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After both accused No.1 and accused No.2 were apprehended by Inspector Pathan and P.S.I. Nimbalkar they were searched and weapons like pistol and revolver along with live cartridges were recovered from them. They were also carrying certain papers concerning the red Ind-Suzuki motor cycle and they too were attached. As a seizable crowd had gathered on the road Inspector Pathan thought it wise to cause the seizure memorandum to be recorded at the Pimpri Police Station. The prosecution case is that while the two persons were being taken in a jeep to the Pimpri Police Station they raised slogans of "Khalistan Zindabad" and proudly proclaimed that they were the assailants of General Vaidya. After reaching the Police Station all the articles which were found in the possession of these two persons were attached under a seizure memorandum. Inspector Pathan suspected that the pistol which was found from them may have been the weapon used for killing General Vaidya and hence he sent the weapons as well as the cartridges attached from the scene of occurrence to the Ballistic Expert who reported that the cartridges found from the place where General Vaidya was shot were fired from the pistol which was recovered from the possession of these two persons after their arrest on 7th September, 1986. In the course of investigation it came to light that besides accused Nos.1 and 2 certain other persons described as terrorists, namely, accused No.3 Yadvinder Singh, accused No.4 Avtar Singh, accused No.5 Harjinder Singh and absconding accused Sukhminder Singh @ Sukhi, Daljit Singh @ Bittoo @ Sanjeev Gupta, Jasvinder Kaur, and Baljinder Singh @ Raju were involved in the conspiracy allegedly hatched for assasinating General Vaidya immediately after his retirement and on depletion of the security cover. Accused Nos.1 and 2 and others named hereinabove were charge sheeted on 14th August, 1987 under sections 120B, 302, 307, 465, 468, 471 and 212, IPC sections 3 and 4 of Terrorist and Disruptive Activities Act, 1985, hereinafter called `TADA', and section 10 of the Passport Act.

The accused were inter alia charged under sections 3(2)(i) or (ii) and 3(3) of TADA Act read with sub-rule (4) of rule 23 of the rules framed thereunder. Section 3 provides the punishment for terrorist acts. Section 10 lays down that when trying any offence a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence. It is obvious that where an accused is put up for trial for the commission of any offence under the Act or the Rules made thereunder he can also be tried by the same Designated Court for the other offences with which he may, under the Code, be charged at the same trial provided the offence is connected with such other offence. In the instant case, the accused were tried under the aforesaid provisions of TADA Act and the Rules made thereunder along with the offences under sections 120B, 645, 468, 471, 419, 302 and 307, IPC. They were also charged for the commission of the aforesaid offences with the aid of section 34, IPC. As pointed out earlier under section 12(4) the procedure which the Designated Court must follow is the procedure prescribed in the Code for the trial before a Court of Session. Accordingly, the two accused persons were tried by the Designated Court since they were charged for the commission of offences under the TADA Act. The Designated Court, however, came to the conclusion that the charge framed under section 3 of the TADA Act read with the relevant rules had not been established and, therefore, acquitted the accused persons on that count. It is not necessary for us to examine the correctness of this finding as we also come to the conclusion that capital punishment is warranted. It also acquitted all the accused persons of the other charges framed under the Penal Code save and except accused Nos. 1 and 5, as stated earlier. The accused were also convicted under section 307 and 307/34 respectively for the injury caused to PW 106 Bhanumati Vaidya. Thus the conviction of accused sno.1 and 5 is outside the provisions of TADA Act and, therefore, it was open to the Designated Court to award such sentence as was provided bythe Penal Code. Section 17(3) of the TADA Act makes sections 366 to 371 and section 392 of the Code applicable in relation to a case involving an offence triable by a Designated Court. The Designated Court having come to the conclusion that this was a case falling within the description of `the rarest of a rare' awarded the extreme penalty of death to both accused Nos. 1 and 5 for the murder of General Vaidya. In doing so, the Trial Court placed strong reliance on the decision of this Court in Kehar Singh & Ors. v. State (Delhi Administration), [1988] 3 SCC 609. The learned Trial Judge took the view that since the murder of General Vaidya was also on account of his involvement in the Blue Star Operation his case stood more or less on the same footing and hence fell within `the rarest of a rare' category. We think that this line of reasoning adopted by the learned Trial Judge is unassailable. We may also point out that the accused persons had no remorse or repentance, in fact they felt proud of having killed General Vaidya in execution of their plan and hence we find no extenuating circumstance to make a departure from the ratio of Kehar Singh's case.