Delhi High Court

Saddak Hussain vs State (Nct Of Delhi) on 15 May, 2019

Equivalent citations: AIRONLINE 2019 DEL 723, 2019 (4) ADR 469 (2019) 260 DLT 523, (2019) 260 DLT 523

Author:
Hima Kohli

Bench:
Hima Kohli
,
Vinod Goel

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 717/2018

Reserved on: 01.04.2019
Date of decision: 15.05.2019
IN THE MATTER OF:
SADDAK HUSSAIN ..... Appellant
Through: Mr. Subodh K. Pathak, Mr. Adil Alvi
and Mr. Balwan Singh, Advocates.

versus

STATE (NCT OF DELHI) ...Respondent
Through: Mr. Amit Gupta, APP.

CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE VINOD GOEL

HIMA KOHLI, J.

1. The present appeal is directed against the judgment dated
13.2.2018, passed by the court of the learned Additional Sessions Judge,
Pilot Court, North District, Rohini Courts, New Delhi („ASJ‟) in Sessions
Case No.220/2017, arising from FIR No.598/2016 registered at PS
Mahendra Park, New Delhi whereunder, the appellant has been convicted
for the offence under
Section 302
IPC. The appellant is also aggrieved
by the order on sentence dated 17.2.2018, whereby he has been
sentenced to undergo life imprisonment for the offence under
Section
IPC alongwith fine of Rs.5,000/- and in default of payment of fine,
to further undergo simple imprisonment for one year.

CRL.A. 717/2018 Page 1 of 28

2. The appellant herein was arrayed before the trial court as accused
No.4 (A-4). He was sent to trial alongwith four other co-accused i.e.
Prateek @ Bholu (A-1), Prashant @ Chhotu (A-2), Kamal @ Jaipal
(A-3) and Sandeep @ Pankaj @ Bachha (A-5). Under the impugned
judgment, except for the appellant herein, the other accused have been
acquitted of the charge under
Section 302
IPC.

CHARGE FRAMED

3. Vide order dated 25.4.2017, the trial court framed the following
charge against A-1, A-2, A-3 and A-4:-

"I Virender Kumar Bansal, do hereby charge you
accused 1) Prateek @ Bholu S/o Sh. Talewar Singh,

2). Prashant @ Chhotu @ Amitesh S/o Sh. Talewar
Singh, 3). Kamal @ Jaipal S/o Sh. Ram Bhool, 4).

Saddak Hussain S/o Sh. Shakir Ali as follows:-

That on 25.12.2016 at about 8.15 pm at A-1 Market
near Country Made liquor Van, Jahangir Puri,
Delhi within the jurisdiction of PS: Mahendra Park
you all with you co-accused Sandeep and Ajay (not
arrested) in furtherance of your common intention
caused death of Jeet Kumar eye witness of case FIR
No.282/2016 PS: Mahendra Park and thereby
committed the offence punishable
u/s 302
IPC r/w
IPC
and with the cognizance of this court.

And I hereby direct that you be tried by this court for
the aforesaid offences punishable
u/s 302
/
IPC.

(Virender Kumar Bansal)
ASJ/Pilot Court/North, Rohini Courts
25.04.2017"

CRL.A. 717/2018 Page 2 of 28

4. On 19.5.2017, charge was amended due to an error in the FIR No.
and it was framed as follows:-

"I Virender Kumar Bansal, do hereby charge you
accused 1) Prateek @ Bholu S/o Sh. Talewar Singh,

2). Prashant @ Chhotu @ Amitesh S/o Sh. Talewar
Singh, 3). Kamal @ Jaipal S/o Sh. Ram Bhool, 4).

Saddak Hussain S/o Sh. Shakir Ali as follows:-

That on 25.12.2016 at about 8.15 pm at A-1 Market
near Country Made liquor Van, Jahangir Puri,
Delhi within the jurisdiction of PS: Mahendra Park
you all along with you co-accused Sandeep and Ajay
(not arrested) in furtherance of your common
intention caused death of Jeet Kumar eye witness of
case FIR No.382/2016 PS: Jahangir Puri and
thereby committed the offence punishable
u/s 302

IPC r/w 34
IPC
and with the cognizance of this
court.

And I hereby direct that you be tried by this court for
the aforesaid offences punishable
u/s 302
/
IPC.

(Virender Kumar Bansal)
ASJ/Pilot Court/North, Rohini Courts
19.05.2017"

5. During the trial against A-1 to A-4, the other accused, A-5, who
was absconding, was arrested and a supplementary charge-sheet was
filed against him. The learned ASJ framed the charge against A-5 on
30.8.2017, as under:-

"I Virender Kumar Bansal, do hereby charge you
accused Sandeep @ Pankaj @ Bachcha S/o Late Sh.
Sita Ram as follows:-

That on 25.12.2016 at about 8.15 pm at A-1 Market
near Country Made liquor Van, Jahangir Puri,

CRL.A. 717/2018 Page 3 of 28

Delhi within the jurisdiction of PS: Mahendra Park
you all along with your co-accused persons Ajay
(not arrested) along with accused persons Prateek
@ Bholu, Prashant @ Chhotu @ Amitesh Kamal @
Jaipa(sic), Saddak Hussain in furtherance of your
common intention caused death of Jeet Kumar eye
witness of case FIR No.382/2016 PS: Jahangir
Puri and thereby committed the offence punishable
u/s 302
IPC
r/w 34
IPC
and with the cognizance of
this court.

And I hereby direct that you be tried by this court for
the aforesaid offences punishable
u/s 302
/
IPC.

(Virender Kumar Bansal)
ASJ/Pilot Court/North, Rohini Courts"

6. The prosecution examined 30 witnesses to prove the charges
against A-1 to A-5. Thereafter, the learned ASJ recorded their separate
statements under
Section 313
Cr.PC wherein each of them claimed
innocence. However, the accused persons did not lead any evidence.
PROSECTUION CASE

7. The prosecution case is that on 25.10.2016, at about 7.30 PM, Jeet
Kumar, the victim was standing with his cousin Ajeet Kumar (PW-7)
outside their house situated in the jhuggi cluster at K Block, Jahangir
Puri, when he expressed a desire to partake chicken. Ajeet suggested that
they should proceed to a chicken shop situated in the A Block Market,
Jahangir Puri. Both of them proceeded on a motorcycle to the chicken
shop (Saleem Chicken Wala), where Jeet stopped his motorcycle to
answer the call of nature. While they were easing themselves, six men
arrived there on two motorcycles. Ajeet recognized them and was aware
of the fact that case FIR No.382/2016 had been registered against them

CRL.A. 717/2018 Page 4 of 28

on a complaint made by Jeet. Besides the accused, A-1 to A-5, one Ajay
was also present at the spot. The appellant grabbed Jeet by his face and
said "Tu hamare khilaf gawahi dega". Thereafter, all the accused started
beating him. A-5 took out a pistol and fired at Jeet, who was hit by a
bullet on his arm. To save himself, Jeet ran towards a nearby country
liquor shop. All the six accused followed him in hot pursuit. PW-7 also
ran after them. On reaching near the country liquor shop, Jeet was
thrashed by the accused persons, who said "Is sale ko jaan se mar dete
hai, na hoga gawah na hogi gawahi". A-5 fired at the chest of Jeet, who
sustained injuries and fell down on the ground. On seeing this, PW-7
fled from the spot, rushed to his aunt, Bimla (mother of the victim) and
his parents and informed them about the incident. By the time they
reached the scene of crime, Jeet was not present there. PW-7 along with
the family members rushed to BJRM Hospital, where the victim had
been taken. As no doctor was attending to the victim, his family
members rushed him to Fortis Hospital, Shalimar Bagh, Delhi where he
was declared „brought dead‟. This incident set into motion the criminal
machinery.

PROSECUTION EVIDENCE:

8. On receiving information of the firing, DD No.29A (Ex.PW-X-7)
was recorded at PS: Mahendra Park. The police reached BJRM Hospital,
where they came to know that the injured had been taken by his family
members to Fortis Hospital. The first IO in this case, Inspector
Dhananjay Gupta (PW-30) reached the spot and recorded the statement
of PW-7 marked as Ex.PW7/A. He prepared the Rukka (Ex.PW30/A-
Ex.PW3/B) and handed it over to Head Constable Kamlesh Kumar (PW-

CRL.A. 717/2018 Page 5 of 28

20), for registration of the FIR. The Rukka was presented to the Duty
Officer on 26.12.2016, at 00.15 hours and FIR No.0598 (Ex.PW3/A) was
registered. The Crime Team reached the spot (Ex.PX-4), took
photographs of the scene of crime. An empty cartridge was found at the
spot and its sketch was prepared (Ex.PW20/A). The cartridge was also
seized vide seizure memo (Ex.PW20/B). The motorcycle belonging to
the deceased was taken into possession vide seizure memo, Ex.PW20/C.
The IO (PW-30) prepared the site plan (Ex.PW30/B). PW-30 also
prepared the inquest papers and got the post-mortem conducted on the
body of the deceased. On the same day in the evening, on the
identification of PW-7, the Investigating Officer arrested A-1 and A-2
vide arrest memos, Ex.PW7/B and Ex.PW7/C, respectively. PW-7
identified the motorcycle of A-1 bearing number DL8SAT 0967 that was
taken into possession vide seizure memo, Ex.PW7/F. The disclosure
statement of A-1 was recorded and marked Ex.PW7/H. The disclosure
statement of A-2 was recorded and marked Ex.PW7/G. The appellant
was arrested on 29.12.2016 at 9.15 P.M. and his motorcycle bearing
number DL-14SF 7849 was taken into possession on 1.3.2016, vide
seizure memo, Ex.PW19/B.

9. On 31.12.2016, based on the disclosure statement of the appellant
(Ex.PW19/A), the Investigating Officer (PW-30), Head Constable
Kamlesh Kumar (PW-20) and ASI Suresh Kumar (PW-19) proceeded to
a premises at Khichripur Village, Shiv Market alongwith the appellant,
who got recovered a pistol from which A-5 had fired at the victim and
handed it over to him. The recovery memo-cum-pointing out memo is
Ex.PW19/D. The said pistol was found loaded with a magazine. The

CRL.A. 717/2018 Page 6 of 28

sketch of the pistol and the magazine is marked as Ex.PW19/C. Both, the
pistol and the magazine were seized vide seizure memo, Ex.PW-19/D
and handed over to the Malkhana Muharar. On 1.3.2017, the police
deposited the exhibits with the FSL, Rohini. On 14.3.2017, some more
exhibits including motorcycles number DL-14SF 7849, DL8SAT 0967,
DL8S 5680, the empty cartridge, one pistol with the magazine and the
clothes of the deceased were deposited with the FSL, Rohini for
obtaining a ballistic report. The case material produced before the trial
court by the Malkhana Muharar were shown to the Investigating Officer
during his deposition and he duly identified the same.

10. Inspector Mukesh Kumar (PW-28) was the Investigating Officer
who took over the further investigation on 29.5.2017. He deposed about
the arrest of Sandeep @ Bachha (A-5) vide arrest memo, Ex.PW28/B.
The disclosure statement of A-5 dated 29.5.2017 is Ex.PW28/C. A-5
pointed out the scene of crime vide pointing out memo, Ex.PW28/D. On
his pointing out, the I.O. prepared a site plan (Ex.PW28/E), where he
handed over the pistol to A-4 for hiding.

11. ASI Bhagwan Singh (PW-3) deposed that he had received the
Rukka from PW-20 on the intervening night of 26/27.12.2016 at 00.15
hours and generated a copy of the FIR (Ex.PW3/A). He also recorded
DD No.5A (Ex.PW3/D) at 1.20 A.M. on 27.12.2016, on receiving
information from Fortis Hospital that an injured had been admitted in the
said hospital with a firearm injury.

12. The rest of the police witnesses were mostly formal in nature and
were associated with various steps taken in the course of the
investigation, including arrest of the accused, recording of their

CRL.A. 717/2018 Page 7 of 28

disclosure statements, depositing of the case material with the FSL,
obtaining the reports from the FSL and re-depositing the case material
with the Malkhana Muharar.

13. Dr. R.S. Mishra, CMO, BJRM Hospital, Delhi (PW-1) deposed
that the victim was brought to the hospital on 25.12.2016 at 8.50 P.M. by
one Surya, with a history of finding him on the road side. On examining
the patient, the doctor declared him as „brought dead‟. The attendants
present at the hospital forcibly took away the dead body. He proved the
MLC of the deceased as Ex.PW1/A.

14. PW-2, Dr. Ajeet Kumar, Fortis Hospital, Shalimar Bagh, Delhi
deposed that the victim was brought to the hospital by his father on
25.12.2106, at 9.15 P.M. with an alleged history of firearm injury. He
was declared as brought dead at 9.26 P.M. on that day. The MLC
prepared by PW-2 was proved as Ex.PW2/A.

15. The post-mortem report of the body of the deceased was proved by
PW-4, Dr. Anshul Saxena, Sr. Resident, Department of Forensic
Medicine, BJRM Hospital, Delhi as Ex.PW4/A. On an external
examination of the body of the deceased, he noted four injuries and
opined that the deceased had died due to haemorrhage, secondary to
gunshot injury to the lungs, heart and liver and that injuries No.2 and 4
were sufficient to cause death in the ordinary course of nature. He opined
that the injuries were ante-mortem in nature.

16. The ballistic experts in the present case were Ms. Prerna Lakra,
Senior Scientific Assistant, Ballistic, FSL, Rohini (PW-22 who again
appeared as PW-26) and Mr. R. Enivyan, Junior Forensic/Assistant
Chemical Examiner, Ballistic, FSL, Rohini, Delhi (PW-25). PW-22

CRL.A. 717/2018 Page 8 of 28

proved her reports, Ex.PW22/A and Ex.PW26/A. She deposed that the
clothes of the deceased bearing hole marks sent to her for examination
were analysed and detected with gunshot residue. PW-25 proved his
report, Ex.PW25/A, wherein he gave an opinion in respect of the firearm
(F1) and empty cartridge case (EC1). Mr. S.K. Singla, Senior Scientific
Officer-1 (Retd.), CFSL, CBI Chemical Examiner (Biology) FSL, Delhi
(PW-24) proved his report, Ex.PW24/A, regarding the presence of blood
and the serological analysis conducted on the case material forwarded to
the FSL for examination. He confirmed that human blood was detected
on the clothes of the deceased but stated there was no reaction in respect
of the blood grouping.

17. Ms. Vijayanta Arya, IPS, Additional DCP-1, North-West Delhi
(PW-27) proved the sanction order dated 31.7.2017 (Ex.PW27/A) issued
by her under
Section 39
of the Arms Act, 1959 for prosecution of the
appellant herein and A-5 under
Section 25
of the Arms Act.

18. Ramesh (PW-9), father of the deceased identified the dead body of
his son and deposed that it was handed over to him vide memo,
Ex.PW5/A. Manoj Mehto (PW-5), Mahesh Singh (PW-6) and Suresh
Mehto (PW-8), relatives/family members of the deceased stated that they
had accompanied PW-9 to the mortuary and identified the dead body.
Joginder (PW-10), Chandan (PW-11), Pawan (PW-12) and Jitender
Kumar (PW-13) are public witnesses, who deposed that they had heard
sound of gunshots and had witnessed the accused fleeing away from the
spot on their motorcycles. PW-12 was also a witness to the arrest of the
appellant by the police on 29.12.2016, at 8.30 P.M.

CRL.A. 717/2018 Page 9 of 28

FINDINGS OF THE TRIAL COURT

19. The trial court agreed with the argument advanced by the defence
counsel and held that there were several contradictions in the testimony
of PW-7, the sole eye witness, which created doubt about his presence at
the scene of crime and gave a clear impression that the FIR had been ante
timed and he had been introduced later on. In other words, he was not
present at the scene of the crime. The aforesaid conclusion was drawn
on the ground that the conduct of PW-7 was found to be doubtful
particularly, when he claimed to be present at the scene of crime and was
a witness to the accused persons thrashing his cousin but had neither
intervened or tried to save him; nor did he raise an alarm when his cousin
was allegedly beaten up by the accused and they had fired at him. The
trial court further observed that the injured was not removed to the
hospital by PW-7 or any of his relatives but by a third person, one Surya,
resident of Jahangirpuri, whose name was mentioned by the MLC doctor,
PW-1 but he was not arrayed as a prosecution witness though he was the
best person to tell where and how he had found Jeet and taken him to the
hospital.

20. After discarding the testimony of the sole eye witness (PW-7), the
trial court proceeded to examine the remaining two circumstances,
firstly, fleeing away of the accused on motorcycles from the scene of
crime and secondly, recovery of the weapon of offence, as brought out
by the prosecution to prove the guilt of the accused. Referring to the
testimonies of the public witnesses, PW-10, PW-11 and PW-12, who had
deposed that they had gone to the spot to purchase liquor, had heard

CRL.A. 717/2018 Page 10 of 28

sounds of two gunshots and seen the accused persons fleeing from the
spot on two motorcycles, the trial court opined that there were several
inter se contradictions, sufficient to disbelieve the prosecution version
that the aforesaid witnesses had seen the accused persons fleeing from
the scene of the crime immediately after the commission of the offence.
Thus, the first circumstance set up by the prosecution, was rejected
outright.

21. Coming to the second circumstance relating to the recovery of the
weapon of offence on the disclosure statement made by the appellant and
the co-accused, Sandeep @ Bachha (A-5), the impugned judgment relied
on the testimony of three police witnesses, PW-19, PW-20 and PW-30 to
hold that the said witnesses had fully supported and corroborated each
other for proving recovery of the weapon of offence at the instance of the
appellant. Thereafter, the trial court went on to conclude that recovery of
the weapon of the offence could not be attributed to Sandeep @ Bachha
(A-5) as the recovery had already been effected at the instance of the
appellant herein, before the arrest of A-5. Holding that once the
prosecution had been able to prove the recovery of the weapon of offence
at the instance of the appellant and further, the forensic evidence brought
on record showed that the bullet found in the dead body had been fired
through the said weapon, the said circumstance pointed towards the guilt
of the appellant and accordingly, the learned ASJ convicted him under

Section 302
IPC while acquitting all the other accused persons.
Aggrieved by the said decision, A-4, the appellant herein has filed the
present appeal.

CRL.A. 717/2018 Page 11 of 28

ARGUMENTS ADVANCED

22. The main thrust of the arguments addressed by Mr. Subodh K.
Pathak, learned counsel for the appellant is that the trial court grossly
erred in convicting the appellant under
Section 302
IPC solely on the
basis of one circumstance, i.e. recovery of the weapon of offence. He
cited
Section 26
of the Indian Evidence Act to contend that the
confession by an accused while in custody of the police is to be treated as
an unreliable evidence and cannot be proved by the prosecution and only
that part of the disclosure statement of the accused can be proved which
relates distinctly to the discovery of evidence consequent upon
information given by him, as contemplated under
Section 27
of the Act.
He disputed the stand taken by the prosecution that recovery of the
weapon of offence was made on the appellant‟s disclosure statement and
argued that the said recovery was doubtful and a planted one as the IO
did not prepare the site plan of the place of recovery and further, the
sketch of the pistol and the magazine bears the signatures of only PW-19
and PW-20, both of whom are police witnesses.

23. It was pointed out that while the appellant had been arrested on
29.12.2016, the recovery of the weapon of offence was allegedly made
two days later, on 31.12.2016 and the weapon of offence was dispatched
to the FSL for a report after a period of two months, i.e. on 1.3.2017, all
of which casts a shadow of doubt on the recovery and the manner in
which the investigation was conducted. Learned counsel also referred to
the disclosure statement of the co-accused, Prateek @ Bholu (A-2) made
on 26.12.2016 wherein, he had stated that he could get the weapon of
offence recovered from Anu, a friend of the appellant and wondered why

CRL.A. 717/2018 Page 12 of 28

the police did not take any steps to get the weapon recovered at his
instance. He stated that even otherwise, it was the version of the
prosecution itself that the weapon of offence was used by A-5 and fact of
the matter is that the said weapon was falsely planted on the appellant.
Lastly, it was argued that assuming without admitting that the weapon of
offence used by A-5 was recovered on the disclosure made by the
appellant, it is not even the case of the prosecution that he had used the
said weapon of offence to fire at the deceased, for being convicted for his
murder.

ANALYSIS AND DISCUSSION

24. We have heard the arguments advanced by Mr. Subodh K. Pathak,
learned counsel for the appellant and Mr. Amit Gupta, learned APP and
carefully scanned the evidence brought on record in the light of the
findings returned in the impugned judgment.

25. As noted above, the testimony of the sole eye witness, Ajeet
Kumar (PW-7) was discarded by the trial court on the ground that there
were several inconsistencies in his deposition and it was doubtful if he
was at all present at the scene of the crime. Once the testimony of PW-7
was discarded, all that is left for examination is the circumstantial
evidence. The twin circumstances referred to by the learned ASJ is the
fleeing away by the accused on motorcycles from the scene of crime and
the recovery of the weapon of offence. The first circumstance was
discarded on account of the glaring contradictions in the testimony of the
public witnesses i.e., PW-10, PW-11 and PW-12, who claimed that they
had heard sounds of gunshots being fired and had witnessed the accused

CRL.A. 717/2018 Page 13 of 28

persons fleeing away from the scene of crime. The only other
circumstance relates to the recovery of the weapon of offence.

26. Considering the fact that at no stage did the prosecution project a
case that it was the appellant, who had fired at the deceased, rather it was
their consistent stand that it was A-5, who had taken out a pistol from his
possession and fired at the victim on his chest and he had succumbed to
the said injuries, we are left wondering as to where was the occasion for
the trial court to have convicted the appellant for the offence under

Section 302
IPC on the ground of recovery of the weapon of offence?
The only role allegedly attributed to the appellant in the entire incident
was that he had grabbed the victim by his face and thrashed him by
saying that "Tu hamare khilaf gawahi dega". Thereafter, the appellant
alongwith the other accused persons had started beating Jeet, who tried to
save himself by running towards a nearby country liquor shop. On
reaching near the said country liquor shop, the appellant and the other
accused persons had again caught hold of Jeet and thrashed him. The
prosecution version has consistently been that it was A-5, who had taken
out a pistol and fired at Jeet. That being the admitted case of the
prosecution throughout and the trial court having acquitted A-5 for the
offence punishable under
Section 302
IPC, the conviction of the
appellant for the said offence is not sustainable only on the basis of
alleged recovery of the weapon of offence on his disclosure statement.

27. We are, therefore, in complete agreement with the submission
made by learned counsel for the appellant that there was no occasion for
the trial court to have convicted the appellant on the sole circumstance of
recovery of the weapon of offence on the basis of his disclosure

CRL.A. 717/2018 Page 14 of 28

statement when, it was never the prosecution case that the appellant was
the one, who was in possession of the pistol on that day and had fired at
the deceased with the said weapon. When as per the case of the
prosecution, A-5 was in possession of the weapon of offence and he had
fired on the deceased, it is hard to digest that A-5 would have handed it
over to the appellant.

28. The view expressed above is also fortified on a scrutiny of the
questions put to the appellant under
Section 313
Cr.PC. It was not the
version of the prosecution that he had pulled out a pistol and fired at the
deceased. The only circumstance alleged against the appellant was
regarding his presence at the scene of the crime alongwith the co-
accused, where he had allegedly threatened the deceased and given him
kicks and fist blows. In fact, it was the case of the prosecution that A-5
had pulled out a pistol and fired on the chest of the deceased whereafter,
the appellant and the other co-accused had fled from the spot on
motorcycles. A specific suggestion on these lines was made to the said
effect to A-5, while recording his statement under Section 313 Cr.P.C.

NO SUBSTANTIVE CHARGE FRAMED AGAINST THE
APPELLANT UNDER SECTION 302 IPC

29. Though no argument has been advanced before us by the learned
counsel for the appellant on the absence of a substantive charge framed
against the appellant under
Section 302
IPC, we would be failing in our
duty if we overlook the said error committed by the trial court. A glance
at the charges framed against the accused, as reproduced hereinabove,
clearly brings out that all the accused were charged for harbouring a
common intention of causing the death of the deceased, an eye witness in

CRL.A. 717/2018 Page 15 of 28

case FIR No.382/2016, PS Mahindra Park, for the offence punishable
under
Section 302
IPC read with
Section 34
IPC. No substantive charge
was framed against any of the accused individually. Considering the fact
that the remaining accused, A-1, A-2, A-3 and A-5 have been acquitted
for the offence under
Section 302
IPC and their acquittal has not been
challenged by the State by filing an appeal, and further, taking note of the
fact that all the accused were collectively charged for the offence under

Section 302
IPC read with
Section 34
IPC and not individually, it is not
understood as to how could the appellant be convicted under
Section 302

IPC simpliciter. This, in our opinion, is an error that goes to the root of
the matter.

30. The patent fallacy of convicting an accused for a substantive
offence without there being any charge framed against him, has been
repeatedly highlighted by the Supreme Court in a catena of decisions.
In

Nanak Chand vs. State of Punjab
reported as AIR 1955 SC 274, the
appellant along with six other co-accused had been charged for
committing offences under Section 148 and Section 302 read with

Section 149
IPC and the trial court had acquitted three of the six accused
while convicting the appellant therein and three others for the offences
referred to hereinabove. In the appeal filed against
the said judgment
, the
High Court had acquitted three of the remaining accused of the offence
under
Section 302
IPC read with
Section 34
IPC but convicted the
appellant alone for the substantive offence under
Section 302
IPC. In
view of the fact that no separate charge had been framed by the trial
court under
Section 302
IPC, the Supreme Court held that the High Court
could not have convicted the appellant for the said offence. Rejecting the

CRL.A. 717/2018 Page 16 of 28

plea of the prosecution that non-framing of a substantive charge against
the appellant was an error in framing of charge that was a curable
irregularity, it was held as follows:-

"13...................In the present case, however, there
is no question of any error, omission or
irregularity in the charge because no charge under

section 302
of the Indian Penal Code was in fact
framed.
Section 232
of the Code of Criminal
Procedure permits an appellate court or a court of
revision, if satisfied that any person convicted of
an offence was misled in his defence in the absence
of a charge or by an error in the charge, to direct
a new trial to be had upon a charge framed in
whatever manner it thinks fit. In the present case
we are of the opinion that there was an illegality
and not an irregularity curable by the provisions
of
sections 535
and
of the Code of Criminal
Procedure. Assuming, however, for a moment
that there was merely an irregularity which was
curable we are satisfied that, in the circum-
stances of the present case, the irregularity is not
curable because the appellant was misled in his
defence by the absence of a charge under
section
of the Indian Penal Code.

14. By framing a charge under section 302,
read with
section 149
of the Indian Penal Code
against the appellant, the Court indicated that it
was not charging the appellant with the offence of
murder and to convict him for murder and
sentence him under
section 302
of the Indian
Penal Code was to convict him of an offence with
which he had not been charged. In defending
himself the appellant was not called upon to meet
such a charge and in his defence he may well
have considered it unnecessary to concentrate on
that part of the prosecution case............."

(emphasis added)

CRL.A. 717/2018 Page 17 of 28

31.
In
Suraj Pal vs. State of U.P.
reported as AIR 1955 SC 419, where
twenty accused including the appellant therein had been charged with
offences under
Sections 147
,
/
,
/
and
/
IPC and
held guilty by the trial court, in the appeal, the High Court set aside the
conviction of ten of the co-accused. As for the remaining ten co-
accused, the High Court opined that nine of them could only be
convicted under
Sections 323
/
IPC, thus leaving the appellant therein,
who alone was held guilty of the substantive offence under Section 307
and
Section 302
IPC. The said decision was challenged by the appellant
before the Supreme Court that held that once specific charges had been
framed, which referred to all the accused having acted together with a
common intention of firing upon the deceased and there was no
amendment to the charge, the appellant could not have been convicted
for the substantive charge for the offence under
Sections 302
and
IPC as if he was acting alone. Holding that such a course of action was
not legitimate, the Supreme Court observed as follows:-

"4......................The appellant might well have
relied on the absence of any such amendment as
being an indication that he was not called upon to
defend himself on the footing of his being the
author of the pistol fire. In a case so serious as
that which involves the sentences of
transportation for life, and of death, and
particularly in a case like the present one, where
the death sentence has been awarded in the trial
court by distinguishing this appellant from all the
other accused in respect of his individual act by
way of pistol fire, it is difficult to say that the
accused has not been prejudiced by the absence

CRL.A. 717/2018 Page 18 of 28

of specific charges under
sections 307
and
,
Indian Penal Code.

5. Further, the medical evidence indicates
that P.W. 2 as well as the deceased Surajdin had
gun-shot wounds on their person. The evidence of
the Doctor is to the effect that these wounds may
have been caused by a country pistol which, it is
alleged, the appellant had in his hand. It has been
suggested on behalf of the defence that the
Medical Officer was not competent to speak about
it and that if the prosecution wanted to rely
thereupon, they should have called an arms expert
to speak to the same. Whether or not this comment
is legitimate, it is clear that if the appellant is to be
found directly responsible for inflicting the
wounds, noted as gun-shot wounds by the Medical
Officer, he might well have availed himself of the
opportunity to elucidate, by cross-examination or
positive defence, the nature of the firearm which
would have caused the actual injuries found on the
bodies of PW-2 and of deceased Surajdin. In all
the circumstances above noticed, we are satisfied
that the absence of specific charges against the
appellant under
sections 307
and
, Indian
Penal Code has materially prejudiced him. We
must accordingly set aside the convictions and
sentences of the appellant under
sections 307
and
of the Indian Penal Code.............."

(emphasis added)

32.
In
Krishna Govind Patil vs. State of Maharashtra
reported as AIR
1963 SC 1413, which is case of Section 302 read with
Section 34
IPC,
the Supreme Court made the following observations:-

"8.......While it acquitted Accused 1, 3 and 4 under Section
302, read with
Section 34
of the Indian Penal Code, it
convicted Accused 2 under Section 302, read with
Section 34
,

CRL.A. 717/2018 Page 19 of 28

of the said Code, for having committed the offence jointly with
the acquitted persons. That is a legally impossible position.
When accused were acquitted either on the ground that the
evidence was not acceptable or by giving benefit of doubt to
them, the result in law would be the same: it would mean that
they did not take part in the offence. The effect of the acquittal
of Accused 1, 3 and 4 is that they did not conjointly act with
Accused 2 in committing the murder. If they did not act
conjointly with Accused 2, Accused 2 could not have acted
conjointly with them......."

33.
In
Baul and Another vs. State of U.P.
reported as AIR 1968 SC
728, there were three accused charged with the offence under
Sections
/
IPC and the Sessions Court convicted all of them. In the appeal,
the High Court acquitted one of the accused and altered the sentence of
the other accused to Section 325 read with
Section 109
IPC. But the
conviction of the third accused was altered from
Sections 302
/
IPC to

Section 302
IPC simpliciter. The Supreme Court allowed the appeal of
the third accused by making the following observations:-

"7. No doubt the original prosecution case showed that
Sadhai and Ramdeo both hit the deceased on the head with
their lathies. One is tempted to divide the two fatal injuries
between the two assailants and to hold that one each was
caused by them. If there was common intention established
in the case the prosecution would not have been required to
prove which of the injuries was caused by which assailant.
But when common intention is not proved the prosecution
must establish the exact nature of the injury caused by
each accused and more so in this case when one of the
accused has got the benefit of the doubt and has been
acquitted. It cannot, therefore, be postulated that Sadhai
alone caused all the injuries on the head of the deceased.
Once that position arises the doubt remains as to whether

CRL.A. 717/2018 Page 20 of 28

the injuries caused by Sadhai were of the character which
would bring his case within Section 302. It may be that the
effect of the first blow became more prominent because
another blow landing immediately after it caused more
fractures to the skull than the first blow had caused. These
doubts prompt us to give the benefit of doubt to Sadhai. We
think that his conviction can be safely rested under
Section
of the Indian Penal Code, but it is difficult to hold in a
case of this type that his guilt amounts to
murder simpliciter because he must be held responsible for
all the injuries that were caused to the deceased. We convict
him instead of Section 302 for an offence under
Section 325

of the Indian Penal Code and set aside the sentence of
imprisonment for life and instead sentence him to rigorous
imprisonment for seven years."

34. A similar view was expressed by the Supreme Court in
Subran @
Subramanian vs. State of Kerala
reported as (1993) 3 SCC 32, as
follows:-

"11. Since, appellant 1 Subran had not been
charged for the substantive offence of murder
under
Section 302
IPC, even the trial court, which
tried the six accused persons, was not justified in
recording a conviction against him for the
substantive offence of murder punishable under

Section 302
IPC after framing a charge against
him for the offence under Section 302 read with

Section 149
IPC only. A person charged for an
offence under
Section 302
IPC read with Section
149 cannot be convicted, of the substantive
offence under
Section 302
, IPC without a specific
charge having been framed against him as
envisaged by law. Conviction for the substantive
offence in such a case is unjustified because an
accused might be misled in his defence by the
absence of the charge for the substantive offence

CRL.A. 717/2018 Page 21 of 28

under
Section 302
IPC simpliciter and, therefore,
in defending himself, he cannot be said to have
been called upon to meet that charge and he
could very well have considered it unnecessary to
concentrate on that part of the prosecution case
during the cross-examination of the prosecution
witnesses. Therefore, the conviction of the first
appellant for an offence under Section 302 was
not permissible." (emphasis added)

35. Again in
State of West Bengal vs. Vindu Lachman Das Sakhrani @
Deru
reported as 1995 SCC (Crl) 175, a case where both, husband and
wife were charged for committing an offence under
Sections 302
/
IPC
and the husband was acquitted but the wife was convicted for the
substantive offence, the Supreme Court reiterated its stand that there
being no charge under
Section 302
IPC simpliciter against the wife, she
could not have been convicted and in the following words:-

"4. .................Both
husband and wife were charged
with an offence under Section 302 read with

Section 34
I.P.C. The charge which was based on
the common intention of the two failed with the
acquittal of the husband and there being no charge
under Section 302 simpliciter against the wife she
could not be convicted. In any case there is no
evidence on the record to show that she
independently committed the offence."

36.
In
Nallabothu Venkaiah vs. State of A.P.
reported as (2002) 7 SCC
117, the Supreme Court was faced with two questions of law. Firstly,
whether the appellant could be convicted under
Section 302
IPC without
the aid of
Section 149
IPC, in the absence of any substantive charge

CRL.A. 717/2018 Page 22 of 28

under
Section 302
IPC. Secondly, whether the appellant could be
convicted under
Sections 302
/
IPC on selfsame evidence on the basis
of which other accused were acquitted. After analyzing a catena of earlier
decisions on the above aspect, the law was distilled in the following
words:-

"24. On an analytical reading of a catena of decisions of
this Court, the following broad proposition of law clearly
emerges: (a) the conviction under Section 302 simpliciter
without aid of Section 149 is permissible if overt act is
attributed to the accused resulting in the fatal injury which is
independently sufficient in the ordinary course of nature to
cause the death of the deceased and is supported by medical
evidence; (b) wrongful acquittal recorded by the High Court,
even if it stood, that circumstances would not impede the
conviction of the appellant under Section 302 read with

Section 149
IPC; (c) charge under Section 302 with the aid
of Section 149 could be converted into one under Section
302 read with
Section 34
if the criminal act done by several
persons less than five in number in furtherance of common
intention is proved."

37. In Koppula Jagdish @ Jagdish vs. State of A.P. reported as (2005)
12 SCC 425, three accused persons were charged under Section 302 read
with
Section 34
IPC for sharing a common intention to commit the
murder of the victim. The trial court convicted all the three accused. In
the appeal, the High Court acquitted two of the accused and the
conviction of the third accused was modified from Section 302 read with

Section 34
IPC to
Section 302
IPC simpliciter. In the above facts, the
Supreme Court observed as under:-

"3. Undisputedly, all the three accused persons were charged
under Section 302 read with
Section 34
IPC for sharing
common intention to commit murder of the victim. The other

CRL.A. 717/2018 Page 23 of 28

two accused persons as stated above, have been already
acquitted by the High Court. There is neither any allegation
nor evidence that the appellant alone inflicted all the
injuries or the fatal one. This being the position, the
appellant could not have been convicted under Section 302
simpliciter but could have been convicted only with the aid
of
Section 34
IPC, which also is not possible in the case in
hand as the other two accused persons with whom he could
have shared the common intention have been already
acquitted by the High Court. In our view, the High Court was
not justified in convicting the appellant under
Section 302

IPC."

38.
In Annareddy Sambasiva Reddy & Ors. Vs. State of Andhra
Pradesh reported as (2009) 12 SCC 546, placing reliance on its earlier
decisions in
Surajpal
(supra),
Pandurang, Tukia and Bhillia vs. State of
Hyderabad
reported as (1955) 1
SCR 1083 and Nanak Chand
(supra)
referred to
Section 464
of the Cr.P.C., which deals with the fact of
omission of framing, or absence of, or error in charge, the Supreme Court
held that no straightjacket formula can be applied and every case must
depend on its merits. The essential and important aspect to be kept in
mind is:- has omission to frame a specific charge resulted in prejudice to
the accused.

39. In the instant case too, it is an admitted position that no separate
charge was framed against the appellant for the substantive offence under

Section 302
IPC. Once charges were framed by the trial court against all
the accused collectively and not individually and no effort was made by
the prosecution to approach the trial court for amending the charges as
framed, the appellant alone could not have been convicted for a

CRL.A. 717/2018 Page 24 of 28

substantive offence under
Section 302
IPC. This is an illegality which is
not curable in the circumstances of the present case as in the absence of
any substantive charge framed against him under
Section 302
IPC, the
appellant was misled in his defence.

40. Moreover, there is no direct evidence against the appellant for
upholding his conviction under
Section 302
IPC. Mere recovery of the
weapon of offence at the instance of the appellant cannot be the sole
premise on which a judgment of conviction under
Section 302
IPC could
be recorded. It is too slender an evidence to hold him guilty of such an
offence. This is particularly so when the fifth accused, who as per the
prosecution, is the one who had pulled out the pistol and fired at the
deceased, has been acquitted by the learned ASJ. There is also no
explanation as to why despite the second accused, who was arrested on
26.12.2016, three days before the appellant was arrested, stated in his
disclosure statement that he could get the weapon of offence recovered
from a third person, no steps were taken in that direction. In the absence
of any other evidence connecting the appellant with the commission of
the murder of the deceased, the trial court could not have proceeded to
convict him for the offence under
Section 302
IPC while proceeding to
acquit the remaining accused. For the aforesaid reason too, the impugned
judgment is unsustainable, being contrary to the settled legal position and
is accordingly quashed and set aside alongwith the order on sentence.

41. Before parting with this case, we would also like to highlight
another disturbing feature i.e., the lapse on the part of the trial court in
omitting to frame a charge against the appellant and the fifth accused for

CRL.A. 717/2018 Page 25 of 28

the offence under
Section 25
of the Arms Act, particularly when the
original charge-sheet and the supplementary charge-sheet filed in the
present case specifically refer to the provisions of
Sections
/
/
120B
/
IPC and
Section 25
/
of the Arms Act. Vide order
dated 5.4.2017, the trial court had framed the charge against all the
accused except for the fifth accused, Sandeep @ Bachha, who was yet to
be arrested, under
Section 302
IPC read with
Section 34
IPC, without
making any reference to
Sections 25
and
of the Arms Act. Even at the
stage of amending the original charge vide order dated 19.5.2017, on
account of an error in recording the correct FIR number wherein the
deceased was an eye witness, the prosecution failed to point out that no
charge had been framed under
Sections 25
/
of the Arms Act, nor did
the trial court notice this omission or take any step to amend the charge.
The third occasion for amending the charge arose when the fifth accused
was finally apprehended and a supplementary charge-sheet was filed
against him. Vide order dated 30.8.2017, charge was famed against the
said accused, who as per the prosecution version, had taken out a pistol
and fired at the chest of the deceased. Yet again, no charge was framed
against him under
Sections 25
/
of the Arms Act. Even the sanction
order dated 31.7.2017 under
Section 39
of the Arms Act for prosecution
of the appellant and A-5 were not taken into account by the learned ASJ
for framing the charge against them under
Sections 25
/
of the Arms
Act. Ironically, this lapse went undetected not only by the learned ASJ,
but also by the learned APP even during the course of the trial when PW-
27, the sanctioning authority had appeared and testified that she had
accorded sanction under
Section 39
of the Arms Act for the prosecution

CRL.A. 717/2018 Page 26 of 28

of the appellant and A-5 under
Section 25
of the Arms Act and the
ballistic expert witnesses, PW-22, PW-24 and PW-25 had appeared and
proved their reports in respect of the weapon of offence, the empty
cartridge etc. As a result of this negligence on the part of the prosecution
and omission on the part of the trial court, no charge came to be framed
against the appellant and A-5 under
Sections 25
/
of the Arms Act,
which can only be described as a colossal blunder. Such a casual manner
of framing the charge is a matter of serious concern.

42. To sum up, here is a case where the appellant has been convicted
under
Section 302
IPC without any foundation laid for the said offence
and though evidence was led by the prosecution for proving the charge
under
Sections 25
/
of the Arms Act, it could not yield any result in the
absence of any charge framed against the appellant and A-5 for the said
offence, due to gross negligence on the part of the prosecution,
compounded by the oversight attributable to the trial court. It is
noteworthy that the case was assigned to a Pilot Court and it was the
same Judicial Officer who had framed the charge and conducted the trial
to finally deliver the impugned judgment of conviction.

43. As a result of the above discussion, the appeal is allowed. The
impugned judgment of conviction and order of sentence qua the appellant
are quashed and set aside. The appellant is acquitted for the offence
punishable under
Section 302
IPC and is directed to be released
forthwith, unless required to be detained in any other case. The bail bond
and surety bond offered by him stand discharged. The appellant shall
fulfill the requirements of
Section 437-A
of the Cr.P.C. at the earliest.

CRL.A. 717/2018 Page 27 of 28

44. The appeal is disposed of. Trial court record be sent back forthwith
alongwith a certified copy of this judgment. The Registry shall forward a
copy of this judgment to the concerned ACR Committee of the learned
ASJ for perusal.

(HIMA KOHLI)
JUDGE

(VINOD GOEL)
JUDGE
MAY 15, 2019
NA/rkb/ap

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