STATE OF NCT OF DELHI v. SHIV CHARAN BANSAL & Ors.

against all the accused. The murder took place at about 4:30 p.m. NM from his cell phone made a call at 3:51 p.m. to SB on his cell phone prior to the execution of the crime. After the murder was committed, NM called SB on his cell phone at 4:48 p.m. These call records in quick succession immediately before and after the murder was committed, lead to a grave suspicion about the complicity of these accused. The Call Detail Records reveal that the accused were in close contact and communication with each other both before and after the occurrence. The record of the Sessions Court show that the Call Detail Records of SCB, which was a crucial piece of evidence was deliberately not placed by the I.O. along with the Charge Sheet. The missing Call Detail Records of only SCB creates a strong suspicion against him. The records of the committees run by SCB were allegedly destroyed. This would create a strong suspicion about the conduct of SCB. In his disclosure statement, SCB stated that he had all the records of the committees. However, two days later, he changed his version and stated that the committee records have been destroyed by his son SB. The prosecution has alleged that the records of the committees were burnt/destroyed by the father- son duo. The destruction of the records of the committees, which would have revealed the substantial investments made by the deceased is an incriminating factor. The conduct of SCB after the murder was committed, is also of relevance. The police apprehended SB on 29.03.2006 from his factory. SCB remained absconding after the murder was committed on 21.03.2006, and did not join the investigation despite efforts by the Police. He was apprehended after more than one month. The said circumstance of absconding immediately after the murder was committed, would be admissible as relevant ‘conduct’ u/S.8 of the Evidence Act. The materials gathered by the prosecution raise a strong suspicion against both SCB and his son SB in hatching the conspiracy for the murder of the deceased. [Para 32] [1179-A-H; 1180-A-H; 1181-A] Accused-LM – The prosecution relied upon the statement of nephew of the deceased. The said witness in his statement u/S. 161 Cr.P.C, which was recorded soon after the murder stated that NM, LM, SB and his friends used to threaten him over the phone. The disclosure statement made by NM reveals that initially he had asked LM to carry out the murder. LM had STATE OF NCT OF DELHI v. SHIV CHARAN BANSAL & ORS. 1161 full knowledge of the criminal conspiracy hatched to murder the deceased. Soon after the murder took place, NM and LM were absconding. Since LM did not join the investigation after the commission of the crime, the conduct of the accused in absconding would be admissible as relevant ‘conduct’ u/S. 8 of the Indian Evidence Act. On 29.03.2006 i.e. eight days after the murder tookplace, three of the accused viz. NM, LM and RS were apprehended by the police while they were travelling in an Esteem car. The police recovered incriminating objects i.e. photo of the deceased which was given to the contract killer for identification, goggles and black cap worn by the contract killer- JSS to conceal his identity, from the car. The Call Detail Records of LM reveal that from his cell phone, he was in communication with JSS on his cell prior and subsequent to the commission of the crime. The Courts below were unjustified in not framing the charges u/S., 302 r.w. S.34, S120B IPC against accused LM. [Para 32] [1181-F-G; 1182-A-F] Accused-SS – As per the case of the prosecution, accused- SS provided the weapon of offence. Furthermore, after the crime was committed, SS remained absconding for a period of 75 days. The recovery of the weapon of offence i.e. an unlicensed 7.65 mm bore pistol along with two live cartridges from the office of this accused creates a strong suspicion of his involvement in the conspiracy. 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 accused-SS and were fired from the unlicensed pistol recovered from house of accused- SS. The circumstance of the weapon of offence being found in the custody and possession of SS would be admissible as “conduct” under Section 8 of the Indian Evidence Act, irrespective of the statements made by the co accused. The crucial recovery of the weapon of offence from the house of SS was a very important circumstance in the chain of events, which was sufficient to proceed against him in trial u/S. 302 r.w. S.34 and 120B IPC. The call detail records produced before the Sessions Court, reveals the communication between NM and SS on the date of the murder, which is relevant material as per Section 8 of the Evidence Act. It is surprising that the Sessions Court and the High Court having accepted the recovery of the A B C D E F G H 1162 SUPREME COURT REPORTS [2019] 17 S.C.R. A B C D E F G H unlicensed weapon from the office of SS, charged him only with the offence u/S. 25 of the Arms Act. [Para 32] [1182-G-H; 1183- A-H] Accused-RS. With respect to the discharge of RS, the Order of the Sessions Court and High Court is not disturbed, as there is not sufficient material to prosecute him. [Para 32] [1184-A] Accused-NM – He was charged u/S. 302 r.w. S.34, S. 201 IPC and S. 25 and 29(b) of the Arms Act by the Sessions Court. The Sessions Court acquitted him. The challenge against his acquittal is pending determination. [Para 32] [1184-B-C] Section 223 of the Cr.P.C. provides that persons accused of the same offence, committed in the course of the same transaction, must be jointly charged and tried. In the present case, on account of the inconsistency in framing charges by the Sessions Court against the six accused, the trial has got truncated. The trial with respect to three accused i.e. SB, NM and JSS has proceeded in the absence of the other three accused viz. SCB, LM and SS. 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. SB, NM and JSS the trial was conducted in the absence of the other three alleged co- conspirators. The Order of acquittal with respect to SB and NM is pending before the High Court. S.386 Cr.P.C. defines the powers of the appellate court in dealing with appeals. Clause (a) of S.386 Cr.P.C. is restricted to the powers of the High Court since an appeal against an Order of acquittal lies to the High Court. The appellate court may direct the accused to be re-tried, not only when it deals with an appeal against acquittal, but also when it deals with an appeal against conviction. Under clause (a) the High Court may reverse the Order of acquittal and direct that further enquiry be made, or the accused may be re-tried, or may find him guilty and pass sentence thereon. As an STATE OF NCT OF DELHI v. SHIV CHARAN BANSAL & ORS. 1163 appellate Court, the High Court may take further evidence while considering the Appeals u/S.391 Cr.P.C, if it is considered necessary, and take additional evidence on record. The High Court may also permit recording of statements u/S.313 Cr.P.C, if considered necessary. The High Court may take up the pending appeals in the case of SB, NM and JSS, after the conclusion of the trial of SCB, LM and SS, the remaining accused by the Sessions Court. The Additional Sessions Judge, Rohini Courts, Delhi is directed to frame charges against SCB u/S. 302 r.w. S.34 IPC and S. 120B, and S.201 IPC and proceed with the trial in accordance with law; against LM u/S. 302 r.w. S.34 IPC and S.120B IPC and proceed with the trial in accordance with law and SS u/S.302 r.w. 34 IPC and S. 120B IPC, and S. 25, 27, 54 and 59 of the Arms Act. [Para 32] [1184-D-H; 1185-A-E-G; 1186- A-B] State of Bihar v. Ramesh Singh (1977) 4 SCC 39 : [1978] 1 SCR 257 ; Dipakbhai Jagdishchandra Patel v. State of Gujarat and Another (2019) SCC Online SC 588 ; Isaac alias Kishore v. Ronald Cheriyan & Ors (2018) 2 SCC 278 : [2018] 1 SCR 217 ; Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 : [2012] 1 SCR 145 ; Asraf Ali v. State of Assam (2008) 16 SCC 328 : [2008] 10 SCR 1115 – relied on.