Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(All) 2374

IN THE HIGH COURT OF ALLAHABAD
Vivek Kumar Birla, Jitendra Kumar Sinha, JJ.
Ferasat - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 475 of 1984
Decided On : 23-04-2025

Advocates:
Advocate Appeared:
For the Appellant : M. Islam
For the Respondent: Dga

The court can decide an appeal on merits despite the absence of the appellant or counsel, and a statement recorded under Section 161 Cr.P.C. can be treated as a dying declaration post-death.

Headnote:(A) Indian Penal Code, 1860 - Section 302 - Criminal Procedure Code, 1973 - Sections 161 and 162 - Absence of appellant - Appeal disposed on merits despite absence of appellant and counsel, following Supreme Court precedent - Court not bound to adjourn; can decide based on record - Conviction upheld for murder of Chutai, appellant sentenced to life imprisonment and fine. (Paras 3, 6, 20, 22)

(B) Dying declaration - Testimony of injured person recorded under Section 161 Cr.P.C. can be treated as dying declaration post-death - Direct evidence reduces significance of motive. (Paras 20, 21)

Facts of the case:
The appellant, Firasat, was convicted for the murder of Chutai, who was fatally stabbed during a domestic dispute. The prosecution presented eyewitness testimony and medical evidence corroborating the incident.

Findings of Court:
The trial court's conviction was affirmed, finding no error in the appreciation of evidence or sentencing.

Issues: The court examined the necessity of appointing amicus curiae in the absence of the appellant and the sufficiency of evidence supporting conviction.

Ratio Decidendi: The court ruled that the absence of the appellant and counsel does not preclude a merits-based decision; dying declarations are admissible as evidence.

Result: Appeal dismissed, conviction and sentence affirmed.

Table of Content
1. absence of appellant does not prevent appeal from being heard. (Para 1 , 2)
2. court can decide appeal on merits despite absence of parties. (Para 3)
3. legal precedents guide the court's approach in absence of appellant. (Para 4)
4. factual background of the case establishes the context for the appeal. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16)
5. court affirms trial court's conviction based on reliable evidence. (Para 17 , 18 , 19 , 20 , 21)
6. appeal dismissed; conviction and sentence affirmed. (Para 22 , 23 , 24 , 25)

JUDGMENT :

Jitendra Kumar Sinha, J.

1. List has been revised. No one appears on behalf of appellant to press the present appeal. The appeal is of the year 1983.

2. As per office report dated 3.3.2022, the sole appellant, Firasat, is not traceable. NBW was issued against the appellant by the order dated 05.02.2024 of this Court. But the same could not be executed as the appellant no longer resides on available address. Sureties are also not traceable.

3. This appeal is being heard and disposed of in view of law propounded by Hon'ble Apex Court in Surya Baksh Singh vs. State of Uttar Pradesh , (2014) 14 SCC 222, the Hon'ble Apex Court has held that it is always not necessary to adjourn the matter in case both appellant or his counsels/lawyers are absent and the Court can decide the appeal on merits after perusal of the record and the judgement of the trial Court. It has further been observed that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. It has also been observed that appointment of Amicus Curiae is also on the discretion of the court. In paragraph 26 of the said judgement, it was held that it is always not essential for the High Court to an appoint Amicus Curiae, paragraphs 24 and 26 of the said judgement whereof are quoted as under:

"24. It seems to us that it is necessary for the Appellate Court which is confronted with the absence of the convict as well as his Counsel, to immediately proceed against the persons who stood surety at the time when the convict was granted bail, as this may lead to his discovery and production in Court. If even this exercise fails to locate and bring forth the convict, the Appellate Court is empowered to dismiss the appeal. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka , (2013) 3 SCC 721. After a comprehensive analysis of previous decisions our learned Brother had distilled the legal position into six propositions:

"19.1. that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;

19.2. that the Court is not bound to adjourn the matter if both the Appellant or his Counsel/lawyer are absent;

19.3. that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;

19.4. that it can dispose of the appeal after perusing the record and judgment of the trial court.

19.5. that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and

19.6. that if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation.

25…..

26. Reverting back to the facts of the present case a perusal of the impugned order makes it abundantly evident that the High Court has considered the case in all its complexities. The argument that the High Court was duty-bound to appoint an amicus curiae is not legally sound. Panduranga correctly considers Mohd. Sukur Ali v. State of Assam , (1996) 4 SCC 729 as per incuriam, inasmuch as the latter mandates the appointment of an amicus curiae and is