CRL.REV.P. No. 335 of 2008 page 1 of 45 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 2 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 3 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? J U D G E M E N T 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 4 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 21st March 2006 the call bell rang at the residence of deceased S.N. Gupta. His CRL.REV.P. No. 335 of 2008 page 5 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 6 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 21st 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 7 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 7th 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 8 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 1st 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 9 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 10 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 2nd June 2006 after the anticipatory bail application filed by him was dismissed. On 4th 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 11 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 12 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 13 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 14 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 21st March 2006 CRL.REV.P. No. 335 of 2008 page 15 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 16 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 17 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