DHARAM PAL AND ORS.versusSTATE OF U.P.

                                [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'.
                                                                         F
      ~         Code of Criminal Procedure, 1973 - ss. 385 & 386 -
          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
                                       65                                  H
   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,
  the appellants were not responding and therefore he was
c 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
  of accused-appellants and 2) whether the alleged dying
E 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
  document signed by deceased was not brought on record.
F
       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, c
          namely, that in an appropriate case, the Court can appoint
          a lawyer at the State expense to assist the Court.
          Therefore, the High Court was justified in taking the
          assistance of the Government Advocate. [Paras 7, 8J [75-G,
          H; 76-A, E, G, H; 77-A, BJ
                                                                         D
                1.2. From the 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 High Court, while dealing with
          the appeal ex parte had followed the guidelines laid down E
          in Bani Singh's 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.
          [Para 9J [79-B, C, DJ
    _j'        Bani Singh v. State of U.P (1996) 4 SCC 720 - relied on.   F
               2.1. 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 G
    ~     in every case or proceeding in which the cause of the
          person's 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 H
    68       SUPREME COURT REPORTS                [2008] 1 S. C.R.

                                                                       j
A 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.
B Thus, 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. Also, it is not necessary that the
  declarant should be under expectation of death at the time
c of making the statement. [Para 11] [80-E, F, G, H; 81-A, B]
         2.2. Looking at the report dictated by the deceased,
    it emerges that the names of the accused and the
    important features of the case have been clearly
    mentioned therein. It contains a narrative by the deceased
D   as to the cause of his death, which finds complete
    corroboration from the testimony of eye-witnesses and
    the medical evidence on record. The materials and the
    other evidence on record would conclusively show that
    the deceased was in a position to speak when he dictated
E   the report of occurrence. 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. The father of
    deceased also said that the deceased dictated the FIR to
    the police. Therefore, the High Court was fully justified in
F   holding that the deceased was in a fit state of mind at the      '~-
    time of making the statement. 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. The report
    dictated by the deceased fully satisfied all the ingredients
G
    for being made admissible as a dying declaration. [Paras
    10, 11] [81-B, C, D; 79-G, H; 80-8, D]
                                                                      ,.
       2.3. The submission that the dying declaration, which
  was given the shape of an itR, could not be made the!-•
H basis of conviction, when the original document signed
           DHARAM PAL AND ORS. v. STATE OF U.P.                69

      by the deceased was not brought on record, is not A
 ~
      acceptable. The original Fl,R 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 B
      proved by PW 6 Head Constable and accordingly, the
      secondary evidence adduced by the prosecution was
      accepted. There is no infirmity in the said finding when,
      the original register was destroyed after a lapse of two
      years. Therefore, no adverse inference could be drawn c
      against the prosecution for non-production of the original
      FIR. 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 ts a
      non-cognizable report under section 323 of the IPC. If the
       police were to implicate the accused, they would have not D
      taken down the report as a non-cognizable report in the
      very first place itself. [Paras 10, 11] [81-E, F, G, H; 80-C, D]
~,

            2.4. Though the High Court erred in relying on the
      evidence of PW4, who was declared a hostile witness, E
      nevertheless, in the face of the evidence of PW2 and PW3
      who were corroborated in all material respects by PW7
      Dr. RP.Goyal and by PW9, Dr. U. Kanchan, the evidence
      of PW4, even if discarded, is inconsequential. Simply
      because PW2 and PW3, in their cross examination, have
                                                                  F
 _j   been shown to be related to the deceased does not mean
      that their testimony has to be rejected. It is difficult to
      discard the evidence of the witnesses only on the ground
      that they were related to the deceased, in the absence of
      any infirmity in the said evidence. [Para 12] [82-C, D, E
      &H]                                                         G

           State of Himacha/ Pradesh v. Mast Ram (2004) 8 SCC
      660 - relied on.
          3.1. The facts of the case disclose that there was no
      premeditation and the fight resulted on drinking of water H
   70        SUPREME COURT REPORTS                [2008] 1 S.C.R.


A 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. Therefore, the offence
  committed by the appellants is culpable homicide not
  amounting to murder because it falls within Exception 4
B to Section 300, IPC. [Para 13] (83-D, E]
       3.2. Section 304 of the IPC lays down the punishment
  for culpable homicide not amounting to murder. From the
                                                                    1
  evidence on record, it cannot be said that the accused
  had any intention of causing the death of deceased, nor
C 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, the accused must be
  convicted of the offence under Section 304 Part II, IPC
D and not under Section 302, IPC. [Para 13] [84-C, DJ
        CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
   No. 884 of 2001.
        From the final Judgment and Order dated 4.11.1999 of
   the High Court of Judicature at Allahabad in Crl. A. No. 1303/
   1982.

        K.C. Lamba (for M.P. Shorawala) for the Appellants.
      Pramod Swarup, Subvira Lal, Anuvrat Sharma and Sanjay
F Kumar Singh for the Respondent.
        The Judgment of the Court was delivered by
        TARUN CHATTERJEE, J. 1. This appeal arises from the
  judgment and order dated 4tti of November, 1999 of the High
G 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 Vlllth Additional
  Sessions Judge, Barei:ly, U.P. and instead convicting and
H
            DHARAM PAL AND ORS. v. STATE OF U.P.                     71
                    [TARUN CHATTERJEE, J.]

      sentencing them to 7 years rigorous imprisonment under Section A
      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 B
      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.          c
      At about 2 p.m., he went to drink water at a hand pipe towards
      the north of Ram Das Teli's 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
                                                                       D
      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 E
      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
 A    about 1.00 p.m. on 7th of June, 1978.                            F

            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
                                                                      G
      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
                                                                      H
    72        SUPREME COURT REPORTS                   [2008] 1 S. C.R.


A including three eye-witnesses were examined from the side of           i>
  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
s 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
c 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
0
  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
E 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
F 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
G opportunity of hearing to the appellants. Our attention was drawn
  to the decision of this court in Bani Singh Vs. State of UP [(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
H accused did not appear and that the Appellate Court must



                                                                     '
               DHARAM PAL AND ORS. v. STATE OF U.P.                      73
                       [TARUN CHATTERJEE, J.]
         dispose of the appeal on merits after perusal and scrutiny of         A
    "'   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      8
         appeal ought to have been fixed by the High Court and not having
         done so, it had acted illegally and with material irregularity in
    r    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            c
         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
                                                                               D
         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
y        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 Singh's case [supra] and disposed          E
         of the appeal on merits in the absence of the appellants or their
         learned counsel. In Bani Singh's case [supra], this court
         observed in paragraph 10 as under: -
              "10. In Shyam Deo case 1 , thi~ Court ruled that the             F
              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 42J of the
              Old Code (the corresponding provisions are Sections
                                                                        G
              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

         (1971) 1 sec 855: 1971 sec (Cri) 353: AIR 1971 sc 1606
         1
                                                                               H
    74       SUPREME COURT REPORTS                    [2008) 1 S.C.R.


A        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
8        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
c        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
D
         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
E        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)

F        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,
G 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
H Code"). Chapter XXIX of the Code deals with appeals under
           DHARAM PAL AND ORS. v. STATE OF U.P.                    75
                   [TARUN CHATTERJEE, J.]

      the Code. Sections 385 and 386 of the Code, which are the A
      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       B
           and place at which such appeal will be heard to be given
           (i) to the appellant or his pleader:
           (ii) ...
           (iii) ...
                                                                         c
           (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:                              D

           Provided that if the appeal is only as to the extent or the
y
           legality of the sentence, the Court may dispose of the
           appeal without sending for the record.
           (3) ...                                                       E

           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,
-.J        the accused, if he appears, the Appellate Court may, if F
           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 G
      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 H
    76        SUPREME COURT REPORTS                  [2008) 1 S.C.R.


A 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
B 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
c 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
0 that the learned counsel for the appellants submitted before the
  High Court that despite repeat!'ld reminders to the appella~ .•
  the appellants were not responding and therefore, the learned '
  counsel for the appellants expressed his inability to argue the
  case before the High Court.
E       8. That apart, the decision of this court in Bani Singh's
  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
F merits which would be due compliance with Sections 385 and
  386 of the Code in disposing of criminal appeals. While dealing       I.-
  with the procedure for disposing of a criminal appeal, this court
  in Bani Singh's case [supra] has clearly laid down that the
  dismissal of an appeal for default or non-prosecution without
G 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
H dispose of the appeal after perusal of the record and judgment
            DHARAM PAL AND ORS. v. STATE OF U.P.                     77
                    [TARUN CHATTERJEE, J.]
 _,
      of the trial court even if the appellant or his counsel was not A
      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 B
      appropriate case, the court can appoint a lawyer at the State
      expense to assist the court. Therefore, the High Court, in our
 r    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 c
      passed the judgment under appeal before us holding that the
      appellants were guilty of the offence, not under Section 302134
      of the IPC but under Section 304 Part II ofthe 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
                                                                            D
      on the point of the offence c0mmitted by the appellants and the
      correspQnding 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 E
           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 couid not been shattered in
           any manner.                                               F
-)
            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.
                                                                           G
            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          H
    78       SUPREME COURT REPORTS                  [2008] 1 S.C.R.


A        reason to doubt the presence of PW2 Dannu and PW4
         Satyapa/ on the spot, who saw the occurrence. PW2
         Dannu and PW4 Satyapa/ were truthful and reliable
         witnesses and implicit reliance could be placed on their
         testimonies.
B        5. The FIR of the occurrence was lodged by the deceased
         Rajpa/ himself. The report dictated by Rajpal was initially
         taken down as a non-cognizable report under Section
         323 of the /PC. Therefore, there was no occasion for
         either falsely implicating any one as accused or
c        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
D
         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
         Rajpa/. The names of the accused and the important
E        features of the case had been mentioned therein. The
         report contained a truthful version of the incident as
         narrated by Rajpa/ as to the cause of his death.
         8. The version given in the FIR found complete
         corroboration from the testimony of eye-witnesses and
F        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.

G        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
H        as the accused knew were likely to cause death.
                DHARAM PAL AND ORS. v. STATE OF U.P.                   79
                        [TARUN CHATTERJEE, J.]

               12. The knowledge that death is likely to be caused could A
               be inferred as they gave the blow on the head. The
               accused had therefore committed offence under Section ·
               304 part II of the /PC.
                9. From the above findings of the High Court, it is
          abundantly clear that the High Court had arrived at a well-merited
                                                                              B
          judgment after a careful consideration of the materials on record.
          The position, of course, would have been different if the High
     r-   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 c
          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 Singh's case [supra] is of D
           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 E
           parte. In our view, there has been substantial compliance with
           the guidelines made in Bani Singh's 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 F
     ~)    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
i         when the original document signed by the deceased was not G
          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 H
~

'
    80        SUPREME COURT REPORTS                   [2008] 1 S.C.R.


A 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
B 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          -1

  document signed by the deceased was not brought on record,
c 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
D
  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
E 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,
F such  a statement is relevant in every case or proceeding in which
  the cause of the person's 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.
G
  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 :-
H
                    DHARAM PAL AND ORS. v. STATE OF U.P.                      81
                            [TARUN CHATTERJEE, J.]

        ~'         a)    as to the cause of death of the deceased                    A
                   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         B
~             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
'
.
l             clearly mentioned in the report. It contains a narrative by the
              deceased as to the cause of his death, which finds complete            c
              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
                                                                                     D
              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
1   '
              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       E
               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
•        -1    signed by the deceased was not brought on record is not               F
               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        G
              the original FIR was duly proved by PW 6 and accordingly, the
        -1,
              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             H
    82        SUPREME COURT REPORTS                     [2008] 1 S.C.R.


A prosecution for non-production of the original FIR. That being            f.
  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
B not be admissible in evidence because of the other infirmities,
  as noted hereinabove.                                                              j.

        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
c 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. RP.Goyal
  and by PW9, Dr. U. Kanchan, the evidence of PW4, even if
D 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
E 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 Himancha/
  Pradesh Vs. Mast Ram [(2004) 8 SCC 660], this Court
  observed as under :-
F             " ..... 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
G        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, oniy on the ground that they were
    related to the deceased, in the absence of any infirmity in the
H
                                                       /




               DHARAM PAL AND ORS. v. STATE OF U.P.                    83
                       [TARUN CHATTERJEE, J.]

         said evidence.                                                     A
               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. Jn
                                                                             B
         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
    t·
         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   c
         the knowledge that 9eath 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 D
         on drinking of water from the hand pipe after an exchange of
         abuses. There appeared no intention on the part of the
v
         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 E
         within Exception 4 to Section 300 which reads as under: -
              "f.xception 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
_j            offender having taken undue advantage or acted in a F
              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 G
         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
                                                                            H
    84        SUPREME COURT REPORTS                   [2008) 1 S.C.R.


A        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
B        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 e'ilidence and the other
C 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
D knew were likely to cause death. Therefore, in the absence of
  any intention of causing the death of the deceased Rajpal 1 we
  are in agreement with the High Court that the accused must be
  convicted of the offence under Section 304 Part II qf the IPC
  and not under Section 302 of the IPC.
E       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.
F
    B.B.B.                                       Appeal dismissed.