{"id":267556,"date":"2008-01-04T00:00:00","date_gmt":"2008-01-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dharam-pal-and-ors-vs-state-of-u-p-on-4-january-2008"},"modified":"2017-05-19T09:11:59","modified_gmt":"2017-05-19T03:41:59","slug":"dharam-pal-and-ors-vs-state-of-u-p-on-4-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dharam-pal-and-ors-vs-state-of-u-p-on-4-january-2008","title":{"rendered":"Dharam Pal And Ors vs State Of U.P on 4 January, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dharam Pal And Ors vs State Of U.P on 4 January, 2008<\/div>\n
Author: T Chatterjee<\/div>\n
Bench: C.K.Thakker, Tarun Chatterjee<\/div>\n
           CASE NO.:\nAppeal (crl.)  884 of 2001\n\nPETITIONER:\nDharam Pal and Ors.\n\nRESPONDENT:\nState of U.P.\n\nDATE OF JUDGMENT: 04\/01\/2008\n\nBENCH:\nC.K.Thakker & Tarun Chatterjee\n\nJUDGMENT:\n<\/pre>\n
J  U  D  G  M  E  N  T<\/p>\n
TARUN CHATTERJEE, J.\n<\/p>\n
1.\tThis appeal arises from the judgment and order dated
\n4th of November, 1999 of the High Court of Judicature at
\nAllahabad whereby the High Court had partly allowed the
\nappeal of the accused\/appellants herein thereby setting aside
\ntheir conviction and sentence of imprisonment for life under
\nSection 302<\/a>\/34<\/a> of the Indian Penal Code (for short the IPC<\/a>)
\nimposed by the VIIIth Additional Sessions Judge, Bareilly, U.P.
\nand instead convicting and sentencing them to 7 years rigorous
\nimprisonment under Section 304 Part II read with Section 34<\/a> of
\nthe IPC. The accused\/appellants (for short the appellants)
\nbefore us are Mahabir, Najjoo, Dharam Pal and Sheru whose
\nfluctuating fortunes shall be set at rest by us in this appeal.\n<\/p>\n
2.\tIn order to appreciate the controversy involved, we
\npropose to give a brief narrative of the prosecution case relevant
\nfor our consideration.\n<\/p>\n
3.\tThe incident took place on 5th of June, 1978 in Village
\nKhalanpur where the deceased Rajpal had come to see a fair. At
\nabout 2 p.m., he went to drink water at a hand pipe towards the
\nnorth of Ram Das Telis House. An altercation took place
\nbetween Mahabir and Rajpal deceased on drinking of water.
\nThere was an exchange of abuses between Dharam Pal and
\nRajpal. Thereafter, Rajpal left the place and proceeded towards
\nthe southern side. Meanwhile, all the four accused came there
\nand assaulted Rajpal with lathis who sustained head injuries and
\nfell down. The accused thereafter fled from the spot. Raghu,
\nfather of Rajpal arrived there shortly and took him to Faridpur
\nPolice Station on a bullock cart where Rajpal himself dictated a
\nreport of occurrence. The report was registered under Section
\n323<\/a> of the IPC against the four accused as a non cognizable
\nreport at 21.10 hours on 5th of June, 1978. Rajpal was medically
\nexamined at the Primary Health Center, Faridpur at 10.00 p.m.
\non the same night. He, however, succumbed to his injuries at
\nabout 1.00 p.m. on 7th of June, 1978.\n<\/p>\n
4.\tAfter Rajpal died, information was sent to the police
\nstation and the case was converted into one under section 304<\/a>
\nof the IPC. Thereafter, the case was investigated by Sub-
\nInspector P.C. Sharma, who submitted the charge sheet against
\nthe appellants on 28th of October, 1978. The learned Magistrate
\ntook cognizance of the offence and committed the case to the
\nCourt of Sessions. The Sessions Judge framed charge under
\nSection 302<\/a>\/34<\/a> of the IPC against all the appellants who
\npleaded not guilty and claimed to be tried. Nine witnesses
\nincluding three eye-witnesses were examined from the side of
\nthe prosecution.  Two witnesses were examined by the
\nappellants in their defence. In their statement under Section 313<\/a>
\nof the Code of Criminal Procedure (for short the code), the
\nappellants denied the prosecution case and alleged false
\nimplication on account of enmity. The Sessions Judge, as noted
\nhereinabove, believed the case of the prosecution and convicted
\nthe appellants and sentenced them to imprisonment for life
\nunder Section 302<\/a>\/34<\/a> of the IPC. Against this decision of the
\nSessions Judge, an appeal was preferred before the Allahabad
\nHigh Court by the appellants. It may be kept on record that
\nwhen the appeal was taken up for hearing before the High
\nCourt, the learned counsel for the appellants made a statement
\nthat despite repeated letters, the appellants were not responding
\nand therefore he was not in a position to argue the appeal.  The
\nHigh Court, thereafter, scrutinized the entire record with the
\nassistance of Learned Assistant Government Advocate.  As
\nnoted hereinabove, the appeal was partly allowed and the
\nappellants were convicted and sentenced to rigorous
\nimprisonment of 7 years under Section 304 Part II read with
\nSection 34<\/a> of the IPC. It is this judgment of the High Court
\nwhich is impugned in this appeal.\n<\/p>\n
5.\tWe have heard the learned counsel for the parties and
\nexamined the entire materials on record. We shall now deal
\nwith each of the questions raised before us by the learned
\ncounsel for the parties.\n<\/p>\n
6.\tThe learned counsel for the appellants, at the first
\ninstance, submitted that since the appellants were not served
\nwith a notice of appeal in the High Court, the appeal was
\ndisposed of by the High Court ex-parte without affording any
\nopportunity of hearing to the appellants.  Our attention was
\ndrawn to the decision of this court in Bani Singh Vs. State of
\nU.P. [(1996) 4 SCC 720] to drive home the point that the High
\nCourt was duty bound to ensure proper compliance with
\nSections 385<\/a> and 386<\/a> of the Code in disposing of criminal
\nappeals when the accused did not appear and that the Appellate
\nCourt must dispose of the appeal on merits after perusal and
\nscrutiny of the record. Relying on the decision of this court in
\nthe case of Bani Singh [supra], the learned counsel for the
\nappellants sought to argue that the High Court was not justified
\nin deciding the appeal on merits without giving any opportunity
\nof hearing to the appellants. He submitted that a further date for
\nhearing the appeal ought to have been fixed by the High Court
\nand not having done so, it had acted illegally and with material
\nirregularity in deciding the appeal on merits. This submission of
\nthe learned counsel for the appellants was, however, contested
\nby the learned counsel appearing on behalf of the respondent.
\nThe learned counsel for the respondent submitted that the High
\nCourt was fully justified in deciding the appeal on merits even
\nin the absence of the learned counsel for the appellants as from
\nthe record, it would be clear that the notice of appeal was duly
\nserved on the appellants and inspite of such service of notice
\nand also in view of the fact that a learned advocate had
\nappeared for the appellants, it would not be justified to say that
\na further date ought to have been fixed by the High Court for
\nhearing of the appeal. The learned counsel for the respondent
\nfurther contended that the High Court had followed the
\nprinciples laid down by this court in Bani Singhs case [supra]
\nand disposed of the appeal on merits in the absence of the
\nappellants or their learned counsel. In Bani Singhs case
\n[supra], this court observed in paragraph 10 as under: –
\n10. In Shyam Deo case , this Court ruled that the
\nAppellate Court must peruse the record before
\ndisposing of the appeal; the appeal has to be
\ndisposed of on merits even if it is being disposed of
\nin the absence of the appellant or his pleader.
\nInterpreting Section 423 of the Old Code (the
\ncorresponding provisions are Sections 385-386<\/a> of
\nthe present Code), this Court in paragraph 19 of
\nthe judgment held as under (SCC p. 861, Para 19)
\nThe consideration of the appeal on merits at the
\nstage of final hearing and to arrive at a decision
\non merits and to pass final orders will not be
\npossible unless the reasoning and findings
\nrecorded in the judgment under appeal are tested
\nin the light of the record of the case. After the
\nrecords are before the court and the appeal is set
\ndown for hearing, it is essential that the Appellate
\nCourt should (a) peruse such record, (b) hear the
\nappellant or his pleader, if he appears, and (c)
\nhear the public prosecutor, if he appears. After
\ncomplying with these requirements, the Appellate
\nCourt has full power to pass any of the orders
\nmentioned in the section. It is to be noted that if the
\nappellant or his pleader is not present or if the
\npublic prosecutor is not present, it is not
\nobligatory on the Appellate Court to postpone the
\nhearing of the appeal. If the appellant or his
\ncounsel or the public prosecutor, or both, are not
\npresent, the Appellate Court has jurisdiction to
\nproceed with the disposal of the appeal; but that
\ndisposal must be after the Appellate Court has
\nconsidered the appeal on merits. It is clear that the
\nappeal must be considered and disposed of on
\nmerits irrespective of the fact that whether the
\nappellant or his counsel or the public prosecutor is
\npresent or not. Even if the appeal is disposed of in
\ntheir absence, the decision must be after
\nconsideration on merits.\n<\/p>\n
(emphasis added)\n<\/p>\n
11. In our view, the above-stated position is in
\nconsonance with the spirit and language of Section 386<\/a>
\nand, being a correct interpretation of the law, must be
\nfollowed.<\/p>\n
7. Before we proceed further, we keep it on record that in the
\npresent case, the appellants were granted bail and in fact, at the
\ntime of hearing of the appeal, they were already enlarged on
\nbail. Only after the judgment was delivered by the High Court,
\nthe bail was cancelled and they were directed to surrender
\nbefore the appropriate authority. At this stage, we may note the
\nrelevant provisions under the Code<\/a> of Criminal Procedure (for
\nshort the Code). Chapter XXIX of the Code deals with
\nappeals under the Code<\/a>. Sections 385<\/a> and 386<\/a> of the Code,
\nwhich are the most important provisions for dealing with the
\ncase in hand, are reproduced as under: –\n<\/p>\n
385. Procedure for hearing appeals not
\ndismissed summarily  (1) If the Appellate Court
\ndoes not dismiss the appeal summarily, it shall
\ncause notice of the time and place at which such
\nappeal will be heard to be given\n<\/p>\n
(i) to the appellant or his pleader:\n<\/p>\n
(ii) …\n<\/p>\n
(iii) …\n<\/p>\n
(iv) …\n<\/p>\n
(2) The Appellate Court shall then send for the
\nrecord of the case, if such record is not already
\navailable in that Court, and hear the parties:
\nProvided that if the appeal is only as to the extent
\nor the legality of the sentence, the Court may
\ndispose of the appeal without sending for the
\nrecord.\n<\/p>\n
(3) …\n<\/p>\n
386. Powers of the Appellate Court – After
\nperusing such record and hearing the appellant or
\nhis pleader, if he appears, and the Public
\nProsecutor, if he appears, and in case of an appeal
\nunder Section 377<\/a> or Section 378<\/a>, the accused, if
\nhe appears, the Appellate Court may, if it
\nconsiders that there is no sufficient ground for
\ninterfering, dismiss the appeal, or may –\n<\/p>\n
xxx xxx xxx xxx<\/p>\n
Having examined the provisions under Sections 385<\/a> and 386<\/a> of
\nthe Code, as noted hereinabove, and applying the principles laid
\ndown by this court in the case of Bani Singh [supra], we are
\nnot in agreement with the argument advanced by the learned
\ncounsel for the appellants that the High Court ought not to have
\ndecided the appeal on merits in the absence of the appellants as
\nthe High Court had no power or jurisdiction under Sections 385<\/a>
\nor 386 of the Code<\/a> to do so. So far as the service of notice of
\nthe appeal on the appellants by the High Court is concerned, we
\nare unable to agree with the learned counsel for the appellants
\nthat the notice of appeal was not served upon them and
\ntherefore, without a proper service of notice of appeal on the
\nappellants and without giving them any opportunity of hearing
\nto proceed with the appeal, the High Court erred in proceeding
\nwith the appeal and deciding the same on merits. Even if we
\nassume that the notice of appeal was not served on the
\nappellants, then also, it was an admitted position that the
\nlearned counsel for the appellants appeared for them to
\nprosecute the appeal and therefore, after appearance of the
\nlearned counsel for the appellants, it must be held that the
\nnotice of appeal was duly served. At the risk of repetition, we
\nmay note that the learned counsel for the appellants submitted
\nbefore the High Court that despite repeated reminders to the
\nappellants, the appellants were not responding and therefore,
\nthe learned counsel for the appellants expressed his inability to
\nargue the case before the High Court.\n<\/p>\n
8. That apart, the decision of this court in Bani Singhs case
\n[supra] would clearly show that when the accused does not
\nappear, it is the bounden duty of the High Court to look into the
\nrecords and the other materials on record, including the
\njudgment of the trial court and thereafter, decide the appeal on
\nmerits which would be due compliance with Sections 385<\/a> and
\n386<\/a> of the Code in disposing of criminal appeals. While dealing
\nwith the procedure for disposing of a criminal appeal, this court
\nin Bani Singhs case [supra] has clearly laid down that the
\ndismissal of an appeal for default or non-prosecution without
\ngoing into the merits of the case is clearly illegal and that the
\nAppellate Court must dispose of the appeal on merits after
\nperusal and scrutiny of record and after giving a hearing to the
\nparties, if present, before disposal of the appeal on merits. This
\ncourt, in that decision, further held that the Appellate Court
\nmust dispose of the appeal after perusal of the record and
\njudgment of the trial court even if the appellant or his counsel
\nwas not present at the time of hearing of the appeal. The only
\nexception, as we find from the aforesaid decision of this court,
\nis that if the appellant is in jail and his counsel is not present,
\nthe court should adjourn the case to facilitate the appearance of
\nthe appellant. There is yet another exception to this rule,
\nnamely, that in an appropriate case, the court can appoint a
\nlawyer at the State expense to assist the court. Therefore, the
\nHigh Court, in our view, was justified in taking the assistance
\nof the Assistant Government Advocate and after taking such
\nassistance and considering the entire evidence on record, the
\nHigh Court passed the judgment under appeal before us holding
\nthat the appellants were guilty of the offence, not under Section
\n302<\/a>\/34<\/a> of the IPC but under Section 304<\/a> Part II of the IPC and
\ndirected them to undergo 7 years rigorous imprisonment. In
\ndoing so, the High Court affirmed the findings of the trial court
\nbut differed on the point of the offence committed by the
\nappellants and the corresponding punishment to be awarded to
\nthem. After a thorough appreciation of the evidence on record,
\nthe High Court recorded the following findings: –\n<\/p>\n
1.\tBoth the eye-witnesses PW 2 Dannu and PW
\n3 Om Prakash had stated that they were present in
\nthe fair and had seen the occurrence. In spite of
\nlengthy cross-examination of these witnesses, their
\ntestimony that they had seen the occurrence could
\nnot been shattered in any manner.\n<\/p>\n
2.\tPW2 Dannu and PW3 Om Prakash had
\nstated in their testimony that all the four accused
\nassaulted Rajpal with dandas near the pakar tree
\nwho fell down after receiving injuries on his head.\n<\/p>\n
3.\tThe medical evidence corroborated the
\ntestimony of the eye-witnesses that the assault was
\nmade upon Rajpal by danda, which is a blunt
\nweapon.\n<\/p>\n
4.\tThe names of PW2 Dannu and PW4
\nSatyapal were mentioned in the N.C.R. lodged by
\nRajpal. There is no reason to doubt the presence of
\nPW2 Dannu and PW4 Satyapal on the spot, who
\nsaw the occurrence. PW2 Dannu and PW4
\nSatyapal were truthful and reliable witnesses and
\nimplicit reliance could be placed on their
\ntestimonies.\n<\/p>\n
5.\tThe FIR of the occurrence was lodged by the
\ndeceased Rajpal himself. The report dictated by
\nRajpal was initially taken down as a non-\n<\/p>\n
cognizable report under Section 323<\/a> of the IPC.
\nTherefore, there was no occasion for either falsely
\nimplicating any one as accused or exaggerating
\nthe role-played by any accused.\n<\/p>\n
6.\tThe testimony of PW6 Ram Swaroop
\nMishra, Head Constable showed that after the
\nreport had been dictated by Rajpal, the same was
\nread over to him and thereafter he had put his
\nthumb impression over the same. This act found
\nmention in the report itself.\n<\/p>\n
7.\tThe report was admissible under Section 32<\/a>
\nof the Evidence Act as a dying declaration of the
\ndeceased Rajpal. The names of the accused and
\nthe important features of the case had been
\nmentioned therein. The report contained a truthful
\nversion of the incident as narrated by Rajpal as to
\nthe cause of his death.\n<\/p>\n
8.\tThe version given in the FIR found complete
\ncorroboration from the testimony of eye-witnesses
\nand the medical evidence on record.\n<\/p>\n
9.\tThe evidence did not show that the deceased
\nwas not in a position to speak at the time when he
\ndictated the report of the occurrence.\n<\/p>\n
10.\tThe testimony of defence witnesses did not
\ninspire confidence and was not worthy of belief.\n<\/p>\n
11.\tIt cannot be said that the accused had any
\nintention of causing the death of Rajpal nor were
\nthe injuries caused with the intention of causing
\nsuch bodily injuries as the accused knew were
\nlikely to cause death.\n<\/p>\n
12.\tThe knowledge that death is likely to be
\ncaused could be inferred as they gave the blow on
\nthe head. The accused had therefore committed
\noffence under Section 304<\/a> part II of the IPC<\/a>.\n<\/p>\n
9. From the above findings of the High Court, it is abundantly
\nclear that the High Court had arrived at a well-merited
\njudgment after a careful consideration of the materials on
\nrecord. The position, of course, would have been different if the
\nHigh Court had simply dismissed the appeal without going into
\nthe merits. However, nothing of this sort has been done in the
\npresent case. The judgment of the High Court clearly shows
\nthat evidence before the trial court has been carefully
\ndeliberated upon and weighed and it is only then that the
\nconclusions have been arrived at. Therefore, relying on the
\naforesaid principles and in view of the discussions made
\nhereinabove, we are afraid that the decision of this court in
\nBani Singhs case [supra] is of no help to the appellants but on
\nthe other hand, the High Court, while dealing with the appeal ex
\nparte had followed the guidelines laid down in that case. That
\nbeing the position, it cannot be said that the High Court had
\nignored the basic principles of criminal justice while disposing
\nof the appeal ex parte. In our view, there has been substantial
\ncompliance with the guidelines made in Bani Singhs Case
\n[supra]. Accordingly, we are unable to agree with the learned
\ncounsel for the appellants that the matter should be remitted
\nback to the High Court for decision afresh after giving
\nopportunity of hearing to the appellants.\n<\/p>\n
10. The learned Counsel for the appellants further argued before
\nus that the alleged dying declaration which was given the shape
\nof an FIR could not be made the basis of conviction when the
\noriginal document signed by the deceased was not brought on
\nrecord. The learned counsel for the appellants tried to prove
\nbefore us that the deceased was not in a position to speak and
\nwhich becomes apparent from the testimony of his father.
\nHowever, it would not be correct to say so. The evidence of PW
\n7 Dr. R.P. Goel shows that the condition of the deceased was
\ngood and that he was in a position to speak. It would not be
\nappropriate for us to read between the lines by giving
\nunnecessary meanings to the testimony of Raghu. It cannot be
\nleft out of sight that Raghu also said that the deceased dictated
\nthe FIR to the police. In any view of the matter, the report of
\noccurrence was dictated by the deceased himself and the same
\nwas read over to him after which he had put his thumb
\nimpression on the same. This report is admissible under Section
\n32<\/a> of the Evidence Act as a dying declaration. It is true that the
\noriginal document signed by the deceased was not brought on
\nrecord, but in our view, the FIR has rightly been admitted as a
\ndying declaration. There appears no reason for the police to
\nfalsely implicate any one of the accused inasmuch as, initially,
\nthe report dictated by the deceased was taken down as a non-
\ncognizable report under section 323<\/a> of the IPC. If the police
\nwere to implicate the accused, they would have not taken down
\nthe report as a non-cognizable report in the very first place
\nitself.\n<\/p>\n
11. That apart, the report dictated by the deceased fully satisfied
\nall the ingredients for being made admissible as a dying
\ndeclaration. To ascertain this aspect, we may refer to some of
\nthe general propositions relating to a dying declaration. Section
\n32(1)<\/a> of the Indian Evidence Act deals with dying declaration
\nand lays down that when a statement is made by a person as to
\nthe cause of his death, or as to any of the circumstances of the
\ntransaction which resulted in his death, such a statement is
\nrelevant in every case or proceeding in which the cause of the
\npersons death comes into question. Further, such statements
\nare relevant whether the person who made them was or was not
\nat the time when they were made under expectation of death
\nand whatever may be the nature of the proceedings in which the
\ncause of his death comes into question. The principle on which
\na dying declaration is admissible in evidence is indicated in the
\nMaxim Nemo Moriturus Praesumitur Mentire, which means
\nthat a man will not meet his maker with a lie in his mouth. Thus
\nit is clear that a dying declaration may be relating to :-\n<\/p>\n
a)\tas to the cause of death of the deceased\n<\/p>\n
b)\tas to any of the circumstances of the
\ntransaction which resulted in the death of the
\ndeceased.\n<\/p>\n
It is also clear that it is not necessary that the declarant should
\nbe under expectation of death at the time of making the
\nstatement. If we look at the report dictated by the deceased in
\nthe light of the aforesaid propositions, it emerges that the names
\nof the accused and the important features of the case have been
\nclearly mentioned in the report. It contains a narrative by the
\ndeceased as to the cause of his death, which finds complete
\ncorroboration from the testimony of eye-witnesses and the
\nmedical evidence on record. There is nothing on record to show
\nthat the deceased was not in a position to speak at the time
\nwhen he dictated the report of occurrence. On the other hand,
\nthe materials and the other evidence on record would
\nconclusively show, as rightly held by the High Court, that the
\ndeceased was in a position to speak when he dictated the report
\nof occurrence. Therefore, in our view, the High Court was fully
\njustified in holding that the deceased was in a fit state of mind
\nat the time of making the statement. In the present case, as
\nnoted hereinabove, the dying declaration was fully corroborated
\nby the other evidence on record. That apart, in our view, the
\nsubmission of the learned counsel for the appellants that the
\ndying declaration which was given the shape of an FIR could
\nnot be made the basis of conviction when the original document
\nsigned by the deceased was not brought on record is not
\nacceptable. It is an admitted position that despite best efforts,
\nthe original FIR could not be produced as the registers relating
\nto non -cognizable offences were destroyed after a lapse of two
\nyears. For this reason, the Sessions Court had duly considered
\nthis aspect of the matter and found that the loss of the original
\nFIR was duly proved by PW 6 and accordingly, the secondary
\nevidence adduced by the prosecution was accepted. We do not
\nfind any infirmity in the said finding when, admittedly, the
\noriginal register was destroyed after a lapse of two years.
\nTherefore, no adverse inference could be drawn against the
\nprosecution for non-production of the original FIR. That being
\nthe position and in view of our discussions, we are not inclined
\nto accept the argument of the learned counsel for the appellant
\nthat the deceased was not in a position to speak when he
\ndictated the report or that the alleged dying declaration could
\nnot be admissible in evidence because of the other infirmities,
\nas noted hereinabove.\n<\/p>\n
12. This takes us to the next question viz. whether the other
\nlacunae pointed out by the learned counsel for the appellants are
\nfatal to the prosecution case. We agree that the High Court
\nerred in relying on the evidence of PW4, who admittedly was
\ndeclared a hostile witness. Nevertheless, we feel that in the face
\nof the other evidence of PW2 Dannu, PW3 Om Prakash who
\nwere corroborated in all material respects by PW7 Dr.
\nR.P.Goyal and by PW9, Dr. U. Kanchan, the evidence of PW4,
\neven if discarded, is inconsequential. The evidentiary value of a
\ndying declaration and the principles underlying the importance
\nof a dying declaration have already been discussed herein
\nearlier. Simply because PW2 and PW3, in their cross
\nexamination, have been shown to be related to the deceased
\ndoes not mean that their testimony has to be rejected. It is well
\nsettled that evidence of a witness is not to be rejected merely
\nbecause he happens to be a relative of the deceased. In State of
\nHimanchal Pradesh Vs. Mast Ram [(2004) 8 SCC 660], this
\nCourt observed as under :-\n<\/p>\n
\t..The law on the point is well settled that
\nthe testimony of the relative witnesses cannot be
\ndisbelieved on the ground of relationship.  The
\nonly main requirement is to examine their
\ntestimony with caution.  Their testimony was
\nthrown out at the threshold on the ground of
\nanimosity and relationship.  This is not a
\nrequirement of law..\n<\/p>\n
In this view of the matter and this being the well-settled law, it
\nis difficult for us to discard the evidence of the witnesses, as
\ndiscussed hereinabove, only on the ground that they were
\nrelated to the deceased, in the absence of any infirmity in the
\nsaid evidence.\n<\/p>\n
13. In the light of the aforesaid discussions, let us now see
\nwhether the High Court was justified, in the facts and
\ncircumstances of the present case, to convert the offence from
\nSection 302<\/a>\/34<\/a> of the IPC to Section 304<\/a> Part II of the IPC.  In
\nthis regard, we may again note the findings recorded by the
\nHigh Court, as noted herein earlier, in clauses 11and 12. The
\nHigh Court observed that the accused did not have any
\nintention of causing the death of Rajpal nor were the injuries
\ncaused with the intention of causing such bodily injuries as the
\naccused knew were likely to cause death. The High Court
\nfurther observed that the knowledge that death was likely to be
\ncaused could be inferred as the accused gave the blow on the
\nhead. Let us now see whether the aforesaid act would warrant a
\npunishment under Section 302<\/a> or Section 304<\/a> of the IPC. In our
\nview, the facts disclose that there was no premeditation and the
\nfight resulted on drinking of water from the hand pipe after an
\nexchange of abuses. There appeared no intention on the part of
\nthe appellants to cause the death of the deceased Rajpal.
\nTherefore, the offence committed by the appellants, in our
\nview, is culpable homicide not amounting to murder because, in
\nour view, it falls within Exception 4 to Section 300<\/a> which reads
\nas under: –\n<\/p>\n
Exception 4  Culpable homicide is not murder if
\nit is committed without premeditation in a sudden
\nfight in the heat of passion upon a sudden quarrel
\nand without the offender having taken undue
\nadvantage or acted in a cruel or unusual manner.
\nExplanation  It is immaterial in such cases which
\nparty offers the provocation or commits the first
\nassault.<\/p>\n
Section 304<\/a> of the IPC lays down the punishment for culpable
\nhomicide not amounting to murder and reads as under: –\n<\/p>\n
Whoever commits culpable homicide not
\namounting to murder shall be punished with
\n[imprisonment for life], or imprisonment of either
\ndescription for a term which may extend to ten
\nyears, and shall also be liable to fine, if the act by
\nwhich the death is caused is done with the
\nintention of causing death, or of causing bodily
\ninjury as is likely to cause death, or with
\nimprisonment of either description for a term
\nwhich may extend to ten years, or with fine, or with
\nboth, if the act is done with the knowledge that it is
\nlikely to cause death, but without any intention to
\ncause death, or to cause such bodily injury as is
\nlikely to cause death.<\/p>\n
We have already gone through the evidence and the other
\nmaterials on record.  From the evidence on record, we cannot
\nfind any ground to discard the finding of the High Court that it
\ncannot be said that the accused had any intention of causing the
\ndeath of Rajpal, the deceased, nor were the injuries caused with
\nthe intention of causing such bodily injuries as the accused
\nknew were likely to cause death.  Therefore, in the absence of
\nany intention of causing the death of the deceased Rajpal, we
\nare in agreement with the High Court that the accused must be
\nconvicted of the offence under Section 304<\/a> Part II of the IPC
\nand not under Section 302<\/a> of the IPC.\n<\/p>\n
14. For the reasons aforesaid, we do not find any cogent  reason
\nto interfere with the judgment of the High Court converting the
\noffence to Section 304<\/a> Part II of the IPC from Section 302<\/a> of
\nthe IPC.  Accordingly, the appeal fails and is dismissed with no
\norder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dharam Pal And Ors vs State Of U.P on 4 January, 2008 Author: T Chatterjee Bench: C.K.Thakker, Tarun Chatterjee 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-267556","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDharam Pal And Ors vs State Of U.P on 4 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dharam-pal-and-ors-vs-state-of-u-p-on-4-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dharam Pal And Ors vs State Of U.P on 4 January, 2008 - 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