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CASE NO.: Appeal (crl.)  884 of 2001

PETITIONER: Dharam Pal and Ors.

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 04/01/2008

BENCH: C.K.Thakker & Tarun Chatterjee

JUDGMENT: J  U  D  G  M  E  N  T

TARUN CHATTERJEE, J.

1.      This appeal arises from the judgment and order dated     4th of November, 1999 of the High Court of Judicature at  Allahabad whereby the High Court had partly allowed the  appeal of the accused/appellants herein thereby setting aside  their conviction and sentence of imprisonment for life under  Section 302/34 of the Indian Penal Code (for short \023the IPC\024)  imposed by the VIIIth Additional Sessions Judge, Bareilly, U.P.  and instead convicting and sentencing them to 7 years rigorous  imprisonment under Section 304 Part II read with Section 34 of  the IPC. The accused/appellants (for short \023the appellants\024)  before us are Mahabir, Najjoo, Dharam Pal and Sheru whose  fluctuating fortunes shall be set at rest by us in this appeal.   

2.      In order to appreciate the controversy involved, we  propose to give a brief narrative of the prosecution case relevant  for our consideration.  

3.      The incident took place on 5th of June, 1978 in Village  Khalanpur where the deceased Rajpal had come to see a fair. At  about 2 p.m., he went to drink water at a hand pipe towards the  north of Ram Das Teli\022s House. An altercation took place  between Mahabir and Rajpal deceased on drinking of water.  There was an exchange of abuses between Dharam Pal and  Rajpal. Thereafter, Rajpal left the place and proceeded towards  the southern side. Meanwhile, all the four accused came there  and assaulted Rajpal with lathis who sustained head injuries and  fell down. The accused thereafter fled from the spot. Raghu,  father of Rajpal arrived there shortly and took him to Faridpur  Police Station on a bullock cart where Rajpal himself dictated a  report of occurrence. The report was registered under Section  323 of the IPC against the four accused as a non cognizable  report at 21.10 hours on 5th of June, 1978. Rajpal was medically  examined at the Primary Health Center, Faridpur at 10.00 p.m.  on the same night. He, however, succumbed to his injuries at  about 1.00 p.m. on 7th of June, 1978.

4.      After Rajpal died, information was sent to the police  station and the case was converted into one under section 304  of the IPC. Thereafter, the case was investigated by Sub- Inspector P.C. Sharma, who submitted the charge sheet against  the appellants on 28th of October, 1978. The learned Magistrate  took cognizance of the offence and committed the case to the  Court of Sessions. The Sessions Judge framed charge under  Section 302/34 of the IPC against all the appellants who  pleaded not guilty and claimed to be tried. Nine witnesses

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including three eye-witnesses were examined from the side of  the prosecution.  Two witnesses were examined by the  appellants in their defence. In their statement under Section 313  of the Code of Criminal Procedure (for short \023the code\024), the  appellants denied the prosecution case and alleged false  implication on account of enmity. The Sessions Judge, as noted  hereinabove, believed the case of the prosecution and convicted  the appellants and sentenced them to imprisonment for life  under Section 302/34 of the IPC. Against this decision of the  Sessions Judge, an appeal was preferred before the Allahabad  High Court by the appellants. It may be kept on record that  when the appeal was taken up for hearing before the High  Court, the learned counsel for the appellants made a statement  that despite repeated letters, the appellants were not responding  and therefore he was not in a position to argue the appeal.  The  High Court, thereafter, scrutinized the entire record with the  assistance of Learned Assistant Government Advocate.  As  noted hereinabove, the appeal was partly allowed and the  appellants were convicted and sentenced to rigorous  imprisonment of 7 years under Section 304 Part II read with  Section 34 of the IPC. It is this judgment of the High Court  which is impugned in this appeal. 5.      We have heard the learned counsel for the parties and  examined the entire materials on record. We shall now deal  with each of the questions raised before us by the learned  counsel for the parties.

6.      The learned counsel for the appellants, at the first  instance, submitted that since the appellants were not served  with a notice of appeal in the High Court, the appeal was  disposed of by the High Court ex-parte without affording any  opportunity of hearing to the appellants.  Our attention was  drawn to the decision of this court in Bani Singh Vs. State of  U.P. [(1996) 4 SCC 720] to drive home the point that the High  Court was duty bound to ensure proper compliance with  Sections 385 and 386 of the Code in disposing of criminal  appeals when the accused did not appear and that the Appellate  Court must dispose of the appeal on merits after perusal and  scrutiny of the record. Relying on the decision of this court in  the case of Bani Singh [supra], the learned counsel for the  appellants sought to argue that the High Court was not justified  in deciding the appeal on merits without giving any opportunity  of hearing to the appellants. He submitted that a further date for  hearing the appeal ought to have been fixed by the High Court  and not having done so, it had acted illegally and with material  irregularity in deciding the appeal on merits. This submission of  the learned counsel for the appellants was, however, contested  by the learned counsel appearing on behalf of the respondent.  The learned counsel for the respondent submitted that the High  Court was fully justified in deciding the appeal on merits even  in the absence of the learned counsel for the appellants as from  the record, it would be clear that the notice of appeal was duly  served on the appellants and inspite of such service of notice  and also in view of the fact that a learned advocate had  appeared for the appellants, it would not be justified to say that  a further date ought to have been fixed by the High Court for  hearing of the appeal. The learned counsel for the respondent  further contended that the High Court had followed the  principles laid down by this court in Bani Singh\022s case [supra]  and disposed of the appeal on merits in the absence of the  appellants or their learned counsel. In Bani Singh\022s case  [supra], this court observed in paragraph 10 as under: -   \02310. In Shyam Deo case , this Court ruled that the  Appellate Court must peruse the record before  disposing of the appeal; the appeal has to be

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disposed of on merits even if it is being disposed of  in the absence of the appellant or his pleader.  Interpreting Section 423 of the Old Code (the  corresponding provisions are Sections 385-386 of  the present Code), this Court in paragraph 19 of  the judgment held as under (SCC p. 861, Para 19) \023The consideration of the appeal on merits at the  stage of final hearing and to arrive at a decision  on merits and to pass final orders will not be  possible unless the reasoning and findings  recorded in the judgment under appeal are tested  in the light of the record of the case. After the  records are before the court and the appeal is set  down for hearing, it is essential that the Appellate  Court should (a) peruse such record, (b) hear the  appellant or his pleader, if he appears, and (c)  hear the public prosecutor, if he appears. After  complying with these requirements, the Appellate  Court has full power to pass any of the orders  mentioned in the section. It is to be noted that if the  appellant or his pleader is not present or if the  public prosecutor is not present, it is not  obligatory on the Appellate Court to postpone the  hearing of the appeal. If the appellant or his  counsel or the public prosecutor, or both, are not  present, the Appellate Court has jurisdiction to  proceed with the disposal of the appeal; but that  disposal must be after the Appellate Court has  considered the appeal on merits. It is clear that the  appeal must be considered and disposed of on  merits irrespective of the fact that whether the  appellant or his counsel or the public prosecutor is  present or not. Even if the appeal is disposed of in  their absence, the decision must be after  consideration on merits. (emphasis added) 11. In our view, the above-stated position is in  consonance with the spirit and language of Section 386  and, being a correct interpretation of the law, must be  followed.\024

7. Before we proceed further, we keep it on record that in the  present case, the appellants were granted bail and in fact, at the  time of hearing of the appeal, they were already enlarged on  bail. Only after the judgment was delivered by the High Court,  the bail was cancelled and they were directed to surrender  before the appropriate authority. At this stage, we may note the  relevant provisions under the Code of Criminal Procedure (for  short \023the Code\024). Chapter XXIX of the Code deals with  appeals under the Code. Sections 385 and 386 of the Code,  which are the most important provisions for dealing with the  case in hand, are reproduced as under: -   

\023385. Procedure for hearing appeals not  dismissed summarily \027 (1) If the Appellate Court  does not dismiss the appeal summarily, it shall  cause notice of the time and place at which such  appeal will be heard to be given  (i) to the appellant or his pleader: (ii) ... (iii) ... (iv) ... (2) The Appellate Court shall then send for the  record of the case, if such record is not already  available in that Court, and hear the parties:

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Provided that if the appeal is only as to the extent  or the legality of the sentence, the Court may  dispose of the appeal without sending for the  record.  (3) ... 386. Powers of the Appellate Court - After  perusing such record and hearing the appellant or  his pleader, if he appears, and the Public  Prosecutor, if he appears, and in case of an appeal  under Section 377 or Section 378, the accused, if  he appears, the Appellate Court may, if it  considers that there is no sufficient ground for  interfering, dismiss the appeal, or may - xxx xxx xxx xxx

Having examined the provisions under Sections 385 and 386 of  the Code, as noted hereinabove, and applying the principles laid  down by this court in the case of Bani Singh [supra], we are  not in agreement with the argument advanced by the learned  counsel for the appellants that the High Court ought not to have  decided the appeal on merits in the absence of the appellants as  the High Court had no power or jurisdiction under Sections 385  or 386 of the Code to do so. So far as the service of notice of  the appeal on the appellants by the High Court is concerned, we  are unable to agree with the learned counsel for the appellants  that the notice of appeal was not served upon them and  therefore, without a proper service of notice of appeal on the  appellants and without giving them any opportunity of hearing  to proceed with the appeal, the High Court erred in proceeding  with the appeal and deciding the same on merits. Even if we  assume that the notice of appeal was not served on the  appellants, then also, it was an admitted position that the  learned counsel for the appellants appeared for them to  prosecute the appeal and therefore, after appearance of the  learned counsel for the appellants, it must be held that the  notice of appeal was duly served. At the risk of repetition, we  may note that the learned counsel for the appellants submitted  before the High Court that despite repeated reminders to the  appellants, the appellants were not responding and therefore,  the learned counsel for the appellants expressed his inability to  argue the case before the High Court.  8. That apart, the decision of this court in Bani Singh\022s case  [supra] would clearly show that when the accused does not  appear, it is the bounden duty of the High Court to look into the  records and the other materials on record, including the  judgment of the trial court and thereafter, decide the appeal on  merits which would be due compliance with Sections 385 and  386 of the Code in disposing of criminal appeals. While dealing  with the procedure for disposing of a criminal appeal, this court  in Bani Singh\022s case [supra] has clearly laid down that the  dismissal of an appeal for default or non-prosecution without  going into the merits of the case is clearly illegal and that the  Appellate Court must dispose of the appeal on merits after  perusal and scrutiny of record and after giving a hearing to the  parties, if present, before disposal of the appeal on merits. This  court, in that decision, further held that the Appellate Court  must dispose of the appeal after perusal of the record and  judgment of the trial court even if the appellant or his counsel  was not present at the time of hearing of the appeal. The only  exception, as we find from the aforesaid decision of this court,  is that if the appellant is in jail and his counsel is not present,  the court should adjourn the case to facilitate the appearance of  the appellant. There is yet another exception to this rule,  namely, that in an appropriate case, the court can appoint a  lawyer at the State expense to assist the court. Therefore, the

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High Court, in our view, was justified in taking the assistance  of the Assistant Government Advocate and after taking such  assistance and considering the entire evidence on record, the  High Court passed the judgment under appeal before us holding  that the appellants were guilty of the offence, not under Section  302/34 of the IPC but under Section 304 Part II of the IPC and  directed them to undergo 7 years rigorous imprisonment. In  doing so, the High Court affirmed the findings of the trial court  but differed on the point of the offence committed by the  appellants and the corresponding punishment to be awarded to  them. After a thorough appreciation of the evidence on record,  the High Court recorded the following findings: - 1.      Both the eye-witnesses PW 2 Dannu and PW  3 Om Prakash had stated that they were present in  the fair and had seen the occurrence. In spite of  lengthy cross-examination of these witnesses, their  testimony that they had seen the occurrence could  not been shattered in any manner.  

2.      PW2 Dannu and PW3 Om Prakash had  stated in their testimony that all the four accused  assaulted Rajpal with dandas near the pakar tree  who fell down after receiving injuries on his head.

3.      The medical evidence corroborated the  testimony of the eye-witnesses that the assault was  made upon Rajpal by danda, which is a blunt  weapon.

4.      The names of PW2 Dannu and PW4  Satyapal were mentioned in the N.C.R. lodged by  Rajpal. There is no reason to doubt the presence of  PW2 Dannu and PW4 Satyapal on the spot, who  saw the occurrence. PW2 Dannu and PW4  Satyapal were truthful and reliable witnesses and  implicit reliance could be placed on their  testimonies.  5.      The FIR of the occurrence was lodged by the  deceased Rajpal himself. The report dictated by  Rajpal was initially taken down as a non- cognizable report under Section 323 of the IPC.  Therefore, there was no occasion for either falsely  implicating any one as accused or exaggerating  the role-played by any accused.

6.      The testimony of PW6 Ram Swaroop  Mishra, Head Constable showed that after the  report had been dictated by Rajpal, the same was  read over to him and thereafter he had put his  thumb impression over the same. This act found  mention in the report itself.

7.      The report was admissible under Section 32  of the Evidence Act as a dying declaration of the  deceased Rajpal. The names of the accused and  the important features of the case had been  mentioned therein. The report contained a truthful  version of the incident as narrated by Rajpal as to  the cause of his death.

8.      The version given in the FIR found complete  corroboration from the testimony of eye-witnesses  and the medical evidence on record.

9.      The evidence did not show that the deceased

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was not in a position to speak at the time when he  dictated the report of the occurrence.  

10.     The testimony of defence witnesses did not  inspire confidence and was not worthy of belief.

11.     It cannot be said that the accused had any  intention of causing the death of Rajpal nor were  the injuries caused with the intention of causing  such bodily injuries as the accused knew were  likely to cause death. 12.     The knowledge that death is likely to be  caused could be inferred as they gave the blow on  the head. The accused had therefore committed  offence under Section 304 part II of the IPC.

9. From the above findings of the High Court, it is abundantly  clear that the High Court had arrived at a well-merited  judgment after a careful consideration of the materials on  record. The position, of course, would have been different if the  High Court had simply dismissed the appeal without going into  the merits. However, nothing of this sort has been done in the  present case. The judgment of the High Court clearly shows  that evidence before the trial court has been carefully  deliberated upon and weighed and it is only then that the  conclusions have been arrived at. Therefore, relying on the  aforesaid principles and in view of the discussions made  hereinabove, we are afraid that the decision of this court in  Bani Singh\022s case [supra] is of no help to the appellants but on  the other hand, the High Court, while dealing with the appeal ex  parte had followed the guidelines laid down in that case. That  being the position, it cannot be said that the High Court had  ignored the basic principles of criminal justice while disposing  of the appeal ex parte. In our view, there has been substantial  compliance with the guidelines made in Bani Singh\022s Case  [supra]. Accordingly, we are unable to agree with the learned  counsel for the appellants that the matter should be remitted  back to the High Court for decision afresh after giving  opportunity of hearing to the appellants.  

10. The learned Counsel for the appellants further argued before  us that the alleged dying declaration which was given the shape  of an FIR could not be made the basis of conviction when the  original document signed by the deceased was not brought on  record. The learned counsel for the appellants tried to prove  before us that the deceased was not in a position to speak and  which becomes apparent from the testimony of his father.  However, it would not be correct to say so. The evidence of PW  7 Dr. R.P. Goel shows that the condition of the deceased was  good and that he was in a position to speak. It would not be  appropriate for us to read between the lines by giving  unnecessary meanings to the testimony of Raghu. It cannot be  left out of sight that Raghu also said that the deceased dictated  the FIR to the police. In any view of the matter, the report of  occurrence was dictated by the deceased himself and the same  was read over to him after which he had put his thumb  impression on the same. This report is admissible under Section  32 of the Evidence Act as a dying declaration. It is true that the  original document signed by the deceased was not brought on  record, but in our view, the FIR has rightly been admitted as a  dying declaration. There appears no reason for the police to  falsely implicate any one of the accused inasmuch as, initially,  the report dictated by the deceased was taken down as a non- cognizable report under section 323 of the IPC. If the police  were to implicate the accused, they would have not taken down

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the report as a non-cognizable report in the very first place  itself.  

11. That apart, the report dictated by the deceased fully satisfied  all the ingredients for being made admissible as a dying  declaration. To ascertain this aspect, we may refer to some of  the general propositions relating to a dying declaration. Section  32(1) of the Indian Evidence Act deals with dying declaration  and lays down that when a statement is made by a person as to  the cause of his death, or as to any of the circumstances of the  transaction which resulted in his death, such a statement is  relevant in every case or proceeding in which the cause of the  person\022s death comes into question. Further, such statements  are relevant whether the person who made them was or was not  at the time when they were made under expectation of death  and whatever may be the nature of the proceedings in which the  cause of his death comes into question. The principle on which  a dying declaration is admissible in evidence is indicated in the  Maxim \023Nemo Moriturus Praesumitur Mentire\024, which means  that a man will not meet his maker with a lie in his mouth. Thus  it is clear that a dying declaration may be relating to :- a)      as to the cause of death of the deceased b)      as to \023any of the circumstances of the  transaction\024 which resulted in the death of the  deceased.  

It is also clear that it is not necessary that the declarant should  be under expectation of death at the time of making the  statement. If we look at the report dictated by the deceased in  the light of the aforesaid propositions, it emerges that the names  of the accused and the important features of the case have been  clearly mentioned in the report. It contains a narrative by the  deceased as to the cause of his death, which finds complete  corroboration from the testimony of eye-witnesses and the  medical evidence on record. There is nothing on record to show  that the deceased was not in a position to speak at the time  when he dictated the report of occurrence. On the other hand,  the materials and the other evidence on record would  conclusively show, as rightly held by the High Court, that the  deceased was in a position to speak when he dictated the report  of occurrence. Therefore, in our view, the High Court was fully  justified in holding that the deceased was in a fit state of mind  at the time of making the statement. In the present case, as  noted hereinabove, the dying declaration was fully corroborated  by the other evidence on record. That apart, in our view, the  submission of the learned counsel for the appellants that the  dying declaration which was given the shape of an FIR could  not be made the basis of conviction when the original document  signed by the deceased was not brought on record is not  acceptable. It is an admitted position that despite best efforts,  the original FIR could not be produced as the registers relating  to non -cognizable offences were destroyed after a lapse of two  years. For this reason, the Sessions Court had duly considered  this aspect of the matter and found that the loss of the original  FIR was duly proved by PW 6 and accordingly, the secondary  evidence adduced by the prosecution was accepted. We do not  find any infirmity in the said finding when, admittedly, the  original register was destroyed after a lapse of two years.  Therefore, no adverse inference could be drawn against the  prosecution for non-production of the original FIR. That being  the position and in view of our discussions, we are not inclined  to accept the argument of the learned counsel for the appellant  that the deceased was not in a position to speak when he  dictated the report or that the alleged dying declaration could  not be admissible in evidence because of the other infirmities,

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as noted hereinabove.  

12. This takes us to the next question viz. whether the other  lacunae pointed out by the learned counsel for the appellants are  fatal to the prosecution case. We agree that the High Court  erred in relying on the evidence of PW4, who admittedly was  declared a hostile witness. Nevertheless, we feel that in the face  of the other evidence of PW2 Dannu, PW3 Om Prakash who  were corroborated in all material respects by PW7 Dr.  R.P.Goyal and by PW9, Dr. U. Kanchan, the evidence of PW4,  even if discarded, is inconsequential. The evidentiary value of a  dying declaration and the principles underlying the importance  of a dying declaration have already been discussed herein  earlier. Simply because PW2 and PW3, in their cross  examination, have been shown to be related to the deceased  does not mean that their testimony has to be rejected. It is well  settled that evidence of a witness is not to be rejected merely  because he happens to be a relative of the deceased. In State of  Himanchal Pradesh Vs. Mast Ram [(2004) 8 SCC 660], this  Court observed as under :-         \023\005..The law on the point is well settled that  the testimony of the relative witnesses cannot be  disbelieved on the ground of relationship.  The  only main requirement is to examine their  testimony with caution.  Their testimony was  thrown out at the threshold on the ground of  animosity and relationship.  This is not a  requirement of law\005.\024.  

In this view of the matter and this being the well-settled law, it  is difficult for us to discard the evidence of the witnesses, as  discussed hereinabove, only on the ground that they were  related to the deceased, in the absence of any infirmity in the  said evidence.

13. In the light of the aforesaid discussions, let us now see  whether the High Court was justified, in the facts and  circumstances of the present case, to convert the offence from  Section 302/34 of the IPC to Section 304 Part II of the IPC.  In  this regard, we may again note the findings recorded by the  High Court, as noted herein earlier, in clauses 11and 12. The  High Court observed that the accused did not have any  intention of causing the death of Rajpal nor were the injuries  caused with the intention of causing such bodily injuries as the  accused knew were likely to cause death. The High Court  further observed that the knowledge that death was likely to be  caused could be inferred as the accused gave the blow on the  head. Let us now see whether the aforesaid act would warrant a  punishment under Section 302 or Section 304 of the IPC. In our  view, the facts disclose that there was no premeditation and the  fight resulted on drinking of water from the hand pipe after an  exchange of abuses. There appeared no intention on the part of  the appellants to cause the death of the deceased Rajpal.  Therefore, the offence committed by the appellants, in our  view, is culpable homicide not amounting to murder because, in  our view, it falls within Exception 4 to Section 300 which reads  as under: - \023Exception 4 \026 Culpable homicide is not murder if  it is committed without premeditation in a sudden  fight in the heat of passion upon a sudden quarrel  and without the offender having taken undue  advantage or acted in a cruel or unusual manner. Explanation \026 It is immaterial in such cases which  party offers the provocation or commits the first

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assault.\024

Section 304 of the IPC lays down the punishment for culpable  homicide not amounting to murder and reads as under: -

\023Whoever commits culpable homicide not  amounting to murder shall be punished with  [imprisonment for life], or imprisonment of either  description for a term which may extend to ten  years, and shall also be liable to fine, if the act by  which the death is caused is done with the  intention of causing death, or of causing bodily  injury as is likely to cause death, or with  imprisonment of either description for a term  which may extend to ten years, or with fine, or with  both, if the act is done with the knowledge that it is  likely to cause death, but without any intention to  cause death, or to cause such bodily injury as is  likely to cause death.\024

We have already gone through the evidence and the other  materials on record.  From the evidence on record, we cannot  find any ground to discard the finding of the High Court that it  cannot be said that the accused had any intention of causing the  death of Rajpal, the deceased, nor were the injuries caused with  the intention of causing such bodily injuries as the accused  knew were likely to cause death.  Therefore, in the absence of  any intention of causing the death of the deceased Rajpal, we  are in agreement with the High Court that the accused must be  convicted of the offence under Section 304 Part II of the IPC  and not under Section 302 of the IPC.     

14. For the reasons aforesaid, we do not find any cogent  reason  to interfere with the judgment of the High Court converting the  offence to Section 304 Part II of the IPC from Section 302 of  the IPC.  Accordingly, the appeal fails and is dismissed with no  order as to costs.