THE STATE OF UTTAR PRADESH versus SUBHASH @ PAPPU

Citation: [2022] 5 S.C.R. 832 · Decided: 01-04-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Case Partly allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 5 S.C.R.
[2022] 5 S.C.R. 832
832
THE STATE OF UTTAR PRADESH
v.
SUBHASH @ PAPPU
(Criminal Appeal No. 436 of 2022)
APRIL 01, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
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
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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]
THE STATE OF UTTAR PRADESH v. SUBHASH @ PAPPU
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2. While framing the charge, the respondent accused was
not specifically 

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