2022 Supreme(SC) 260

SUPREME COURT OF INDIA
(From the High Court of Judicature at Allahabad)
M.R. SHAH, B.V. NAGARATHNA, JJ.
The State of Uttar Pradesh – Appellant
Versus
Subhash @ Pappu – Respondent
Criminal Appeal No. 436 of 2022
Decided On : 01-04-2022

IMPORTANT POINTS
(1) Omission/error on charge – Mere defect in language, or in narration or in form of charge would not render conviction unsustainable, provided accused is not prejudiced thereby.
(2) Dying declaration--Merely because weapon used is not recovered cannot be a ground not to rely upon dying declaration which was recorded before Executive Magistrate, which has been proved by prosecution.
(3) Rioting – Merely because three persons were charge-sheeted/charged/tried and even out of three tried, two persons came to be acquitted cannot be a ground to not to convict respondent accused under Section 148 IPC.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 464 – Omission/error on charge – In case of omission or error in framing a charge, accused has to show failure of justice/prejudice caused thereby – Mere non-framing of a charge under Section 149 on face of charges framed against appellant would not vitiate conviction in absence of any prejudice caused to them – Mere defect in language, or in narration or in form of charge would not render conviction unsustainable, provided accused is not prejudiced thereby – If ingredients of section are obvious or implicit in charge framed then conviction in regard thereto can be sustained, irrespective of fact that said section has not been mentioned. (Paras 7.2 and 7.3)

(B) Indian Penal Code, 1860 – Sections 302 and 148 – Murder and rioting – Acquittal by High Court – In a case when at the time when dying declaration was recorded, there was no emergency and/or any danger to life, dying declaration should be discarded as a whole – In present case, as deceased was having a stab injury by a knife, there was possibility of danger to his life and by way of prudence, if dying declaration was recorded, there is no reason to doubt dying declaration which was recorded by Assistant Divisional Transport Officer – Trial Court has rightly relied upon and/or believed dying declaration recorded by Assistant Divisional Transport Officer – From dying declaration it emerges that six to seven persons attacked deceased including accused-respondent – From dying declaration, prosecution has been successful in establishing and proving that accused-respondent was present at the time of incident; he was part of unlawful assembly and that he participated in commission of offence – While framing charge, Trial Court specifically observed that accused did commit murder by knowingly and intentionally causing death of deceased and thereby committed offence punishable under Section 302 IPC – Ingredients of offence under Section 302 r/w Section 149 and Section 148 of IPC were specifically brought to notice of accused – At the most, it can be said to be a defective framing of charge by not specifically charging under Section 149 IPC – Section 464 Cr.P.C. is attracted to instant case – It cannot be said that accused is prejudiced by non-mention of Section 149 IPC in charge – Merely because weapon used is not recovered cannot be a ground not to rely upon dying declaration which was recorded before Executive Magistrate, which has been proved by prosecution – Prosecution has not established and proved who actually inflicted knife blow – However, from medical evidence on record and even from deposition of doctors, it has been established and proved by prosecution that deceased sustained an injury by knife blow, which is inflicted by one of six to seven persons, who participated in commission of offence – Even if role attributed to respondent -accused was that of hitting deceased by a hockey stick, in that case also for act of other persons, who were part of unlawful assembly of inflicting knife blow, respondent accused can be held guilty of having committed murder of deceased with aid of Section 149 IPC – Deceased died due to septicaemia after a period of thirty days – Conviction of respondent accused for offence punishable under Section 302 r/w Section 149 IPC is not warranted and case may fall within Section 304 Part I of IPC – Impugned judgment and order passed by High Court acquitting accused for offence punishable under Section 302 IPC quashed and set aside – Respondent accused held guilty for offence under Section 304 Part I r/w Section 149 IPC and offence under Section 148 IPC – Respondent accused sentenced to undergo ten years R.I. for offence punishable under Section 304 Part I r/w Section 149 IPC with a fine of Rs. 5,000/- and in default to undergo further six months R.I. – Respondent accused also sentenced to undergo three years R.I. for offence under Section 148 IPC with fine of Rs. 5,000/- and in default to undergo further two months R.I. (Paras 6, 6.1, 7, 7.1, 8, 9, 10, 11, 11.1 and 13)

(C) Indian Penal Code, 1860 – Section 148 – Rioting – Involvement of six to seven persons in commission of offence has been established and proved – Merely because three persons were charge-sheeted/charged/tried and even out of three tried, two persons came to be acquitted cannot be a ground to not to convict respondent accused under Section 148 IPC – 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. (Paras 12 and 12.1)

Facts of the case:

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 1462 of 1985 by which the High Court has allowed said appeal preferred by the respondent-original accused and has acquitted the respondent for the offences under Sections 302 and 148 of Indian Penal Code (IPC), State of Uttar Pradesh has preferred present appeal.

Findings of Court:

Both the sentences to run concurrently. The respondent to surrender within a period of four weeks to undergo the remaining part of sentence as per the present judgment and order.

Result : Appeal allowed.