The Supreme Court while setting aside the impugned judgment of the High Court in a murder case has held that the dying declaration cannot be discarded as a whole merely because there was no emergency or danger to life when it was recorded.

A two-judge Bench of Justice M. R. Shah and Justice B. V. Nagarathna heard the matter where an FIR was filed by a shopkeeper against the accused and three other people along with him who came to his shop in Firozabad armed with a stick, hockey stick, and knives. The accused demanded from the shopkeeper to give them sugar and kerosene oil without having any ration card but the deceased present at the shop in the capacity of the servant refused to provide them. The accused and his accomplices attacked him with knife and hockey sticks. It was thus alleged that the accused had committed the offence under sections 147, 148, 323, and 324 of the Indian Penal Code.

The victim made a dying declaration before the Additional City Magistrate. After the end of the investigation, the IO filed the chargesheet against all the accused. However, the accused were absconding at the time. The main accused then surrendered before the court and all the accused came to be tried by the Sessions Court. The accused was charged with the offences under sections 148 and 302 IPC. The other accused were charged with sections 147, 149, and 302 IPC. During the trial before the Sessions Judge, the original complainant turned hostile, and after the trial was conducted the Sessions Court acquitted two accused and the main accused was awarded a life sentence and three years of rigorous imprisonment.

Aggrieved, the accused moved High Court of Allahabad where he was acquitted 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 held that the accused hit him by the hockey stick.

Aggrieved, the State of UP preferred an appeal before the Supreme Court.

Recording of Dying Declaration

The Apex Court noted that there is no absolute proposition of law laid down by the Court that at the time when the dying declaration was recorded, there was no emergency and/or any danger to life, the dying declaration should be discarded as a whole.

In this context, the Bench opined -

"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 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."

Accused Not Specifically Charged U/s. 149 IPC

The Court also noted that while framing the charge, the accused was not specifically charged with the offences under Section 302 read with Section 149 IPC.

In this context -

"It can safely be said that the ingredients for the offence under Section 302 read with Section 149 IPC and Section 148 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."

The Bench held that it cannot be said that the accused is prejudiced by non-mention of Section 149 IPC in the charge.

Weapon Not Recovered

The Court in this context held that merely because the weapon used was not recovered cannot be a ground not to rely upon the dying declaration that was recorded before the Magistrate.

Conviction of Accused U/s. 302 read with Section 149 IPC

The Bench in this regard noted that it was true that the Prosecution was not able to establish and prove who inflicted the knife blow.

The Court also noted that from the dying declaration it was established and proved that the Respondent was part of an unlawful assembly, who participated in the commission of the offence. Hence, that Respondent was found to be guilty of having committed the murder of the deceased with the aid of Section 149 IPC.

However, the Court observed that considering the role of the Respondent - Accused his conviction under Section 302 read with Section 149 IPC is not warranted and his case would fall under Section 304 Part I IPC.

In the light of these observations, the Court partly allowed the appeal, and the impugned judgment and order of the High Court were quashed and set aside. the Respondent- Accused was directed to undergo 10 years of Rigorous Imprisonment under Section 304 Part I IPC read with Section 149 IPC and 3 years Rigorous Imprisonment under Section 148 IPC.

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