THE STATE OF UTTAR PRADESH versus SUBHASH @ PAPPU on 1 April 2022

832

SUPREME COURT REPORTS

[2022] 5 S.C.R.

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THE STATE OF UTTAR PRADESH

v.

SUBHASH @ PAPPU

(Criminal Appeal No. 436 of 2022)

BAPRIL 01, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Penal Code, 1860: ss.146, 148, 149,302, 304 – Prosecutioncase was that six (out of which three persons were unknown) personscame to a shop and attacked the servant (deceased) of the shopCwith knife and hockey for refusing to provide articles asked bythem – 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 wellas s.148 – Instant appeal filed by State – Held: From the medicalDevidence on record, it was established and proved by prosecutionthat deceased sustained an injury by knife blow, which was inflictedby one of the six persons, who participated in commission of theoffence – Prosecution could not establish and prove who actuallyinflicted the knife blown – From the dying declaration, it wasestablished and proved that the respondent was part of the unlawfulEassembly – Therefore, even if the role attributed to him was that ofhitting the deceased with a hockey stick, in that case also for theact of other persons, he can be held guilty of having committed themurder of deceased, with aid of s.149 – However, since deceaseddied due to septicemia after a period of thirty days, conviction u/Fs.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 becausethree persons were tried and even out of three tried, two personswere acquitted cannot be a ground to not convict the accused unders.148 – Using force or violence by unlawful assembly and one ofthem using deadly weapon, namely knife, attracts the ingredientsGof s.148 – Hence, accused is held guilty for the offences u/s.304Part I r/w s.149 and s.148 – Judgment and order of High Court tobe set aside.

Evidence Act, 1872: Dying declaration – Evidentiary valueof – In the instant case, as per dying declaration six/seven personsH

attacked the deceased – Even in FIR, it was mentioned that sixpersons attacked – Merely because the weapon used is not recoveredcannot be a ground not to rely upon the dying declaration, whichwas duly recorded and proved.

Evidence Act, 1872: Dying declaration – Deceased died dueto septicemia after a period of thirty days – There is no absoluteproposition of law that the dying declaration should be discardedas a whole in a case when at the time when the dying declarationwas recorded there was no emergency and/or any danger to thelife.

Code of Criminal Procedure, 1973: s.464 – Omission to framecharges – s.464 Cr.P.C states that mere defect in language, or innarration or in the form of charge would not render convictionunsustainable, provided the accused is not prejudiced thereby – Ifingredients of the section are obvious or implicit in the charge framedthen conviction in regard thereto can be sustained, irrespective ofthe fact that said section has not been mentioned – In the instantcase, it can be said from the charges framed that the ingredients forthe offences u/s.302 r/w s.149 and s.148 of IPC were specificallybrought to the notice of the accused – Mere non-framing of a chargeunder s.149 IPC on face of charges framed against appellant wouldnot vitiate the conviction in the absence of any prejudice caused tothem – Hence, it cannot be said that the accused is prejudiced bynon-mention of s.149 IPC in the charge – Penal Code, 1860 – s.302r/w s.149 and s.148.

Partly allowing the appeal, the Court

Conclusion

Partly allowing the appeal, the Court

HELD: 1. The dying declaration stated that six/sevenpersons attacked the deceased. Even in the F.I.R., lodged byPW-5, it was specifically mentioned that six persons attacked hisbrother Bengali, who assaulted him with hockey stick and knife.It is true that PW-5-informant turned hostile. However, at thesame time, there is no reason to doubt the dying declarationrecorded. As the deceased was having a stab injury by a knife,there was a possibility of danger to his life and therefore, by wayof 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]

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A2. While framing the charge, the respondent accused wasnot specifically charged for the offence under Section 302 r/wSection 149 IPC. From the charges framed it can safely be saidthat the ingredients for the offence under Section 302 r/w Section149 and Section 148 of IPC were specifically brought to the noticeof the accused. Therefore, at the most, it can be said to be aBdefective framing of the charge by not specifically charging underSection 149 IPC. Considering Section 464 Cr.P.C. it is observedthat mere defect in language, or in narration or in the form ofcharge would not render conviction unsustainable, provided theaccused is not prejudiced thereby. It is further observed that ifCingredients of the section are obvious or implicit in the chargeframed 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 caseon hand and on noting the contents of the charges framed againstthe accused it shows that the ingredients of Section 149 IPC areDsatisfied. Therefore, it cannot be said that the accused isprejudiced 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 forthe offence punishable under Section 302 with the aid of SectionE149 IPC is concerned, it is true that the prosecution has notestablished and proved, who actually inflicted the knife blow.However, from the medical evidence on record and even fromthe deposition of the doctors, it has been established and provedby the prosecution that the deceased sustained an injury by knifeFblow, which is inflicted by one of the six to seven persons, whoparticipated in commission of the offence. From the dyingdeclaration 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 theGdeceased in the dying declaration. Therefore, even if the roleattributed to the respondent -accused was that of hitting thedeceased by a hockey stick, in that case also for the act of otherpersons, who were part of the unlawful assembly of inflicting theknife blow, the respondent accused can be held guilty of havingH

committed the murder of deceased Bengali, with the aid of Section149 IPC. The next question, which is posed for consideration ofthis Court is whether respondent -accused can be convicted forthe offence punishable under Section 302 IPC r/w Section 149IPC when the deceased died due to septicemia after a period ofthirty days. Considering the decision of this Court in the case ofSanjay, the conviction of the respondent accused for the offencepunishable under Section 302 r/w Section 149 IPC is not warrantedand 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 theweapon alleged to have been used by the respondent accusedwas said to be a hockey stick, which cannot be said to be a deadlyweapon and therefore, the respondent-accused cannot bepunishable for the offence under Section 148 also has nosubstance. As per Section 148 of IPC, whoever is guilty of rioting,being armed with a deadly weapon or with anything which usedas a weapon of offence, is likely to cause death, can be punishedunder that Section. The term “rioting” is defined under Section146 IPC. As per Section 146, whenever force or violence is usedby an unlawful assembly, or by any member thereof, in prosecutionof the common object of such assembly, every member of suchassembly is guilty of the offence of rioting. In the present case,six to seven persons were part of the unlawful assembly and theyused 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 ofrioting and for the use of force/violence as a member of such anunlawful assembly. Therefore, the respondent was rightlyconvicted by the Trial Court for the offence under Section 148IPC. [Para 12.1][847-C-G]

Fainul Khan v. State of Jharkhand, (2019) 9 SCC 549;Annareddy Sambasiva Reddy v. State of AndhraPradesh, (2009) 12 SCC 546 : [2009] 6 SCR 755;Sanjay v. State of Uttar Pradesh, (2016) 3 SCC 62– relied on.

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ARohtas v. State of Haryana (2020) 14 SCALE 14; AlisterAnthony Pareira v. State of Maharashtra (2012) 2 SCC648 : [2012] 1 SCR 145; Laxman v. State ofMaharashtra (2002) 6 SCC 710 – referred to.

From the Judgment and Order dated 30.08.2019 of the High CourtDof Judicature at Allahabad in Criminal Appeal No.1462 of 1985.

Ms. Garima Prasad, Sr. Adv., Vishnu Shankar Jain, Ms. MarbiangN. Khongwir, Advs. for the Appellant.

Deepak Goel, Ms. Urvashi Sharma, Advs. for the Respondent.

EThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Judicature at Allahabad in CriminalAppeal No. 1462 of 1985 by which the High Court has allowed the saidFappeal preferred by the respondent – original accused and has acquittedthe respondent for the offences under Section 302 and 148 of IndianPenal Code (IPC), the State of Uttar Pradesh has preferred the presentappeal.

2. The facts leading to the present appeal in nutshell are as under:-G

2.1 One Hari Singh (PW-5) lodged the F.I.R. on 04.12.1980 at05.15 PM at P.S. Firozabad (South) District, Agra, against the respondentherein – Subhash @ Pappu, Pramod, Munna Lal and three unknownboys. It was alleged in the F.I.R. that on 04.12.1980 at 2:00 PM, Subhash@ Pappu, Pramod and Munna Lal along with three unknown personsHcame to the shop of one Hari Om situated in Gallamandi Firozabad, armed with sticks, hockey stick and knife. They demanded to providethem sugar and kerosene oil without having any ration card but Bangali(the deceased) present at the shop in the capacity of a servant. refusedto provide them those articles, then one of the persons gave him a knifeblow and some other a hockey stick blow. Therefore, it was alleged thatthe named accused persons and other three unknown persons havecommitted the offence under Sections 147, 148, 323, 324 IPC. Bengali,the victim made his dying declaration on 05.12.1980 at 11:40 AM beforeAdditional City Magistrate Agra at S.N. Hospital Agra, where the victimBengali was taking treatment. That the injured Bengali died on 04.01.1981.

2.2 After the conclusion of the investigation, the InvestigatingOfficer filed the charge sheet against all the accused persons on25.01.1981 for the aforesaid offences. However, Subhash @ Pappuand other co-accused named in the F.I.R. were shown absconding. Theaccused Subhash @ Pappu thereafter surrendered before the Court on06.02.1981. As the case was exclusively triable by the Court of Sessions,the case was committed to the court of IVth Additional Sessions Judge,Agra, which was numbered as Sessions Case No. 361 of 1982. All theaccused came to be tried by the Sessions Court for the aforesaidoffences. Accused Subhash @ Pappu was charged for the offencesunder Section 148 and Section 302 of IPC. The other co-accused Pramodand Munna Lal were charges for the offences under Sections 147, 149and 302 IPC. As all the accused denied having committed any offenceand denied the charges, they were put to trial. To bring home the charges,the prosecution examined in all 10 witnesses as under:- A

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A2.3 PW-5, the informant turned hostile. Thereafter the statementof the accused under Section 313 of Code of Criminal Procedure(Cr.P.C.) was recorded. In the statement under Section 313 Cr.P.C., itwas the case on behalf of the accused that in the dying declaration, thename of Pappu s/o Baijnath is mentioned and he is Subhash @ Pappu.However, it was not his case that in the village, there is one other personBnamed Pappu s/o Baijnath. It is not in dispute that Subhash @ Pappu isson of Baijnath. Relying upon the dying declaration, the Trial Courtconvicted the accused Subhash @ Pappu for the offences punishableunder Section 302 and 148 IPC. The Trial Court, however, acquitted theaccused Pramod and Munna Lal. The Trial Court awarded the sentenceCof life imprisonment for the offence punishable under Section 302 IPCand three years R.I. for the offence under Section 148 IPC so far asaccused Subhash @ Pappu is concerned.

2.4 Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence convicting the accused Subhash @ Pappu,Dthe accused Subhash @ Pappu preferred the Criminal Appeal beforethe High Court. By the impugned judgment and order, the High Courthas acquitted the accused Subhash @ Pappu for the offence punishableunder Section 302 IPC as well as Section 148 IPC mainly on the groundthat in the dying declaration it was not stated, who inflicted the knifeblow in the stomach of the deceased and on the contrary, it was statedEthat Pappu s/o Baijnath hit him by a hockey stick. Therefore, the HighCourt opined that as there is no allegation against Subhash @ Papputhat he inflicted the knife blow in the stomach of the deceased and thatthere are contradictions in the deposition of the witnesses examined onwho gave the knife blow in the stomach of the deceased, the high CourtFhas acquitted the accused.2.5 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the State has preferred the presentappeal.

3. Ms. Garima Prasad, learned Senior Advocate appearing onGbehalf of the State has vehemently submitted that in the facts andcircumstances of the case, the High Court has committed a grave errorin acquitting the accused for the offence under Section 302 and Section148 IPC.

3.1 It is vehemently submitted by Ms. Garima Prasad, learnedHSenior Advocate appearing on behalf of the State that in the dying declaration dated 05.12.1980 recorded by Assistant Divisional TransportOfficer, it was specifically mentioned that the respondent – accusedwas present alongwith others and as such has actively participated incommission of the offence. It is submitted that therefore, the respondentcan be convicted for the offence under Section 302 IPC read with Section149 IPC.

3.2 It is further submitted that initially PW-5 in the complaintspecifically alleged that respondent - Subhash @ Pappu inflicted theblow by knife, which was a deadly weapon and therefore, the respondentwas charged for the offence under Section 148 IPC also.

3.3 It is submitted that however, thereafter PW-5, the originalcomplainant/informant turned hostile. It is submitted that in any case,there was a specific charge framed against the respondent -accusedthat he was a member of an unlawful assembly and in prosecution of acommon object of that assembly to murder (injure) Bengali committedthe offence of rioting. It is therefore submitted that merely because awrong section was used while framing the charge and the respondentwas not specifically charged for the offence under Section 149, thatshall not vitiate the trial and the conviction and sentence imposed by theTrial Court.

3.4 It is further submitted that it is an admitted position that thedeceased Bengali died due to a knife injury. That though in the dyingdeclaration it was stated that the respondent – accused - Subhash @Pappu hit him by hockey stick, in that case also, being a part of theunlawful assembly, the respondent, who was a part of the unlawfulassembly and committed the offence in furtherance of the common objectto kill the deceased Bengali, still the respondent can be convicted for theoffence under Section 302 r/w Section 149 IPC.

3.5 It is further submitted by Ms. Prasad, learned Senior Advocateappearing on behalf of the State that the High Court has acquitted therespondent – accused for the offence under Section 148 on the groundthat as two other co-accused were acquitted and therefore, the respondent-accused - Subhash @ Pappu cannot be said to be part of the unlawfulassembly being less than five persons. It is submitted that in the presentcase, even as per the dying declaration, six to seven persons participatedin the commission of the offence. It is therefore submitted that merelybecause subsequently, only three persons were chargesheeted and out A

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Aof which, two came to be acquitted, it shall not bring the case out of thescope of Section 148 IPC. It is submitted that therefore, the High Courthas committed a grave error in acquitting the respondent accused evenfor the offence under Section 148 IPC. In support of the above submission,reliance is placed upon the decision of this Court in the case of RohtasVs. State of Haryana, (2020) 14 SCALE 14.B

3.6 Ms. Garima Prasad, learned Senior Advocate appearing onbehalf of the State has next submitted that the High Court has materiallyerred in acquitting the respondent accused on the contradictions in theF.I.R./complaint given by PW-5 that the respondent - Subhash @ Pappuinflicted the knife blow and that in the dying declaration, the deceasedChas stated that Pappu s/o Baijnath hit him by a hockey stick. It is submittedthat once PW-5, the informant was declared hostile, nothing mentionedin the F.I.R./complaint should have been considered. That, as a resultthe only evidence, which was available was the dying declaration inwhich it was specifically stated that Pappu hit him by a hockey stick. ItDis submitted that therefore being a part of the unlawful assembly andsome person inflicted the knife blow in the stomach of the deceased,who died due to the injury by knife blow, still the respondent accusedcan be convicted for the offence under Section 302 r/w Section 149 aswell as Section 148 of IPC. It is submitted that as such the Trial courtrightly convicted the accused for the offences under Sections 302 andE148 relying upon the dying declaration dated 05.12.1980. It is submittedthat in the impugned judgment and order the High court has not as suchdoubted the credibility of the dying declaration recorded by AssistantDivisional Transport Officer. It is submitted that therefore, there can bea conviction based on the dying declaration, which has been establishedFand proved by the prosecution.

3.7 Making the above submissions and relying upon the decisionsof this Court in the case of Fainul Khan Vs. State of Jharkhand,(2019) 9 SCC 549; Annareddy Sambasiva Reddy Vs. State ofAndhra Pradesh, (2009) 12 SCC 546; Alister Anthony PareiraGVs. State of Maharashtra, (2012) 2 SCC 648 and Rohtas Vs. Stateof Haryana, (2020) 14 SCALE 14, it is prayed to allow the presentappeal and quash and set aside the impugned judgment and order passedby the High Court.

4. Present appeal is vehemently opposed by Shri Deepak Goel,Hlearned Advocate appearing on behalf of the respondent accused.

4.1 It is vehemently submitted by learned counsel appearing onbehalf of the accused that in the facts and circumstances of the case,the High Court has not committed any error in acquitting the accusedfor the offence under Section 302 and Section 148 IPC. It is contendedthat in the F.I.R., it was alleged that Subhash @ Pappu inflicted theknife blow and in the dying declaration, it was stated that Pappu hit by ahockey and therefore as there are material contradictions, the High Courthas rightly acquitted the accused.

4.2 It is further contended by learned counsel appearing on behalfof the accused that even in the dying declaration nothing was mentionedas to who, in fact, inflicted the knife blow. That on the contrary, it wasspecifically stated in the dying declaration that Pappu hit by a hockey.Therefore, in absence of any specific allegations against the accusedinflicting the knife blow and the accused was not charged for the offenceunder Section 149 IPC, the accused cannot be convicted for the offenceunder Section 302 with the aid of Section 149 IPC.

4.3 It is further urged by learned counsel appearing on behalf ofthe accused that, even as stated in the dying declaration, Pappu hit thedeceased by hockey, which cannot be said to be a deadly weapon andconsidering the fact that only three accused were charge sheeted/chargedand out of which two accused came to be acquitted, the respondentaccused cannot be convicted for the offence under Section 148 IPC.

4.4 It is further submitted by learned counsel appearing for theaccused that even otherwise, considering the fact that the dyingdeclaration was recorded on the very next day and nothing is on recordto the effect that at that time his condition was serious, therefore, therewas no reason at all to record the dying declaration on 05.12.1980. Hence,the said dying declaration is not reliable and may not to be considered. Inthis context, reliance is placed on the decision of this Court in the case ofLaxman Vs. State of Maharashtra, (2002) 6 SCC 710.

4.5 It is submitted by learned counsel appearing for the accusedthat in the present case, the weapon – hockey stick alleged to have beenused by the respondent accused has not been recovered.

4.6 It is further submitted by learned counsel appearing on behalfof the accused that even otherwise, in the present case, the deceaseddied after thirty days and while taking treatment in the hospital he diedbecause of septicemia, the case may hence fall under Section 304 Part A

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AII IPC. Reliance is placed on the decision of this Court in the case ofSanjay Vs. State of Uttar Pradesh, (2016) 3 SCC 62. Therefore, it isalternatively submitted to alter the conviction from Section 302 IPC toSection 304 Part II IPC.

In rejoinder, Ms. Garima Prasad, learned Senior AdvocateBappearing on behalf of the State has submitted that even in the case ofSanjay (supra) relied upon by the learned counsel appearing on behalfof the accused, the conviction was altered to Section 304 Part I IPC.

5. Heard the learned counsel for the respective parties at length.

6. At the outset, it is required to be noted that as per the dyingCdeclaration recorded by Assistant Divisional Transport Officer on05.12.1980, six/seven persons attacked the deceased. Even in the F.I.R.,lodged by Hari Singh (PW-5), it was specifically mentioned that six personsattacked his brother Bengali, who assaulted him with hockey stick andknife. It is true that Hari Singh (PW-5) – informant turned hostile.DHowever, at the same time, we see no reason to doubt the dyingdeclaration recorded by Assistant Divisional Transport Officer on05.12.1980. The submission on behalf of the accused relying upon thedecision of this Court in the case of Laxman (supra) that the day onwhich the dying declaration was recorded, there was no extremeemergency and/or his condition was not so serious or there was anyEdanger to his life and therefore there was no reason and/or cause torecord the dying declaration and therefore the dying declaration is notbelievable, has no substance. In the case of Laxman (supra), whichhas been relied upon by learned counsel appearing on behalf of theaccused there is no absolute proposition of law laid down by this CourtFthat, 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 dyingdeclaration should be discarded as a whole. In the present case, as thedeceased was having a stab injury by a knife, there was a possibility ofdanger to his life and therefore, by way of prudence, if the dying declarationwas recorded on 05.12.1980, there is no reason to doubt the dyingGdeclaration, which was recorded by Assistant Divisional TransportOfficer. Therefore, in our view the Trial Court has rightly relied uponand/or believed the dying declaration recorded by Assistant DivisionalTransport Officer on 05.12.1980.

6.1 From the dying declaration it emerges that six to seven personsHattacked the deceased including Pappu s/o Baijnath. Thus, from the dying declaration, prosecution has been successful in establishing and provingthat Subhash @ Pappu s/o Baijnath was present at the time of theincident; he was part of the unlawful assembly and that he participatedin the commission of offence.

7. It is true that while framing the charge, the respondent accusedwas not specifically charged for the offence under Section 302 r/w Section149 IPC. However, it is to be noted that while framing the charge, theTrial Court specifically observed that accused did commit murder byknowingly and intentionally causing death of Bengali and therebycommitted the offence punishable under Section 302 IPC (vide chargeframed 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 mentionedthat the accused and others were members of an unlawful assemblyand in carrying out the common object of that assembly i.e. to murderBengali, committed the offence of rioting with a deadly weapon, namely,knife to stab Bengali and thereby committed an offence punishable underSection 148 IPC. The charges framed against the accused on 04.05.1983and 06.10.1983 read as under:- “In the Court of Xth Addl. Sessions Judge, Agra S.T. No.361/1982

CHARGE

I, Gangoo Ram, Xth Addl. Session Judge, Agra herebycharge you Subhash Chand @ Pappu as follows:

-Firstly:That you on 04.12.1980 at 3.00 p.m. at Galle Ki Mandiwithin Police Circle P.S. Firozabad South were member of unlawfulassembly and did in prosecution of common object of that assemblyto murder (injure) Bengali committed the offence of rioting with adeadly weapon knife to stab Bengali and thereby committed anoffence punishable under Section 148 I.P.C. within cognizance ofthis Court.

And hereby direct that you be tried by this Court on thesaid charge.

Xth Addl. Session Judge

Agra

Dated: May 4[th], 1983

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Charge read over and explained in Hindi.

Accused not pleaded guilty to be tried.

Xth Addl. Sessions Judge

Agra

Dated: May 4[th], 1983

In the Court of IX Adj. Se.Judge AgraS.T. No. 361/82

I, G.L. Gupta IX Adj.SJ. Agra do hereby charge you Subhash @ Pappu as follows:- That you on 4.12.80 at about 3 P.M. in Mohalla Galle KiMandi in Firozabad town, within the circle of PS Firozabad SouthDistt. Agra, did commit murder by knowingly and intentionallycausing the death of Bengali and thereby committed an offencepunishable u/s 302 IPC and within the cognizance of this court.

And I hereby direct that you be tried by this court on thesaid charge.

Dated: Oct.6, 1983

IX Adj.S.J. Agra

Charge read over and explained to the accused.

In (Hindi) who pleaded not guilty & claimed to be tried.

IX Adj.S.J. Agra”

7.1 From the aforesaid charges framed it can safely be said thatthe ingredients for the offence under Section 302 r/w Section 149 andSection 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 thecharge by not specifically charging under Section 149 IPC. Therefore,Section 464 Cr.P.C. is attracted to the instant case. Section 464 Cr.P.C.reads as under: - “464. Effect of omission to frame, or absence of, or errorin, charge.—(1)No finding, sentence or order by a Court ofcompetent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omissionor irregularity in the charge including any misjoinder of charges,unless, in the opinion of the Court of appeal, confirmation orrevision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of opinionthat a failure of justice has in fact been occasioned, it may- (a)in the case of an omission to frame a charge, order thata charge be framed and that the trial be recommended fromthe point immediately after the framing of the charge; (b)in the case of an error, omission or irregularity in thecharge, direct a new trial to be had upon a charge framedin whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of thecase are such that no valid charge could be preferred against theaccused in respect of the facts proved, it shall quash theconviction.”

7.2 While interpreting Section 464 of Cr.P.C., this Court in thecase of Fainul Khan (supra) has observed and held that in case ofomission or error in framing a charge, the accused has to show failure ofjustice/prejudice caused thereby.

7.3 In the case of Annareddy Sambasiva Reddy (supra), itwas submitted on behalf of the accused that in the absence of a specificcharge under Section 149, accused persons cannot be convicted underSection 302 r/w Section 149 as Section 149 creates a distinct and separateoffence. This Court negated the said submission and observed and heldthat mere non-framing of a charge under Section 149 on face of chargesframed against appellant would not vitiate the conviction in the absenceof any prejudice caused to them. Considering Section 464 Cr.P.C. it isobserved and held that mere defect in language, or in narration or in theform of charge would not render conviction unsustainable, provided theaccused is not prejudiced thereby. It is further observed that if ingredientsof the section are obvious or implicit in the charge framed then convictionin regard thereto can be sustained, irrespective of the fact that saidsection has not been mentioned.

8. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand and on noting the contents of A

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Athe charges framed against the accused on 04.05.1983 and on 06.10.1983it shows that the ingredients of Section 149 IPC are satisfied. Therefore,it cannot be said that the accused is prejudiced by non-mention of Section149 IPC in the charge.

9. Now, so far as the submission on behalf of the accused that asBthe weapon – hockey stick alleged to have been used by the accused isnot recovered and therefore he may not be convicted is concerned, theaforesaid has no substance. Merely because the weapon used is notrecovered cannot be a ground not to rely upon the dying declaration,which was recorded before the Executive Magistrate, which has beenproved by the prosecution.C

10. Now, the question whether the accused can be convicted forthe offence punishable under Section 302 with the aid of Section 149IPC is concerned, it is true that the prosecution has not established andproved, who actually inflicted the knife blow. However, from the medicalevidence on record and even from the deposition of the doctors, it hasDbeen established and proved by the prosecution that the deceasedsustained an injury by knife blow, which is inflicted by one of the six toseven persons, who participated in commission of the offence. From thedying declaration it has been established and proved that the respondent– accused Subhash @ Pappu was part of the unlawful assembly, whoEparticipated in the commission of the offence. Pappu s/o Baijnath –respondent herein was specifically named by the deceased in the dyingdeclaration. Therefore, even if the role attributed to the respondent -accused was that of hitting the deceased by a hockey stick, in that casealso for the act of other persons, who were part of the unlawful assemblyof inflicting the knife blow, the respondent accused can be held guilty ofFhaving committed the murder of deceased Bengali, with the aid of Section149 IPC.

11. Now, the next question, which is posed for consideration ofthis Court is whether respondent -accused can be convicted for theoffence punishable under Section 302 IPC r/w Section 149 IPC whenGthe deceased died due to septicemia after a period of thirty days.

11.1 Considering the decision of this Court in the case of Sanjay(supra), the conviction of the respondent accused for the offencepunishable under Section 302 r/w Section 149 IPC is not warranted andthe case may fall within Section 304 Part I of the IPC.H

12. Now, so far as the conviction of the respondent accused forthe offence under Section 148 IPC is concerned, it is the case on behalfof the respondent accused that in the facts and circumstance of thecase, Section 148 shall not be attracted as the number of accusedchargesheeted/charged/tried were less than five in number, the samehas no substance. It to be noted that right from very beginning and evenso stated in the dying declaration six to seven persons attacked thedeceased. Therefore, involvement of six to seven persons in commissionof the offence has been established and proved. Merely because threepersons were chargesheeted/charged/tried and even out of three tried,two persons came to be acquitted cannot be a ground to not to convictthe respondent accused under Section 148 IPC.

12.1 It is the submission on behalf of the accused that the weaponalleged to have been used by the respondent accused was said to be ahockey stick, which cannot be said to be a deadly weapon and therefore,the respondent – accused cannot be punishable for the offence underSection 148 also has no substance. As per Section 148 of IPC, whoeveris guilty of rioting, being armed with a deadly weapon or with anythingwhich used as a weapon of offence, is likely to cause death, can bepunished under that Section. The term “rioting” is defined under Section146 IPC. As per Section 146, whenever force or violence is used by anunlawful assembly, or by any member thereof, in prosecution of thecommon object of such assembly, every member of such assembly isguilty of the offence of rioting.

In the present case, six to seven persons were part of the unlawfulassembly and they used force or violence and one of them used a deadlyweapon, namely, knife and therefore, being a part of the unlawfulassembly, the respondent accused can be held to be guilty for the offenceof rioting and for the use of force/violence as a member of such anunlawful assembly. Therefore, the respondent was rightly convicted bythe Trial Court for the offence under Section 148 IPC.

13. In view of the above and for the reasons stated above, presentappeal succeeds in part. The impugned judgment and order passed bythe High Court acquitting the accused for the offence punishable underSection 302 IPC is hereby quashed and set aside. The respondent accusedis held guilty for the offence under Section 304 Part I r/w Section 149IPC and for the offence under Section 148 IPC.

AB

C

D

E

F

G

H

[2022] 5 S.C.R.

AThe respondent accused is sentenced to undergo ten years R.I.for the offence punishable under Section 304 Part I r/w Section 149 IPCwith a fine of Rs. 5,000/- and in default to undergo further six monthsR.I.

The respondent accused is also sentenced to undergo three yearsBR.I. for the offence under Section 148 IPC with fine of Rs. 5,000/- andin default to undergo further two months R.I.

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

C

Present appeal is allowed accordingly to the aforesaid extent only.However, in the facts and circumstances of the case, there shall be noorder as to costs.

Pending application, if any, also stands disposed of.

D

Devika Gujral

(Assisted by : Shevali Monga, LCRA)

Appeal partly allowed.

E

F

G

H