Judgment : Dr. Pankaj Kumudchandra Phadnis Vs. Union of India Ministry of Law and Justice

Judgment Date  28 Mar 2018                                                                                         Click Here To Read Digest
Dr. Pankaj Kumudchandra Phadnis …. Petitioner
Union of India Ministry of Law and Justice ….Respondents

SPECIAL LEAVE PETITION (CIVIL)8293 OF 2018 [Arising out of D. No. 15103/2017]

Dr. Pankaj Kumudchandra Phadnis Vs. Union of India Ministry of Law and Justice

1. Mahatma Gandhi was assassinated on 30.1.1948; about 70 years ago. 9 accused were
tried for the conspiracy and murder of Gandhiji. After trial the judgment was delivered by
Learned Special Judge, Delhi on 10.02.1949 convicting seven accused and acquitting one.
Accused Nathuram Godse and Narayan Apte were given death sentence, four of the accused
were given life sentence and remaining one was given a sentence of seven years of
Imprisonment. The conviction was challenged in Punjab High Court in Appeal, High Court
vide judgment dated 21.06.1949 upheld the conviction for five of the accused persons and
acquitted two of the accused persons. None of the accused are alive today.

2. The petitioner who describes himself “An Engineer, Management Graduate, Ph.D
and a Researcher with passion” approached the High Court by filing a Writ Petition PIL No.32 of 2016 in the
year 2016. The High Court declined to entertain the petition and go into two questions raised
i.e. whether the four bullets were fired as alleged and whether the Kapur Commission Report
should be reopened after the period of 46 years.

3. The delay with which the petitioner has raised this issue is gross. According to the
petitioner, he moved the court after doing some research about the circumstances in which
Gandhiji’s assassination took place and got convinced about the involvement of an unseen
hand in the assassination. We are, however, not satisfied that new research into a long
concluded matter justifies a re-initiation of criminal investigation or that anything that might
be stated should be allowed to reopen a case such as this. Criminal cases which result in
conviction and even execution of death sentences and the demise of those who have served
life sentences ought not to be reviewed, neither is there a provision in law for review. But it
was argued before us that the assassination of Gandhiji was an event of far reaching
consequences in the world and the nation has the right to know the truth. While undoubtedly
the nation has right to know the truth, such a right cannot be invoked where the truth is
already well known merely because some academic research raises a different perspective in
law. This would amount to reopening issues based on hearsay.

4. We are constrained to make this observation because Nathuram Godse was convicted
on the basis of the evidence of eye-witnesses who were present at the prayer meeting. The
meeting itself was attended by innumerable people. Each one of the
eye-witnesses described how Godse moved forward and shot Gandhiji. All the evidence
reveals that three shots entered the body. It further revealed that:

(i) The weapon of assault was semi-automatic Berreta Pistol with a magazine that could
carry seven cartridges at a time. The pistol was recovered with four live cartridges by

(ii) Two empty cartridge cases were found at the place of occurrence; the third was found in
the shawl when the last ritual bath was given to the body of Gandhiji.

(iii) The death report mentions three bullet wounds:

(a) One injury on the right side of the chest near nipple.
(b) One injury below the chest on the right side.
(c) One injury on the right side of the abdomen.
There were two exit wounds, one bullet did not exit the body. Thus, only two spent
bullet were found at the place of occurrence. No fourth spent bullet or empty cartridge was
found at the place of occurrence.

5. The FIR registered at 5.45 pm mentions firing of three shots. The inquest report
prepared by Lt. Col. Taneja showed that Gandhiji had suffered bullet injuries from three
bullets only. There were six eye witnesses; PW-31 (Amar Nath), PW-32 (Nandlal Mehta),
PW-34 (Ratan Singh), PW-37 (Dharam Singh), PW-76 (Raghunath Naik), PW-82 (Sardar
Gurbachan Singh). Each one of them mentions that three shots were fired by the sole assailant
Nathuram Godse. No one from either side i.e. the prosecution or defence suggested that four
bullets were fired or that there was a second assailant. The report submitted by Learned
Amicus Curiae Shri Amrendra Sharan, Senior Advocate contains a detailed reference to all the
relevant evidence in this regard.

6. Another submission made by the petitioner is that this Court should review the Kapur
Commission findings. G.V. Ketkar, grandson of Lokmanya Balgangadhar Tilak, made a
statement that he had knowledge about the conspiracy to assassinate Mahatma Gandhi prior to
the incident. This raised a political storm and the Kapur Commission was set up inter alia to
inquire into the conspiracy to assassinate Mahatma Gandhi. The commission headed by
former Judge of this Court Shri Jivanlal Kapur submitted its report in 1969. According to the
petitioner, the following finding of Kapur Commission in its report is unfair since it hurts the
sentiments of the followers of Shri Savarkar:-

“All these facts taken together were destructive of any theory
other than the conspiracy to murder by Savarkar and his
group”- Kapur Commission Report, Page 303 of Volume II

He, therefore, prayed for a review of this finding or setting up of a new commission.

7. The Learned Amicus Curiae submitted that this finding was rendered after the demise
of Shri Savarkar and no opportunity was given to Shri Savarkar or any of his representatives.
He submitted that the finding is unfair since Shri Savarkar had been acquitted at the trial.
There is no doubt that this finding does not in any way interfere with the acquittal and is a
general observation probably made since Godse and others were found to have been
associated with Shri Savarkar. It cannot have the effect of overturning of the finding of the
criminal court which acquitted Shri Savarkar. Constitution bench of this Court in Ram Kishan
Dalmia v. Justice S.R.Tendolkar
– 1959 SCR 279 : AIR 1958 SC 538 considered the effect of the findings of a Commission as

“The Commission has no power of adjudication in the sense of
passing an order which can be enforced proprio vigore.”

Further, the Constitution bench declined to act on the findings in the report of
Commission of Inquiry;

“But seeing that the Commission of Inquiry has no judicial
powers and its report will purely be recommendatory and not
effective proprio vigore and the statement made by any person
before the Commission of Inquiry is, under s.6 of the act,
wholly inadmissible in evidence in any future proceedings,
civil or criminal, there can be no point in the Commission of
Inquiry making recommendations for taking action “as and by
way of securing redress or punishment” which, in agreement
with the High Court, we think, refers, in the context, to wrongs
already done or committed, for redress or punishment for such
wrongs, if any, has to be imposed by a court of law properly
constituted exercising its own discretion on the facts and
circumstances of the case and without being in any way
influenced by the view of any person or body, howsoever
august or high powered it may be.”

The submission of the petitioner that Shri Savarkar has been held guilty for the
murder of Gandhiji is misplaced.

8. We are, however, not inclined to enter into the correctness or fairness of the findings
in this report. That would be another exercise in futility and would none the less pan new fires
of controversy. This Court must at all cost be vary of such contentious issues and must not
allow its jurisdiction to be invoked for such purposes.

9. We are, therefore, not prepared to accept the fourth bullet theory propounded by the
petitioner. Learned Amicus Curiae categorically submitted that perusal of original photograph
at the museum leads to no such inference. We consider the petitioner’s attempt to reopen this
controversy as an exercise in futility. Since the person who took the photograph cannot be
examined and any statement about the photograph made by any expert would not be
admissible at this stage.

10. The court is beholden to Shri Amrendra Sharan, Ld. Amicus Curiae who has
painstakingly examined the entire record of the case & even exhibits of the national museum
for the assistance of the court.

11. We see no merit in this SLP and hereby dismiss the same.

MARCH 28, 2018

October 16, 2018

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