THE STATE OF UTTAR PRADESHversusSUBHASH @ PAPPU

832            SUPREME COURT
                         [2022]REPORTS
                                5 S.C.R. 832               [2022] 5 S.C.R.


A                    THE STATE OF UTTAR PRADESH
                                       v.
                            SUBHASH @ PAPPU
                       (Criminal Appeal No. 436 of 2022)
B                               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
C
      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
D     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
E
      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/
F     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
G
      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
H
                                      832
     THE STATE OF UTTAR PRADESH v. SUBHASH @ PAPPU                        833


attacked the deceased – Even in FIR, it was mentioned that six            A
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        B
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        C
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        D
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      E
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               F
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              G
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]
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834           SUPREME COURT REPORTS                     [2022] 5 S.C.R.


A           2. While framing the charge, the respondent accused was
      not specifically charged for the offence under Section 302 r/w
      Section 149 IPC. From the 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
B
      defective framing of the charge by not specifically charging under
      Section 149 IPC. Considering Section 464 Cr.P.C. it is observed
      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
C     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.
      Applying the law laid down by this Court to the facts of the case
      on hand and on noting the contents of the charges framed against
      the accused it shows that the ingredients of Section 149 IPC are
D
      satisfied. Therefore, it cannot be said that the accused is
      prejudiced 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 for
      the offence punishable under Section 302 with the aid of Section
E     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
F     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
G     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
H
     THE STATE OF UTTAR PRADESH v. SUBHASH @ PAPPU                    835


committed the murder of deceased Bengali, with the aid of Section     A
149 IPC. 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. Considering the decision of this Court in the case of
                                                                      B
Sanjay, 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.
[Paras 10, 11, 11.1][846-C-H]
       4. It is the submission on behalf of the accused that the
weapon alleged to have been used by the respondent accused            C
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          D
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,    E
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      F
unlawful assembly. Therefore, the respondent was rightly
convicted by the Trial Court for the offence under Section 148
IPC. [Para 12.1][847-C-G]
      Fainul Khan v. State of Jharkhand, (2019) 9 SCC 549;
      Annareddy Sambasiva Reddy v. State of Andhra                    G
      Pradesh, (2009) 12 SCC 546 : [2009] 6 SCR 755;
      Sanjay v. State of Uttar Pradesh, (2016) 3 SCC 62
      – relied on.


                                                                      H
836            SUPREME COURT REPORTS                           [2022] 5 S.C.R.


A           Rohtas v. State of Haryana (2020) 14 SCALE 14; Alister
            Anthony Pareira v. State of Maharashtra (2012) 2 SCC
            648 : [2012] 1 SCR 145; Laxman v. State of
            Maharashtra (2002) 6 SCC 710 – referred to.
                              Case Law Reference
B     (2019) 9 SCC 549                  relied on                 Para 3.7
      [2009] 6 SCR 755                  relied on                 Para 3.7
      [2012] 1 SCR 145                  referred to               Para 3.7
      (2002) 6 SCC 710                  referred to               Para 4.4
C
      (2016) 3 SCC 62                   relied on                 Para 4.6
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      436 of 2022.
            From the Judgment and Order dated 30.08.2019 of the High Court
D     of Judicature at Allahabad in Criminal Appeal No.1462 of 1985.
           Ms. Garima Prasad, Sr. Adv., Vishnu Shankar Jain, Ms. Marbiang
      N. Khongwir, Advs. for the Appellant.
            Deepak Goel, Ms. Urvashi Sharma, Advs. for the Respondent.

E           The Judgment of the Court was delivered by
            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
F     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:-
G            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
      herein – Subhash @ Pappu, Pramod, Munna Lal and three unknown
      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
H     came to the shop of one Hari Om situated in Gallamandi Firozabad,
     THE STATE OF UTTAR PRADESH v. SUBHASH @ PAPPU                           837
                     [M. R. SHAH, J.]

armed with sticks, hockey stick and knife. They demanded to provide          A
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
                                                                             B
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            C
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,       D
Agra, which was numbered as Sessions Case No. 361 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          E
and denied the charges, they were put to trial. To bring home the charges,
the prosecution examined in all 10 witnesses as under:-


                                                                             F




                                                                             G




                                                                             H
838            SUPREME COURT REPORTS                           [2022] 5 S.C.R.


A             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
B
      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
C     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,
D     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
E     that 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
F     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
G     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
H     Senior Advocate appearing on behalf of the State that in the dying
      THE STATE OF UTTAR PRADESH v. SUBHASH @ PAPPU                            839
                      [M. R. SHAH, J.]

declaration dated 05.12.1980 recorded by Assistant Divisional Transport        A
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 convicted for the offence under Section 302 IPC read with Section
149 IPC.
                                                                               B
       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         C
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
                                                                               D
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          E
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
assembly and committed the offence in furtherance of the common object
to kill the deceased Bengali, still the respondent can be convicted for the    F
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      G
-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
                                                                               H
840             SUPREME COURT REPORTS                            [2022] 5 S.C.R.


A     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.
B
             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
C     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
D     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
E     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
F     and proved by the prosecution.
             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
G     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,
H     learned Advocate appearing on behalf of the respondent accused.
      THE STATE OF UTTAR PRADESH v. SUBHASH @ PAPPU                             841
                      [M. R. SHAH, J.]

       4.1 It is vehemently submitted by learned counsel appearing on           A
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
                                                                                B
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
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.        C
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         D
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.              E
       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,      F
the said dying declaration is not reliable and may not to be considered. In
this context, reliance is placed on the decision of this 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        G
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
                                                                                H
842             SUPREME COURT REPORTS                            [2022] 5 S.C.R.


A     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
B     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.
              6. At the outset, it is required to be noted that as per the dying
C     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.
D     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
E     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
F     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 dying declaration
      was recorded on 05.12.1980, there is no reason to doubt the dying
G     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
H     attacked the deceased including Pappu s/o Baijnath. Thus, from the dying
     THE STATE OF UTTAR PRADESH v. SUBHASH @ PAPPU                           843
                     [M. R. SHAH, J.]

declaration, prosecution has been successful in establishing and proving     A
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   B
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,            C
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 thereby committed an offence punishable under      D
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                                     E
             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      F
      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.
                                                                             G
            And hereby direct that you be tried by this Court on the
      said charge.
                                                Xth Addl. Session Judge
                                                                   Agra
      Dated: May 4th, 1983                                                   H
844            SUPREME COURT REPORTS                          [2022] 5 S.C.R.


A                  Charge read over and explained in Hindi.
            Accused not pleaded guilty to be tried.
                                                      Xth Addl. Sessions Judge
                                                                          Agra
B           Dated: May 4th, 1983
                          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
C           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
D           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
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            IX Adj.S.J. Agra
            Charge read over and explained to the accused.
            In (Hindi) who pleaded not guilty & claimed to be tried.

F                                                            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
G     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: -
            “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
H
      THE STATE OF UTTAR PRADESH v. SUBHASH @ PAPPU                             845
                      [M. R. SHAH, J.]

      that no charge was framed or on the ground of any error, omission         A
      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-            B
             (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          C
             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.”                                                              D
       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.
                                                                                E
        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
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          F
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
                                                                                G
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
                                                                                H
846            SUPREME COURT REPORTS                          [2022] 5 S.C.R.


A     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
B     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
      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.
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              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
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      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
E     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
F
      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
G
      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.
H
     THE STATE OF UTTAR PRADESH v. SUBHASH @ PAPPU                           847
                     [M. R. SHAH, J.]

       12. Now, so far as the conviction of the respondent accused for       A
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
                                                                             B
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.                                C
       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        D
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
                                                                             E
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
                                                                             F
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.
       13. In view of the above and for the reasons stated above, present
                                                                             G
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.
                                                                             H
848              SUPREME COURT REPORTS                        [2022] 5 S.C.R.


A            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
B     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.
C           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.

D
      Devika Gujral                                          Appeal partly allowed.
      (Assisted by : Shevali Monga, LCRA)




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