Code of Criminal Procedure, 1973: s.227 – Appeal by State and complainant against the discharge of accused persons – Prosecution case was that the victim-deceased was murdered in his house – The alleged contract killer came as a courier boy wearing black cap and goggles – The wife of the complainant identified him in investigation – As per the version of son/nephew and brothers of the deceased, the deceased had invested a substantial amount of money in committees run by accused-SCB and his son accused-SB which they were reluctant to return and were also trying to usurp share of the deceased in a factory – Statement of another brother of the deceased was that he and his son were receiving threatening calls from accused-NM, accused-LM and their associates and that these accused were responsible for murder of deceased – NM, LM and accused-Advocate-RS were arrested when they were travelling in a car and black photo frame, black cap, black goggles and a photo of the deceased were recovered from the car – NM got the Getz car recovered from the house in his village, in which the contract killer – JSS allegedly travelled to the site of occurrence to murder the deceased – The unlicensed pistol along with two live cartridges were recovered from the office of accused-SS – During investigation, the Call Detail Records of the accused were collected by the Investigating Officer – As per the version of the prosecution, NM had asked his cousin brother LM to carry out the murder – After initially agreeing, LM subsequently backed out – Thereafter, JSS was asked to execute the murder – F.S.L Report recorded that the lead recovered from the body of the deceased was fired from the pistol recovered from the office of SS – As per the report of the handwriting expert, the specimen handwriting of JSS matched the writing on the envelope which allegedly was carried by JSS to the house of the deceased – NM borrowed a car, unlicenced pistol with five cartridges and took JSS to the place of occurrence and waited in the car for JSS while he went to murder the deceased and then helped JSS to get away – NM was in continuous contact with accused-SB before and after the incident – The records of the committees run by SCB were allegedly destroyed by him – This would a strong suspicion about the conduct of SCB – The destruction of the records of the committees, which would have revealed the substantial investments made by the deceased was an incriminating factor – The circumstance of absconding of accused immediately after the murder would be also admissible as relevant ‘conduct’ under s.8 of the Evidence Act – The contemporaneous Call Detail Records (CDRs) between SB and NM, who accompanied JSS would also constitute strong material for framing the charge against all the accused – Charge Sheet was filed against all the accused – Sessions Court held that there was common intention between NM and JSS in the act of killing the deceased – However LM was discharged as there was not sufficient evidence to connect him with the crime – With respect to RS, it was held that evidence was not sufficient to frame charges against him as he had only tendered advice to NM to the effect that he should not use his licensed pistol for carrying out the murder – With respect to SS, the Sessions Court held that the unlicensed pistol along with two live cartridges were recovered from his office and charged him only for the offence u/S. 25 of the Arms Act for keeping an unlicensed firearm in his possession – Sessions Court discharged SCB since the prosecution had collected evidence against him only in the form of disclosure statements from the accused persons after arrest – Sessions Court charged SB for the offence u/S. 25 of the Arms Act, since he got the licensed pistol belonging to NM recovered from his factory premises – Sessions Court held that the prosecution failed to make out a prima facie case against RS, LM, SCB who were discharged – The State and the complainant filed Revision before the High Court – High Court held that NM, SB, JSS were to be charged u/s.302 read with s.34 IPC read with 120B IPC – The Judgment of the Sessions Court ordering discharge of SCB, SS, LM, RS was affirmed by the High Court – Hence the instant appeal by the State and the complainant – Held: The present case is one where the prosecution has alleged that there was a criminal conspiracy to murder the deceased by all the accused – The crime was not committed at the spur of the moment, but was preceded by meticulous planning where each of the accused played a separate role to achieve the common illegal object of carrying out the murder of the deceased – The manner and circumstances in which the offence was committed, and the level of involvement of the accused persons were relevant factors – Each conspirator played his separate part in one integrated and united effort to achieve the common purpose – Each one was aware that he has a part to play in the general conspiracy, to accomplish the common object – Conspiracy is mostly proved by circumstantial evidence by taking into account the cumulative effect of the circumstances indicating the guilt of the accused, rather than adopting an approach by isolating the role played by each of the accused – The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution – In cases of criminal conspiracy, better evidence than acts and statements of co-conspirators is hardly ever available – There was ample material brought on record which created a grave suspicion about the involvement of SCB, LM, SS in the murder of the deceased – Accordingly, Sessions Court is directed to frame charges against SCB under s.302 r/w s.34 IPC and s.120B and s.201; LM under s.302 r/w s.34 and s.120B; and against SS under s.302 r/w s.34 and s.120B and ss.25, 27, 54 and 59 of Arms Act – Penal Code, 1860 – s.302 r/w s.34.
Code of Criminal Procedure, 1973: ss.227, 228 – Scope of – Held: The Court while considering the question of framing charges under s.227 has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused – If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial – At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted.
Code of Criminal Procedure, 1973: ss.223, 386, 391 – Held: s.223 provides that persons accused of the same offence, committed in the course of the same transaction, must be jointly charged and tried – In the instant case, on account of the inconsistency in framing charges by the Sessions Court against the six accused, the trial got truncated – The trial with respect to three accused i.e. SB, NM and JSS proceeded in the absence of the other three accused viz. SCB, LM and SS – This was a case of criminal conspiracy based on circumstantial evidence – Since the trial in the instant case 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 coconspirators – The order of acquittal with respect to SB and NM is pending before the High Court – s.386 defines the powers of the appellate court in dealing with appeals – Under clause (a) of s.386, 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 appellate Court, the High Court may take further evidence while considering the appeals under s.391, if it is considered necessary, and take additional evidence on record. The High Court may also permit recording of statements under s.313 if considered necessary – 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 in this case. Partly allowing the appeals, the Court
HELD: 1.1 Scope of Section 227 and 228 of the Cr.P.C. At the stage of framing charges under S.227 and S.228 Cr.P.C, the Court is required to consider whether there was sufficient material on record to frame charges against accused-SCB, accused-SS, accused-LM and accused-RS. The prosecution alleged that the offences u/S. 120B, S.302 r.w. S.120B/34, S.201 IPC and S.25 of the Arms Act ought to have been framed. The Court while considering the question of framing charges under Section 227 of the Cr.P.C has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. The test to determine prima facie case would depend upon the facts of each case. If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial. The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. The Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the ingredients constituting the alleged offence. At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted. [Para 32] [1175-B-F]
1.2 Criminal Conspiracy. The present case is one where the prosecution has alleged that there was a criminal conspiracy to murder the deceased by all the accused. The crime was not committed at the spur of the moment, but was preceded by meticulous planning where each of the accused have played a separate role to achieve the common illegal object of carrying out the murder of the deceased. A criminal conspiracy is generally hatched in secrecy, and it is difficult, if not impossible, to obtain direct evidence. The manner and circumstances in which the offence has been committed, and the level of involvement of the accused persons are relevant factors. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in the general conspiracy, to accomplish the common object. In the facts of the instant case, there was ample material brought on record which created a grave suspicion about the involvement of SCB, LM, SS in the murder of the deceased. [Para 32] [1176-D-G; 1177-A-F] Accused-SCB. Both the Sessions Court and the High Court have noted that all the witnesses have clearly attributed the murder to SCB and his son SB. The motive of the crime was to misappropriate the investments made by the deceased in the committees of SCB. The son of the deceased has further deposed that the further circumstance was on account of the business dealings between the families of the deceased and SCB. As per the case of the prosecution, the murder was contrived by SCB and his son SB with NM and the other co-conspirators being LM who arranged the contract killer-JSS, SS who provided the weapon of offence which was recovered from his office, along with live cartridges. The contemporaneous Call Detail Records (CDRs) between SB and NM, who accompanied JSS-the contract killer, would constitute strong material for framing the charge 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 fatherson 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 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 killerJSS 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, accusedSS 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 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; 1183A-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 coconspirators. 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 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; 1186A-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.
State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79 ; Kehar Singh & Ors. v. State (Delhi Administration) (1988) 3 SCC 609 : [1988] 2 Suppl. SCR 24 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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