1.The present Criminal Appeals have been filed by the State (Criminal Appeal No. 2248 of 2010) and the complainant – Kanta Devi (Criminal Appeal No. 2247 of 2010) to challenge the Order of Discharge granted to Shiv Charan Bansal, Lalit Digitally signed by Mann @ Nanhe, Shailendra Singh and Rajbir Singh by theMUKESH KUMAR Delhi High Court.
2.The factual matrix from which the present Appeals arise from is 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 Station Mangolpuri, Delhi under Sections 120B, 302, 201 r.w. S.34 IPC and Sections 25, 27, 54, 59 of the Arms Act. The Complainant stated that on 21.03.2006, she was in the house with her husband – S.N. Gupta. At about 4:30 p.m., the doorbell rang, when a man aged between 25 to 30 years having a beard was standing at the gate, wearing spectacles and a black cap on his head, carrying a bag on his shoulder. He said that he had brought a courier from a bank addressed to S.N. Gupta, and would hand it over to him personally. She informed her husband about the courier. S.N. Gupta went to the main gate, while the informant returned to the kitchen. She then heard the sound of 2 or 3 gunshots from the gate. She rushed towards the gate and found that her husband had fallen on the floor, and was bleeding on account of gunshot injuries. She shouted for help, when the neighbours came and rushed her husband to Jaipur Golden Hospital, where he was declared dead. She stated that she would be able to recognise the man who had shot her husband.
3.Sub-Inspector Dharambir Singh along with Constable Vijay Kumar, and Constable Prasan Singh reached the spot, and recovered 3 used cartridges and blood-stained slippers from the scene of occurrence.
4.On the date of occurrence, the I.O. recorded the statement of Rajesh Gupta s/o the deceased u/S. 161 Cr.P.C. Rajesh Gupta handed over the envelope to the Police which was carried by the assailant addressed to his father S.N. Gupta at the time of the murder. Rajesh Gupta clearly attributed the murder to Shiv Charan Bansal and his son Sachin Bansal. He stated that he and his father S.N. Gupta were members of several chit fund committees run by Shiv Charan Bansal and his son Sachin Bansal. Rajesh Gupta and his father S.N. Gupta had put in a substantial amount of money in those committees. He further stated that they were reluctant to return the money invested in the committees to the deceased. Rajesh Gupta further stated that he had entered into a partnership with Sachin Bansal in the firm M/s Accent Shoes Pvt. Ltd., which had its factory in Bahadurgarh. Rajesh Gupta stated that he wanted to separate from the partnership because Shiv Charan Bansal and his son Sachin Bansal had usurped the share of his father S.N. Gupta – deceased and were now trying to usurp the factory at Bahadurgarh. It was on account of these reasons that they have got the murder of his father committed.
5.On the same date, the statement of Satish Gupta, brother of the deceased was recorded u/S. 161 Cr.P.C. wherein he stated that he had invested in the committees run by Shiv Charan Bansal and his son Sachin Bansal. He further stated that his brother late S.N. Gupta, had invested large amounts of money in these committees. Shiv Charan Bansal and his son were refusing to return the money owed to both him and his brother. The deceased had told his brother that Shiv Charan Bansal and his son Sachin Bansal wanted to grab the factory at Bahadurgarh, and usurp a large amount of their share in the factory at D-268, Mangolpuri Industrial Area, after the partnership had been dissolved. He also attributed the murder of his brother – S.N. Gupta to Shiv Charan Bansal and his son.
6.The statement of Suresh Gupta, other brother of the deceased S.N. Gupta, was also recorded on the date of the occurrence u/S. 161 Cr.P.C. He stated that he was running his own business, and that Narendra Mann, Lalit Mann and their friends would make threatening calls to his son Naveen Gupta for money. Subsequently, Suresh Gupta also received threats from these persons, who visited his house several times to threaten him and his son, and stated that they would kill them and other family members. On the advice of his brother late S.N. Gupta, a complaint was lodged against Narendra Mann, Lalit Mann and their associates at Mangolpuri Police Station. He stated that his brother had been killed by Narendra Mann, Lalit Mann and his friends.
7.Naveen Gupta @ Cheenu s/o Suresh Gupta, nephew of the deceased S.N. Gupta, in his statement u/S. 161 Cr.P.C, stated that he had been receiving threats from Narendra Mann, Lalit Mann, Sachin Bansal and their friends as being the cause for the murder of the deceased.
8.On 01.06.2006, the statement of Ajit Prasad Gupta – third brother of the deceased, was recorded u/S.164 Cr.P.C., wherein he deposed that he had participated in various Chit Fund Committees run by Shiv Charan Bansal and his son Sachin Bansal. He stated that his brother late S.N. Gupta had invested in most of the Committees run by Shiv Charan Bansal and Sachin Bansal, who were refusing to return the money invested by the deceased.
9.On 31.05.2006, the statement of an independent witness Ashok Kumar Agarwal was recorded u/S. 164 Cr.P.C. The said witness stated that he had invested money in the committees run by Shiv Charan Bansal and his son Sachin Bansal. He further deposed that the deceased S.N. Gupta had also invested a large sum of money in almost all the committees run by accused – Shiv Charan Bansal and his son Sachin Bansal.
10.On 22.03.2006, the post mortem of the deceased was carried out at Sanjay Gandhi Memorial Hospital, Mangolpuri, wherein it was recorded that the deceased was brought dead at 4:50 p.m. The Autopsy Surgeon found three entry wound points on the chest of the deceased. The lead of the bullets were recovered and handed over to the Police. The post mortem records that the death was caused by the following firearm injuries to the chest: (i) entry wound of firearm present on the chest of size 1.5 cm x 104, 6.5 cm from midline and 6 cm above and 1 cm medial to the lt nipple; (ii) entry wound of firearm present over outer and upper margin of Lt arcola of size 1.3 cm x 0.5 cm with collar of abrasion fracturing around that; (iii) entry wound of firearm present over lt. Hypochondrium of size 1.6 cm x 1.0 cm. It was recorded that the cause of death was shock due to assault by firearm and injury to the chest viscera and aorta. The Police recovered the three used cartridges from the spot of occurrence. 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 on 29.03.2006. His disclosure statement was recorded. Narendra Mann, his brother Lalit Mann, and the advocate -Rajbir Singh were arrested on the same date, when they were traveling in an Esteem Car bearing No. DL 3C AG 6565. A black photo frame, a black cap, black goggles, and a photo of the deceased were recovered from the Esteem Car.
12.Narendra Mann made a disclosure and showed the shop from where he purchased the caps and the goggles. He offered to get Shailendra Singh arrested, stating that it was Shailendra Singh who had given the weapon of offence i.e. unlicensed pistol to be used for the murder. Narendra Mann got the Getz car recovered from the house in his village, in which the contract killer – Joginder Singh Sodhi allegedly travelled to the site of occurrence to murder S.N. Gupta. A second set of black cap and goggles were recovered from the Getz car. Narendra Mann also offered to get Joginder Singh Sodhi – the contact killer arrested.
13.The unlicensed pistol along with two live cartridges were recovered 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 Singh and Sachin Bansal on 29.03.2006.
15.On 30.03.2006, Joginder Singh Sodhi - the contract killer was arrested. The Test Identification Parade (“TIP”) was conducted on 10.04.2006. Joginder Singh refused to participate in the judicial TIP. The Complainant – Kanta Devi identified him as the assailant during the investigation of the case.
16.On 04.06.2006, Shailendra Singh was arrested. Shailendra Singh identified the place from where the unlicensed pistol was recovered.
17.During investigation, notice was issued to Shiv Charan Bansal to join the investigation. However, Shiv Charan Bansal remained absconding for over a month. He was apprehended on 25.04.2006.
18.During investigation, the Call Detail Records of the accused were collected by the Investigating Officer on 09.06.2006. We have perused the record of the Sessions Court, and find that the Call Detail Records of Shiv Charan Bansal are missing from the file.
19.The Charge Sheet was filed on 22.06.2006 against the following 7 accused - Narendra Mann, Lalit Mann, Rajbir Singh - advocate, Joginder Singh Sodhi, Sachin Bansal, Shiv Charan Bansal and Shailendra Singh for offences under S.120B, 302, and 201 read with S.34 IPC and S. 25 Arms Act.
20.The F.S.L Report records that the lead recovered from the body of the deceased was fired from the pistol recovered from the office of the accused – Shailendra Singh.
21.The envelope addressed to the deceased S.N. Gupta carried by the contract killer – Joginder Singh Sodhi was recovered from Rajesh Gupta s/o deceased S.N. Gupta. As per the report of the handwriting expert, the specimen handwriting of Joginder Singh Sodhi matched the writing 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 a property dealer in Rohini, Delhi and had arranged the flat for Shailendra Singh, which was registered in the name of his wife Pooja Singh. Shailendra Singh used the said flat for his financing business. The unlicensed pistol along with two live cartridges were recovered from the office of Shailendra Singh.
23.The Forensic Report, Handwriting expert Report and the Ballistic Report were placed on record along with a Supplementary Charge on 26.11.2006.
24.As per the case of the prosecution, the material gathered during the investigation revealed a larger criminal conspiracy in which all the accused persons had participated. Shiv Charan Bansal and his son Sachin Bansal were in the business of running committees where monies would be invested. S.N. Gupta – the deceased and his son Rajesh Gupta had invested a substantial amount of money in these committees. Rajesh Gupta had been in partnership with Shiv Charan Bansal in a firm M/s Akash International which was subsequently dissolved. Rajesh Gupta and Sachin Bansal were also running another firm i.e. M/s. Accent Shoes Pvt. Ltd., the factory of which was located at Bahadurgarh. Rajesh Gupta and his father late S.N. Gupta had invested a substantial amount of money in these businesses. The monies invested in this firm by S.N. Gupta and his son were not returned by Shiv Charan Bansal and Sachin Bansal. The apprehension expressed by deceased S.N. Gupta to his brother Suresh Gupta was that the accused Shiv Charan Bansal and Sachin Bansal might take over the factory at Bahadurgarh. When S.N. Gupta and Rajesh Gupta would demand return of their investment in the factory at Bahadurgarh, Shiv Charan Bansal and Sachin Bansal would refuse on one pretext or the other. According to the prosecution, Narendra Mann had given seven lakhs to Naveen Gupta – nephew of the deceased on the recommendation made by Sachin Bansal. Together with interest, the amount allegedly owed to Narendra Mann by Naveen Gupta worked out to about fifteen lakhs. Narendra Mann demanded the amount owed to him from Naveen Gupta and his father. Instead of repaying him the money, they lodged a Complaint against him with the Police. Narendra Mann spoke to Sachin Bansal, and asked him to return the monies which were owed by Naveen Gupta, since he had lent the money only on Sachin Bansal’s recommendation. As per the prosecution Sachin Bansal told Narendra Mann that he too was owed money to the extent of over thirty lakhs by Naveen Gupta. A criminal conspiracy was hatched by Sachin Bansal and Narendra Mann to eliminate S.N. Gupta, so that the monies invested by S.N. Gupta in the committees run by his father Shiv Charan Bansal and himself, could be retained by them, and he would then be able to pay Narendra Mann the money owed to him by Naveen Gupta. Shiv Charan Bansal offered to pay for the expenses involved in carrying out the murder of S.N. Gupta. As per the version of the prosecution, Narendra Mann agreed to the above proposal. He first asked his cousin brother accused - Lalit Mann to carry out the murder of S.N. Gupta by disguising himself as a Sikh. After initially agreeing, Lalit Mann subsequently backed out. Thereafter, Joginder Singh Sodhi, who was running a shop below the house of Lalit Mann, was asked by Narendra Mann to execute the murder of S.N. Gupta, which was agreed by him on payment of Rs. 2 lakhs. Joginder Singh Sodhi was shown the photograph of S.N. Gupta, and the exact location of his house. It is alleged by the prosecution that accused Rajbir Singh, an advocate, had allegedly advised Narendra Mann that he should not use his own licensed weapon for committing the murder, but should use an unlicensed weapon identical to it, since the police would seek to connect the cartridges recovered from the site with the weapon. Pursuant to the above conspiracy, Sachin Bansal took out a photo of 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 informed him of S.N. Gupta’s daily routine and further informed him that he receives couriers, packets/letters in connection with his investment in shares. On the date of offence i.e. 21.03.2006, pursuant to the above criminal conspiracy, Narendra Mann borrowed the Getz car from his cousin, and the unlicensed pistol from Shailendra Singh with five cartridges. He then took Joginder Singh Sodhi to the place of occurrence in his Getz car by making him wear the goggles and cap, and gave an envelope to be given to S.N. Gupta. He parked the car near the apartment, and was waiting inside the car, while Joginder Singh went to the house of the deceased – S.N. Gupta. Joginder Singh caused the murder of S.N. Gupta by shooting him at point blank range. Narendra Mann then helped Joginder Singh to get away.
25.As per the version of the prosecution, the incident occurred on 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. 9818411470, made a call to the mobile phone of Sachin Bansal bearing No. 9818119624. After the murder was committed, the accused – Narendra Mann called the accused – Sachin Bansal at 4:48 p.m. The call records reveal that the accused – Narendra Mann and Sachin Bansal were in continuous contact with each other, before and after the occurrence of the incident.
26.The prosecution urged that, a prima facie case for offences under Section 120B IPC read with 302 r.w. 120B/34 IPC, Section 201 IPC 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, and the circumstances of the case, there was common intention between Narendra Mann and Joginder Singh Sodhi in the act of killing S.N. Gupta. The Sessions Court directed that Joginder Singh Sodhi be charged u/S. 302 read with S.34 IPC. Narendra Mann was charged u/S. 302 read with S.34 IPC and for the offence punishable u/S. 201 IPC for causing disappearance of the weapon of the offence after allegedly taking it from the alleged contract killer – Joginder Singh Sodhi. Narendra Mann was further charged u/S. 25 of the Arms Act as he got the firearm and ammunition recovered from the office of co-accused Shailendra Singh. The material on record prima facie showed that Narendra Mann, who was holding a licensed firearm, handed over the same to Sachin Bansal along with ammunition, which was got recovered from the factory of Sachin Bansal. He was also charged u/S. 29B of the Arms Act. (ii) The Sessions Court however discharged Lalit Mann of the alleged Offences u/S. 120B, 302 r.w. S. 34, 201 IPC and u/S. 25 Arms Act, on the ground that the only evidence which the prosecution had been able to place on the file against accused – Lalit Mann @ Nanhe is that he was found travelling in an Esteem car with the accused Narendra Mann on 29.03.2006, which was 8 days after the murder took place. It is the case of the prosecution that initially Narendra Mann had asked Lalit Mann to carry out the job of murdering of S.N. Gupta. He later backed out of the same. Thereafter, the job of carrying out the murder was assigned to accused – Joginder Singh Sodhi. This would indicate that Lalit Mann had disassociated himself from the alleged conspiracy. The disclosure statements of the accused persons including Narendra Mann and Lalit Mann are not sufficient evidence to connect the accused – Lalit Mann with the crime of killing S.N. Gupta. (iii) With respect to Rajbir Singh the prosecution referred to the disclosure statements made by the accused – Narendra Mann and Rajbir Singh, to show that it was on the advice of Rajbir Singh, that accused Narendra Mann 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 Sachin Bansal, 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, and that they were in constant touch with Rajbir Singh on the cell phone. The Sessions Court held that the disclosure statements made by the accused merely revealed that Rajbir Singh had tendered advice to Narendra Mann to the effect that he should not 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 the factory of Sachin Bansal, and arranged an unlicensed pistol from accused – Shailendra Singh. Narendra Mann was apprehended while he was travelling with Rajbir Singh to the house of Sachin Bansal on 29.03.2006. The mere travelling of Rajbir Singh in a car with Narendra Mann could not be considered to be an offence. The seizure memo of the articles recovered from the car, did not bear the signature of Rajbir Singh. It was not the case of the prosecution that the car either belonged to Rajbir Singh, or that the goods recovered from the car were arranged or belonged to Rajbir Singh. The material placed on the file was not sufficient to frame charges against accused – Rajbir Singh. (iv) With respect to Shailendra Singh, the Sessions Court held that the unlicensed pistol along with two live cartridges were recovered from his office on the basis of the disclosure statement made by Narendra Mann. The Sessions Court held that the disclosure statement could not be relied upon as per Section 10 of the Evidence Act. There was no material to hold that Shailendra Singh had knowledge that the firearm that was being handed over to Narendra Mann would be used in the murder of S.N. Gupta. The Sessions Court charged Shailendra Singh only for the offence u/S. 25 of the Arms Act for keeping an unlicensed firearm in his possession. (v) With respect to the accused – Shiv Charan Bansal and Sachin Bansal, the prosecution placed reliance on the statements of Rajesh Gupta s/o the deceased, Naveen Gupta - nephew of the deceased, the statement of Satish Gupta and Suresh Gupta - brothers of the deceased, who disclosed the motive behind the murder on the very date of the murder itself. As per their statements, it was revealed 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 the deceased. The further case brought on record was that the deceased had invested a substantial amount of money in the committees organised by Shiv Charan Bansal, which he was refusing to return. The Sessions Court held that there may be a motive on the part of the accused persons in causing the death of S.N. Gupta, but motive alone was not sufficient to frame charges u/S. 302 IPC. The Sessions Court discharged Shiv Charan Bansal since the prosecution had collected evidence against him only in the form of disclosure statements from the accused persons after arrest. These disclosure statements are with respect to facts which came to light after the arrest of the accused persons. Section 10 of the Evidence Act does not permit the use of disclosure statements to connect the accused persons with the crime. (vi) The Sessions Court held that the prosecution has been able to make out a prima facie case to frame charges against accused – Sachin Bansal for the offence u/S. 25 of the Arms Act, since Sachin Bansal got the licensed pistol belonging to accused – Narendra Mann recovered from his factory premises. The Sessions Court held that the prosecution failed to make out a prima facie case against accused – Rajbir Singh, Lalit Mann and Shiv Charan Bansal who were discharged.
28.The State filed Crl. Revision Petition No. 335 of 2008 before the Delhi High Court, against the Judgment dated 17.03.2008 passed by the Sessions Court to the extent that (i) the accused – Shiv Charan Bansal, Lalit Mann @ Nanhe and Rajbir Singh were wrongly discharged; (ii) accused – Shailendra Singh and Sachin Bansal were charged only for 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 Sodhi were charged under S.302 r.w. S.34 IPC, although they ought to have been 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. 430 of 2008 and a separate Crl. Revision Petition No. 405 of 2008 was filed by accused – Sachin Bansal challenging the Order of the Sessions Court wherein they were charged under S.25 of the Arms Act. According to them, they ought to have been discharged by the Sessions Court. Accused – Narendra Mann filed Crl. Revision Petition No. 342 of 2008 challenging the Order passed by the Sessions Court wherein he was charged for offences u/S.302 r.w. S.34, 201 IPC and S.25 and S.29(b) of the Arms Act.
30.The High Court vide the Common Judgment dated 29.05.2009 held that: (i) Narendra Mann, Sachin Bansal and Joginder Singh Sodhi were to be charged u/S. 302 read with S. 34 IPC read with 120B IPC and S. 25/27 Arms Act and substantively u/S. 120B IPC alone. The Judgment of the Sessions Court ordering discharge of Shiv Charan Bansal, Shailendra Singh, Lalit Mann and Rajbir Singh was affirmed by the High Court.
31.The State and the Complainant – Kanta Devi filed the present Special Leave Petitions to challenge the Judgment and Order passed by the Delhi High Court dated 29.05.2009. Leave to Appeal was granted vide Order dated 26.11.2010.
32.FINDINGS AND ANALYSIS
Cr.P.C, the Court is required to consider whether there was
sufficient material on record to frame charges against Shiv
Charan Bansal, Shailendra Singh, Lalit Mann and Rajbir
Singh. The prosecution alleged that the offences u/S. 120B,
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
charges under Section 227 of the Cr.P.C has the power to
sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case has been
made out against the accused. The test to determine
prima facie case would depend upon the facts of each
case.
If the material placed before the court discloses grave
suspicion against the accused, which has not been
properly explained, the court will be fully justified in
framing charges and proceeding with the trial.
The probative value of the evidence brought on record
cannot be gone into at the stage of framing charges. The
Court is required to evaluate the material and documents
on record with a view to find out if the facts emerging
therefrom taken at their face value disclose the
ingredients constituting the alleged offence.
At this stage, there cannot be a roving enquiry into the
pros and cons of the matter, the evidence is not to be
weighed as if a trial is being conducted.
Reliance is placed on the Judgment of this Court in
State of Bihar v. Ramesh Singh1 where it has been held
that at the stage of framing charges under Sections 227
or 228 of the Cr.P.C., if there is a strong suspicion which
leads the Court to think that there is ground for
presuming that the accused had committed the offence,
then the Court should proceed with the trial.
In a recent Judgment delivered in Dipakbhai
Jagdishchandra Patel v. State of Gujarat and Another 2 in
Crl. Appeal No. 714 of 2019 decided on 24.04.2019, this
Court has laid down the law relating to framing of charges
and discharge, and held that all that is required is that
the court must be satisfied with the material available,
that a case is made out for the accused to stand trial. A
strong suspicion is sufficient for framing charges, which
must be founded on some material. The material must be
such which can be translated into evidence at the stage of
trial. The veracity and effect of the evidence which the
prosecutor proposes to adduce are not to be meticulously
judged at this stage, nor is any weight to be attached to
the probable defence of the accused at the stage of
framing charges. The court is not to consider whether
there is sufficient ground for conviction of the accused, or
whether the trial is sure to end in the conviction.
II. Criminal Conspiracy
The present case is one where the prosecution has
alleged that there was a criminal conspiracy to murder
2 2019 SCC Online SC 588.
S.N. Gupta by all the accused. The crime was not
committed at the spur of the moment, but was preceded
by meticulous planning where each of the accused have
played a separate role to achieve the common illegal
object of carrying out the murder of S.N. Gupta.
The essential ingredients of Criminal Conspiracy as
per judicial dicta are: (i) an agreement between two or
more persons; (ii) agreement must relate to doing or
causing to be done either (a) an illegal act; 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. State of Bihar 3 on this issue, wherein it was held that
what is necessary for the prosecution to show is the
meeting of minds of two or more persons for doing or
causing to be done an illegal act, or an act by illegal
means.
A criminal conspiracy is generally hatched in secrecy,
and it is difficult, if not impossible, to obtain direct
evidence. Reliance is placed on the Judgment of this
Court in R. Venkatakrishnan v. CBI4. The manner and
circumstances in which the offence has been committed,
and the level of involvement of the accused persons are
relevant factors. Each conspirator plays his separate part
in one integrated and united effort to achieve the
common purpose. Each one is aware that he has a part
to play in the general conspiracy, to accomplish the
common object.
Conspiracy is mostly proved by circumstantial
evidence by taking into account the cumulative effect of
the circumstances indicating the guilt of the accused,
rather than adopting an approach by isolating the role
played by each of the accused. The acts or conduct of the
parties must be conscious and clear enough to infer their
concurrence as to the common design and its execution.
Reliance is placed on the Judgment of State (NCT) of
Delhi v. Navjot Sandhu @ Afsan Guru5.
In Kehar Singh & Ors. v. State (Delhi Administration)6
this Court held that the most important ingredient in the
offence of conspiracy is an agreement between two or
more persons to do an illegal act. The prosecution will
have to rely upon circumstantial evidence. The Court
must enquire whether the persons are independently
pursuing the same unlawful object or whether they have
come together for the pursuit of the unlawful object. The
offence of conspiracy requires some kind of physical
manifestation of the agreement. However, the same need
not be proved, nor is it necessary to prove the actual
words of communication. It is sufficient if there is a tacit
understanding between the conspirators for the
execution of the common illegal object.
In cases of criminal conspiracy, better evidence than
acts and statements of co-conspirators is hardly ever
available.
In the facts of the present case, we find that there is
ample material brought on record which creates a grave
suspicion about the involvement of the accused viz. Shiv
Charan Bansal, Lalit Mann and Shailendra Singh in the
murder of the deceased S.N. Gupta.
III. Shiv Charan Bansal
The evidence produced by the prosecution with respect to
the involvement of Shiv Charan Bansal are broadly
enumerated as follows:
(i) Rajesh Gupta s/o the deceased attributed the
murder of his father to Shiv Charan Bansal and his
son Sachin Bansal, for misappropriation of the
amounts invested by his late father S.N. Gupta in
all the committees/chit funds run by the Bansals.
Rajesh Gupta further deposed about the
business transactions between Shiv Charan Bansal
and his son, with the deceased S.N. Gupta in two
firms M/s. Accent Shoes Pvt. Ltd. and M/s. Aakash
International, where Shiv Charan Bansal had
usurped the share of the deceased, and was now
trying to take over their factory at Bahadurgarh.
(ii) This was corroborated by the statement of the
brother of the deceased viz. Satish Gupta which
was recorded soon after the murder took place. The
said witnesses have made the statements soon after
the murder of the deceased.
(iii) The statement of the third brother of the deceased
viz. Ajit Prasad Gupta’s statement was recorded
u/S. 164 Cr.P.C. on 01.06.2006 by the Court of the
Metropolitan Magistrate. Ajit Gupta disclosed that
he knew Shiv Charan Bansal since 10 to 15 years.
He stated that he had participated in the
committees organised by Shiv Charan Bansal. The
committees were organised by Shiv Charan Bansal,
and his son Sachin Bansal. There were 70 to 80
committees in a month organised by Shiv Charan
Bansal. The deceased S.N. Gupta had invested a
substantial amount of money in most of these
committees, and was a member of every group.
When S.N. Gupta demanded return of the money,
Shiv Charan Bansal refused to return the same on
one pretext or another, which he learnt when he
went to attend the committees.
(iv) The statement of independent witness viz. Ashok
Kumar Agarwal was recorded u/S. 164 Cr.P.C. on
31.05.2006 by the Metropolitan Magistrate. This
witness stated that he had participated in four
committees of 10 lakhs each run by Shiv Charan
Bansal. He was aware that the deceased S.N. Gupta
had invested in the maximum number of committees
run by Shiv Charan Bansal, in which his eldest son
Sachin Bansal used to help him.
(v) Both the Sessions Court and the High Court have
noted that all the witnesses have clearly attributed
the murder to Shiv Charan Bansal and his son Sachin
Bansal. The motive of the crime was to
misappropriate the investments made by the deceased
in the committees of Shiv Charan Bansal. Rajesh
Gupta has further deposed that the further
circumstance was on account of the business dealings
between the families of the deceased and Shiv Charan
Bansal.
As per the case of the prosecution, the murder of
S.N. Gupta was contrived by Shiv Charan Bansal
and his son Sachin Bansal with Narendra Mann,
and the other co-conspirators being Lalit Mann who
arranged the contract killer – Joginder Singh Sodhi,
Shailendra Singh who provided the weapon of
offence which was recovered from his office, along
with live cartridges.
(vi) The contemporaneous Call Detail Records (CDRs)
between Sachin Bansal and Narendra Mann, who
accompanied Joginder Singh Sodhi – the contract
killer, would constitute strong material for framing
the charge against all the accused.
The murder of S.N. Gupta took place at about
4:30 p.m. Narendra Mann from his cell phone
bearing No. 9818411470 made a call at 3:51 p.m. to
Sachin Bansal on his cell phone bearing No.
9818119624 prior to the execution of the crime.
After the murder was committed, Narendra Mann
called Sachin Bansal on his cell phone at 4:48 p.m.
These call records in quick succession immediately
before and after the murder was committed, lead to
a grave suspicion about the complicity of these
accused. The Call Detail Records reveal that the
accused were in close contact and communication
with each other both before and after the
occurrence.
The I.O. Satyapal Singh, in his deposition
dated 08.01.2015, had stated that on 09.06.2006, he
had obtained the Call Detail Records of the mobile
phones of all the accused persons from the ACP
Office.
We have perused the record of the Sessions
Court, and find that the Call Detail Records of Shiv
Charan Bansal, which was a crucial piece of
evidence was deliberately not placed by the I.O. along
with the Charge Sheet. The missing Call Detail
Records of only Shiv Charan Bansal creates a strong
suspicion against him.
(vii) The records of the committees run by Shiv Charan
Bansal were alleged to have been destroyed. This
creates a strong suspicion about the conduct of Shiv
Charan Bansal who was running 75 to 80
committees/chit funds at that time. In his disclosure
statement dated 26.04.2006, Shiv Charan Bansal
stated that he is having all the records of the
committees. However, two days later, on 28.04.2006,
he changed his version and stated that the
committee records have been destroyed by his son
Sachin Bansal.
The prosecution has alleged that the records of
the committees were burnt/destroyed by the father-
son duo. The destruction of the records of the
committees, which would have revealed the
substantial investments made by late S.N. Gupta is
an incriminating factor.
(viii) The conduct of Shiv Charan Bansal after the murder
was committed, is also of relevance. The police
apprehended Sachin Bansal on 29.03.2006 from his
factory.
Shiv Charan Bansal remained absconding after
the murder was committed on 21.03.2006, and did
not join the investigation despite efforts by the Police.
He was apprehended after more than one month on
25.04.2006.
After the commission of the crime, accused –
Shiv Charan Bansal absconded and did not join the
investigation. The said circumstance 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 a strong prima
facie case and the materials on record are sufficient
to frame charges against Shiv Charan Bansal. The
Sessions Court and the High Court were not justified
in discharging the accused – Shiv Charan Bansal for
for destruction of evidence.
The materials gathered by the prosecution raise
a strong suspicion against both Shiv Charan Bansal
and his son Sachin Bansal in hatching 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 the Arms Act, even though
there was sufficient material for his prosecution u/S.
The High Court vide Order and Judgment dated
29.05.2009 directed the prosecution to frame
r.w. S.25 and 27 of the Arms Act, and u/S. 120B
substantively, against Sachin Bansal, and to conduct
the trial accordingly.
During the pendency of the present appeals,
the Sessions Court proceeded with the trial of Sachin
Bansal under the charges as directed by the High
Court. The Sessions Court vide Judgment and Order
dated 04.02.2016, acquitted him primarily on the
ground that the allegations against him were
circumstantial in nature, 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 the acquittal of Sachin
Bansal, which is pending final determination by the
High Court.
IV. Lalit Mann
(i) The prosecution relied upon the statement of
Naveen Gupta @ Cheenu son of Suresh Gupta, and
nephew of the deceased. The said witness in his
statement u/S. 161 Cr.P.C, which was recorded
soon after the murder had occurred on the same
date, stated that Narendra Mann, Lalit Mann,
Sachin Bansal and his friends used to threaten him
over the phone. Naveen Gupta further stated that
these persons also came to his house, and
threatened to kill his family. He further stated that
his father Suresh Gupta, on the advice of the
deceased S.N. Gupta, got a complaint registered at
Mangolpuri Police Station against Lalit Mann and
others. It was further stated that he was sure that
his uncle S.N. Gupta was murdered by Narendra
Mann, Lalit Mann, Sachin Bansal and his friends.
(ii) The disclosure statement made by Narendra Mann
reveals that initially he had asked Lalit Mann to
carry out the murder of S.N. Gupta.
The accused – Lalit Mann had full knowledge of
the criminal conspiracy hatched to murder the
deceased S.N. Gupta.
(iii) Soon after the murder took place, Narendra Mann
and Lalit Mann were absconding.
Since Lalit Mann did not join the investigation
after the commission of the crime, the conduct of
the accused in absconding would be admissible as
relevant ‘conduct’ u/S. 8 of the Indian Evidence
Act.
(iv) On 29.03.2006 i.e. eight days after the murder
took place, three of the accused viz. Narendra
Mann, Lalit Mann and Rajbir Singh were
apprehended by the police while travelling in an
Esteem car. The police recovered incriminating
objects i.e. photo of the deceased which was given
to the contract killer for identification, goggles and
black cap worn by the contract killer – Joginder
Singh to conceal his identity, from the car.
(v) The Call Detail Records of Lalit Mann reveal that
from his cell phone bearing No. 9810254600, he
was in communication with the contract killer
Joginder Singh Sodhi on his cell No. 9871791501
prior and subsequent to 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
provided the weapon of offence. Furthermore, after the
crime was committed, Shailendra Singh remained
absconding for a period of 75 days.
(i) The recovery of the weapon of offence i.e. an
unlicensed 7.65 mm bore pistol along with two live
cartridges from the office of this accused at A 1/25,
Sector 7, Rohini, Delhi creates a strong suspicion of
his involvement in the conspiracy to murder late
S.N. Gupta.
The office from where the recovery was made
admittedly belongs to the wife of Shailendra Singh.
This is corroborated by the deposition u/S. 161
Cr.P.C. of Ramesh, an independent witness, a
property dealer, who had arranged the purchase of
flat No. A 1/35, Sector 7, Rohini, Delhi by
Shailendra Singh, which was registered in the name
of his wife Pooja Singh. Shailendra Singh used the
said flat as his office to carry out his financing
business.
(ii) The FSL Report dated 18.10.2006 has certified that
the weapon and cartridges used in the murder of
S.N. Gupta were recovered from the office of
Shailendra Singh.
(iii) The Ballistic Report has certified that the three
used cartridges recovered from the site of
occurrence, and the lead retrieved from the body of
the deceased, matched with the live cartridges
recovered from the house of Shailendra Singh and
were fired from the unlicensed pistol recovered from
house of Shailendra Singh.
(iv) After the commission of the crime, the accused
Shailendra Singh was in possession of the weapon
of offence, which was lying concealed in his office.
The circumstance of the weapon of offence being
found in the custody and possession of Shailendra
Singh, would be admissible as “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 house of Shailendra Singh, was a very
important circumstance in the chain of events,
which was sufficient to proceed against him in trial
(v) The call detail records produced before the Sessions
Court, reveals the communication between
Narendra Mann and Shailendra Singh on the date
of the murder, which is relevant material as per
Section 8 of the Evidence Act.
(vi) It is surprising that the Sessions Court and the
High Court having accepted the recovery of the
unlicensed weapon from the office of Shailendra
Singh, charged him only with the offence u/S. 25 of
the Arms Act.
VI. Rajbir Singh
With respect to the discharge of the accused – Rajbir
Singh, the Order of the Sessions Court and High Court is
not disturbed, as we find that there is not sufficient
material to prosecute him.
VII. Narendra Mann
Narendra Mann was charged by the Sessions Court u/S.
Arms Act by the Sessions Court.
The Sessions Court vide Judgment and Order dated
04.02.2016 acquitted Narendra Mann.
The State has filed Crl. Appeal No. 1155 of 2017, and
the Complainant – Kanta Devi filed Crl. Appeal No. 1154
of 2017 before the High Court which are pending
determination.
VIII. Section 223 of the Cr.P.C. provides that persons
accused of the same offence, committed in the course of
the same transaction, must be jointly charged and tried.
In the present case, on account of the inconsistency in
framing charges by the Sessions Court against the six
accused, the trial has got truncated. The trial with
respect to three accused i.e. Sachin Bansal, Narendra
Mann, and the alleged contract killer – Joginder Singh
Sodhi has proceeded in the absence of the other three
accused viz. Shiv Charan Bansal, Lalit Mann and
Shailendra Singh.
The present case is one of criminal conspiracy based
on circumstantial evidence. For a case of criminal
conspiracy to be established, each link in the chain of
circumstances would get completed, only if the evidence
collected by the prosecution against all the accused was
taken into consideration holistically.
Since the trial in the present case has got truncated, it
is necessary that the trial of the remaining three accused
proceeds forthwith in accordance with law.
With respect to the other three accused i.e. Sachin
Bansal, Narendra Mann and Joginder Singh the trial was
conducted in the absence of the other three alleged co-
conspirators. The Order of acquittal with respect to
Sachin Bansal and Narendra Mann is pending before the
High Court.
S.386 Cr.P.C. defines the powers of the appellate court
in dealing with appeals. Clause (a) of S.386 Cr.P.C. is
restricted to the powers of the High Court since an
appeal against an Order of acquittal lies to the High
Court. The appellate court may direct the accused to be
re-tried, not only when it deals with an appeal against
acquittal, but also when it deals with an appeal against
conviction. Under clause (a) the High Court may reverse
the Order of acquittal and direct that further enquiry be
made, or the accused may be re-tried, or may find him
guilty and pass sentence thereon. Reliance is placed on
the judgment of this Court in Isaac alias Kishore v.
Ronald Cheriyan & Ors7.
IX. As an appellate Court, the High Court may take further
evidence while considering the Appeals u/S.391 Cr.P.C,
if it is considered necessary, and take additional evidence
on record. The High Court may also permit recording of
statements u/S.313 Cr.P.C, if considered necessary, as
held by this Court in Alister Anthony Pareira v. State of
Maharashtra8 and in Asraf Ali v. State of Assam.9
X. The High Court may take up the pending appeals in the
case of Sachin Bansal, Narendra Mann and Joginder
Singh Sodhi, after the conclusion of the trial of Shiv
Charan Bansal, Lalit Mann and Shailendra Singh, the
remaining accused by the Sessions Court in the present
case.
XI. Conclusions & Directions: -
1. The Criminal Appeal filed by the State of NCT of Delhi
being Crl. Appeal No. 2248 of 2010, and the private
Complainant – Kanta Devi being Cr. Appeal No. 2247
of 2010 are allowed in Part.
We direct the Additional Sessions Judge, Rohini
Courts to proceed with the trial in accordance with
law in Sessions Case No. 6/2007 arising out of FIR
No. 200/2006 dated 21.03.2006 with respect to the
following accused: -
a. The Additional Sessions Judge, Rohini
Courts, Delhi is directed to frame charges
against Shiv Charan Bansal u/S. 302 r.w.
proceed with the trial in accordance with
law.
b. We direct the Additional Sessions Judge,
Rohini Courts, Delhi to frame Charges
and S.120B IPC and proceed with the trial
in accordance with law.
c. We direct the Additional Sessions Judge,
Rohini Courts, Delhi to frame charges
against Shailendra Singh u/S.302 r.w. 34
59 of the Arms Act.
2. Let a copy of this Judgment be sent to the Additional
Sessions Judge, Rohini Courts, Delhi for conducting
the trial against the aforesaid accused in Sessions
Case No. 6/2007 arising out of FIR No. 200/2006.
3. We direct the Additional Sessions Judge, Rohini
Courts, Delhi to fix a time schedule, and proceed with
the trial on a day to day basis, and conclude the same
preferably within a period of six months from today.
4. The Additional Sessions Judge, Rohini Court, Delhi is
directed to report the progress of the case to this
Court after three months.
5. Let a copy of this Judgment be also forwarded to the
High Court and placed in the file of pending Crl.
Appeal Nos. 1155 of 2017 and 1154 of 2017.
6. We affirm the Judgment of the High Court qua the
acquittal of Mr. Rajbir Singh Malik @ Raju – Accused
No.3.
(R. SUBHASH REDDY) New Delhi December 5, 2019.