Penal Code, 1860: ss.146, 148, 149,302, 304 – Prosecution case was that six (out of which three persons were unknown) persons came to a shop and attacked the servant (deceased) of the shop with knife and hockey for refusing to provide articles asked by them – Trial Court convicted respondent-accused for offences u/s.302 and 148, however, acquitted the other two known accused – High Court acquitted the respondent for offences u/s.302 as well as s.148 – Instant appeal filed by State – Held: From the medical evidence on record, it was established and proved by prosecution that deceased sustained an injury by knife blow, which was inflicted by one of the six persons, who participated in commission of the offence – Prosecution could not establish and prove who actually inflicted the knife blown – From the dying declaration, it was established and proved that the respondent was part of the unlawful assembly – Therefore, even if the role attributed to him was that of hitting the deceased with a hockey stick, in that case also for the act of other persons, he can be held guilty of having committed the murder of deceased, with aid of s.149 – However, since deceased died due to septicemia after a period of thirty days, conviction u/s.302 r/w s.149 is not warranted and would fall within s.304 Part I – In regard to the conviction of accused u/s.148, merely because three persons were tried and even out of three tried, two persons were acquitted cannot be a ground to not convict the accused under s.148 – Using force or violence by unlawful assembly and one of them using deadly weapon, namely knife, attracts the ingredients of s.148 – Hence, accused is held guilty for the offences u/s.304 Part I r/w s.149 and s.148 – Judgment and order of High Court to be set aside.
Evidence Act, 1872: Dying declaration – Evidentiary value of – In the instant case, as per dying declaration six/seven persons attacked the deceased – Even in FIR, it was mentioned that six persons attacked – Merely because the weapon used is not recovered cannot be a ground not to rely upon the dying declaration, which was duly recorded and proved.
Evidence Act, 1872: Dying declaration – Deceased died due to septicemia after a period of thirty days – There is no absolute proposition of law that the dying declaration should be discarded as a whole in a case when at the time when the dying declaration was recorded there was no emergency and/or any danger to the life.
Code of Criminal Procedure, 1973: s.464 – Omission to frame charges – s.464 Cr.P.C states that mere defect in language, or in narration or in the form of charge would not render conviction unsustainable, provided the accused is not prejudiced thereby – If ingredients of the section are obvious or implicit in the charge framed then conviction in regard thereto can be sustained, irrespective of the fact that said section has not been mentioned – In the instant case, it can be said from the charges framed that the ingredients for the offences u/s.302 r/w s.149 and s.148 of IPC were specifically brought to the notice of the accused – Mere non-framing of a charge under s.149 IPC on face of charges framed against appellant would not vitiate the conviction in the absence of any prejudice caused to them – Hence, it cannot be said that the accused is prejudiced by non-mention of s.149 IPC in the charge – Penal Code, 1860 – s.302 r/w s.149 and s.148.
Partly allowing the appeal, the Court
HELD: 1. The dying declaration stated that six/seven persons attacked the deceased. Even in the F.I.R., lodged by PW-5, it was specifically mentioned that six persons attacked his brother Bengali, who assaulted him with hockey stick and knife. It is true that PW-5-informant turned hostile. However, at the same time, there is no reason to doubt the dying declaration recorded. As the deceased was having a stab injury by a knife, there was a possibility of danger to his life and therefore, by way of prudence, if the dying declaration was recorded on 05.12.1980, there is no reason to doubt the dying declaration. [Para 6] [842-C-D]
2. While framing the charge, the respondent accused was not specifically charged for the offence under Section 302 r/w Section 149 IPC. From the charges framed it can safely be said that the ingredients for the offence under Section 302 r/w Section
149 and Section 148 of IPC were specifically brought to the notice of the accused. Therefore, at the most, it can be said to be a defective framing of the charge by not specifically charging under Section 149 IPC. Considering Section 464 Cr.P.C. it is observed that mere defect in language, or in narration or in the form of charge would not render conviction unsustainable, provided the accused is not prejudiced thereby. It is further observed that if ingredients of the section are obvious or implicit in the charge framed then conviction in regard thereto can be sustained, irrespective of the fact that said section has not been mentioned. Applying the law laid down by this Court to the facts of the case on hand and on noting the contents of the charges framed against the accused it shows that the ingredients of Section 149 IPC are satisfied. Therefore, it cannot be said that the accused is prejudiced by non-mention of Section 149 IPC in the charge. [Paras 7, 7.1, 7.3, 8][843-B; 844-F-G; 845-F-H; 846-A]
3. The question whether the accused can be convicted for the offence punishable under Section 302 with the aid of Section
149 IPC is concerned, it is true that the prosecution has not established and proved, who actually inflicted the knife blow. However, from the medical evidence on record and even from the deposition of the doctors, it has been established and proved by the prosecution that the deceased sustained an injury by knife blow, which is inflicted by one of the six to seven persons, who participated in commission of the offence. From the dying declaration it has been established and proved that the respondent – accused Subhash @ Pappu was part of the unlawful assembly, who participated in the commission of the offence. Pappu s/o Baijnath – respondent herein was specifically named by the deceased in the dying declaration. Therefore, even if the role attributed to the respondent -accused was that of hitting the deceased by a hockey stick, in that case also for the act of other persons, who were part of the unlawful assembly of inflicting the knife blow, the respondent accused can be held guilty of having committed the murder of deceased Bengali, with the aid of Section
149 IPC. The next question, which is posed for consideration of this Court is whether respondent -accused can be convicted for the offence punishable under Section 302 IPC r/w Section 149 IPC when the deceased died due to septicemia after a period of thirty days. Considering the decision of this Court in the case of Sanjay, the conviction of the respondent accused for the offence punishable under Section 302 r/w Section 149 IPC is not warranted and the case may fall within Section 304 Part I of the IPC. [Paras 10, 11, 11.1][846-C-H]
4. It is the submission on behalf of the accused that the weapon alleged to have been used by the respondent accused was said to be a hockey stick, which cannot be said to be a deadly weapon and therefore, the respondent-accused cannot be punishable for the offence under Section 148 also has no substance. As per Section 148 of IPC, whoever is guilty of rioting, being armed with a deadly weapon or with anything which used as a weapon of offence, is likely to cause death, can be punished under that Section. The term “rioting” is defined under Section
146 IPC. As per Section 146, whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. In the present case, six to seven persons were part of the unlawful assembly and they used force or violence and one of them used a deadly weapon, namely, knife and therefore, being a part of the unlawful assembly, the respondent accused can be held to be guilty for the offence of rioting and for the use of force/violence as a member of such an unlawful assembly. Therefore, the respondent was rightly convicted by the Trial Court for the offence under Section 148 IPC. [Para 12.1][847-C-G]
Fainul Khan v. State of Jharkhand, (2019) 9 SCC 549; Annareddy Sambasiva Reddy v. State of Andhra
Pradesh, (2009) 12 SCC 546 : [2009] 6 SCR 755; Sanjay v. State of Uttar Pradesh, (2016) 3 SCC 62 – relied on.
Rohtas v. State of Haryana (2020) 14 SCALE 14; Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC
648 : [2012] 1 SCR 145; Laxman v. State of
Maharashtra (2002) 6 SCC 710 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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