IN a judgment delivered on Friday, the Supreme Court observed that a dying declaration cannot be disregarded merely because there was no extreme emergency and that the deceased’s condition was not so serious or there was no danger to his life, on the day when it was recorded. A division bench of Justices M.R. Shah and B.V. Nagarathna made these observations while approving the trial court’s order which relied on a dying declaration whose validity was contested on the ground that the condition of the deceased was not life-threatening on the day when it was recorded.

The bench was ruling on an appeal filed by the Uttar Pradesh government against the Allahabad High Court’s judgment acquitting the respondent accused of the offence under Section 302 [Punishment for murder.], of the Indian Penal Code(IPC). It set aside the high court’s order and held the accused guilty for the offence under Section 304 [Punishment for culpable homicide not amounting to murder.] read with Section 149 [Every member of unlawful assembly guilty of offence committed in prosecution of common object.] of the IPC, and for the offence under Section 148 [Rioting, armed with deadly weapon.]

The incident in question dates back to 1980 when the accused demanded sugar and kerosene oil without a ration card, from a shopkeeper. One of the accused gave the shop-assistant a knife blow and some others beat him with a hockey stick. The victim made his dying declaration on December 5, 1980,  before the Additional City Magistrate Agra at S.N. Hospital Agra, where he was being treated. The victim later died on January 4, 1981.

Rendering the findings, the Supreme Court noted that even though the informant turned hostile in this case, it was clear from the dying declaration that six/seven persons attacked the deceased. Even in the FIR lodged by the informant, it was specifically mentioned that six persons attacked the victim. The Court rejected the argument of the accused that the dying declaration could not be relied upon because on the day it was recorded the deceased’s condition was not so serious or there was no danger to his life. The Court held that it was clear from the dying declaration that six to seven persons attacked the deceased and the main accused was present at the time of the incident; he was part of the unlawful assembly and he participated in the commission of offence.

With regard to the submission of the accused that as the weapon – hockey stick – alleged to have been used by him was not recovered and thus he could not have been convicted, the Supreme Court opined that merely because the weapon used was 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.

On the question of whether the accused can be convicted for the offence punishable under Section 302 with the aid of Section 149 IPC, the Court acknowledged that the prosecution had not established and proved who actually inflicted the knife blow. The Court, however, observed that from the medical evidence on record and even from the deposition of the doctors, it had 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.

It held that the conviction of the accused under Section 302 IPC read with 149 of the IPC was not warranted when the deceased died due to septicemia after a period of 30 days. It thus convicted the accused under Section   Section 304 Part I of the IPC.

On conviction under Section 148, the bench held 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, the Court held.

The accused also contended that while framing the charge, he was not specifically charged for the offence under Section 302 read Section 149 IPC. The Court, however, negated the submission by stating that from the reading of charges framed, it could be safely said 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.

At the most, it can be said to be a defective framing of the charge by not specifically charging under Section 149 IPC but no prejudice was caused to the accused by non-mention of Section 149 IPC in the charge, the court ruled.

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