Delhi High Court
State Of Nct Of Delhi vs Shiv Charan Bansal & Others on 29 May, 2009
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: April 29, 2009
Date of decision: May 29, 2009
CRL.REV.P. No. 335 of 2008
STATE OF NCT OF DELHI ..... Petitioner
Through: Mr. Vikas Pahwa, Advocate.
versus
SHIV CHARAN BANSAL & ORS. ..... Respondents
Through: Mr. R.K. Naseem with Mr. Nitin
Tittal, Mr. Manish Kumar, Mr. Sachin Dev
Sharma and Mr. Dinesh Sharma, Advocates
for R-1.
Ms. D.Puja Anand with Ms. Pusshp Gupta,
Advocates for R-2.
Mr. Ramesh Kumar Gupta, Senior Advocate
with Mr. Sanjay Rathi, Advocate for R-3.
Mr. Hariharan, Advocate for Rajbir Malik.
Mr. K.K.Sud, Senior Advocate with Mr.
G.S.Raghav and Mr. Pankaj Jain, Advocates
for Narender Mann
Mr.R.P.Singh, Advocate for Joginder Singh
Sodhi.
WITH
CRL.REV.P. No. 405 of 2008
SACHIN BANSAL ..... Petitioner
Through: Ms. D.Puja Anand with Ms.
Pusshp Gupta, Advocates
versus
STATE ..... Respondent
Through: Mr. Pawan Bahl, APP.
WITH
CRL.REV.P. No. 335 of 2008 page 1 of 45
CRL.REV.P. No. 342 of 2008
NARENDER MANN ..... Petitioner
Through: Mr. K.K.Sud, Senior Advocate
with Mr. G.S.Raghav and Mr. Pankaj Jain,
Advocates.
versus
STATE ..... Respondent
Through: Mr. Vikas Pahwa, Advocate.
CRL.REV.P. 191/2008
KANTA DEVI ..... Petitioner
Through Mr. Sanjiv Kumar Jha, Advocate
versus
STATE & ORS ..... Respondents
Through Mr. R.K. Naseem with Mr. Nitin
Tittal, Mr. Manish Kumar, Mr. Sachin Dev
Sharma and Mr. Dinesh Sharma, Advocate
for Shiv Charan Bansal and Shailender
Singh.
Ms. D. Puja Anand with Ms. Pusshp Gupta,
Advocate for R-2.
Mr. Pawan Bahl, APP for State.
Mr. Inderjeet Singh, Advocate for Joginder
Singh Sodhi.
Mr. Ramesh Kumar Gupta, Senior Advocate
with Mr. Sanjay Rathi, Advocate for R-3.
CRL.REV.P. 430/2008
SHAILENDER SINGH ..... Petitioner
Through Pt. R.K Naseem with Mr. Nitin
Tittal and Mr. Manish Kumar, Advocate
versus
STATE OF DELHI ..... Respondent
Through Mr. Pawan K. Bahl, APP
CRL.REV.P. No. 335 of 2008 page 2 of 45
AND
BAIL APPLN. No. 516 of 2009
NARENDER MANN ..... Petitioner
Through: Mr. K.K.Sud, Senior Advocate
with Mr. G.S.Raghav and Mr. Pankaj Jain,
Advocates.
versus
THE STATE (NCT OF DELHI) ..... Respondents
Through: Mr. Pawan Bahl, APP.
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
JUDGEMENT
1.1 The order dated 17th March 2008 passed by the learned Additional
Sessions Judge („ASJ‟) in Sessions Case No. 6 of 2007 arising out of
FIR No.200 of 2006 registered at Police Station Mangol Puri,
concerning the murder of deceased S.N.Gupta on 21st March 2006,
has given rise to this batch of petitions. The State is aggrieved by the
order to the extent that some of the accused i.e. Rajbir Malik, Lalit
Mann and Shiv Charan Bansal have been discharged and to the extent
that accused Shailender and Sachin Bansal have been charged only for
CRL.REV.P. No. 335 of 2008 page 3 of 45
the offence under Section 25 of the Arms Act. The State is also
aggrieved to the extent that Narender Mann and Jogender Singh Sodhi
have not been charged for the offence under Section 120B IPC but
only with Section 302 read with 34 IPC. The complainant Kanta Devi,
the wife of the deceased S.N. Gupta, has filed a separate revision
petition praying for the same reliefs as the State. The revision petition
by the accused Shailender Singh and Sachin Bansal have challenged
the said order to the extent that they have been charged with the
offence under Section 25 of the Arms Act. According to them they
ought to have been discharged. Narender Mann has filed a criminal
revision petition challenging the order on charge claiming that he too
should have been discharged. He has also separately filed a bail
application. Since all these petitions arise out of the common set of
facts they are being disposed of by this common judgment.
1.2 At the outset this Court allows an application by the State
(Crl.M.A.No. 3994 of 2009) seeking impleadment of Narender Mann
and Joginder Sodhi in its revision petition. Both were represented by
counsel and heard in the revision petition by the State. The application
stands disposed of accordingly.
Case of the Prosecution
2. The case of the prosecution is that at around 4.30 pm on 21 st March
2006 the call bell rang at the residence of deceased S.N. Gupta. His
CRL.REV.P. No. 335 of 2008 page 4 of 45
wife Kanta Devi (the complainant) opened the main door and found a
person with beard aged about 25 to 30 years wearing spectacles, black
cap with a bag standing at the door. He told the complainant that he
was a courier boy and had brought a letter for S.N. Gupta. The
complainant went inside the house, informed S.N.Gupta and then
went to the kitchen. S.N. Gupta went to the door of the house and
received the letter. The complainant who was in the kitchen heard 2 or
3 gun shots. She ran towards the door and in the meanwhile the maid
servant also shouted for her. The complainant found S.N. Gupta lying
on the floor and blood was coming out from his chest. She called the
neighbours and with their help the deceased was taken to the Jaipur
Golden Hospital where the doctors declared him „brought dead‟.
3. Information about the incident was received in the police station
vide DD No. 26 dated 21st March 2006. SI Dharambir Singh along
with Constable Vijay Kumar and Constable Prasan reached the spot.
Blood was found at the spot near the door of the House No. 260,
Deepali Enclave, Pitam Pura. A rukka was sent to the police station at
about 6.50 pm. FIR No. 200 of 2006 under Sections 120B, 302,
201/120B read with Section 34 IPC and 25/27 of the Arms Act was
registered at PS Mangol Puri.
4. On 21st March 2006 itself Satish Gupta and Suresh Gupta, sons of
R.D. Gupta, and the brothers of the deceased S.N. Gupta, made
CRL.REV.P. No. 335 of 2008 page 5 of 45
statements to the police under Section 161 CrPC. According to them
S.N. Gupta had invested a considerable amount of money in certain
(chit fund) „committees‟ organised by accused Shiv Charan Bansal.
Rajesh Gupta, the son of deceased S.N. Gupta also made a statement
under Section 161 CrPC to the police on 21 st March 2006. He
informed them that both he and his father deceased S.N. Gupta, had
invested a lot of money in the committees being run by Shiv Charan
Bansal and his son Sachin Bansal. Rajesh Gupta and Sachin Bansal
jointly owned Action Shoes Private Limited („ASPL‟) which had a
factory at Bahadurgarh. Rajesh Gupta had desired to separate himself
from the partnership. Rajesh Gupta, Shiv Charan Bansal and Sachin
Bansal also were in a partnership firm M/s. Akash International
earlier. When Rajesh Gupta left that partnership the money invested
by him therein was taken away by Shiv Charan Bansal and Sachin
Bansal. Rajesh Gupta alleged that the father and son duo also intended
to take away the factory of ASPL at Bahadurgarh in similar fashion.
Despite the deceased S.N. Gupta and Rajesh Gupta demanding return
of the money invested by them in the committees, Shiv Charan Bansal
and Sachin Bansal did not do so.
5. Satish Gupta also informed the police that the deceased S.N. Gupta
had told him that both Shiv Charan Bansal and Satish Bansal intended
to take away the factory at Bahadurgarh and they had also not repaid a
large amount owing to them as a result of the dissolution of the
CRL.REV.P. No. 335 of 2008 page 6 of 45
partnership firm Akash International. Suresh Gupta, a brother of
Satish Gupta and late S.N. Gupta, informed the police that his son
Naveen Gupta has been threatened even earlier by accused Narender
Mann, Lalit Mann and their cohorts with a view to extorting money.
Suresh Gupta also received threats from these accused that he would
be killed along with his family members. Suresh Gupta had told the
deceased S.N. Gupta about these threats. Suresh Gupta on the advice
of the deceased S.N. Gupta, lodged a complaint against Narender
Mann at PS Mangol Puri.
6. Naveen Gupta @ Cheenu, the son of Suresh Gupta also made a
statement to the police. Apart from mentioning about the threats
received on the telephone, he named Narender Mann, Lalit Mann and
Sachin Bansal along with their associates as being responsible for the
murder of the deceased.
7. One Ashok Kumar Aggarwal son of Shri Sunder Lal also gave a
statement under Section 161 CrPC to the police on 7 th April 2006
stating that Sachin Bansal and Shiv Charan Bansal were in the
business of running 60 to 70 committees and each committee had
sums ranging in between 5 to 20 lakhs. He too had invested in about
5 to 7 such committees. He confirmed that the deceased S.N. Gupta
had invested around 70 to 80 lakhs in the committees being run by
Shiv Charan Bansal and that the deceased was a member of several of
CRL.REV.P. No. 335 of 2008 page 7 of 45
such committees of which Shiv Charan Bansal was the organiser. He
also stated that Sachin Bansal was also associated with the
committees. It is important to note that Ashok Kumar Aggarwal later
made a statement under Section 164 CrPC before the learned
Metropolitan Magistrate („MM‟) to the above effect on 31st May 2006.
8. On 7th April 2006 one Ajit Prasad Gupta son of R.D. Gupta also
stated that he had invested in 4 committees run by Shiv Charan Bansal
and that he along with his son Sachin Bansal were running 70 to 80
such committees. He also confirmed that deceased S.N. Gupta had
invested in nearly all of the committees run by Shiv Charan Bansal
and Sachin Bansal. He also confirmed that the accused were dragging
their feet about returning the moneys owing to S.N. Gupta. Ajit Prasad
Gupta also made a statement before the learned MM on 1 st Jun 2006
under Section 164 CrPC.
9. According to the police Sachin Bansal was interrogated between
24th and 28th March 2006. At around 5 pm on 29th March 2006 he was
arrested and his disclosure statement was recorded at around 8.30 pm
on that day. Narender Mann, his brother Lalit Mann and the lawyer
Rajbir Malik were arrested on 29th March 2006 when they were
traveling in an Esteem car. It is stated that joint recoveries of a blank
photo frame, a black cap, black goggles and a photo of the deceased
were recovered from the Esteem car. Narender Mann made a
CRL.REV.P. No. 335 of 2008 page 8 of 45
disclosure and offered to show the place where he had parked his car
near the Deepali Colony, the shop from where he purchased the caps
and goggles. He offered to get Shailender Singh arrested stating that
it was Shailender Singh who gave him the weapon used in the murder.
He offered to get the weapon recovered. He also offered to get
recovered the Getz car in which Joginder Singh travelled to the place
of murder and offered to get Joginder Singh arrested. Disclosure
statements were also purportedly made on 29th March 2006 by Lalit
Mann and Rajbir Singh.
10. On the pointing out of Narender Mann the place near Deepali
Colony where he had parked his Getz car was located. On the pointing
out of Narender Mann, the Getz car was recovered from the house in
his village. On 30th March 2006 at around 5 am accused Joginder
Singh was arrested and a black goggles and a cap were recovered
from the car in which he was travelling. Joginder Singh then made a
disclosure statement. Further, at the instance of Narender Mann an
unlicensed weapon along with two live cartridges 7.65 mm were
recovered from Flat No. A-11/35 Sector-7, Rohini, Delhi which
allegedly was the office of accused Shailnder in the presence of his
servant Padam Bahadur.
11. On 30th March 2006 the accused persons were produced in the
court of the learned MM at Rohini. While accused Joginder Singh,
CRL.REV.P. No. 335 of 2008 page 9 of 45
Lalit Mann and Rajbir Singh were sent to judicial custody, accused
Narender Mann and Sachin Bansal were sent to police custody. On
31st March 2006 Narender Mann made a further disclosure statement.
He informed the police that his licensed weapon was with Sachin
Bansal whereas the license was at his residence and that he could get
it recovered. On that date Sachin Bansal made a disclosure that after
the murder was committed Narender Mann had given him a licensed
pistol and 11 live cartridges in a polythene paper which was lying in
his office at T-1/11 Industrial Area, Phase-1, Mangol Puri. The said
licensed weapon of Narender Mann along with 11 cartridges were
thereafter recovered from the office of Sachin Bansal. The arms
license was also got recovered from Narender Mann from his
residence.
12. On 12th April 2006 Joginder Singh refused to participate in the test
investigation parade („TIP‟). On 25th April 2006 Shiv Charan Bansal
was arrested. Shailender Singh was arrested on 2 nd June 2006 after
the anticipatory bail application filed by him was dismissed. On 4 th
June 2006 Shailender Singh identified the place from where the
unlicensed weapon was recovered by Narender Mann. On 14th June
2006, the police found that the address given in the application made
by Shailender Singh for a mobile phone was A-11/35 Sector-7,
Rohini, Delhi.
CRL.REV.P. No. 335 of 2008 page 10 of 45
13. On 17th November 2006 the statement of Ramesh son of Jeet Lal
resident of the ground floor of the house in Rohini from where the
unlicensed weapon of Narender Mann was recorded. He stated that
that the property was in the possession of Shailender Singh at the time
of the murder and that the flat had been purchased by him in the name
of his wife Pooja Singh. Shailender Singh was stated to have been
running an office in the garage of the building for over three years and
later the property was given on rent to Varuna Pump Agency. A
supplementary charge sheet was filed thereafter on 26th November
2006.
14. According to the prosecution the material gathered during the
investigation revealed the larger criminal conspiracy and the precise
role of each of the accused as follows. Shiv Charan Bansal and his son
Sachin Bansal were in the business of running committees where
moneys would be invested and in turn reinvested by them to generate
returns. S.N. Gupta and his son Rajesh Gupta had invested
considerable sums of moneys in these committees. Rajesh Gupta had
been in partnership with Shiv Charan Bansal and Sachin Bansal in a
firm M/s. Akash International which subsequently was dissolved. The
moneys invested therein by S.N. Gupta and his son were not returned
by Shiv Charan Bansal and Sachin Bansal. Likewise, Rajesh Gupta
had also invested ASPL along with Sachin Bansal. The said company
had a factory at Bahadurgarh. The apprehension expressed by
CRL.REV.P. No. 335 of 2008 page 11 of 45
deceased S.N. Gupta to his brother Suresh Gupta was that the accused
Shiv Charan Bansal and Sachin Bansal might somehow take away the
factory at Bahadurgah. When S.N.Gupta and Rajesh Gupta would
demand return of the moneys invested by them in the factory at
Bahadurgarh, Shiv Charan Bansal and Sachin Bansal refused.
15. According to the prosecution Narender Mann had given on loan
around Rs. 7 lakhs to Naveen Gupta on the recommendation made by
Sachin Bansal. Together with interest, the amount owing to Narender
Mann by Naveen Gupta worked to about Rs.15 lakhs. Narender
Mann decide to effect improvements to his hotel in Manali and
demanded the amount owing to him from Naveen Gupta alias Cheenu
and his father. Instead of repaying him the money they lodged a
complaint against him with the police. Narender Mann spoke to
Sachin Bansal and asked him to return the moneys owing to him by
Cheenu since he had lent money to the latter only on Sachin Bansal‟s
recommendation. According to prosecution Sachin Bansal told
Narender Mann that he too was owed money to the extent of over Rs.
30 lakhs by Naveen Gupta. Accordingly a criminal conspiracy was
hatched by Sachin Bansal and Narender Mann to eliminate S.N. Gupta
as that would mean that the moneys invested by S.N.Gupta in the
committees could be retained by Sachin Bansal who would also be
able to pay Narender Mann the money owed to him by Naveen Gupta.
Sachin Bansal further offered to pay for the expenses involved in
CRL.REV.P. No. 335 of 2008 page 12 of 45
carrying out the killing of S.N.Gupta.
16. Narender Mann agreed to the above proposal. He first asked his
brother Lalit Mann to carry out the killing of S.N.Gupta by disgusing
himself as a Sikh. After initially agreeing, Lalit Mann backed out.
Thereafter Jitender Singh Sodhi, who was a neighbour, was asked and
he agreed to execute the task. It is alleged by the prosecution that
accused Rajbir Malik, an Advocate who was advising Narender
Mann, suggested that Narender Mann should not use his own licensed
weapon for committing the murder but should use another weapon
identical to it. It was expected that the police would seek to connect
the cartridges recovered at the site with the licensed weapon of
Narender Mann. They would then be able to show that the said
weapon was never used but was kept in the custody of Sachin Bansal.
17. It is stated that pursuant to the conspiracy, Sachin Bansal took a
photo of S.N.Gupta from his marriage album and gave it to Narender
Mann. He also showed him the house of S.N.Gupta and informed him
of S.N.Gupta‟s daily routine and further informed him that he receives
courier packets/letters in connection with his investments in shares.
Joginder Singh Sodhi was running a shop below the office of Lalit
Mann. He was offered a sum of Rs.2 lakhs by Narender Mann for
committing the murder of S.N.Gupta. Joginder Singh Sodhi was also
shown the photograph of S.N.Gupta and the exact location of his
CRL.REV.P. No. 335 of 2008 page 13 of 45
house. On the date of the offence, 21st March 2006, pursuant to the
above criminal conspiracy, Narender Mann borrowed the Getz car
from his cousin, the unlicensed pistol with five rounds from
Shailender Singh. He then took Joginder Singh to the place of
occurrence in his Getz car, by making him wear the goggles and cap
and giving the cover with the name and address of S.N.Gupta. He
parked the car near the apartment and was waiting in it while Joginder
Singh went to the house of deceased S.N.Gupta and caused his murder
by shooting him at point blank range. Narender Mann then helped to
Joginder Singh to get away.
18. The case of the prosecution further is that a call was made from
his mobile phone by Sachin Bansal to Narender Mann on 21st March
2006 soon after the killing of the deceased. This was to confirm if the
killing had taken place. Narender Mann gave the confirmation by
calling Sachin Bansal back. The police arrived at the scene of offence
and commenced investigations. The blood samples, cartridges
collected at the spot were sent to the Forensic Science Laboratory
(„FSL‟) for the opinion of the ballistic expert. The letter delivered to
S.N.Gupta by the assailant (Joginder Singh) was in an envelope with
the address of S.N.Gupta hand written thereon. This was seized and
sent to the FSL for comparison of handwriting. The call details of
mobile phone 9818411470 from which Narender Mann gave a call to
Sachin Bansal on the latter‟s phone 9818119624 on 21 st March 2006
CRL.REV.P. No. 335 of 2008 page 14 of 45
after the commission of the murder, were also recovered. The
telephone records also showed that the accused were in contact with
each other both before and after the occurrence.
Proceedings before the learned ASJ
19. Before the learned ASJ it was urged on behalf of the prosecution
that against all the accused persons there exists a prima facie case for
framing charges for the offences punishable under Section 120B IPC,
302 read with 120B/34 IPC, Section 201 IPC and Section 25 of the
Arms Act. It was submitted that the disclosure statements made by
the accused were admissible under Section 10 of the Indian Evidence
Act, 1872 („EA‟) as all the accused were being tried together in the
same case and therefore the statement made by one accused would be
relevant against the other accused as well. The statements made by
witnesses under Section 161 CrPC did show that accused Shiv Charan
Bansal and Sachin Bansal had organized the committees, that the
deceased and his son had invested in these committees, that they were
demanding return of moneys which was not liked by the accused. It
also disclosed the active involvement of Narender Mann, Lalit Mann,
Rajbir Malik, Shailender and Joginder Singh Sodhi in the commission
of the crime.
20. On behalf of the accused it was urged that the disclosure
statements made by the accused after their arrest could not be used as
CRL.REV.P. No. 335 of 2008 page 15 of 45
substantive evidence to prove the offence of criminal conspiracy in
terms of Section 10 EA. Further the conspiracy would itself come to
an end after the killing of S.N.Gupta and any statement made by any
of the accused after the object of the alleged conspiracy was achieved,
viz., the killing of S.N.Gupta, would not be admissible in the
evidence. Barring the disclosure statements of the accused, which in
any event were admissible only to a limited extent, there was no
substantive independent evidence available to establish the
conspiracy. There was no evidence to prove the motive for the crime.
It was submitted that, therefore, the accused were liable to be
discharged.
21. The learned ASJ agreed with the defence that the prosecution
could not rely upon the disclosure statements of the accused as
evidence of criminal conspiracy in terms of Section 10 EA. The
evidence which had come to the knowledge of the investigating
agency after the arrest of the accused persons was not legally
admissible material which could give rise to a grave suspicion against
the accused persons and therefore none of them could be charged with
the offence of criminal conspiracy under Section 120B IPC. As
regards conversations on the mobile phone between Narender Mann
and Sachin Bansal it was held that the actual content of the
conversations was not known and while the existence of calls may
create a suspicion such suspicion was not grave enough to frame
CRL.REV.P. No. 335 of 2008 page 16 of 45
charges against accused persons for the offences under Section 120B
read with Section 302 IPC.
22. The learned ASJ then proceeded to discuss the case of each of the
accused. As far as accused Joginder Singh was concerned, it was held
that the writing on the envelope was confirmed by the FSL to be his.
The ballistic expert had opined that the bullets recovered from the
body of the deceased were fired from the recovered pistol of 7.5 mm.
Joginder Singh Sodhi had also declined to participate in the TIP.
Later the complainant Kanta Devi identified him as the assailant. The
learned ASJ held that there was material to raise a grave suspicion
against Joginder Singh Sodhi for being tried for the offence under
Section 302 IPC.
23. As regards Narender Mann it was held that the weapon of offence
was got recovered by Narender Mann from the office of accused
Shailender at the instance of Narender Mann. The ballistic expert had
connected the weapon with the cartridges recovered from the scene of
occurrence. It was for Narender Mann to explain therefore the
circumstances in which he had kept the weapon of offence at the
office of Shailender. He was arrested on 29th March 2006 while
travelling in an Esteem car from where the black cap, goggles and
photo of the deceased were recovered. He had purchased two sets of
goggles, black cap and beard. One set was given to Joginder Singh
CRL.REV.P. No. 335 of 2008 page 17 of 45
Sodhi for wearing at the time of commission of the offence and the
other set was kept by him. His licensed pistol was recovered from the
office of Sachin Bansal. All these facts showed that he along with
Joginder Singh Sodhi was liable to be tried for the offence under
Section 302 IPC read with 34 IPC as well as under Section 25 of the
Arms Act.
24. As regards Lalit Mann and Rajbir Malik, the learned ASJ found
that the evidence was insufficient to charge them with any of the
offences. As far as Shailender Singh is concerned, the learned ASJ
held that the prosecution had failed to produce any document showing
his ownership or possession of the premises in Rohini from which the
weapon of offence was recovered. It was held that he could at the best
be charged with the offence under Section 25 of the Arms Act. As
regards Shiv Charan Bansal it was held that motive alone was not
sufficient to frame a charge against them for the offence under Section
302 IPC. Nothing incriminating was recovered at his instance to
connect him with the crime.
25. As regards Sachin Bansal it was held that his case was not very
much different from that of his father Shiv Charan Bansal. The only
additional evidence against him was that on 31st March 2006 he had
got recovered the licensed pistol of Narender Mann and 11 live
cartridges from his office. This by itself was not grave enough to
CRL.REV.P. No. 335 of 2008 page 18 of 45
connect him with the crime of murder. Only a prima facie case under
Section 25 of the Arms Act was held to be made out against Sachin
Bansal.
Submissions of Counsel
26. Mr. V.K. Pahwa, learned counsel appearing on behalf of the State
submits that there was an error in the basic approach of the learned
ASJ as regards disclosure statements made by the accused. He
submits that the disclosure statements to the extent that they led to the
discovery of facts within the knowledge of the accused would
nevertheless be, admissible in evidence under Section 27 EA.
According to him, the disclosure statements made by Sachin Bansal
and Narender Mann, which led to the recoveries as noted hereinbefore
clearly gave rise to a grave suspicion against each of them for their
involvement in the offence. As regards the offence under Section
120B IPC, reference is made to the judgment of the Supreme Court in
State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659 to
submit that the handing over by Shailender Singh of the unlicensed
weapon to Narender Mann would in fact draw him into the
conspiracy. A reference is also made to the judgments in Ajay
Aggarwal v. Union of India (1993) 3 SCC 609, Mohd. Khaild v.
State of West Bengal (2002) 7 SCC 334, and State v. Nalini (1999)5
SCC 253.
CRL.REV.P. No. 335 of 2008 page 19 of 45
27. Mr. Pawan Bahl who also appeared on behalf of the State to
oppose the bail application of Narender Mann referred to the evidence
that had come on record to show the purchase, by Narender Mann, of
cartridges, the FSL reports that confirmed that the cartridges
recovered from the spot were fired from the pistol used in the
commission of the offence, the earlier complaints made by Suresh
Gupta about the threats received by Naveen Gupta from Narender
Mann and his associate Vijay Beniwal. According to him this
evidence showed the involvement of Narender Mann in the larger
conspiracy.
28. On behalf of Narender Mann, Mr. K.K.Sud learned Senior counsel
submitted that the evidence on record does not justify the framing of
any charge against him. He pointed out that there were several
material unexplained discrepancies in the evidence gathered. There
was overwriting in the arrest memo as regards the time of arrest of the
accused. According to him the story of the recoveries of the black cap,
goggles and photograph of S.N.Gupta from the Esteem car was
absurd. The story of the prosecution is that after the crime was
committed on 21st March 2006 Narender Mann was supposed to have
travelled to Manali and returned on 29th March 2006 throughout
carrying with him incriminating evidence in the dicky of the car. It is
unlikely that a person who had master-minded the murder would be
travelling with all the incriminating evidence in a car even 8 days after
CRL.REV.P. No. 335 of 2008 page 20 of 45
the event. According to him these recoveries were planted. The case
of the prosecution according to him also stood falsified by the fact that
the threatening calls allegedly received by Satish Gupta were from the
mobile phone of Vijay Beniwal and not Narender Mann. He states
that those complaints only refer to "Mann" which could mean anyone
with that surname and not necessarily Narender Mann. He states that
there is absolutely no admissible evidence, except the so-called
disclosures by the accused themselves, about the existence of the
criminal conspiracy. There was no evidence to show that any financial
transaction had taken place between the accused inter se and with the
deceased. Even for the running of the committees there was no
documentary evidence. In other words, there was no physical
manifestation of the conspiracy. There was no action taken by the
police on the two complaints stated to have been made by Satish
Gupta. Since there were considerable doubts about the manner of
arrest and the recoveries made, the benefit of doubt should in fact go
to the accused. Mr. Sud submitted that there was no independent
witness to any of the recoveries and therefore they should not be
relied upon. There were no chance prints recovered from the weapon
of offence. The weapon was reportedly returned to the Shailender
when in the normal course it should have been destroyed. Likewise,
there is no logical explanation why Narender Mann would give his
licensed pistol and not the arms license to Sachin Bansal and that too
after the commission of the crime. It was submitted that the evidence
CRL.REV.P. No. 335 of 2008 page 21 of 45
against Narender Mann was too weak to justify the framing of any
charge for the offences mentioned. Mr.Sud referred to a large number
of decisions to which a reference will be made hereafter.
29. In addition to the above submissions, it was urged by Mr.Sud, in
the context of his plea for release of Narender Mann on bail, that he
did not have any previous criminal record. He stays in a village 60 km
away from the place of occurrence and had clean antecedents. He is
the only son of his parents. He is married and has two minor children.
He is an income tax assessee and the owner of a brick kiln and he had
substantial agricultural land to the extent of 15 bighas in Manali
where a five star hotel was planned to be constructed. Narender Mann
he has been in custody since 29th March 2006. He was unlikely to
violate any of the conditions of bail.
30. Mr. R.K.Naseem, learned counsel appearing for Shailender Singh
and Shiv Charan Bansal submitted that statements made by the
accused after the offence was complete cannot be used by invoking
Section 10 of the EA for proving the existence of conspiracy. He
referred to the decision in Pritam Hariomal v. Emperor AIR 1939
Sind 185 and State v. Nalini AIR (1999) SC 2640. According to him
the statements of Naveen Gupta and Ramesh Gupta do not in fact state
that Naveen borrowed any money from Narender Mann. According to
him the story of the prosecution is unbelievable. It was inconceivable
CRL.REV.P. No. 335 of 2008 page 22 of 45
that Sachin Bansal and Shiv Charan Bansal would want to eliminate
S.N.Gupta only for retaining the moneys since in any event his son
Rajesh Gupta would be continuing in ASPL. Therefore, those moneys
were not bound to automatically come to Sachin Bansal or Shiv
Charan Bansal. In support of his plea that motive alone was not
sufficient to implicate the accused, Mr.Naseem referred to the
judgments in Girja Shankar Misra v. State of U.P. AIR 1993 SC
2618 and Saju v. State of Kerala 2001 Cri LJ 102.
31. He pointed out that as far as Shailender Singh is concerned, the
recovery itself was improbable. The weapon was not recovered as a
consequence of his pointing out but that of Narender Mann. It was
also recovered from a open drawer without a lock. Shailender Singh
himself was arrested much later in June 2006. The statement of
Ramesh was recorded even later on 17th November 2006. He
criticized the failure of the prosecution to draw the attention of the
trial court to either the supplementary charge sheet or the above
statement of Ramesh and submitted that therefore those could not
relied upon in the present revision petitions. Mr. Naseem submitted
that the recovery at the instance of Narender Mann could not be used
as evidence against Shailender Singh. The statement made by an
accused leading to the discovery of a fact could be used only against
that accused and not against a co-accused. In support of this
proposition he referred to the judgment in Satish Chandra Seal v.
CRL.REV.P. No. 335 of 2008 page 23 of 45
Emperor AIR 1945 Cal 137. Mr. Naseem also pointed out that in their
statements under Section 161 CrPC Satish Gupta and Rajesh Gupta
state that according to them it was the accused who caused the death
of the deceased. This he says is merely an opinion expressed by them
and as such the statements cannot constitute evidence. He referred to
the judgment in Rama Devi v. Delhi Admn.1986 CC Cases 932 (HC).
32. Appearing for Sachin Bansal, Ms. Pooja Anand learned counsel
submitted that the evidence gathered by the prosecution against him
was wholly insufficient to form a grave suspicion. She also submitted
that there was no evidence of the involvement of Sachin Bansal in any
criminal conspiracy to murder S.N.Gupta. In particular, there is no
evidence other than the disclosure statements of the accused about the
meeting between Sachin Bansal, Shiv Charan Bansal and Narender
Mann whereby a sum, including the sum for the assailant, was agreed
to be paid to Narender Mann. She also submitted that Section 10 of
the EA will have to be read along with Section 25 of the EA and
Section 162 CrPC and it was impermissible to use the statement made
by an accused while in custody to fasten liability against such accused
or the co-accused. The photograph of S.N.Gupta allegedly given by
Sachin Bansal to Narender Mann for identification was supposed to
have been seized from the Esteem car in which Narender Mann was
travelling when he was arrested on 29th March 2006. This photograph
according to Ms.Anand was not from the marriage album of Sachin
CRL.REV.P. No. 335 of 2008 page 24 of 45
Bansal and it did not fit into the blank space created by the police by
tearing away some other photo in the marriage album. The colour of
the photograph was also different from the colour of other
photographs in the said album. In fact the deceased S.N.Gupta had
not attended the marriage of Sachin Bansal and therefore there was no
photograph of his in the album. According to her this completely
delinked Sachin Bansal from the photograph allegedly recovered of
S.N.Gupta from Narender Mann. In any event, it is submitted that
since S.N.Gupta was a well known figure it did not appeal to reason
that Narender Mann would need a photograph to identify him. The
recovery of the photograph of the deceased as well as the marriage
album from the Esteem car of Narender Mann was wholly
improbable. She also urges that it is unbelievable that instead of
destroying such incriminating evidence Narender Mann would keep
them with him from 21st March to 29th March 2006. According to her
the said incriminating evidence was planted in the car and ought not to
be taken note of. As regards the telephone calls, it is submitted that
the records show that Narender Mann had called Sachin Bansal at
4.45 pm. However since there was no copy of the actual conversation,
no inference could be drawn that they were co-conspirators. This
piece of evidence by itself was wholly insufficient to try Sachin
Bansal for the offence under Section 120B IPC. As regards the story
of the investment of Rs.60 to 70 lakhs by S.N.Gupta and Rajesh
Gupta in the committees allegedly run by Shiv Charan Bansal and
CRL.REV.P. No. 335 of 2008 page 25 of 45
Sachin Bansal it is submitted that it is improbable that there was no
written record or exchange of correspondence between the parties on
this aspect. Even the story of the attempt by the accused to retain the
factory at Bahadurgarh as providing the motive for the crime was
unbelievable since it was his son Rajesh Gupta who was the Director
of ASPL and therefore there was no gain to the accused by
eliminating S.N.Gupta. There was no complaint about any of these
aspects till the death of S.N.Gupta.
33. In the written submissions filed by her, Ms. Anand has drawn
attention to the additional disclosure statement of Sachin Bansal
where he is supposed to have said that Narender Mann gave his own
licensed pistol to Sachin Bansal after the event. It is submitted that
the story of the pistol being handed over to Sachin Bansal after the
event is a plain lie and only to rope in Sachin Bansal for the offence
under Section 120B IPC. As regards the recovery of the licensed
pistol of Narender Mann since in any event it had no connection with
the offence, its recovery was to no effect. Since the statement of
Narender Mann in this respect would not advance the theory of the
prosecution about the actual weapon of offence used in the murder,
this part of the disclosure statement loses significance. As long as the
weapon and 11 cartridges recovered from the factory of Sachin Bansal
were not used in the commission of offence, such recovery is to no
effect at all. The fact that such recovery did not take place from
CRL.REV.P. No. 335 of 2008 page 26 of 45
Sachin Bansal soon after his arrest also created considerable doubt on
the genuineness of such a recovery. In the absence of any
independent public witness to such recovery it ought not to be
believed. It is submitted that a holistic view of all the above
circumstances would show that there is no evidence to draw the
conclusion of a grave suspicion against Sachin Bansal for the
commission of the offence.
34. Mr. Hariharan, learned counsel appearing on behalf of accused
Rajbir Malik submitted that there was absolutely no evidence to
connect him with the crime. Likewise, there is no evidence in respect
of Lalit Mann as well. Joginder Singh Sodhi was produced from
custody and was also represented by counsel in these proceedings.
Mr. Sanjiv Kumar Jha, learned counsel on behalf of the complainant
Kanta Devi, supplemented the arguments advanced on behalf of the
State and submitted that the impugned order ought to be interfered
with to the extent of discharge of some of the accused and not framing
the charge against the principal accused under Section 120B IPC.
Admissibility of statements by accused while in custody
35. This Court finds that the arguments before the learned ASJ
proceeded principally on the basis that the existence of the criminal
conspiracy is sought to be proved by the prosecution only through the
disclosure statements made by the accused. Learned ASJ appears to
CRL.REV.P. No. 335 of 2008 page 27 of 45
have accepted the arguments that these were made after the
conclusion of the event i.e. the murder of the deceased and that
therefore such statement would be inadmissible as evidence against
the accused in terms of Section 10 EA.
36. The position as regards Section 10 EA is fairly well settled. In
Mohd. Khalid v. State of West Bengal (2002)7 SCC 334 the Supreme
Court had occasion to deal with the law as regards Section 10 EA. It
was explained as under (SCC, p.360):
"The first condition which is almost the opening lock of that
provision is the existence of "reasonable ground to believe" that
the conspirators have conspired together. This condition will be
satisfied even when there is some prima facie evidence to show
that there was such a criminal conspiracy. If the aforesaid
preliminary condition is fulfilled then anything said by one of
the conspirators becomes substantive evidence against the
other, provided that should have been a statement "in reference
to their common intention".
It was further observed (SCC, p. 361):
"In a given case, however, if the object of conspiracy has not
been achieved and there is still agreement to do the illegal act,
the offence of a criminal conspiracy continues and Section 10
of the Evidence Act applies. In other words, it cannot be said to
be a rule of universal application."
37. While it is true that statements made by the accused during the
CRL.REV.P. No. 335 of 2008 page 28 of 45
subsistence of the conspiracy alone would be relevant, in the present
case the prosecution is not relying entirely on the statements made by
the accused while in custody to prove the criminal conspiracy. Only
such portion of the statement of an accused while in custody and
which leads to the discovery of a fact in terms of Section 27 EA is
admissible and only to that extent reliance can be placed on the said
statement by the prosecution. In fact in Nalini the Supreme Court
extended the time period up to the time of arrest of the accused. It
was observed as under (SCC, p.312):
"111. Whether a particular accused had ceased to be a
conspirator or not, at any point of time, is a matter which can be
decided on the facts of that particular case. Normally a
conspirator‟s connection with the conspiracy would get snapped
after he is nabbed by the police and kept in their custody
because he would thereby cease to be the agent of the other
conspirators. Of course we are not unmindful of rare cases in
which a conspirator would continue to confabulate with the
other conspirators and persist with the conspiracy even after his
arrest. That is precisely the reason why we said that it may not
be possible to lay down a proposition of law that one
conspirator‟s connection with the conspiracy would necessarily
be cut off with his arrest.
112. In this case, prosecution could not establish that the
accused who were arrested continued to conspire with those
conspirators remaining outside. Prosecution cannot contend that
the confession made by one accused in this case can be
substantive evidence against another accused under Section 10
of the Evidence Act. At any rate we cannot uphold the
CRL.REV.P. No. 335 of 2008 page 29 of 45
contention that confessions made by an accused can be used as
substantive evidence against another co-accused on the
principle enunciated in Section 10 of the Evidence Act."
Turning to the facts of the present case therefore the evidence that was
available as to what transpired between the accused after the event and
up to the stage of the arrest of the accused would be relevant. The
recoveries made at the instance of the accused in terms of Section 27
IEA would also be relevant.
38. It must be remembered that there is a whole world of difference
between a disclosure statement made by an accused and a confession
made by an accused. The confession by an accused stands on a very
different footing. The statement under Section 161 CrPC made to the
police while in custody is not admissible as a confession by the
accused. Such confession would have to be necessarily before the
Court in the manner contemplated by law. A retracted confession
cannot form a substantive piece of evidence against an accused. It
would require to be corroborated by independent, reliable evidence.
Against a co-accused it forma an even weaker piece of evidence. The
law in this regard was explained in Shankar v. State of Tamil Nadu
(1994) 4 SCC 478 (SCC, p.503):
"The confession is a form of admission consisting of direct
acknowledgement of guilt in a criminal charge. It must be in
CRL.REV.P. No. 335 of 2008 page 30 of 45
express words by the accused in a criminal case of the truth of
the guilt fact charged or some essential part of it and a
statement that contains a self-exculpatory matter cannot amount
to a confession. The confession should be a voluntary one, that
means not caused by inducement, threat or promise. Whether a
confession is voluntary or not is essentially a question of fact.
The judicial confessions are those which are made before a
Magistrate or in court in due course of legal proceedings and
when such a confession is retracted, the courts have held that
apart from the statement being voluntary it should be true and
should receive sufficient corroboration in material particulars
by independent evidence. The rule of prudence namely
requiring corroboration does not mean that each and every
circumstance mentioned in the confession with regard to the
participation of the accused in the crime must be separately and
independently corroborated. It is sufficient if there is general
corroboration of the important incidents, just like in the case of
an approver‟s evidence and it is not necessary that the
corroborative evidence itself should be sufficient for
conviction."
Therefore there is no question of a statement made to the police by an
accused while in police custody forming a substantive piece of
evidence on the basis of which criminal conspiracy can be proved.
39. Mr. Naseem appears to be right in his submission that a statement
made by an accused in custody leading to the discovery of facts would
be relevant only against such accused and not against the co-accused.
Although there are observations to the contrary in a judgment of the
CRL.REV.P. No. 335 of 2008 page 31 of 45
learned Single Judge of this Court in Manoj Kumar v. State 144
(2007) DLT 210, this Court is persuaded to follow the view expressed
by the Division Bench of the Calcutta High Court in Satish Chandra
Seal v. Emperor AIR 1945 Cal 137. There it was held (AIR, p. 140-
141):
"Section 27 only lets in so much of the statements, whether they
amount to a confession or not, as relates distinctly to the fact
thereby discovered. ....Further reading S.27 with S.26 to which
it is a proviso it appears clear to us that the statements or if the
whole of any of them is not admissible, the parts of them which
are admissible, can be proved only against the person who
made it."
40. Thus in the instant case, the disclosures made by Narender Mann
leading to the recovery of the weapon of offence can be used only
against him and not against any other co-accused. The disclosure
made by Narender Mann leading to the recovery of the weapon used
in the commission of the crime from the office of Shailender Singh
cannot be used against Shailender Singh himself. Likewise, the
recovery made of the licensed weapon given by Narender Mann to
Sachin Bansal which was recovered at the instance of Sachin Bansal
cannot be used against Narender Mann. To this extent the learned
counsel is justified in criticizing the attempt by the prosecution to use
such evidence of recovery made pursuant to the disclosure of one
accused against another accused.
CRL.REV.P. No. 335 of 2008 page 32 of 45
41. What the learned ASJ ought to have done was to collate the
evidence against an accused (only to the extent they were admissible
as such) and analyse them collectively and determine if such evidence
gave rise to a grave suspicion against each of the accused. On the
other hand, the learned ASJ appears to have first rejected the entire
disclosure statements of the accused and then proceeded to analyse the
probative value of each piece of evidence. Later when the learned ASJ
considered the evidence against each of the accused, he kept aside the
disclosure statements and the telephone records wholly and then
considered whether the remaining evidence justified the framing of
charge. This approach, in the considered view of this Court, was
erroneous.
42. Learned counsel for the State was right in drawing the attention of
this Court to the position in law as regards evidence of conspiracy.
Both in Som Nath Thapa as well as State v. Nalini, the Supreme
Court had occasion to explain that the evidence in conspiracy has to
be evaluated by taking a holistic view since it is very difficult to come
across the direct evidence to substantiate a conspiracy. Likewise, in
Ajay Aggarwal the Supreme Court has observed that although a crime
is complete as soon as the crime is made "but it is not a thing of the
moment. It does not end with the making of the agreement. It will
continue so long as there are two or more parties to it intending to
CRL.REV.P. No. 335 of 2008 page 33 of 45
carry into effect the design." Therefore the telephone record of the
conversation between Sachin Bansal and Narender Mann would in
fact be a relevant evidence for proving the conspiracy. The
submission that there must always be some physical manifestation of
the conspiracy does not appear to be entirely correct. In Kehar Singh
v. State (Delhi Admn.)(1988) 3 SCC 609 the Supreme Court held
(SCC, p.732-33):
"275. Generally, a conspiracy is hatched in secrecy and it may
be difficult to adduce direct evidence of the same. The
prosecution will often rely on evidence of acts of various parties
to infer that they were done in reference to their common
intention. The prosecution will also more often rely upon
circumstantial evidence. The conspiracy can be undoubtedly
proved by such evidence direct or circumstantial. But the court
must enquire whether the two persons are independently
pursuing the same end or they have come together in the pursuit
of the unlawful object. The former does not render them
conspirators, but the latter does. It is, however, essential that the
offence of conspiracy require some kind of physical
manifestation of agreement. The express agreement, however,
need not be proved. Nor actual meeting of two persons is
necessary. Nor it is necessary to prove the actual words of
communication. The evidence as to transmission of thoughts
sharing the unlawful design may be sufficient. Gerald Orchard
of University of Canterbury, New Zealand explains the limited
nature of this proposition:
„Although it is not in doubt that the offence requires
some physical manifestation of agreement, it is important
CRL.REV.P. No. 335 of 2008 page 34 of 45
to note the limited nature of this proposition. The law
does not require that the act of agreement take any
particular form and the fact of agreement may be
communicated by words or conduct. Thus, it has been
said that it is unnecessary to prove that the parties
"actually came together and agreed in terms" to pursue
the unlawful object; there need never have been an
express verbal agreement, it being sufficient that
there was "a tacit understanding between conspirators as
to what should be done.‟ "
Existence of material against each accused
43. In Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 the
following principles were explained as guiding the function of the
criminal court while passing an order on charge (SCC, p.9):
"10. Thus, on a consideration of the authorities mentioned
above, the following principles emerge:
(1) That the Judge while considering the question of framing
the charges under Section 227 of the Code has the undoubted
power to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made out.
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
explained the Court will be fully justified in framing a charge
and proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large however if
two views are equally possible and the Judge is satisfied that
the evidence produced before him while giving rise to some
suspicion but not grave suspicion against the accused, he will
be fully within his right to discharge the accused.
CRL.REV.P. No. 335 of 2008 page 35 of 45
(4) That in exercising his jurisdiction under Section 227 of the
Code the Judge which under the present Code is a senior and
experienced court cannot act merely as a Post Office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the
documents produced before the Court, any basic infirmities
appearing in the case and so on. This however does not mean
that the Judge should make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial."
44. Keeping the above principles in view, this Court proceeds to
examine whether the evidence on record vis-a-vis each of the accused
justifies the framing of charge. As regards Narender Mann the earlier
complaints made by Satish Gupta about the threatening calls received
by him and by Naveen Gupta would indeed be relevant. The
criticisms of Mr. K.K.Sud that the surname „Mann‟ was a common
one and need not refer to Narender Mann cannot be accepted. Given
the context of the case and that Naveen Gupta did receive threatening
calls, the said complaints cannot be brushed aside as having no
connection with Narender Mann. The statements made by them under
Section 161 CrPC are as witnesses and not as an accused and
therefore would form evidence that can be relied upon at the stage of
charge to draw a conclusion whether a grave suspicion exists against
Narender Mann.
CRL.REV.P. No. 335 of 2008 page 36 of 45
45. The criticism that Naveen Gupta does not mention about his
owing money to Narender Mann is also without substance. At the
present stage, the trial court is not expected to analyse the evidence in
great detail. It is possible that what Naresh Gupta has stated as a
witness, may be used to confront him under Section 162 at the trial.
At the present stage the statement of each of the witnesses i.e. Suresh
Gupta, Rajesh Gupta and the others would be relevant to the extent
that they have clearly named Sachin Bansal and Narender Mann, apart
from certain other accused as the perpetrators of the crime.
46. It is not possible for this Court to accept the submission that this is
a mere opinion expressed by the witness. The word "isiliye" in their
statements prima facie supplies the motive for the crime and not their
opinion as to why it took place. In any event at the present stage a
detailed analysis of the above statements is not expected to be
undertaken by the Court.
47. It is not as if only the statements of these witnesses under Section
161 CrPC are being relied upon by the prosecution to show the
involvement of Sachin Bansal or Narender Mann. The other pieces of
evidence include the statements made by Ashok Aggarwal and Ajay
Gupta under Section 164 CrPC which is indeed a substantive piece of
evidence. They have spoken of the existence of committees and of
the investments made by the deceased and his son in those committees
CRL.REV.P. No. 335 of 2008 page 37 of 45
run by Shiv Charan Bansal and Sachin Bansal. A criticism that it is
unlikely that transactions involving Rs.60 to 70 lakhs have taken place
without any written record, is again misplaced particularly at the
present stage. Whether in fact in the running of such committees it is
a practice to keep or preserve the written record or not would be a
matter of evidence. It is not unusual that persons running such
committees may not maintain records, at least not in the manner
financial institutions do. The probative value of whatever documents
have been recovered by the prosecution during the course of
investigations to show the running of these committees can be
determined only at the trial.
48. As regards Narender Mann, the evidence gathered against him
relates includes the joint recovery of the photograph, the black cap
and goggles from the Esteem car, the recovery of the Getz car and the
recovery of the unlicensed weapon along with two live cartridges
from the office of Shailender Singh. The criticism of the recoveries
from the Esteem car as being absurd may have to be again tested at
the trial. Even if the court were not to go by the said recovery, the
recovery of the cartridges from the scene of the offence and those
cartridges being shown by the reports of the FSL to have been fired
from the weapon which has been recovered at the instance of the
Narender Mann from the alleged premises of Shailender Singh is a
very formidable piece of evidence that prima facie connects him to the
CRL.REV.P. No. 335 of 2008 page 38 of 45
crime. That Narender Mann had himself an arms licence and that he
owns a weapon is also not in dispute. There are invoices to show that
he had purchased live cartridges using the said licence. While these
pieces of evidence when considered separately may not suffice to
prove the existence of a criminal conspiracy, when seen in totality
they might. At the present stage, when viewed collectively they give
rise to a strong suspicion of the involvement of Narender Mann in the
criminal conspiracy.
49. As regards Sachin Bansal, the recovery of Narender Mann‟s
licensed weapon and 11 live cartridges from his office is one
important piece of evidence linking him with Narender Mann. The
record of the calls made soon after the incident is another. Again, the
probative value of such evidence, when viewed collectively, cannot be
determined at this stage. The statements of the witnesses naming him
as a possible suspect in the murder of S.N.Gupta cannot at this stage
be brushed aside. Their examination at the trial will ultimately
determine if their evidence is to be believed. The same is the position
as regards the photograph of S.N.Gupta. Although the arguments in
this regard appear plausible, it is impossible to evaluate the evidence
in this regard at the present stage. At the same time they cannot be
kept outside the cauldron of relevant evidence for testing if the case
for framing a charge against the accused has been made out.
CRL.REV.P. No. 335 of 2008 page 39 of 45
50. As regards Joginder Singh Sodhi it is surprising that the learned
ASJ did not invoke Section 120B IPC since he was very much part of
the conspiracy and without his shooting the deceased at point blank
range, the crime would not have been completed. Also this is not a
crime that took place at the spur of the moment. It was preceded by
careful planning. The trial court erred in concluding that there is no
evidence of the existence of a criminal conspiracy involving Sachin
Bansal, Narender Mann and Joginder Singh Sodhi in the commission
of the offence. In the considered view of this Court the material on
record when viewed collectively gives rise to a strong suspicion of the
commission of the offence of criminal conspiracy by Sachin Bansal,
Narender Mann and Joginder Singh.
51. Now turning to Shailender Singh, this court finds merit in the
criticism that the disclosure made by Narender Mann leading to the
recovery of the unlicensed weapon used in the crime cannot be used
against Shailender Singh. The evidence of Shailender Singh being in
possession of the premises from where the said weapon was recovered
also creates only a suspicion at the highest and not a grave suspicion.
The prosecution has been unable to explain why it took them 8
months to record the statement of Ramesh who was on the ground
floor of the same building. The mere fact that he gave this address in
an application form for grant of a mobile connection is too weak a
piece of evidence to rope him in. The so called disclosure by
CRL.REV.P. No. 335 of 2008 page 40 of 45
Shailender after his arrest leading to the same open table draw where
the weapon was kept is to no effect as by that time Narender Mann
had already led the police there and the weapon already stood
recovered. In the considered view of this Court there is no evidence to
connect Shailender Singh with the offence even under Section 25 of
the Arms Act. The petition by Shailender Singh is entitled to succeed
because the prosecution has not been able to prove the offence against
him even under Section 25 of the Arms Act.
52. As regards Rajbir Malik, Shiv Charan Bansal and Lalit Mann, this
Court concurs with the view expressed by the learned ASJ that the
evidence on record is too weak to link them with the murder of
S.N.Gupta. Although in the statements made by Rajesh Gupta and
Satish Gupta there is a reference to Shiv Charan Bansal running the
committees there is nothing to show that he was part of the actual
conspiracy to commit the murder. While some of the witnesses have
specifically named Sachin Bansal and Narender Mann as being
responsible for the murder they did not name Shiv Charan Bansal. In
any event, at best it would supply the motive for the commission of
the offence but not show the involvement of Shiv Charan Bansal
himself in the commission of the offence.
Conclusions regarding charge
53. The net result of the above discussion is as under.
CRL.REV.P. No. 335 of 2008 page 41 of 45
(a) There is sufficient evidence to form a grave suspicion against
Narender Mann, Sachin Bansal and Joginder Singh Sodhi for the
offences under Section 120B IPC read with 302/34 IPC and Section
120B IPC read with Sections 25/27 of the Arms Act and substantively
for the offence under Section 120B IPC. The charges against each of
them would accordingly stand modified. The criminal revision
petitions of Sachin Bansal and Narender Mann stand dismissed and
the criminal revision petition of the State stands allowed to the above
extent.
(b) As regards Shiv Charan Bansal, Rajbir Malik and Lalit Mann there
may be evidence to form a suspicion about their involvement but not a
grave suspicion to justify the framing of charges. Therefore the order
of the learned ASJ discharging these accused is confirmed. The
State‟s revision petition to that extent is rejected.
(c) As regards Shailender Singh, the evidence on record does not
justify the formation of a grave suspicion against him for the offence
even under Section 25 of the Arms Act. In the considered view of this
Court, Shailender Singh is entitled to be discharged. Accordingly, his
revision petition will stand allowed and the State‟s revision petition to
that extent stands rejected.
(d) The revision petition of the complainant Kanta Devi is also
CRL.REV.P. No. 335 of 2008 page 42 of 45
disposed of in the same terms as the revision petition filed by the
State.
54. It is clarified that the discussion of the materials on record in the
present order is only for determining whether the framing of charges
against the accused is justified or not. As regards the accused against
whom charges have been directed to be framed, the observations
made are not intended to influence the opinion to be formed by the
trial court upon an independent assessment of the evidence at the
conclusion of the trial.
Narender Mann's bail application
55. The above discussion shows that the crime for which Narender
Mann has been charged is indeed a grave one. The trial is yet to
commence and there are bound to be several public witnesses who
might speak about his involvement. In the considered view of this
Court it would not be safe to enlarge Narender Mann on bail at the
present stage when the trial is yet to commence and public witnesses
are yet to be examined. He is permitted to renew his plea for bail
before the trial court after the public witnesses have been examined. It
would be for the trial court to form an independent opinion on such
prayer uninfluenced by any observation made by this Court in the
present order. This order will also however not preclude the trial court
from examining his plea for interim bail, if any, on sufficient grounds
CRL.REV.P. No. 335 of 2008 page 43 of 45
being shown.
56. It is accordingly ordered that:
(a) Crl. Rev. P. No. 335 of 2008 (State of NCT of Delhi v. Shiv
Charan Bansal & Ors.) and Crl. Rev. P. No. 191 of 2008 (Kanta
Devi v. State and Ors.) stand disposed of in terms of this order.
Narender Mann, Sachin Bansal and Joginder Singh Sodhi are, in
addition to the offences with which they have been charged by the
impugned order, also charged for the offences under Section 120B
IPC read with 302/34 IPC, Section 120B IPC read with Sections 25/27
of the Arms Act and substantively under Section 120B IPC alone. The
trial court will pass formal orders in accordance with law to the above
effect and enter the pleas of the said accused on the added charges.
(b) The impugned order dated 17th March 2008 passed by the learned
ASJ is confirmed to the extent that Shiv Charan Bansal, Rajbir Malik
and Lalit Mann have been discharged. To that extent, the petitions of
the State and Kanta Devi are rejected.
(c) Crl. Rev. P. No. 405 of 2008 (Sachin Bansal v.State of Delhi) and
Crl. Rev.P. No. 342 of 2008 (Narender Mann v. State) are dismissed.
(d) Crl. Rev.P. No. 430 of 2008 of Shailender Singh is allowed and he
stands discharged.
CRL.REV.P. No. 335 of 2008 page 44 of 45
(e) Bail Appln. No. 516 of 2009 (Narender Mann v. The State) is
dismissed.
57. The trial court record be sent back immediately. The case will be
listed before the trial court on 1st July 2009 for further proceedings in
terms of the present order.
S.MURALIDHAR, J
MAY 29, 2009
dn
CRL.REV.P. No. 335 of 2008 page 45 of 45
