LexDHARAM PAL AND ORS. versus STATE OF U.P.
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[2008] 1 S.C.R. 65 DHARAM PAL AND ORS. A v. STATE OF U.P. (Crl. A. No. 884 of 2001) JANUARY 4, 2008 B [C.K. THAKKER AND TARUN CHATTERJEE, JJ.] l Penal Code, 1860- s.304 Part II rlw s.34, Exception 4 to -1 s.300 and s.302 rlw s.34 - Culpable homicide not amounting I to murder- Assault on deceased with 'lathis' resulting in head c injuries - Deceased taken to police station by his father - Report registered on dictation of deceased - Subsequently he died - Conviction by Trial Court .under s.302 r/w s.34 - Conviction altered to s.304 Part II rlw s.34 by High Court - Correctness of - Held: Correct - Facts of the case disclose D that there was no pre-meditation and no intention on part of accused to cause death of deceased - FIR mentioned names - .. of accused and important features of the event which was corroborated by testimony of eye-witnesses and medical ~ evidence - Deceased was in position to speak and in fit state ~ of mind when he dictated FIR -Also, FIR was read over to him E ,. after which he put his thumb impression on same - Hence, FIR fully satisfied all ingredients for admissibility as dying declaration - Conviction rightly altered by High Court- Maxim 'Nemo Moriturus Praesumitur Mentire'. ~ Code of Criminal Procedure, 1973 - ss. 385 & 386 - F Criminal appeal -Non-appearance of accused or his counsel - High Court taking assistance of Government counsel and deciding appeal on merits - Propriety of - Held, proper. Evidence - Testimony of relatives - Held: Cannot be G discarded only on the ground that they were related to deceased, in absence of any infirmity in their evidence. A fight ensued at a village fair, whereafter, all the four accused-appellants allegedly assaulted 'R' with lathis who H 65 66 SUPREME COURT REPORTS [2008] 1 S.C.R. A sustained head injuries and fell down. The father of 'R' arrived at the spot shortly thereafter and took him to Police Station on a bullock cart where 'R' himself dictated a report of occurrence. The report was registered under Section 323 IPC as a non cognizable report. 'R', however, B succumbed to his injuries. Trial Court convicted the appellants under Section 302/34 IPC. .. In appeal before High Court, counsel for the ·~ appellants made a statement that despite repeated letters, c 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 Government counsel and held the appellants guilty, not under Section 302/34 IPC, but under Section 304 Part II r/w Section 34 PC with 7 years rigorous D imprisonment. The questions which arose for consideration in the present appeal are 1) whether the High Court erred in -I deciding the criminal appeal before it on merits in absence E of accused-appellants and 2) whether the alleged dying declaration given by deceased 'R' in the shape of FIR could not be made the basis of conviction as deceased was not in a position to speak at the time when he dictated the report of occurrence and also since the original F document signed by deceased was not brought on record. Dismissing the appeal, the Court \.- ' HELD:1.1.The argument advanced 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 G power or jurisdiction under Sections 385 or 386, CrPC to do so, is not acceptable. The decision of this Court in Bani Singh's case clearly shows 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, H including the judgment of the trial court and thereafter, DHARAM PAL AND ORS. v. STATE OF U.P. 67 "t decide the appeal on merits which would be due A compliance with Sections 385 and 386 of the Code in disposing of criminal appeals. This Court, in that decision, 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 B ~ the time of hearing of the appeal. The only exceptio~ as found from the aforesaid decision of this Court, is ttlat if t 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 appoi
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