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The Supreme Court on Friday held that merely because the weapon used to commit a crime is not recovered, the same cannot be a ground to not rely upon the dying declaration, which was recorded before the Executive Magistrate, and has also been proved by the prosecution.

The bench of Justices MR Shah and BV Nagarathna further refused to accept the submission that on the day on which the dying declaration was recorded, there was no extreme emergency and/or victim's 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.

Accordingly, the division bench held that 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 a month before he actually died, there was no reason to doubt the dying declaration, which was recorded by Assistant Divisional Transport Officer.

The State of Uttar Pradesh approached the Top Court assailing a judgment of the Allahabad High Court by which the High Court had allowed an appeal preferred by the respondent – original accused, one Subhash @ Pappu and acquitted him for the offences under Sections 302 and 148 of Indian Penal Code (IPC).

One Hari Singh, the informant, had filed a case against Subhash @ Pappu, Pramod, Munna Lal and three unknown boys alleging that they came to his shop in Gallamandi Firozabad, armed with sticks, hockey sticks and knife. They demanded sugar and kerosene oil without having any ration card but Bangali (the deceased and Hari Singh's brother) present at the shop in the capacity of a servant, refused to provide them those articles, then one of the accused 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 had committed the offence under Sections 147, 148, 323, 324 IPC. Bengali, the victim made his dying declaration on December 5, 1980 before the Additional City Magistrate Agra at S.N. Hospital Agra, where he was taking treatment and subsequently died on January 4, 1981.

Later on, the informant Hari Singh turned hostile before the Trial Court, and relying upon the dying declaration, the Trial Court convicted Subhash @ Pappu, however, acquitted the accused Pramod and Munna Lal.

Thereafter, by the impugned judgment, the High Court acquitted Subhash @ Pappu mainly on the ground that in the dying declaration it was not stated, who had inflicted the knife blow in the stomach of the deceased, and on the contrary, it was stated that Pappu had hit him by a hockey stick.

From the dying declaration, it had emerged that six to seven persons attacked the deceased including Pappu and the prosecution was held to be 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.

With regard to the question as to whether the accused can be convicted for the offence punishable under Section 302 with the aid of Section 149 IPC, it was held to be true that the prosecution had not established and proved, who actually inflicted the knife blow.

"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 having committed the murder of deceased Bengali, with the aid of Section 149 IPC...," said the bench.

To the accused's submission 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, Court said,

"....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."

Accordingly, the appeal was allowed with the accused being held guilty for the offence under Section 304 Part I r/w Section 149 IPC and for the offence under Section 148 IPC.

Case Title: The State of Uttar Pradesh vs. Subhash @ Pappu