NARENDER MANN Vs. STATE NCT DELHI

JUDGEMENT

(1.) THIS order shall dispose of petition filed by the petitioner under section 439 Cr. P. C. read with Section 482 Cr. P. C. seeking grant of bail in FIR no. 200/06 registered under Sections 302/120-B/201/34 IPC read with Section 25/54/59 Arms Act with PS Mangol Puri. Brief facts which led to the registration of the said FIR against the petitioner and other accused persons are that on 21. 3. 2006 at about 4. 30 p. m. the complainant Smt. Kanta Devi wife of the deceased Shri S. N. Gupta was present in her house along with her husband when she heard call bell and in response, she went to the main gate of her house where she found a boy aged 25-30 years wearing glasses/specs, having beard with black cap and one hanging bag. On enquiry, the said boy told the complainant that he brought a courier for S. N. Gupta. When asked to deliver the courier to the complainant, then he said, he had come from the bank and courier would be delivered only to Mr. S. N. Gupta and not to her. At this, the complainant went inside the house and told everything to her husband Mr. S. N. Gupta and thereafter the deceased went towards main gate while the complainant went towards the kitchen. In the meanwhile complainant heard sound of 2-3 bullets. She rushed towards the gate of the house. In the meantime her domestic aid seema shouted to call the complainant. The complainant saw that near the gate of the house her husband was lying on the floor and blood was oozing out from his chest. After seeing her husband, the complainant also screamed due to which the neighbours gathered and with their help the deceased was taken to Jaipur golden Hospital where he was declared brought dead. The complainant thereafter lodged the said FIR. After the registration of the FIR the investigation was carried out by the police and it was found that conspiracy was hatched by one shiv Charan Bansal, his son Sachin Bansal with the petitioner to eliminate the deceased S. N. Gupta. It was also found that the actual commission of the said crime was committed by one Joginder Singh Sodhi. It was also found that one shailender Singh had supplied the weapon of offence and one Raju @ Rajbir Singh, a practicing lawyer advised the petitioner. It is also found that the co-accused lalit Mann @ Nanhe had also joined the conspiracy and had agreed to commit the offence, initially but later on backed out. The motive to commit the said crime ascertained in the investigation was that the petitioner had given a loan of Rs. 7 lakhs to one Shri Naveen @ Cheenu on the recommendation of co-accused Sachin bansal, which amount had swelled to about Rs. 16 lakhs after adding the interest. It was also found that the petitioner was unable to recover his money from Naveen, therefore, he insisted upon the co-accused Sachin Bansal to return his money since the money was lent by the petitioner at the instance of Sachin bansal. It was further found by the prosecution that co-accused Sachin Bansal owed a sum of Rs. 70-80 lakhs to Mr. S. N. Gupta in connection with some committee and he told the petitioner that if S. N. Gupta could be killed then he would get back his money as after his murder Sachin Bansal and his father shiv Charan Bansal would get absolved to pay the said money of Rs. 70-80 lacs besides their factory dispute with S. N. Gupta would also be solved. On the disclosure stated dated 29th March, 2006 made by the co-accused, Sachin Bansal, the petitioner along with co-accused, namely Lalit Mann and Raju @ Rajbir Singh were arrested while they were travelling in a Maruti Esteem Car bearing registration No. DL-3c-AG-6565 and when the said car was searched, one marriage photo album having one empty photo frame; one black cap; one goggle and one photo of the deceased were recovered. Disclosure statement of the petitioner was also recorded on 29. 3. 2006. On 30th March, 2006 co-accused Joginder Singh Sodhi, the person who had committed the offence was arrested and his disclosure statement was also recorded. Weapon of offence was recovered from the office of co-accused Shailender Singh at the instance of the petitioner and co-accused joginder Singh Sodhi at flat No. A-1/35, Sector -7, Rohini, Delhi-85. It was found that the said pistol of 7. 65 m. m. contained two live cartridges. This weapon was unlicensed revolver. The accused Sachin Bansal on 31. 3. 2006 got recovered one licensed pistol registered in the name of the petitioner of the same bore along with 11 cartridges from his factory at T-1/111, Industrial Area, phase-I, Mangolpuri, Delhi. The co-accused Joginder Singh Sodhi also got recovered one black goggle and cap which he was allegedly wearing at the time of committing the murder.

(2.) DURING the pendency of the investigation the petitioner had applied for grant of bail and the same was granted vide order dated 9th June, 2006 primarily on the ground that there was no evidence against the petitioner except a disclosure statement. Feeling aggrieved by the said order dated 9th June, 2006 the prosecution filed an application under Section 439 (2) Cr. P. C. seeking cancellation of the said bail and during the pendency of the said cancellation application another FIR was registered against the petitioner under Section 323/341/506/120b/34 IPC read with Section 25/54/59 of the Arms Act vide FIR No. 524/06 dated 4. 7. 2006 with P. S. Prashant Vihar, Delhi on the allegations that the complainant and the witnesses were being threatened and beaten by the parokars of the accused persons to intimidate them not to pursue the matter in court. The petitioner had moved bail application seeking bail in FIR No. 524/06 and the said bail application of the petitioner was rejected vide order dated 24th August, 2006. The bail granted to the petitioner in the present FIR was cancelled by the Court of Mr. Yogesh Khanna, Additional Sessions Judge, vide orders dated 24th August, 2006 mainly on the ground that the petitioner had tried to interfere in the administration of justice by misusing the concession of the bail. Feeling aggrieved with the said cancellation order the petitioner preferred a Crl. R. No. 610/06. Simultaneously, the petitioner also moved a bail application seeking his bail in FIR No. 524/2006. By common order dated 17th april, 2007 the Hon'ble Court of Justice Badar Durrez Ahmed disposed of the crl. Rev. No. 610/2006 and bail application No. 3362/2006 both filed by the petitioner. In the said order the Court gave directions for setting aside of the cancellation order and gave direction to the Additional Sessions Judge to reconsider the bail application of the petitioner on merits de hors the alleged incident of 4th July, 2006. Pursuant to the said direction the petitioner filed an application seeking grant of bail before the Additional Sessions Judge and vide order dated 17th march, 2008 the said bail application of the petitioner was rejected on the ground that the significant material has been recovered at the instance or from the possession of the present accused, which includes weapon of offence. The Trial Court has also framed charges against the petitioner under Section 302/201/34 IPC read with Section 25 and 29 (b) of the arms Act while the Court has discharged the other co-accused persons Rajbir malik, Lalit Mann and Shiv Charan Bansal as no prima facie case was found against them. After rejection of the said bail application the petitioner has now preferred this petition so as to seek his regular bail.

(3.) MR. Sandeep Sethi, Senior Advocate appearing for the petitioner submitted that there is no evidence much less legally admissible evidence against the petitioner. Counsel for the petitioner further submitted that the petitioner has not been charged under Section 120b of the Indian Penal Code, but has been charged under Section 34 IPC. Counsel for the petitioner further submitted that once the petitioner has not been charged for conspiracy, therefore, the case of conspiracy, which was alleged by the prosecution automatically goes. Counsel further submitted that Shailender has not been charged under Section 302 IPC and he is also on bail. Counsel further submitted that the other co-accused person mr. Shiv Charan Bansal against whom the allegations were more serious has already been discharged while co-accused Sachin Bansal has been charged only under Section 25 of the Arms Act and is also on bail. At the time of apprehension of the petitioner besides the petitioner two other persons were found and both of them i. e. Rajbir Singh and Lalit Mann have also been discharged by the Sessions Court. Counsel for the petitioner further submitted that the weapon of offence was recovered from the office of the co-accused shailender vide recovery memo dated 30th March, 2006 on the basis of joint pointing out by the petitioner and co-accused Joginder Singh Sodhi, which would show that the concealment of weapon of offence was not within the exclusive knowledge of the petitioner and therefore, such recovery cannot be used against the petitioner. Counsel for the petitioner further submitted that the entire prosecution is based on circumstantial evidence and there is no cogent or reliable evidence so as to make out a case against the petitioner to involve him in the alleged murder of the deceased S. N. Gupta. Counsel for the petitioner further submitted that the petitioner is in judicial custody for about 2 years 7 months and is not a previous convict. The counsel further submitted that the petitioner belongs to a respectable family and there is no likelihood of his fleeing from the hands of justice. Placing reliance on Section 26 of the Indian evidence Act the counsel submitted that the confession made by the petitioner while in custody of the police officer cannot be used against him and therefore, the disclosure given by the petitioner has no evidentiary value. Even Section 27 of the Indian Evidence Act cannot be used against the petitioner as the recovery of weapon of offence was not solely at the instance of the petitioner, but at the joint pointing of the petitioner as well as the other co-accused persons. The contention of the counsel for the petitioner is that unless the recovery of the offence weapon is solely attributed to the petitioner, the said recovery of weapon at the joint pointing cannot be treated as an admissible evidence as against the petitioner. Counsel for the petitioner further submitted that even in the alleged disclosure statement of the petitioner dated 29. 3. 2006, the petitioner nowhere disclosed that he could get the weapon of offence recovered. In support of his arguments, counsel for the petitioner has placed reliance on para 5 of the judgment of the Apex Court in Mohd. Abdul hafeez Vs. State of A. P. , AIR 1983 SC 367. The same is reproduced as under: