State Of Nct Of Delhi vs Shiv Charan Bansal

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.

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.

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:

It was recorded that the cause of death was shock due to assault by firearm and injury to the chest viscera and aorta. The Police recovered the three used cartridges from the spot of occurrence. The lead taken out from the body of the deceased – S.N. Gupta was sent for forensic analysis to the Forensic Science Laboratory.

11. During investigation, Sachin Bansal was arrested on 29.03.2006. His disclosure statement was recorded. Narendra Mann, his brother Lalit Mann, and the advocate - Rajbir Singh were arrested on the same date, when they were traveling in an Esteem Car bearing No. DL 3C AG 6565. A black photo frame, a black cap, black goggles, and a photo of the deceased were recovered from the Esteem Car.

12. Narendra Mann made a disclosure and showed the shop from where he purchased the caps and the goggles. He offered to get Shailendra Singh arrested, stating that it was Shailendra Singh who had given the weapon of offence i.e. unlicensed pistol to be used for the murder. Narendra Mann got the Getz car recovered from the house in his village, in which the contract killer – Joginder Singh Sodhi allegedly travelled to the site of occurrence to murder S.N. Gupta. A second set of black cap and goggles were recovered from the Getz car. Narendra Mann also offered to get Joginder Singh Sodhi – the contact killer arrested. 8

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

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.

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.

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.

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.

(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.

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.

(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.

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.

(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.

(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.

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.

IV. Lalit Mann

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

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

(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.

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.

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.

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.

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: -

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.