the same person. The present position in England(vide Halsbury's Laws of England, Fourth Edition, Vc-l. 17, Para 89,page 66) is, as it is in India also, that it is for the court to determinewhether a particular piece of writing is to be assigned to a particular- person: documents may be submitted to the court for comparisons tohe made.
(111) P. B. Mukharji, J. (as he then was) observed in Bisseswar Poddarv- Nabadwip Chandra Poddar & Anr. 'judicial blindness' has not been imposed in this respect; the courtis not "prevented by law to use its own eyes either in addition to handwriting expert's evidence on the point or even in the absence of suchevidence on the point". When the work of such comparison is des-cribed as a "hazardous and inconclusive" exercise, to be used with"great care and caution", it is not to be understood as the exercisehaving been "forbidden". Mukharji, J., is only protesting against therequirement of caution being converted into a rule of law, imposingjudicial blindness, as it were. The weight to be attached will depend onthe skill of the expert, (Halsbury's Laws of England, 4th Edn. Vol. 17paras 89,91).
(112) The Judicial Committee was strongly impressed by such comparisons ] in Mahindra Chandra Lala v. Mahaluxmi Bank Limited (A.LR.42) 1945 Privy Council p. 105); it stressed the danger of such comparisons in Kessarbai v. Jethabhai Jivan (A.I.R. 1928 Privy Council27-7). Hidayatullah, J. (as he then was) compared the writings for thecourt to reach a conclusion of guilt.
(113) Mr. Garg, learned counsel for Shahwar, placed reliance on theobservations of Bhagwati, J. in Magan Bihari Lal v. The State of Punjab . They only emphasise the needfor caution in the matter of acting on opinion evidence given by ahandwriting expert ; substantial corroboration has been insisted upon ;it can rarely, if ever, take the place of substantive evidence.
(114) The proper approach to the appreciation of expert testimony wasindicated by Raghuba'r Dayal, J. in State of Gujarat v. Vinaya ChandraChhota Lal Pathi (A.I.R. 1967 S.C. 778, 780) a.s follows :
"IThas also been held that the sole evidence of an handwritingexpert is not normally, sufficient for recording a definitefinding about the writing being of a certain person ornot. It follows that it is not essential that the handwritingexpert must be examined in a case to prove or disprove thedisputed writing.
EVIDENCEof this kind may be worthy of acceptance if there isinternal or external evidence relating to the document in question supporting the view of the expert. The evidence of an approver on anyparticular may derive support from the testimony of a handwritingexpert-as in this case-when P. W. 1 says that he saw some one,among the appellants, write something, the handwriting expert says,with words to support it, that the said writing is in the handwriting ofthe person to whom the writing is attributed by the approver andthe court on comparison of the said writing with the sample or provedwriting confirms it; in other words this would be substantial corroboration concerning the persons whom the approver implicates. This is aguarantee which the court will look for, for there is likelihood of theapprover implicating even an innocent person adopting the broad framework of the prosecution case; the kind of corroboration concerningthe persons whom he implecates will, however, depend Upon the factsand circumstances of each case; an aspect which we will discuss later.It is not, as if, as contended by Mr. Garg, the evidence could be useless in this respect because we have also the evidence of P. W. l'sversion of the concerned appellants occupying the rooms in threeHotels; Bright, Prabhat and Jeevan Lodge, Public Witness 1 himself swore thathe saw Ravi making certain entries in Hotel Bright and had himselfspoken to the effect that he had made the entry in Hotel Prabhatregister. Regarding such facts the evidence of the expert where it supports his evidence could be taken into consideration and may, indeed,be invaluable. The evidence of the expert adduced by the defense wherethey contradicted Public Witness l's statement that he did not sign Ex. D. W.34/A, which is a deed executed at Bombay on 28/09/1973,(the date of the present occurrence) would be of the weakest description when, as the later discussion would show, the evidence of theMagistrate and the Lawyer from Bombay is seen to be unacceptable.The evidence of P. W. 97 who gave cogent rea'sons in support of hisview that the admitted and proved signatures of P. W. 1 did not tallywith those founded in Ex. D. W. 34/A would, in fact, support P. W.l's denial that he did not sign Ex. D. W. 34/A either in the presenceof the lawyer or of the Magistrate.
(115) It is well know that when specimen writings/hand-writings areobtained there is likelihood of simulation or alteration. But even whenspecimens are taken, there is care 'usually exercised to give randomdictation of the letters, figures in question and they are repeated severaltimes. The care to be taken in getting volunteered specimen writinghas been explained in Chapter Xv of "Questioned Documents Problems" by Albert S. Osborn and Albert D. Osbom (Second Edition).The specimen writings taken in this case seem to have been taken withsuch care.
(116) Usually regard is paid to the presence of personal characteristics,mannerisms, peculiarities in spelling, formation of loops in some letters,fixed pen habits, embellishments etc. and other characteristics whichenter into the handwriting as personality and leave their unconsciousimpress on a person's handwriting. But nature and habit, individualscontract a system of forming letters which, give a character to theirwriting as distinct as that of the human face. Scientific advances in thissphere have proved an in, valuable help; we are on the thresholdof even making clinching computer-comparisons-not yet inour country. It has been said that although a person's handwritingvaries as to its precise detail, yet there are fundamental characteristics,despite 52 letters of the English alphabet (large and small) permittingalmost infinite possibilities of the positions in which they may beplaced. That is why in spite of a clever forger trying to give forgedsignatures as much resemblance as possible to a' genuine signature(the model (s) available to him) the personal characteristics of thewritings or signatures are often an unfailing guide ; it is often difficultwork for a forger or a stranger to produce faithfully all such characteristics in the writings (Bisseswar)- This aspect of the matter has beenneatly and compendiously summed up in "SUSPECT DOCUMENTS-their scientific examination" by Wilson R. Harrison, Sweet & MaxwellLimited, Second Impression with Supplement 1966 : ".. . . it may fairly be assumed that a' developed handwriting,being the product of a long period of modification andadaptation to the needs and abilities of the writer, willbe peculiar to the individual ; in view of its complexity,the probability of any two persons having handwritingswhich are so similar that the presence of one or moreconsistent dissimilarities cannot be demonstrated, is extremely small.
(117) Although this is so, it does not follow that the comparison of variousspecimens of handwriting to determine whether or not they have beenwritten by the same person is necessarily simple and straightforward,even when there is no possibility of disguise having been introduced.The comparison of handwritings can never be accomplished machanically as though pieces of a jig-saw puzzle were being compared withthe spaces which remain to be filled. Human beings never functionwith the regularity and' precision of machines,' which is why naturalvariation will be a characteristic of every specimen of handwritingwhich is the natural variation will be a characteristic of every specimenof handwriting which is the subject of examination and comparison.The influence on handwriting of this natural variation has alreadybeen considered in some detail, but it must be repeated that becauseof it, one is unlikely to encounter passages of handwriting or evenindividual words which are perfect replicas, even when they have beenwritten under similar conditions by a practiced penman.
(118) It follows from this that because two specimens of handwriting, evenwhen written by the same person, can never be replicas, a measure ofjudgment is called for on the part of the examiner when he has todecide whether:
(1)the differences in the handwritings being compared can beregarded as being due to variation, or if they are indicativeof different authorship;
(2)in the absence of any consistent differences which cannot reasonably be attributed to natural variation, the sumtotal of resemblances in letter design and in details ofstructure uncovered by the examination can be explainedonly on the grounds that the writings are of commonauthorship, and that the possibility of the resemblancesoccurring by chance can be discounted".
(119) "THE rule is simple-whatever features two specimens of handwriting may have in common, they cannot be considered to be of common authorship if they display but at single consistent dissimilarity inany feature which is fundamental to the structure of the handwriting,and whose presence is not capable of reasonable explanation.
(120) This rule must not be applied blindly. For example, the dissimilaritymust be present in some feature which is known to the examiner to befundamental to the structure of the handwriting. The presence of initial strokes to some of the letters of one specimen of handwriting andtheir absence in the other is not fatal to an expression of opinion that they are of common authorship, for the experienced examiner is awarethat many writers vary their habits with respect to the initial strokes tocertain letters. On occasion, a handwriting will be liberally garnishedwith such strokes, whilst in a specimen written by the same personunder different circumstances, initial strokes may be sought for in vain.
(121) Again, the dissimilarity must be truly consistent ; the presence ofa few accidents should never be interpreted as denoting the existenceof a consistent dissimilarity not capable of reasonable explanation. Thedissimilarity must clearly be shown to be a natural feature of the.writing.
(122) The consistent dissimilarity need not be such an obvious featuie ofthe handwriting that its presence obtrudes itself on the eye. Too obviousa feature of a handwriting is invariably regarded with some suspicionby the careful document examiner, because there is always the possibility that it has been deliberately introduced to confuse the issue. Thetype of dissimilarity which is regarded as most significant is that whichhas to be sought for in the structure of the handwriting and whosepresence may well be overlooked by those inexperienced in the criticalexamination, of handwriting. There is little chance of such inconspicuousdissimilarities having been deliberately introduced as disguise".
(123) "WHEN two passages of handwriting are to be compared, a certainamount of preliminary work has to be undertaken before any detailedcomparison of their characteristics is embarked upon. The writingshould be read, re-read and studied until the examiner is so familiarwith its appearance that he is able to interpret any word at a glance.Great care should be exercised in the interpretation of doubtful letterformations, and the possibility of there being examples of misspelling orof the inclusion of unfamiliar proper names should be born,e in mind,otherwise the examiner may be confused by some of the letter designs."
(124) There are more suspicious circumstances. Both D. W. 33 andD. W. 34 were summoned for 13th July. But summons had been effected on D. W. 33 alone on 9th July. He did not turn up, but made anendorsement on the back of the summons requesting that he be examined on commission since he had taken over as a Judge, CooperativeCourt, after retirement. Service of summons had been effected on D. W.34 on 10th July. Without tururning up he requested that he be examinedon July 16 on the ground that he was held up on account of urgentcourt work. D. W. 33 was telegraphically informed that his requestcould not be granted and that he must appear on 16th July and, failingwith, on 19th July; D. W. 34 was informed that he could appear on16th July as requested by him. Neither of them appeared on 16th July.While information from D. W. 33 was awaited D.W. 34 was telegraphically informed to appear on 19th July on pain of coercive stepsbeing taken. Two telegrams were received by the trial court on 17thJuly, one from each of them, at 4.35 P. M. staling that they would beattending on 23rd July. This coincidence regarding the date on whichthey had agreed to appear, their telegrams reaching the court at thesame time after they had been telegraphically informed by the trialcourt as above, could not all be purely coincidental. Both the telegramsreceived by the trial court from D. W. 33 and D. W. 34 were expresstelegrams dispatched with Nos. Ad 137 Bombay 17.26 and No.138 Bombay 17.27 with receipt numbers Ln 101 Ad 137 and LN102 Ad 138. Both the telegrams were addressed to "HON VOHRASAHIB." The learned trial Judge referred to the observations of theSupreme Court in Vidhya Singh v. State of Madhya Pradesh that the courts had to rely more on human probabilities than on assertions of witnesses while assessing the probativevalue to be attached to their evidence.
(125) It is in the above background that one has to evaluate the evidenceof the Handwriting Expert S. K. Gupta, Assistant Director (Documents), C.F.S.L., who was examined as a court witness, to see whe-ther the signatures appearing on Ex. D. W. 34/A could have been of thesame person (P. W. 1) who had submitted his specimen writings tocourt. After a thorough Sterio-zoom microscopic examination C. W. Ihad submitted his report (Ex. C. W. 1/J). "The following points emergefrom his report and the evidence he (C. W. 1) gave before the trialcourt :
1. Examination through Sterio-zoom microscope revealed inherent signs of imitation such as drawn and hesitating linequality, unusual pen-lifts and careful joining of lines atunusual places, irregular pen-pressures and careful retouchings. There was lack of careless, freedom and naturalvariations.
2.(a) Examples of careful joinings of strokes and unusual penlifts in signature marked (G) are observed in start of letter'H' in the connecting strokes between 'H' and 'a' in thebody curve of letter 'S' and in the final staff of word'Singh'. The initial stroke of letter 'H' shows oppositedirection of movement from the point of careful joining.
2.(b) Careful retouching is observed in the short bar appearing at the end of questioned signature marked 'G' inthe upward finishing stroke in the word 'Singh', in thebody of small 'a' and at the foot of letter 'j' in the signature.
2.(c) Hesitating line quality and irregular pen-pressure areobserved in the base of first staff of 'H' in the secondvertical staff of letter 'H' in the connecting stroke between 'H' and 'a' in combination 'arj', in the connectingstroke between letters 't, and 'S' and in the starting strokeand body of letter 'S' in signature marked 'G'. Entire signature marked 'G' shows drawn hesitating and inert linequality.
3.(a) Careful joining of stroke and unusual pen-lifts are observed in the questioned signature marked C at the startof letter 'H' in the body of letter 'S' and in the curvestroke after letter 'S'. The starting stroke of 'Hshows opposite direction of movement from the point ofcareful joining.
3.(b) Careful retouching is observed in the body of 'a' atthe top of 's' at the top of 't and at the start of the hookedstroke of 'H' as well as at the top of final vertical strokeof word 'Singh'. Lower connecting stroke of letter 'H' alsoshown careful joining of strokes.
3.(c) Hesitating line quality and irregular pen-pressure arepresent almost in the entire signature marked C but moreprominently seen in the lower loop of 'H' in the secondvertical staff of 'H' and in the stroke between 'f and'S'.
4.Although there is similarity in letter forms when comparedwith admitted signatures too much attention is given tounimportant' details and there is a slow, hesitating andunnatural appearance.
5.As between C and G small differences have been createdbut it has been done deliberately as pretence for naturalvariation.
6.(a) In admitted signatures letter 'i' is written isolated withdownward start but in the questioned signatures it is written very slowly with a light pressure and written in theopposite direction.
6.(b) Connecting stroke between the two vertical staffs inletter 'H' shows divergence in their execution being Compared with admitted signatures.
6.(c) Formation of an alongated lower loop at the base ofthe first staff of letter 'H' is very rate habit and observedin out one of 96 signatures but it appeared in almostidentical manner in both the questioned signatures.
7.Admitted signatures show fluent line quality with delicateand controlled pen-pressure tapering start in the beginningand finish at' the end of the stroke in dictating that the handwas in motion before the pen touched the paper and alsoafter it had left while there was absence of such start orfinish in questioned writings".
(126) Of the scholarship and experience of C. W. 1 there can hardly beany doubt. He was trained in the office of Examiner of QuestionedDocuments at Simla in Home Office Forensic Laboratory, Governmentof U.K. and in the Interpol Headquarters at Paris. Though technicallyhe is under the administrative control of the C.B.I. the real controlvested with the Director who was a scientist. There is absolutely noreason to doubt his impartiality. He had carried on his investigationwith the help of scientific aids. More than all his view is fully supported by the probabilities and human conduct such as referred toabove.
(127) On this point D.W. 41 was examined on behalf of Ravi ; he onlyendorsed most of the observations in regard to frauldulent retouching,poor line quality, hesitation in execution of strokes etc. explained byC.W. 1.
(128) SUNIL'S counsel made a request for cross-examining D. W. 41 whichwas also allowed; but, as observed by the learned trial Judge, nothingcould be brought out regarding the points where C.W. 1 and D.W.41 were in agreement. But not content with cross-examining D.W.41 Sunil also examined -a. private handwriting expert R. R. Mahant(D. W. 40). He made a report (Ex. D.W. 40/B). After examiningthe originals for about 45 minutes and the photographs for a dayor two he claimed that the disputed signatures were free from fraudulent retouching, hesitation and futile pen stops and pen lifts atunusual places. On the other hand, he claimed that the movementwas of the wrist; the line quality is perfect and speed rapid and personal characteristics like alignment, slant, pen pressure and shadingwere similar in the questioned and sample signatures. But he wasperforce obliged to admit various details during his cross-examination which were put to him on the basis of the observations madeby C.W. 1. He had to agree with some of them.
(129) As opposed to the status of C.W. I, D.W. 41 does not even contribute any article to any journal. He knew when he has called to giveevidence that the Government Examiner of Questioned Documents hadexpressed the view that it was a case of false simulation. D.W. 41 completed the report on 15th and appeared in court on 16th for giving evidence. He claimed that he was not contacted by any of the parties beforecoming to the witness box. He was not even paid by the party for his opinion or preparation of photographs, it being merely agreed that the expenses would be paid. The learned trial Judge waS rightly of theview that these circumstances divest the witness of impartial character and undermine the value of his evidence considerably. The learned trial Judge himself conipaned the disputed specimen of signaturesCD/78-6of P. W. I. We have also done so. We have no difficulty at all inupholding that Ex. D. W. 34/A did not contain the signature ofP. W. 1 and that the same had been fraudulently manipulated inorder to buttress the defense that P. W. 1 was away at Bombay atabout the time of the occurrence at Delhi.
(130) On the view taken by the learned trial Judge himself, and theview we also take of the evidence of D.Ws. 33 and 34 and Ex. D. W.34/A, we feel that it was expedient in the public interest to have orderedprosecutions against both of them. It is so shocking that membersof this noble profession, one of them a Presidency Magistrate to boot,should have been guilty of such ignoble conduct. Our view is thatEx. D. W. 34/A was subsequently conducted for the purpose of providing a false alibi. But for the labour involved all round-even onour part-it would have been not only difficult to expose Ex. D. W.34/A as a forgery the true character of D. Ws. 33 and 34 but avoidthe damaging impact of the same on this case. If, as we pointed outearlier, P. W. 1 was at Bombay on September 27/28, 1973, he couldnot have been present at Delhi on 28/09/1973 during t "340.(1) When, upon an application made to it in this behalf or otherwise, any Court is of the opinion that it isexpedient in the interests of justice that an injury should .be made into any offence referred to in clause (b) ofsub-section (1) of section 195, which appears to havebeen committed in or in relation to a proceeding in thatCourt or, as the case may be, in respect of a documentproduced or given in evidence in a proceeding in thatCourt, such Court may, after such prelimnary inquiry,if any, as it thinks necessary,-
(A)record a finding to that effect;
MAKEa complaint thereof in writing;
SENDit to a Magistrate of the class having jurisdiction ;
TAKEsufficient security for the appearance of the acJused before such Magistrate, or if the alleged offenceis non-bailable and the Court thinks it necessary toto do, send the accused in custody to such Magistrate;and bind over any person to appear and give evidencebefore such Magistrate.
(2)The power conferred on a Court by sub-section (1) in respect of an offence may, in any case, where that Courthas neither made a complaint under sub-section (1) in respect of that offence nor rejected an application forthe making of such complaint, be exercised by the Courtto which such former Court is subordinate within themeaning of sub-section (4) of section 195.
ANappeal could have been filed, however, under section 341 of thesame Code, we cduld then have given effect to our true intention inthis matter. But we are handicapped because of no such appeal having been filed; we regret that no appeal has been filed.
(131) In the circumstances we have only to content ourselves with expressing our strongest condemnation, which we do, of the conductofD.Ws 33 and 34.
(132) (6) The suggestion made on behalf of V. Jaggi was that P. W. Iwas a blackmailer who threatened to implicate V. Jaggi if he (P. W. 1)was not paid Rs. 50.000.00 as demanded. This demand is said to havebeen conveyed by Public Witness 1 to V. Jaggi inside Tihar Jail in circumstanceswhich are unbelievable. Mahandra Kumar (D.W. 29) got Ex.D.W.23/A typed as requested by Public Witness 1; D.W. 29 also gave his pen to Public Witness I for signing it after he got it typed the same evening when Public Witness 1 askedhim to hand it over to V. Jaggi; D. W. 29 declined. He is able tofix the time of the above as 26/03/1974 because it was the dayof his sister's matrriage, which he could not attend. D. W. 29 wasa life convict undergoing imprisonment in Tihar Jail. D. W. 29 informed V. Jaggi about this only in the first week of June 1976.
(133) Virendra Kumar Bajaj (D. W. 23) a student of M.A. (Previous)claimed to know P. W. 1 for about five or six years. He provedP. W. l's signature in certain documents including in Ex. V. J. I(also marked as Ex. D.W. 23/A).
(134) The so-called experts produced by the defense this case only serveto highlights the dis-service that such expels do not only to themselves but also to the cause of forensic science itself. The fact thatsome experts are willing to forswear themselves cannot, however, bea reason for not paying the weight that is due to the testimony ofthose who are found to be sufficiently knowledgeable in this field andreliable. The ultimate reponsibility in this respect, however, lies withthe court, which will not hesitate to discard testimony of no valueand pay regard to that which it considers is sufficiently weighty andacceptable-a weighty opinion, in this sense, is the one which isscientific, backed by expertise and given with the aid of tools whichmodern, science and technology have made available. In all thesecases, which we have examined with minute care and labour, we haveno doubt that the opinions pertaining to them given by P. W. 97and C. W. 1 are entitled to great weight, while those of D.Ws. 3637, 38 & 41 (P R. Maham getting two D. W. numbers 38 and 40,and 37 being examined once over again as D. W. 39) have only tobe discarded. The expert witnesses examined for the defense, have.without any exception, tried to confuse and confound by malkingmuch of even these features which can be reasonably attributed to"natural variations" (in the case of Exts. Public Witness 97/B and Public Witness I/M)and not paying regard to "dissimilarities" which are consistent withand are "fundamental to the structure" of the signatures (in the caseof Ex's D.Ws. 34/A 23'/A, 38 G and G/l to 3. and Ex.' Public Witness 2/S.M. (a) while C.W. 1 and Public Witness 97 have paid adequate attentionto all relevant aspects. The evidence of experts who do not "readand re-read" the concerned writings and "study" it until the examiners became "falmiliar" with their appearance "as to become able tointerpret any word at a glance" is practically worthless; none of theexperts examined for the defense even claims to have taken suchefforts : on the contrary, their evidence leaves one with the impression that they had not done so. The defense evidence in this respectdoes not even seem to advert to the feature of "inconspicuous dissimilarities" being "deliberately introduced as disguise"-a featurewhich is only conspicuous in the sample writing written after dictation in Court. The quality of the evidence of P. W. 97 and C. W. Iis doubtless high, they are supported by the substantive, evidence in thecase and other attendant circumstances; in sheer contrast to the defensein this respect.Evidence of P.W .1'.
(135) (1) It was coatended that .the tender of pardon in this case isinvalid because there was no need for.taking Public Witness 1 as an approverin the view that there were six eye witnesses and that even the existence of those eye-witnesses had not been brought to the pointednotice of Shn K. B. Andley, Magistrate, who passed the order tendering the pardon conditionally to P. W. 1 by his order dated Marc 22/03/1974 (vide page 104, Vol. V-A of the record). There is hardlyany substance in this contention because Shri Andley has specificallystated in his order that the case of criminal conspiracy prima faderests on the substantial evidence of P. W.I and he therefore considered it necessary, in the interest of justice, to make P. W. 1 an approver in the case, in the absence of sufficient direct evidence of conspiracy. For this reason alone the argument for the appellants hasto be repelled.
(136) The order is also one which is thus supported by reasons as required by S. 337-IA.
(137) Yet another contention bearing on the offer of conditional pardon, which was urged on behalf of the appellants was that betoretendering pardon a full statement of P. W. 1 should have been recorded. We do not think there is any force in this contention either.On this point our attention has been drawn by Mr. Kaira to thedecision of A. A. Dave, J. in Gagu v. State of Gujarat (1975 CriminalLaw Journal 670). It is to the effect that the prosecution cannotbe compelled to get the statement recorded under S. 164, Criminal Procedure Code .before the approver is actually examined by the Magistrate asprovided under S. 337(2) Criminal Procedure Code . (paragraph 8, page673). We respectfully agree with this view.
(138) With the above principle in mind the observations of MurtazaFazal Ali, J. in Maghar Singh v. State of Punjab may be read in order to make this position clearer : "IT is true that Baldev Singh did not say that he took anyactive part in the assault on the deceased, but his statement clearly shows that he was a privy to an abetter inthe commission of the offence. The Magistrate whogranted the pardon to the approver was fully satisfiedthat the approver was going to make a full and completedisclosure which has undoubtedly, did. Tn these circumstances, we do not think that the provisions of S. 337 of the Code of Criminal Procedure have been violated in any way". (139) The above observation clearly shows that the offer of conditional pardon can be made even before recording a statement of that person. (2)Administration of oath to a person to whom pardon hasbeen tendered when examining him under section 164, Cr.P. C. 1898 (140) Mr. Ram Jethmalani, counsel for V. Jaggi, has put forward aninteresting argument: no oath can be administered to an approverto whom pardon has been tendered when his statement is recordedunder section 164, Criminal Procedure Code . He went so far as to say that to noperson, whether he is an ordinary witness or a person to whom pardon has been tendered, could oath be administered. (141) For the above proposition he relied upon the following provisions of the Oaths Act of 1873 and the still later Act of 1969. Sections4 and 5 of the former Act read as follows : "4.Authority to administer oaths and affirmations. THEfollowing Courts and persons are authorized to ajdminister, by themselves or by an officer empowered by themin this behalf, oaths and affirmations in discharge of theduties or in exercise of the powers imposed or conferredupon them respectively by law: (A)all Courts and persons having by law or consent ofparties authority to receive evidence ; Provided- 5.Oaths or affirmations to be made by witnesses; (A)all witnesses, that is to say, all persons who may lawfully be examined, to give, or be required to give,evidence by or before any Court or person having bylaw or consent, of parties authority, to examine suchpersons or to receive evidence; etc. Provided- (142) Nothing herein contained shall render it lawful to administer, IN a criminal proceeding, an oath or affirmation to the accused person,unless he is examined as a witness for the defense or necessary toadminister to the official interpreter of any Court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those dtities. (143) Corresponding sections in the later Act of 1969 are sections 3and 4 and they read as follows: "3.Power to a,dminister oaths.-(1) The following Courisand persons shall have power to administer, by themselves or, subject to the provisions of sub-section (2) ofsection 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the dutiesimposed or in exercise of the powers conferred uponthem by law, namely: (A)all Courts and persons having by law or consent ofparties authority to receive evidence; (2)without prejudice to the powers conferred by subsection (1) or by or under any other law for thetime being in force, any Court. Judge, Magistrate orperson may administer oaths and affirmations for thepurpose of affidavits, if empowered in this behalf- (A)by the High Court, in respect of affidavits for thepurpose of judicial proceedings; or by the State Government in respect of other affidavits. 4.Oaths or affirmations to be made by witnesses, interpreters and jurors: (1)Oaths or affirmations shall be made by the followingpersons, namely:- (A)all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court or person having bylaw or consent of parties authority to examine suchpersons or to receive evidence. Provided-(2) Nothing in this section shall render it lawful to aidminister, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as awitnessfor the defense, or necessary to administer to the offcial interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmatiolthat he will faithfully discharge those duties." (144) Section 164(5) of the Criminal Procedure Code, 1973, aamended, reads as follows: "SEC. 164(5). Any statement (other than a confession) madeunder sub-section (1) shall be recorded in such mannrhereinafter provided for the recording of evidence asis, in the opinion of the Magistrate, best fitted to flucircumstances of the case; and the Magistrate shall havepower to administer oath to the person whose statementis so recarded." (145) In the Criminal Procedure Code, 1893, as it stood before theamendment of 1973, the relevant provision was section 164(2); itread as follows: SECTION 164(2) such statements shall be recorded in such of the manners, hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circum. stances of the case. Such confessions shall be recordedand signed in the manner provided in section 364, wdsuch statements or confessions shall then be forwardedto the Magistrate by whom the case is to be inquired into or tried. (146) The Forty first Report of the Law Commission, which preceded the introduction of section 164(5) of the Criminal Procedure Codeof 1973, had stated as follows : "THEearlier Report (37th) conside the question whether;the statements recorded under'sedtion 164 should be. on oath recommended that they should be.The actualpracticc,"weundeistaBd varies; but it wouldcertainly be proper if such statemente are always madeon oath, and this should be provided in the section itself" as it has been done by the new sub-section (5).]" (147) The new Criminal Procedure Code came into force on 1/04/1974; ''this case was taken congnisance of only afterwards ; the New'Code applied to the trial of this'case.But the statement of P. W.Iunder section 164 was recroded before 'that date.In terms of section 484(2)(a) of the New Code if, immediately befare the date onhich this Code comes into force, there is any investigation pending,then the same shall be disposed of, continued, held or made, as thecase may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement (old Code) as if this Code had not come into force. (148) We have only to consider section 164(2) of the old Code and the decisions, bearing on this question under the old Code.
(149) The question whether an accused person could be converted into a witness with a pardon being lawfully granted to him under section 347 of the then Code of Criminal Procedure (Act X of 1872)came up for decision before the Bombay High Court in Reg v. Hanmanta 1876-77 I.L.R. (1) p. 610; but that decision does not specificallbearon the question of administering the oath to a person,to whom pardon was tendered and accepted. In Queen Empress v.Alagu Kone 1893 (16) I.L.R. Madras p. 421, a Division Bench ofthat Court held .that a Magistrate acting under section 164 Criminal Procedure Code had power to administer an oath while holding aninquiry under section 159 Criminal Procedure Code . and recording statement under section 164, Criminal Procedure Code . Reference was made to the Ooths Act, 1873;the following observations were made:
"THEterm "Court" includes all Magistrates (section 3 of (heIndian Evidence Act).
THEdirection in section 164 that the statement shall be re acocdedinone of the manners prescribed for recordingevidence is merely a direction as to procedure. The statement itseif was one which the law (section 164. Cri-minal Procedure Code), permitted to be made beforethe Court by a witness, and is therefore evidence withinthe definition of section 3 of the Indian Evidence Act the person making it was witness within the meaningof section 5 of the Oaths Act, and therefore one toIwhom an oath or affirmation might be administered."
(150) ' Yet another Division Bench of the Madras High Court, following Alagu Kone, came to the conclusion in Suppa Tevan &0rs. v.' Emperor, I.L.R. 1906(29) Madras p. 89 that a Magistrate takingstatements under section 164 of the Code of Criminal procedtare actd in discharge of duties imposed cm him by law and is empoweredto administer an oath under sections 4 and 5 of the Oaths Act. Thequestion arose as to whether such, a person could be prosecuted formaking a false statement on oath. The earlier decision in Alagu Konewas merely followed without any discussion.
(151) The view that the Magistrate recording statements under section 164, Criminal Procedure Code is a Court did not find the approvalof the Judicial Committee of the Privy Council, which pointed outin that a Magistrate acting under section 164 is not a Court.
(152) One of the two questions referred to a Full Bench of the Nagpur High Court in Rambharose Narbadaprasad Kachhi v. Emperor, A.I.R1944 Nagpur p. 105, specifically raised is; "(1)Once an approver has been tendered a pardon under S. 337(1), Criminal Procedure Code, and he has accepted the tender, can his statement be legally recorded under S. 164 on affirmation, or can it only be recorded as a confession under S. 164 read with S. 364?" (153) As the opinion of the Full Bench itself shows there seems to have been no disagreement between two Judges who differed, resulting in the reference to the Full Bench, on the point herein discussed;one of them (Bose, J.) had observed as follows : "ITmay be that an approver can be examined under S. 164 after pardon. It may even be desirable at times that heshould be so examined. And if he is so examined hemust, I think, be examined on oath." (154) The Full Bench opinion shows that the question on which there was difference of opinion had arisen between the two Judges, (Boseand Digby, JJ) as follows: "WHETHERsuch a statement can be given under section 339 (2)Criminal Procedure Code . against the approver in the subsequenttrial of the approver for the original offence?"
THATis not the question which has to be discussed now. Mr RamJethmalani only contended that no oath could be lawfully administered to a person accused of an offence, to whom a pardon was tendered and accepted; he went even further to say that to no witnessexamined under S. 164 could oath he administered; the reason putforward by him in support of this contention is that .the statementof an ordinary witness under section 164, Criminal Procedure Code . could not be readas an evidence at the trial; in other WOrds, SUCh & Statmant iS nOtsubstantive evidence at the trial. No decision has been brought to ournotice to show that even ordinary witnesses cannot be examined under section 164, Criminal Procedure Code . prior to the commencement of the trial.
(155) The present case deals with the tender of pardon, which wasaccepted, to Public Witness 1; the statement, recorded under section 164, Cr.P. C. of the old Criminal Procedure Code . the question, so far as this case is concerned would have to be determined not only on a construction of Section 164(2) generally but on the law as it seems to have beenapplied to this particular area, belonging to the former Punjab. Itseems sufficient, on this point, to refer to Emperor v. Hussaina, AIR1933 Lahore 868 where Abdul Rashid, J. held that there is no legalbar to the examination of aCn approver who had accepted tender ofpardon for being examined under section 164 Criminal Procedure Code . like any otherwitness. The previous authorities of the same Court were followed;the view of Rangoon High Court in was not followed.
(156) On a matter of procedure, specially after there has been anamendment of the relevant statutory provision, either clarifying or evenstaling the law for the future (assuming it is so) it would not bedesirable or proper to take any view contrary to the practice in theconcerned area, Delhi having been formerly a part of Punjab, thepractice as laid down by the Lahore High Court governed and IT would not be proper to differ from it. We are also, even independently, in respectful agreement with the view taken by the High Courtof Lahore and Nagpur on this point.
(157) In any case, it is by no means clear to us how the administrationof an oath to the approver who has accepted the pardon tenderedto him can even lead to atoy prejudice so far as the appellants are concerned. The administration of an oath would only operate as a con'straint against speaking falsely; this is some thing which should nor-mally ensure to the benefit of other appellants rather than be construed aS some thing which can work out to their prejudice.
(158) (3) Mr. Jethmalani has raised yet another interesting questionof law. According to him a Magistrate tendering conditional pardonto an accused person passes a judicial order, he should, therefore,pass sluch an order only after hearing the persons (the other accused)who are likely to be affected by such an order. In order toappreciate this contention it is necessary to read sub-section (1) and1-A of S. 337 of the Code of Criminal Procedure, 1898 :
"337.Tender of pardon to accomplice-(1) in the case ofany offence friable exclusively by the High Court orCourt of Sessions, or any offence punishable with imprisonment (which may extend to seven years) or anyoffence under any of the following sections of the IndianPenal Code, namely, sections 161, 165, 165-A, 216-A, 369, 401, 435 and 477-A, the District Magistrate, a Presidency Magistrate, a Sub-ivisional Magistrate or anyMagistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence,with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned inor privy to the offence, tender a pardon to such personon condition of his making at full and true disclosure ofthe whole of the circumstances within his knowledgerelative to the offence and to every other person concerned, whether as principal or abettor, in the commissionthereof:
PROVIDED that. where the offence is under inquiry or trial noMagistrate of the first class other than the DistrictMagistrate shall exercise the power hereby conferred, unlesshe is the Magistrate making the inquiry or holding thetrial, and, where the offence is under investigation, nosuch Magistrate shall exercise the said power unless heis a Magistrate having jurisdiction in a place where theoffence might be inquired into or tried and the sanctionof the District Magistrate has been obtained to the exercise thereof.
(I-A)Every Magistrate who tenders a pardon under subsection (1) shall recard his reasons for so doing, andshall, on application made by the accused, furnish him with a copy of such record;
PROVIDED that the accused shall pay for the same unless theMagistrate for some special reason thinks fit to furnishit free of cost."
(159) On aplain reading of S. 337(1) the stage at which a conditionalpardon can be tendered has been indicated: "at any stage of theinvestigation or inquiry inquiry into or trial of the offence, with a view toobtaining the evidence of any person supposed to have been directlyor indirectly concerned in or privy to the offence......". Having thusindicated the stage from and up to which conditional pardon can betendered the proviso imposes the limitation that the power of tendering such pardon cannot be exercised by any 1st Class Magistrate;other than the District Magistrate, unless he is a Magistrate matingthe inquiry or hiding the trial there is the rider added that when theoffence is under investigation no such Magistrate shall exercise thesaid power unless he is a Magistrate having jurisdiction in a placewhere the offence might be enquired into or tried and the sanctionof the District Magistrate has been obtained to the exercise thereof. the above sub-section (1) and the proviso make a distinction between two stages of the case, namely, the stage of investigation andthe later inquiry into or trial of the offence. In the present case weare concerned with the tender of pardon at the stage of investigation,that is, before the stage of inquiry or trial. This distinction has tobe prominently borne in mind while noticing some of the cases citedto us at the bar. The following observations of B- P. Jha, J. in P. R.Sarkar v. State of Bihar (1974 Criminal Law Journal 957) seem tobear precisely on this question. "If the order granting pardon ispassed during investigation, the accused shall not be heard becausetill that time no police report (chargesheet under section 173 of theCode) is preferred against the acdused persons" . In a petition under S. 561-A of the old Criminal Procedure Code . to quashi the commitment the validity of the order of a Magistrate tendering pardonwithout recording reasons was held to be illegal. After giving adirection for the tendering of pardon, if necessary, in accordance withlaw the learned Judge made certain observations to indicate that theDistrict Magistrate while granting pardon would "bear the accusedpersons also because it is a judicial proceeding."
(160) The existence of a judicial proceeding, when an offer of pardonis made, seems to make a difference-a vital difference- in thematter of whether any person who may be said to be affected bythe order of tender of pardon should also be beard. When there isno judicial proceeding in existence, the hearing of any person couldnot even be postulated. If there should be any such hearing even atthat stage the question naturally arises as to who would be the persons who should be heard. Are they the persons who are thenarraigned by the police as accused ? Supposing, in this eventuality, thosewho ar& arraigned as accused persons by the police are heard butsome more parsons are added as accused after the pardon is tenderedand accepted but before chairg-sheet. is filed, would the order oftender of pardon, made already, become invalid as against those whowere added later, on the ground that they (or any of them) werenot heard? Could it be even suggested that the Magistrate is under aduty to hear the newly added persons (after tender of pardon) andreview or set aside the pardon granted by him already to anaccused ? Supposing an order of tender of pardon is made withouthearing the other or some, arraigned by the police during the stageof investigation as accused but those persons are subsequently dropped when the charge sheet is filed would that order be regarded asinvalid because the Magistrate was bound to have heard thosearraigned by the police as accused, even though they have been subsequently dropped by the police. Surely, one should be slow to reacha conclusion, on this portion of the case, which would give rise toso many anomalies. On the other hand, by making a distinction between the stage of investigation and the later stage of trial or enquiry, such anomalies at least are altogether avoided; for that reasonitself, even if not for any other, such a distinction may well be made.
(161) We respectfully agree with B. P. Jha, J. when he made such adistinction, though he has not articulated the reasons in support ofthe distinction he made.
(162) The accent, therefore, is on the existence of any judicial proceedingwhen there are a plurality of persons arranged before the Court asaccused and pardon is being tendered to one of them. When it is noteven ascertained (or ascertainable) who are the persons who haveto face the enquiry or trial (which can happen only after the investigation by the police is over and the charge sheet is filed) it would beidle to contend that the concerned Magistrate is bound to hear anysuch person.
(163) We are content to point out in this case, therefore, that it wasnot necessary to hear any of the other acdused when pardon wastendered to P. W.I in this case and accepted by him. No authorityhas been brought to our notice which requires any other accused to'be heard before tender of pardon to a person accused of a crimeeven during the stage of investigation. In this view it would indeed beneedless to be detained by those decisions which related to tenderof pardon after the completion of the investigation and during theinquiry or trial. But since this point also-like so many others arisingin this case-was argued at considerable length, we may also referto the decisions cited by Mr. Jethmalani.
(164) Our attention has been invited by Mr. Je: hmalani to the decisionin Lt. Commander Pascal Fernandes v. State of Maharashtra . That was a case which arose under S. 82 of theCriminal Law Amendment Act, 1952; the Special Judge was empowered to tender pardon. After the inquiry/trial started a pardonwas tendered by the Special Judge on his own motion. Hidayatullah,J. (as he then was), speaking for the court, observed that in such acase, there being no committal proceeding the fiction of proceedings fortender of pardon as arising under S. 338 Criminal Procedure Code . (old) should beinvoked; there was nothing to show that the Special Judge must bemoved by the prosecution; he may consider an offer by the accused inthis behalf. The following observations succinctfully explain the positionas it obtains even after the commencement of enquiry/trial : "TOdetermine whether the accused's tetimony as an approveris likely to advance the interest of justice, the SpecialJudge must have material before him to show what thenature of that testimony will be. Ordinarily it is for the prosecution to ask that a particular accused, out of several,'may be tendered pardon. But even where the accuseddirectly applies to the Special Judges he must first referthe request to the prosecuting agency' It is not for theSpecial Judge to enter the ring as a veritable director ofprosecution. The power which the Special fudge exercisesis not on his own behalf but on behalf of the prosecutingagency, and must, therefore, be exercised only when theprosecution joins in the request. The State may not desirethat any accused be tendered pardon because it does notneed approver's testimony. It may also not like the tenderof pardon to the particular accused because he may bethe brain behind the crime or the worst offender. Theproper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner.If the prosecution thinks that the tender of pardon willbe in the interest of a successful prosecution of the otheroffenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon.........All that he should have donewas to have asked for the opinion of the Public Prosecutoron the proposal. But since the Public Prosecutor, whenappearing is the High Court, stated that the prosecutionalso considered favorably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judgesin the matter of tender of pardon suo motu at the requestof the accused. This practice is to be avoided. Since theprosecution in this case also wants that the tender ofpardon be made it is obvious that the appeal must fail.It will accordingly be dismissed".
(165) While the above decision does not have any bearing upon thequestion which is now being discussed namely, whether the otheraccused persons should be heard or not even at the stage of investigation, it shows on the other hand, that even after the inquiry/trialcommences there was practically very little which the Special Judgein that case could have done when the prosecutor, as the above observations made in that case show, had desired that pardon should betendered to the person concerned.
(166) Mr. Jethmalani drew our attention to the decision of this Court byS. N. Andley, J. (as he then was) in M. M. Kochar v. The State where the question arcse whether a revisionwould lie against an order tendering pardon. It was held that no revision lay. That was a case, it may be noted where the pardon wastendered not during the stage of investigation but later. It is also broughtto Our notice that though an appeal was filed in the Supreme Courtagainst the said decision the same was dismissed in Criminal AppealNo. 109 of 1968 by a judgment dated 16-9-1968. Andley, J. held thatthe tender of pardon in that case was proper; the Supreme Court leftopen the question whether the revision lay against the said order.
(167) The question whether a revision lay came up before the SupremeCourt for consideration once again in State of U.P. v. Kailash NathAggarwal. where Vaidialingam, J. speakingfor the Court, disagreed with the view of Andley, J.; it was held thata revision lay. The question, as it arises in the present form, did notarise for decision before the Supreme Court in that case either: the question whether a revision lies to this court against the said order of tender of pardon to Public Witness 1 does not arise for consideration now. It maybe noted, for the sake of completeness that a revision was filedagainst the said order in this court (being Cri. M. No. 46 of 1974)which was dismissed by one of us (R. N. Aggarwal, J.) by order dated26-3-1974. It is needless to be detained by this order because despitethe dismissal of the said revision it will be open to the appellants tocontend before us in this appeal that the said order is invalid becauseit was not passed after hearing the appellants in this case if such hearing was necessary in law. We permitted the above said point to beargued before us and it was done at considerable length; but we areof the view that at the stage of investigation and before the inquiry/trial commences there was no obligation on the part of the Magistrateto hear the appellants.
(168) It may be also pointedly noticed that in Kailash Nath Aggarwalalso the pardon was tendered not during the investigation but duringthe later stage of inquiry/trial. The argument that the appellantsshould have been heard before tendering of pardon to Public Witness 1 in thiscase is, therefore, one without any force.
(169) (4) The two provisions in the Evidence Act bearing on the evidence of approvers are contained in Ss. 133 and illustration (b) of S. 114; the former makes an accomplice a competent witness rendering a conviction based on the testimony of an approver alone notillegal; the latter enables the court to presume that an accomplice isnot worthy of credit unless he is corroborated in material particulars.The latter represents the rule of prudence; the former is a rule of law.Courts have interpreted the above two provisions to mean the rule ofprudence as practically amounting to a rule of law. A discussion ofthis aspect would be .academic because, as the subsequent discussionwill show, there is corroboration in material particulars available in respect of P.W- l's evidence. The corroboration which is requiredis, however, not concerning details of what the approver sepaks; ifthis were so, it would tantamount to saying that the evidence of anapprover is practically superfluous or unnecessary the reason for taking an accused as approver is only to overcome the difficulty of nothaving direct or sufficient evidence. The requirement of corroboration, therefore, has necessarily to be understood as "corroborating ortending to corroborate" the fact of every one of the accused in a casebeing a participant in the crime. In other words, the courts wouldhave to keep in mind the danger of an approver introducing eveninnocent persons into a framework available to the prosecution. Adistinction has also to be made in this respect between confessionswhich run into rich details and an approver's testimony; the mererichness of details of a confession, when it is retracted from, wouldnot be sufficient to give assurance, because the details can emanatepurely from the rich imagination of an accused person, who free tosay anything he wishes-even concerning other co-accused-but anapprover is circumscribed not only by the framework of the prosecution but also being tested by cross-examination; the requirement ofprudence is that the approver is corroborated in material particulars.The decisions, cited to us but which we do not consider necessary toset out, containing observations made with reference to retracted confessions by accused persons are not useful tons now. The testimonyof Public Witness 1 in the present case running into so many details and recor-ded in two spells and on following dates seem to 170 of some significance; the greater would be the value to be attached to the testimonyof P.W- 1 since on so many paniculars he seems to be corroborationincluding several minor details-some of them though minor are verysignificant and provide "odd coincidences" which are capable ofgiving us the needed assurance to safely act upon his evidence- whichwould, without them, be regarded as infirm, .
(170) The classical observations of Lord Reading, C.J- in The King v.Baskerville [l916(2) K.B. 658] which have been either repeated orthe substance of which has been embodied in the subsequent decidedcases both in England and in India have doubtless highlightedthe duty of care in receiving the testimony of an accomplice, It wasfurther pointed out by Gajendragadkar, J. (as he then was) speakingfor the Supreme Court in Sarwan Singh Rattan Singh v. State ofPunjab that the evidence of an approver hasto satisfy a "double test". The first is that his evidence might revealthat he is a reliable witness--a test common to all witnesses, Ifthis test were to be satisfied the second test, which would still remainto be applied, is whether his evidence receives "sufficient corroboration"-a test which is special to cases of weak or tainted evidencelike that of an approver. The camion was also sounded that it shouldnot be acted upon merely because ii is corroborated in minor particulars or incidental details for by themselves they may not afford thenecessary assurance that the main story disclosed by the approvercan be reasonably and safely accepted as true-hence the requirementof corroboration in material particulars. It seems well worthadding that "corroboration in material particulars", against each ofthe culprits, would include telling or significant "odd coincidence,"in the language of Lord Widgery, C-J. in Turnbull; they may alsobe described as "joint coincidence" or "mutual corroboration".
(171) The "double test" was explained by the Supreme Court inSaravanabhavan v. State of Madras : theapprover's testimony is not to be dealt with in two water-tight com-partments but must be considered as a whole and along with otherevidence. The test, in other words, is whether his evidenceis credible by itself; if it is not credible by itself thenthere is no need for the court to trouble itself with suchevidence. While considering whether the evidence of an approver credible by itself all facts bearing on whether the evidence given hvhim is inherently improbable are important; as already noticed, IT would be unreliable if it is shown, for instance, that at the time andplace where something is alleged to have happened in his presence, hewas somewhere else and could not have been present there or then.Shorn of such a feature and when his evidence can be true, referencemay be made to corroborative pieces of evidence which are meaningful and lend assurance about the truth of his evidence. Chandrachud,speaking for the Supreme Court in a very recent case (vide Dagduv. State of Maharashtra ) has shown how therule of law is subject to the rule of prudence. The proposition, that IT is not illegal to act on his testimony alone would only apply to caseswhere in a given situation or having regard to peculiar circumstancesit would be found safe to dispense with corroboration, was reiterated;the further observation that if he did not pass the test of reliabilitythere will be no need to consider his evidence further was made inthe above context.
(172) In Sheshanna Bhumanna Yadav corroborative evidence was explained as being confirmatoryevidence; it may consist of evidence of witnesses or even of circumstances ; corroboration must connect and tend to conned the accusedwith the crime.
(173) In the light of the above principles we may examine the evidenceof Public Witness 1. There docs not appear to be any inherent improbabilityin the version given by the approver; in this sense, therefore, his evidence does not suffer from unreliability in the sense in which theabove cases have used the said expression. The defense case thatP.W. 1 was away in Bombay on the date of the occurrence, not atDelhi, for the execution and swearing of the alleged power of attorneyby Public Witness 1 (vide Ex D.W. 34/A) was seen to be a false one: it was adaring attempt to deceive the court. If it was possible to hold thatP.W. 1 was away at Bombay, as it is claimed, and had sworn Ex.D.W. 34/A at Bombay on 28/09/1973 then, of course, Public Witness l'sevidence would be said to suffer from "unreliability" of the naturedescribed in the above cases and there would be no need to concernourselves further with his evidence. It is worth recalling that. out of158 sample signatures of Public Witness 1 only one of them contained a loopin the letter H; C.W.I considered that this was such an uncommoncharacteristic of his signature; yet both these signatures appearing onEx. D.W.34/A (as : well as in the signature which appears inEx. D.W.23/A (typed letter of blackmail alleged to have been sentby P-W. 1 (vide Ex. D.W. 34/A) was seen to be a false one; it was afeature. Evidently this was the model which was available to theforger, whoever he was; the learned trial Judge was inclined to thinkso; we agree with him.
(174) Nor is there any basis for the view, which was presented by theappellants, that P. W. 1 was in Bhopal till about the 30/09/1973, support for which version was sought to be obtained from theevidence of Public Witness 67. The statement of Public Witness 67 was recorded under S. 164, Criminal Procedure Code . before a Magistrate at Delhi on 8/02/1974. Inthat statement (Ex. P.W-67/B) it was mentioned that Public Witness 1 promisedto return the revolver 3 or 4 days after he had taken the same fromP.W. 67. According to Public Witness 67, on or about 21/09/1973(he was unable to remember the exact date), Public Witness 1 came to hishouse for borrowing the revolver- "Three or four days later" wouldwork out to 24th or 25th September. Ex.P.W.65/B contains thefurther statement of Public Witness 1 that P.W-67 went to Public Witness I's house afteranother four or five days and met Public Witness 1 ; this would take us to 29thor 30th September. For this reason it was claimed that Public Witness l's presenceat Delhi along with the other appellants subsequent to the 21st till thedate of the occurrence could not be correct. But these were onlyapproximate statements from memory. Reliance was also placed, inthis connection, on the second leave application which Public Witness 1 gave(Ex. Public Witness I/C) bearing date 30-9-1973: it is argued that this showsthat Public Witness 1 was in Bhopal when he made the above said application,along with a certificate (Ex. Public Witness I/D), which had been prepared byDr. Joshi, bearing date 30-9-1973. According to Public Witness 1 he had requested Dr. Joshi to ante-date the said certificate; he had obtained itfrom him only on 4/10/1973; this was for enabling him to haveleave in continuation of the leave allied for by him earlier fromSeptember 21st; the said leave expired on September 30th. Dr. Joshihas himself not been examined. He was given up by the prosecutionas having been won over; he was sought to be summoned as adefense witness but was not ultimately examined.
(175) According to his earlier leave application (Ex. Public Witness I/A) dated 20/09/1973 Public Witness 1 had applied for 10 days medical leavewith Sunday to be suffixed. According to Public Witness I/C, bearing the date30-9-1973, he had applied for 5 days leave from the 30th; 5th to 7thbeing holidays were to be suffixed. According to Public Witness I's testimonyhe reached Bhopal on 2/10/1973, but contacted Dr. Joshi for acertificate only on the 4th. The fact of his absence from Bhopalreceives corroboration from Public Witness 1 having been marked absent in hisoffice on October 1st, 3rd and 4th, 2nd being a holiday. The procedure with reference to the grant of leave in his office has beenexplained by M. A. Keskar (P.W. 70), who was working as OfficeSuperintendent at Bhopal in the year 1973. The attendance registeris Ex. Public Witness I/J, which the police took into their possession as perseizure memo (Ex. Public Witness 70/A) dated 30-12-1973; Public Witness 70 hadattested that seizure memo. The police had also seized from Public Witness 70,on 25-2-1974, an Assistant's Diary as per memo Ex. P. W. 70/C,which also he had attested. The procedure followed in the office (ofP-W.I and Public Witness 70) was that when an official arrives in the office heputs his initials against his name in the attendance register on aparticular date; if the official did not come, a cross-mark was put bythe group officer. If the official turns up late he puts his initials andalso mentions the time of arrival ; if he did not turn up the cross-markwould remain. All the papers received in the office, including leaveapplications, would first reach the transit section. In accordancewith this practice the earlier leave application of Public Witness 1 (Ex- P-W.I/A)had reached the transit section; it bears the seal of the transit section.This has to be contrasted with the later leave application (ExP.W.I/C) which did not bear the stamp of the transit .section; it isa fair inference that it never passed through the transit sectionEx. P.W. I/C had been received by one Moolchandani of his office.Moolchandani, cited as a witness in the charge-sheet, could naturallynot be expec ed to speak to the fact that he had not followed theoffice procedure but received Ex. Public Witness I/C directly, even withoutpassing through the transit section. P.W-70 said that that the concerned entry in the register (Ex. Public Witness 70/D), along with some others,appears to have been made by Moolchandani (Sr. Nos- 2820 to 2834) It is seen from Ex. Public Witness 70/D (Assistant's Diary) that the later leaveapplication of Public Witness 1 (Ex. Public Witness I/C) was entered only on 4-10-1973by Moolchandani (at Sr. No. 2825). The same had not been processed by the transit section. Ex- P.W-I/K, the attendance register,contains the entry Ex. Public Witness I/K-I which shows cross-marks againstdates 1st and 3rd October (2nd, a holiday, is blank); 'A' is writtenagainst the 4th and two cross marks on 5th and 6th, respectivelyAccording to Public Witness 1 he had requested Moolchandani to accept theapplication with back date and he had put the date 1-10-1973 belowhis initials at his request. These facts were explained by him in thecourse of his evidence (vide paras 174, 175, 186 and 187, Vol. IIof the record) stating that he was absent from his office on 1st and3rd to 6/10/1973 (2nd being a holiday). Public Witness 70' alsoexplained that mention of "M.C." implied that a medical certificatehad been received in respect of application for leave. The testimonyof P.W-70 has not at all been shaken; he was only asked about theabsence of certain entries in the attendance register (Ex. P-W.I/J)after 30/09/1973 which he explained as having been due toagitation of the staff at that time. Raja Ram Sonakhia (P.W. 71). anAssistant Post-Master General also gave evidence concerning hishaving written the letter 'A' in the enry for October 4th as againstthe name of Public Witness 1 in the attendance register (Ex. Public Witness I/K) to indicate his absence. He specifically stated (p. 630 Vol. II), in answer to aspecific question put to him in cross-examination, that he had personal knowledge of P. W. t no" being present in the office on October3. This is indeed confirmatory of P.W-l's case that P-W.I had notattended his office between September 30 and October 7; the suggestion that he had obtained the medical certificate from Dr. Joshi atBhopal on September 30, has no support for it despite Ex. Public Witness I/Cbearing the date 30-9-1973. Public Witness I's evidence cannot be said to beunreliable by reason of his allegedly being at Bhopal up to the 29thOr 30th September as it is now sought to be made out on the basisof answers given by Public Witness 67. The suggestion of the defense that Public Witness Iwas both at Bhopal and Bombay at about the same time seems tobe mutually destructive ; the truth appears to be that he was neither, atBhopal nor at Bombay but at Delhi at the time of the occurrence. Theevidence of Public Witness 1 cannot, therefore be said to be incredible on thegrounds suggested.
(176) The next aspect for consideration is whe ther by reason of P.W-Inot having given the version he gave after he ha. become an approverto the police he should be regarded as an unreliable witness? It isneedless to refer, on this aspect, to anything more than Public Witness l's ownadmission that before he became approver he made written statements and even submitted incorrect statements (p. 178, Vol. II). Onthis point, however, it is sufficient to note that this might be a characteristic feature on the testimony of approvers who generally chooseto state the truth only after the tender of unconditional pardon ismade', as pointed out by Shelat, J, in Madan Mohan Lal v. State ofPunjab it is only natural that such omissionsor events...... in statements made to police by persons who are lateron taken as approvers often exist; Shelat, J., therefore, underscored theimportance of taking their testimony as a whole. In other words, itwill not be proper to discard wholesale the testimony of the approvermerely on the ground that prior to the tender of conditional pardon tohim he had not mentioned the whole truth to the police.
(177) It does not appear that the appellants would be able to take advantage of a statement said to have been made by the approver tothe police on 21-12-1973 (as per Ex. Public Witness I/DA.2) to the followingeffect:
"ATthis time accused Harjeet Singh told me, the Inspector(P.W.142) that he had kept one thing secret and nowhis conscience does not allow him to keep it secret. Heis of the opinion that when all facts were disclosed to The police then there was no use of keeping this thing assecret."
EARLIER(on 12th) he had stated to the police about the revolver(Ex-P. 9) leading to its recovery by taking the police to P. Ws 34 and67. The revolver was perhaps the most important clue in this case;P.W.I 42 who was recording the statement of an accused is here referring to his having obtained what he believed to be yet anotherimportant piece of evidence. It will be useful to read, on this aspect,Vol. Ill rule 25.53,(2) of the Punjab Police Rules:
"25.53(2).case diaries shall be as brief as possible: shallnot be swollen with lengthy explanations and theories,and shall be written either in English or in simple Urdu.
ONLYsuch incidents of the investigation shall be included ashave a bearing on the case."
(178) P.W.I was making such a statement in the context of his havingstayed with his friend Earnest D'Cruz (P.W.33) for two nights afterthe occurrence-to which aspect we shall revert later, separately.Was Public Witness 1 a car lifter ?
(179) While P-W.I tried to make it appear that he was not involved inlifting cars and that he got released a car from Bareilly only to obligeRavi and Sunil, the defense suggestion was that not only was P.W-Ia habitual car-lifter but that Ravi and Sunil had nothing to do withsuch activities of P-W.I. On this point there does not appear to beanything more than the police having chargesheeted Public Witness 1 Along with Sunil and Ravi concerning the alleged stolen car, Public Witness 1 havingbeen discharged in this case, and the fraudulent effort made to makeit appear that Public Witness 1 as in Bombay about the time of the occurrencein this case to execute and get sworn a power of attorney for saleof cars. The defense effort to paint Public Witness 1 alone as a car lifter andto dissociate Ravi and Sunil from such effrts seems ex-facie a somewhat difficult exercise. Whatever this may be, even assuming P.W-Ihad got the car released from Bareilly on superdari with the knowledge, that it was a stolen car as asserted by the defense and yet he deniedhis knowledge of it this would not have any appreciable impact on theevaluation of Public Witness l's evidence concerning that occurrence in this.case. His evidence is without doubt a tainted one: it is not to be, disregarded merely on the basis of statements made by him or evenhis omission to disclose every thing (even if that be the case) thathe knew prior to the tender of conditional pardon to him- It was seenhow the test of unreliability connotes inherent incredibility; it wouldbe inherently increadible, for instance, if it were proved that he was. at Bombay or even at Bhopal at the time of the occurrence (there isno such proof in this case)- On the other hand, his evidence, so richin details well within and conforming to the framework of the prosecution case, seems to receive substantial corroboration in materialparticulars concerning the participation of each and every one of theappellants. In addition, they seem to derive support from significantdetails and other circumsances, some of them not even known eitherprecisely or sufficient particulars concerning which were not availableto the police when Public Witness 1 was interrogated on 26/12/1973and 2/01/1974. There has been no major contradiction betweenwhat he stated after he was tendered conditional pardon and whathe stated earlier or of the evidence of the other prosecution witnessesexamined in the case, at least such as would impair his testimonysubstantially; not even any significant omission (except the naturalunwillingness to disclose anything or everything against himself beforetender of pardon) which would necessitate the total rejection of hisevidence, has been brought to our notice. On the other hand, hisevidence, viewed as a whole, seems safe to act upon against all andeach of the appellants. The peculiar feature of this case is that it isnot even possible for any to dispute the following; the bank van waslooted at Thompson Road; the money (Rs. 6 lacs) was looted; thegunman as well as the driver was killed; Public Witness s 2 to 6 were in the vanat that time; Public Witness 2 made a prompt report to the police; Public Witness 5 wentto Public Witness 28 immediately and both of them reported telephonically tothe control room; the driver of the bank van made a dying declaration;significant recoveries from each of the appellants, except of coursefrom V. Jaggi, of the looted money.
(180) Counsel for the appellants contended that the evidence of Public Witness Ibecause wholly unreliable because of the contradictions between hisevidence and the rest or even his own prior statements to the police.
(181) Perhaps the most important among the contradictions sought tobe made out in the evidence of P-W.1 relates to how much momeywas disbursed among Public Witness 1 and the appellants except V. Jaggi. Weare afraid there has been some misunderstanding on this question asto what he had told the police. It seems best to refer to his statementto the police on 2/01/1974 (Ex. Public Witness I/DA. 1) which has beenprinted as follows (on P.61 Vol. V): "ITwas earlier disclosed that a sum of Rs. 10,000.00 had cometo the share of each of them but now it has been disclosedthat a sum of Rs. 2,000.00had come to the share of eachindividual."
ONlooking at the original it is seen that he had referred to it asRs. 2,000.00 or Rs. 2,500.00. It is necessary to note that this was not astatement which was recorded, strictly speaking under S. 161 Cr, P.C-;P.W-I was an accused at that time. The mode of interrogation, therefore, followed the procedure adopted in respect of what is usuallyadopted in the case of accused persons. The relevant police rule hasbeen noticed earlier. The police officer concerned made a note in thezimini on the basis of what he had ascertained from the accused. Theabove said statement was one of that description. It does not appearfrom this statement that Public Witness 1 had stated at much earlier point oftime that Rs. 10,000.00 had come to the share of each of them; itseems that while he was being interrogated by Public Witness 142 he at firststated about Rs. 10,000.00 having come to the share of each of themand shortly thereafter corrected himself in the above said manner(Rs.2,000.00 or Rs.2,500.00)-P.W.I had stated on this subject asfollows when he was cross-examined about it (pp. 242-243 vol. II):
"QUESTION:Did you state at any time anywhere, that is beforeany authority that you and your companions had distributed by taking Rs. 10,000.00 each out of the booty?
ANSWER: To the police I had so stated. I did not tell the committing court like that, QUESTION:Did you tell the committing court that you had nottold the police like that ?
ANSWER:Yes (Voltd: We had not taken Rs. 10,000.00 each. Ihad only taken Rs. 20.000.00 (sic for 2,000.00).
QUESTION:When did you hide this from the committing courtof having told the police this fact?
ANSWER:I did not hide this fact. We had not takenRs. 10,000.00 each.
QUESTION:Did you state before the committing court, "that itwas further incorrect to suggest that I had told the policethat we all five had shared Rs. 10,000.00 each"?
QUESTION:Which version is correct out of the versions givenbefore the committing Court and before this Court?
ANSWER:Before this Court."
(182) It is thus seen that his version to the court was that onlyRs. 2,000.00 had been taken by each of them; he had volunteered that they had not taken Rs. 10,000.00 but only Rs. 2,000.00 and, addedthat this answer alone was correct. According to the counsel for theappellants P.W-I was obliged to make this change from Rs. 10,000.00each to only Rs- 2,000.00 or Rs. 2,500.00 each because if it wasRs. 10,000.00 each it would exceed Rs.6 lakhs which were looted,i.e. if the same was added to the amount which had been recoveredduring the course of investigation out of the looted money. Accordingto Public Witness I, however, he had initially stated "Rs. 10,000.00 as requestedby Sunil, in order to cover up the amount of Rs. 20,000.00which hadbeen recoverd from his maternal uncle Sri Krishan Dawar as a resultof the further disclosure statement made by Sunil over and above thesum of Rs. 50.000.00 recovered from inside the brief case from SriKrishan Dawar. Since Rs. 20.000.00 were not actually recoveredfrom Sri Krishan Dawar as stated by Sunil the statement made bySunil !o that effect did not fall within the scope of S. 27; it could notbe considered. These are, however, two rival explanations given byeither side on this question. But it does not even seem necessary tobe detained by a discussion as to which of the two versions is truesince it is clear from a perusal of the statement in the zimini made byP.W. 142 after interrogating Public Witness I that an assertion had been madeby him even at the time of his examination on 2-1-1974, that onlyRs. 2,000.00 or Rs- 2500.00 had come to the share of each of them. IT would thus appear that there is no serious contradiction on this question.
(183) Yet another contradiction pointed out is said to be between theevidence of P.W-I before the trial court and his statement to the policeregarding the amount he had spent for bringing the car on superdarifrom Bareilly, as required by Ravi.
(184) It appears from the statement of Public Witness 1 recorded by the police on 26/12/1973 (Ex. Public Witness I/DA) that he had spent Rs. 1400.00for brining a car and further given a sum of Rs. 1600.00 to SuinilBatra (page 48, volume V). "CARko lane ke liye us ko choda so rupaee aaye. Sola sorupaee us ne Sunil Batra se lene the jo unhon ne car koHarish Singhani Ki marfat Bombay men farokhat kardiya aur us ko teen hazar rupaee."
THEcrucial words are "lene the" not "liye the"; it is only "aaye", not"ayee the". The word "aaye" conveys the idea that the expenses cameto the sum mentioned, namely, Rs. 1400.00.The vernacular expressionkharach", meaning expenses, is not written but seems to be impliedin the context. The said statement only means, in simple terms, thathe had spent a sum of Rs. 1400.00 not that he "was given" a sum ofRs. 1400.00, as wrongly translated, for bringing the car. Public Witness 1 explained before the trial court that he had not taken a sum ofRs. 1600.00 from Sunil but that he had only "to take" Rs. 1600.00from Sunil ("lene the" and not "liye the"). Even regarding the sumof Rs. 3000.00 there was an error in translation, because the intermediary was not given Rs. 3000.00 for the sale of the car; Rs. 3000.00was realised through the intermediary by sale of that car. The sum ofRs. 1400.00 spent by Public Witness 1 coupled with Rs. 1600.00, Public Witness 1 claimedto have given to Suncil, make up Rs, 3000.00. Reading the entire statement made by Public Witness 1 to the police, as it is recorded in Urdu, one isleft clearly with the impression that the sum of Rs. 1400.00 had notbeen given to Public Witness 1 in advance. When cross-examined about thisP.W. 1 stated (page 179 Vol. II) that he had spent Rs. 1400.00 bygoing to Bareilly from Bhopal, a distance of 70 or 80 miles, threetimes; He paid to 'he advocate, for snacks and for taxi fare, the lastamounting to Rs. 1250.00 per round trip. Even before the vehicle wassold Sunil had taken Rs. 1600.00 from him staling that the vehicle hadto be got repaired. After the sale of the vehicle he was paidRs. 1400.00, spent by him, and Rs. 1600.00, which Sunil had takenfrom him. There is, therefore, no contradiction between his statement in court and his earlier statement made to the police. It was,however, argued that Public Witness 1 could not have spent Rs. 1400.00 out ofhis pocket or advanced Rs. 1600.00 because his salary in those dayswas only Rs. 400.00. But this is hardly determinaive of this question.We are only concerned here with the so-called discrepancy which waspointed out; these seems to be none.
(185) Whereas Public Witness 1 had stated before the court that though RavindarKapur purchased bullets by going along with him to the house ofAnwar Shah and came out with the bullets, which he said he hadbought for Rs. 80.00, Public Witness 1 had stated to the police that RavindarKapur had purchased the bullets through Shahwar. In his examination-in-chief P.W.I had stated that Ravindar Kapur had arranged 20bullets from Anwar Shah, owner of the Shah Armoury n Bhopal.Even in his examination-in-Chief he had thus not implicated Shahwar.It was only a case of his having stated to the police that Ravi hadpurchased bullets through Shahwar; it may even be consistent withShahwar having mediated the said purchase; the crux of Public Witness I's evidence on this matter is not against Shahwar but only against Ravi. Inthe very nature of things it is also not possible to get the direct evidence of, persons who sold the bullets because without the license ofthe revolver being produced and the sale of bullets being endorsedno purchase of bullets would have been possible- In respect of atransaction of this kind, therefore, no further evidence concerning itcould be obtained in the very nature of things. The mere fact that onany detail no corroboration is available would not by itself render theevidence of the approver on that particular unacceptable for whatis to be expected and is likely to be useful is only corroboration inmaterial particulars in respect of the evidence of.P.W.I- Similarly thequestion whether Public Witness 1 secured the revolver from Public Witness 67 prior tothe trunkcall which was received from Sunil from Delhi by Ravi (on 28/09/1973 or afterwards) is again not a matter of muchsignificance; this may after all be a matter of recollection. Whilegiving evidence in examination-in-chief (p. 152, Vol. II) Public Witness 1 hadslated that the trunkcall had been received by Ravi from Sunil on 20/09/1973 and that on September 21 he and Shahwar wentto Public Witness 67's house to borrow his revolver, but when he was examinedby the police he seems to have fixed the time of borrowing of the revolver as prior to Sunil leaving for Delhi andgiving a trunkcall as would appear from the portion marked K to K(page 49 Vol. V) of his statement under S. 161 Criminal Procedure Code . marked asEx. P. W. I/DA). This is a mere matter of sequence. The abovediscrepancy pertaining both to the revolver and the bullets has notmuch of an impact on the question Whether Ex. P. 9 was the revolverfrom which the two crime bullets were shot; our earlier discussion onthis ponit shows that it has been proved that the two crime bulletsin this case were fired from Ex. P. 9 and no other fire-arm; Ex. P. 9as well as similar bullets were seized from P. W. 34 (fa'ther of P. W.67) when P. W. 67 and P. W. 1 were also present; P. W. 1 had takenthe police party to P. Ws 34 and 67. The recovary of Ex. P. 9 andthe bullets from P. W. 34 is the most important feature of the prosecution case and P. W. 1 had been undoubtedly responsible for itsrecovery, quite apart from whether Shahwar's interrogation by The police was also responsible for this or no. The importance of thecorroboration that P. W. l's evidence receives in this respect canhardly be exaggerated.
(186) Even regarding the pistol (Ex. P. 8) it was pointed out that Public Witness Ihad stated that the same was unserviceable because the trigger usedto get jammed; it was pointed out that he had not made such a statement when he was examined under S. 164, Criminal Procedure Code . Reference hasalso been made in this connection to the fire-arm expert (P. W. 109)who considered that the pistol was serviceable. It is worth recallingthat he had also referred to the pistol having been conditioned so asto take in a bullet also; this might had led to the difficulty in operatingthe trigger. This has not much bearing on the appreciation of the evidence of P. W. 1 for it is conceivable that P. W. 1 and the rest wereunder the impression that the pistol was an unserviceable one. Thepistol, despite the original plan, was not used; no one saw Shahwaror any one else, using the pistol. The recovery of the pistol has notmuch importance especially in view of Mr. Kalra's concession thatthe conviction of Shahwar under the Arms Act for illegal possessionof the pistol at Bhopal (where it was seized) could not be tried atDelhi and even Public Witness 35 not being sufficient to identify Ex. P. 8 asthe pistol which was used for target practice. Public Witness I's evidence ofShahwar having it at Delhi would not be sufficient in law to sustainthe conviction of Shahwar under the Arms Act, this being a distinctoffence and there is no other corroboration in this respect concerningit; Mr. Kalra's concession in this respect seems to be only proper andfair. But this does not in the least impair Public Witness l's testimony concerning the pistol and Shahwar procuring it-a fact which receivessubstantial corroboration from the same having been recovered byusing the key taken from underneath his bed to open the almirah totake Ex. P. 8 out of it.
(187) According to his evidence before the court P. W. 1 had notseen Ravi actually entering the van at any stage; he had seen Ravihaving the gun; he only later later on that the gun had been givento him by Sunil, But he stated before the police that Ravi took thegun from Sunil at tha)t time and went inside. When confronted withthe above portion of the statement (marked D to D and printed onpage 56 of vol. V) he stated that he had not stated before the policeabout Ravi taking the gun from Sunil and going inside. As it is printedthe portion D to D reads as follows :
"ATthat time Batra snatched the gun from the gunman andwent inside."
BUTit is seen from the original that "Batra" it a mistake for Ravi.The said statement (D to D) should read as follows :
"ATthat time Ravi snatched the gun from the gunmacn andwent inside."
ITwas nobody's version that Ravi snatched the gun from Batra.The learned trial Judge had made a note in the deposition of P. W.I(p. 253 Vol. 2, lines 17 to 20) in this regard setting out Public Witness l'sassertion that he had not referred to Sunil as going inside the van.Even about who went inside the van Public Witness 1 explained in court thathe had not, actually seen Ravi entering but presumed his having doneso. These are details pertaining to observation concerning which abona fide mistake is possible while recalling the same. This so-calleddiscrepancy, therefore, is not such as to give rise to the inference ofP.W. l's evidence being unreliable-
(188) Facts, at least some details, pertaining to them which were not known to the police when Public Witness 1 was interrogated by the policeon Dec. 26, 1973 & Jan. 2, 74.
(189) Mr. Garg laboriously argued that the raw material for the prosecuion case was got into shape after the appellants and P.W 1 wereexposed to P.Ws 2 to 7 and the rest of the story given by Public Witness Iwas tailor-made. It seems to us that this contention has noforce at all for several reasons, the Chief among them being thefollowing features of P-W. l's evidence which received substantialand significant corroboration from what was discovered subsequent tohis being examined by the police, in two stages, namely, 26/12/1973 and 2/01/1974.
(190) (1) Reference may first be made to the tnink-call made bySunil to Ravi (a particular person call) from Telephone No. 623512in the name of his father A. C. Batra at 27 Sundar Nagar to Tc).No. 3007, which is in the name of Gopal & Company at Bhopal.The fact of Tel. No. 625312 being in the name of the father ofSunil has been sufficiently proved, found by the learned trial judgeon ample material and has not also been seriously disputed beforeus. The fact of the call having been booked and the cal havingmaterialised has been spoken to by the concerned witnesses (P.WsII and 18). Ex. Public Witness 1 I/A 1 to 9 are the trunkcall tickets whichwere seized from Public Witness Ii under Ex. Public Witness 11/B on 31/01/1974, several days after Public Witness 1 mentioned about this during hisexamination on 26-3-1974. Public Witness I had not referred in the course ofhis statement under S. 161, Criminal Procedure Code . specifically to any date or therelevant numbers, not even the manner in which the call was made,particular person call or an ordinary call. He had merely stated(vide Ex. P. W. I/DA, p. 49 Vol. V) that 10/12 days after Ravihad obtained the revolver from him and obtain bullets from AnwarShah Armoury. Sunil made a trunkcall from Delhi to Ravi atBhopal calling upon them to reach Delhi on Saturday ( 22/09/1973) and thereupon Shahwar, Ravi and Public Witness I left for Delhion the night of September 22, by Shahwar's jeep (No. Mpb 9828).The point that matters for our present discussion is that withoutP. W. I giving more particulars P. W. 110 seized, from the EasternCourt New Delhi, on 21/01/1974, the four telephone trunkcall tickets (Exs. Public Witness I I/A. 1 to A.4), as stated above. Theother relevant witnesses bearing on this aspect has been noticedalready. The fact of the trunkcall having been booked fromDelhi (625312) to Ravi (P.P. Call) at No. 3007 at Bhopal (in thename of Gopal & Co.) has been proved. When questioned about thisfact Ravi denied having had a trunkcall from Delhi or from Suniland even said that he had no knowledge of the telephone No. 3007being in the name of Gopal & Co. The facts pertaining to thistelephone number have been discussed in detail already and wehave explained hew Ravi was transacting business in the name otGopal & Co. and using the said telephone. 1; may be recalled thatEx. Public Witness 78/B (the driving license of Ravi) and Ex. Public Witness 76/B(the college admission form filled by Ravi) mention Ravi's addressas Gopal & Co. Even.D.W. 16, who was examined by Ravi, admittedin cross-examination that there was a telephone at 30 Civil Lines,Bhopal; he could not say whether it was in the name of Gopal & Co.though the number is 3007.
(191) Secondly Public Witness I had told the police only about having heardfrom V. Jaggi that V. Jaggi's father had given a telephone call tothe maternal uncle of Sunil and his father had come and taken backV. Jaggi with him to Delhi. No further details were mentioned byhim at that stage. But we find that P. W. 110 had recovered thattrunkcall tickets, as noticed above, even without getting any furtherparticulars concerning the telephone number etc. Ex. Public Witness 11/A3is the trunkcall ticket in respect of the telephone installed at7/31 Darya Ganj, Delhi in the name of M. L. Jaggi with Tel. No.271610: a trunkcall was made to No. 3566 at Bhopal in the nameof Sunil's maternal uncle (Avtar Krishan Dawar). The fact of atrunkcall having been made on the night of 1/10/1973, fromTel. No. 271610 was itself disputed and V. Jaggi had denied thatany such call was made. But there was a volte face when V. Jaggi'suncle (D.W. 18) was examined to swear that he had himself made atrunkcall to the said No. 3566 but it was for the purpose of arranging to see a girl for V. Jaggi's brother J. Jaggi who had comefrom Canada to India. An adverse inference has to be drawn fromthis change in the defense stand so far as V. Jaggi is concerned; thefair inference is that the entire version given by D.W. 18 in thisrespect in addition to the cassette vis-a-vis Public Witness 5 is false; notmerely that : not only was the trunkcall made from M. L. Jaggi'snumber to Bhopal on 1/10/1973 but it was V. Jaggi's fatherwho flew to Bhopal on 2nd and came back with V. Jaggi on the3rd. On 20/04/1974, P. W. 110 went to the Indian Airlinesoffice at Connaught Place and obtained copies of the air tickets andreservation chart.
(192) Thirdly, Public Witness I had merely stated to the police on 26/12/1973 that about the middle of October he along with Sunil, SharadKapur (younger brother of Ravi) left for Delhi by the de luxe train.The next day they reached Delhi and went to V. Jaggi's office from the Railway Station. The date was not mentioned. Public Witness I hadalso mentioned, when he was examined under S. 164, that he hadgone to Delhi only in the middle of October; he had not given theexact date. He had further stated that he had left Delhi by nighttrain along with two suit-cases furnished by Sunil leaving Delhi at7 P.M. Public Witness 110 seized on 11/04/1974 from the New Delhi Reservation Office copy of the reservation Form (Ex. Public Witness I/O and on 16/04/1974 seized the original form itself.
(193) A few more details, of a comparatively minor nature, were alsoadverted to by Mr. B. L. Kaira, One such detail was that the entriesin the registers of Hotel Bright containing three fictiti(7us names couldnot have been known to Public Witness I when he made the sta(tement on 26/12/1973; unless he was personally aware of it. Public Witness Istayed in the Jeevan Lodge under the assumed name of Swam Singh.But in appreciating this argument we have also to remember thatP.W. I had admitted that the registers had been shown to him.Whatever the above may be, Mr. Kaira is justified in saying thatEx. Public Witness 1/R contains entries made by Sunil and Avtar KishanDawar; the expert (P.W. 97) also says so; the sample writings ofAvtar Kishan, for instance, were obtained on 14/03/1974. Inthis sense M. Kaira is right in staling that P. W. l's evidence concerning Ex. Public Witness I/R having been written by both Sunil and AvtarKishan Dawar gets additional support.
(194) There was some discussion concerning whether Shahwar accompanied P.W. I when Public Witness I went there to borrow the revolver.When Public Witness I was examined under S. 164, Criminal Procedure Code . Public Witness I hadstated that he and Shahwar went to the residence of Public Witness 67 and hegot the .455 revolver with bullets belonging to Public Witness 34. Before thetrial court however, Public Witness I had explained that he went along withShahwar for this purpose but Shahwar was standing outside Public Witness 34's house when he went inside to get the revolver (page 152, Vol.IT). He was confronted with the omission to state specifically whenhe was examined under S. 164 Criminal Procedure Code . about Shahwar staying outside;P.W. I admitted that he had not stated so but it is such a trivial matter of detail eliciting which would depend upon the mannerof questioning.
(195) There is hardly any substance in criticism advanced by Mr. Gargthat the statement made by Public Witness I on 11/12/1973 was notdeliberately recorded in order to leave room for integrating detailssecurely into the final theory of looking and shooting. This criticismoverlooks the fact, already stated, that Public Witness I was being questionedonly as an accused in the case. It was rightly explained by Mr. Kairathat not all the details spoken to by the accused, at least to start with,should be invariably recorded. The relevant police rule 25.53 hasbeen already noticed.
(196) It is worth recalling that the statement recorded by Public Witness 142 inthe zimini dated 21-12-1973 does not by itself show that P. W. I hadeither made a full statement earlier or this is all that he had to sayfurther in the matter. The abovestatement related to the fact of his,having made an extra judicial confession to Public Witness 33. Public Witness 142obviously made the record in the above said manner (Ex. Public Witness l/DA. 2) because he had come to know about the above said important fact which Public Witness I had not revealed earlier. It is necessary toremember, even in this context, that Public Witness I had not then made uphis mind to become an approver. There was probably ambivalence inthis regard; he had according to his own statement, thought ofbecoming an approver since February 1974; his statement under S. 164 was recorded on March 29th, 30th, 1974.
(197) Nor would it be correct to say, as Mr. Garg described that thetruth of Public Witness l's revelation to the police on 21/12/1973is destroyed by what he had stated in his application dated 20/12/1973 to the Magistrate (vide Ex. Public Witness 1/D.B.) that he hadbeen beaten by the police and he was being pressurised to make falsestatement against the other accused. These are consistent with thestrategies employed by all the accused then, and his ambivalentattitude which continued till he finally made up his mind to becomean approver, despite pressure from the other accused not to do so.
(198) There is not much force in the criticism of Mr. Garg concerningthe non-examination by the' prosecution of two superior police officers, Ashok Patel and Avtar Singh. They only verified the investigation and were not required to maintain any record of it themselves;one of them, Avtar Singh, was examined as D.W. 14.
(199) P.W. 1 -being taken into police custody for being questioned concerning the auto theft case was not something impermissible; thecase of auto theft was -charge-sheeted against him, Sunil and Ravi;the same unless fully investigated it would have been expected thatit miit give dues or reveal the association between Public Witness I andother calprits, Public Witness r having obtained that car on superdari. Subsequently, in October/November 1974, Public Witness I was discharged fromthat case. The only danger to guard against will be whether, byreason of his having been so taken into police custody any undueadvantage was sought to be taken by the police. On a scrutiny ofthe evidence of Public Witness I as a whole we are convinced that he was aparty to the conspiracy; the material and significant details spokento by him are seen to be amply corroborated: his evidence concerning the occurrence seems to have a ring of truth. We have theadditional advantage in this case of Public Witness l's implication of theappellants by reason of the identification by P.Ws 2 to 7 in the manner and to the extent explained above.
(200) The facts' relating to Sunil who was not only the arch conspiratorbut the prime actor need not be recounted at any length. Public Witness l's evidence concerning the part played by him has as already noticed, beencorroborated in so many important, particulars. The recovery ofthe stolen notes from him not only when he was personally searchedbut from his locker in the Canera Bank, Bhopal as well as from SriKrishan Dawar do clinche the case against him particularly in viewof the fact that he claimed the said amounts but was unable to evensuggest how he could come by such large sums. of money. Afterthe occurrence we find that the money handled by him was so plentiul. The recovery of blood stains of the same group as that of thegunman as a result of the blood flowing on the cash boxes andultimately finding its way into the bath room on the terrace of Sunilas proved by Public Witness 53 is yet another pointer. Despite the want ofsufficient precautions concerning the Ambassador car (Ex- P. 12)after the same was seized by the police on December 12, 1973 beloreit was sent to the C.F.S.L. the next morning we have found thatthere are certain inherent circumstances including the nature of thetell tale blood stains in the dickey and edges of the dickey of the car,coupled with the presence of vegetable matter identical to that which wassiezed later from the secluded spot at Barren Road lane further support to the evidence of Public Witness I in the matter of his participation.Among the appellants, he had a distinctly oval face (long or pointedchin as it is variously called) and this is a much more importantfeature than whether he had or did not have thick moustaches as perthe statement attributed to Public Witness 2 when he gave Ex. Public Witness 2/C.P. W. 2 identified him and Shahwar atone and nO other; the rest except P. W. 7, among the eye witnesses, identified him-. Ex. P. W. 1. /R,containing the five names of accused mcinding himself and proved tobe in his own handwriting, a document which was filled' in later bybis uncle Avtar Krishan Dawar and the circumstainees iff which itwas written by him as explained by Public Witness I, makes the case againstSunil unarguable. The heroic effort by Mr. Rajindar Singh toshow that there was some effort to plant the stolen notes on Sunilhas, as we have discussed in detail, nothing to commend it. Theprosecution case concerning the conspiracy as well as the part playedby him along with the other appellants has been amply proved; it washe who shot at both the gunman and the driver- The shooting wasintentional; the injuries, on each of them, were sufficient in theordinary course of nature to cause death; the gunman died soonthereafter but the driver lingered on for a few days.
(201) P. W. I' fixed the presence of Ravi, at the time of the occurrenceon Thompson Road and when the gunman was fired at, on the leftside of the road, a yard or two from the edge of the puce road;Ravi was going towards the bank van but he did not rush; he shouldhave covered 5 to 8 yards to reach the van. Public Witness I saw Ravi afterthe second shot was fired; two persons got down from the van and rantowards the lane on the left; at that time Ravi also was runningtowards that lane; those two persons ran from the right of theAmbassador car: they wore at distance of 4 or 5 yards. P.W?. 5 and6 and Ravi were in the lane when the Ambassador car moved 'into thelane. Ravi got into the Ambassador car from distance of 15 to 20yards from the point of entry info the lane. As the Ambassador carentered the lane it stopped for a second or two Ravi was in the lanewhen Shahwar started the bank van. Later on Public Witness I saw Ravientering the bank van at about the time when cash boxes were shiftedfrom the van to the car. Ravi was standing at the back of "an whenunloading took place. Public Witness I, however, made it clear, during crossexamination, that he did not see Ravi actually entering the van. Hewas confronted with' his earlier version to the police about Ravitaking the gunman's gun from Sunil; it is recorded bytrial Judge that he had denied it-it may be noted that "Ravi"was mentioned in the question wrongly for "Sunil" the (translationof this on page 56 of Voli 5 as "Batra" is not coprect). He maintained that what he stated in court was correct-which was that hesaw the gun with Aavi but leart later that Sunil had given ffie gun tohim. The evidence of Public Witness 4, it may be recalled, is that Ravi gotinto the van when he alone was sitting inside it, with his gun; Ravistepped on the front seat, to get out through the door near the driveron the right, thus leaving a blood-stained foot-or-shoe-print on thefront seat in the bargain. Thus there is no contradiction, betweenwhat Public Witness I stated earlier or what was stated by the other witnesses(who only corroborate Public Witness 1 on this question-regarding theparticipation of Ravi).
(202) P.W. 7 also identified Ravi as the boy who was carrying the gun.regarding the presence of Public Witness 1 himself at the secluded spot Public Witness 7 swore that Public Witness 1 (boy with beard) opened the dickey of theAmbassador car, after which the two boxes were taken out of thevan one by one. After opening the dickey of the car Public Witness I againtook his seat in the car. When Public Witness 7 was about to enter the openplot Public Witness 1 (who had a beard, as distinguished from Shahwar who didnot have a beared at that time) came out of the car, took a couple ofpaces and reprimanded Public Witness 7, when he went away.
(203) It is thus seen that the evidence of Public Witness 1 concerning the participation by Ravi in the occurrence has been substantially corroboratedby P.Ws 4 an,d 7, in particular. By far the greatest and tellingcorroboration concerning Ravi's participation is the recovery of thestolen money, of nearly Rs. 4 lakhs from his office-table-drawer, onbeing pointed out by him, in pursuance of a disclosure statement byhim (Ex. Public Witness 82/D-1) to Public Witness 140 that he had "kept concealedcurrency notes of the Union Bank of India, Delhi, in the sum ofabout rupees four lacs, in the lower right side drawer of the officetable lying in the outer room of my residential house No. 30 CivilLines". As undertaken by him in the disclosure statement hetook Public Witness 140 and party to his house and pointed out the drawer,which opened with iron key, which had been recovered from him onpersonal search (as per Ex. Public Witness 82/A) ; the notes were recoveredunder Ex. Public Witness 82/E, all on 11/12/1973. It is worthrecalling that Public Witness 82, whose evidence we have discussed at length,has attested all these memos. Ravi gave no explanation but deniedthe whole thing. The disclosure statement itself (even apart fromhis living in 30 Civil Lines and being associated with the businesscarried on there under the name and style of Gopal and Co. ?howshis .exclusive possession of those currency notes, recovered from thesaid drawer.
(204) There is no truth in the denial by Ravi of his being the class-mate of Public Witness 1; it was only urged in this respect that according tothe evidence of sister Alosia (P.W. 57) Public Witness 1 had left the schoolin the year 1965 after the Tenth class whereas' Ravi had left it in thesame year in the 11th class. This does not preclude their having beenclass-mates. When questioned about this Ravi himself admitted inhis answer to Question No. 8 that Public Witness 1 was in his school; he probably left in 1961 but he was not certain about the year nor could hesay for how long he had been in the school; however, he admitted inanswer to Question, 9 and 10 that Public Witness 67 was in a different sectionbut he also left in 1965 ; P. W. 33 was also in the same school andwas his class-mate but in a different section.
(205) MR- S. C. Bhargava commeted upon the risk taken by the policein not even posting anybody at Ravi's house in spite of the samehaving been a furlong and a half from the Cafeteria; there were alsoemployees of the Cafeteria; he urged, who could have given information to Ravi's family who could have made good with the amount.Comment was also made about the search warrants having beenobtained against the appellants (except V. Jaggi) and not used; thepros and cons of the feasibility of searching their houses as againsteliciting information from them leading to discoveries of facts deposed by them have already been considered in detail. By hind-sight,it is seen, that this strategy adopted has paid. The steps taken bythe police in the matter of making the recoveries does not appear toadmit of much criticism, based on pre-conceived theories, as to howthey should have gone about it. The personal searches were alsoconducted in an open place in the Cafeteria in the presence of so mAny persons which exclude the possibility of anything being planned; thecriticism that the police officers did not offen themselves to be searched before they made the personal searches or the appellants exceptV. Jaggi and of Public Witness 1 at Kilol Cafeteria lacks force in the circumstances, The presence cf an independent witness like Public Witness 82 atnot only the Kilol Cafeterin but even later, huge amounts includingin currency notes were recovered from Ravi, seems sufficient assurance to act upon the recoveries safely. The fact that these currencynotes were out of the notes of the Bank in question and were thosesent by the bank in the van and looted on 28/09/1973 admitof no doubt at all.
(206) The argument by Ravi's counsel that even if they were recoveredfrom him. his exclusive possession' of those notes has not been madeout is rather feeble. It was not suggested that he did not know aboutthose notes being there: such an argument stands contradicted bythe statement that Ravi himself made under S. 27 Evidence Actclearly revealing his knowledge of the notes being in the drawer ofhis office table. The decisions of the Supreme Court, noticed already,do enable a court to draw an inference from the recovery of thesenotes that the person from whom the recovery was made was a participant in the crime not only of looting the money but also of murderingthe guard and the driver of the van especially in a case like the present one where the robbery/dacoity aad the murder were committedsimultaneously. The circumstances also point to Raivi, among otherappellants, as the probable culprit; he has given no explanation himself about the recovery of the said currency notes from him, bothas a result of the personal search as well as from the drawar of hisoffice table. There was no possibility of any other person havingaccess to his office table and placing the notes there without hisknowledge especially when the key of the drawer was with him andhad been recovered from him. The decision of the Supreme Courtrelied upon,, cited but explained already, (1976 Cr. L. J. 482) is ofno apsistance to Ravi because (in that. case) the recovery of thedrums in question from an open place was consistent both in theguilt as well as the innocence of the accused persons in this case.The prosecution case against Ravi receives further corroborationfrom the proven signatures of his in assumed names in the registersof the Hotels Bright and Prabhat as discussed abov.
(207) A comment was made by Mr. Bhargava that no effort had beenmade by the prosecution to prove the letter, one of the items statedto have been recovered (No. 2) (vide seiwr? memo Ex. Public Witness 82/from Ravi during his search of his premises and that, therefore,no effort had been made to make' out the exclusive possession of the premises by Ravi. But this is hardly of any significance becausethe memo itself says that the name of the writer of the letter wasillegible though if was addressed to Sunil. It aiay be noted, however,in this connection that some of the articles (Sr. Nos. 3 to 6) recoveredunder Ex. Public Witness 82/F) had been converted into a parcel of cloth andsealed with the monogram Kds and this was itself handed over toPhool Chand witness. Whether the same seal which was used or adifferent one had been discussed already- There can be that the aboverecoveries from Ravi and other circumstance tends to show that Raviwas a participant in the crime; this is yet another item of corroborationin a very material respect of Public Witness 1 against Rayi.
(208) It was also contended by Mr. Bhargava .that the evidence ofidentification by Anil Kumar'Puri (P.W. 3.$) of Ravi during the target practice at the house of V. Jaggi under construction at GreaterKailash is weakened by the fact that Public Witness 35 was not mentioned as anidentifying witness who had to identify the culprits a)t the identificationparade to be held on 18/12/1973. But this omission isnot of much significance since the concentration at that time wasmainly on identification of culprits by the eye witnesses Public Witness 2 to 7.It may be noticed, in this connection, that P. W. 35 was one of thosewitnesses who was present at Dev Nagar police post on 25/12/1973.
(209) There is no need to recall other facts and the circumstance whichexist against Ravi except the most important among them namely,that the entry made of his stay in Bright Hotel along with Public Witness andShabwar in assumed names and the same' being in his hand-writing.
(210) Mr. Ram Jethmalani pointed out that Public Witness 1 referred to V.Jaggi in 31 contexts, of which, he said, corroboration has beenattempted only in respect of two, namely, the target practice on 27/09/1973, the day prior to the occurrence, and V. Jaggi'svisit to Bhopal-his father coming there on 2/10/1973, andgoing back to Delhi from Bhopal by air on 3/10/1973. Boththese incidents have been discussed fully already and we have heldthat these two incidents did happen in the manner stated by theprosecution. These two items are material particular which connector at least tend to show V. Jaggi's participation in the crime. In thevery n,ature of things the above participation cannot be explained as "innocent", the defense version concerning the latterhaving been found to be unacceptable.
(211) It does not appear accurate to say that Public Witness l's evidence is corroborated only in respect of two out of 31 acts of participation byV. Jaggi as stated by Public Witness 1. In many more particulars, as following discussion will show, Public Witness l's evidence concerning the participation by V. Jaggi also in the crime receives corroboration in materialparticulars and the significant manner. Mr. Jethmalani's contentionis not only not actualy supported, but it also overlooks the true legalposition that as against each participant it is sufficient if there is evidenceshowing, or even tending to show his participation, generally speaking,the approver's evidence may be safely acted upon even, if there issufficie'nt corroboration in one important respect for which alone hemay be regarded as a truthful witness of the occurrence. In the present case there is ample corroboration of his evidence against V. Jaggiin important particular; even as against each of them there is suchcorroboration.
(212) M. L. Jaggi (B. Jaggi's father) proceeded to Bhopal on October 2,1973, and came back with V. Jaggi on 3rd; according to the evidenceof the officials connected with the Indian Airlines showing that twotickets had been reserved for the return journey in the name of "V.Jagei", not "J. Jaggi", as it was sought to be made out. The prosecution evidence in this respect has been already discussed at length;it remains to discuss the evidence of O. P. (D. W. f)) ofthe Indian Airlines who referred to the name in the passengers list(Ex. D.W. 6/A) reading "J. Jaggi." D.W. 6 admitted that he wasdischarged from the Army earlier, i.e. before he entered ?er\'ice withIndian Airlines; he claimed, however, that his discharge was due tohis being "a staun,ch Congressman". Even when he was asked to lookat Ex. Public Witness 135/C (the air ticket) he maintained it showed thisname "J. Jaggi". He volunteered that his reason for saying so wasthat in case of difficulty in regard to name, the passenger would givehis correct name and that name would be entered in the passengerlist. But what was the difficulty in this case except what was contrived (even without justification) by D.W. 6 himself? It was suggested to him, though he denied it, that Satpal Jaggi, uncle of V. Jaggiand S. Ramani, an official of the Indian Airlines who had signed Ex.D.W. 6A were class mates and that they had approached him forgiving false evidence. The question that matters is not even whetherwe have' to act on, his evidence, which seems rather difficult to actupon, but whether the passenger's list itself should follow the namein the reservation chart or not. The entry in the reservation chartis the primary entry from which other entries are made. It is clearthat D.W. 6 deliberately read "V. Jaggi" in the reservation chart as"J. Jaggi". J. Jaggi has not been proved to have been in India, at thattime; even the contrived cassette (Ex Dw 18/D2) saidi to containthe voice of Public Witness 5, does not reveal that J. Jaggi, who is said to havebeen present then, had spoken anything; even if he was asked to keepquiet during that conversation, as it is stated, it is still more surprising that no other person present and conversing did not refer to thepresence of "J. Jaggi" at that time. In addition to the above featureit is worth noting that the disembarkation and embarkation cards of"J. Jaggi", to show his arrival in and departure from India have notbeen filed; on the other hand, Public Witness 142 claimed that he had personalknowledge of "J. Jaggi" not having been in India at that time. Whatever this may be, the story of D.W. 18, the uncle of "V. Jaggi" (nothis father) making a trip to Bhopal on 2/10/1973 for fixing agirl, or even seeing her with a view to getting her married to J. Jaggi,has not been proved; there is no truth in the claim (which was completely disproved and not even pressed before us) that D.W. 18 alone(not V. Jaggi's father) was known as "M. L. Jaggi". For this reasonalone the air tickets both ways reading "M. L. Jaggi" mu?t be takento refer not to D.W. 18, but to V. Jaegi's father. Not merely this;the' fact of a telephone call having been made from V. Jaggis father'stelephone in Delhi to Bhopal, which was denied to start with, wasadmitted related by D.W. 18; he made it appear that he had made thecall to Bhopal from the telephone of V. Jaggi's father. The reasonfor not examining Ramani, who is said by D.W. 6 to have writtenEx. D.W. 6/A, has not been mentioned; it was suggested to D.W. 6that Ramani had not written Ex. D.W. 6/A; evidently it was thoughtbetter not to let Ramani face any cross-examination in this respect,even as V. Jaggi's father did not choose to give evidence. We havereversed to this aspect of the case to show (1) how even an Airlinesofficial (D.W. 6) who never worked as Traffic Assistant at theAirport Counter had been pressed into service for persistently reading "V. Jaggi", found in the air ticket and in the reservation, chart, as"J. Jaggi"; (2) the extent to which P. W. l's evidence concerning.V. Jaggi having gone on 1/10/1973, from Delhi to Bhopal byjeep and being taken back to Delhi on 3/10/1973, by air is supported by the trunkcall and air-tickets; (3) how D.W. 18's claim thathe did not return to Delhi by air on 3rd an,d hence did not utilise theair ticket for the return journey is falsified by the passenger's list (D.W.6/A) in the name of M. L. Jaggi showing that he travelled with baggage (the baggage ticket being 534383) ; D. W. 18 exposed himself asbeing utterly untruthful when he went so far as to say that he stayed onat Bhopal and went to Indore reaching Delhi thereafier by car (at 11p.m. on 6-10-1973) he was pressed to admit that his attache case, allegedto be sent along with J. Jaggi, who alone undertook the journey to Delhifrom Bhopal by air on 3/10/1973, contained articles of dailyused like clothes, razor machine, shoes etc. The learned Judge rightlyasked how, if M.L. Jaggis was held up at Bhopal, he sent the attachecase containing such articles to Delhi on 3rd itself through J. Jaggi.One lie led to another ; it is a issue of falsehood.
(213) P.W.I has referred to V. Jaggi's participation in other (29) respectsalso; Mr. Jethmalani's claim that none of them is corroborated but thata few of them even stand contradicted, does not appear to be correct, asthe subsequent discussion, of only the most important among them,will. show.
(214) In August 1973 Sunil had come to Bhopal after staying for sometime in Delhi; Ravi told him about Sunil's plans to launch on a fewschemes including looting a Bank at Delhi and that they-the appellants-would rather do some "big work" than indulge in "small businesses" like running a cafeteria or lifting cars. Mr. Jethmalani broughtto our notice what he thought was a discrepancy in, this respect; but oncloser examination there seems to be none-it is seen that Public Witness 1 hadattributed such a statement to both Sunil and Ravi, whereas beforethe trial Court Public Witness 1 had attributed it to Ravi alone (not Sunil also).
(215) After reaching Delhi at about 8 p.m. on 22/09/1973,P. W. 1 and others drove to V. Jaggi's office at Ajmeri Gate, Delhi;there Sunil introduced Shahwar and Public Witness 1 to V. Jaggi. Public Witness 1 was alsopresent aloHJgwith V. Jaggi when Ravi made the fictitious entries inthe register of the Hotel Bright posing himself .as "Rakesh Dixit",Shahwar as "Bhargava" and Public Witness 1 as "Dilbagh Shah"; V. Jaggi alsopaid a sum of Rs. 100.00 as advance to the hotel; his evidence issupported by the entry.
(216) P.W.I had also referred to Narinder Aggarwal, an employee ofthat very Bank, who is stated to have convyed information concerning the movement of cash from the Bank (Chandni Chowk Branch ofUnion Bank of India), accompanying V. Jaggi in the latter's car toHotel Bright and Public Witness 1 and others following them. Mr. Jethmalanipointed out that Public Witness 142 had opposed bail being granted to V. Jaggi(as per Ex. Public Witness 142/DB, written reply opposing bail) on the'ground that V. Jaggi had played a prominent part in the crime bygetting all the information pertaining to the movement of the Bank vanand conveying it to Sunil. The assence of this seems in no way contraryto what Public Witness 1 had stated. Public Witness 142/DB dated 5-2-1974 was priorto Public Witness l's statement under Section 164 Criminal Procedure Code . Mr. Jethmalani alsodrew our attention to the earlier application for remand dated20-12-1973 where Public Witness 142 had merely stated that V. Jaggi may be remanded to police custody for seven days for the purpose of confrontinghim-remand was granted till 26th After hearing his counsel. But no inference adverse to the case of the prosecution against V. Jaggi can bedrawn from the mere absence of specific mention about the disclosurestatement of V. Jaggi. Normally the case diary up to that moment issubmitted to the Magistrate before obtaining remand ; it has not evenbeen suggested that there was any departure in this respect from theusual practice/requirement. According to Public Witness 1 it was Sunil, whocame to Hotel Bright on 2/09/1973 and revealed about thescheme thought of by himself 'and V. Jaggi to loot the van of this bank,which was believed to carry about 50-60 lacs rupees every day; V.Jaggi was not, however, present then. D.W. 142/DB was hardly theplace or occasion to go into the details, which were numerous, of theprosecution case ; however, all the facts concerning V. Jaggi were notfully known till Public Witness 1 was examined under Section 164 Criminal Procedure Code ; norcould any reliance be placed by the investigating agency solely onwhatever Public Witness 1 had stated when he was arraigned as an accused in thecase.
(217) According to Public Witness 1 they were waiting at Hotel Bright on 23/09/1973 for V. Jaggi to turn up; since he did not come as ex-pected P-W. I, Sunil, Shahwar and Ravi went at 11.30 a.m. to theBank at Chandni Chowk ia the jeep brought from Bhopal. This is some.indication, if any is needed, showing that Public Witness 1 was not anxious toimplicate V. Jaggi with every step; this was not the only occasionwhen according to Public Witness I, V. Jaggi came late; even on that fatefulday, Public Witness 1 said, he came later than intended. V. Jaggi dame to theirhotel only at 1 p.m. that day after they returned to the hotel when theytold him about their trip to see the van. Sunil said than they would goand see it next morning; it was V. Jaggi who told them that the vancarried about 60 lacs. All of them went to Shah Andaz restaurantand spent the day merry-making- On 24th also V. Jaggi did not trun upin, time; as suggested by Sunil they went to see the van themselves;after they returned to the hotel V. Jaggi came at 11.30 a.m. and theysaid that though they went to see the van it had already left. V. Jaggiinvited them to his house next morning at 9 a.m., since the van leftusually at 9.30 a.M. When they went to V. Jaggi's house accordinglyon 25th morning and.d proceeded to the bank they saw the van thereand the boxes being lifted into it. V. Jaggi came to their hotel in theevening where it was decided that V. Jaggi would intercept the vanby Sunil's Ambassador car; Shahwar. not Public Witness 1 as originally agreedupon. was to shoot the guard. Next morning they agreed to go and seethe van again and observe how the cash was being transported.Thompson Road was agreed upon as the venue of operation; the placeof interception was near the lane. On 27th V. Jaggi also went to thehotel at 8.30 a.m. and they went to the bank in Sunil's Ambassadorcar Dhb 9254 in order to again watch the loading of the cash boxesin,to the van. This portion of Public Witness l's evidence receives clinching support from the record of the Bank (Ex. Public Witness 89/DD) which shows thatcash was taken from the said Bank on the material dates spoken to byP.W. I, in die above said manner, on September 25, 26 and 27, 1973.The importance of this piece of coroboration, is enhanced in view ofthe above details, were not known even to the police when Public Witness 1 wasinterrogated on 26/12/1973 and on 2/01/1974. The saidrecord was summoned from the Bank by the accused.
(218) On 27/09/1978, itself all of them had a full rehearsal; itwas also timed. Public Witness 1 stated that it took about 12 minutes from theinterception of the Bank van to reaching 27 Sundar Nagar. V. Jaggifully participated in it. Public Witness 1 had given graphic and minute detailsof the rehearsal. He also spoke in detail about what was planned originally and the changes from time to time ; these have been noticed evento start with. They vacated Hotel Bright and went to V. Jaggi''s office atI p.m. as suggested by V. Jaggi. After lunch they went to V. Jaggi's.house under construction at Greater Kailash in the evening and badshooting practice, when Public Witness 35 came there. They returned to V. Jaggi'soffice; Sunil cleaning the revolver with a pin-rod wrapped in clothand keeping the bullets with him on the way. They then, went to Con-naught Place. V. Jaggi took Ravi and Shahwar to Hotel Prabhat nearOdeon Cinema and Sunil took. Public Witness 1 to Jeevan Lodge. All the detailsare fully corroborated by the concerned entries in the Hotel registers.There is little force in the criticism that according to the statementof Public Witness 1 dated 26/12/1973, to the police V. Jaggi was dropped at his office after the shooting practice; he had also stated V.Jaggi going along with them thereafter to Connaught Place. What isso telling a piece of corroboration is the fact of Public Witness 1 getting intoJeevan Lodge at 6.10 p.m., as per the entry in that hotel's register.The target practice is supported by Public Witness 35, whose evidence is discussed separately. Afterwards they went to Rambles Restaurant, whereShahwar refused to shoot the guard ; Sunil took upon himself thejob of shooting the guard; Shahwar was to drive the van away asplanned.
(219) On the fateful day, 28/09/1973, V. Jaggi joined the restin Hotel Prabhat at about 9 a.m.; though it was 'probably late theystill went ahead with their plan-the details of what happened thereafter have already been noticed. When they got back to Sunil's houseV. Jaggi a)ccompanied Sunil to the first floor of the house. Public Witness 1 askedRamdayal, the servant of Sunil, to clean, the stairs of blood and hedid so. Whether Ramdayal himself burned the clothes on the terracein the presence of Public Witness 1 or Public Witness 1 sot it done through him is hardlyof importance. Wh&t is of importance, however, is that the ash recovered from the terrace by the police is said to contain (vide Ex. Public Witness 142/J-2, p. 284 Vol. Va item 5) microscopic pieces of burnt syntheticFabric. Public Witness I's version concerning what happened in Sunil's house atSunder Nagar, after the two cash boxes were taken there (cleaned inthe ga)rage and washed later in the bath room on the terrace) getsconfirmation from the human blood of group A (of the deceased gunman) being found in the blood stains scratched from the wall of thebath room.: they were not otherwise visible and became visible afterthe application of Chemicals. Not merely that; numerous minute specsblood stains were detected on the under-surface of the roof of thedickey of the Ambassador car; one faint brown blood stain was orrsent on the back seat of it: there were traces of blood detected inmany parts such as floor and edges of dickey, back seat. driver's seatand back rest and left rear door etc. of the said car: the blood wasalso found to be of group A. In addition some vegetable debris, including small and large size dry leaves from grooves on right and lefttop of dickey were the dickey door fits on the body of the car, werecollected by the C.F.S.L. of its own, Inspector Hira Singh (P.W. 127)having initially missed it. The blood stains from the bath room wallwere collected later (on 24/12/1973) under Ex. Public Witness 54/A,which Rajinder Singh (P.W. 54 attested), but the C.F.S.L., having discovered the said vegetable matter in the car even on 13-12-1973,wrote as per Ex. P. W. 97/0 to the police on 19/01/1974, pointing it out to the police and requesting that they send such vegetablematter collected from the place where the car might have been. Thereupon P.W. 142 recovered the Mehndi twigs and Kicker shrubs available at the secluded spot in the presence of Bishan Singh and ThakarSingh (P.Ws 8 and 9 respectively) under Ex. Public Witness 8/A on 29/01/1974. The last mentioned fact is very significant because it showsthat vegetable matter in the grooves of the car where the dickey doorfitted the dickey was not even noticed by Public Witness 127 who was not theofficer investigating the case. He had undertaken the above, amongother things, on receiving a direction to that effect from Bhopal, beforethe police party with the accused (except V. Jaggi) arrived at Delhifrom Bhopal. We have thus a valuable clue from what the C.F.S.L.found : similarity of small leaves and twigs recovered particularlyfrom the secluded spot with those found in the dickey of the car-thisis more than a coincidence: even if it is a coincidence it enhances verymuch the value of the positive testimony of Public Witness 1 concerning the saidcar, used by the accused during the occurrence and taking it to Sunil'shouse at Sunder Nagar. Reference is being made here to the presenceof such vegetable matter in the car, because though the learned judgerealised its importance he has not looked at it and the other featuresin the same way we have done ; he was worried about sufficient safeguards not being taken to prevent tampering with it after it was seizedby the police on 12/12/1973. These features no doubt constitute to material corroboration of the evidence given by Public Witness 1 concerningthe car having been used as stated by the accused and cash boxesbrought to Sunil's house, which were' sought to be got rid of in themanner spoken to by Public Witness I. Inspector Hira Singh (P.W. 127) hadseized the Ambassador Car, under Ex. Public Witness 53/D, on 12/12/1973 itself, even before the police party arrived from Bhopal Along with the accused except V. Jaggi; n was parked in the Kamla MarketPolice Station. It was sent to the office of the C.F.S.L. on December 13and was inspected the same day; the car was sent back from there,after removing the dickey cover. The same was handed over to oneInspector Shadilal at the C.F.S.L. on the morning of December 13;his non-examination dees not affeet in any way the wefght to be attached to the above features which were nofreed by the C.F.S.l onthat very day-these happened much before the car was taken to The police station'. The feet of the car having been in' the police' stationfrom December 13th is, therefore, hardly of any consequence. We arenot in' any way lessening the importance of the precautions, the investigating agency will have to take in this respect; the precautions to betaken were pointed out in State vs. Mote (195-5 Air Rajasthan 82) a decision noticed by the learned' trial Judge. We are only observing thatin tl-re circumstances of this case there' are- certain features which appearto be sufficient to exclude the possibility of fraudutent manipulationin this respect by the police despite the precautions not being taken;these are uniquely significant features which are hardly likely to bepresent in other cases, either individually or in combination-the bloodstains-in the bath room containing the' blood stains of the group ofthe deceased gunman ; the ash recovered from the terrace revealingmacroscopic burnt synthetic fabric the kind of stains, especially onthe roof and edges of the dickey and rear door, caused by coming intocontact with the cash boxes kept in the dickey and back seat containing the same blood group; the leaves pressed into the grooves of thedickey discovered casually in the above manner tallying with those ofthe bushes seized from the secluded spot off Barren Road. These aremore than even "odd" coincidences; they are confirmatory of theevidence of Public Witness 1 in particular in such important respects.
(220) At about 7 p.m. that evening it was deeided that Public Witness 1 wouldvacate Jeevan Lodge and stay with Public Witness 33, fo which place Public Witness 1would go in Shahwar's jeep. Public Witness found' out the address of Public Witness 33(in J.J. Colony Dhaula Kuan) from' P. W. 33's brother John Pacheko(P.W.23) and reached there on the nighat of the occurrence. Public Witness 33asked Public Witness 1 to stay with him and' took him to Rambles for food. It wasnext morning that Public Witness 1 disclosed to Public Witness 33- about the occurrenceand the ptan-ticipants, including: himself. The' learend trial Judge hasdiscussed this under the heading "Extra Judicial Confession". Tt seemsto us that this may not be an accurate' description of What Public Witness 1 saidto Public Witness 33 because the former did not continue to he an accused in thecase. After he was taken as an approver it may not be accurate toregard it any longer as an extra Judiciaf Confession; it does not fallwithin S. 30 of the Evidence Act. Whatever he is alleged to havetold Public Witness 33 would only be a piece of corroboration concerning hisevidence and nothing more; we only wish to point out that the samecould not be regarded as a statement under S. 30 of the Evidiance Act.
(221) It only remains to consider whether P. W.33 can be regarded asa witness of truth and can be -regarded as materially corroboratingP.W.I. Public Witness 33 and Public Witness 1 were school mates a: Bhopal-; so was Ravi.he also knew Public Witness 67, who was his class fellow. He had been introduced to Shahwar also. Public Witness 33's sister was married to John Pacheko(P. W. 23), who was working as a contractor, since 1969. In 1967P. W. 23-and P. W. 33 lived at 18J.J-. Cotony. On 28/09/1973,P.W.I went to Public Witness 23 and inquired about the residential address ofP.W.33. Public Witness 23 also had known Public Witness 1 as a student. Public Witness 23 gave theaddress of Public Witness 33 to Public Witness 1. If is, thereafter that Public Witness 1 was able totrace where Public Witness 33 was living and reach it at about 11.30 p.m. inthe jeep (bearing Mpb 9828 and said to be in the possession of Shahwar) in which P.Ws 1 and others had left Bhopal for Delhi on the nightof 22/09/1973. Public Witness 1 slept at Public Witness 33's house that night.Next morning, at about 8.15 a.m., when Public Witness 33 was going throughthe newspaper containing the headlines of this bank robbery, Public Witness 1asked Public Witness 33 if any Sikh was mentioned therein. Public Witness 33 told himit was not so Thereupon Public Witness 1 requested Public Witness 33 to swear on hisparents and not let him down if he told him something; after gettingsuch assurance Public Witness 1 gave the names of Sunil, Shahwar and Ravi ashaving participated in the crime (Turning to the evidence of Public Witness 1,on this point, he has stated (vide p. 166 Vol. II) that he had disclosed to Public Witness 33 the name of V. Jaggi also. No such omission on thepart of Public Witness 1 to mention the name of V. Jaggi when he was examinedeither under S 161 Criminal Procedure Code . or S. 164 Criminal Procedure Code . waselicited from himIt is important, on this aspect, to appreciate that Public Witness 33 was mostlikely to remember only those persons mentioned by Public Witness I, whom heknew; he had not known V. Jaggi. If Public Witness 3J was deliberately introduced into the case as a false witness nothing. would have been easierfor him' then to include the name of V. Jaggi also among those mentioned by P.W-I). V. Jaggi was at his office at Ajmeri Ga'e whenP.W.I was taken there by Public Witness 33 on the morning of 29/09/1973. Public Witness 1 had told PIW.33 that he could not find his way to thatplace ; Public Witness 33, therefore, followed Public Witness 1, on- his own motor cycle ;P.W.I drove the said jeep. Public Witness 33 took Public Witness 1 to Ajmeri Gate firstand then to V. Jaggi's office, was was only about 200 yards fromAjmeri Gate Public Witness 33 may have done so without returning fromAjmeri Gate for a variety of reasons, from mere curiosity upwards.
(222) On the night of 29/09/1973, when Public Witness 33 returned homehe found Public Witness 1 sleeping there; Public Witness 33 returned home late after seeinga picture. Public Witness 1 had gone there again despite Public Witness 33 having askedP.W.I not to come to his house again. But such conduct of Public Witness I, or unusual as it may seem, cannot be rejected out of hand,for P-W. 1 was naturally under extreme stress and fear; he could notbe expected to behave in a natural manner. The position of Public Witness 33was also difficult; here was a friend disclosing his having committeda daring crime along with some others.
(223) P.W.33 was himself contacted by the Investigating Officer on 21/12/1973, after interrogating Public Witness 1 ; the statement of Public Witness 33under S. 164 Criminal Procedure Code . was recorded without much delay-on 24/12/1973.
(224) The learned Additional Sessions Judge who had the advantage orseeing Public Witness 33 depose has recorded as follows (vide para 400 page941 Vol. IV): "EARNESTD'cruz has given the impression of being a thoroughlyreliable witness. Despite lengthy cross-examination, defensecould not shake his credit nor succeed in showing that hewas in any way under the influence of police. He has noanimus against accused persons."
(225) What we have already observed with reference to Public Witness 35would equally be applicable to Public Witness 33 as well. Public Witness 33 was an intimate friend of Public Witness 1 who was then an accused in this case; Public Witness Iwas granted pardon on 22/03/1974, nearly three months afterhe was contacted by the Investigating Officer and made a witness in this case. It is not likely that the police would have taken thersk of making Public Witness 33 also as a witness in the case despite his being a friend of Public Witness 1 who was only an accused in the case then.At the time when Public Witness 33 was examined by the police and also under S. 164 Criminal Procedure Code . it was not the intention of the police to takeP.W.I as an approver despite all the appellants and Public Witness 1 togethermaking representations, as noticed already, concerning their apprehension of being beaten by the police and pressurised to make state-made only for the purpose of the record and not even for any action being taken on such representations.
(226) The learned trial Judge has endeavored to use the previousstatement of Public Witness 1 to Public Witness 33 as .attracting S. 157 of the EvidenceAct. It seems hardly necessary to rely upon the same as a previousstatement by P. W.I to corroborate his subsequent statement beforethe Court. Any such reference will be necessary only to evaluateany omission to state a fact stated either in the 164 Criminal Procedure Code . statement or before the trial court; contradictions, if any, would, however,stand on a different footing. The true approach to this aspect of thecase is seen to be one which we have indicated; agreeing with thelearned trial Judge we hold that Public Witness I's evidence in this respectis materially corroborated by the evidence of Public Witness 33. We findnothing improbable in Public Witness I, who was in that situation, seekingout an old friend despite his not haying been very close with himafter he left school. In such a situation there is nothing surprisingan old friend and school-mate being sought, even though the friendship might not have been actively kept up. Public Witness 23, from whom Public Witness Isays he got the address of Public Witness 33, was examined by the police asearly as 3-1-1974. There was also nothing inherently improbablein Public Witness 1 not having made any such statement to Public Witness 23, who wasnot boyhood friend that Public Witness 33 was.
(227) It is no doubt true that there was no mention of one of theculprits being a Sikh in the Times of India which was in the handsof Public Witness 33 at the breakfast table on the morning of 29/09/1973. During re-examination of Public Witness 1 his attention was drawn tothe Evening News dated 28/09/1973, wherein there wasa mention of one of the culprits being a Sikh (the same was markedas Ex. Public Witness 1\Z). This gives credence to Public Witness 1 having been sonervous and being anxious to know whether the press had reportedthe participation by a Sikh. Public Witness 1 was most vulnerable in this respect; he was the only person among the accused to have long headhair and beard. He could not be sure that his attempt to concealbaa identify during -the occrrence by taking off his turben and putting bids handkerchief instead, was sufficient to conceal his identityas a Sikh. We shape the impression of the learned trial Judge thatP.W.I became frightened when he saw Times of india in thehands of Public Witness 33 at the breakfast table ; .we feel like further observing that in that situation it is exceedingly natural for Public Witness 1 to havebecome so frightened as to not being able to suppress his fear, losing self-control, as the learned 'trial Judge points out both over histongue and emotions, and coming out with the whole story to P-W. 33after imploring him not to reveal it to anybody and asking him(P.W. 33) and making him swear that he would not let him down.The conduct of Public Witness 33, in such an uncommon and unenviablesituation, asking Public Witness 1 not to embarrass him by coming again tohis house was by no means odd; Public Witness 1 coming again the following night despite Public Witness 33's request to Public Witness 1 not to come again wasalso not odd; being an old friend 'P.W.I had sought asylum for twonights, of 28th/29th, after finding out P. W. 33's address from P-W. 23;he had somehow managed to reach Public Witness 33's house by makinginquiries on the way. This is not impossible. Since he did not knowthe way back he requested Public Witness 33 to help him out of it. SinceP.W. 33 had to get back to his house, after showing Public Witness 1 the way,he 'piloted on his own motor cycle.
(228) Though Public Witness 33's evidence would not be helpful to corroborateby Public Witness I's evidence to the extent that he did not mention the nameof V. Jaggi at that time Public Witness 33's evidence that he had also met V. Jaggiat his office on the morning of 29/09/1973 would indeedafford specific corroboration showing or tending to show V. Jaggi'sparticipation in the crime. On this last point, it is possible,however, to contend (as it was in fact contended by Mr. RamJethmalani) that the meeting of V. Jaggi by Public Witness 1 in his officewould not by itself tend to show that V. Jaggi was a participant inthe crime. The clear and simple answer to this contention is thatthis is only a link in the chain evidence showing association amongthe culprits inter se, this was so shortly after the occurrence-thenext morning. While appreciating the evidence of Public Witness 33 gainstV. Jaggi when he stated that he saw V- Jaggi at his office on themorning of 29th along with two of his compatriots Sunil and V. Jaggito whom P-W.33 was introduced by Public Witness I, it has to be prominently borne in mind that at the time when both Public Witness .I as well asP. W. 33 were examined by the police P. W. 33 was a witness againstP. W. 1 also; the tendering of pardon to P. W.I by the prosecution wasnot even in contemplation then. That is the reason why P. W. 1 was arraigned along with the other four accused (appellants) by the police on 25/12/1973 for being identified by the witnesses; it was not as awitness but as an accused person only; this aspect of the matter has beenalready touched upon. What is, however, of relevance to the presentdiscussion is that even though Public Witness 33 was a friend of Public Witness 1 he had referred to only Public Witness 1 coming to him on the night of the occurrence buteven on the following night and about his having made a confession tohim of his participation in the occurrence. These statements could notbe said to have been motivated against Public Witness 1 in any manner ; there wasno suggestion to the above effect. We have also indicated how it wasmore natural for P-W.33 to remember the names of the culprits otherthan V. Jaggi, because only the others were known to him, not V. Jaggi.As we understand the reference made by Public Witness 33, as recorded by The police on 26/12/1973 itself, it appears that Public Witness 1 had made areference to V. Jaggi only incidentally by finding him also along withother culprits in the office on the morning of 29/12/1973, the dayafter the occurrence. The importance of the evidence of P. W. 33 is thatit lends material corroboration not only in the matter of P. W.I havingstated to him about the participation by him and some others in thisoccurrence but specially against Sunil and V. Jaggi also because according to both P.Ws 1 and 33 V. Jaggi was in his office along with Sunilon the morning of 29/09/1973 and Public Witness 1 introduced both ofthem to Public Witness 33. Obviously with a view to provide an alibi for Sunil,and probably with a view to even explaining away Public Witness 33's evidenceof Sunil being found in V- Jaggi's office then, Major A.H. Mehra (D.W.19) swore that Sunil, the son of his wife's elder sister who was staying with him at Bhopal since December 1971, left Bhopal for Delhi bytrain on the night of 28/09/1973 and returned in about 7 or 8days. The reason for the said trip was said to be the Sherwoodian's oldboys meet at Delhi was to take place on 29/09/1973. D.W. 19was cross-examined about why he did not make any application at Bhopal, though he was there when Sunil was arrested in connection withthis case, to the effect that Sunil had been at Bhopal on the dat3 ofoccurrence; his feeble answer was that he was about to retire then andthat being an Army Officer he did not want to involve himself in anything which might affect his career; he claimed that he was so advised byhis seniors- Nothing could be more unconvincing because a close andolder relative like him would have normally left no stone unturned if thiswas so- Mr. Jethmalani's contention that even if Public Witness 33's statementagainst V. Jaggi, of finding him in the office along with Sunil. was true itwas innocuous, has to be appreciated in the entire context of Public Witness I's evidence against him, receiving corroboration concerning V. Jaggi's participation in the occurrence in other material respects; the evidence ofP.W.I and Public Witness 33 is only one among several other pieces of evidenceconcern V. Jaggi's participation in the crime and is not to be viewedin isolation. We have also to remember that if it was Public Witness 33's intentionto falsely implicate V. Jaggi in this case nothing would have been easierfor Public Witness 33 then to have mentioned the name of V. Jaggi also as oneof the participants in the crime as a fact emerging from the extra-judicial confession which P-W.I is alleged to have made to Public Witness 3?. Thisis yet another circumstance which supports our thinking that it was onlya mere failure of memory on the part of P-W.33 to include the names of V. Jaggi also in the statement which Public Witness 1 made to him concerningthe participants in the crime along with him (P.W.I). This has alsoconsiderable bearing on the naturalness of the evidence of Public Witness 33 whenhis own evidence is viewed in its total .perspective, even though it mayappear at first blush that Public Witness 33 merely supplied the necessity felt bythe prosecution to strengthen this case against V. Jaggi.
(229) The evidence of P. W. 1 against V. Jaggi gets significant support byreason of his having referred to his seeing Hooda and Brar along withSunil and V. Jaggi ; the details concerning this have been noticed evento start with. Reference is pointedly made to this circumstance in thiscontext because Public Witness 1 did not know them at all and he could not havementioned their names but for his having seen them in the company 'ofSunil and V. Jaggi. This is the reason why V. Jaggi tried to make itappear that he was the leader of some faction at school which wasopposed to that of those two gentlemen. This was elicited only by putting aleading question to P-W-35 and has to be appreciated as ananswergot in the aforesaid manner. Sunil, V. Jaggi, Handa and Brar were classmates at school and knew very well one another.
(230) P.W. 1 stated that V. Jaggi had also helped dispose of the cashboxes; Public Witness 1 was confronted with his omission to tell the policeabout the same having been done in two stages; his version beforethe court was that when they took out the first box Sunil's motherhad come and, therefore, they had to wait for some time to shiftthe other box. This was only a matter of detail and could not beregarded as a significant omission; besides, his was only a statementby Public Witness 1 to the pOlice, before he was examined under Section 164 Cr. P.C. By far the more important circumstance would have beenthe blood found by the C.F.S.L. on the rear door of the Fiat car ofV. Jaggi; this would have afforded very material corroboration of theevidence of Public Witness 1 to the effect that the Fiat car of V. Jaggi wasused to transport at least one of the cash boxes for disposing of it.The seme assurances that we are able to get in respect of blood andvegetable debris being found in the Ambassador car are absent in thecase of the Fiat, though it seems possible that blood stuck to the frontdoor of the Fiat car due to the 'blood stained portion of the box cominginto contact with the rear door in the act of placing it on the rearseat ; blood was detected on the mat (as suspected) or the other boxplaced in the dickey. Agreeing with the learned trial Judge we excludefrom consideration the presence of 'blood on the Fiat car merely because all or any of the assurances we have in respect Of the Ambassador car are not present in the case of the Fiat car. The fact ofrecovery of the Fiat car, having the same registration number, from the house of V. Jaggi and his father, lends assurance to the evidenceof Public Witness 1 concerning the use of it by the culprits in this case.
(231) P.W. 1 also referred to V. Jaggi calling on Public Witness 1 along withMr. and Mrs. Brar on 30/09/1973, and meeting the Hoodas :Mr. Jethmalani explained that these, even if true, were of a socialnature an,d, therefore, innocuous; but even such details can becomeimportant as part of chain of events, especially in the view that P. W. Idid not know them earlier.
(232) On 1/10/1973, Public Witness I, Sunil and V. Jaggi left Delhi forBhopal by Shahwar's jeep; when they were crossing the Chambalriver it was Sunil who drove the jeep. This is supported by theentry in the concerned book maintained for the purpose (Ex. Public Witness 72/A) there is said to be an over-writing concerning 'Batra' but thisseems innocuous. The entry was proved (by Vishnu Gopal, Public Witness 72)to be in the hand-writing of Mohinder Sharma, who was then theTime Keeper in charge. The same had been seized by the police on 21/12/1973, under Ex. Public Witness 72/B, from the store of theTime Keeper. On the same day the concerned record showing thecrossing by ferry of the same jeep (on 20/09/1973) wasalso seized by the police under Ex. Public Witness 77/A. The driver had beenshown as Shahwar ('V appearing by way of correction for "The'is also innocuous since the same may be unfamiliar to the writer).P.W. l's evidence in regard to these thus stand fully corroborated.We have considered the criticism of these words and find no meritin them. Reference is made to this here because they went straight toV. Jaggi's office.
(233) After reaching Bhopal, on Oct. 2nd, V. Jaggi went with Ravi tostay in his house and Public Witness 1 went to his house. On the followingmorning when Public Witness 1 went to Ravi's- house, where he met Raviand Sunil, Sunil told him that V. Jaggi's father had given a trunkcall the previous night and that V. Jagg's father came there and tookV. Jaggi with him in the afternoon flight to Delhi-the details ofwhich have also been fully discussed already. Mr. Jethmalani rightlycontended that Sunil's above said, statement to Public Witness 1 was only inthe nature of hearsay and should not be acted- upon. What is, however,important is that the corroberation, in this very material respect, isavailable in the shape of the concerned documents pertaining to thetrunkcall made from Bhopal to Delhi on 1st night (later admission,after previous denial, of D.W. 18 having made that call) the traveldocuments, in the name of "M. L. Jaggi" and "V. Jaggi" (not "J.Jaggi" as sought to be made out falsely), J. Jaggi not being shown to"be in India at all at that time but all attendant circumstances pertaining against his being in India then, etc. The entire defense versionin this respect, as in some others too, smacks of concoction. Regardless. therefore, of P-W.I's evidence in this respect being hearsay thereis ample corroboration in respect of Public Witness l's statement that V. Jaggiwho had travelled to Bhopal with him and Sunil on 1/10/1973had left Bhopal, by air, on 3/10/1973.
(234) Yet another important piece of corroboration on a rather materialparticular is that the name of V. Jaggi had been written by Sunil inEx. Public Witness UR; the same was undoubtedly recovered from him on apersonal search. There was no serious contradiction of this by Sunil.The genuineness of Public Witness I/R cannot be doubted because the testimonyof Public Witness 97, the expert, fully supports Public Witness I's version-that he sawP.W. 1 writing the words and Avtar Kishan, maternal uncle of Sunil,the figures therein. Mr. Jethmalani's chief effort in this respect wasto show that the crime having been committed earlier than Ex. Public Witness I/R the conspiracy had come to an end and the same would not fallwithin the ambit of S. 10 of the Evidence Act. This contention,however) seems to have no force; the planned crime (conspiracy included) would not come to an end till the loot is distributed; theambit of the conspiracy was not merely to look out to invest the bootyby making investments in the names of the conspirators. Sunil hadtold Public Witness 1 that along with V. Jaggi and Ravi they had decided to start some industry with that loot. The reference to V. Jaggi in Ex.P.W. I/R is yet another piece of material corroboration showing ortending to show the participation of V. Jaggi in the crime. Mr. RamJethmalapi is, however, right in saying that Public Witness l\R is only said tocontain the names of the appellants and Public Witness 1 (even if Jaggi) therethat can be said to refer to V. Jaggi in Sunil's hand and the otherwritings not being in Sunil's han,d, what is seen in Ex. Public Witness I/R couldnot be said to be a complete statement. But this could make no realdifference because Public Witness 1 has given full evidence concerning it andthe importance of Ex. Public Witness 1\R consists in the material corroborationin respect of the evidence of Public Witness 1 concerning their participation,there having been no doubt that Public Witness 1 written in Ex. Public Witness ljRthe names of five of the accused, not even that of Kiran Singh-a6th person whose name was written by Avtar Kishan. Mr. Kaira rightlycontended that the writing of the names of only five persons, including himself by Sunil and the name of Kiran Singh having been writtenby Avtar Krishan Dawar, is significant because Sunil was only concerning himself about the persons who are parties to the conspiracy,as alleged by the prosecution, and was entering the names of thosepersons including V. Jaggi as persons in whose names investmentsare to be made as part of the arrangement for distributing the loot.The aim of the conspiracy was not merely to loot but invest it inthe name of conspirators. According to Public Witness I, Sunil had stated thatit had been decided to start some new industry, out of the lootedamount, along with V. Jaggi and Ravi. After identifying Sri KrishanDawar in court Public Witness 1 swore (page 170 Vol. IT) : "WHILESunil and Sri Kishan Dawar were talking another uncleof Sunil i.e. Avtar Kishan Dawar came there. Sunil wroteout the amount of investment on the pad of Sri KrishanDawar. Avtar Kishan Dawar also made out some writingson that pad paper. While leaving that place Sunil gave thebrief case which he had brought along to Sri KrishanDawar and said that the rupees fifty thousand were lyingin the brief cases.".
(235) It was in the same evening, at about 7.30 P.M" when Public Witness I, Ravi and Shahwar were sitting with a few of their friends atKilol Cafeteria, Bhopal that the police seized a ten rupee note outof the said sum of Rs. 600 from Public Witness 1vide Ex. Public Witness I/I),which contained the seal of the U.B.I. Public Witness 1 also indentified the briefcase (Ex. P. 7) as the one which Sunil had handed over to Shri KrishanDawar as noticed above. Read along with the evidence of Public Witness Iwhose evidence in this regard is materially supported as against Sunilby the said five names (of the culprit) being in the handwriting ofSunil there seems to be no force at all in the contention of Mr. Jethmalani that Ex. Public Witness 1[R could ait best said to be only partial or,in any case, of not much use. This kind of supporting evidence seemsto be what Lord Widgery, C.J., had in mind in .
(236) The further argument of Mr. Jethmalani that the addition of thename of Kiran Singh to the names of the five other culprits evenassuming (Jaggi referred to therein V. Jaggi) destroys the case ofconspiracy is also without force. It does not avail Mr. Jethmalanito rely upon the admission of Public Witness 1 (Vol. Ii, page 268) that V. Jaggidid not meet him after he had taken away the money from Delhiand that he had no discussion regarding the setting up of a factorywith V. Jaggi. After the occurrence Public Witness 1 had himself spent considerable time with V. Jaggi, he had also travelled with V. Jaggi. Raviand Sunil to Bhopal in Shahwar's jeep on lst[ 2/10/1973, theabove admission, relied upon by Mr. Jethmalani, refers to the timethat after the amount had been taken away from Delhi, which wason 17/10/1973.
(237) Mr. Jethmalani further criticised Public Witness I's evidence in general ona few minor particulars. They are as follows :-P.W.I's statementconcerning the participation of V. Jaggi in August 1973 itself wasnot having mentioned by him during his examination under S. 164 Cr. P.C. But it is not proper to attach any undue weight to a mereomission in a statement made under S. 164 Criminal Procedure Code .; it is not madeafter detail questioning as unless it is so important when a person is,during his examination-in-chief in Court that he would not have failedto mention it of his own accord and even in that being examined bycounsel. There is also the further curcumstance that P. W. 1 hmselfwas making a statement under S. 164 Criminal Procedure Code . in the circumstanceswhich have been adverted to at length; these circumstances have atleast some bearing on any omission of P. W.I to mention some moredetails at least. The above said statement by Public Witness I relating to whathappened in August 1973 was merely one pertaining to Ravi havingstated, in the presence of Shahwar and Sunil, that Sunil's friendV. Jaggi as well as Ravi would do some big work rather in indulge insmall business of running a cafeteria or lifting of ca(rs which theyhave been doing. This was only a statement of a general kind. Theonly importance lies in such a statement having been made in August1973 itself. This is the earliest mention of the formation of a conspiracy, by P. W. I in this case.
(238) Mr. Jethmalani also urged that there had been a desperate searchin this case to find out corroboration in respect of Public Witness I coscerningthe participation of V. Jaggi. As the subsequent discussion will showthis is no: a valid criticism. Even without Public Witness I giving the necessarydetails the police were subsequently able to unearth the concerned trunkcall bills, the air travel documents, all of which involve V. Jaggi.This is something specially valuable for the prosecution case againstV. Jaggi because this unmistakenably shows, that Public Witness I was notmerely speaking about the facts withhin a given framework alreadygiven to him by the prosecution or of details previously picked upby him the discovery of material connecting V. Jaggi with the crimesubsequent to the examination of P. W.I can hardly be minimised bythe kind of submissions the above kind-of a purely general nature.
(239) According to P. W.I on 23-9-1973 (Vol. Ii, page 15) Sunil cameto the Hotel Bright in Shahwar's jeep brought from Bhopal-the jeephaving been taken by Sunil the previous night-by which time Sunil,Ravi and Shahwar had shifted to a double bed room, from a singlebed room which they had initially occupied, when Sunil told themthat he had and V. Jaggi had decided upon a scheme of looting thecash amounting to Rs. 50 to Rs. 60 lakhs was carried daily by thevan of the U. B. I, Chandni Chowk to the Reserve Bank of India. Admittedly, V. Jaggi was not present at that time. But this does not makethe statement inadmissible against V. Jaggi since it squarely fallswithin the purview of S. 10 of the Evidence Act. The only question tobe considered therefore, is the weight to be attached to the testimonyof P. W.I in general and concerning V. Jaggi's participation in particular. P.W. l's testimony cannot be brushed away, as Mr. Jethmalani sought to do, that P. W.I is only a mouth piece for the prosecution, especially against V. Jaggi. Mr. Jethmalani only sought toderive support from the statement which P. W. I had made when hewas examined under S. 164 Criminal Procedure Code . (Vol. V. page 28) about Sunilhaving told them in the following manner : "I have got a scheme that a bank's van carried cash of aboutRs. 50 to 60 (fifty to sixty) lakhs daily from its branchto the Reserve Bank and we have to loot it on its way".
(240) The only difference between P. W. l's statement in the trial courtand that under Section 164 Criminal Procedure Code . is that whereas he had attributedthe said plan to Sunil and V. Jaggi in his statement under S. 164 Cr.P. C. P. W. had referred to Sunil alone having mentioned about hisabove-said scheme, not the joint scheme of Sunil and V. Jaggi- Wehave alluded to details being elicited from him in the manner it is donein examination-in chief in court. Moreover, if this difference stood inisolation, without more, there might be some substance in the above criticism of Mi. Jethmalani. But on a perusal of the statement under S. 164 Criminal Procedure Code . it is seen that P. W. I had also referred to the partplayed by V. Jaggi in detail, especially in fixing up hotel accommodation for the other three culprits, it was V. Jaggi who went out Along with Narender Aggarwal. P. W. I had not omitted to refer to V. Jaggi'sparticipation in so many ways. It has also to be borne in mind thatit was V. Jaggi who was able to get the information concerning themovement of the bank van and the amount of cash it carried everyday; this suggestion of the prosecution, however, could not be provedpositively owing to the non-examination of Narender Aggarwal, anemployee of the said Bank and stated to be a friend of V. Jaggi.Though the positive connection of Narender Aggarwal with the incident has not been proved (it would not be natural to expect thatAggarwal would own it) it is significant that P. W. I said, that whenthe party from Bhopal, including P. W. I Shahwar and Ravi went toV. Jaggi's office at 8.00 p.m. on 22/09/1973 they not onlysaw Narender Aggarwal but that P. W. 1 and Shahwar were introduced to V. Jaggi as well as Narender Aggarwal by Sunil.
(241) P. W. I had also referred to his submitting some applications tothe court, of shri R..L Gupta at instance of V. jaggi and Sunil,similarly his application (Ex. P. W. 1\T) was due to threat by affectedparties. The attempt of V. Jaggi to show that P. W. I had sought toblack mail V. Jaggi and reliance on Ex. D. W. 23 (A has miserablyfailed as already explained at length. Mr. Kalra wished to reply uponsuch efforts made by the appellants as showing a defense pattern, withV. Jaggi at the core, to deceive the court and hence meriting adverseinference being drawn against all of those to the extent they or any ofthem did so. While any false defense including that of alibi, will notby itself show that the proseuction case as put forward is true, it seemspermissible to draw certain adverse inferences on the basis of anydeliberate effort to mislead the court. There has been recourse to forging signatures of the eyewitnesses, including that of P. W. 1 (especial-ly of the latter on Exts. Dw 23 \A and 34\A. On this point thefollowing observations of Lord Widgery, C. J. in "R. v. TurnbuU (AllEngland Law Reports (1976) 3 p. 549) seem well worth setting :-
"CAREshould be taken by the judge when directing the juryabout the support for an identification which may be derived from the fact that they have rejected an alibi. Falsealibis may be put forward for many reasons : an accused.for example, who has only has own truthful evidence torely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence willnot be enough. Further, alibi witnesses can make genuinemistakes about dates an occasions like any other witnessses can. It is only when the jury are satisfied that thesole reason for the fabrication was to deceive them andthere is no other explanation for its being put forward,that fabrication can provide any support for identificationevidence. The jury should be reminded that proving the accused has told lies about where he was at the materialtime does not' by itself prove that he was where the identifying witness says he was.
INsetting out these guidelines for trial judges, which involveonly changes of practice, not law, we have tried to followthe recommendations set out in the report which LordDevlin's committe made to the Secretary of State for theHome Department in April 1976. We have not followedthat report in using the phrase "exceptional circumstances"to describe situations in which the risk of mistake identification is reduced. In our judgment the use of such aphrase is likely to result in the build-up of case law asto what circumstances can properly be described as exceptional and what can not. Case law of this kind islikely to be a fetter on the administration of justice whenso much depends on the quality of the evidence in eachcase. Quality is what matters in the end. In many casesthe exceptional circumstances to which the report referswill provide evidence of good quality, but they may not;the converse is also true.
(242) A failure to follow these guidelines is likely to result in aconviction being quashed and will do so if in the judgmentof this court all the evidence the verdict is either unsatisfactory or unsafe. Having regard to public disquiet aboutthe possibility of miscarriages of justice in this class ofcase, some explanation of the jurisdiction of this court maybe opportun. That jurisdiction is statutory : we can do nomore than the Criminal Appeal Act 1968 authorises us todo. It does not authorise us to retry cases. It is for the juryin each case to decide which witnesses should be believed.On, matters of credibility this Court will only interferein three circumstances : first, if the jury has been misdirected as to how to assess the evidence; secondly, If there has been no direction at all when there should havebeen 'one; and. thirdly, if on, the whole of the evidencethe jury must have taken a perverse view of a witness, butthis is rare."
(243) In the present case we have considered it fairer to the appellantsto steer clear of not drawing inference adverse to the appellantsfrom the many false suggestions that have been made on their behalfby their advisers, except to the extent to which they or any of themadopted the same as part of their defense.
(244) V. Jaggi's statement about his knowing Hooda and Brar when theywere in the Sherwood College but not being on good terms with themhas been made for the purpose of the defense in order to falsify, ifpossible, the evidence of P. W.I that he had seen V. Jaggi in theircompany. V. Jaggi's denial of want of a'ssociation between himself,Shahwar and Ravi has also been made for the purpose of defense, IT is true, however, that he did not know P. W. I previously; P. W. Ihimself has said so. He had gone to the extent of falsely claiming thatP. W. I had sent him the letter Ex. V. J. I (Ex. D. W. 23\A) demanding Rs. 50,000 from his father by way of black-mail and on threat ofimplicating him falsely. V. Jaggi had let in evidence of handwritingexperts to prove that the said letter was a genuine one and had beensent to him. He also let in the evidence of D. Ws 33 and 34 in, order toprove that P. W. I was in Bombay on the day of occurrence and thathe could not have been present along with them at Thompson Roada; the time of occurrence. He also denied his having gone to Bhopalalong with P.W- 1 and Sunil by jeep on 1/10/1973 and havingbeen brought back by his father by air on the 3rd. Inspite of denyingknowledge of any trunkcall made' to Bhopal on 1/10/1973 fromhis father's telephone number V. Jaggi subsequently examined his ownuncle (D. W. 18) admitting that such a call had been made but, fora different purpose, namely, of D. W. 18 alone proceeding to Bhopalto see a girl at Bhopal to get her married to V. Jaggi's brother J. Jaggiwho had come to India from Canada. There is also the question ofV. Jaggi and the other appellants having refused to take part in the identification parade arranged for December 18/19, 1973. In consideringthe truth of the prosecution case about V. Jaggi's participation in thecrime all the above would be relevant and admissible for being considered against him under S. 8 of the Evidence Act. It will none theless bear repetition to state that we have endeavored our utmost tokeep out of consideration to the extent possible some of the extremeand false suggestions put forward on his behalf except to the extentto which they became an essential part of his statement under S. 313 Cr. P. C. in particular and his defense in general, he. even examinedwitnesses in his defense to substantiate some of them. Concerning hisrefusal to participate in the identification parade we consider that notonly V. Jaggi, but also the other appellants were not justified in doingso. Unjustified refusal to participate in an identification parade mayvisit the persons who so refuse with adverse consequences. (Vide already noticed). Regardless of this consideration (and which is of greater importance inthis case) is the fact that this refusal led to the necessity of eye witnesses (P. Ws. 2 to 7) being assembled at the Dev Nagar police poston 25/12/1973 behind the police post and outside the view ofthe culprits until each one of them was called upon to identify thosewhom they had seen previously on the date of occurrence. The police donot appear to have taken any undue advantage of this situation; thesame had not resulted in any of the eye-witnesses identifying anybodyelse in addition to those about whom they had given descriptive particulars.
(245) This also seems a convenient occasion to refer to the manner inwhich P.Ws. 2-7 are state to have identified the culprits when theyhad seen Thompson Road and/or the secluded spot. This has a bearingof the prosecution against all the culprits and was commented uponby all the counsel who appeared for the appellants for this reason thecriticism made by the counsel also, for convenience of treatment, wouldbe referred to here.
(246) The question whether the mere pointing out by a witness of a culpritduring the investigation even where it was a case of identification beforce panch witness, arranged by the police but without completelydissociating themselves from the same is hit by S. 162 Criminal Procedure Code . (as acommunication or a statement made to the police despite the saididentification being a mental act by reason, of mere pointing out) wasanswered in the affirmative by the Supreme Court in RamkishanMithanlal Sharma v. State of Bombay already noticed, while considering the legal positions that arise for decision in this case under S. 27 of the Evidence Act. Bhagwati J., speaking for the Court, differed from the Madras and Nagpur decisions andagreed with those of Calcutta and Bombay. The point the, at arises heredifferent : whether a witness can depose before the court that he hadidentified a certain witness before the police at any particular placeduring investigation, as in this case at the Dev Nagar police post on 25/12/1973 ? There is judicial dictta (with which we agree) insupport of the view that the same not being a statement to the policethe bar of S. 162 Criminal Procedure Code . does not apply; the said bar would applyif the police officer told the court that the witness identified a certainculprit because that would be a statement (may be of mental act evenby merely pointing out on a finger or some thing like that) which thewitness made to the police officer that would be a statement by thewitness to the police officer. For this last proposition it would be sufficient to cite only two cases, namely, Daryao Singh v. State and Surendra Dinda v. The Emperor [1947(48)Cr. L.J. 804]. In the former case a tracker was allowed to give evidence before the court that he had been able to trace in the presenceof the police the tracks of the culprit known to him.
(247) For this reason, therefore, all the statements which P.Ws. 2 to 7made before the trial court, elicited in cross-examination, about theirhaving identified the concerned appellant(s), would be admissible.It is not as if the concerned appeQant(s) were even 'shown' to thewitnesses; the observation of the learned Trial Judge (vide para 395)that they were 'shown' can not properly be regarded as a finding, asMr. Garg wanted us to read it; it seems that it' is only, at best, not avery accurate reading of the evidence. This may become clearer if whathas been elicited from the concerned witnesses is briefly noticed.
(248) It was elicited from Public Witness I, during the cross-examination on behalf of Shahwar, that on 25/12/1973 some witnesses came andidentified him and other : it was still further elicited from him, duringthe cross-examination of Sri KrishanDawar (acquitted accused) thatfive bank employees had come and seen him while he was in policecustody out of whom only two or three identified him. A suggestionwas made to P. W. 2 on behalf of Shahwar that the police "showed"to accused persons by pointing out who was who: Public Witness 2 denied thesuggestion. P. W. 2, however, asserted that he saw Sunil and Shahwarin the said police post that day but had not seen V. Jaggi or Ravi orP.W. I at the said police post. This only shows that he was not in atposition to identify them. With reference to Public Witness I Public Witness 2 had saidthat he did not know Public Witness 1. It is worth repeating by way of emphasis that Public Witness 2 did not seek to identity any of the other appellants(not even Public Witness 1) except Sunil and Shahwar.
(249) P. W. 3, a peon of the Bank, had stated that he also went to DevNagar police post on that day along with Public Witness 2 and P.Ws. 4 to 6;they went there individually not "all together". Theyassembled there between 10.30 and 11.00 a.m. and were theretill about 1.00 or 1.30 p.m. When he saw five persons including Sunil.In answer to a specific question put to him whether he had seen V.Jaggi he only stated that he recognised three persons at Dev Nagarpolice post out of five that were there. He was confronted with hisprior statement to the police that he had been "shown" five accusedand he identified Ravi, Public Witness 1 and Shahwar. The recorded answerreads as follows :- "ANSWERI was shown five accused persons and I identifiedthe aforesaid three persons but I did not give their names.Their names were given by the police to me after I hadpointed out. (Confronted with portion A to A of statementcopy Ext. Public Witness 3/D-A-1 where three names are mentioned.")(Vol. Ii, p. 333) (250) The manner in which P.Ws. 2 to 7 identified those, whom theycould, being important, reference is made to this aspect, here, concerning all the appellants, including V. Jaggi.
(251) Yet another peon of the U.B.L, P-W. 4, also stated in cross-examination, that he identified three out of five persons at the Dev Nagarpolice post on 25/12/1973-Ravi and Sunil he identified duringthe trial as well. Though it was elicited from him that he was "shown"the five accused persons out of whom he identified three-he also asserted that he did not mention their names but the names of those threepersons were mentioned to Turn by the police after he pointed themout. This gives us the feeling that the expression "shown" was itselfeither used or understood somewhat loosely-especially by the police andthe witnesses, but he denied the further suggestion that neither be nor hiscolleagues were at Bhopal from 11th December or that he was takenback by the police by air to Delhi on the 13th Public Witness 4 admitted in crossexamination that he went to the Dev Nagar police post that day and'that he had seen the accused there but he also added that they werewith the police "on the back side of the place wherewe were sitting and they were not visible from there". A few minutesafter he reached the police post (at about 10.30 a.m.) he met P-W. 142but was only asked whether he had come to which he replied in theaffirmative; there was no other talk. He did not see Sunil at that time; hesaw Sunil at the post only later; he returned by about 1 or 1.15 p.m. (252) When P. W. 5 went to the Kamla Market police station in the afternoon of the day of occurrence he saw P. Ws. 3 and 4 there between 1 and2 p.m. He did not inquire then as to what happened to the driver he hadno talk with them. Concerning what happened at the Dev Nagar policestation on December 25, 1973, he was put the following questions towhich he gave the following answer :
Q.To which officer did you report at the Police Post A.Reaching there, I sat there and did not report to any officer.There was some person sitting there and he asked me andI told him that I had been called. I told him my name andalso told him that I had come from the Union Bank ofIndia.
Q.Which Police Officer showed you accused Sunil Batra at The police post ?
A.It was Inspector Chopra.
Q.Was Sunil Batra shown to you at 1.30 and thereafter youwere asked to go away-
A.It did not happen like that. When my turn came I was shownSunil Batra and I identified him and then I did so in regardto others.
Q.At what time did your turn come ?
A.1m not definite about that. It may be at about 12.00 or12.30.
Q.Did you stay there at the Police Post thereafter to awaltthat your other colleagues may be relieved ?
A.No-1 waited for my turn and thereafter my statement wasrecorded and I went away."
(253) Mr. B. L. Kaira has urged, and not without force, that there hadbeen some kind of loose phraseology employed in the said questions andequally in recording them, even if they were not calculated to misleadthe witness to which the answers were given in the aforesaid manner.In the whole context it does not appear that any particular person wasshown to the "appellants" by mentioning their names or identity; thatdoes not appear to be either the spirit of the questions or of the answers,though some witnesses have reacted sharply to the expression "shown"when it was employed in the questions addressed to them.
(254) For instance, P. W. 6, who said that he merely pointed out Sunil. Hestated that he stayed m the police post for about an hour and had pointedout Sunil who was also asked whether the police 'showed" Shahwar andthe boy with the beard (meaning P.W- 1) to him to which he repliedthat he "identified them'. He had seen five culprits that day at the policepost; at that time alone he learnt that there were five culprits; he alsofound then that one of them was a Sikh; after his pointing out he was toldthe names of the five culprits; before that he did not know theirnames. Public Witness 7 learnt about the name of Ravi only at the said policepost on the said date from Public Witness 142; the name was mentioned tohim after he was pointed out Ravi. There were five accused personsincluding Public Witness I but they were not mixed up with others.
(255) In the state of the above evidence there seems to be little farcein the contention of Mr. R. K. Garg that the learned trial Judge hadhimself found that there was "showing" of the culprits to the concerned witnesses. There is no other support for Mr. Garg's contention that what the learned Judge made the undermentioned doubts inparagraph 395 of his judgment ; .he was giving a finding that the culprits were "shown" to the concerned witnesses. "ASregards the showing of the accused persons on 2 5/12/1973, by the -police it bad a different intentand purpose than the holding of identification parade. Theeye-witnesses were called to the police post and they sawthe accused persons and their supplementary statements wererecorded. The showing was -just an act of investigation.The accused persons were not previously known to theeye witnesses. Police wanted satisfaction that the personswho had been arrested were culprits. Still another reasonwas that five accused had been arrested while accardingto F.I.R. the number of culprits was only four."
(256) It does not appear to be correct to read the learned Judges finding,as a fact, that any of the culprits was "shown" to the concerned witnesses ; (this seems implicit in the language employed by the learnedJudge -that the "showing" was just an act of investigation. Properlyunderstood it would mean that the learned Judge was only referring tothe acquiring the needed satisfaction by the police concerning thepersons who were arrested being the culprits-surely that satisfactionwould not have been got by "showing" the culprits to the concernedwitnesses, if by that expression is meant that each and every culpritwas 'introduced to (the concerned witnesses by name ; if this happenedit might have 'been a real mockery. None of the witnesses have infact said what Mr. Garg discussed. The evidence of the eye witnessesbearnig on this aspect has been set out by us at some length n orderto show that they had, by and large, stated that they first pointed outthat the persons concerned, whose names were mentioned to them onlyafter the concerned culprits had been pointed out by them.
(257) On a total view of this aspect it seems to us that the provisionof this opportunity to P.Ws. 2 to 7, necessitated by the unjustified refusal of the appellants to participate in the identity parade, was notabused ; the concerned witnesses did not identify any more than those,concerning whom they had given such identifying particulars as theywere able to.
(258) We have endeavored to set out the entire argument of Mr. Jethmalani on some of these aspects, even at the risk of some repetitionin order to faithfully reflect to the extent possible the scope of his contention pertaining to V. Jaggi. The above discussion would show thatmaterial corroboration has been admitted concerning Public Witness l's evidencevis-a-vis the participation of V. Jaggi in the crime only in two materialrespects and not other is not correct. There have been many morepieces of corroboration in material respects; they undoubtedly shownot only that Public Witness 1 is concerning the occurrence a truthful witnessbut that his evidence concerning the participation of each and every appellants is true.
(259) We may now notice the circumstances in which V. Jaggi came tobe arrested. As a sequel to the interrogation of Sunil during the nightbetween 11th and 12/12/1973 Public Witness 142 asked has seniorpolice officials to take steps for the arrest of V. Jaggi at Delhi. InspectorInder Raj Chopra (P.W. 101) was made responsible for the investigation to be conducted at Delhi along with some police officers whowere directed to assist him. After directing Inspector Hira Singh(P-W. 127) to proceed to No. 27, Sunder Nagar for keeping surveillance there Public Witness 101 proceeded along with D.S.P. JagdishPershad Saxena (Not examined ) to 27, Curzon Road,New Delhi, the residence of V. Jaggi's father. Finding nothing incrinamating there they proceeded to 7/31 Daryaganj, Delhi. After searching a few tockers of some members of V. Jaggi's family S.I. JagjitSingh (&ot examined) had already searched that place and foundnothing incriminating. Public Witness 110 and party left 7/31 Datryaganj leavingword with Jagpt Sing to inform them by giving a ring at a particularplace¯ of the arrival of V. Jaggi and to keep a secret vatch. On receipt of infonatio conacrning the arrival of V. Jaggi P-W' 101 hadleft tioag with Z)S.P. Saxena and foond both V. Jaggi and bif fatherHCD/78-10at 7/31DaryaganJ. P. W. 101 arrested V. Jaggi after interrogating himat about 8 or 8.30 p.m. V. Jaggi was instructed to keep his face muffledand he did so. V. Jaggi was wearing spectacles at that time out notwhen he was before the court. Public Witness 101 instructed Inspector ShivDarshan Lal (P.W. 116) to lodge him in the lock up of the PoliceStation, Original Road, Delhi. Public Witness 101 had verified that curtainwas hanging outside the police look up and also gave instructions tothe sentry guard that V. Jaggi was not to be shown to any person.Next morning Public Witness 101 instructed Inspector Jagmal Singh (P.W. 117)to bring V. Jaggi from the police station lock up to the office of theCrime Branch. V. Jaggi was produced with his face so muffled. Public Witness 101 prepared an application (Ex. Public Witness 101/A) praying that V. Jaiggibe kept in police custody till 20-10-1973 turn the purpose of identification proceedings and that he may be, directed to keep his face muffled.Ex. Public Witness IOI/A containts a note by Public Witness 101 [separately by marked Ex.P.W. IOI/A(I) to the following effect ; "No sooner did the accusedenter the court with his face muffled that he removed the muffler fromhis face". Not only did Public Witness 101 bring the fact of V. Jaggi unmuffling his face on entering the court room of the Magistrate butalso made a note to this effect in the application. It may be noticedthat this application, in original, has remained with the police andhas been filed by them later; it was not left with the Magistrate ; thiswas said to be due to a mistake V. Jaggi's father (M. L. Jaggi) appearedbefore the said Magistrate along with a few others and made an application (as per Ex. Public Witness IOI(B) on that very day refusing to bepresent at any identification parade on the ground that he had beenshown to various persons by the police. On the same day, Public Witness 101made an application as per Ex. Public Witness 101 \C for remanding the accusedto police custody for 14 days till 27-12-1973 since the accused refused to join the identification parade. That contained an endorsement'.(marked separately as Ex. Public Witness 101\C requesting police remand.The Magistrate (Shri R. L. Gupta) passed am order as per Ex. Public Witness 99113 on the same day; police remand was granted till 20-12-1973.V. Jaggi 'was directed to be medically examined. It was pointed outon behalf of V. Jaggi that Ex. Public Witness , 99(E does-not-reflect the factof V. Jaggi having unmuffled his face in court or the same beingbrought to the notice of the Magistrate. This argument overlooksthe.point that remand, application itself (Es. Public Witness .101/C) .specifically states as follows ; "On entering the court the accused got Hisface unmuffled". The public prosecutor, the costiceroed police offcials,f V. Jaggi, his father aad counsel were all present in court. Nothingsignificant turns .upon 'Ex. Public Witness 101(1 having beea mistakenly.takenback from court.and.the same not being noticed ;therefter; .it-is notdifficult to imagine how much excitement there should have been at thattime in the court.
(260) It does not admit of much doubt that V. Jaggi was arrested atabout 8 or 8.30 p.m. on 12/12/1973. Regarding the timeof his arrest it was mentioned by his father in the application (Ex.P.W. 99jF) dated 13th, that V. Jaggi had been in police custodysince 5 a.m. on 12/12/1973 ; V. Jaggi's application bearing thesame date (Ex. Public Witness 10113) and refusing to join any identificationparade, mentions that he was taken from his house by the police at5 a.m. on 12/12/1973. The suggestion to Inspector Inder RajChopra (P.W. 101) was that the time of arrest was 8.30 a-m. According to V. Jaggi's statement under S. 313 Criminal Procedure Code . he had been in policecustody since 6.30 a.m.. On this question the most telling feature.however, is that in the order of the Magistrate of 13/12/1973,passed at about 3 p-m. Shri R. L. Gupta had mentioned that V. Jaggihad f.o be remanded to the police for interrogation (vide Ex. Public Witness 99jE) till 20/12/1973 because V. Jaggi had been arrestedonly less than 20 hours previously. The importance of this statementlies in the fact that the said order was passed in the presence of hiscounsel Shri P. P. Grover and after hearing him. It was explainedby the learned Special Public Prosecutor that this order was passed at3 p.m. on 13/12/1973 and hence is consistent with (perhapsmakes out) the arrest of V. Jaggi the previous evening at about 8.30p.m. in his house.
(261) This has a considerable bearing upon the possibility of Public Witness Ihaving been seen by other witnesses in this case. As it was in thecase of some other mutually conflicting suggestions by the variouscounsel for the accused in this important particular also the suggestionmade to Public Witness 5, who was the first.among the witnesses, who identified,V. Jaggi in addition to P.Ws 6 and. 7, was that Public Witness 5 had not attendedoffice on 12th and 13/12/1973. It i? seen that he had attendedoffice on 12th ;the attendance register for the 13th is said to be notavailable; he had asserted that he had attended his office both onDecember 12 and 13, 1973. In other, words,,he was not specificallyasked whether the accused were shown to him on 12th and 13th December P.Ws 6 and 7, other two witnesses who identified V. Jaggi, wereasked whether the accused were shown to them on .12th and 13th;they denied, the .suggestion. What is curious about this and similarsuggestions is that the other accused had suggested to the concerneye witnesses that they were at Bhopal on 12th and 13/12/1973 when V. Jaggi had been arrested and that all of them travelledfrom Bhopal to Delhi by plane on 13th December with the police. THEREwas no suggestion to Squadron. Leader Tarlok Singh Dhaliwal(P.W. 88), who brought the accused (except V. Jaggi) from Bhopalin the Border Security Force plane piloted by him, that any of thewitnesses travelled in the plane. Even the suggestion bearing on theabove aspect have been mutually destructive of each other.
(262) In order to make it appear that V. Jaggi's face was unmuffledwhen he was produced before the Additional Judicial Magistrate ShriR. L. Gupta on 13/12/1973, it was urged that the endorsement(Ex. Public Witness 1O1/A-1) on the application (Ex. Public Witness 1O1/A) for remandmade by Inspector Inder Singh Chopra (P.W. 101) is a manipulation.But this suggestion is belied by Public Witness 1O1/C which is an applicationpresented by Inspector T. C. Chopra (P.W. 142) for remand whereinalso it has been stated that the accused (V. Jaggi) had got his faceunmuffled on entering the court room. It has been explained to usby Mr. Kalra that the court of Shri R. L. Gupta was so constructedthat from where the Magistrate was sitting be could not see the accusedentering; therefore, he could not himself make any reference, in the order passed by him, to the accused unmuffling his face ?s he enteredthe court room. The truth of this version has to be tested therefore,only by reference to contemporaneous records other than the order ofthe Magistrate (P.W. 101). Public Witness IOI/C is one such record whichmentions that the accused had got his face unmuffled as he enteredthe court. No police officer of any experience would produce aperson accused of a grave crime before a Magistrate without his facemuffled. As part of efforts that appear to have been made on behalfof V. Jaggi, his father had gone the length of stating that even theremand papers pertaining to V. Jaggi were "changed." He hadmade a written application containing such allegations which wereenquired into by the Chief Judicial Magistrate Shri K. B. Andley, whoobtained the remarks of Shri Gupta on the said application (Ex. P-W.102/DB) ; the comments of Shri Gupta are contained in Ex. Public Witness 102/DC. Shri Gupta had been so careful to always ask the Ahlmad of.his court to prepare whatever copy of records of this case as mightbe required by the accused in this case in his own chambers and underhis supervision. All the false accusations made against Shri Guptawere denied by him ; there had been no tampering with the applicationfifed into his court on 13-12-1973; he had looked into them againcarefully and was sure that there had been no tampering with them;all the papers were in their proper places in the file; nothing wasmissing-there was no reference to any particular missing document.- Nothing had been changed. The allegations made against Shri Guptawere of the wildest character; they were like those made against somany others; no one had been spared. It is really unfortunate thatsuch an extreme attitude had been taken. We have taken the utmostcare to ensure that the case against V. Jaggi is in no way prejudicedbecause of such unfortunate measures resorted to in such a racklessmanner, taken on his behalf. Mr. Kalra was indeed so fair as toomit, on our suggestion, any reference to such wild accusations, exceptreply to any repeated before us also.
(263) Advantage was also scught to be taken of the fact that the dateput by Public Witness 101 on the endorsement (Ex. Public Witness 1O1/A-1) on the application Ex. Public Witness 101, looks like 17-12-1974 instead of 1973, (as wesee it is). We have examined this carefully. It seems to us that havingregard to the manner in which P-W. 101 writes '3' it is only 1973 andnot 1974. But Public Witness 142 had subscribed to an application in theSupreme Court when V. Jaggi had applied for a transfer of this caseoutside Delhi. Therein Public Witness 142 had said : "I say that the date mentioned there under by the Investigating Officer (P.W. 101) was by wayof slip of pen mentioned as 13-12-1974 instead of 13-12-1973". Thismay be the way Public Witness 142 read it then ; but that has no impact whatever on what we see it is. The suggestion regarding this aspect, whichP.W. 101 denied, was made in the following specific manner:"Question : I suggest to you that remand from Ex. Public Witness 1O1/Awas not the Remand Form which was submitted by youbefore the Additional Chief Judicial Magistrate. I also suggestto you that the remand form which was submitted andwhich bore the order of the Magistrate and on which therewas no mention of Vipin Jaggi being with a covered faceor that Vipin Jaggi uncovered his face while entering thecourt-room had been destroyed by you?
(264) It seems needless to be concerned with this criticism any more thanWe have done. Having anxiously considered it we find that the aboveaccusations, made on behalf of V. Jaggi and by him are without anyforce whatever. The concerned papers in this respect which wereproduced before the trial court were only those from the file of theMagistrate ; they were not kept by the police privately. In the abovelight a reading of the order of Shri Gupta (Ex. Public Witness 99/E) on 13/12/1973 remanding Vipin Jaggi to police custody shows that thoughthis order was passed on a separate sheet of paper by him, there couldhave been nothing sinister about it unless Shri Gupta himself was aparty to any such ugly effort; it is not stated that he passed someother order and that the same was also substituted the only relievingfeature is that none of the extreme allegations involve Shri Gupta himself.
(265) A La Mode Mr. Jethmalam, Mr. Garg also referred to 24 pointsof reference to Shahwar by Public Witness I, but not with any more success.It seems needless to refer to them all for most of them are includedin the points discussed already where reference to Shahwar was alsomade.
(266) The discussion regarding Shahwar will, therefore be confined onlyto those not covered by the earlier discussion. Public Witness I had referred toall of them (except V. Jaggi) leaving for Delhi in Shahwar's jeep bearing No. Mpb 9828 on the night of September 21/22, 1973 till return-ing with Shahwar and Sunil on 1/10/1973. Having regard to thefact that there is other evidence concerning the jeep being at Delhi atabout this time, including its repair by Public Witness 15 and servicing at EssoService Station, Mr. Garg wanted to concentrate more upon the partactually attributed to Shahwar rather than the use of the jeep itself.The recovery of the jeep from his house is not a very serious question;nor is the title to the ]eep. The use of the jeep, therefore, would bean important circumstance tending to connect Shahwar the was indisputably in possession whether he was the owner or not) with the crime.
(267) P.W.1 used to meet Sunil, Ravi and Shankar at the Kilol ParkCafeteria at Bhopal. Shahwar was also present when Ravi told Public Witness I, time in August, 1973, about some of the schemes of Sunil tosmuggle wheat or rice or loot a jewellery shop or bank, in the presenceof Sunil. Public Witness 1 also gave evidence about Shahwar managing a pistoland his standing outside Public Witness 67's house when Public Witness 1 went there toobtain a revolver. Public Witness 1 had referred to Shahwar driving his jeep onSeptember 21/22, 1973; at the Chambal river ferry an entry was made(vide Ex. Public Witness 77/B) disclosing the number of the jeep and Shahwaras driver. This jeep was recovered from Shahwar's approach underEx. Public Witness 98/C on 12/12/1973. The said jeep had been servicedin the Esso Service Station at Delhi on 25/09/1973 whereSunil's Ambassador car (Ex. P. 12) was also serviced on an earlier date( 30/08/1973); the same address No. 27 Sunder Nagar, was givenin respect of both the spring leaf of the jeep was changed at Delhi on 30/09/1973 by Public Witness 15. On the return journey another entrywas made in the Chambal ferry on 2/10/1973 in respect of thatjeep with Sunil's name noted therein as driver (vide Ex. Public Witness 72/A.1 ).Shahwar had himself applied for return of that jeep on superdari to hisbrother Waqar Mohd.Khan under Ex. Public Witness 142/K; yet Shahwar madea vain attempt to deny his signature in Ex. Public Witness 142/K despite the saidapplication having been not only presented to court but also argued byhis lawyer.
(268) P. W. I had sworn that Shahwar also was present when Ravi madean entry in the hotel Bright as per Ex. Public Witness 1/L.I. mentioning the factof Shahwar also staying in that hotel under the assumed name of AshokBhargav; Public Witness 97 found for very good reasons, with which the learnedtrial Judge agreed, and we also, on the basis of our own comparisonof the same with sample and proved writing agree, that it is in thehandwriting of Ravi, despite Ravi denying his handwriting therein.Shahwar had managed the pistol (Ex. P. 8) according to Public Witness 1 it isnot known by whom) and the same was brought to Delhi. In view ofMr. Kalra's concession this is not important by itself. As a result ofthe disclosure statement of Shahwar (Ex.. Public Witness 82/H) made on 12/12/1973 Public Witness I, already noiced, took Public Witness 107 to the house ofP.Ws. 67 and 34 for pointing out the revolver (Ex. P. 9), with 23 cartridges, which were taken into possession vide Ex. Public Witness 34/B. It wasseen that there is clinching evidence about the two crime bullets usedin this case to kill the gunman and the driver of the bank van. We havealso explained how Ex. P. 9 is proved to have been taken from Public Witness 67by Public Witness 1. This establishes that Public Witness 1 was himself involved in theplanning, preparation and execution of this plan. So far as Shahwaris concerned his participation is made out by the corroboration Public Witness l'sevidence receives in respect of not only the jeep being seized from hisporch (which may be in the view most favorable to him may be onejointly owned or even possessed by himself and the members of hisfamily) but also by the jeep having left for Delhi on September 21/221973 and coming back to Bhopal on 11/10/1973, as spokento by Public Witness I, it is also supported by the ferry records, which wereseized by the police later than Public Witness l's examination, and the recordspertaining to the servicing of the same at the Delhi Esso ServiceStation on 25/09/1973 in which the car (Ex. P. 12) had alsobeen serviced (this is in addition to the spring leaf being changed byP.W. 1 5/09/1973). These are undoubtedly strong piecesof corroboration in respect of Public Witness l's evidence, which show that thejeep was used at Delhi on 23/09/1973 (for Public Witness I, Ravi, Suniland Shahwar going to U.B.I. Chandni Chowk) as well as for going Jothe Shahi Andaz Restaurant on September 24 for their going again tothe U.B.I.. Chandoi Chowk. on the next day all of them going to V.Jaggi's house, for Public Witness l's going to Public Witness 33's house on the night ofSeptember 24 to Rambles the same night with Public Witness 33, to V. Jaggi'soffice the next day and for Public Witness 1 to go to Public Witness 33 once again onthe nifiht of 29th. Regarding the visits to the U.B.I.. Chandni Chowk,there is the confimatorv evidence in the shape of the bank records concerning sending cash in the van on the relevant dates. Beyond these,the jeep did not by itself play any part in the occurrence itself or todispose of the loot or incriminating or blood stained articles involvedin this case. The reference herein to the jeep is only for showing thatthere is the confirmatory evidence available in this respect to the evidence of Public Witness 1.
(269) Mr. Garg referred to the discrepancy in the evidence pertaining tothe recovery of the revolver which has been proved to have been usedby Slinil. Tn the statemet under S. 164 Criminal Procedure Code . Public Witness 1 had stated thaton 21/09/1973 he and Shahwar had gone to Public Witness 67's residence a'nd having borrowed Ex. P. 9 belonging to Public Witness 34; he gave itto Ravi, who arranged for 23 cartridges from Shah Armoury, Bhopal;while nothing had been stated earlier about where Shahwar was at thattime. Public Witness 1 stated at the trial that he was standing outside Public Witness 67'shouse. This is in consonance which Public Witness 67's evidence that Public Witness I, hadcome to him; lie did not mention about Shahwar. The seizure of Ex. P. 9from Public Witness 34 by Public Witness 10 7/12/1973 (with cartridgeswas made under a memo Ex. Public Witness 34/B, which bears the attestation ofa Bhopal Advocate, Shri Dhanajay Singh (P.W. 81). The evidence ofP.W. 81, 34 and 67 not being open to question the only further point forconsideration is whether Shahwar was connected with this in any manner.The broad fact is that Public Witness 142 had questioned Shahwar earlier thanP.W.I on this aspect and had lost no time in getting it recovered fromP.W. 34 and 67; this was the most significant gain in the case; whatis also of importance is that the recovery of Ex. P. 9 was in the wakeof Ex. P. 8 (pistol) having been taken from Shahwar's steel almirah in hisresidence on the same night earlier, after Shahwar himself had made adisclosure statement concerning it. The fact that for various reasons,mostly technical, it has become necessary to set aside the convictionof Shahwar under the Arms Act vis-a-vis the pistol (Ex.P. 8) or eventhe fact that there is no evidence that it was actually used at the time ofthe occurrence despite the same being brought to Delhi for atleast being used for scaring away people will have no adverse impact on the evidence of Public Witness 1. On the other hand, Public Witness l's evidence does receive corroboration from the evidence pertaining to the pistol. From the pointof view of the progress of the investigation the recovery of the pistol(the fire-arm believed to have been procured for committing the crime)and the recovery soon thereafter of the weapon of offence Ex. P. 9 wereimportant. The subsequent statement of Public Witness 1 to Public Witness 14 2/12/1973/Ex. Public Witness 1/DA-2), that when questioned earlier he hadkept "one thing secret" was obviously a reference to Public Witness 1 havingstated only about Ex. P. 9 but not about Public Witness 33, whose evidence wasalso important. It is on this point that Mr. Garg urged that the policeofficer interrogating an accused person should note down "all" that hesaid and could not choose to record only what he liked, but Mr. Kairareferred us to Rule 25.53 of the Punjab Police Rules which seems tovisualise a record having to be made of only major events leading to theprogress of the investigation. We do not feel called upon to pursue thisaspect further in this case because it seems to us that when an accused(as distinct from witnesses) is being interrogated, especially at thecommencement of the investigation, it may not be necessry to record"all" that the accused says except to the extent to which it may helpfurther the investigation. Disclosure statements under S. 27 of theEvidence Act have necessarily to be recorded: recoveries made in pursuance thereof have also to be noticed. In appreciating the evidenceof P.W- 142 on this point it seems necessary to remember that Public Witness 1was then being interrogated as an accused person and not as a witnessin the cafe. Our own perusul of the case diary for the relevant perioddoes not indicate that Public Witness 1 was treated any differently from the otheraccused who were also being interrogated. On the night of December11/12, 1973 the task of interrogation of the accused and recording ofdiscovery statements from them was distributed to different policeofficers, especially in this situation it may not be proper to expect thatevery one of those officers should record every thing that each accusedstated; the concentration then was on making as much progress withthe investigation as possible. All the four of them being arrested, thepersonal searches yielding stolen money as noticed already, gave theinvestingating officers a dynamic opportunity, which was not to befrittered away by mere preocceupation with recording long statementsor whatever the accused stated without making such further progressin the investigation as seems to have been possible that night; there wassufficient time later to do all this, for verifying the investigation andchecking the evidence in the light of what they stated. More than everything not all of them might have even been in a mood to state everything freely at the first blush; whatever they stated the same wouldalso have to be verified. There is no substances in the criticism thatthe record of the interrogation of Public Witness 1 on the night of 11th/12thwas not kept; the disclosure statements had been recorded from himthen.
(270) P.W. 1 had gone into several details pertaining to how the planning as done: he had said in particular that Shahwar was to shoot thegunman, but Shahwar developed cold feet on the eve of the occurrencewhereupon Sunil took it upon himself. We find that even Ravi, who wasgiven the task of snatching the gunman, did not do so. Shahwar wasat least to snatch the keys from the van from the driver and drive .awaythe van; even here Shahwar failed, necessitating Sunil's intervention.P.W.'s 5 and 6 had seen the driver catching hold of the handof Shahwar; probably this was at a slightly later stage of the occurrencewe do not know sufficiently.
(271) The participation of Shahwar is spoken to by Public Witness 1. It was seenthat there is ample corroboration in the shape of Shahwar's disclosuremade on 12/12/1973, which led to the recovery of the pistol(Ex- P.8) from the steel almirah in Shahwar's house in Bare Mahal,Shahjahanabad, Bhopal by opening the same with the key which waskept concealed under the bedding of his cot (as per Ex. Public Witness 82/K)as well as P. W.I himself having been contacted after Shahwar madethe disclosure (as per Ex. Public Witness 82/H) and Public Witness 1 later on takingP.W. 142 to Public Witness 34 and 67 resulting in the recovery of the revolver(Ex. P. 9) with the bullets. The disclosure statement (Ex. Public Witness 82/K)also refers to Shahwar's "own" jeep Mpb 9828 also being in the saidhouse ; the same was seized by the police the same night. Mr. R. K.Garg, learned counsel for Shahwar, contended that it had not beensatisfactory proved, atleast beyond reasonable doubt, that Shahwar usedthe said jeep in connection with the perpetration of the crime; the jeepas such was not used for commission of the crime. He went on furtherto say that it has not been proved that the jeep itself was in his possession. The question of the title to the jeep itself is not in question ; theregisteration certificate of Ex. P. 14 shows that it was the name of Mrs.Badre-ealam but the previous discussion itself shows that Shahwar hadapplied to the court (vide Ex. Public Witness 142/K dated 13-2-74) for delivering the jeep on superdari to his brother Waqar Mohd. Khan. The effect ofShahwar to go back even upon his having so applied (Ex. Public Witness 142/K)has already been considered in detail. The above itself is sufficient toshow, unless Shahwar succeeds in proving the contrary, that he wasin possession of the said jeep. In fact, in the disclosure statement (Ex.P.W. 82/K) Shahwar had gone the length of claiming the jeep as hisown. but the question of title to the jeep is not important. It was alsonoticed that on the night of September 21122, 1973, according to theevidence of Public Witness I, he (P.W. 1) had left along with Shahwar and Ravifor Delhi in that jeep and that they had crossed the Chambal ravineby a ferry bridge where Ravi had caused an entry (Ex. Public Witness 77/B)made at the check-post in the morning. Public Witness 1 had stated that Shahwarwas driving the jeep at this time and that it was Ravi who gave thisinformation at the check post. The number of jeep has been mentionedin the said entry. The only mistake that was made in writing the nameof Shahwar, which was given by Ravi was that "Savadh" was writteninitially but "dh" was scored out and "r" was written in its place. Itseems to us that this was just an innocent mistake which bad proablyhappened in the act of the name being written by a person who wasobviously not familiar with the said name- "Sa" for "Sha" was probablythe usual manner of writing in that area. That the said jeep was usedfor going to Delhi from Bhopal; that the said jeep was also broughtback to Bhopal from Delhi is also confirmed by the entries made at theferry check post; the relevant entry (enroute to Bhopal) was made onthe morning of 2/10/1973. Sunil was driving the jeep then and thesame jeep number has been mentioned in the said entry (Ex. Public Witness 72/A) he name of the driver of the jeep was mentioned as Batra. Itmatters little for the purpose of this case that names of the owner of thejeep in the two ferry records while going and coming back do not tally;they would have been entered as given out. The number of the jeepfound in both the entries do not have any perceptible difference in theink or manner of writing the number of the jeep in the two vouchers;it seems fair to infer that the said entries related to this jeep itself.Having regard to the fact that both these documents were recoveredby the police at a time when even the persons who wrote these entrieswere not there and the further fact that some of the ferryofficials of Madhya Pradesh need not be obliged to bring about forgeddocuments merely for the purpose of this case Public Witness 1's evidence of thisparticular concerning the jeep being used for going to Delhi fromBhopal and back to Bhopal from Delhi, as spoken to by him, receivesmaterial corroboration. More corroboration in respect of the evidence tobe found on this aspect, of the use of the jeep is to be had from Public Witness 33who said that Public Witness 1 had gone to his house on the night of 28th andon the following night in a jeep having a Madhya Pradesh Registrationnumber. The desperate attempt made on behalf of Shahwar was to showthat the jeep itself did not belong to him or that it was not even in hispossession, which is contrary to the facts proved (or even admitted) inthis case.
(272) An even more extreme effort by him was to say that he did not evenlive in Nawab Manzil but that he as living only in Bare Mahal since1970 (vide answer to Q. 220). But it is seen from the evidence ofYoginder Nath (P.W. 78) that in the driving license of Shahwar whichwas issued on 30/01/1971 and valid until 29/01/1974,Shahwar had been shown as resident of Nawab Manzil, Bhopal. Heidentified the handwriting of those who made the entires, of which Ex.P.W. 78/A was a ture copy. The important fact to notice is that hereas no cross-examination by Shahwar of Public Witness 78 concerning this fact.Even regarding the statements made in the disclosures recorded fromhim (Ex. Public Witness 82/H and K) the suggestions made to the concernedwitnesses was that he had signed them when he was in a dazed condition ; when he was questioned under S. 313 Criminal Procedure Code . there was a distinctchange, namely, that his signatures had been obtained on a blank paperThe participation of every one of them including Shahwar as spoke)to by Public Witness 1, has been amply corroborated.
(273) After the arguments on the appeals were heard at great lengthcommencing from 11/11/1977 (and heard continuously thereafter by this Bench on all the days it sat) Cr. Misc. 84/78 dated17-1-78 arid Cr- Misc. 110 of 1978 hearing date 23-1-1978 were filedon behalf of Shahwar.
(274) In the former application (Cr. Misc. 84 of 1978) it was prayedthat additional evidence may be taken as mentioned in paragraphs 8 and11 of the application. In paragraph 8, the following documents werementioned as having to be summoned in order to test the credibilityof the police witnesses and the only public witness Girdhar (P.W. 82) :
(I)The general diary entries in police stations and outpostsvisited by Shri Yusuf Rahim, Dig, Shri Ashok Patel, Sp, Avtar Singh, Deputy S.P., Shri Tek Chand Chopra, Inspector and his other colleagues during the period December5 to December 12.
(II)Copies of general diaries maintained on 12/12/1973,at police post Gandhi Nagar, especially the entries relatingto arrival of the police officers with the arrested persons andthe entries relating to memos, based on-personal search andseizure, and departures of respective police officers frompolice outpost Gandhi Nagar for execution of searchwarrants obtained in Delhi.
(III)Entries made in police station Shahjahanabad for departurefor recoveries at Nawab Manzil and entries relating to return after recoveries made at Nawab Manzil and otherplaces in which search warrants had been obtained.
(IV)Records of police messages exchanged on December 11 and12 between Bhopal and Delhi leading to the arrest of VipinJaggi.
(V)Record of entries made in relation to police officers leaving by jeep and other vehicles from Bhopal to Delhisupported by T.A. Bills submitted by them for journeyperformed between Delhi, and Bhopal.
(VI)Bills for expenditure involved by the police investigatingthis case between December 5 and December 25."
(275) In paragraph 11 it was mentioned that the said general diary ofpolice Station Lock Up Parliament Street dated 14-3-1974 may be i.lsosummoned. This was said to relate to Public Witness l's interview with his lawyer Shri B. D. Batra on that day.
(276) By the latter application (Crl. Misc. 110 of 1978) a prayer wasmade to summon Sarvashri Yusuf Rahim (DIG), Ashok Patel (SP)and Avtar Singh (Dy.S.P.) as court witnesses with opportunity tocross-examine them.
(277) It is not mentioned in either of these applications that the appellantShahwar did not have any opportunity of summoning or adducing theadditional evidence as now sought. On the other hand, it has been pointed out in the reply dated 30-1-1978 filed by Mr. B, L. Kalra, SpecialPublic Prosecutor for the State (in Crl. Misc- 84 of 1978) that thefacts which are now being challenged by Shahwar were never questioned during the trial. The importance of the said allegation consists in thefact that even though a rejoinder was filed on behalf of the appellantShahwar the said allegation, conceming the facts now challenged notbeing disputed at the trial has not been. controverter. Nor was anyoral submission made to us in this respect.
(278) Before dealing with the avertments in the two applications it maybe convenient to note what has been admitted in the said replies filedby Mr. Kalra to both these applications :
REPLYto Cr. Misc. 110/78 :
(1)There was no information with the police about the complicity of V. Jaggi on the 5th and 6/12/1973 (2)Against other appellants there was Only credible information which was verified by Sarvashri Ashok Patel, AvtarSingh (D.W. 14) and Public Witness 142. The case diaries for theentire period from 28/09/1973, to 6/12/1973 had been produced into Court. Whenever needed theywere not only persued but also explained to us by Mr.Kalra. Whatever evidence was necessary to unfold theprosecution version was brought on record; any othermaterial, desire of the defense, could be brought out bythe defense during cross-examination.
(3)The case diary was maintained according to the PunjabPolice Rules as applicable to Delhi and were complied withas far as possible, except to the extent that some entries inthe general diaries at Bhopal were not made on some occasions in order to maintain secrecy.
(4)The senior Police officers used to interrogate the culpritssome times "to verify" the investigation; they are not supposed to record such interrogations or to write a case diary.P.W. 1 himself had admitted that he was interrogated by thesaid police officers, though not repeated as alleged by appellant Shahwar. The accused were not shown to the witnessesto facilitate their later identification as alleged by the appellant. P.W. 142, the chief investigating officer in this case,was examined and cross-examined at length. The superiorpolice officers Mr. Ashok Patel (SP) and Mr. Avtar Singh(D.S.P.) did not conduct any independent investigation orrecord the statement of any witness.
(5)It has been rightly pointed out in the reply filed byMr. Kalra that so far as Mr. Avtar Singh (DSP) is concerned he has himself appeared as a defense witness(DW 14) on the request of V. Jaggi,but he was not putany question, on the lines contended on behalf of Shahwaror any other appellant; there was no cross-examination ontheir behalf. The prosecution closed its evidence in thetrial court on 25/05/1976; the examination of all the accused was concluded on 2/06/1976; thereupon the accused bad entered upon their defense and the defenseevidence was closed on 21/08/1976. Appellant Shahwar produced only 2 defense witnesses and closed hisdefense without any prayer to summon either Mr. YusufRahim (DIG) or Mr. Ashok Patel (SP).
(279) Reply to Cr. Misc. 84/78 -: the following admissions have been madeby Mr. Kalra.
(1)No entry whatsoever was made by any Delhi Police Officer(Gazetted or non-Gazetted) at Bhopal between 5/12/1973, and D 10/12/1973 ; it was a preeaution tokeep the movement secret.
(2)Up to mid-night of 11/12/1973 only one entry wasmade at the police station Talliyan, Bhopal under ordersof Officer in charge A.R. Sublok (P.W- 111), concerningwhich entry he has given evidence; there has been no cross-examination regarding this matter.
(3)Thereafter entries were made in the general diary of The police station, on December 12 and 13. 1973 which havealso been proved in the case (no specific questions or suggestions had been made concerning such entries; they werenot asked to be produced.
(4)An entry has been made at the police station Shahjahanabadby S. I. Babu Ram (P.W. 115) after recovery of jeep No.MPB 9828 and the pistol (Ex. P. 8) at the instance of andfrom the possession of Shahwar.
(5)After the recovery of Rs. 50,000 from Shri Krishan Dawar'soffice and Rs. 65,000 from Sunil's locker from the CanaraBank, Bhopal, entries were made at the police stationJahangirabad on December 12&13, 1973. It was specifically stated that the copies of these entries were available withthe investigating agency and could be perused by the appellant's counsel. This matter was not pursued further norwas any submission made to us on behalf of Shahwar, inthis respect.
(6)No entry was made in the general diary of the policepost Gandhi Nagar, Bhopal at any time, a fact whichP.W. 142 has already deposed at the trial regarding whichno suggestion to the contrary has been made.
(7)No departure entry from Shahjahanabad by S.I. Babu Ram(P.W. 115) has been made since according to his ownevidence the did not go incide the police station. Afterthe recovery of the jeep and pistol an entry was madeat that Police station; entries were made at the policestation Talliyan and Jehangirabad as stated above.
(8)No wireless messages were exchanged between Delhiand Bhopal police officers concerning the arrest of V.Jaggi. In order to keep it secret some police officers ofDelhi used a telephone installed at the house of a privateparty commanding his confidence (the sources were notdisclosed and disclosure of them could not be insistedupon).
(9)No entry about the Gazetted police officers was madeat Bhopal, as the same was not required to be made. Thedeparture of the accused and police officers was made inthe general diary of police station Talliyan which hasbeen proved in the case.
(280) Since a reference was made in the appellant's petition (Cr. Misc.84 of 1978) for the production of T. A. bills of the concera,ed officers,the reply of Mr. Kalra is that the records are maintained by theAccounts Branch.
(281) As already noticed no entries could be expected to be madebetween December 5 and December 10, 1973 because the police wereonly carrying on some secret investigations. The entire purpose wouldbe frustrated by making any entry in any general diary of any policestation at Bhopal. This was expressly admitted by Public Witness 142 when hestated that they did not even make an entry concerning his arrivalat Bhopal on 5/12/1973, he further admitted that on the 5thand 6th he had not visited any police station or enter appearance inany court; he had not even contacted any police officer at Bhopal:he had been making inquiries under the supervision of Superintendentof Police Ashok Patel. He categorically denied that it was incumbenton him to get his presence in the State of Madhya Pradesh recordedat any of the police stations. The documentary proof regarding hisvisit to Bhopal on 5th and 6th, in reply to questions put to him inthis behalf he stated, were siminis, copies of which he had beensubmitted to superior officers in the usual course. An entry had beengot recorded at 6.45 P.M. by the Town Inspector of Kotwali Bhopal(Sublok Public Witness 111) on 11/12/1973 concerning the help whichD.S.P. of Delhi Avtar Singh had asked in connection with this case.P.W. 111 along with two other Constables joined D.S.P. Avtar Singhand had also directed the Head Constable Moharrir to make anentry in the daily diary regarding their departure. Public Witness 111 had himselfnot known even the (identity of Ashok Patel, S. P. previously; he wasinformed about his identity only when be met him on the road. Theentry which Public Witness 111 thus got recorded in his police station throughthe Moharrir was to the effect that he was accompanying Dsp AvtarSingh. Public Witness 111 also had spoken about the practice obtaining in hisstale, namely, that no entries were made in the daily diary whenanother police station is visited in the same city or on leaving thestation; there was rule regarding entries to be made at other policestations in the same city; entries were made only concerning thearrival and departure at the police station of each police officer. Thereis also a similar provision (Rule 1.13) in the Punjab Police Rules,which defines an earolled police officer as including Inspectors anddownwards, but not gazetted officers. Rule 22.49 (c) of the saidRules requires that the arrival and departure on duty at or from The police station of all 'enrolled police officers' or whatever rank whetherposted at the police station or elsewhere, is to be recorded with astatement of the nature of their duty. This entry is to be made immediately on arrival or prior to the departure of the officer concerned.Such a practice of non-gazetted officers is also in vogue in MadhyaPradesh as admitted by Public Witness 111. Public Witness 111 denied the specific suggestion made to him that details of places visited are required to be madeat the daily diary. In accordance with practice Public Witness 111 had, when hereturned, made an entry in the daily diary of the police station at thetime his arrival but did not mention the places which he had visitedlike the visit to the house of Ravi etc. He returned to his police station at 6.30 A.M. on December 12, 1973-this entry was also gotrecorded through the Head Constable Mohamr. Public Witness 111 had got itconfirmed that it was made but it was not signed by him since therewas no such requirement, Public Witness 111 also stated that if some police officers from outside the state approached him for help he was requiredto make an entry in the daily dairy in his own hand-writing. There hasbeen no basis at all for any of the suggestions of the above kind madeto Public Witness 111 on behalf of the defense. Even when Public Witness 111 was askedas to whether the departure entry directed to be made by him on 11/12/1973 was timed as 6.45 or 7 or 7.50. Public Witness 111 stated thathe could not mention it without referring to the entry. He could notstate the exact time mentioned in the entry without seeing it. He wasasked whether the daily diary was destroyed after some time to whichhe replied that he thought it was liable to be destroyed after three years.
(282) P.W. 142 had stated that no entry was made at the police postGandhi Nagar. It was Babu Ram (P.W. 115) who had caused theentry to be made in the daily diary of the police station Talliya at6.30 A.M. on 12/12/1973 ; Ex. Public Witness 37/A is a translation ofthat entry at Sr. No. 1094 concerning the lock up of the four accusedpersons (P.W. 1and the other appellants except V. Jaggi). Therecoveries made were entered as having been deposited in the malkhana of the said police station after being duly sealed. A criticismwas. however, made that details of the property had not been mentioned therein to which Mr. Kalra has given an appropriate reply,namely, that as would appear from Ex. Public Witness 37/D the entry of thegeneral diary of 13/12/1973 of the same police station concerning the said properties being taken out for being carried to Delhiat 12 Noon, these were described as comprising currency notes etc.which had been deposited in the malkhana as property in trust(amanat).
(283) After recovering the pistol and the jeep No. Mpb 9828 fromshahwar under Ex. Public Witness 98/C Babu Ram (P.W. 115) recorded thestatements of H.C.Kidar Pandey (P.W. .98), who bad attested Ex.P.W. 98/A along with Phool Chand Jain; Public Witness 15 examined thesaid Phool Chand Jain .also under S. 161 Criminal Procedure Code . At that stage Public Witness 98 left for police station Shahjahanabad. with .the ruqa. These weredeposed in the said police station as amanat. No entry, however,was made at the said police station in regard to Shahwar becauseShahwar was standing outside the police station and from there The police party was led by Shahwar. It is significant that there has been no request made to the trial court to have sent for general diaries) ofany of .these police stations other than the entries concerning which hadbeen exhibited in the case. It is already noticed that Dsp Avatar Singhwas examined as a defense witness by V. Jaggi and no question hadbeen put to him on behalf of any of the appellants including shahwarwho has made these two applications. It has been explained by Mr.Kalra that there was no look up at Gandhi Nagar, it being only apolice post; there was also no midkhana there. Both the malkhanaas well as the provision for lock up were available at police stationTalliya. Hence it is that entries concerning the lock up as well as thedeposit of properties at police station Talliya were net only madebat exhibited before the trial court.
(284) No such roving inquiry .could be made for the first time in thisappeal especially when no such questions were even put concerning them at the trial. The expenditure incurred for the purchase of fuelfor use of government vehicle which was taken to Bhopal is stated to beon record. No attention, however, was paid to this aspect.
(285) Regarding the allegation that one Mr. B.D. Batra, Advocate everinterviewed Public Witness 1 in the judicial lock up at police station ParliamentStreet, New Delhi on 14-3-1974, it is stayed that the same is notwithin the knowledge of the prosecution. It is further stated that thedaily diary of that date was destroyed on 7/02/1977. Mr. Cargcould derive no assistance whatever from the decision of the SupremeCourt in Habeeb Mohammad v. The State of Hyderabad (1954 S.C.R.475) because in that case the Supreme Court had only commentedupon the absence of examination of an impotant eye witness, a top ranking police officer, who was present at the scene and had givenorders for firing. The present is not a case of that description-it istotally different.
(286) It only remains for us to notice the prayer, of an unusual kind, topass an order on these applications for additional evidence evenbefore completing die hearing or proceeding to judgment. It is onlynecessary to recall the higher belated stage when this application wasmade in this Court to appreciate the above--as we consider itunusual request.
(287) We considered it proper to .consider those applications also Along with the other contentions made on the merits in the appeals and wedo not feelany necessity to summon any officer or record, as suggested. The request, as we said, is to make a roving inquiry forthe purpose, as it was explained orally to us by Mr. Garg, to test the"honesty" (as he called it) of the investigation. It is needless tomention that, as pointed out by the Supreme Court repeatedly videAher , it isnot for the court to presume dishonesty on the part of the police.
(288) The arguments which Mr. Garg advanced, even on the basis ofthe assumptions made in the replies made by Mr. Kalra, do not seemto carry on any further especially in the light of the Punjab PoliceRules, referred to above, as well as the evidence of Public Witness 111 regardingthe practice that is said to obtain in Madhya Pradesh on which mattersthere has not been even cross-examination.
(289) Both these applications Cr. Misc. 84/78 and Cr. Misc. 110/78)are accordingly dismissed.
(290) Those in charge of V. Jaggi's defense-singularyly among allthose interested in the other appellants-concentrated their mighton Public Witness 1. It was seen how Public Witness 1 emerged unscathed out ofthe ordeal, both before and during the trial, to which he seemsto have been intensely subjected, Once the evidence given byP.W. 1, after he became an approver, is considered safe to actupon not only in its details-but broadly--but also concerningthe. participation, of each of the appellants (ample corroboration being available in respect of the participation by each of themor tending to show such participation) there was indeed little scopefor the defense. One way out was to challenge the quality of the identification evidence (taking advantage of the appellants own refusal toparticipate in the identification parade) but all attempts to do soseem about foreclosed. We seem to have laboured the point of identification much beyond what was perhaps needed because it had beenthe subject of so much argument by cousel for every appellant.Itwas urged that the courts in India had not come to grips., yet, in themanner said to be necessary, with the difficulties identify evidence,especially of Culprits not previously known to witnesses,pose.If wehave made an effort to survey the available legal literature on thispoint, it was purely by way of responce to the submission of counselbefore us. In the final analysis what lies at the heart of the issue seemssimple. It is not as if we deliberately set out to reach an "OccamRazor" solution; without, however, intending to do so our labourshave yielded solutions which appear too simple, both factually andlegally.
(291) If identity-evidence is worthless it will, doubtless, be disregarded.Identity-evidence, which is not worthless, can range from what is. described as 'poor' to that of the highest quality. Even when -'poor'and it is, for that reason, not sufficient by itself to act upon, it canbecome enriched by supporting evidence : such supporting evidencecan take in a wide spectrum of differing fact-situations; they would include "odd coincidences" and corroboration which may be describedas"mutually-supporting". Sometimes, even weak or infirm evidence,which itself receives sufficient corroboration from other circumstances,can be regarded as sufficient to support identity-evidence originallyregarded as "poor" by itself; what circumstance (s) may be regardedas sufficient corroboration would be, however, for the judge of factto consider. It is only necessary here to underscore the point thateven as the need for a "general caution to the jury" inEngland vis-a-vis identity-evidence, insisted upon in some cases previosuly, had been abandoned by the House of Lords, especially incases where the "specifics" of such evidence are adverted to in casestried with jury, there could be no legal impediment whatever to courtsin India acting upon identity-evidence concerning culprits previouslyunknown to witnesses (there being no trial by jury in our countrytoday) in the manner above described. This is always a question ofappreciation for the judge of fact; who will bear in mind the. rule ofprudence concerning the need for corroboration where the identityevidence is poor. If with all these aspects in mind the judges of factacts on identity-evidence, there is no legal principle which would stillrequire an appellate court to interfere with the finding of the judge offact. It is worth repeating that identity-evidence of good quality, evchwhere the culprit is not previously known to the witness, could beacted upon by the judge of fact, even without corroboration.
(292) The factual difficulties pointed out by the counsel for. appellantsare also easily resolved, though we are afraid that this judgment hasbecome over-burdened with so many details which the learned counselfor each of the appellants pressed upon us ; the case of each of themwas fought every inch, tenaciously and arduously. The discussion of"the evidenee of P.Ws.2 to has shown that the evidence of not oneof them against any of the appellants can be regarded as worthless.Among the appellants Sunil had the most distinctive face-oval. At theworst the evidence of P.Ws 5 and 6, who were no longer in the bankvan after they got out of it at Thompson Road, could only be described,at the worst, not as poor but only as not being so good as that of heother witnesses-this is because they saw the culprits for a lesser periodof time than the others. But so far as Sunil and Shahwar are concerned P.Ws 5 and 6 saw both of them from fairly close distances andthey must have received most powerful optical impressions concerningboth of them. In addition, there is plenty of supporting evidenceagainst both Sunil and Shahwar to be had not on (293) Regarding Sunil, the recovery of Rs. 1,000 worth of stolen moneyimmediately after his arrest at the Kilol Park Cafetaria at Bhopalon 11/12/1973, Ex. Public Witness 1/R containing the names of fiveculprits, including himself, in his own hand, the disclosure statementsleading to the recovy of stolen currency notes (Rs. 40,000from Sri Krishan Dawar and Rs. 65,000 from the Canara Bank,Bhopal, in addition to some other sums discussed earlier), search of27 Sunder Nagar, New Delhi, unearthing not only human blood stains(of the blood group of the gunman of the bank van) from the bathroom wall of the house admittedly occupied by him and his motherand sister, recovery of ash of burnt cloth made of synthetic fibre from the terrace of 27, Sunder Nagar, recovery of human blood stains ofthe same blood group and vegetable matter of the same kind as thatseized from the secluded spot off Barron Road from inside the dickey ofthe Ambassador car (Ex P.12), the reference to the driver of jeep (Ex.P. 13) being noted as Batra in the book maintained at Chambalvalley ferry bridge, on 2/10/1973, the evidence of Public Witness 35concerning the target practice on the roof of V. Jaggi's house underconstruction at Greater Kailash on 27/09/1973, the evidenceof Public Witness 33 (taken along with that of Public Witness 1) concerning Public Witness 1'sstatement to him about Sunil also having joined them in the commission of the crime and Public Witness 33 finding Sunil (to whom he was introduced by Public Witness 1) at V. Jaggi's office on the morning of 29/09/1973 and last, but not least, the evidence concerning Public Witness 1regarding Sunil being supported in so many important particulars including the evidence of Public Witness 109 that the two crime bullets in this casewere fired from the revolver Ex. P. 9 (recovered afterwards fromP.Ws. 34 and 67, after being pointed out by Public Witness 1) but no other,clinch the case of the prosecution against him without any possibilityof the same being seriously controverter. What indeed seems to takethe prosecution case against him most is that when all; the above pointto him as the chief culprit in this case, he falsely claimed the stolencurrency notes recovered from him as his own.
(294) Shahwar has the most dominant and distinctive appearance amongthe appellants. We have against him not- only the identity-evidence ofP.Ws 1 to 7, but also the recovery of the jeep (Ex. P. 14) from underthe porch of his house but ample evidence of its use, as we find from the entry showing him as the driver of the same at Chambal ferry on 22/09/1973 (coupled along with the return entry of thejeep on 2/10/1973), the servicing of the said jeep at the sameEsso Service Station (on. 25/09/1973) at Delhi where theAmbassador car (Ex. P. 12) had also been serviced earlier as well asits repair by Public Witness 1 5/09/1973. Since for a technicalreason we are unable to rely on the recovery of the pistol (Ex. p. 8)from his almirah (in pursuance of his discloure statement and pointingout the key which was taken from underneath the bedding to openthe said almirah) still it substantially corroborates the evidence of Public Witness 1concerning the participation in the crime by Shahwar. All theseamply support the evidence of P.Ws 1 to 7 against him. To crown allthough Rs. 1,000, out of the stolen notes, were recovered from himon personal search made at the Kilol Park Cafeteria on 11/12/1973 he not only failed to give any explanation but denied falselythe recovery itself. Ravi's entry in the register of hotel Bright thatShahwar stayed there, initially, in the assumed name of Ashok Bhargava,and Shahwar signing as D.B. Shah in Hotel Prabhat Registergives still greater assurance concerning Shahwar's participation.
(295) The case against Ravi rests upon the evidence of Public Witness 1, in themain; that is the obvious reason why those responsible for V. Jaggi'sdefense went to the extreme lengths noticed by us. P.Ws 4 and 7,among the eye witnesses, identified him; he is the shortest of the lot.Such a large sum of stolen money, nearly Rupees four lacs, wasrecovered from the drawer of his office table, in pursuance of hasdisclosure statement wherein he had admitted that he had kept thesame concealed there; concerning this, however, not only did he failto give any explanation but also made a false denial which went toridiculous length. Chiefly on account of Public Witness 1's evidence concerningthe receipt of a particular person trunk-call in Ravi's name on 20/09/1973 from the telephone at 27 Sunder Nagar to BhopalNumber 3007 (which was in the name of Gopal & Co., with whichRavi was doubtless connected, Ravi falsely denied that he had nothingto do with that telephone or of Gopal & Company in whose namethe telephone stood, despite his having earlier given his address as"Gopal & Company, 30 Civil Lines, Bhopal". The fact of the entries,in fictitious names, having been made by Ravi in the register of hotelBright is yet another confirmatory piece of evidence, of a telling kind,against Ravi. Later on Ravi and Shahwar were taken to hotel Prabhatand Public Witness 1 to Jeevan Lodge.
(296) Concerning V. Jaggi's participation we have the evidence of P.Ws 5 to 7. The identity evidence of P.Ws. 5 and 6 against even V.Jaggi cannot, as explained earlier, be regarded as poor; they sawhim and Public Witness 1 sitting in the Ambassador car (Ex. P. 12) in that narrowlane off and close to Thompson Road, in broad day light. Hisparticipation in the crime gets added confirmation from the evidenceof Public Witness 7, who saw him, at a different place, not Thompson Road,but at the secluded spot near Barron Road. On such identity-evidenceatone, which seems both acceptable and sufficient, the conviction ofV. Jaggi has to be confirmed. The evidence of Public Witness 1 supportedin so many material particulars generally concerning the .commission ofthe crime and participation by all the appellants, receives additionalsupport concerning V. Jaggi's participation in the crime from theevidence of Public Witness 35, who spoke about the target practice at V. Jaggi'shouse under construction, in which V. Jaggi participated, but alsofrom that of P. W. 33, who took P. W.1 to V. Jaggi's office on themorning of 29/09/1973 and was introduced to V. Jaggi alsoby P. W. 1. P. W. 1's evidence concerning V. Jaggi's participationin the crime receives further and substantial support from not only thetrunk-call from his father's telephone at Delhi to Bhopal precedingthe air dash by his father to Bhopal on 2/10/1973, to bringhim bade on 3rd. Even though we axe unable to act on the evidenceconcerning the Fiat car containing blood stains by reason of suchassurance as we have in the case of the Ambassador car (Ex. P. 12)being un-available; the recovery of the same from V. Jaggi's house supports Public Witness 1's reference to that car and the use of the same both beforeand after the occurrence. P. W. 1 did not know V. Jaggi before P. W.1did not know Hooda and Brar (in whose company P. W. 1 saw V.Jaggi daring the relevant period at Delhi) either; the effort madeby V. Jaggi to say that he was on inimical terms with both of themwas not successful. It has also been made out, despite the witnessesfrom the concerned hotels at Delhi having turned hostile, that V.Jaggi, had extended his support to get hotel accommodation at Delhifor P. W- 1, Ravi and Shahwar and paid Rs. 100 as advance tohotel Bright. It is needless to sum up the entire discussion pertainingto V. Jaggi, which had to belonger than that pertaining to anyother appellant in the view there has been no recovery of stolen moneyfrom him and it not being possible to act on the recovery of the key ofthe bank van from him, for the reasons explained (again at greatlength) already. The non-recovery of any stolen money fromV. Jaggi cannot, in the circumstances explained by us, minimise thestrength of the prosecution case against him even as the recovery ofa huge amount (stolen, money) from Ravi cannot by itself strengthen,for that reason alone, the prosecution case against Ravi. This onlymeans that the arrest had taken place before the actual division ofbooty took place.
(297) To bring home the participation of each of the appellants in thecrime, evidence, however, slight but significant, against each ofthe appellants would be sufficient to support the evidence of Public Witness 1. Inthe case of the appellants other than V. Jaggi, the recovery of stolencurrency notes from them without any proper or adequate explanationby them would, in the circumstances of the case, as explained in detailand in length, be sufficient; the false denials only make it even worsefor them.
(298) A lot of fuss was made on behalf of V. Jaggi to make it appearthat he was falsely implicated because of his father's ill feeling withthe then Lt. Governor. There is no substance at all in this accusation; even the lesser-key adopted by his counsel before us, namely,that it was responsible for at least excessive zeal on the part of theinvestigating officers to implicate him, he being a friend of the appellants, is also one without any support whatever. The prosecutioncase seems remarkably free from "padding"; it has, however, beenthe turn of the defense in this case, with V. Jaggi at the core-toindulge in large-scale falsity and even forgery necessitating our havingto carefully keep out of our minds several ugly efforts except thosewhich were an essential part of the defense of the concerned accused;Mr. Kalra fairly adopted our suggestion and modulated his submissionsto us accordingly.
(299) Every one of the appellants unjustifiably refused to take part inthe identity parade. The so-called exposure of them at the policepost Dev Nagar on 25/12/1973 has had no impact on theprosecution case against any of them.
(300) Convictions All the appellants were properly found guilty on the various countsas found by the learned trial Judge except that the conviction and sentence of Shahwar under the Arms Act has to be and is hereby set aside.The criminal conspiracy, as explained at lenght by us, "germinated",as the learned trial Judge describes it, in August 1973; it came to be"hatched" by all the appellants and Public Witness 1/09/1973when V. Jaggi confirmed what had been stated by Sunil and all thefive of them decided to intercept the van of the Union Bank of Indiabelieved to cany about Rs. 50160 lacs daily. The final plan wan madeat Rambles, Connaught Place, New Delhi on 27/09/1973.A few minor modifications made later or even some unintended deviations from the original plan did not have any impact on the core purpose of the culprits. Whatever was the original intention the one articulated was on the eve of the occurrence; it was not merely to lootbut also to shoot the gunman, which meant, in the context to kill him.This was only natural because there was possible danger from thegunman; he had to be eliminated.
(301) It is in evidence (vide Public Witness 6) that a gesture was made by Shahwarto Sunil and he shot at the driver later. The evidence of Public Witness 1, supported in so many important particulars and concerning the participation of each of the appellants clearly makes out the offence of conspiracy beyond any reasonable doubt. The conspiracy was not only tointercept the bank van, to kill the gunman, at least and loot the moneybut also to distribute it among themselves by investing the money;until such investment was made of the looted money the conspiracywould not terminate. The further offences committed were dacoitywith the two murders of the gunman and the driver. Sunil was primarily liable for each of these murders.
(302) The learned Judge has rightly held Sunil guilty under S. 302 Indian Penal Code ;S. 34 Indian Penal Code . could also be invoked against each of the other appellantsin respect of the two murders despite the verbal insufficiency in the trialcourt in the matter of recording the conviction concerning Shahwarvis-a-vis the driver. One of them had been previously intended by allof them to be killed ; the other developed at the time of and duringthe course of the occurrence. The other three appellants (other thanSunil) were thus rightly held constructively liable, by invoking S. 34 I.P.C., in respect of the two murders. There is hardly any force in thecontention of Mr. Garg that the original intention was only to shootbut not to kill and that the other appellants except Sunil could not beguilty of any thing higher than an offence punishable under S. 396 Indian Penal Code .,not under S. 302 Indian Penal Code . The convictions of Sunil under S. 302 Indian Penal Code .for the murders of the gunman and the driver and the rest of theappellants constructively under the said section in repect of both thesemurders by invoking S. 34 of the Indian Penal Code . are unexceptionable ; equallyunexceptionable are the convictions of each of the appellants under. 396. and S. 395 read with Ss. 397 and 398 Indian Penal Code . and under S. 27 of the Arms Act. All of them were also rightly convicted under S. 120-B I.P.C., the punishment for which would be the same as for the substantive offences, for which each of them have been convicted. Theabove said convictions imposed by the trial court are all confirmed(except in respect of Shahwar under the Arms Act.) (303) Sentencesregarding the extreme penalty imposed on Sunil we have giventhe matter our most anxious consideration. Mr. Rajinder Singh madethe most powerful plea any counsel can to reduce the penalty incaseof Sunil. We have already referred to the medical evidence pertainingto the gunman and explained how no difficulty has really been causedin this respect by the evidence of the doctor who conducted the autopsy.In addition, Sunil shot and killed the driver also. Mr. Rajinder Singhfurther referred to his being a young and educated man., the manner inwhich he conducted himself even before us during the hearing of theappeal, his mother having to heroically fight life's battle to look afterher only son and daughter after her husband-a former army official-took to a religious life reducing his family to a shambles. It is tureas he pointed that young men, coming from good families also, maybe accidentally led into an erroneous path and that effort should beto rehabilitate the offender by "matching", as it is often stated, "thecriminal to the crime". We have listened sympathetically to these submissions though they do not appear to be based on the record of thiscase but they do not appear sufficient to either lesson the enormity ofthe crime, or mitigate the sentence.
(304) The learned trial Judge has referred to Santa Singh v. State ofPunjab (A.I.R. 1976 S.C. 2286) as affording some guidelines on thequestion of sentence. In singling out Sunil, among the appellants, forthe imposition of the extreme penalty, the learned trial Judge has beenpressed by Sunil not only having been the originator of the idea of committing these ghastly crimes, but also having persuaded the others tobecome involved in them. In addition, he was the chief actor; he notonly agreed to shoot the gunman himself, when Public Witness 1 originally andShahwar later refused to shoot the gunman, but he actually shot athim. He also shot at the driver when Shahwar was apparently bungling in the matter of snatching the key of the van from him. If moremurders were not committed in the bargain it was only fortuitious. Persons, especially young ones, seized by ambition to become richer tooquickly, can often act like mad: the fact that such persons are alreadyfairly well off economically only adds to the city of it. Sunil had already made himself a beneficiary of the booty by appropriating forhimself a share of it even before actual division of the spoil tookplace. Every conspiratorial group has its leader; it seems plain thatSunil was that leader in this case. By every know canonof modulating the punishment to suit both the crime and the offenderwe feel compelled to confirm the capital sentences imposed on Sunilin respect of each of the two murders. This is not to say that we donot sympathise with the plight of his mother, but this seems utterlyirrelevant to the issue of sentence concerning Sunil.
(305) Regarding the other appellants Shahwar probably comes closestto Sunil in this respect. That he incited Sunil to shoot the driver, is afactor which does weigh against him, but the mitigating factor probably is that this happened during the thick of the moment. This has alsoto be viewed in the background of his refusing to shoot the gunman.Only next to Shahwar comes V. Jaggi. He was in a sense as much theoriginator of this idea as Sunil because, on a total view of the case, itseems that but for V. Jaggi Sunil may not have thought of looting thebank van. But, the mitigating factor in his case, however, seems to be-not, as the learned trial Judge said be did not have the share of thebooty for before this could be done, even by an investment as ex.P.W. 1/R suggests, the culprits had been nabbed by the police but thathe had not taken any active part in killing any ; no such part was.according to the evidence of Public Witness I, ever assigned to him. RegardingRavi, the learned trial Judge pointed out that he did not snatch the gunfrom the gunman as intended, but this could be consistent with cowardice-even like Shahwar developing cold feet on the eve of the occurrence and declining to shoot the gunman. The fact of Ravi having nearlyRupees four lacs with him does not seem to aggravate his guilt;he was probably a mere care-taker of the money till it was divided.Unlike. Sunil who went ahead to appropriate at least some appreciablepart of it himself, he did nothing himself with it.
(306) In essence the learned trial Judge has exercised the discretion,which vests with him in law as a trial Judge more than with 'the appellate court. Dua, J., speaking for the Supreme Court, observed as follows in Ram Narain v. The State of U.P. : "MERELYbecause the appellate Court feels that left to itself IT would have preferred to impose the sentence of death isby itself and without more not a sufficient ground to justifyenhancement. It is only when the sentence appears onthe facts and circumstances of the case to be so manifestlyinadequate as to have resulted in failure of justice thatenhancement of the sentence may be justified by the appellate Court". (307) Though the State has filed an appeal (Cr. App. 164/77) againstthe award of the lesser penalty against the appellants other than Sunil,Mr. Kalra fairly (it seems to us, rightly too) left the quetion of sentenceto us. Even in the view if we had tried the case ourselves we mighthave each of us, imposed the extreme penalty in the case of the otherappellants also, in the circumstances of this case, we feel that no cogentor empeling reason exists for us to interfere with the exercise by thelearned trial Judge of the discretion vested in him when he awardedthe lesser sentence alone on the appellants other than Sunil. (308) We have already stated that we are setting aside the convictionsand sentences under the Arms Act on Shahwar ; we hereby do so. Cr.Appeal 187/77 is allowed. The rest of the convictions and sentenceson each of the other appellants are confirmed. (309) The death reference is accepted and the imposition of death sentence in respect of both the murders on Sunil is confirmed. The appealprefered by him (Cr. App. 43/77 and 44/77) are dismissed. THEappeals preferred by the other appellants (Cr. Appeals 68/77,123/77 and 186/77) are dismissed. THEappeal preferred by the State (Cr. Appeal 164/77) is also dismissed. RETURNof currecy notes : (310) The learned trial Judge has directed that out of the currency notesrecovered by the police from various sources and treated as case property the following sums making a total of Rs. 5,03,060.00 should bereturned to the Union Bank of India made up of the following sums : (1)Rs. 3,94,710.00 (out of which Rs. 180.00 is found .to beshort as explained in the body of the Judgment) recoveredfrom Ravi; (2)Rs. 1.000.00 (marked as Ex. P. 19) recovered from Sunil'sperson; (3)Rs. 1,000.00 (marked as Ex. P. 20) recovered fromShahwar; (4)Rs. 65,000.00 recovered from the locker of Sunil in theCentral Bank of India, Bhopal; (5)Rs. 40,000.00 recovered from the possession of Sri KrishanDawar and said to be in the brief case (Ex. P. 7) ; (6)Rs. 340.00 (Exs. P. 90 to P. 123) recovered from the Central Bank of India, Bhopal containing the seals of theU.B.I.; (7)Rs. 1,000.00 said to be recovered from the State Bank ofIndia, Bhopal; and (8)Rs. 10.00(marked as Ex. P. 1) recovered from Public Witness 1 asa result of his personal search. (311) So tar as the above directions given by the learned trial Judge areconcerned they are the unexceptionable. Mr.K. K. Uuthra, learnedcounsel for the Ubi, further submit that the following sums, in, addition,should have been directed to have been returned to the Union Bankof India: (1)Rs. 10,000.00 being the amount (marked as Ex. P. 5) seizedfrom Sri Krishan Dawar ; (2)Rs. 10,000.00 being the amount of a Draft obtained by Sunilon 11/10/1973 in the name of M/s. Nishan SpringsPvt. Ltd. and cancelled on Sunil's application made thenext day; (3)Rs. 3,003.25 being the amount deposited by Sunil from21-11-1973 onwards in the Savings Bank AccountNo. 3518; (4)Rs. 9789.00 said to be the money of Sunil in the Punjab& Sindh Bank as per copy of the Account (Ex. Public Witness 63/E),and (5)Rs. 20.000.00 from out of the sum of Rs. 37.557.00 recovered from various places in the house which was said to bein the possession of Sunil's mother as early as on 12/12/1973 by Inder Raj Chopra (P.W. 101).
(312) The sum of Rs. 9,789 (No. 4) having been deposited by Sunil asa customer of the said Bank, Mr. Luthra fairly conceded, on the basisof the decision of the Supreme Court in State Bank of India v. RajindarKumar that he could not object to the directionmade by the learned trial Judge directing that the same be returned tothe Punjab & Sindh Bank Ltd. He also realised that if he wanted anycontradictory direction to be made now a notice of the same wouldhave to go to the said Bank before the said order is revised or altered.The Bank has not filed any appeal or taken any steps in this regard.Mr. Minocha, appearing for Sunil, contends that unless the portionsof the statements made by the accused over and above those portionswhich are clearly admissible under S. 27 of the Evidence Act, are provedby letting in evidence aliunde they can not be taken into account for thepurpose of order of return under S. 517 Criminal Procedure Code ., 1973. To appreciatethis contention the relevant portion of S. 452 of the Code correspondingto section 517 of the old may now be read :
"452.(1) When an inquiry or trial in any criminal court isconcluded, the Court may make such order as it thinks fitfor the disposal, by destruction, confiscation or deliveryto any person claiming to be entitled to possession thereofor otherwise, of any property or document produced beforeit or in its custody, or regarding which any offence appearsto have been committed, or which has been used for thecommission of any offence.
(2)An order may be made under sub-section (1) for thedelivery of any property to any person claiming to be entitled to the possession thereof, without any condition that heexecutes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to theCourt if the order made under sub-section (1) is modifiedor set aside on appeal or revision.
(3)xx xx xx (4)xx xx xx (5)In this section, the term 'property' includes, in the case ofproperty regarding which an offence appears to have beencommitted, not only such property as has been originallyin the possession or under the control of any party, but alsoany property into or for which the same may have beenconverted or exchanged, and anything acquired by suchconversion or exchange, whether immediately or otherwise.
(313) The learned trial Judge seems to have assumed, we are afraid arroneously, that unless the identity of the UBI's notes are traced in specifide that is, the condition in which they were when the property was stolen, there could not be an order of return under S. 452 Criminal Procedure Code . infavor of the person or institution whose money was the subject matterof decoity and looting. This assumption is contrary to S. 452(5) ; wheresome portion of the currency notes looted had been exchanged in othercurrency notes that would be distinctly covered by the said sub-section.
(314) It seems well settled that the statements made by the accused, thoughnot admissible at the trial under S. 27 of the Evidence Act can be takeninto consideration. Some of the decisions bearing on this point are :
(315) (1) Dhanraj Baldeokishan v. The State is authority for the proposition that when the accused himself hadadmitted that the money represented the sale proceeds of the stolen bagsthe whole of that statement, including those parts which might not havebeen admissible at the trial of the accused whether under S. 25 of theEvidence Act or under S. 162 Criminal Procedure Code . are quite material and can betaken into consideration for the purpose of S. 517 Criminal Procedure Code . (old).Reliance was placed upon Queen Empress v. Tribhovan Manekchand(I. L. R. 9 Bombay 131),.
(316) (2) A Division Bench of the Himachal Pradesh High Court took thesame view in Smt. Bal Kaur v. State of Himachal Pradesh (1976 Cr.L. J. 1928) following the decision in Dhanraj Baldeokishan.
(317) (3) The Gujarat High Court, speaking through P. N. Bhagwati, J. (as he then was) in Gokaldas Kalyanji v. Mohanlal Manjibhai (1963(1) Cr. L. J. 531), a decision relied upon by Mr.S. P. Minocha, appearing for Sunil, did expressly hold following the decision in I. L.R. 9Bombay 131 that the statement of an accused, though not admissiblefor the purpose of the trial, could still be used for the purpose of inquiry or making an order under S. 517 Criminal Procedure Code . ; Mr. Minocha onlyrelied upon the observation of Bhagwati, J. that the statement must be"proved" in accordance with law before the same could be used.
(318) Mr. Minocha also relied upon the observations of Blacker, J. inPhlu v. Emperor (A. I. R- 1943 p. 312) to the effect that it wouldhave been better for the Magistrate if he had not put the evidence onthe record of the substantive trial but had recorded it separately afterthe trial was over. This was at best, he pointed out, an irregularity curableunder S. 537 Criminal Procedure Code . In the present case also no evidence has beenrecorded separtely on this question ; as far as we know it is not evenusual to do so, especially in trial into a grave offence like murder.While making directions under S. 517 Criminal Procedure Code . (old) courts have takeninto consideration the entire 'statements made under S. 27 of the Evidence Act despite only such portions as led distinctly to recovery of thefact deposed to are alone taken into consideraion.
(319) It may be that an order under S. 452 Criminal Procedure Code . (new) is a quasi-civilproceeding. But it would not seem to be proper, or even desirable, tointroduce the strict notion of the said statement having to be strictlyproved, in he sence that there should be evidence aliunde of the factsmentioned in the said disclosure statement. The order that is passedunder S. 452 Criminal Procedure Code . (new) is only summary in, nature, subject to The result of a suit. The broad judgment that has .to be arrived at, in thissituation, is whether there is evidence to show that the accused inquestion made a statement attributed to him voluntarily and whetherhe had signed (or thumb-marked) the same; once this conclusionis reached it does not appear that courts should be further detained by the need for more or even much stricter proof concerning the facts that appear in the disclosure statement but werenot spoken to by the witnesses during the trial because theseportions did not within the ambit of S. 27 of the Evidence Act,and hence inadmissible. In other words, once it is proved to thesatisfaction, of the court that the accused did make a voluntary disclosure statement which was recorded by the police and to which heappended his signature or thumb impression on order under section 542, Criminal Procedure Code . could be properly made on the basis of his avermentsin the said disclosure statement. We are happy to note that the viewwe take receives substantial support not only from the above decision,of the High Courts of Rajasthan, Bombay and Himachal Pradesh butalso of Punjab (vide Mahanta Singh Natha Singh v. Het Ram ) and Kerala (vide State of Kerala v. Thiraviyam Panicker, 1962(1) Cr. L.J. 654). We do not feel detamed by some of thecases cited by Mr. Minocha arising out of the civil claims. He has notbrought to our attention any other ruling except that of Gujarat HighCourt which contains the observation that the statement has to be provedin accordance with law before the same could be used. We are of theview that the proof for the said purpose in such a proceeding is adequatewhen the court is able to find that the accused concerned had made adisclosure statement voluntarily which he also signed that the saiddisclosure memo contains admissions bearing upon the order passedunder S. 452 Criminal Procedure Code ., though the said portions could not be regardedas admissible against the accused for a determination of his guilt. Thesewould constitute admissions by the accused, enabling the court to act onthe said basis while making the return of case property subject, however,to the result of any action that any aggrieved party may bring.
(320) The weight of authority being in favor of such statements beingused we have only to scrutinise the statements of Sunil to find outwhether the further sums claimed by Mr. Luthra on behalf of U.B.I.over and above what was ordered by him, can also be directed to behanded over to the U.B.I. Concerning the sum of Rs. 10,000(marked as Ex. P. 25) which was inside Ex. P. 7 and recovered fromSri Krishan Dawar. on the basis of the disclosure statement made bySunil (vide Ex. Public Witness 82/L), which was proved by Public Witness 142 as wellas Public Witness 82 who had attested it ; the same also contains Sunil's signaturethere is his admission, which was excluded during the trial, that the saidsum of Rs. 10,000.00 left by Sunil with Sri Kishan Dawar had been gotconverted from the 10 rup6e currency notes belonging to the U.B.I.
(321) So far as the sum of Rs. 10,000 in respect of which he had purchased a draft in the name of Messrs Nishan Springs Pvt. Ltd. on 11/12/1973 is concerned there is the admission that Sunil had got cancelled at a subsequent date had also been got by him by conversion of 10rupee currency notes belonging to U.B.I.
(322) Regarding the said sum of Rs. 3,003.25 which had been depositedin the Savings Bank Account No. 3518 also Sunil had admitted in hisdisclosure statement (Ex. Public Witness 42/A), made on 12/12/1973,to S.I. Babu Ram (P.W. 115), that like the sum of Rs. 10,000 whichhe had utilised in purchasing the above said Draft in the name of M/s.Nishan Springs Pvt. Ltd. under Draft. No. 7376 dated 11/12/1973 were given to Canara Bank, Bhopal for the purpose of obtaining the said Draft, the above said sum of Rs. 3,003.25 (like the above said sum of Rs. 10,000.00) was stolen money, Sunil's statement (Ex.P.W. 42/A) had been proved not only by S. 1. Babu Ram but also byP.W. 40. All the said three amounts, making in all a total of Rs.23,003.25 should also be returned to the Ubi, in addition to those ordered to be returned by the trial court.
(323) Regarding the sum of Rs. 37,557, recovered in two or/three placesfrom 27 Sunder Nagar, said to belong to Sunil's mother, Sunil himselfhad no doubt made a statement to the effect as per Ex. Public Witness 82J thathe had kept a sum of Rs. 20,000 to Rs. 25,000 in the shape ofcurrency notes of the U.B.I. in the denomination of Rs 10. each.The memo regardig what was recovered from 27 Sunder Nagar is Ex.P.W. 53/A. The search was made by Inspector Inder Raj Chopra onthe basis of telephonic information received from Bhopal. Items 1 to 36in Ex. Public Witness 35/A are those with which we are not concerned for thispurpose. The said sum of Rs. 35,757.00 has been mentioned as item 37,which was said to be in the form of currency notes.
(324) Mr. K. K. Luthra claims that at least a sum of Rs. 20,000.00 beingon the lower side of the amount admitted by him (Rs. 20,000.00 orRs. 25,000) should be ordered to be returned to the U.B.I. on thebasis of what Sunil had stated in Ex. Public Witness 82/J. On theapproach adopted by us in this case we have to accept Mr. Luthra'sContention, even without an appeal being filed by the Bank against the order of the learned trial Judge returning the' entire sum of Rs. 35,757recovered from 27 Sunder Nagar from Sunil's mother because thepowers under S. 454(2) Criminal Procedure Code ., 1973, may also be exercised by aCourt of Appeal dealing with the case in which the order referredto in sub-sec. (1) was made. The learned trial Judge had overlooked thefact that for the limited purpose (contemplated by S. 451 Criminal Procedure Code .)the above statement of Sunil (Ex. Public Witness 82/J) containing the aboveadmission could be taken into account. Mr. Luthra explains thatno appeal need be filed by the Bank in view of the fact that S. 454(3) has been worded in such clear terms. On the basis of the above statement it is hereby ordered that out of the said sum of Rs. 35,757.00recovered from 27, Sundar Nagar, Rs. 20,000.00 only will be orderedto be returned to the U.B.I.
(325) The net result is that while we confirm the directions given by thelearned trial Judge concerning the return of the currency notes wedirect that, the three additional sums namely of Rs. 10,000.00 (Ex. P. 7)seized from Sri Krishan Dawar, Rs. 10,000.00 (being the amount ofthe Draft obtained by Sunil on 11/10/1973, as stated above,and subsequently cancelled by him on his application made the nextday) Rs. 3003.25 (being the amount deposited by Sunil in the SavingsBank Account No. 3518), Rs. 20,000.00 oat of the said sum ofRs. 35.757.00, making in all a total of Rs. 43,003.25, which will bereturned to the Union Bank of India, Chandni Chowk, Delhi (326) Before taking leave of this case we should like to record not onlythe assistance we have received from the able judgmenet of the trialcourt but also the learned counsel: for the appellants. The argumentsspread nearly early there months covering-an incredible amount ofdetails. The case for each of the appellants, though extraordinarilydifficult for every one of them to any one, was fought determinedly,both factually and legally. If we have found it necessary to burdenthis judgment with so many details it was to meet with all the contentions put forward by them to the extent which we could not onlyrecall but also make out.
(327) We must also record the great assistance we received from Mr. Kaira,the Special Public Prosecutor, who considerably lightened Out laboursby supplying, from time to time as the hearing proceeded, at ourrequest, sufficient information and the needed clarifications to meetwith the points raised. The hearing of this case, in a case of this kind,might have been probably even longer but for the quality of assistance, we received all round; this has indeed helped us to deliver thejudgment without much delay after the bearing-for this we arespecially indebted to Mr. Kaira, who had mastered every detail of thiscase, analysed the evidence with maticulous care and presented themwith his characteristic fairness.
(328) We must also place on record our appreciation of the level and quality of investigation but for certain lapses in the matter of safe guarding Exs. P. 12 and 13 (Ambassador car and Fiat car, respectively) ; this happened at Delhi while the main investigating party was at Bhopal.
(329) We are also happy to record that while during the trial a considerable amount of tension appears to have been built up by the defense thelearned trial Judge kept his cool; before us, however, the atmosphere maintained by counsel for the accused during the long hearingwas so good as to permit an objective, fair and thorough study of therecords of this case.