The State Of Uttar Pradesh vs Subhash @ Pappu

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 436 OF 2022

The State of Uttar Pradesh …Appellant(s)

Versus

Subhash @ Pappu …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. 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

the said appeal preferred by the respondent – original accused and has

acquitted the respondent for the offences under Section 302 and 148 of

Indian Penal Code (IPC), the State of Uttar Pradesh has preferred the

present appeal.

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

2.1 One Hari Singh (PW-5) lodged the F.I.R. on 04.12.1980 at 05.15

PM at P.S. Firozabad (South) District, Agra, against the respondent Signature Not Verified Digitally signed by R Natarajan Date: 2022.04.01 16:49:44 IST Reason:

herein – Subhash @ Pappu, Pramod, Munna Lal and three unknown

1 boys. 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

persons came to the shop of one Hari Om situated in Gallamandi

Firozabad, armed with sticks, hockey stick and knife. They demanded to

provide them sugar and kerosene oil without having any ration card but

Bangali (the deceased) present at the shop in the capacity of a servant.

refused to provide them those articles, then one of the persons gave him

a knife blow and some other a hockey stick blow. Therefore, it was

alleged that the named accused persons and other three unknown

persons have committed the offence under Sections 147, 148, 323, 324

IPC. Bengali, the victim made his dying declaration on 05.12.1980 at

11:40 AM before Additional City Magistrate Agra at S.N. Hospital Agra,

where the victim Bengali was taking treatment. That the injured Bengali

died on 04.01.1981.

2.2 After the conclusion of the investigation, the Investigating Officer

filed the charge sheet against all the accused persons on 25.01.1981 for

the aforesaid offences. However, Subhash @ Pappu and other co-

accused named in the F.I.R. were shown absconding. The accused

Subhash @ Pappu thereafter surrendered before the Court on

06.02.1981. 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

2 of 1982. All the accused came to be tried by the Sessions Court for the

aforesaid offences. Accused Subhash @ Pappu was charged for the

offences under Section 148 and Section 302 of IPC. The other co-

accused Pramod and Munna Lal were charges for the offences under

Sections 147, 149 and 302 IPC. As all the accused denied having

committed any offence and denied the charges, they were put to trial. To

bring home the charges, the prosecution examined in all 10 witnesses as

under:-

Name Deposition PW-1 Dr. Vijay Kumar Who conducted the medical examination of the deceased Bengali PW-2 Head Constable, Shri Who had written the First Gajendra Information Report as stated by Hari Singh, PW-5 PW-3 Shri V.N. Saxena Technician, S.N Hospital, Agra PW-4 Shri Ram Ratan Ojha Pharmacist, N.N. M. Hospital, Firozabad PW-5 Hari Singh Informant PW-6 Munna Lal PW-7 Shri Bhopat Singh PW-8 Dr. Surendra Kumar Doctor, who certified Bengali Agrawal was in his senses and fit at the time of recording of the dying declaration PW-9 Shri Yudhishthir Additional Divisional Sharma Transport Officer, who recorded the dying declaration PW-10 Police Constable, Daya Ram

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2.3 PW-5, the informant turned hostile. Thereafter the statement of

the accused under Section 313 of Code of Criminal Procedure (Cr.P.C.)

was recorded. In the statement under Section 313 Cr.P.C., it was the

case on behalf of the accused that in the dying declaration, the name 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 person

named Pappu s/o Baijnath. It is not in dispute that Subhash @ Pappu is

son of Baijnath. Relying upon the dying declaration, the Trial Court

convicted the accused Subhash @ Pappu for the offences punishable

under Section 302 and 148 IPC. The Trial Court, however, acquitted the

accused Pramod and Munna Lal. The Trial Court awarded the sentence

of life imprisonment for the offence punishable under Section 302 IPC

and three years R.I. for the offence under Section 148 IPC so far as

accused Subhash @ Pappu is concerned.

2.4 Feeling aggrieved and dissatisfied with the judgment and order of

conviction and sentence convicting the accused Subhash @ Pappu, the

accused Subhash @ Pappu preferred the Criminal Appeal before the

High Court. By the impugned judgment and order, the High Court has

acquitted the accused Subhash @ Pappu for the offence punishable

under Section 302 IPC as well as Section 148 IPC mainly on the ground

that in the dying declaration it was not stated, who inflicted the knife blow

in the stomach of the deceased and on the contrary, it was stated that

4 Pappu s/o Baijnath hit him by a hockey stick. Therefore, the High Court

opined that as there is no allegation against Subhash @ Pappu that he

inflicted the knife blow in the stomach of the deceased and that there are

contradictions in the deposition of the witnesses examined on who gave

the knife blow in the stomach of the deceased, the high Court has

acquitted the accused.

2.5 Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, the State has preferred the present

appeal.

3. Ms. Garima Prasad, learned Senior Advocate appearing on behalf

of the State has vehemently submitted that in the facts and

circumstances of the case, the High Court has committed a grave error

in acquitting the accused for the offence under Section 302 and Section

148 IPC.

3.1 It is vehemently submitted by Ms. Garima Prasad, learned Senior

Advocate appearing on behalf of the State that in the dying declaration

dated 05.12.1980 recorded by Assistant Divisional Transport Officer, it

was specifically mentioned that the respondent – accused was present

alongwith others and as such has actively participated in commission of

the offence. It is submitted that therefore, the respondent can be

5 convicted for the offence under Section 302 IPC read with Section 149

IPC.

3.2 It is further submitted that initially PW-5 in the complaint

specifically alleged that respondent - Subhash @ Pappu inflicted the

blow by knife, which was a deadly weapon and therefore, the

respondent was charged for the offence under Section 148 IPC also.

3.3 It is submitted that however, thereafter PW-5, the original

complainant/informant turned hostile. It is submitted that in any case,

there was a specific charge framed against the respondent -accused that

he was a member of an unlawful assembly and in prosecution of a

common object of that assembly to murder (injure) Bengali committed

the offence of rioting. It is therefore submitted that merely because a

wrong section was used while framing the charge and the respondent

was not specifically charged for the offence under Section 149, that shall

not vitiate the trial and the conviction and sentence imposed by the Trial

Court.

3.4 It is further submitted that it is an admitted position that the

deceased Bengali died due to a knife injury. That though in the dying

declaration it was stated that the respondent – accused - Subhash @

Pappu hit him by hockey stick, in that case also, being a part of the

unlawful assembly, the respondent, who was a part of the unlawful

6 assembly and committed the offence in furtherance of the common

object to kill the deceased Bengali, still the respondent can be convicted

for the offence under Section 302 r/w Section 149 IPC.

3.5 It is further submitted by Ms. Prasad, learned Senior Advocate

appearing on behalf of the State 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 - Subhash @ Pappu cannot be said to be part of

the unlawful assembly being less than five persons. It is submitted that

in the present case, even as per the dying declaration, six to seven

persons participated in the commission of the offence. It is 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 is submitted that

therefore, the High Court has committed a grave error in acquitting the

respondent accused even for 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 Rohtas Vs. State of Haryana, (2020) 14

SCALE 14.

7 3.6 Ms. Garima Prasad, learned Senior Advocate appearing on behalf

of the State has next submitted that the High Court has materially erred

in acquitting the respondent accused on the contradictions in the

F.I.R./complaint given by PW-5 that the respondent - Subhash @ Pappu

inflicted the knife blow and that in the dying declaration, the deceased

has stated that Pappu s/o Baijnath hit him by a hockey stick. It is

submitted that once PW-5, the informant was declared hostile, nothing

mentioned in the F.I.R./complaint should have been considered. That,

as a result the only evidence, which was available was the dying

declaration in which it was specifically stated that Pappu hit him by a

hockey stick. It is submitted that 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 is submitted that as such the Trial

court rightly convicted the accused for the offences under Sections 302

and 148 relying upon the dying declaration dated 05.12.1980. It is

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 is submitted that therefore,

there can be a conviction based on the dying declaration, which has

been established and proved by the prosecution.

8 3.7 Making the above submissions and relying upon the decisions of

this Court in the case of Fainul Khan Vs. State of Jharkhand, (2019) 9

SCC 549; Annareddy Sambasiva Reddy Vs. State of Andhra

Pradesh, (2009) 12 SCC 546; Alister Anthony Pareira Vs. State of

Maharashtra, (2012) 2 SCC 648 and Rohtas Vs. State of Haryana,

(2020) 14 SCALE 14, it is prayed to allow the present appeal and quash

and set aside the impugned judgment and order passed by the High

Court.

4. Present appeal is vehemently opposed by Shri Deepak Goel,

learned Advocate appearing on behalf of the respondent accused.

4.1 It is vehemently submitted by learned counsel appearing on behalf

of the accused that in the facts and circumstances of the case, the High

Court has not committed any error in acquitting the accused for the

offence under Section 302 and Section 148 IPC. It is contended that in

the F.I.R., it was alleged that Subhash @ Pappu inflicted the knife blow

and in the dying declaration, it was stated that Pappu hit by a hockey

and therefore as there are material contradictions, the High Court has

rightly acquitted the accused.

4.2 It is further contended by learned counsel appearing on behalf of

the accused that even in the dying declaration nothing was mentioned

9 as to who, in fact, inflicted the knife blow. That on the contrary, it was

specifically stated in the dying declaration that Pappu hit by a hockey.

Therefore, in absence of any specific allegations against the accused

inflicting the knife blow and the accused was not charged for the offence

under Section 149 IPC, the accused cannot be convicted for the offence

under Section 302 with the aid of Section 149 IPC.

4.3 It is further urged by learned counsel appearing on behalf of the

accused that, even as stated in the dying declaration, Pappu hit the

deceased by hockey, which cannot be said to be a deadly weapon and

considering the fact that only three accused were charge

sheeted/charged and out of which two accused came to be acquitted,

the respondent accused cannot be convicted for the offence under

Section 148 IPC.

4.4 It is further submitted by learned counsel appearing for the

accused 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, there

was 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. In this context, reliance is placed on the decision of this

10 Court in the case of Laxman Vs. State of Maharashtra, (2002) 6 SCC

710.

4.5 It is submitted by learned counsel appearing for the accused that

in the present case, the weapon – hockey stick alleged to have been

used by the respondent accused has not been recovered.

4.6 It is further submitted by learned counsel appearing on behalf of

the accused that even otherwise, in the present case, 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 is placed on the decision of this Court in the case of

Sanjay Vs. State of Uttar Pradesh, (2016) 3 SCC 62. Therefore, it is

alternatively submitted to alter the conviction from Section 302 IPC to

Section 304 Part II IPC.

In rejoinder, Ms. Garima Prasad, learned Senior Advocate

appearing on behalf of the State has submitted that even in the case of

Sanjay (supra) relied upon by the learned counsel appearing on behalf

of the accused, the conviction was altered to Section 304 Part I IPC.

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

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6. At the outset, it is required to be noted that as per the dying

declaration recorded by Assistant Divisional Transport Officer on

05.12.1980, six/seven persons attacked the deceased. Even in the

F.I.R., lodged by Hari Singh (PW-5), it was specifically mentioned that six

persons attacked his brother Bengali, who assaulted him with hockey

stick and knife. It is true that Hari Singh (PW-5) – informant turned

hostile. However, at the same time, we see no reason to doubt the dying

declaration recorded by Assistant Divisional Transport Officer on

05.12.1980. The submission on behalf of the accused relying upon the

decision of this Court in the case of Laxman (supra) 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. In the case of Laxman (supra), which

has been relied upon by learned counsel appearing on behalf of the

accused 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 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

12 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.

6.1 From the dying declaration it emerges that six to seven persons

attacked the deceased including Pappu s/o Baijnath. Thus, from the

dying declaration, prosecution has been successful in establishing and

proving that Subhash @ Pappu s/o Baijnath was present at the time of

the incident; he was part of the unlawful assembly and that he

participated in the commission of offence.

7. 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

13 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 thereby committed an offence

punishable under Section 148 IPC. The charges framed against the

accused on 04.05.1983 and 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 hereby charge you Subhash Chand @ Pappu as follows:

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

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

Xth Addl. Session Judge Agra th Dated: May 4 , 1983

Charge read over and explained in Hindi.

Accused not pleaded guilty to be tried.

Xth Addl. Sessions Judge Agra Dated: May 4th, 1983

14 In the Court of IX Adj. Se.Judge Agra S.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 Ki Mandi in Firozabad town, within the circle of PS Firozabad South Distt. Agra, did commit murder by knowingly and intentionally causing the death of Bengali and thereby committed an offence punishable u/s 302 IPC and within the cognizance of this court.

And I hereby direct that you be tried by this court on the said 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 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.

Therefore, Section 464 Cr.P.C. is attracted to the instant case. Section

464 Cr.P.C. reads as under: -

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“464. Effect of omission to frame, or absence of, or error in, charge.-- (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

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

7.2 While interpreting Section 464 of Cr.P.C., this Court in the case of

Fainul Khan (supra) has observed and held that in case of omission or

error in framing a charge, the accused has to show failure of

justice/prejudice caused thereby.

7.3 In the case of Annareddy Sambasiva Reddy (supra), it was

submitted on behalf of the accused that in the absence of a specific

16 charge under Section 149, accused persons cannot be convicted under

Section 302 r/w Section 149 as Section 149 creates a distinct and

separate offence. This Court negated the said submission and observed

and held 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. 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.

8. Applying the law laid down by this Court in the aforesaid decisions

to the facts of the case on hand and on noting the contents of the

charges framed against the accused on 04.05.1983 and on 06.10.1983 it

shows that the ingredients of Section 149 IPC are satisfied. Therefore, it

cannot be said that the accused is prejudiced by non-mention of Section

149 IPC in the charge.

9. Now, so far as the submission on behalf of the accused that as the

weapon – hockey stick alleged to have been used by the accused is not

recovered and therefore he may not be convicted is concerned, the

17 aforesaid has no substance. 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.

10. Now, the question whether the accused can be convicted for the

offence punishable under Section 302 with the aid of Section 149 IPC is

concerned, 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

18 can be held guilty of having committed the murder of deceased Bengali,

with the aid of Section 149 IPC.

11. Now, the next question, which is posed for consideration of this

Court is 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

11.1 Considering the decision of this Court in the case of Sanjay

(supra), 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.

12. Now, 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

19 of three tried, two persons came to be acquitted cannot be a ground to

not to convict the respondent accused under Section 148 IPC.

12.1 It is the submission on behalf of the accused that the weapon

alleged to have been used by the respondent accused was said to be a

hockey stick, which cannot be said to be a deadly weapon and therefore,

the respondent – accused cannot be punishable for the offence under

Section 148 also has no substance. 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.

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. Therefore, the respondent was rightly convicted

by the Trial Court for the offence under Section 148 IPC.

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13. In view of the above and for the reasons stated above, present

appeal succeeds in part. The impugned judgment and order passed by

the High Court acquitting the accused for the offence punishable under

Section 302 IPC is hereby quashed and set aside. The respondent

accused is held guilty for the offence under Section 304 Part I r/w

Section 149 IPC and for the offence under Section 148 IPC.

The respondent accused is sentenced to undergo ten years R.I. for

the 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.

The respondent accused is also sentenced to undergo three years

R.I. for the offence under Section 148 IPC with fine of Rs. 5,000/- and in

default to undergo further two months R.I.

Both the sentences to run concurrently. The respondent to

surrender within a period of four weeks to undergo the remaining part of

the sentence as per the present judgment and order.

Present appeal is allowed accordingly to the aforesaid extent only.

However, in the facts and circumstances of the case, there shall be no

order as to costs.

Pending application, if any, also stands disposed of.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. APRIL 01, 2022. [B.V. NAGARATHNA]

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