Summary
The High Court acquitted an accused identified in a dying declaration as participating in an attack by six or seven persons. The Court found the declaration reliable and held that omission of section 149 from the formal charge caused no prejudice because common-object allegations were explicit. It reversed the acquittal, but treated the homicide as section 304 Part I read with section 149 on these facts, and also convicted for armed rioting, imposing concurrent terms.
Issues
- Whether the dying declaration supported participation despite non-recovery of the hockey stick and absence of an immediate expectation of death.
- Whether omission of section 149 from the charge or acquittal of two tried co-accused defeated common-object liability.
- What homicide conviction and punishment were appropriate on this record.
Provisions considered
- Section 32(1), Indian Evidence Act, 1872The dying declaration was not discredited merely because the maker was not shown to face an immediate emergency when it was recorded. (¶¶ 6-6.1, 9)
- Section 464, Code of Criminal Procedure, 1973The charge defect caused no demonstrated prejudice where the allegations expressly informed the accused of unlawful-assembly participation and common object. (¶ 7-8)
- Sections 146, 148 and 149, Indian Penal Code, 1860Applied common-object and rioting liability to the proved assembly of six or seven despite fewer persons being tried or convicted. (¶¶ 10, 12-12.1)
- Section 304 Part I read with section 149, Indian Penal Code, 1860Applied instead of murder on the particular record, including death from septicemia after thirty days. (¶¶ 11-11.1, 13)
Held
- The proved dying declaration identified the accused and his participation in the group attack. Absence of an immediate emergency at recording, and non-recovery of his hockey stick, did not warrant rejecting that evidence. (¶¶ 6-6.1, 9)
- The existing charges expressly alleged membership of an unlawful assembly and its common object to murder the victim. Failure to cite section 149 was therefore a curable defect under section 464, with no prejudice shown here. (¶ 7-8)
- Proof that six or seven people participated was not displaced by charging only three persons or acquitting two of them. The accused’s own hockey-stick role did not exclude liability for the group’s knife attack in prosecution of the common object. (¶¶ 10, 12-12.1)
- On the facts and the cited precedent concerning septicemia after thirty days, the Court selected section 304 Part I with section 149 rather than section 302, and maintained liability for armed rioting. (¶ 11-13)
Result
State appeal partly allowed and acquittal set aside. The accused was sentenced to ten years’ rigorous imprisonment under section 304 Part I/149, with Rs.5,000 fine and six months’ default imprisonment, and three years’ rigorous imprisonment under section 148, with Rs.5,000 fine and two months’ default imprisonment. Substantive sentences concurrent; surrender within four weeks to serve the remainder. No costs; pending application disposed of.