Mere Non Framing Of Charge U/Sec 149 IPC Will Not Vitiate Conviction In Absence Of Any Prejudice To Accused: Supreme Court

The Supreme Court observed that non-framing of a charge under Section 149 of the Indian Penal Code would not vitiate the conviction in the absence of any prejudice caused to the accused.

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, the bench comprising Justices MR Shah and BV Nagarathna noted.

Subash @ Pappu was convicted by the Trial Court under Section 302 IPC and Section 148 IPC. Allowing his appeal, the Allahabad High Court acquitted him. The State of Uttar Pradesh approached the Apex Court challenging this acquittal.

While considering the appeal, the bench noted that though the accused was not specifically charged for the offence under Section 302 r/w Section 149 IPC, ingredients for the offence under Section 302 r/w Section 149 and Section 148 of 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 noted.

Referring to  Annareddy Sambasiva Reddy Vs. State of Andhra Pradesh, (2009) 12 SCC 546, the bench observed:

"This Court negated the said submission and observed and held that mere non-framing of a charge under Section 149 on face of charges framed against appellant would not vitiate the conviction in the absence of any prejudice caused to them. Considering Section 464 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."

The court also added that merely because the weapon used is not recovered cannot be a ground not to rely upon the dying declaration. It also observed that 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

Regarding the conviction under Section 148 IPC, the accused had contended that it shall not be attracted as the number of accused chargesheeted/charged/tried were less than five in number.

"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 IPC", the court said.

Partly allowing the appeal, the court held that the accused cannot be convicted for the offence punishable under Section 302 IPC r/w Section 149 IPC taking note of the fact that the deceased died due to septicemia after a period of thirty days. Instead, accused was held guilty for the offence under Section 304 Part I r/w Section 149 IPC and for the offence under Section 148 IPC.

Case details

State of Uttar Pradesh vs Subhash @ Pappu | 2022 LiveLaw (SC) 336 |  CrA 436 OF 2022 | 1 April 2022

Coram: Justices MR Shah and BV Nagarathna

Counsel: Sr. Adv Garima Prasad for appellant- State, Adv Deepak Goel for the respondent

Headnotes

Code of Criminal Procedure, 1973 ; Section 464 - Indian Penal Code, 1860 ; Section 149 -  Mere non-framing of a charge under Section 149 on face of charges framed against appellant would not vitiate the conviction in the absence of any prejudice caused to them - 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 - 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. [Referred to Annareddy Sambasiva Reddy Vs. State of Andhra Pradesh, (2009) 12 SCC 546] (Para 7)

Indian Evidence Act, 1872 ; Section 32 - Dying Declaration - 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 (Para 6) - Merely because the weapon used is not recovered cannot be a ground not to rely upon the dying declaration. (Para 9)

Indian Penal Code, 1860 ; Section 148 - 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  accused under Section 148 IPC when involvement of six to seven persons in commission of the offence has been established and proved. (Para 12)

Summary - Appeal against judgment of Allahabad HC which acquitted accused by setting aside conviction recorded by Trial Court under Section 302 and 148 IPC - Partly allowed - Accused convicted under Section 304 Part I r/w Section 149 IPC and for the offence under Section 148 IPC.

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