STATE OF NCT OF DELHI versus SHIV CHARAN BANSAL & ORS.

[2019] 17 S.C.R. 1155

STATE OF NCT OF DELHI

SHIV CHARAN BANSAL & ORS.

(Criminal Appeal No. 2248 of 2010)

DECEMBER 5, 2019

[INDU MALHOTRA AND R. SUBHASH REDDY, JJ.]

Code of Criminal Procedure, 1973: s.227 – Appeal by Stateand complainant against the discharge of accused persons –Prosecution case was that the victim-deceased was murdered in hishouse – The alleged contract killer came as courier boy wearingblack cap and goggles – The wife of the complainant identifiedhim in investigation – As per the version of son/nephew andbrothers of the deceased, the deceased had invested substantialamount of money in committees run by accused-SCB and his sonaccused-SB which they were reluctant to return and were alsotrying to usurp share of the deceased in factory – Statement ofanother brother of the deceased was that he and his son werereceiving threatening calls from accused-NM, accused-LM andtheir associates and that these accused were responsible for murderof deceased – NM, LM and accused-Advocate-RS were arrestedwhen they were travelling in car and black photo frame, blackcap, black goggles and photo of the deceased were recoveredfrom the car – NM got the Getz car recovered from the house inhis village, in which the contract killer – JSS allegedly travelledto the site of occurrence to murder the deceased – The unlicensedpistol along with two live cartridges were recovered from the officeof accused-SS – During investigation, the Call Detail Records ofthe accused were collected by the Investigating Officer – As perthe version of the prosecution, NM had asked his cousin brotherLM to carry out the murder – After initially agreeing, LMsubsequently backed out – Thereafter, JSS was asked to executethe murder – F.S.L Report recorded that the lead recovered fromthe body of the deceased was fired from the pistol recovered fromthe office of SS – As per the report of the handwriting expert, thespecimen handwriting of JSS matched the writing on the envelopewhich allegedly was carried by JSS to the house of the deceased– NM borrowed car, unlicenced pistol with five cartridges and

DEFG

Atook JSS to the place of occurrence and waited in the car for JSSwhile he went to murder the deceased and then helped JSS to getaway – NM was in continuous contact with accused-SB before andafter the incident – The records of the committees run by SCB wereallegedly destroyed by him – This would strong suspicion aboutthe conduct of SCB – The destruction of the records of theBcommittees, which would have revealed the substantial investmentsmade by the deceased was an incriminating factor – Thecircumstance of absconding of accused immediately after themurder would be also admissible as relevant ‘conduct’ under s.8of the Evidence Act – The contemporaneous Call Detail RecordsC(CDRs) between SB and NM, who accompanied JSS would alsoconstitute strong material for framing the charge against all theaccused – Charge Sheet was filed against all the accused –Sessions Court held that there was common intention between NMand JSS in the act of killing the deceased – However LM wasdischarged as there was not sufficient evidence to connect him withDthe crime – With respect to RS, it was held that evidence was notsufficient to frame charges against him as he had only tenderedadvice to NM to the effect that he should not use his licensed pistolfor carrying out the murder – With respect to SS, the Sessions Courtheld that the unlicensed pistol along with two live cartridges wereErecovered from his office and charged him only for the offence u/S. 25 of the Arms Act for keeping an unlicensed firearm in hispossession – Sessions Court discharged SCB since the prosecutionhad collected evidence against him only in the form of disclosurestatements from the accused persons after arrest – Sessions CourtFcharged SB for the offence u/S. 25 of the Arms Act, since he gotthe licensed pistol belonging to NM recovered from his factorypremises – Sessions Court held that the prosecution failed to makeout prima facie case against RS, LM, SCB who were discharged– The State and the complainant filed Revision before the HighCourt – High Court held that NM, SB, JSS were to be charged u/Gs.302 read with s.34 IPC read with 120B IPC – The Judgment ofthe Sessions Court ordering discharge of SCB, SS, LM, RS wasaffirmed by the High Court – Hence the instant appeal by the Stateand the complainant – Held: The present case is one where theprosecution has alleged that there was criminal conspiracy toHmurder the deceased by all the accused – The crime was not

committed at the spur of the moment, but was preceded bymeticulous planning where each of the accused played separaterole to achieve the common illegal object of carrying out themurder of the deceased – The manner and circumstances in whichthe offence was committed, and the level of involvement of theaccused persons were relevant factors – Each conspirator playedhis separate part in one integrated and united effort to achievethe common purpose – Each one was aware that he has part toplay in the general conspiracy, to accomplish the common object– Conspiracy is mostly proved by circumstantial evidence by takinginto account the cumulative effect of the circumstances indicatingthe guilt of the accused, rather than adopting an approach byisolating the role played by each of the accused – The acts orconduct of the parties must be conscious and clear enough to infertheir concurrence as to the common design and its execution – Incases of criminal conspiracy, better evidence than acts andstatements of co-conspirators is hardly ever available – There wasample material brought on record which created grave suspicionabout the involvement of SCB, LM, SS in the murder of the deceased– Accordingly, Sessions Court is directed to frame charges againstSCB under s.302 r/w s.34 IPC and s.120B and s.201; LM unders.302 r/w s.34 and s.120B; and against SS under s.302 r/w s.34and s.120B and ss.25, 27, 54 and 59 of Arms Act – Penal Code,1860 – s.302 r/w s.34.

Code of Criminal Procedure, 1973: ss.227, 228 – Scope of– Held: The Court while considering the question of framingcharges under s.227 has the power to sift and weigh the evidencefor the limited purpose of finding out whether or not prima faciecase has been made out against the accused – If the materialplaced before the court discloses grave suspicion against theaccused, which has not been properly explained, the court will befully justified in framing charges and proceeding with the trial –At this stage, there cannot be roving enquiry into the pros andcons of the matter, the evidence is not to be weighed as if trial isbeing conducted.

Code of Criminal Procedure, 1973: ss.223, 386, 391 – Held:s.223 provides that persons accused of the same offence, committedin the course of the same transaction, must be jointly charged andtried – In the instant case, on account of the inconsistency in

1158SUPREME COURT REPORTS

Aframing charges by the Sessions Court against the six accused, thetrial got truncated – The trial with respect to three accused i.e. SB,NM and JSS proceeded in the absence of the other three accusedviz. SCB, LM and SS – This was case of criminal conspiracybased on circumstantial evidence – Since the trial in the instantcase got truncated, it is necessary that the trial of the remainingBthree accused proceeds forthwith in accordance with law – Withrespect to the other three accused i.e. SB, NM and JSS the trialwas conducted in the absence of the other three alleged co-conspirators – The order of acquittal with respect to SB and NMis pending before the High Court – s.386 defines the powers ofCthe appellate court in dealing with appeals – Under clause (a) ofs.386, the High Court may reverse the order of acquittal and directthat further enquiry be made, or the accused may be re-tried, ormay find him guilty and pass sentence thereon – As an appellateCourt, the High Court may take further evidence while consideringthe appeals under s.391, if it is considered necessary, and takeDadditional evidence on record. The High Court may also permitrecording of statements under s.313 if considered necessary – HighCourt may take up the pending appeals in the case of SB, NM andJSS, after the conclusion of the trial of SCB, LM and SS, theremaining accused by the Sessions Court in this case.

EPartly allowing the appeals, the CourtHELD: 1.1 Scope of Section 227 and 228 of the Cr.P.C.At the stage of framing charges under S.227 and S.228 Cr.P.C,the Court is required to consider whether there was sufficientmaterial on record to frame charges against accused-SCB,accused-SS, accused-LM and accused-RS. The prosecutionFalleged that the offences u/S. 120B, S.302 r.w. S.120B/34, S.201IPC and S.25 of the Arms Act ought to have been framed. TheCourt while considering the question of framing charges underSection 227 of the Cr.P.C has the power to sift and weigh theevidence for the limited purpose of finding out whether or not aGprima facie case has been made out against the accused. Thetest to determine prima facie case would depend upon the factsof each case. If the material placed before the court disclosesgrave suspicion against the accused, which has not been properlyexplained, the court will be fully justified in framing charges andproceeding with the trial. The probative value of the evidenceHbrought on record cannot be gone into at the stage of framing

charges. The Court is required to evaluate the material anddocuments on record with view to find out if the facts emergingtherefrom taken at their face value disclose the ingredientsconstituting the alleged offence. At this stage, there cannot bea roving enquiry into the pros and cons of the matter, theevidence is not to be weighed as if trial is being conducted.[Para 32] [1175-B-F]

1.2 Criminal Conspiracy. The present case is one wherethe prosecution has alleged that there was criminal conspiracyto murder the deceased by all the accused. The crime was notcommitted at the spur of the moment, but was preceded bymeticulous planning where each of the accused have played aseparate role to achieve the common illegal object of carryingout the murder of the deceased. criminal conspiracy isgenerally hatched in secrecy, and it is difficult, if not impossible,to obtain direct evidence. The manner and circumstances inwhich the offence has been committed, and the level ofinvolvement of the accused persons are relevant factors. Eachconspirator plays his separate part in one integrated and unitedeffort to achieve the common purpose. Each one is aware thathe has part to play in the general conspiracy, to accomplishthe common object. In the facts of the instant case, there wasample material brought on record which created gravesuspicion about the involvement of SCB, LM, SS in the murderof the deceased. [Para 32] [1176-D-G; 1177-A-F]

Accused-SCB.Both the Sessions Court and the HighCourt have noted that all the witnesses have clearly attributedthe murder to SCB and his son SB. The motive of the crimewas to misappropriate the investments made by the deceasedin the committees of SCB. The son of the deceased has furtherdeposed that the further circumstance was on account of thebusiness dealings between the families of the deceased and SCB.As per the case of the prosecution, the murder was contrivedby SCB and his son SB with NM and the other co-conspiratorsbeing LM who arranged the contract killer-JSS, SS who providedthe weapon of offence which was recovered from his office, alongwith live cartridges. The contemporaneous Call Detail Records(CDRs) between SB and NM, who accompanied JSS-the contractkiller, would constitute strong material for framing the charge

Aagainst all the accused. The murder took place at about 4:30p.m. NM from his cell phone made call at 3:51 p.m. to SB onhis cell phone prior to the execution of the crime. After themurder was committed, NM called SB on his cell phone at 4:48p.m. These call records in quick succession immediately beforeand after the murder was committed, lead to grave suspicionBabout the complicity of these accused. The Call Detail Recordsreveal that the accused were in close contact and communicationwith each other both before and after the occurrence. The recordof the Sessions Court show that the Call Detail Records of SCB,which was crucial piece of evidence was deliberately not placedCby the I.O. along with the Charge Sheet. The missing Call DetailRecords of only SCB creates strong suspicion against him. Therecords of the committees run by SCB were allegedly destroyed.This would create strong suspicion about the conduct of SCB.In his disclosure statement, SCB stated that he had all therecords of the committees. However, two days later, he changedDhis version and stated that the committee records have beendestroyed by his son SB. The prosecution has alleged that therecords of the committees were burnt/destroyed by the father-son duo. The destruction of the records of the committees, whichwould have revealed the substantial investments made by thedeceased is an incriminating factor. The conduct of SCB afterEthe murder was committed, is also of relevance. The policeapprehended SB on 29.03.2006 from his factory. SCB remainedabsconding after the murder was committed on 21.03.2006, anddid not join the investigation despite efforts by the Police. Hewas apprehended after more than one month. The saidFcircumstance of absconding immediately after the murder wascommitted, would be admissible as relevant ‘conduct’ u/S.8 ofthe Evidence Act. The materials gathered by the prosecutionraise strong suspicion against both SCB and his son SB inhatching the conspiracy for the murder of the deceased. [Para32] [1179-A-H; 1180-A-H; 1181-A]G

Accused-LM– The prosecution relied upon the statementof nephew of the deceased. The said witness in his statementu/S. 161 Cr.P.C, which was recorded soon after the murderstated that NM, LM, SB and his friends used to threaten himover the phone. The disclosure statement made by NM revealsHthat initially he had asked LM to carry out the murder. LM had

full knowledge of the criminal conspiracy hatched to murder thedeceased. Soon after the murder took place, NM and LM wereabsconding. Since LM did not join the investigation after thecommission of the crime, the conduct of the accused inabsconding would be admissible as relevant ‘conduct’ u/S. 8 ofthe Indian Evidence Act. On 29.03.2006 i.e. eight days after themurder tookplace, three of the accused viz. NM, LM and RSwere apprehended by the police while they were travelling inan Esteem car. The police recovered incriminating objects i.e.photo of the deceased which was given to the contract killer foridentification, goggles and black cap worn by the contract killer-JSS to conceal his identity, from the car. The Call Detail Recordsof LM reveal that from his cell phone, he was in communicationwith JSS on his cell prior and subsequent to the commission ofthe crime. The Courts below were unjustified in not framing thecharges u/S., 302 r.w. S.34, S120B IPC against accused LM.[Para 32] [1181-F-G; 1182-A-F]Accused-SS– As per the case of the prosecution, accused-SS provided the weapon of offence. Furthermore, after the crimewas committed, SS remained absconding for period of 75 days.The recovery of the weapon of offence i.e. an unlicensed 7.65mm bore pistol along with two live cartridges from the office ofthis accused creates strong suspicion of his involvement in theconspiracy. The Ballistic Report has certified that the three usedcartridges recovered from the site of occurrence, and the leadretrieved from the body of the deceased, matched with the livecartridges recovered from the house of accused-SS and werefired from the unlicensed pistol recovered from house ofaccused- SS. The circumstance of the weapon of offence beingfound in the custody and possession of SS would be admissibleas “conduct” under Section 8 of the Indian Evidence Act,irrespective of the statements made by the co accused. Thecrucial recovery of the weapon of offence from the house of SSwas very important circumstance in the chain of events, whichwas sufficient to proceed against him in trial u/S. 302 r.w. S.34and 120B IPC. The call detail records produced before theSessions Court, reveals the communication between NM and SSon the date of the murder, which is relevant material as perSection 8 of the Evidence Act. It is surprising that the SessionsCourt and the High Court having accepted the recovery of the

Aunlicensed weapon from the office of SS, charged him only withthe offence u/S. 25 of the Arms Act. [Para 32] [1182-G-H; 1183-A-H]

Accused-RS. With respect to the discharge of RS, theOrder of the Sessions Court and High Court is not disturbed,Bas there is not sufficient material to prosecute him. [Para 32][1184-A]

Accused-NM– He was charged u/S. 302 r.w. S.34, S. 201IPC and S. 25 and 29(b) of the Arms Act by the Sessions Court.The Sessions Court acquitted him. The challenge against hisCacquittal is pending determination. [Para 32] [1184-B-C]

Section 223 of the Cr.P.C. provides that persons accusedof the same offence, committed in the course of the sametransaction, must be jointly charged and tried. In the presentcase, on account of the inconsistency in framing charges by theSessions Court against the six accused, the trial has gotDtruncated. The trial with respect to three accused i.e. SB, NMand JSS has proceeded in the absence of the other three accusedviz. SCB, LM and SS. The present case is one of criminalconspiracy based on circumstantial evidence. For case ofcriminal conspiracy to be established, each link in the chain ofEcircumstances would get completed, only if the evidencecollected by the prosecution against all the accused was takeninto consideration holistically. Since the trial in the present casehas got truncated, it is necessary that the trial of the remainingthree accused proceeds forthwith in accordance with law. Withrespect to the other three accused i.e. SB, NM and JSS the trialFwas conducted in the absence of the other three alleged co-conspirators. The Order of acquittal with respect to SB and NMis pending before the High Court. S.386 Cr.P.C. defines thepowers of the appellate court in dealing with appeals. Clause (a)of S.386 Cr.P.C. is restricted to the powers of the High Courtsince an appeal against an Order of acquittal lies to the HighGCourt. The appellate court may direct the accused to be re-tried,not only when it deals with an appeal against acquittal, but alsowhen it deals with an appeal against conviction. Under clause(a) the High Court may reverse the Order of acquittal and directthat further enquiry be made, or the accused may be re-tried,Hor may find him guilty and pass sentence thereon. As an

appellate Court, the High Court may take further evidence whileconsidering the Appeals u/S.391 Cr.P.C, if it is considerednecessary, and take additional evidence on record. The HighCourt may also permit recording of statements u/S.313 Cr.P.C,if considered necessary. The High Court may take up the pendingappeals in the case of SB, NM and JSS, after the conclusion ofthe trial of SCB, LM and SS, the remaining accused by theSessions Court. The Additional Sessions Judge, Rohini Courts,Delhi is directed to frame charges against SCB u/S. 302 r.w. S.34IPC and S. 120B, and S.201 IPC and proceed with the trial inaccordance with law; against LM u/S. 302 r.w. S.34 IPC andS.120B IPC and proceed with the trial in accordance with lawand SS u/S.302 r.w. 34 IPC and S. 120B IPC, and S. 25, 27, 54and 59 of the Arms Act. [Para 32] [1184-D-H; 1185-A-E-G; 1186-A-B]

State of Bihar v. Ramesh Singh (1977) 4 SCC 39 :[1978] 1 SCR 257 ; Dipakbhai Jagdishchandra Patelv. State of Gujarat and Another (2019) SCC OnlineSC 588 ; Isaac alias Kishore v. Ronald Cheriyan & Ors(2018) 2 SCC 278 : [2018] 1 SCR 217 ; AlisterAnthony Pareira v. State of Maharashtra (2012) 2 SCC648 : [2012] 1 SCR 145 ; Asraf Ali v. State of Assam(2008) 16 SCC 328 : [2008] 10 SCR 1115 – reliedon.

State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79 ; KeharSingh & Ors. v. State (Delhi Administration) (1988) 3SCC 609 : [1988] 2 Suppl. SCR 24 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2248 of 2010.

AFrom the Judgment and Order dated 29.05.2009 of the HighCourt of Delhi at New Delhi in Criminal Revision No. 335 of 2008

With

Criminal Appeal No. 2247 of 2010.BMrs. Aiswariya Bhati, R. Basant, Sidharth Luthra, Sr. Advs., BrajKishore Mishra, Sanjiv Jha, Ms. Aparna Jha, Ms. Kriti Sondhi, AbhishekYadav, Ms. Suhasini Sen, Sachin Sharma, B. V. Balaram Das, HimanshuNailwal, Vishnu Pazhanganat, Ankur Garg (for Ms. Pallavi Pratap),Sumeer Sodhi, Amitabh Sinha, Danish Aftab Chowdhury, Anil,Imraj Rautela, Ankit Dhawan, Aroon Menon (for Yash Pal Dhingra),CV. K. Sidharthan, Vineet Bhagat, Advs. for the appearing parties.

The Judgment of the Court was delivered by

INDU MALHOTRA, J.

1. The present Criminal Appeals have been filed by the StateD(Criminal Appeal No. 2248 of 2010) and the complainant – Kanta Devi(Criminal Appeal No. 2247 of 2010) to challenge the Order ofDischarge granted to Shiv Charan Bansal, Lalit Mann @ Nanhe,Shailendra Singh and Rajbir Singh by the Delhi High Court.

2. The factual matrix from which the present Appeals arise fromEis the filing of F.I.R No. 200/2006 by the Complainant Kanta Devi –widow of late S.N. Gupta on 21.03.2006 with the Police StationMangolpuri, Delhi under Sections 120B, 302, 201 r.w. S.34 IPC andSections 25, 27, 54, 59 of the Arms Act. The Complainant stated thaton 21.03.2006, she was in the house with her husband – S.N. Gupta.At about 4:30 p.m., the doorbell rang, when man aged between 25 toF30 years having beard was standing at the gate, wearing spectaclesand black cap on his head, carrying bag on his shoulder. He saidthat he had brought courier from bank addressed to S.N. Gupta,and would hand it over to him personally. She informed her husbandabout the courier. S.N. Gupta went to the main gate, while the informantGreturned to the kitchen. She then heard the sound of 2 or 3 gunshotsfrom the gate. She rushed towards the gate and found that her husbandhad fallen on the floor, and was bleeding on account of gunshot injuries.She shouted for help, when the neighbours came and rushed herhusband to Jaipur Golden Hospital, where he was declared dead. Shestated that she would be able to recognise the man who had shot herHhusband.

3. Sub-Inspector Dharambir Singh along with Constable VijayKumar, and Constable Prasan Singh reached the spot, and recovered3 used cartridges and blood-stained slippers from the scene ofoccurrence.

4. On the date of occurrence, the I.O. recorded the statementof Rajesh Gupta s/o the deceased u/S. 161 Cr.P.C. Rajesh Guptahanded over the envelope to the Police which was carried by theassailant addressed to his father S.N. Gupta at the time of the murder.Rajesh Gupta clearly attributed the murder to Shiv Charan Bansal andhis son Sachin Bansal. He stated that he and his father S.N. Guptawere members of several chit fund committees run by Shiv CharanBansal and his son Sachin Bansal. Rajesh Gupta and his father S.N.Gupta had put in substantial amount of money in those committees.He further stated that they were reluctant to return the money investedin the committees to the deceased.

Rajesh Gupta further stated that he had entered into apartnership with Sachin Bansal in the firm M/s Accent Shoes Pvt. Ltd.,which had its factory in Bahadurgarh. Rajesh Gupta stated that hewanted to separate from the partnership because Shiv Charan Bansaland his son Sachin Bansal had usurped the share of his father S.N.Gupta – deceased and were now trying to usurp the factory atBahadurgarh. It was on account of these reasons that they have gotthe murder of his father committed.

5. On the same date, the statement of Satish Gupta, brother ofthe deceased was recorded u/S. 161 Cr.P.C. wherein he stated that hehad invested in the committees run by Shiv Charan Bansal and his sonSachin Bansal. He further stated that his brother late S.N. Gupta, hadinvested large amounts of money in these committees. Shiv CharanBansal and his son were refusing to return the money owed to bothhim and his brother. The deceased had told his brother that Shiv CharanBansal and his son Sachin Bansal wanted to grab the factory atBahadurgarh, and usurp large amount of their share in the factory atD-268, Mangolpuri Industrial Area, after the partnership had beendissolved. He also attributed the murder of his brother – S.N. Gupta toShiv Charan Bansal and his son.

6. The statement of Suresh Gupta, other brother of the deceasedS.N. Gupta, was also recorded on the date of the occurrence u/S. 161Cr.P.C. He stated that he was running his own business, and that

ANarendra Mann, Lalit Mann and their friends would make threateningcalls to his son Naveen Gupta for money. Subsequently, Suresh Guptaalso received threats from these persons, who visited his house severaltimes to threaten him and his son, and stated that they would kill themand other family members. On the advice of his brother late S.N. Gupta,a complaint was lodged against Narendra Mann, Lalit Mann and theirBassociates at Mangolpuri Police Station. He stated that his brother hadbeen killed by Narendra Mann, Lalit Mann and his friends.

7. Naveen Gupta @ Cheenu s/o Suresh Gupta, nephew of thedeceased S.N. Gupta, in his statement u/S. 161 Cr.P.C, stated that hehad been receiving threats from Narendra Mann, Lalit Mann, SachinCBansal and their friends as being the cause for the murder of thedeceased.

8. On 01.06.2006, the statement of Ajit Prasad Gupta – thirdbrother of the deceased, was recorded u/S.164 Cr.P.C., wherein hedeposed that he had participated in various Chit Fund Committees runDby Shiv Charan Bansal and his son Sachin Bansal. He stated that hisbrother late S.N. Gupta had invested in most of the Committees runby Shiv Charan Bansal and Sachin Bansal, who were refusing to returnthe money invested by the deceased.

9. On 31.05.2006, the statement of an independent witnessEAshok Kumar Agarwal was recorded u/S. 164 Cr.P.C. The said witnessstated that he had invested money in the committees run by Shiv CharanBansal and his son Sachin Bansal. He further deposed that the deceasedS.N. Gupta had also invested large sum of money in almost all thecommittees run by accused – Shiv Charan Bansal and his son SachinBansal.F

10. On 22.03.2006, the post mortem of the deceased was carriedout at Sanjay Gandhi Memorial Hospital, Mangolpuri, wherein it wasrecorded that the deceased was brought dead at 4:50 p.m.

The Autopsy Surgeon found three entry wound points on the chestGof the deceased. The lead of the bullets were recovered and handedover to the Police. The post mortem records that the death was causedby the following firearm injuries to the chest:

(i) entry wound of firearm present on the chest of size1.5 cm x 104, 6.5 cm from midline and 6 cm above andH1 cm medial to the lt nipple;

(ii) entry wound of firearm present over outer and uppermargin of Lt arcola of size 1.3 cm x 0.5 cm with collarof abrasion fracturing around that;

(iii) entry wound of firearm present over lt. Hypochondriumof size 1.6 cm x 1.0 cm.

It was recorded that the cause of death was shock due to assaultby firearm and injury to the chest viscera and aorta.

The Police recovered the three used cartridges from the spot ofoccurrence. The lead taken out from the body of the deceased – S.N.Gupta was sent for forensic analysis to the Forensic Science Laboratory.

11. During investigation, Sachin Bansal was arrested on29.03.2006. His disclosure statement was recorded. Narendra Mann,his brother Lalit Mann, and the advocate - Rajbir Singh were arrestedon the same date, when they were traveling in an Esteem Car bearingNo. DL 3C AG 6565. black photo frame, black cap, black goggles,and photo of the deceased were recovered from the Esteem Car.

12. Narendra Mann made disclosure and showed the shop fromwhere he purchased the caps and the goggles. He offered to getShailendra Singh arrested, stating that it was Shailendra Singh who hadgiven the weapon of offence i.e. unlicensed pistol to be used for themurder. Narendra Mann got the Getz car recovered from the house inhis village, in which the contract killer – Joginder Singh Sodhi allegedlytravelled to the site of occurrence to murder S.N. Gupta.

second set of black cap and goggles were recovered from theGetz car. Narendra Mann also offered to get Joginder Singh Sodhi –the contact killer arrested.

13. The unlicensed pistol along with two live cartridges wererecovered from the office of accused - Shailendra Singh i.e. Flat No.A-11/35, Sector 7, Rohini, Delhi.

14. Disclosure Statements were made by Lalit Mann, Rajbir Singhand Sachin Bansal on 29.03.2006.

15. On 30.03.2006, Joginder Singh Sodhi - the contract killer wasarrested.

The Test Identification Parade (“TIP”) was conducted on10.04.2006. Joginder Singh refused to participate in the judicial TIP.

AThe Complainant – Kanta Devi identified him as the assailantduring the investigation of the case.

16. On 04.06.2006, Shailendra Singh was arrested. ShailendraSingh identified the place from where the unlicensed pistol wasrecovered.B

17. During investigation, notice was issued to Shiv Charan Bansalto join the investigation. However, Shiv Charan Bansal remainedabsconding for over month. He was apprehended on 25.04.2006.18. During investigation, the Call Detail Records of the accusedwere collected by the Investigating Officer on 09.06.2006.CWe have perused the record of the Sessions Court, and find thatthe Call Detail Records of Shiv Charan Bansal are missing from thefile.

19. The Charge Sheet was filed on 22.06.2006 against theDfollowing 7 accused - Narendra Mann, Lalit Mann, Rajbir Singh -advocate, Joginder Singh Sodhi, Sachin Bansal, Shiv Charan Bansal andShailendra Singh for offences under S.120B, 302, and 201 read withS.34 IPC and S. 25 Arms Act.

20. The F.S.L Report records that the lead recovered from theEbody of the deceased was fired from the pistol recovered from theoffice of the accused – Shailendra Singh.

21. The envelope addressed to the deceased S.N. Gupta carriedby the contract killer – Joginder Singh Sodhi was recovered from RajeshGupta s/o deceased S.N. Gupta. As per the report of the handwritingFexpert, the specimen handwriting of Joginder Singh Sodhi matched thewriting on the envelope.

22. On 17.11.2006, the statement of Ramesh was recorded u/S.161 Cr.P.C by the Police. He stated that he is property dealer in Rohini,Delhi and had arranged the flat for Shailendra Singh, which wasGregistered in the name of his wife Pooja Singh. Shailendra Singh usedthe said flat for his financing business. The unlicensed pistol along withtwo live cartridges were recovered from the office of Shailendra Singh.

23. The Forensic Report, Handwriting expert Report and theBallistic Report were placed on record along with SupplementaryHCharge on 26.11.2006.

24. As per the case of the prosecution, the material gatheredduring the investigation revealed larger criminal conspiracy in whichall the accused persons had participated. Shiv Charan Bansal and hisson Sachin Bansal were in the business of running committees wheremonies would be invested. S.N. Gupta – the deceased and his sonRajesh Gupta had invested substantial amount of money in thesecommittees. Rajesh Gupta had been in partnership with Shiv CharanBansal in firm M/s Akash International which was subsequentlydissolved. Rajesh Gupta and Sachin Bansal were also running anotherfirm i.e. M/s. Accent Shoes Pvt. Ltd., the factory of which was locatedat Bahadurgarh. Rajesh Gupta and his father late S.N. Gupta hadinvested substantial amount of money in these businesses. The moniesinvested in this firm by S.N. Gupta and his son were not returned byShiv Charan Bansal and Sachin Bansal. The apprehension expressedby deceased S.N. Gupta to his brother Suresh Gupta was that theaccused Shiv Charan Bansal and Sachin Bansal might take over thefactory at Bahadurgarh. When S.N. Gupta and Rajesh Gupta woulddemand return of their investment in the factory at Bahadurgarh, ShivCharan Bansal and Sachin Bansal would refuse on one pretext or theother.

According to the prosecution, Narendra Mann had given sevenlakhs to Naveen Gupta – nephew of the deceased on therecommendation made by Sachin Bansal. Together with interest, theamount allegedly owed to Narendra Mann by Naveen Gupta workedout to about fifteen lakhs. Narendra Mann demanded the amount owedto him from Naveen Gupta and his father. Instead of repaying him themoney, they lodged Complaint against him with the Police. NarendraMann spoke to Sachin Bansal, and asked him to return the monies whichwere owed by Naveen Gupta, since he had lent the money only onSachin Bansal’s recommendation.

As per the prosecution Sachin Bansal told Narendra Mann thathe too was owed money to the extent of over thirty lakhs by NaveenGupta.

criminal conspiracy was hatched by Sachin Bansal andNarendra Mann to eliminate S.N. Gupta, so that the monies investedby S.N. Gupta in the committees run by his father Shiv Charan Bansaland himself, could be retained by them, and he would then be able topay Narendra Mann the money owed to him by Naveen Gupta. Shiv

ACharan Bansal offered to pay for the expenses involved in carryingout the murder of S.N. Gupta.

As per the version of the prosecution, Narendra Mann agreedto the above proposal. He first asked his cousin brother accused - LalitMann to carry out the murder of S.N. Gupta by disguising himself asBa Sikh. After initially agreeing, Lalit Mann subsequently backed out.Thereafter, Joginder Singh Sodhi, who was running shop below thehouse of Lalit Mann, was asked by Narendra Mann to execute themurder of S.N. Gupta, which was agreed by him on payment of Rs. 2lakhs. Joginder Singh Sodhi was shown the photograph of S.N. Gupta,and the exact location of his house.C

It is alleged by the prosecution that accused Rajbir Singh, anadvocate, had allegedly advised Narendra Mann that he should not usehis own licensed weapon for committing the murder, but should use anunlicensed weapon identical to it, since the police would seek to connectthe cartridges recovered from the site with the weapon.D

Pursuant to the above conspiracy, Sachin Bansal took out photoof S.N. Gupta from his marriage album, and gave it to Narendra Mann.He also showed Narendra Mann the house of S.N. Gupta and informedhim of S.N. Gupta’s daily routine and further informed him that hereceives couriers, packets/letters in connection with his investment inEshares.

On the date of offence i.e. 21.03.2006, pursuant to the abovecriminal conspiracy, Narendra Mann borrowed the Getz car from hiscousin, and the unlicensed pistol from Shailendra Singh with fivecartridges. He then took Joginder Singh Sodhi to the place of occurrenceFin his Getz car by making him wear the goggles and cap, and gave anenvelope to be given to S.N. Gupta. He parked the car near theapartment, and was waiting inside the car, while Joginder Singh wentto the house of the deceased – S.N. Gupta. Joginder Singh caused themurder of S.N. Gupta by shooting him at point blank range. NarendraGMann then helped Joginder Singh to get away.

25. As per the version of the prosecution, the incident occurredon 21.03.2006, at about 4:30 p.m. Just prior to the incident at 3:51 p.m.,accused – Narendra Mann from his mobile phone bearing No.[REDACTED], made call to the mobile phone of Sachin Bansal bearingHNo. [REDACTED]. After the murder was committed, the accused –

Narendra Mann called the accused – Sachin Bansal at 4:48 p.m. Thecall records reveal that the accused – Narendra Mann and SachinBansal were in continuous contact with each other, before and afterthe occurrence of the incident.

26. The prosecution urged that, prima facie case for offencesunder Section 120B IPC read with 302 r.w. 120B/34 IPC, Section 201IPC and Section 25 of the Arms Act was made out against accused –Shiv Charan Bansal, Shailendra Singh, Lalit Mann and Rajbir Malik.

27. The Sessions Court vide Order dated 17.03.2008 held:

(i) That on the basis of the material brought on record, andthe circumstances of the case, there was commonintention between Narendra Mann and Joginder SinghSodhi in the act of killing S.N. Gupta. The SessionsCourt directed that Joginder Singh Sodhi be charged u/S. 302 read with S.34 IPC. Narendra Mann wascharged u/S. 302 read with S.34 IPC and for theoffence punishable u/S. 201 IPC for causingdisappearance of the weapon of the offence afterallegedly taking it from the alleged contract killer –Joginder Singh Sodhi. Narendra Mann was furthercharged u/S. 25 of the Arms Act as he got the firearmand ammunition recovered from the office of co-accusedShailendra Singh. The material on record prima facieshowed that Narendra Mann, who was holding alicensed firearm, handed over the same to SachinBansal along with ammunition, which was got recoveredfrom the factory of Sachin Bansal. He was also chargedu/S. 29B of the Arms Act.

(ii) The Sessions Court however discharged Lalit Mann ofthe alleged Offences u/S. 120B, 302 r.w. S. 34, 201 IPCand u/S. 25 Arms Act, on the ground that the onlyevidence which the prosecution had been able to placeon the file against accused – Lalit Mann @ Nanhe isthat he was found travelling in an Esteem car with theaccused Narendra Mann on 29.03.2006, which was 8days after the murder took place. It is the case of theprosecution that initially Narendra Mann had asked LalitMann to carry out the job of murdering of S.N. Gupta.

CDE

He later backed out of the same. Thereafter, the job ofcarrying out the murder was assigned to accused –Joginder Singh Sodhi. This would indicate that LalitMann had disassociated himself from the allegedconspiracy. The disclosure statements of the accusedpersons including Narendra Mann and Lalit Mann arenot sufficient evidence to connect the accused – LalitMann with the crime of killing S.N. Gupta.

(iii) With respect to Rajbir Singh the prosecution referredto the disclosure statements made by the accused –Narendra Mann and Rajbir Singh, to show that it wason the advice of Rajbir Singh, that accused NarendraMann did not use his licensed weapon for the offence.Narendra Mann was further advised by Rajbir Singh,to keep his licensed weapon in the factory of SachinBansal, and arrange an unlicensed pistol for the murder.It was further pointed out that at the time of arrest,Narendra Mann was travelling with Rajbir Singh, andthat they were in constant touch with Rajbir Singh onthe cell phone.

The Sessions Court held that the disclosure statements madeby the accused merely revealed that Rajbir Singh hadtendered advice to Narendra Mann to the effect that he shouldnot use his licensed pistol for carrying out the murder of S.N.Gupta. On the basis of the advice given by Rajbir Singh,accused – Narendra Mann kept his licensed pistol at thefactory of Sachin Bansal, and arranged an unlicensed pistolfrom accused – Shailendra Singh. Narendra Mann wasapprehended while he was travelling with Rajbir Singh to thehouse of Sachin Bansal on 29.03.2006. The mere travellingof Rajbir Singh in car with Narendra Mann could not beconsidered to be an offence.

The seizure memo of the articles recovered from the car, didnot bear the signature of Rajbir Singh. It was not the case ofthe prosecution that the car either belonged to Rajbir Singh,or that the goods recovered from the car were arranged orbelonged to Rajbir Singh. The material placed on the file wasnot sufficient to frame charges against accused – Rajbir Singh.

(iv) With respect to Shailendra Singh, the Sessions Courtheld that the unlicensed pistol along with two livecartridges were recovered from his office on the basisof the disclosure statement made by Narendra Mann.The Sessions Court held that the disclosure statementcould not be relied upon as per Section 10 of theEvidence Act. There was no material to hold thatShailendra Singh had knowledge that the firearm thatwas being handed over to Narendra Mann would beused in the murder of S.N. Gupta.

The Sessions Court charged Shailendra Singh only for the offenceu/S. 25 of the Arms Act for keeping an unlicensed firearm in hispossession.

(v) With respect to the accused – Shiv Charan Bansal andSachin Bansal, the prosecution placed reliance on thestatements of Rajesh Gupta s/o the deceased, NaveenGupta - nephew of the deceased, the statement of SatishGupta and Suresh Gupta - brothers of the deceased, whodisclosed the motive behind the murder on the very dateof the murder itself. As per their statements, it wasrevealed that the deceased S.N. Gupta and his son –Rajesh Gupta, entered into partnerships in the firms M/s Akash International and M/s Accent Shoes Pvt. Ltd,with Shiv Charan Bansal and his son. The Bansal father-son duo wanted to misappropriate the share of thedeceased. The further case brought on record was thatthe deceased had invested substantial amount ofmoney in the committees organised by Shiv CharanBansal, which he was refusing to return.

The Sessions Court held that there may be motive on the partof the accused persons in causing the death of S.N. Gupta, butmotive alone was not sufficient to frame charges u/S. 302 IPC.

The Sessions Court discharged Shiv Charan Bansal since theprosecution had collected evidence against him only in the formof disclosure statements from the accused persons after arrest.These disclosure statements are with respect to facts whichcame to light after the arrest of the accused persons. Section10 of the Evidence Act does not permit the use of disclosurestatements to connect the accused persons with the crime.

A(vi) The Sessions Court held that the prosecution has beenable to make out prima facie case to frame chargesagainst accused – Sachin Bansal for the offence u/S.25 of the Arms Act, since Sachin Bansal got the licensedpistol belonging to accused – Narendra Mann recoveredfrom his factory premises.B

The Sessions Court held that the prosecution failed to make outa prima facie case against accused – Rajbir Singh, Lalit Mannand Shiv Charan Bansal who were discharged.

28. The State filed Crl. Revision Petition No. 335 of 2008 beforeCthe Delhi High Court, against the Judgment dated 17.03.2008 passedby the Sessions Court to the extent that (i) the accused – Shiv CharanBansal, Lalit Mann @ Nanhe and Rajbir Singh were wrongly discharged;(ii) accused – Shailendra Singh and Sachin Bansal were charged onlyfor the offence under S.25 of the Arms Act, instead of S. 302 r.w. S.120B IPC; (iii) accused - Narendra Mann and Joginder Singh SodhiDwere charged under S.302 r.w. S.34 IPC, although they ought to havebeen charged under S.120B IPC.

The complainant – Kanta Devi filed Crl. Revision Petition No.191 of 2008 praying for the same reliefs as the State.

29. Accused – Shailendra Singh filed Crl. Revision Petition No.E430 of 2008 and separate Crl. Revision Petition No. 405 of 2008 wasfiled by accused – Sachin Bansal challenging the Order of the SessionsCourt wherein they were charged under S.25 of the Arms Act.According to them, they ought to have been discharged by the SessionsCourt.FAccused – Narendra Mann filed Crl. Revision Petition No. 342of 2008 challenging the Order passed by the Sessions Court whereinhe was charged for offences u/S.302 r.w. S.34, 201 IPC and S.25 andS.29(b) of the Arms Act.

30. The High Court vide the Common Judgment dated 29.05.2009Gheld that: (i) Narendra Mann, Sachin Bansal and Joginder Singh Sodhiwere to be charged u/S. 302 read with S. 34 IPC read with 120B IPCand S. 25/27 Arms Act and substantively u/S. 120B IPC alone.

The Judgment of the Sessions Court ordering discharge of ShivCharan Bansal, Shailendra Singh, Lalit Mann and Rajbir Singh wasHaffirmed by the High Court.

31. The State and the Complainant – Kanta Devi filed the presentSpecial Leave Petitions to challenge the Judgment and Order passedby the Delhi High Court dated 29.05.2009. Leave to Appeal wasgranted vide Order dated 26.11.2010.

32. FINDINGS AND ANALYSIS

At the stage of framing charges under S.227 and S.228 Cr.P.C,the Court is required to consider whether there was sufficient materialon record to frame charges against Shiv Charan Bansal, ShailendraSingh, Lalit Mann and Rajbir Singh. The prosecution alleged that theoffences u/S. 120B, S.302 r.w. S.120B/34, S.201 IPC and S.25 of theArms Act ought to have been framed.

I. Scope of Section 227 and 228 of the Cr.P.C.

The Court while considering the question of framing chargesunder Section 227 of the Cr.P.C has the power to sift and weigh theevidence for the limited purpose of finding out whether or not primafacie case has been made out against the accused. The test to determineprima facie case would depend upon the facts of each case.

If the material placed before the court discloses grave suspicionagainst the accused, which has not been properly explained, the courtwill be fully justified in framing charges and proceeding with the trial.

The probative value of the evidence brought on record cannotbe gone into at the stage of framing charges. The Court is required toevaluate the material and documents on record with view to find outif the facts emerging therefrom taken at their face value disclose theingredients constituting the alleged offence.

At this stage, there cannot be roving enquiry into the pros andcons of the matter, the evidence is not to be weighed as if trial isbeing conducted.

Reliance is placed on the Judgment of this Court in State of Biharv. Ramesh Singh[1] where it has been held that at the stage of framingcharges under Sections 227 or 228 of the Cr.P.C., if there is strongsuspicion which leads the Court to think that there is ground forpresuming that the accused had committed the offence, then the Courtshould proceed with the trial.

1 (1977) 4 SCC 39.

1176SUPREME COURT REPORTS

AIn recent Judgment delivered in Dipakbhai JagdishchandraPatel v. State of Gujarat and Another [2] in Crl. Appeal No. 714 of2019 decided on 24.04.2019, this Court has laid down the law relatingto framing of charges and discharge, and held that all that is requiredis that the court must be satisfied with the material available, that acase is made out for the accused to stand trial. strong suspicion isBsufficient for framing charges, which must be founded on somematerial. The material must be such which can be translated intoevidence at the stage of trial. The veracity and effect of the evidencewhich the prosecutor proposes to adduce are not to be meticulouslyjudged at this stage, nor is any weight to be attached to the probableCdefence of the accused at the stage of framing charges. The court isnot to consider whether there is sufficient ground for conviction of theaccused, or whether the trial is sure to end in the conviction.

II. Criminal Conspiracy

The present case is one where the prosecution has alleged thatDthere was criminal conspiracy to murder S.N. Gupta by all theaccused. The crime was not committed at the spur of the moment, butwas preceded by meticulous planning where each of the accused haveplayed separate role to achieve the common illegal object of carryingout the murder of S.N. Gupta.EThe essential ingredients of Criminal Conspiracy as per judicialdicta are: (i) an agreement between two or more persons; (ii)agreement must relate to doing or causing to be done either (a) an illegalact; or (b) an act which is not illegal in itself but is done by illegal means.

Reliance is placed on the Judgment of Ghulam Sarbar v. StateFof Bihar[3] on this issue, wherein it was held that what is necessaryfor the prosecution to show is the meeting of minds of two or morepersons for doing or causing to be done an illegal act, or an act by illegalmeans.

criminal conspiracy is generally hatched in secrecy, and it isGdifficult, if not impossible, to obtain direct evidence. Reliance is placedon the Judgment of this Court in R. Venkatakrishnan v. CBI[4]. Themanner and circumstances in which the offence has been committed,

2 2019 SCC Online SC 588.3 (2014) 3 SCC 401.H4 (2009) 11 SCC 737.

and the level of involvement of the accused persons are relevant factors.Each conspirator plays his separate part in one integrated and unitedeffort to achieve the common purpose. Each one is aware that he hasa part to play in the general conspiracy, to accomplish the commonobject.

Conspiracy is mostly proved by circumstantial evidence by takinginto account the cumulative effect of the circumstances indicating theguilt of the accused, rather than adopting an approach by isolating therole played by each of the accused. The acts or conduct of the partiesmust be conscious and clear enough to infer their concurrence as tothe common design and its execution. Reliance is placed on theJudgment of State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru[5].

In Kehar Singh & Ors. v. State (Delhi Administration)[6] thisCourt held that the most important ingredient in the offence ofconspiracy is an agreement between two or more persons to do an illegalact. The prosecution will have to rely upon circumstantial evidence. TheCourt must enquire whether the persons are independently pursuing thesame unlawful object or whether they have come together for the pursuitof the unlawful object. The offence of conspiracy requires some kindof physical manifestation of the agreement. However, the same neednot be proved, nor is it necessary to prove the actual words ofcommunication. It is sufficient if there is tacit understanding betweenthe conspirators for the execution of the common illegal object.

In cases of criminal conspiracy, better evidence than acts andstatements of co-conspirators is hardly ever available.

In the facts of the present case, we find that there is amplematerial brought on record which creates grave suspicion about theinvolvement of the accused viz. Shiv Charan Bansal, Lalit Mann andShailendra Singh in the murder of the deceased S.N. Gupta.

III. Shiv Charan Bansal

The evidence produced by the prosecution with respect to theinvolvement of Shiv Charan Bansal are broadly enumerated as follows:

(i) Rajesh Gupta s/o the deceased attributed the murder ofhis father to Shiv Charan Bansal and his son Sachin

5 (2005) 11 SCC 600.

6 (1988) 3 SCC 609.

Bansal, for misappropriation of the amounts invested byhis late father S.N. Gupta in all the committees/chit fundsrun by the Bansals.

Rajesh Gupta further deposed about the business transactionsbetween Shiv Charan Bansal and his son, with the deceased S.N.BGupta in two firms M/s. Accent Shoes Pvt. Ltd. and M/s. AakashInternational, where Shiv Charan Bansal had usurped the shareof the deceased, and was now trying to take over their factoryat Bahadurgarh.

(ii) This was corroborated by the statement of the brotherof the deceased viz. Satish Gupta which was recordedsoon after the murder took place. The said witnesseshave made the statements soon after the murder of thedeceased.

(iii) The statement of the third brother of the deceased viz.Ajit Prasad Gupta’s statement was recorded u/S. 164Cr.P.C. on 01.06.2006 by the Court of the MetropolitanMagistrate. Ajit Gupta disclosed that he knew ShivCharan Bansal since 10 to 15 years. He stated that hehad participated in the committees organised by ShivCharan Bansal. The committees were organised by ShivCharan Bansal, and his son Sachin Bansal. There were70 to 80 committees in month organised by ShivCharan Bansal. The deceased S.N. Gupta had investeda substantial amount of money in most of thesecommittees, and was member of every group. WhenS.N. Gupta demanded return of the money, Shiv CharanBansal refused to return the same on one pretext oranother, which he learnt when he went to attend thecommittees.

(iv) The statement of independent witness viz. Ashok KumarGAgarwal was recorded u/S. 164 Cr.P.C. on 31.05.2006by the Metropolitan Magistrate. This witness stated thathe had participated in four committees of 10 lakhs eachrun by Shiv Charan Bansal. He was aware that thedeceased S.N. Gupta had invested in the maximumnumber of committees run by Shiv Charan Bansal, inHwhich his eldest son Sachin Bansal used to help him.

(v) Both the Sessions Court and the High Court have notedthat all the witnesses have clearly attributed the murderto Shiv Charan Bansal and his son Sachin Bansal. Themotive of the crime was to misappropriate theinvestments made by the deceased in the committeesof Shiv Charan Bansal. Rajesh Gupta has furtherdeposed that the further circumstance was on accountof the business dealings between the families of thedeceased and Shiv Charan Bansal.

As per the case of the prosecution, the murder of S.N. Guptawas contrived by Shiv Charan Bansal and his son Sachin Bansalwith Narendra Mann, and the other co-conspirators being LalitMann who arranged the contract killer – Joginder Singh Sodhi,Shailendra Singh who provided the weapon of offence which wasrecovered from his office, along with live cartridges.

(vi) The contemporaneous Call Detail Records (CDRs)between Sachin Bansal and Narendra Mann, whoaccompanied Joginder Singh Sodhi – the contract killer,would constitute strong material for framing the chargeagainst all the accused.

The murder of S.N. Gupta took place at about 4:30 p.m. NarendraMann from his cell phone bearing No. [REDACTED] made callat 3:51 p.m. to Sachin Bansal on his cell phone bearing No.[REDACTED] prior to the execution of the crime. After the murderwas committed, Narendra Mann called Sachin Bansal on his cellphone at 4:48 p.m. These call records in quick successionimmediately before and after the murder was committed, leadto grave suspicion about the complicity of these accused. TheCall Detail Records reveal that the accused were in close contactand communication with each other both before and after theoccurrence.

The I.O. Satyapal Singh, in his deposition dated 08.01.2015, hadstated that on 09.06.2006, he had obtained the Call Detail Recordsof the mobile phones of all the accused persons from the ACPOffice.

We have perused the record of the Sessions Court, and find thatthe Call Detail Records of Shiv Charan Bansal, which was

crucial piece of evidence was deliberately not placed by the I.O.along with the Charge Sheet. The missing Call Detail Recordsof only Shiv Charan Bansal creates strong suspicion againsthim.

(vii) The records of the committees run by Shiv CharanBansal were alleged to have been destroyed. Thiscreates strong suspicion about the conduct of ShivCharan Bansal who was running 75 to 80 committees/chit funds at that time. In his disclosure statement dated26.04.2006, Shiv Charan Bansal stated that he is havingall the records of the committees. However, two dayslater, on 28.04.2006, he changed his version and statedthat the committee records have been destroyed by hisson Sachin Bansal.

The prosecution has alleged that the records of the committeeswere burnt/destroyed by the father-son duo. The destruction ofthe records of the committees, which would have revealed thesubstantial investments made by late S.N. Gupta is anincriminating factor.

(viii) The conduct of Shiv Charan Bansal after the murderwas committed, is also of relevance. The policeapprehended Sachin Bansal on 29.03.2006 from hisfactory.

Shiv Charan Bansal remained absconding after the murder wascommitted on 21.03.2006, and did not join the investigation despiteefforts by the Police. He was apprehended after more than onemonth on 25.04.2006.

After the commission of the crime, accused – Shiv CharanBansal absconded and did not join the investigation. The saidcircumstance of absconding immediately after the murder of S.N.Gupta was committed, would be admissible as relevant ‘conduct’u/S. 8 of the Indian Evidence Act.

The prosecution has made out strong prima facie case and thematerials on record are sufficient to frame charges against ShivCharan Bansal. The Sessions Court and the High Court werenot justified in discharging the accused – Shiv Charan Bansalfor the offences u/S.302 r.w. S.34, S.120B, S.201 IPC fordestruction of evidence.

The materials gathered by the prosecution raise strong suspicionagainst both Shiv Charan Bansal and his son Sachin Bansal inhatching the conspiracy for the murder of late S.N. Gupta.

We are surprised that in the case of Sachin Bansal the co-accused, the Sessions Court framed charges only u/S. 25 of theArms Act, even though there was sufficient material for hisprosecution u/S. 120B r.w. S.302/34 and S.201 IPC.

The High Court vide Order and Judgment dated 29.05.2009directed the prosecution to frame charges u/S. 120B r.w. S.302and S.34 IPC, S.120B r.w. S.25 and 27 of the Arms Act, and u/S. 120B substantively, against Sachin Bansal, and to conduct thetrial accordingly.

During the pendency of the present appeals, the Sessions Courtproceeded with the trial of Sachin Bansal under the charges asdirected by the High Court. The Sessions Court vide Judgmentand Order dated 04.02.2016, acquitted him primarily on theground that the allegations against him were circumstantial innature, and there was no direct evidence to prosecute him.

The State and the private complainant have filed Crl. Appeal No.1155 of 2017 and Crl. Appeal No. 1154 of 2017 to challenge theacquittal of Sachin Bansal, which is pending final determinationby the High Court.

IV. Lalit Mann

(i) The prosecution relied upon the statement of NaveenGupta @ Cheenu son of Suresh Gupta, and nephew ofthe deceased. The said witness in his statement u/S. 161Cr.P.C, which was recorded soon after the murder hadoccurred on the same date, stated that Narendra Mann,Lalit Mann, Sachin Bansal and his friends used tothreaten him over the phone. Naveen Gupta furtherstated that these persons also came to his house, andthreatened to kill his family. He further stated that hisfather Suresh Gupta, on the advice of the deceased S.N.Gupta, got complaint registered at Mangolpuri PoliceStation against Lalit Mann and others. It was furtherstated that he was sure that his uncle S.N. Gupta wasmurdered by Narendra Mann, Lalit Mann, Sachin Bansaland his friends.

(ii) The disclosure statement made by Narendra Mannreveals that initially he had asked Lalit Mann to carryout the murder of S.N. Gupta.

The accused – Lalit Mann had full knowledge of the criminalconspiracy hatched to murder the deceased S.N. Gupta.

(iii) Soon after the murder took place, Narendra Mann andLalit Mann were absconding.

Since Lalit Mann did not join the investigation after thecommission of the crime, the conduct of the accused inabsconding would be admissible as relevant ‘conduct’ u/S. 8 ofthe Indian Evidence Act.

(iv) On 29.03.2006 i.e. eight days after the murder tookplace, three of the accused viz. Narendra Mann, LalitMann and Rajbir Singh were apprehended by the policewhile travelling in an Esteem car. The police recoveredincriminating objects i.e. photo of the deceased whichwas given to the contract killer for identification, gogglesand black cap worn by the contract killer – JoginderSingh to conceal his identity, from the car.

(v) The Call Detail Records of Lalit Mann reveal that fromhis cell phone bearing No. [REDACTED], he was incommunication with the contract killer Joginder SinghSodhi on his cell No. [REDACTED] prior and subsequentto the commission of the crime.

The Courts below were unjustified in not framing the charges u/S., 302 r.w. S.34, S120B IPC against accused Lalit Mann.

V. Shailendra Singh

As per the case of the prosecution, Shailendra Singh providedthe weapon of offence. Furthermore, after the crime wascommitted, Shailendra Singh remained absconding for periodof 75 days.

(i) The recovery of the weapon of offence i.e. anunlicensed 7.65 mm bore pistol along with two livecartridges from the office of this accused at 1/25,Sector 7, Rohini, Delhi creates strong suspicion of hisinvolvement in the conspiracy to murder late S.N. Gupta.

The office from where the recovery was made admittedly belongsto the wife of Shailendra Singh. This is corroborated by thedeposition u/S. 161 Cr.P.C. of Ramesh, an independent witness,a property dealer, who had arranged the purchase of flat No. A1/35, Sector 7, Rohini, Delhi by Shailendra Singh, which wasregistered in the name of his wife Pooja Singh. Shailendra Singhused the said flat as his office to carry out his financing business.

(ii) The FSL Report dated 18.10.2006 has certified that theweapon and cartridges used in the murder of S.N. Guptawere recovered from the office of Shailendra Singh.

(iii) The Ballistic Report has certified that the three usedcartridges recovered from the site of occurrence, andthe lead retrieved from the body of the deceased,matched with the live cartridges recovered from thehouse of Shailendra Singh and were fired from theunlicensed pistol recovered from house of ShailendraSingh.

(iv) After the commission of the crime, the accusedShailendra Singh was in possession of the weapon ofoffence, which was lying concealed in his office.

The circumstance of the weapon of offence being found in thecustody and possession of Shailendra Singh, would be admissibleas “conduct” under Section 8 of the Indian Evidence Act,irrespective of the statements made by the co accused.

The crucial recovery of the weapon of offence from the houseof Shailendra Singh, was very important circumstance in thechain of events, which was sufficient to proceed against him intrial u/S. 302 r.w. S.34 and 120B IPC.

(v) The call detail records produced before the SessionsCourt, reveals the communication between NarendraMann and Shailendra Singh on the date of the murder,which is relevant material as per Section 8 of theEvidence Act.

It is surprising that the Sessions Court and the High Court havingaccepted the recovery of the unlicensed weapon from the officeof Shailendra Singh, charged him only with the offence u/S. 25of the Arms Act.

AVI. Rajbir Singh

With respect to the discharge of the accused – Rajbir Singh, theOrder of the Sessions Court and High Court is not disturbed, aswe find that there is not sufficient material to prosecute him.

VII. Narendra MannB

Narendra Mann was charged by the Sessions Court u/S. 302 r.w.S.34, S. 201 IPC and S. 25 and 29(b) of the Arms Act by theSessions Court.

The Sessions Court vide Judgment and Order dated 04.02.2016acquitted Narendra Mann.

The State has filed Crl. Appeal No. 1155 of 2017, and theComplainant – Kanta Devi filed Crl. Appeal No. 1154 of 2017before the High Court which are pending determination.

VIII. Section 223 of the Cr.P.C. provides that persons accusedDof the same offence, committed in the course of the sametransaction, must be jointly charged and tried.

In the present case, on account of the inconsistency in framingcharges by the Sessions Court against the six accused, the trialhas got truncated. The trial with respect to three accused i.e.Sachin Bansal, Narendra Mann, and the alleged contract killerE– Joginder Singh Sodhi has proceeded in the absence of the otherthree accused viz. Shiv Charan Bansal, Lalit Mann and ShailendraSingh.

The present case is one of criminal conspiracy based oncircumstantial evidence. For case of criminal conspiracy to beFestablished, each link in the chain of circumstances would getcompleted, only if the evidence collected by the prosecutionagainst all the accused was taken into consideration holistically.

Since the trial in the present case has got truncated, it isnecessary that the trial of the remaining three accused proceedsGforthwith in accordance with law.

With respect to the other three accused i.e. Sachin Bansal,Narendra Mann and Joginder Singh the trial was conducted inthe absence of the other three alleged co-conspirators. The Orderof acquittal with respect to Sachin Bansal and Narendra MannHis pending before the High Court.

S.386 Cr.P.C. defines the powers of the appellate court in dealingwith appeals. Clause (a) of S.386 Cr.P.C. is restricted to thepowers of the High Court since an appeal against an Order ofacquittal lies to the High Court. The appellate court may directthe accused to be re-tried, not only when it deals with an appealagainst acquittal, but also when it deals with an appeal againstconviction. Under clause (a) the High Court may reverse theOrder of acquittal and direct that further enquiry be made, orthe accused may be re-tried, or may find him guilty and passsentence thereon. Reliance is placed on the judgment of thisCourt in Isaac alias Kishore v. Ronald Cheriyan & Ors[7].

IX. As an appellate Court, the High Court may take furtherevidence while considering the Appeals u/S.391 Cr.P.C, if it isconsidered necessary, and take additional evidence on record.The High Court may also permit recording of statements u/S.313Cr.P.C, if considered necessary, as held by this Court in AlisterAnthony Pareira v. State of Maharashtra[8] and in Asraf Aliv. State of Assam.[9]

X. The High Court may take up the pending appeals in the caseof Sachin Bansal, Narendra Mann and Joginder Singh Sodhi,after the conclusion of the trial of Shiv Charan Bansal, Lalit Mannand Shailendra Singh, the remaining accused by the SessionsCourt in the present case.

XI. Conclusions & Directions: -

1. The Criminal Appeal filed by the State of NCT of Delhi beingCrl. Appeal No. 2248 of 2010, and the private Complainant –Kanta Devi being Cr. Appeal No. 2247 of 2010 are allowed inPart.

We direct the Additional Sessions Judge, Rohini Courts to proceedwith the trial in accordance with law in Sessions Case No. 6/2007 arising out of FIR No. 200/2006 dated 21.03.2006 withrespect to the following accused: -

a. The Additional Sessions Judge, Rohini Courts, Delhi isdirected to frame charges against Shiv Charan Bansal

7 (2018) 2 SCC 278

8 (2012) 2 SCC 648

9 (2008) 16 SCC 328

ABC

Au/S. 302 r.w. S.34 IPC and S. 120B, and S.201 IPC andproceed with the trial in accordance with law.

b. We direct the Additional Sessions Judge, Rohini Courts,Delhi to frame Charges against Lalit Mann u/S. 302 r.w.S.34 IPC and S.120B IPC and proceed with the trial inBaccordance with law.

c. We direct the Additional Sessions Judge, Rohini Courts,Delhi to frame charges against Shailendra Singh u/S.302r.w. 34 IPC and S. 120B IPC, and S. 25, 27, 54 and 59of the Arms Act.

2. Let copy of this Judgment be sent to the Additional SessionsJudge, Rohini Courts, Delhi for conducting the trial against theaforesaid accused in Sessions Case No. 6/2007 arising out ofFIR No. 200/2006.

3. We direct the Additional Sessions Judge, Rohini Courts, DelhiDto fix time schedule, and proceed with the trial on day today basis, and conclude the same preferably within period ofsix months from today.

4. The Additional Sessions Judge, Rohini Court, Delhi is directedto report the progress of the case to this Court after threeEmonths.

5. Let copy of this Judgment be also forwarded to the HighCourt and placed in the file of pending Crl. Appeal Nos. 1155 of2017 and 1154 of 2017.

6. We affirm the Judgment of the High Court qua the acquittalFof Mr. Rajbir Singh Malik @ Raju – Accused No.3.

Devika Gujral

Appeals partly allowed.