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The State of Uttar Pradesh vs. Subhash @ Pappu - (Supreme Court) (01 Apr 2022)

Mere facts that, the weapon used is not recovered cannot be a ground not to rely upon the dying declaration



The State has preferred the present appeal against the impugned judgment passed by the High Court by which the High Court has acquitted the Respondent for the offences under Section 302 and 148 of Indian Penal Code, 1860 (IPC).

The submission on behalf of the accused that, as the weapon – hockey stick alleged to have been used by the accused is not recovered and therefore, he may not be convicted has no substance. 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.

It to be noted that right from 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 IPC.

As per Section 148 of IPC, whoever is guilty of rioting, being armed with a deadly weapon or with anything which used as a weapon of offence, is likely to cause death, can be punished under that Section. The term “rioting” is defined under Section 146 of IPC. As per Section 146 of IPC, whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. In the present case, 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 impugned judgment and order passed by the High Court acquitting the accused for the offence punishable under Section 302 of IPC is hereby quashed and set aside. The Respondent accused is held guilty for the offence under Section 304 Part I read with Section 149 of IPC and for the offence under Section 148 of IPC.


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