N 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 RL Kohli K R Nagraja P Krishna Rao and Arun Madan for the Appellants in Crl
A No 431 of 1981
Harbans Singh and DD Sharma for the Respondent
The Judgment of the Court was delivered by CHANDRACHUD CJ
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 PW 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 PW 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 PW 16 and Sant Kaur PW 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 230 am
Accused No 1 Darshan Singh alias Bhasuri accused No2 Joga Singh and accused No 9 Sadha Singh were put under 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 exhibit PGGG
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 P67 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 PW15 Nirval Singh PW16 and Sant Kaur PW24 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 PW 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 PW 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 exhibit 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 PW 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 FIR 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 FIR 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 FIR the High Court took the view that the omission in the FIR 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 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 PW 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 am 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 PW 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 sentenced to death and the latter because of his young age to life imprisonment
The evidence of the three eye witnesses Mohinder Singh PW 15 Nirval Singh PW 16 and Sant Kaur PW 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 FIR not even in the supplementary FIR 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 FIR 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 PW 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 FIR 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 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
SR Appeal partly allowed


Summary:
Appellants along with three others were tried by the Additional Sessions Judge Ferozepore for offences under Section 302 IPC 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
3456
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
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 FIR 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