Co-accused cannot be convicted in absence of a separate substantive charge, Delhi HC

The Delhi High Court recently held that in the absence of a substantive charge against a co-accused “alone”, a Trial Court cannot convict him for those offences if the other co-accused who are “collectively charged” for those substantive offence stand acquitted..The judgment was passed by a Division Bench of Justices S Muralidhar and Vinod Goel in an appeal against the conviction of an accused person for offences under Sections 302, 364 and 201 of the Indian Penal Code, 1860 when the charge under Section 120-B stood defeated after the acquittal of two other co-accused..The charge against all the three accused persons was, first, that they entered into a criminal conspiracy to abduct and murder the deceased, thereby committing an offence under Section 120-B IPC. Secondly, that they abducted the deceased and then murdered him and disposed of his dead body after removing his belongings, thereby committing offences punishable under Sections 302, 364,201,404 read with Section 120-B IPC..The acquittal of the two co-accused remained unchallenged by the State, and no move was made by the prosecution to amend the charges framed against the appellant..With the acquittal of co-accused, the charge under Section 120-B IPC failed against the Appellant. However, the Trial Court went on to convict him for the substantive offence punishable under Sections 302, 364 and 201 IPC..Calling it a “fatal flaw“, the Court held that the appellant could not have been convicted for these substantive offences when “there was no charge framed against him to that effect.”.The Court observed that when there is no amendment to the charges after the co-accused are acquitted, the accused is denied the opportunity to rebut that the prosecution’s claim that he was acting alone towards the commission of the substantive offences. The accused is hence denied the opportunity to defend himself, which materially prejudices him, it further observed..The Court thus held,.“The Appellant is accordingly acquitted of the offences punishable under Sections 302, 364 and 201 IPC. The impugned judgment of the trial Court and the order on sentence are accordingly set aside.”.The High Court noted that the Trial Court had convicted the appellant on the basis of circumstantial evidence. This, after finding that the deceased was last seen at the shop of the appellant, who owed him Rs. 80,000-90,000. This in turn was established as the motive to kill the deceased..As regards when the deceased was last seen, the Court noted that the two witnesses who testified that the deceased was last seen at the office of the appellant had turned hostile..While three witnesses corroborated the fact that the deceased had met the appellant on the night of October 28, 2000, the date of death was established to be October 31, 2000. The time and place of discovery of the dead body not being proximate to the meeting, the Court found that it was not an incriminating circumstance..The case was also marred by inconsistencies in recording statements of witnesses, recording of recovery of dead body, witnesses turning hostile..The Court further held that the motive behind killing the deceased could not be cogently established. Thus,.“The result of the above discussion is that among the circumstances outlined by the trial Court, except the evidence that the deceased was perhaps in the company of A-3 till around 10 pm on the night of 28th October 2000, the other links in the chain of circumstances viz., the recovery of the dead body, the recovery of the clothes and the car of the deceased at the instance of A-3; and importantly, the motive for the commission of the crime have not been conclusively proved by the prosecution. In other words the prosecution has failed to show that it is A-3 and A-3 alone who is responsible for the death of the deceased.”.It was noted that the charges framed under Sections 302, 364 and 201 IPC were against all the three accused collectively and not just the appellant. As there was no charge framed against him individually, the Trial Court could not convict him of the said offences, the High Court held..The appellant was represented by Advocates Pramod Kumar Dubey, Rohit Priya Ranjan, Pinky Dubey, Saurabh Kumar, Shweta Sharma, Prince Tiwari, Trisita Parashar, Ayush Kaushik and Vikhyat Oberoi..State was represented by APP Kewal Singh Ahuja..Read the Judgement: