The State of Uttar Pradesh vs Subhash @ Pappu Case

The State of Uttar Pradesh vs Subhash @ Pappu Case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
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)
J U D G M E N T
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
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 coaccused 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 coaccused 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
Gajendra
Who had written the First
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
Agrawal
Doctor, who certified Bengali
was in his senses and fit at
the time of recording of the
dying declaration
PW-9 Shri Yudhishthir
Sharma
Additional Divisional
Transport Officer, who
recorded the dying
declaration
PW-10 Police Constable,
Daya Ram
3
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.
11
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
Dated: May 4th, 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: -
15
“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.
20
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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