2008 Supreme(SC) 13

2008(1) Supreme 242
Supreme Court of india
C.K.Thakker & Tarun Chatterjee,JJ.
Dharam Pal and Ors. — Appellants
Versus
State of U.P. — Respondent
Appeal (crl.) 884 of 2001
Decided on 04.01.2008

Important Point
1.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.
2.Where despite best efforts, original FIR could not be produced as registers relating to non -cognizable offences were destroyed after a lapse of two years, no adverse inference could be drawn against prosecution for non-production of original FIR.

Headnote:Code of Criminal Procedure,1973- Sections 385,386-Prosecution of accused persons four in number for assaulting deceased with lathis on his head resulting in his death-Prosecution case that fight resulted on account of drinking of water from hand pipe-Conviction by Trial Court u\ss 302\34 IPC altered to one u\s304 Part II read with Section 34 of IPC by High Court-Appeal thereagainst-Plea of appellants that since appellants were not served with notice of appeal in High Court, appeal was disposed of by High Court exparte without giving any opportunity of hearing to appellants- In view of provisions under Sections 385 and 386 of Code, and applying principles laid down by court in case of Bani Singh vs State of U.P.argument advanced by appellants that High Court ought not to have decided appeal on merits in the absence of the appellants as High Court had no power or jurisdiction under Sections 385 or 386 of the Code to do so held unacceptable- Even if it was assumed that notice of appeal was not served on appellants, then also since counsel for appellants appeared for them to prosecute it must be held that notice of appeal was duly served-When the accused does not appear, it is bounden duty of High Court to look into records and other materials on record, including judgment of 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- Appellate Court must dispose of appeal after perusal of the record and judgment of trial court even if appellant or his counsel was not present at time of hearing of the appeal-The only exception, is that if 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- High Court, 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 holding that appellants were guilty of the offence, not under Section 302/34 of the IPC but under Section 304 Part II of the IPC- High Court arrived at a well-merited judgment after a careful consideration of materials on record-The judgment of the High Court clearly showed that evidence before trial court had been carefully deliberated upon and weighed and it was only then that conclusions had been arrived at-No merit in contention of appellants that matter should be remitted back to High Court for decision afresh after giving opportunity of hearing to appellants-Appeal dismissed. (Paras 7, 8, 9)

       (1996) 4 SCC 720, Relied upon.

       Evidence Act-Section 32-Dying Declaration-Admissibility of-Plea of appellants that alleged dying declaration which was given the shape of an FIR could not be made basis of conviction when original document signed by deceased was not brought on record-Evidence of PW 7 Dr showed that condition of deceased was good and that he was in a position to speak- Report of occurrence was dictated by deceased himself and same was read over to him after which he had put his thumb impression on same- -Even though original document signed by deceased was not brought on record, but FIR had rightly been admitted as a dying declaration- Report dictated by deceased fully satisfied all ingredients for being made admissible as a dying declaration- -Names of accused and important features of case were clearly mentioned in report- Report contained a narrative by deceased as to cause of his death, which found complete corroboration from testimony of eye-witnesses and medical evidence on record - Nothing on record to show that deceased was not in a position to speak at the time when he dictated the report of occurrence — Dying declaration was fully corroborated by other evidence on record- Despite best efforts, original FIR could not be produced as registers relating to non -cognizable offences were destroyed after a lapse of two years-Hence no adverse inference could be drawn against prosecution for non-production of original FIR (Paras 10, 11)

       Evidence of Relative witness-Admissibility of- 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-Held difficult to discard evidence of witnesses, only on ground that they were related to the deceased, in the absence of any infirmity in the said evidence. (Para 12)

       [(2004) 8 SCC 660], Relied upon.

       Indian Penal Code, 1860 - Sections 302/34-Prosecution of accused persons four in number for assaulting deceased with lathis on his head resulting in his death-Prosecution case that fight resulted on account of drinking of water from hand pipe-Conviction by Trial Court u\ss 302\34 IPC altered to one u\s304 Part II read with Section 34 of IPC by High Court-Appeal thereagainst- Finding of High Court that accused did not have any intention of causing death of deceased nor were injuries caused with intention of causing such bodily injuries as accused knew were likely to cause death- Facts disclosed 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 part of appellants to cause death of deceased- Hence offence committed by appellants, was culpable homicide not amounting to murder - In absence of any intention of causing death of deceased, High Court held justified in holding that accused must be convicted of offence under Section 304 Part II of the IPC and not under Section 302 of IPC. (Paras 13, 14)

       Facts of the case

       1.Accused persons four in number herein in the instant case were prosecuted for assaulting deceased with lathis on his head resulting in his death. Trial Court while convicted accused persons u\ss 302\34 IPC High Court altered it to one u\s304 Part II read with Section 34 of IPC.

        2.Present Appeal thereagainst has been filed by appellants on plea that since appellants were not served with notice of appeal in High Court, appeal was disposed of by High Court exparte without giving any opportunity of hearing to appellants.

       Findings of the Court :

       In view of provisions under Sections 385 and 386 of Code, and applying principles laid down by court in case of Bani Singh argument advanced by appellants that High Court ought not to have decided appeal on merits in the absence of the appellants as High Court had no power or jurisdiction under Sections 385 or 386 of the Code to do so was held unacceptable. Even if it was assumed that notice of appeal was not served on appellants, then also since counsel for appellants appeared for them to prosecute it must be held that notice of appeal was duly served. Appellate Court must dispose of appeal after perusal of the record and judgment of trial court even if appellant or his counsel was not present at time of hearing of the appeal.The only exception, is that if 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. High Court, 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 holding that appellants were guilty of the offence, not under Section 302/34 of the IPC but under Section 304 Part II of the IPC. High Court arrived at a well-merited judgment after a careful consideration of materials on record. The judgment of the High Court clearly showed that evidence before trial court had been carefully deliberated upon and weighed and it was only then that conclusions had been arrived at Appeal was dismissed

       Result : Appeal dismissed.