DARSHAN SINGH @ BHASURI & ORS. versus STATE OF PUNJAB

DARSHAN SINGH @ BHASURI & ORS.

STATE OF PUNJAB

Marc~ 31, 1983

[Y.V. CHANDRACHUD C.J., AND 0. CHINNAPPA REDDY, J].

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, cunviction resting on, explained-AppreCiatlon Gf evidence-Sectio'ns 3 and 32 of the Evidence Act and interference under Article 136 of the Constitution by the Supreme Court.

Appellants along with three others were tried by the Additional 'SessioQ.S Judge, Ferozepore for offences under Section 302 I.P.C. read with se~tions i2G-B and 149 on the charge that, in pursuance of 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 membC:_rs of the family of those who were murdered in the instant case were tri.ed for' thc:t mqrder in June 1977, of Buta Singh, the so~ of accused no. 1 but acquitteq.

In order to prove the charges against the accused, the PrOs'.ecution examined as many as 53 witnesses while the accused exainined 16 .witnesses in their defence. Ute case of the pr-0secution rested mainly on three _categories of ev~dence: (1) the evid\:nCe of the three eye-witness.es, Mohinder Singh (PW 15), Naval Singh (PW 016) and Sant Kaur \PW) 247 ; (2) the dying declaration (Exh. PV) made by Sohan Singh ; and (3) the recovery of fire arrr\s and cartidges from the possession of Accused Nos. 3, 4, 5,6. and 7 .

The J\dditional Sessions Judge convicted nine out of the ten accused for the offences of conspirary and murder, sentenced accused nos. l, 3, 4, 5, 6 and 7 to death and accused nos. 2, 8 ·and 9 to life imprisoninent. -Accused no. 10, Harbans Kaur, wife of accused no. 2 Darshan Singh alias Bhasnri, was acquitted. The High Court or Punjab and Haryana confirmed the death sentence impooed upon accused nos. I, 3, 5, 6 and 7, but reduced the sentence -0tacQ11Sed no. 4 to lift imprisonment. Hence the appeals by five persons who w,e sentenced to .deat~ and two who are sentenced to life in1prisonment:

Accepting the appeals of accused 1 and 2 and acquiting them, and, while maintaining the convictions of the rest, but altering the sentence oNeath imposed on accused nos. 3, 5, 6 and 1 to one oflife imprisonment, the court

HELD : 1 : 1 No ·rule of law stipulates that an accused whose name is not mentioned in the First Information Repori is entitled to an acquittal. The fact that the names of other accused are not mentioned in the First Infor-mation Report was at least circumstance which the prosecution had to ·~plain [609 D-BJ

In the instant case, the High Court, instead of considering the circum-stances in which, and the reasons for which, Mohinder Singh did not m.ention · tbenamesoftheother accused in the First Information Report, erroneously took the view that the omission in the F.I.R. was 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 decl~ration, further overlooking the fact that the dying declaration it•elf was open to grave exception. [609 B-F, 610A)

1 : 2 When it is said that conviction can rest on dyjng declaration, it is implied that it must inspire confidence so as to make it safe to act upon it. [610 BJ

Here, if the vital. organs of Sohan Singh, according to Dr. Birindcr Pal (PW 2) who conducted the postmortem examination on bis body, were ''completely smashed", it is impossible to belive that he was in fit state of mind and body to n1ake any kind of coherent or credible statement relating to the Circun1stances which ri.:sulted in his death. True, he was quite neat his creator On the morning of the 30th, dallgerously so indeed, so that one may accept that his mind was then free from Tilllngs which affiict 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 position to mitke any kind of intelligibl'! statement so as to implicate accused 3 to 9. Hi• dying declaration cannot therefore, be relied upon. [61011-D]

2. Liquor is no lie-detector. The evidence regarding conspiracy, !Ct in through the mouth of Surat Singh (PW 27) an utter stranger, to implicate ~¢1.lSed nos. 1 and 2 to the effect that the conspirators discussed their plims to cominit the murders, throwing all caution to winds and- in an intoxicated condition cannot _be belived. It cannot- be assumed that accused nos. I and ·2 were so drunk.as to overlook the presence ofa 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 disbelived and the story of conspiracy is disounted, the resultant conclusion obviously is the absence of AccuseU nos. I and 2 at the scene of occurrence entitling them to an acquittal. [610 F, H, 61 l A·B)

3. If age was circumstance in favour of one of the accused, the same criterion must be applied to all. More so in case like this, when large group of persons took part in the murders and untrue eyidence has been mixed up with the true evidence, it becomes difficult to hold any particular accused auilty of any particular act. [612 E, F]

:.CROONAL APPEALLATE JURISDICTION: Criminal Appeal Nos. . 429 to 437 of 1981. .

Appeals by Special leave from the Judgment and Order dated .the !st December, 1980 of the Punjab & Haryana High Court in . Criminal Appeal Nos. 374-DB to 379-DB of 1980 and .Murder Reference No. S of 1980

·D. Mukherjee and R.L. Kohli, K. R. Nagraja, P. Krishna R.ao 1111d·Arun Madan, for theAppellants, in Cr!. A. No. 431. of 1981.

· Harbans Singh and D.D Sharma for the Respondent.

The Judgment of the ·tourt was delivered by

CHANQRACHUD, C.J. Ten persons were.tried by the learned .Additional Sessioniji'Judge, Ferozepur, for offiences under section 302 read with sections 120B and 149 of the Penal Code on the charge that, in pursuance of conspiracy, they caused the death of five persons and injuries to three others on the night between the 29th and the 30th Septembef 1978 in the village of Kaile. Convict• ing nine out of these for the offences of conspiracy and murder, the learned Judge sentenced accused Nos. I, 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. l, 3, S, 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.

.Additional Sessioniji'Judge, Ferozepur, for offiences under section 302

Bula Singh, the son of accused No, 1, was murdered in June 1977. Certain members of of the family of those who were murdered those who were murdered in the instant case were fried for the murder of Buta Singh, but they were acquitted in March 1978. That is the background of the inci· dent leading to the present·crime and furnishes its motive.

1977. Certain members of of the family of those who were murdered those who were murdered

Mphinder Singh (P.W. IS) who, had farm-house in village

Kaile, used to live therein with his family, including his brothers J~niailSin~h (since decease\!) and Nirval Sin~h (P.W. 16). On the

night betw~en 29th and 30th September 1978, Mohinder Singh and the memb~rs of his family were sleeping in the courtyard of the farm-house. 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 pe[SOns who were sleeping in the courtyard. Sohan Sin!l11, ' ~ mel)1ber of Mohinder Singh's family, woke up and fired at 'the · accused in self-defence. After he was hit by shot fired by the accused, Mohinder Singh took his gun and fired at the accused, killing person called Darbaril Singh who belonged to the party ·or the accused. As result of the shots fired by the accused, Jarnail Singh, Amor Singh and Sher Singh died instantaneeus deaths. Wassan Singh died soon thereafter in the hospital, while Sohan Singh died early next morning after making dying declara-tion. Nirval Singh (P.W.16) and Sant Kaur (P.W. 24) received gun-shot injuries. bullo~ and calf also perished and buffalo was injured in the incident. · ·

Sfiortly after the ·occurrence, Tarlok Singh, the Sarpanch of the • village, and 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 1'6!icc Station and lodged his First Information Report, Exhibit PHH, at 2:30a.m.·

. Accused No. I Darshan Singh alias Bhasuri, accused No.2 J0ga Singh and accused No. 9 Sadha Singh were put under arrest after they surrendered themselves in October· November 1978. Accillled No; u, Bakhshish Singh, was arrested on October 20, 1978. One SBBL :boregun (Exh. P-60) and four live cartridges were recovered from •his perslln under the recovery memorandum Ex. P.GGG. Accn~d Nos. 3 and 7, Sarbjit Singh and Manohar Singh, were arrested -on ·the !'light between 22nd and 23rd October, 1978. One SBBL i2 here unlicensed gun (Exh. P-76) and three live cartridges were seized frdm the person of accused No. 3 under the Memo Exh. P. ZZZ. self-. loaded unlicensed rifle (Exh. P. 73) loaded with 2 live cartridges along with 2. spare cartfidges were recovered from Accused No.· 1 under the Memo Exh. P. XXX. Accused No. 5, Darshan Sing]t 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. SO) and ·• four live cartridges were seized from his person under the Memo Exh. P. CC. The empties which were recovered from the place of occur-rence were senr for exa.mination to the Forensic Science Laboratorv.

-. -.,.

·1n order tq prove the.charges against the accused,. the prosecu· tion examined as many as 53 witnesses while the accused· examined 16 witnesses in. their defence; · The .case of. the .· proseution ruiw. ever rests mainly on three .. c1tegorles of .evidence : (I) .the evidence or' the. three eye-witnesses, :; Mohinder Siiigh .·(P.W.15), Nirval Singh (P.W.16); and .Sant '.Kaur (P.W. 24), (2) the dying declaration (Exh .. PY} made, by Sohan · Suigh; and (3) ·the . recovery of firearms and cartridges from the . possession of accused B. Nos. 3,'4, 5, 6 and 7., The evidence of the Ballistic· Expert.Kumar · (P.W;.53) shows that the empty shells and •cartridges recoven:d . from the place of occurrence Wer~ fired from: t.he •various weap<lUS recovered from these accused. On the ·question of conspiracy, .the· prosecution led the.usual kind of puerile· evidence, as for ·exampl~ •. of someone over-hearing something while on . way . to answering call of nature. ·Here the strain was changed by alleging that Suran· Sirigh (P.W. 27) heard ·most· damaging conversation •between the accnsed while he was negotiating the purchase- of tractor. Evidence was also produced to show that .a wallet was·found :at . the scene .of p 'i offence, containing letter (Ex. P. 53)-sent by one of the .accused 1to another . . of them, discussing the tjJreads of.conspiracy. .. -~ .

· The First information Report lodged by. Mohinder. · Siqgh (P.W. 15) mentions the names of accused Nos. 2, 3, 8 and ·9 'oruy. The fact that the names of the other accused ·are not mentioned in the F.LR. was at least 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 reawns for which, 'Mohinder Sin.gh did not mention the·names·oftlie other accused •in the F.I.R, the High Court took the ·view that' the omission . in . the 'F.I.R. was matter of little consequerice·since it was made good :by 'the fact that Sohan Singh had· mentioned 'the names of all the accuse·d in Ii.is dying declaration. The High Court says : . . . . .

... , .

"Dying declarations is sacred statement given by dying . man and it is settled law that much value is to be attached to 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 dying man regarding the causes of . circumstances leading to his death'. which are abso!Utely ·fresh in his mind and is unstinted or discoloured. by any , _ : other. consideration _, ·- ·• . --. -e~Cef't - . .. Sf'eakiD\\ . . ,, the trutjJ," . . .

The High· Court, with respect, overlooked that the dying decla• ration 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 Sil).gh 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", thlit 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 believ~ that he was in 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 il)deed, -and we may accept that bis mind was then free from failings which affiict 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 position to make any kind of intel· ligible statement. Therefore, his dying declaration cannot be relied upon for any purpose and has to be. excluded from consideration. When it is said that conviction can reston dying declaration., it 1$ implied that it must inspire confidence so as to make it safe to ac~ upon it.

The evidence regarding £Onspiracy is as weak as the evidence about the dying declaration of Sohan Singh, Surat Singh (P.W. 27) s~aks of meeting between the co·conspirators in the house·of accused No. 1, Darshan Singh alais 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 conpiracy and,

"When liquor is taken, then under its influence sometimes . most secret things are divulged in the presence of 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. I and 2 were so drunk as to over· look the presence of stranger in their· niidst yet not so drunk.

•o as to be unable . to discuss the execution of their ·criminal design. · Besides, Surat Singh forgot: iiJI about .the incident and .was contacted by the police 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 .r~liance upon him. We would go further a.nil say> that his evidence . js too unnatural to merit serious· at.tentfon; · Apart from the evidence of motive, Surat Singh's evidence in regard to the· conspiracy· is the J.l! ·only evidence against accused No. 1 Bruisuri and aceilsed No.' 2 Joga §irigh: It is on that evidence . that these twb •accused have. been ·convicted under sectiou 120-B read with section '302 ·.of the ·Penal Code, the fori:iier being sentented to death and the latter, because of hisyoung I -age, to life imprisonment, • •:. ;· •· : " . : · " c: '\:. ,, , , ·i."~IThe evidence ·or the' tliree• 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, sta!e · !? :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· :midnigth and the witnesses, who \vere fasf asieep,· were woken_ up 'either by barking of the dogs or. by the sound of gun-shots. niere ;was small lantern hanginga .fe~ .feet. away. .Mohinder Singh ·concealed· himself.behind pillar and fired shots· at the accused. in ,, i self-defence, killing person on . the side· of the accused: . He '.has · · ·,named accused 3, 5, 6 and 8 while Nirval Singh and Sant Kam'· who ':received gun-shots injuries have named a.;.,used 3 to 9 .. The evidenee ·,of the last two witnesses in regard to tlie presence of accused '3. to" '. 9 ·and their befog armed appears to us to be open io.no ·exception. · Shri ;Kohli who appears on behalf of accused No. 5 says that thename''or · ' A!iat accused was not mentioned in the F,I.R., not even in the suppie- . , mentary F.I.R., and ihat he w·as not involved in the conspiracy. That· .·is so, but the failure of Mohinder Singh to refer.·fo 'everyone· of the . :.accused in the F.I.R., do.es not detract from the evidence of tlie ·two , injured witnesses in regard to the presence of aecused No. 5 .. Hiding !j . behind pillar, Mohinder Singh was evidently not· .in position ·to . . •···. ··r see tht< whole of the incident. ·

•· '' .The evidence of these two eye,witnesses is corroborated. by: the # ·circumstance that fire-arms and cartridges were recovered from, the .. -possession of accused Nos·. 3 to.lat the. time of their. arrest .. ·~e · . ·evidence of the Ballistic Expert,. Kumar (P. W. 53) shows that . the

empty shelis and cartridges recov.ered from the place of occurrence were fired from the various weapons recovered fro in th_ese aecused: .. ; - -"

. • rii~ result of 'this discussion is that in so f~r as accus_ed . Nos. 1 and.2 are concerned", there is .no evidence_ on the bassis of which they can be convicted, once Surat Singh is disbelieved a_nd, the story. of conspiracy discounted. Accused 1 and. 2 .. were. not present at the · scene of occurrence and obviously, Mohinder Singh involved .. aecused No. 2 on surmise by na~ing him in the F.J.R .. · He corrected him-self during ,his evidence. in the; court. which: he had to ;do since ·Accused 2',s presence at the scene of offence was impossible tci 'accept. In so far as the other accused are concemed, 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 ofthe Penal Code must therefore be.upheld. , . . -I . • . ._. In so far as the death sentence imposed upon _ accus~d Nos. 1, 3, 5, 6 and 7 is concerned, accused 1" o: l is eniitled • 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 niuch younger . thlin aecused 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 circumstance ·in favour. of accused No. 2; it is even in0re so in the ·case of. accused Nos. .3, 6 and 7; Besides, in 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. -·Therefore, while· upholding <the. conviction of accu~ed 3. 6 and·7, we.set aside the death sentence -Imposed upon them and sentence them to imprismiment for life. Accused No. 5 was about 35 years of age but it 'makes no ·sense· to . 'entence him to death for the reason merely that he is older. "than- ihe ,'others. He was certainly not the leader of the gang as ahe could -.have.said about' accused' No.· !, ha_d he been present. The- death 'seriteiiceimposed upon accused No. 5 . must therefore be set ·aside which we hereby do. We sentence him to life imprisonment . ··' , :

.... ·_:I~ the"' result,· accused' Nos. 1 and 2-: are acquitted ·and the . order of conviction and sentence recorded against them is set aside. They are entltied to be released• forthwith. · We uphold the convic-. tion of· accused Nos. 3 ·to . 9, but: set aside ·the. sentence of death

DARSHAN SINGH Y. PUNJAB (Chandrachud, CJ.)

imposed upon. accus'ed Nos. 3, · s; 6 and .7 and sentence them to imprisonment for life. The sentence of life imprisonnient imposed A. upon acCllsed 4 stands. The conviction of accuied Nos. 8 ·and 9 under section 302 read with section.149 of the Penal Code is· upheld il also the sentence of life imprisonment imposed upon. them.. .

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