Ferasat vs State Of U.P.
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Allahabad High Court

Ferasat vs State Of U.P. on 23 April, 2025

Author: Vivek Kumar Birla

Bench: Vivek Kumar Birla

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:62081-DB
 
A.F.R. 
 
Court No. - 43
 

 
Case :- CRIMINAL APPEAL No. - 475 of 1984
 

 
Appellant :- Ferasat
 
Respondent :- State of U.P.
 
Counsel for Appellant :- M. Islam
 
Counsel for Respondent :- Dga
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon'ble 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 thus irreconcilable with Bani Singh vs. State of U.P. (1996) 4 SCC 720. In the case in hand the High Court has manifestly discussed the evidence that have been led, and finding it of probative value, has come to the conclusion that the conviction is above Appellate reproach correction and interference. In view of the analysis of the law the contention raised before us that it was essential for the High Court to have appointed an amicus curiae is wholly untenable. The High Court has duly undertaken the curial responsibility that fastens upon the Appellate Court, and cannot be faulted on the approach adopted by it. In this respect, we find no error."

4. The aforesaid view has been followed by the Hon'ble Full Bench in Criminal Reference No.1 of 2024, In Re- Procedure To Be Followed In Hearing Of Criminal Appeals vs. State of U.P., decided on 22.01.2025, paragraph Nos. 151 and 152 whereof are quoted as under:

"151. The crux of the aforesaid observations of the three celebrated judgments rendered by the Hon'ble Supreme Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13, thus, covers the entire length and breadth of Question No. 5 formulated by the Division Bench at Lucknow for consideration by this Bench and no fresh exercise, in our considered opinion, is required to be undertaken by this Bench, including on one point which has been highlighted by the Division Bench at Lucknow i.e. whether the amicus curiae may be appointed even when the presence of the convict, appellant or accused-respondent may be secured and without his consent.

152. The aforesaid legal precedents would evidently canvass that the emphasis of the Apex Court has been on providing opportunity of being heard to the appellant who is willing to cooperate with the appellate court or his counsel and in this regard a process to cause his presence for the purpose of giving opportunity of being heard is required to be issued to him and when the court is satisfied that such appellant is deliberately avoiding his presence before the court, in such a situation, the court may dispose of the appeal in the manner approved by the Hon'ble Supreme Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13 (i.e. after perusing the record/evidence vis-a-vis judgment of the trial court with the assistance of prosecutor and Amicus, if appointed) and we do not have any reason to deviate from the settled proposition laid down by the Apex Court in the above mentioned cases, moreover, the appointment of amicus is only for the purpose to provide fair trail to the appellant and also for rendering the assistance to the Court."

5. Under such circumstances, we proceed to consider the present appeal on merit with the help of Sri Rahul Asthana, learned A.G.A. for the State.

6. The present appeal has been filed by the appellant assailing his conviction and sentence passed by Sri Mahesh Chandra, the learned Additional Sessions Judge-8th, Bareilly vide judgement and order dated 11.01.1984 whereby the appellant has been convicted under Section 302 I.P.C. and has been sentenced to undergo imprisonment for life and he has further been sentenced to pay fine of Rs. 5,00/- and in default of payment of fine, R.I. for one year has also been awarded. The sentences have been ordered to run concurrently.

7. The prosecution story, in brief, is that the deceased Chutai had married with one Hasin Bi about three years back from the date of occurrence. Hasin Bi had seven children including Firasat from earlier marriage. Firasat had started separate working but he was not contributing towards the expenses of the family. The deceased Chutai used to demand monetary contribution from the accused but the accused did not pay heed to it. The deceased Chutai asked the accused Firasat to live separately but even then the accused continued to live with Chutai. On account of this the relationship between the accused and the deceased had got strained and altercations, exchange of abuses, between the two had taken place multiple times. On 23.06.1983, about mid day, informant Aziz, who is brother-in-law of the deceased Chutai visited his house. Appellant/accused Firasat came there armed with a knife and stated that he would kill him as he had made his life miserable, after saying this, the accused gave several blows of knife to Chutai and made good his escape. The informant Aziz then took injured Chutai to the police station in his rickshaw and lodged the report. Originally, the case was registered under Section 307 I.P.C. but after the death of Chutai, the case was converted into Section 302 I.P.C. The police, after investigation, submitted charge sheet against appellant-accused Firasat @ Guddu.

8. The learned trial court framed charge against the accused under Section 302 I.P.C. to which the accused pleaded not guilty and claimed for trial. Prosecution examined eight witnesses in support of its case. PW-1 Dr. S.K. Jain, Medical Officer, district Hospital, Bareilly stated that on 25.06.1983 he conducted the post mortem of the dead body of Chutai and found following ante mortem injuries on his dead body:-

"(i). Incised wound 2.5cm * 1.5 cm chest cavity deep on front of chest 6cm medial to right nipple of 3 o'clock position. Margin clean cut. Transversely placed.

(ii). Incised wound 2cm. x 1.5cm cavity deep on right side abdomen 9cm. above umblicus at 11 O'clock position transversaly placed, margin clean cut.

(iii). Incised wound 1.5cm x 0.5cm muscle deep on front of the left upper arm 6cm above elbow joint.

(iv). Incised wound 1cm. x 0.5cm skin deep on outer side of left elbow joint.

(v). Incised wound 1.5cm x 0.5cm skin deep on the outer side of left fore arm 5cm below elbow joint.

(vi). Incised wound 2cm x 1cm x 2cm deep on back of left 3cm below and below Axilla (Arm Pit).

(vii). Incised wound 1cm x 0.5cm skin deep on front of left knee joint.

(vii). Incised wound 1cm x 0.5cm skin deep on back of left thigh 6cm above knee."

9. In the opinion of PW-1, the cause of death was shock and haemorrhage as a result of above injuries. PW-1 has proved the post mortem report Ext. ka1.

10. Informant/PW-2 Aziz has stated that the deceased Chutai was his brother-in-law and he had married Hasin Bi about three years back. Hasin Bi had seven children from her earlier marriage. A child was also born with Chutai but the child had died. This witness has further stated that the entire expenses of households were borne by Chutai and the accused Firasat, step son of Chutai, used to spend money on cinema and did not contribute anything towards households. It is further stated by PW-2 that Firasat used to demand pocket money from Chutai and on this account the relationship between them was strained. This witness has further stated that on the date of occurrence he was sitting at the house of Chutai (deceased) talking to him. At about 12:30 P.M., accused Firasat came there armed with a knife and started abusing Chutai and threatened to kill him and gave several knife blows. PW-2 raised alarm but the accused managed to escape after inflicting five or six injuries to Chutai. This witness has further stated that he did not intervene as he was unarmed. PW-2 further stated that he took the injured Chutai to the police station on his rickshaw and lodged the report Ext. ka3. While being taken to police station, the injured Chutai was in conscious and full senses and was talking to PW-2. At the police station the Sub-Inspector recorded the statement of Chutai and then sent him to the hospital for medical examination along with one Constable. However, on the same day Chutai died due to injuries.

11. PW-3 Smt. Bijjan, an old lady has stated that about mid day on the date of occurrence she heard some noise and she reached at the door of Chutai when she saw accused Firasat @ Guddu coming out of the door with blood stained knife in his hand. The accused escaped towards masjid and his shirt was also blood stained.

12. PW-4 Sub-Inspector H.S. Bhargoti is a formal witness who has proved the chick F.I.R. of this case as Ext. ka4. PW-4 is also an Investigating Officer who conducted the investigation of this case. PW-4 has recorded the statement of injured Chutai at the police station and has filed a copy of the same in the trial court, which is Ext. ka5. He sent Chutai for medical examination with Constable Sobran Singh to the District Hospital. This witness has also recorded the statement of the informant and prepared site plan of the place of occurrence, which is Ext. ka6. From the spot He took in possession blood stained and plain soil and sealed it into two boxes, which are Ext. 1 and 2. He also prepared fard statement as Ext. ka7. PW-4 also cut and took in his possession blood stained 'Ban' of the cot, on which the deceased was sitting at the time of alleged occurrence being committed. This witness also recorded the statement of several witnesses and on 24.06.1983, after Chutai succumbed to his injuries, made the conversion of the case from Section 307 I.P.C. to Section 302 I.P.C.

13. PW-5 Head Constable Raj Bahadur Singh has deposed that on 23.06.1983 at about 01:05 P.M. at P.S. Baradari, Aziz had lodged F.I.R., which was prepared by him. This witness has further stated that while Chutai remained at the police station he was in his senses and was talking. This witness further stated that S.I. H.S. Bhargoti recorded the statement of injured Chutai at the police station on the same day at about 3:30 P.M.

14. P.W.-6 Sobran Singh has deposed to the effect that on 23.06.1983 he took the injured Chutai to the hospital for medical examination and he was talking up to the gate of the hospital but when he was taken inside the hospital Chutai died. PW-6 came back to the PW-5 Raj Bahadur with a report from the hospital that the injured is dead and recorded the same in the G.D. report.

15. PW-7 S.I. Sahdev Singh has stated that on 24.06.1983 he was posted at P.S. Baradari. He prepared panchayatnama under direction of his superior officer along with Constable Lal Singh and Malkhan Singh. This witness has proved panchayatnama (inquest) as Ext. ka15. This witness has further stated that the dead body of the deceased was sealed by him and sent for post mortem through Constbable Lal Singh and Malkhan Singh. The sample of seal is Ext. ka16. Photo lash (photo dead body) is Ext. ka17, challan lash (challan dead body) is Ext. ka18, Challan and letter of C.M.O. is Ext. ka19. Letter of R.I. in Ext. ka20.

16. PW-8 Constable Lal Singh has proved the inquest report and has stated in his deposition before the learned trial court that on 24.06.1983 S.I. Sahdeo Singh prepared the inquest of deceased Chutai in his presence. Learned trial court has recorded the finding that PW-1 is eye-witness and his testimony is wholly reliable.

17. The grounds taken in the appeal are that the conviction is bad in the eye of law and is against the weight of the evidence on record and the sentence is too severe. Now this Court is tasked with the duty to re-appreciate the evidence and come to the conclusion whether the learned trial court has appreciated the evidence in the right perspective or not?

18. PW-2 is informant, who is eye-witness and he is categorical in his statement that the accused inflicted several knife blows on the deceased Chutai in his presence. There is nothing in his cross-examination which could contradict him. This witness has further stated that he took the injured Chutai to the police station where the first information report was lodged by this witness and the statement of the injured was recorded by Sub-Inspector which is Ext. ka5, in which the injured Chutai has stated that it was the accused, who inflicted several knife blows on him. It is settled preposition of law that the statement of an injured person recorded under Section 161 Cr.P.C. is treated as dying declaration if the person making the same dies subsequently and the statement relates to the cause of his death as affirmed by the Hon'ble Apex Court in the case of Pradeep Bisoi @ Ranjit Bisoi Vs. State of Odisha reported in 2019 (11) SCC 500. Relevant paragraph No.10 is delineated below:-

"10. Sub-section (2) to Section 162 incorporate a clear exception to what has been laid down in sub-section (1). The statement recorded by police under Section 161, falling within the provisions of clause (1) of Section 32 of Indian Evidence Act, thus, is clearly relevant and admissible. In Mukeshbhai Gopalbhai Barot (supra), this Court had occasion to consider Sections 161 and 162 of Cr.P.C. and Section 32 of the Evidence Act. In the above case, the victim, who received burn injuries on 14.09.1993 was admitted to Civil Hospital. Her statement was recorded by Executive Magistrate and by the Police. The statement recorded by police under Section 161 Cr.P.C. was discarded by the High Court taking the view that it had no evidentiary value. The view of the High Court was not accepted by this Court. In paragraph Nos. 4 and 5, this Court held that the statement of persons recorded under Section 161 can be treated as dying declaration after death. In paragraph Nos. 4 and 5, following has been laid down:-

"4. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observa- tions of the High Court that the dying decla- rations Ex.44 and 48 could not be taken as ev- idence in view of the provisions of Section 161 and 162 of the Cr.P.C. when read cumula-tively. These findings are, however, erro- neous. Sub-Section (1) of Section 32 of the Indian Evidence Act, 1872 deals with several situations including the relevance of a state- ment made by a person who is dead. The provi- sion reads as under:

Sec.32. Cases in which statements of relevant fact by person who is dead or cannot be found, etc., is relevant. -

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) When it relates to cause of death. - When the 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, in cases in which the cause of that person's death comes into question.

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 proceeding in which the cause of his death comes into question."

We see that the aforesaid dying declara- tions are relevant in view of the above provi- sion. Even otherwise, Section 161 and 162 of the Cr.P.C. admittedly provide for a restric- tive use of the statements recorded during the course of the investigation but sub-Section (2) of Section 162 deals with a situation where the maker of the statement dies and reads as under:

"(2) Nothing in this section shall be deemed to apply to any statement falling within the provi-sions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act."

5. A bare perusal of the aforesaid provision when read with Section 32 of the Indian Evi- dence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declarations Ex.44 and 48 had no ev- identiary value, therefore, is erroneous. In this view of the matter, the first dying dec- laration made to the Magistrate on 14th Sep- tember 1993 would, in fact, be the First In- formation Report in this case."

19. PW-3 Bijjan, though, she is not an eye-witness, has testified to the effect that when she heard the sound of quarrel she reached the house of Chutai but could only see the accused making good his escape with blood stained knife. This witness is wholly reliable on this point which corroborates the testimony of PW-2. The medical evidence of PW-1 also supports the prosecution case and corroborates the testimony of PW-2 as the Doctor has found eight incised wounds on various parts of the body including vital part like chest and abdomen as already referred to supra. Other witnesses are formal witnesses. PW-4 is the Investigating Officer, who has conducted investigation of the case and proved various prosecution papers. PW-5 is formal witness. Other witnesses are formal in nature who have already been referred to in the judgement.

20. In view of the discussions made above, since the PW-2 is eye-witness of the occurrence who is wholly reliable and Ext. ka5, the statement under Section 161 Cr.P.C. of the deceased acquires the status of dying declaration after his death, we are of the view that no infirmity or irregularity has been committed by the learned trial court while appreciating the evidence on record and recording the finding of conviction and passing the sentence

21. So far as the motive is concerned, it is well settled that in the case of direct evidence, motive is of little significance or no significance. However, PW-2 has proved the motive of the commission of crime by the appellant/accused as the strained relationship between the deceased and accused on account of demand of money by the deceased from the accused for household expenses. The first information report is prompt and there is no delay in lodging the F.I.R. which lends additional credence to the prosecution case.

22. In view of above, this appeal lacks merit and deserves to be dismissed. The appeal is dismissed. The judgement and order dated 11.01.1984 passed by learned Additional Session Judge-8th, Bareilly in S.T. No.- 402 of 1983 (State Vs. Firasat) is affirmed.

23. Since, the accused appellant is absconding, his bail bonds are cancelled and the sureties are discharged. He shall be taken into custody forthwith. The Chief Judicial Magistrate and Senior Superintendent of Police/Superintendent of Police concerned shall ensure the arrest of the accused-appellant, Firasat.

24. Let a copy of this order be communicated by the Registrar (Compliance) to the Chief Judicial Magistrate concerned for compliance forthwith.

25. The Chief Judicial Magistrate concerned is also directed to send his compliance report within one month to Court from the date of receipt of this order.

Order Date :- 23.4.2025

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