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State Of Nct Of Delhi vs Shiv Charan Bansal on 5 December, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2248 OF 2010

State of NCT of Delhi …Appellant
Versus

Shiv Charan Bansal Ors. …Respondents

WITH
CRIMINAL APPEAL NO. 2247 OF 2010
Kanta Devi …Appellant
Versus
State (NCT of Delhi) Ors. …Respondents

JUDGMENT

INDU MALHOTRA, J.

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

Mann @ Nanhe, Shailendra Singh and Rajbir Singh by the

Delhi High Court.

1

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

2
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.

3
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

4
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

5
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,
6
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.

7

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.

8

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

9
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

10
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
11
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

12
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.

13
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.

14
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

15
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

16
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

17
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

18
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

19
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

20
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

21
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.

22

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.

23

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

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 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,

S.302 r.w. S.120B/34, S.201 IPC and S.25 of the Arms 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

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.

24

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.

1
(1977) 4 SCC 39.

25
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.

26
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

3 (2014) 3 SCC 401.

27
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

4 (2009) 11 SCC 737.

5 (2005) 11 SCC 600.

6 (1988) 3 SCC 609.

28
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.

29

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.

30

(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

31
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

32
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.

33
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

34
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

35
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

the offences u/S.302 r.w. S.34, S.120B, S.201 IPC

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.

120B r.w. S.302/34 and S.201 IPC.

The High Court vide Order and Judgment dated

29.05.2009 directed the prosecution to frame

charges u/S. 120B r.w. S.302 and S.34 IPC, S.120B
36
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

37
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.

38
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.

39
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

40
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

41
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

u/S. 302 r.w. S.34 and 120B IPC.

(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

42
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.

302 r.w. S.34, S. 201 IPC and S. 25 and 29(b) of the

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
43
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.

44
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

7 (2018) 2 SCC 278.

45
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

8 (2012) 2 SCC 648.

9 (2008) 16 SCC 328.

46
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.

S.34 IPC and S. 120B, and S.201 IPC and

proceed 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

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

IPC and S. 120B IPC, and S. 25, 27, 54 and

59 of the Arms Act.

2. Let a copy of this Judgment be sent to the Additional

Sessions Judge, Rohini Courts, Delhi for conducting

47
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.

..….…………………………..J.

(INDU MALHOTRA)

…..……………………………J.
(R. SUBHASH REDDY)
New Delhi
December 5, 2019.

48

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