The Supreme Court has held that there is no absolute proposition of law that in a case when at the time when the Dying Declaration was recorded, there was no emergency and/or any danger to the life, the Dying Declaration should be discarded as a whole.
The Division Bench of Justice MR Shah and Justice BV Nagarathna observed the above while adjucating upon an appeal by State Govt assailing Allahabad High Court order acquitting the respondent-accused for the offences under Section 302 and 148 IPC.
Facts and Submissions
The State Counsel, among other things, contended primarily that the High Court has acquitted the respondent – accused for the offence under Section 148 on the ground that as two other co-accused were acquitted and therefore, the respondent - accused cannot be said to be part of the unlawful assembly being less than five persons. It was submitted that in the present case, even as per the dying declaration, six to seven persons participated in the commission of the offence. It was therefore submitted that merely because subsequently, only three persons were chargesheeted and out of which, two came to be acquitted, it shall not bring the case out of the scope of Section 148 IPC. It was submitted that therefore, the High Court has committed a grave error in acquitting the respondent accused even for the offence under Section 148 IPC. Reliance was placed on Rohtas Vs. State of Haryana, 2020.
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It was further submitted that the only evidence, which was available was the dying declaration in which it was specifically stated that Pappu hit him by a hockey stick and therefore being a part of the unlawful assembly and some person inflicted the knife blow in the stomach of the deceased, who died due to the injury by knife blow, still the respondent accused can be convicted for the offence under Section 302 r/w Section 149 as well as Section 148 of IPC.
It was submitted that in the impugned judgment and order the High court has not as such doubted the credibility of the dying declaration recorded by Assistant Divisional Transport Officer. It was submitted that therefore, there can be a conviction based on the dying declaration, which has been established and proved by the prosecution. Reliance was placed on FAINUL KHAN vs. STATE OF JHARKHAND, 2019 , Bannareddy & Ors. Vs. State of Karnataka & Ors., 2018 , Alister Anthony Pareira Vs. State of Maharashtra, 2012,
Opposing the same, Counsel for the Respondent-Accused argued that in the F.I.R., it was alleged that the accused inflicted the knife blow and in the dying declaration, it was stated he hit the victim with a hockey and therefore as there are material contradictions, and thus the High Court has rightly acquitted the accused. He stressed that in the dying declaration nothing was mentioned as to who, in fact, inflicted the knife blow.
It was further submitted that even otherwise, considering the fact that the dying declaration was recorded on the very next day and nothing is on record to the effect that at that time his condition was serious, therefore, the said dying declaration is not reliable and may not to be considered. Reliance was placed on Laxman Vs. The State of Maharashtra, 2012 . The non-recovery of the hockey stick was also cited.
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It was also averred that the deceased died after thirty days and while taking treatment in the hospital he died because of septicemia, the case may hence fall under Section 304 Part II IPC. Reliance was placed on the decision of this Court in the case of Sanjay Vs. State of Uttar Pradesh, 2016. Therefore, it is alternatively submitted to alter the conviction from Section 302 IPC to Section 304 Part II IPC.
Supreme Court's Analysis
Dying Declaration in no state of emergency
The Court noted that the contention of the accused party that the day on which the dying declaration was recorded, there was no extreme emergency and/or his condition was not so serious or there was any danger to his life and therefore there was no reason and/or cause to record the dying declaration and therefore the dying declaration is not believable, has no substance.
The Court clarified that as per the case of Laxman Vs. The State of Maharashtra, cited by the accused party, there is no absolute proposition of law laid down by this Court that, in a case when at the time when the dying declaration was recorded, there was no emergency and/or any danger to the life, the dying declaration should be discarded as a whole.
In view of the above, the Court approved of the Trial Court's dependence on Dying Declaration,
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"In the present case, 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, which was recorded by Assistant Divisional Transport Officer. Therefore, in our view the Trial Court has rightly relied upon and/or believed the dying declaration recorded by Assistant Divisional Transport Officer on 05.12.1980."
Defective framing of the Charges
The Court observed that it is true that while framing the charge, the respondent accused was not specifically charged for the offence under Section 302 r/w Section 149 IPC. However, it is to be noted that while framing the charge, the Trial Court specifically observed that accused did commit murder by knowingly and intentionally causing death of Bengali and thereby committed the offence punishable under Section 302 IPC (vide charge framed on 06.10.1983). It also appears from the record that the respondent – accused was also charged for the offence under Section 148 IPC, vide charge framed on dated 04.05.1983, in which it has been mentioned that the accused and others were members of an unlawful assembly and in carrying out the common object of that assembly i.e. to murder Bengali, committed the offence of rioting with a deadly weapon, namely, knife to stab Bengali and 7 thereby committed an offence punishable under Section 148 IPC
The Court thus concluded 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 and Section 464 CrPC is attracted. The Court went on to analysis the factor.
The Court stated that as per FAINUL KHAN that in case of omission or error in framing a charge, the accused has to show failure of justice/prejudice caused thereby. Referring to Bannareddy & Ors. Vs. State of Karnataka, it was reiterated that that mere non-framing of a charge under Section 149 on face of charges framed against appellant would not vitiate the conviction in the absence of any prejudice caused to them.
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"Considering Section 464 Cr.P.C. it is observed and held 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."
In view of the above, the Court held that the ingredients of Section 149 IPC are satisfied and therefore it cannot be said that the accused is prejudiced by non-mention of Section 149 IPC in the charge.
Recovery of Weapon
As far as the recovery of the Hockey Stick was concerned, the Court noted that merely because the weapon used is not recovered cannot be a ground not to rely upon the dying declaration, which was recorded before the Executive Magistrate, which has been proved by the prosecution.
Conclusion
Whether the accused can be convicted for the offence punishable under Section 302 with the aid of Section 149 IPC?
The Court observed that 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."
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 Vs. State of Uttar Pradesh, 2016, 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.
"so far as the conviction of the respondent accused for the offence under Section 148 IPC is concerned, it is the case on behalf of the respondent accused that in the facts and circumstance of the case, Section 148 shall not be attracted as the number of accused chargesheeted/charged/tried were less than five in number, the same has no substance. It to be noted that right from very beginning and even so stated in the dying declaration six to seven persons attacked the deceased. Therefore, involvement of six to seven persons in commission of the offence has been established and proved. Merely because three persons were chargesheeted/charged/tried and even out of three tried, two persons came to be acquitted cannot be a ground to not to convict the respondent accused under Section 148 IPC."
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The Court remarked that 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.
Observing that the respondent was rightly convicted by the Trial Court for the offence under Section 148 IPC, the Court said:
"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."
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