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Anil Kaura @ Sachin vs The State & Anr on 11 May, 2022

Author: Chandra Dhari Singh

Bench: Chandra Dhari Singh

                             $~39
                             *       IN THE HIGH COURT OF DELHI AT NEW DELHI
                             +       CRL.REV.P. 25/2019
                                     ANIL KAURA @ SACHIN                                ..... Petitioner
                                                        Through:      Mr. Joginder Tuli, Ms. Joshini Tuli
                                                                      and Ms. Kashish Nanda, Advocates

                                                        versus

                                     THE STATE & ANR                                    ..... Respondent
                                                        Through:      Ms. Kusum Dhalla, APP for State
                                                                      with SI Sandeep, P.S. Mehrauli

                                     CORAM:
                                     HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
                                                        ORDER

% 11.05.2022

1. The instant petition under section 397/401 read with section 482 of the Criminal Procedural Code, 1973 (hereinafter „CrPC‟) has been filed for setting aside the order on charge dated 4th October 2018 and consequent framing of charges on 4th October 2018 and 8th October 2018 (corrected charge) passed by the Learned ASJ, Saket Courts, New Delhi in case titled as "State Vs. Sandeep Gupta & Ors" pertaining to FIR no. 181/2018 registered at Police Station Mehrauli.

2. Brief facts of the case are that the instant FIR was registered on the complaint of Mr. Rakesh Kumar who is the resident of Chhattarpur Enclave, New Delhi. On 16th March 2018 at about 11:30 pm, complainant‟s son Nitin and Jaidev returned to home from a party, Jaidev was caught hold by the Sandeep gupta and Ashish Kichar and they started beating and abusing him.

Hearing noise, Jaidev‟s son Sumit and Complainant‟s Son Gaurav came to spot. Sandeep started saying that all of you interfere a lot in our building works, we shall finish you today. Ashish Kochar allegedly took out a small gun from his pant while Sandeep Gupta tried to get hold of the complainant and asked Ashish to shoot the RWA people. Ashish fired at the complainant but he was saved by his son. Thereafter, Ashish fired at Nitin, who received gun shot on his head and hand, and Sumit on his chest. The gun fell on the ground which was picked up by Sachin and all the three persons (including the petitioner herein) fled from the spot in a car. Nitin and Sumit were taken to Hospital, but Sumit was declared dead.

3. Learned counsel appearing on behalf of the petitioner submitted that the petitioner has been falsely implicated in the present case as perusal of FIR shows that petitioner was not the assailant and no overt act has been alleged against him. The only role as alleged is that he was present at the spot and picked up the gun which had allegedly fallen on the ground after the incident and petitioner fled away from the spot along with two other accused in one car.

4. It is submitted that learned ASJ failed to appreciate that no prima facie case is made out and charges were framed against the petitioner erroneously. It is submitted that there is no evidence/material on record to justify the charges under Sections 307/302/201/34 of the Indian Penal Code, 1860.

5. It is submitted that according to CDR, the petitioner was seen only at about 00:01 AM on 17th March 2018, i.e, after about half an hour of the alleged incident. Even the Complainant, the witnesses and the mother of the deceased, all have given different versions of the incident. Thus, it is clear Signature Not Verified Digitally Signed By:GAURAV SHARMA CRL.REV.P. 25/2019 Page 2 of 7 Signing Date:13.05.2022 16:12:06 that the petitioner was not involved in the commission of any offence.

6. In support of his arguments, learned counsel relied upon the judgment of Alamohan Das Vs. State of West Bengal, AIR 970 SC 863; Union of India Vs. Prafulla Kumar Samal & Anr., AIR 1979 SC 366; Udai Shankar Awasti Vs. State of U.P & Anr., (2013) 2 SCC 435 and Mehraj Singh Vs. State of U.P, (1994) 5 SCC 188.

7. Per Contra, Ms. Kusum Dhalla, APP for the State informs the Court that in the instant petition trial has been commenced and out of 53 witnesses, 17 have already been examined.

8. It is submitted that at the stage of framing of charge, only prima facie view is to be taken. The material on record prima facie discloses the offences for which charge sheet has been filed against the accused persons.

9. Heard learned counsel for the parties and perused the record.

10. The Hon‟ble Bombay High Court in the case of Samadhan Baburao Khakare v. State of Maharashtra, 1995 SCC OnLine Bom 72 has highlighted the objectives and importance of Charge in criminal trial in the following words:

"11. The whole purpose and object of framing charges is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted is not brought out in the charge then the charge is not only defective but illegal. It is no doubt that when the accused is charged with a major offence, he can be convicted of a minor offence. It is true that what is major offence and what is minor offence is not defined. The gravity of offence must depend upon the severity of the punishment that can be inflicted, but the major and the minor offences must be cognate offences which have the main ingredients in common, and a man charged with one offence which is entirely of a Signature Not Verified Digitally Signed By:GAURAV SHARMA CRL.REV.P. 25/2019 Page 3 of 7 Signing Date:13.05.2022 16:12:06 different nature from the offence which is proved to have been committed by him, cannot in the absence of a proper charge be convicted of that offence, merely on the ground that the facts proved constitute a minor offence. For example, a man charged with an offence of murder cannot be convicted for forgery or misappropriation of funds, or such offences which do not constitute offences against person, the reason being that the accused had no opportunity in such a case to make defence, which may have been open to him, if he had been charged with the offence for which he is to be convicted."

11. The Hon‟ble Supreme Court in the case of Santosh Kumari v. State of J&K, (2011) 9 SCC 234 has comprehensively dealt with the question and purpose of framing of charges as under:

"18. The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. Sections 34, 114 and 149 IPC provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and as explained by a five-Judge Constitution Bench of this Court in Willie (William) Slaney v. State of M.P. [AIR 1956 SC 116 :

1956 Cri LJ 291 : (1955) 2 SCR 1140] SCR at p. 1189, the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable."

12. The Hon‟ble Supreme Court in Main Pal v. State of Haryana, (2010) 10 SCC 130 observed as follows:

"(i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged."

Thus, what can be seen from the above extract is the fact that the object of framing of charge is to make the accused aware about the defence that is required to be brought in through evidence and witnesses.

13. It is also required to be noted that the charge does not render a conclusive finding with respect to guilt or innocence of the accused. The charge is merely an indication to the accused about the offence for which he is being tried for. In this regard, it is essential to take note of the following observations of the Hon‟ble Supreme Court in Esher Singh v. State of A.P. (2004) 11 SCC 585 :

"20. Section 2(b) of the Code of Criminal Procedure, 1973 (in short "the Code") defines "charge" as follows:

"2. (b) „charge‟ includes any head of charge when the charge contains more heads than one;"

The Code does not define what a charge is. It is the precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage. A charge is not an accusation made or information given in the abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding it. In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him. A charge is formulated after inquiry as distinguished from the popular meaning of the word as implying inculpation of a person for an alleged offence as used Signature Not Verified Digitally Signed By:GAURAV SHARMA CRL.REV.P. 25/2019 Page 5 of 7 Signing Date:13.05.2022 16:12:06 in Section 224 IPC."

14. In the instant case, charges were framed by learned Special judge on 4th October 2018 after detailed consideration of the material on record. For proper adjudication, it is relevant to mention certain observations made in the order on charge:

"20. The accused Anil Kaura @ Sachin was waiting at the spot with Sandeep and Ashish for the complainant and Jaidev. After their arrival, on the exaltation of the accused Sandeep, Ashlsh fired the shots which injured Nitin and Killed Sumit. The accused Anil Kaura @Sachin did not try to prevent the other two accused from assaulting the complainant party and firing on them. After the incident, he picked up the gun and fled from the spot with the other accused. Intention is a state of mind and it can be gathered from the circumstances. The facts and circumstances mentioned above show that the accused Sandeep, Ashish and Anil @Sachin shared common intention to commit the offences punishable u/s. 307 and 302 IPC. Charge is liable to be framed against all three of them u/s. 307/34 IPC and 302/34 IPC By using and exposing a firearm without having license, the accused Ashish Kochar committed an offence punishable u/s. 27 Arms Act read with section 5 Arms Act. For the offence u/s. 27 Arms Act, sanction u/s. 39 Arms Act is not required. If the allegations against these three accused remain unrebutted then the prosecution's case will have to be believed. This justifies framing of the charges against the three accused under the provisions mentioned above. The accused persons shared common intention to cause disappearance of the firearm which was used in commission of the crime. The firearm was picked up by the accused Anil Kaura @Sachin and the accused Ashish Kochar disclosed that he disposed of the firearm by throwing it in a moving goods train. Charge is liable to be framed against all three of them u/s. 201 IPC read with section 34 IPC."

15. In the instant case trial has already been commenced and out of 53 Signature Not Verified Digitally Signed By:GAURAV SHARMA CRL.REV.P. 25/2019 Page 6 of 7 Signing Date:13.05.2022 16:12:06 witnesses, 17 witnesses have been examined. The Court below while framing charges against the accused persons considered entire material(s) on record and passed speaking and reasoned order(s).

16. In view of aforesaid facts and circumstances and having perused the provisions of law, this Court does not find any cogent reason to interfere with the impugned order dated 4th October 2018.

17. The petition is devoid of any merit and the same is accordingly dismissed. Pending application, if any, stands disposed of.

CHANDRA DHARI SINGH, J MAY 11, 2022 Aj/ct Signature Not Verified Digitally Signed By:GAURAV SHARMA CRL.REV.P. 25/2019 Page 7 of 7 Signing Date:13.05.2022 16:12:06