NDLI: The State of Uttar Pradesh Vs. Subhash @ Pappu

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	149 1860: ss.146 148 302 304 – Prosecution case was that six Penal Code
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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.
Judge	Hon'ble Mr. Justice M.R. Shah
Neutral Citation	2022 INSC 382
Petitioner	The State Of Uttar Pradesh
Respondent	Subhash @ Pappu
SCR	[2022] 5 S.C.R. 832
Judgement Date	2022-04-01
Case Number	436

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