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 the IPC)
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 the appellants)
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 Telis 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
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 the code), 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 Singhs case [supra]
and disposed of the appeal on merits in the absence of the
appellants or their learned counsel. In Bani Singhs case
[supra], this court observed in paragraph 10 as under: –
10. 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
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)
The 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.
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 the Code). 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: –
385. Procedure for hearing appeals not
dismissed summarily (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:
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 Singhs 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 Singhs 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
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
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 Singhs 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 Singhs 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
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
persons 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 Nemo Moriturus Praesumitur Mentire, 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 any of the circumstances of the
transaction 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,
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 :-
..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..
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: –
Exception 4 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 It is immaterial in such cases which
party offers the provocation or commits the first
assault.
Section 304 of the IPC lays down the punishment for culpable
homicide not amounting to murder and reads as under: –
Whoever 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.
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.
