Issues
- Whether the dying declaration will be reliable if, at the time when the dying declaration was recorded, there was no emergency and/or any danger to the life of the deceased?
- Whether Error/Omission/defect in framing of charges –would render the conviction improper and unsustainable?
- Whether non-recovery of weapons alleged to have been used by the accused in the commission of the offence could be a ground for acquittal?
- Whether Section 148 of the IPC is not attracted in the case where the number of accused persons who were charge-sheeted/charged/tried are less than 5 in number?
- Whether accused can be held liable under Section 148 of the IPC when he was not armed with any deadly weapon but with hockey stick?
Held
- There is no absolute proposition of law 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.
- The Hon’ble Court relied on the judgement in the case of Annareddy Sambasiva Reddy Vs. State of Andhra Pradesh, (2009) 12 SCC 546 and observed that this Court in Annareddy Sambasiva (Supra) negated the said submission and observed and held that mere non-framing of a charge under Section 149 on the face of charges framed against the appellant would not vitiate the conviction in the absence of any prejudice caused to them. Considering Section 464 of the 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.
- 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.
- The Hon’ble Apex Court has held that it is to be noted that right from the 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 of three tried, two persons came to be acquitted cannot be a ground to not to convict the respondent accused under Section 148 of the IPC.
- Since one of the member of unlawful assembly was carrying a deadly weapon and they used force or violence, 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 of the IPC.
Relevant Para No.
- 6, 7, 9, 12 & 12.1