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PETITIONER: DARSHAN SINGH @ BHASURI & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT31/03/1983

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) REDDY, O. CHINNAPPA (J)

CITATION:  1983 AIR  554            1983 SCR  (2) 605  1983 SCC  (2) 411        1983 SCALE  (1)299  CITATOR INFO :  D          1989 SC1543  (17)

ACT:      Criminal  Procedure   Code,  1973,   Section  154-First Information Report-Non-mentioning  the name  of  an  accused does not  entitle him  to  an  acquittal-Dying  declaration, conviction resting  on, explained-Appreciation  of evidence- Sections 3 and 32 of the Evidence Act and interference under Article 136 of the Constitution by the Supreme Court.

HEADNOTE:      Appellants along  with three  others were  tried by the Additional Sessions  Judge, Ferozepore  for  offences  under Section 302  I.P.C. read  with sections 120-B and 149 on the charge that,  in pursuance  of a conspiracy, they caused the death of  five persons  and injuries  to three others on the night between  the 29th  and 30th  September,  1978  in  the village of  Kaila. The background of the incident leading to the crime and furnishing its motive was that certain members of the family of those who were murdered in the instant case were tried  for the  murder in June 1977, of Buta Singh, the son of accused no. 1 but acquitted.      In order  to prove the charges against the accused, the prosecution examined  as many  as  53  witnesses  while  the accused examined  16 witnesses in their defence. The case of the  prosecution   rested  mainly  on  three  categories  of evidence :  (1) the  evidence of  the  three  eye-witnesses, Mohinder Singh  (PW 15),  Naval Singh  (PW 16) and Sant Kaur (PW) 247 ; (2) the dying declaration (Exh. PV) made by Sohan Singh ; and (3) the recovery of fire arms and cartidges from the possession of Accused Nos. 3,4,5,6. and 7.      The Additional Sessions Judge convicted nine out of the ten accused  for the  offences  of  conspiracy  and  murder, sentenced accused  nos. 1,  3, 4,  5, 6  and 7  to death and accused nos.  2, 8  and 9  to life imprisonment. Accused no. 10, Harbans  Kaur, wife of accused no. 2 Darshan Singh alias Bhasuri, was acquitted. The High Court of Punjab and Haryana confirmed the death sentence imposed upon accused nos. 1, 3, 5, 6  and 7,  but reduced  the sentence  of accused no. 4 to lift imprisonment. Hence the appeals by five persons who are sentenced to  death  and  two  who  are  sentenced  to  life imprisonment.

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    Accepting the appeals of accused 1 and 2 and acquitting them, and,  while maintaining  the convictions  of the rest, but altering  the sentence  of death imposed on accused nos. 3, 5, 6 and 7 to one of life imprisonment, the court 606 ^      HELD: 1  : 1  No rule of law stipulates that an accused whose name  is not mentioned in the First Information Report is entitled  to an  acquittal. The  fact that  the names  of other accused  are not  mentioned in  the First  Information Report was at least a circumstance which the prosecution had to explain [609 D-E]      In  the  instant  case,  the  High  Court,  instead  of considering the  circumstances in which, and the reasons for which, Mohinder Singh did not mention the names of the other accused in  the First  Information Report,  erroneously took the view  that the  omission in  the F.I.R.  was a matter of little consequence  since it  was made good by the fact that Sohan Singh  had mentioned  the names  of all the accused in his dying declaration, further overlooking the fact that the dying declaration  itself was  open to grave exception. [609 E-F, 610A]      1 :  2 When  it is said that a conviction can rest on a dying declaration,  it  is  implied  that  it  must  inspire confidence so as to make it safe to act upon it. [610 E]      Here, if  the vital organs of Sohan Singh, according to Dr.  Birinder  Pal  (PW  2)  who  conducted  the  postmortem examination on  his body,  were "completely  smashed", it is impossible to believe that he was in a fit state of mind and body to  make any  kind of  coherent or  credible  statement relating to  the circumstances  which resulted in his death. True, he  was quite  near his  creator on the morning of the 30th, dangerously so indeed, so that one may accept that his mind  was   then  free   from  failings  which  afflict  the generality of  human beings, like involving enemies in false charges. But,  Sohan Singh  was too  ill  to  entertain  any thoughts, good  or bad,  and he could not possibly have been in a  position to make any kind of intelligible statement so as to implicate accused 3 to 9. His dying declaration cannot therefore, be relied upon. [610 B-D]      2. Liquor  is no  lie-detector. The  evidence regarding conspiracy, let  in through the mouth of Surat Singh (PW 27) an utter  stranger, to implicate Accused nos. 1 and 2 to the effect that the conspirators discussed their plans to commit the murders,  throwing  all  caution  to  winds  and  in  an intoxicated  condition  cannot  be  believe.  It  cannot  be assumed that  accused nos.  1 and  2 were  so  drunk  as  to overlook the  presence of  a stranger in their midst and yet not so  drunk so as to be unable to discuss the execution of their criminal  design. Once  Surat Singh is disbelieved and the  story   of  conspiracy  is  discounted,  the  resultant conclusion obviously  is the absence of Accused nos. 1 and 2 at the  scene of  occurrence entitling  them to an acquittal [610 F, H, 611 A-B]      3. If  age was  a circumstance  in favour of one of the accused, the  same criterion must be applied to all. More so in a case like this, when a large group of persons took part in the  murders and  untrue evidence  has been mixed up with the  true   evidence,  it  becomes  difficult  to  hold  any particular accused guilty of any particular act. [612 E, F] 607

JUDGMENT:

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    CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 429 to 437 of 1981.      Appeals by  Special leave  from the  Judgment and Order dated the  1st December,  1980 of  the Punjab & Haryana High Court in  Criminal Appeal  Nos. 374-DB to 379-DB of 1980 and Murder Reference No. 5 of 1980      D. Mukherjee  and R.L. Kohli, K. R. Nagraja, P. Krishna Rao and  Arun Madan,  for the Appellants, in Crl. A. No. 431 of 1981.      Harbans Singh and D.D Sharma for the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD, C.J. Ten persons were tried by the learned Additional Sessions  Judge, Ferozepur,  for  offences  under section 302  read with  sections 120B  and 149  of the Penal Code on  the charge that, in pursuance of a conspiracy, they caused the  death of  five persons  and  injuries  to  three others on  the night between the 29th and the 30th September 1978 in  the village  of Kaile. Convicting nine out of these for the offences of conspiracy and murder, the learned Judge sentenced accused  Nos. 1,  3, 4,  5, 6  and 7  to death and accused Nos. 2, 8 and 9 to life imprisonment. Accused No. 10 Harbans Kaur,  wife of  accused No.  2 Darshan  Singh  alias Bhasuri, was acquitted. The High Court of Punjab and Haryana confirmed the death sentence imposed upon accused Nos. 1, 3, 5, 6  and 7,  but reduced  the sentence  of accused No. 4 to life imprisonment.  Thus, in these appeals by special leave, we have  before us  five persons  who are sentenced to death and two who are sentenced to imprisonment for life.      Buta Singh,  the son  of accused No, 1, was murdered in June 1977.  Certain members  of the family of those who were murdered in  the instant  case were  tried for the murder of Buta Singh,  but they  were acquitted in March 1978. That is the background  of the incident leading to the present crime and furnishes its motive.      Mohinder Singh  (P.W.  15)  who  had  a  farm-house  in village  Kaile,  used  to  live  therein  with  his  family, including his  brothers Jarnail  Singh (since  deceased) and Nirval Singh (P.W. 16). On the 608 night between  29th and  30th September 1978, Mohinder Singh and the members of his family were sleeping in the courtyard of the  farmhouse. It  is alleged that accused Nos. 3 to 10, most of  whom were  carrying firearms, entered the courtyard from the  western side  and fired  at the  persons who  were sleeping in  the courtyard Sohan Singh, a member of Mohinder Singh’s family,  woke up  and fired  at the accused in self- defence. After  he was  hit by  a shot fired by the accused, Mohinder Singh  took his  gun  and  fired  at  the  accused, killing a  person called  Darbara Singh  who belonged to the party of  the accused. As a result of the shots fired by the accused, Jarnail  Singh, Amar  Singh  and  Sher  Singh  died instantaneous deaths.  Wassan Singh  died soon thereafter in the hospital,  while Sohan  Singh died  early  next  morning after making a dying declaration. Nirval Singh (P.W. 16) and Sant Kaur (P.W. 24) received gunshot injuries. A bullock and calf  also  perished  and  a  buffalo  was  injured  in  the incident.      Shortly  after   the  occurrence,   Tarlok  Singh,  the Sarpanch of  the village,  and a  brother of his reached the place of occurrence. Wassan Singh, Sohan Singh, Nirval Singh and Sant  Kuar were  removed to the hospital, while Mohinder Singh went  to the  Dharamkot Police  Station and lodged his First Information Report, Exhibit PHH, at 2.30 a.m.      Accused No. 1 Darshan Singh alias Bhasuri, accused No.2 Joga Singh  and accused  No. 9  Sadha Singh  were put  under

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arrest after they surrendered themselves in October-November 1978. Accused  No.  6,  Bakhshish  Singh,  was  arrested  on October 20, 1978. One SBBL boregun (Exh. P-60) and four live cartridges were recovered from his person under the recovery memorandum Ex.  P.GGG. Accused  Nos. 3  and 7, Sarbjit Singh and Manohar  Singh, were  arrested on the night between 22nd and 23rd  October, 1978.  One SBBL  12 bore  unlicensed  gun (Exh. P-76)  and three  live cartridges were seized from the person of  accused No. 3 under the Memo Exh. P. ZZZ. A self- loaded unlicensed  rifle (Exh.  P. 73)  loaded with  2  live cartridges along with 2 spare cartridges were recovered from Accused No.  7 under  the Memo  Exh. P.  XXX. Accused No. 5, Darshan  Singh   was  arrested   on  October  23,  1978.  An unlicensed 303  rifle (Exh. P.67) and 5 live cartridges were recovered from  his person  under  the  Memo  Exh.  P.  TTT. Accused No.  4, Swaran  Singh was  arrested on  October  24, 1978. An unlicensed country-made 315 pistol (Exh. P. 80) and four live  cartridges were  seized from his person under the Memo Exh.  P. CC.  The empties which were recovered from the place  of  occurrence  were  sent  for  examination  to  the Forensic Science Laboratory. 609      In order  to prove the charges against the accused, the prosecution examined  as many  as  53  witnesses  while  the accused examined  16 witnesses in their defence. The case of the prosecution  however rests mainly on three categories of evidence :  (1) the  evidence of  the  three  eye-witnesses, Mohinder Singh  (P.W.15), Nirval  Singh (P.W.16);  and  Sant Kaur (P.W.24),  (2) the  dying declaration (Exh. PV) made by Sohan Singh; and (3) the recovery of firearms and cartridges from the  possession of  accused Nos.  3, 4, 5, 6 and 7. The evidence of  the Ballistic Expert Kumar (P.W. 53) shows that the empty  shells and cartridges recovered from the place of occurrence were  fired from  the various  weapons  recovered from these  accused. On  the  question  of  conspiracy,  the prosecution led  the usual  kind of puerile evidence, as for example, of  someone over-hearing  something while on way to answering a  call of  nature. Here the strain was changed by alleging that  Suran Singh  (P.W. 27)  heard a most damaging conversation between  the accused  while he  was negotiating the purchase  of a  tractor. Evidence  was also  produced to show that  a wallet  was found  at  the  scene  of  offence, containing a  letter (Ex.  P. 53) sent by one of the accused to another of them, discussing the threads of conspiracy.      The First  Information Report  lodged by Mohinder Singh (P.W. 15)  mentions the  names of accused Nos. 2, 3, 8 and 9 only. The  fact that  the names of the other accused are not mentioned in  the F.I.R.  was at  least a circumstance which the prosecution  had to  explain,  though  no  rule  of  law stipulates that an accused whose name is not mentioned in an F.I.R.  is   entitled  to   an  acquittal.  But  instead  of considering the  circumstances in which, and the reasons for which, Mohinder Singh did not mention the names of the other accused in  the F.I.R, the High Court took the view that the omission in  the F.I.R.  was a  matter of little consequence since it  was made  good by  the fact  that Sohan  Singh had mentioned  the  names  of  all  the  accused  in  his  dying declaration. The High Court says :      "Dying declarations  is a  sacred statement  given by a      dying man  and it  is settled law that much value is to      be attached  to a dying declaration, especially when it      is corroborated  by other  independent evidence  ....In      fact,  the  shadow  of  immediate  death  is  the  best      guarantee of the truth of the statement made by a dying      man regarding  the causes  of circumstances  leading to

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    his death which are absolutely fresh in his mind and is      unstinted or  discoloured by  any  other  consideration      except speaking the truth." 610      The High Court, with respect, overlooked that the dying declaration itself  is open to grave exception in this case. It implicates  accused Nos.  3 to  9 but the evidence of Dr. Birinder  Pal   (P.W.  2)   who  conducted   the  postmortem examination on  the body of Sohan Singh shows that his vital organs  like   the  peritoneum,   stomach  and  spleen  were "completely smashed"  and that "there were remote chances of his remaining conscious after receipt of injury No. 3", that is to  say, the  injury on  the left iliac fosa which caused the rupture  of the spleen. The incident took place at about midnight of the 29th and 30th while the dying declaration is alleged to  have been  made by Sohan Singh at 7 a.m., on the 30th. If  the vital  organs of  Sohan Singh were "completely smashed", it  is impossible  to believe that he was in a fit state of  mind and  body to  make any  kind of  coherent  or credible  statement  relating  to  the  circumstances  which resulted in  his death.  True, he was quite near his Creator on the  morning of  the 30th,  dangerously so indeed, and we may accept  that his  mind was then free from failings which afflict the  generality  of  human  beings,  like  involving enemies in  false charges.  But Sohan  Singh was  too ill to entertain any  thoughts, good  or  bad,  and  he  could  not possibly have  been in  a  position  to  make  any  kind  of intelligible statement.  Therefore,  his  dying  declaration cannot be relied upon for any purpose and has to be excluded from consideration.  When it  is said  that a conviction can rest on  a dying  declaration, it  is implied  that it  must inspire confidence so as to make it safe to act upon it.      The evidence  regarding conspiracy  is as  weak as  the evidence about  the dying  declaration of Sohan Singh, Surat Singh  (P.W.  27)  speaks  of  a  meeting  between  the  co- conspirators in  the house  of accused  No. 1, Darshan Singh alias Bhasuri.  We cannot believe that in the presence of an utter stranger  like Surat  Singh,  the  conspirators  would discuss their  plans to  commit these  murders, throwing all caution to  the winds.  The answer of the High Court is that the conspirators  were taking  liquor while  discussing  the conspiracy and,      "When  liquor   is  taken,  then  under  its  influence      sometimes  most  secret  things  are  divulged  in  the      presence  of   a  person   who  is  not  so  intimately      connected. It is often said, when liquor goes in, truth      comes out."      This is  somewhat artless.  Liquor is  no life-detector and we cannot assume that accused Nos. 1 and 2 were so drunk as to overlook the presence of a stranger in their midst yet not so drunk 611 so as  to be  unable  to  discuss  the  execution  of  their criminal design.  Besides, Surat  Singh forgot all about the incident and  was contacted  by the police a few days later. The learned  Sessions Judge  was right in holding that Surat Singh’s evidence  suffers from  certain infirmities, because of which  one could not place implicit reliance upon him. We would go  further and say that his evidence is too unnatural to merit  serious attention.  Apart  from  the  evidence  of motive, Surat  Singh’s evidence  in regard to the conspiracy is the  only evidence  against accused  No.  1  Bhasuri  and accused No.  2 Joga Singh. It is on that evidence that these two accused  have been  convicted under  section 120-B  read with section  302  of  the  Penal  Code,  the  former  being

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sentenced to death and the latter, because of his young age, to life imprisonment.      The evidence of the three eye-witnesses, Mohinder Singh (P.W. 15), Nirval Singh (P.W, 16) and Sant Kaur (P.W. 24) is broadly true  and since  that evidence  has been accepted by both the  courts, we  will not  scan it  any further. It is, however, necessary to state that these eye-witnesses are not likely to  have seen the specific part played by each one of the accused.  The night  was dark, the time midnight and the witnesses, who  were fast  asleep, were  woken up  either by barking of  the dogs or by the sound of gun-shots. There was a small  lantern hanging  a few  feet away.  Mohinder  Singh concealed himself  behind a  pillar and  fired shots  at the accused in self-defence, killing a person on the side of the accused. He  has named  accused 3,  5, 6  and 8 while Nirval Singh and  Sant Kaur  who received  gun-shots injuries  have named accused 3 to 9. The evidence of the last two witnesses in regard  to the presence of accused 3 to 9 and their being armed appears  to us  to be open to no exception. Shri Kohli who appears on behalf of accused No. 5 says that the name of that accused  was not  mentioned in  the F.I.R., not even in the supplementary  F.I.R., and  that he  was not involved in the conspiracy.  That is  so, but  the failure  of  Mohinder Singh to  refer to  everyone of  the accused  in the F.I.R., does not  detract from  the  evidence  of  the  two  injured witnesses in regard to the presence of accused No. 5. Hiding behind a  pillar, Mohinder  Singh was  evidently  not  in  a position to see the whole of the incident.      The evidence of these two eye-witnesses is corroborated by the  circumstances that  fire-arms  and  cartridges  were recovered from  the possession of accused Nos. 3 to 7 at the time of  their arrest. The evidence of the Ballistic Expert, Kumar (P.W. 53) shows that the 612 empty shells  and cartridges  recovered from  the  place  of occurrence were  fired from  the various  weapons  recovered from these accused.      The result  of this  discussion is  that in  so far  as accused Nos.  1 and 2 are concerned, there is no evidence on the basis  of which  they can be convicted, once Surat Singh is disbelieved  and  the  story  of  conspiracy  discounted. Accused 1  and 2 were not present at the scene of occurrence and obviously,  Mohinder Singh  involved accused  No. 2 on a surmise by  naming him  in the  F.I.R. He  corrected himself during his  evidence in  the court  which he had to do since Accused 2’s  presence at the scene of offence was impossible to accept.  In so  far as  the other  accused are concerned, namely,  accused   Nos.  3   to  9,   their   presence   and participation in  the incident  in question is proved beyond doubt. Their  conviction under section 302 read with section 149 of the Penal Code must therefore be upheld.      In so  far as  the death  sentence imposed upon accused Nos. 1,  3, 5,  6 and  7 is  concerned,  accused  No.  1  is entitled to  an acquittal,  as a  result of  which the death sentence imposed  upon him  has to be set aside. The learned Sessions Judge  did not  impose death  sentence upon accused No. 2  because he  was young,  that is, about 20-22 years of age. We  find that  accused Nos. 3, 6 and 7 are much younger than accused  No. 2:  accused 3  and 6 were 19 while accused No. 7 was 18 years of age on the date of offence. If age was a circumstance  in favour  of accused No. 2, it is even more so in  the case  of accused  Nos. 3,  6 and 7. Besides, in a case like  this when  a large  group of persons took part in the murders  and untrue  evidence has been mixed up with the true evidence,  it becomes  difficult to hold any particular

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accused guilty  of  any  particular  act.  Therefore,  while upholding the conviction of accused 3, 6 and 7, we set aside the death  sentence imposed  upon them  and sentence them to imprisonment for  life. Accused  No. 5 was about 35 years of age but  it makes  no sense to sentence him to death for the reason merely  that he  is older  than the  others.  He  was certainly not  the leader of the gang as one could have said about accused No. 1, had he been present. The death sentence imposed upon accused No. 5 must therefore be set aside which we hereby do. We sentence him to life imprisonment.      In the  result, accused  Nos. 1 and 2 are acquitted and the order  of conviction  and sentence recorded against them is set aside. They are entitled to be released forthwith. We uphold the  conviction of  accused Nos. 3 to 9 but set aside the sentence of death 613 imposed upon accused Nos. 3, 5, 6 and 7 and sentence them to imprisonment for  life. The  sentence of  life  imprisonment imposed upon  accused 4  stands. The  conviction of  accused Nos. 8  and 9 under section 302 read with section 149 of the Penal  Code   is  upheld   as  also  the  sentence  of  life imprisonment imposed upon them. S.R.                                  Appeal partly allowed. 614