REPORTABLE                

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

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

        Dr. Pankaj Kumudchandra Phadnis                                                           …. Petitioner

Vs.

Union of India Ministry of Law and Justice                                          ….Respondents

O  R  D  E  R

S.A.BOBDE & L.NAGESWARA RAO, JJ.

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 Petition1 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.   

1  PIL No.32 of 2016

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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

PW-31.

(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.

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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”2

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. 2  Kapur Commission Report, Page 303 of Volume II

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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.Tendolkar3 considered the effect of the findings of a Commission as

follows:-

“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

3  1959 SCR 279 : AIR 1958 SC 538

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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.

….………………………………..J. [S.A. BOBDE]

….………………………………..J.  [L. NAGESWARA RAO]

NEW DELHI  MARCH 28, 2018

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