Full Judgment Text
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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