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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 951  OF 2007

STATE (GOVERNMENT OF NCT OF DELHI) …… APPELLANT

VERSUS

NITIN GUNWANT SHAH …… RESPONDENT WITH

CRIMINAL APPEAL NO. 952  OF 2007

STATE (GOVERNMENT OF NCT OF DELHI) …… APPELLANT VERSUS

OM PRAKASH SRIVASTAVA @ BABLOO …… RESPONDENT

JUDGMENT

Pinaki Chandra Ghose, J.

1. These appeals,  by special leave, have been directed against

the judgment and order dated February 22, 2007 passed by the

High  Court  of  Delhi  at  New  Delhi  in  Criminal  Appeal

Nos.519/2006  and  527/2006, whereby the High Court allowed

the criminal appeals filed by the respondents herein and acquitted

both of them.

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2. The facts giving rise to these appeals, briefly stated, are that

in  the  morning  of  August  2,  1992,  when one  Lalit  Suneja  was

returning to his house after offering prayers to God, he was shot

dead by two unknown persons near to his house.  A neighbour,

namely Nerendra Pal Naresh, who happened to pass through that

street,  set  the  law  into  motion  by  informing  the  police.  FIR

No.258/1992 was registered by the said Nerendra Pal Naresh  at

P.S.  Shakarpur,  East  Delhi,  about  the  incident.  During

investigation,  the  Investigating  Officer  came  across  a  complaint

Ext.  PW15/A1  lodged  in  the  name  of  Lalit  Suneja  at  P.S.

Nizamuddin,  New Delhi.  Investigation was thrown into  the  case

and the following story was disclosed by the prosecution:    

3. Accused Nitin Shah was carrying on his business through a

proprietary concern M/s. Simnit Enterprises and he had employed

Lalit Suneja (deceased) as its distributor in the Northern Region.

Both  the  employer  and  the  employee  were  at  loggerhead  for

sometime on account of some payment. When the matter could not

be settled, accused Nitin Shah requested his friend Om Prakash

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Srivastava @ Babloo to eliminate Lalit Suneja and assured him to

provide  cash  likely  to  be  spent  in  doing  the  act.  Accused  Om

Prakash Srivastava intrigued with co-accused persons to bring the

design to fruition and accordingly accused Manish Dixit was hired

to  execute  the  task  for  Rs.1,00,000/-.  On  2nd August,  1992,

accused Virender  Pant  @ Chhoto  (since  deceased)  took accused

Manish Dixit on a motor-bike Yamaha bearing  No.DL-1SD-4680,

to the spot.  Accused Manish Dixit shot dead Lalit Suneja  and fled

away from the spot on the same motor-bike described above being

driven  by  accused  Virender  Pant  and  reached  to  co-accused

Manjeet  Singh  who  was  waiting  for  them  in  a  car  bearing

No.DL-1CB-7874,  at  Yamuna  Pusta  near  Bank  Enclave.  They

exchanged  their  vehicles  and  rushed  to  accused  Om  Prakash

Srivastava and returned him the motor bike and pistol used in the

crime. Accused Om Prakash Srivastava paid Rs.50,000/- to each of

the accused Virender Pant and Manjeet Singh for driving aforesaid

motor-bike and car, in order to facilitate accused Manish Dixit in

killing the deceased.  

4. Police filed challan against accused Manish Dixit and Manjeet

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Singh on 27th October, 1992. The names of accused Virender Pant,

Om Prakash  Srivastava  and  Nitin  Shah found  place  in  column

No.2.   Separate  charge-sheets  were  filed  against  accused  Nitin

Shah,  Virender  Pant  and Om Prakash Srivastava on 23.1.1993,

15.03.1995 and 03.01.1996,  respectively.

5. After  considering  the  material  on  record  and  hearing  the

counsel for the accused persons, the Trial Court  by its order dated

6th January, 2003 framed charges against Om Prakash Srivastava,

Nitin  Shah  and  Manjeet  Singh  for  offences  punishable  under

Sections 302/34 and 120B of the Indian Penal Code, 1860 (“IPC”

for  short).  The  charges  were  read  over  and  explained  to  the

accused  persons,  they  pleaded  not  guilty  and  claimed  trial.

Accused Virender  Pant and Manish Dixit  were reported to  have

died during trial.  

6. The  Trial  Court  by  its  judgment  and order  dated 3rd July,

2006  convicted  the  respondents  Nitin  Shah  and  Om  Prakash

Srivastava @ Babloo,  for the offence punishable under Section 302

IPC read with Section 120B IPC and sentenced them to undergo

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rigorous imprisonment for life and a fine of Rs.20,000/- each, and

in default of payment of fine, further imprisonment for six months

was awarded. However, Manjeet Singh was acquitted by the Trial

Court. Being aggrieved by the aforesaid judgment and order of the

Trial Court,  the accused respondents filed two separate appeals

before the High Court of  Delhi, being Criminal Appeal Nos.519 of

2006 and 527 of 2006. The High Court by the impugned judgment

and  order  allowed these  appeals  on the  ground that  there  was

nothing on the record to show that any of the two respondents had

anything to do with the murder of  Lalit Suneja and, consequently,

both the respondents were set at liberty.

7. The Appellant - State has challenged before us the judgment

of acquittal passed by the High Court of Delhi. Learned Counsel for

the appellant has inter alia raised the following ground in these

appeals.  Whether a complaint disclosing that the complainant was

threatened to be killed in case the matter was not settled and thus

demanding action and security,   is  not  a clear  manifestation of

criminal conspiracy? Learned counsel appearing for the appellant

has time and again based his contention in and around the alleged

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complaint Ext.PW15/A1. Also, since the whole case deals with the

alleged  hatched  up  conspiracy  to  eliminate  Lalit  Suneja,  any

alleged complaint by Lalit Suneja is of prime importance.  

8. The  Trial  Court  convicted  the  accused  respondents  on  the

basis  of  the  prosecution  story  revolving  around  the  aforesaid

complaint Ext.PW15/A1.  The High Court also dealt with the issue

and  held  that  the  Trial  Court  itself  raised  question  on  the

tampering  of  the  said  complaint  as  is  apparent  from  the

overwriting done in numbering the  said  complaint  in  the Police

records, yet the Trial Court went on to rely on the said complaint.

The High Court has examined at length the said complaint  and

reversed the finding of the Trial Court.  

9. We shall at the very onset examine the said contention. The

Complaint  Ext.PW15/A1  is  alleged  to  have  been  filed  by  the

deceased Lalit Suneja in his own handwriting in Hindi and signed

in English, addressed to the SHO, Police Station Nizamuddin, New

Delhi. According to the prosecution, the said complaint forms the

basis of the case, whereby the entire events are the apprehensions

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made out in the said complaint, turned out to be true. The High

Court  pointed  out  various  discrepancies  in  the  said  complaint

which are worth considering.  As has been held by the High Court,

the prosecution outrightly failed to prove the handwriting of  the

said complaint. Neither any expert evidence was examined nor any

acquaintance  was  called  to  establish  that  the  complaint  was

written by deceased Lalit  Suneja. In this light,  the deposition of

Veena (PW1) wife of  deceased Lalit Suneja, is also perused. She

denied the signature on the said complaint as that of her deceased

husband.  The  handwriting  also  could  not  be  proved  as  PW1

deposed that she never saw her  husband writing. The prosecution

also failed to prove the signature by forensic evidence. Apart from

the  above,  the  said  complaint  is  shown  as  Entry  No.605/2  in

Register No.12 dated 23.7.1992. On examination, the High Court

rightly pointed out that there is overwriting which is visible to the

naked eye and apparently the original Entry 605 was changed to

Entry  604A  to  insert  the  document  Ext.  PW15/A1  in  Register

No.12. This entry has also been commented by the Trial Court as

being manipulated and fabricated.

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10. The High Court pointed out one another fact discrediting the

prosecution  story,  whereby  the  prosecution  alleged  that  the

Investigating  Officer  (PW20)  was  provided  with  a  photocopy  of

Ext.PW15/A1 by PW15.   However,  in reality  there was no such

copy in existence in the Police File.  The assertion that  the said

complaint  was  handed  over  to  the  Police  Station  on  23.7.1992

remains  uncorroborated  due  to  lack  of  contemporaneous  Police

record. There exists no receipt of the said complaint on 23.7.1992

or on 2.8.1992.  Hence the seizure by PW20 on 4.7.1992 is highly

doubtful  as  the  Trial  Court  and  so  did  the  High  Court  had

concurrent finding as to tampering with Register No.12.  

11. The prosecution story suffers another grave lacunae and that

is it outrightly failed to prove the surrounding circumstances. To

establish the threat of being killed, no corroborative evidence was

produced nor any statement of account was placed on record to

prove any outstanding amount to be paid by deceased Lalit Suneja

to respondent Nitin Shah. On the contrary, the deposition of Veena

(PW1) wife of deceased Lalit Suneja is important, who stated that

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she  had  never  heard  of  any  business  relationship  between  her

husband and respondent Nitin Shah, nor she was aware of any

hostility between the two.

12. The learned counsel for the appellant placed reliance on the

testimony of the Police Officer Hanuman Dan (PW15) who alleged

that  the  complaint  Ext.PW15/A1  was  endorsed  by  the  SHO

Nizammudin to inquire into the matter. PW15 also alleged to have

accompanied  the  deceased  to  a  meeting  at  Jukasso  Inn  at

8.00 P.M. on 23.7.1992 and had also deputed two Constables Bir

Singh  and  Joginder.  However,  on  perusal  of  the  Roznamcha

Register  on  23.7.1992,  no  departure  entry  of  PW15  is  made.

Instead, a departure entry at 1.30 P.M. and return of 10.00 P.M. is

entered. Thus, doubt is cast on the event whether any complaint

as Ext.PW15/A1 could have been handed over to PW15 since on

that day i.e. 23.7.1992,  he was not in the Police Station between

1.30 P.M. and 10.00 P.M.

13. Another  view  which  excludes  the  prosecution  story  is  the

testimony of  Veena (PW1)  wife of  deceased Lalit Suneja. She not

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only deposed that the signature on the complaint Ext. PW15/A1

was not of the deceased, but she further deposed that there never

existed  any enmity between Nitin Shah and her husband, or that

any complaint apprehending threat was filed by her husband. PW1

further deposed that her husband was having his business but the

employer-employee  relationship  never  existed  between  her

deceased husband and Nitin Shah.  

14. The Trial Court relied on the two applications filed by accused

Nitin  Shah,  one  under  Section  340  read  with  Section  195  of

Cr.P.C., and the other under Section 317(2) of Cr.P.C.,  in reaching

its  judgment.  The  High Court  rightly  rejected the  aforesaid  two

applications on the ground that the same were not proved by the

prosecution. The prosecution was already suffering a weak case,

over and above the non-proving of Ext. PW15/A1. The prosecution

failed to prove other corroborative circumstances which included

non-recovery of  the weapon used in the offence and the alleged

involvement of the car and motor-bike. The prosecution could not

have  shored  its  boat  by  merely  proving  that  the  accused  were

present in Delhi when the offence occurred. The vital links in the

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prosecution story being already missing, the prosecution could not

prove  a  chain  of  events  leading  to  a  sole  conclusion  that  the

accused were guilty beyond reasonable doubt.

15. The  learned  counsel  for  the  appellant  has  pleaded  various

questions of law which are already settled by this Court. However,

in  the  present  case,  the  prosecution  failed  to  make  its  base.

Therefore,  we  find  no  point  in  dealing  with  those  issues.  The

prosecution should first and foremost establish the complaint to be

made  by  the  deceased  Lalit  Suneja  himself.   In  light  of  this

argument,  Section  32(1)  of  the  Indian  Evidence  Act,  1872  is

reproduced below:

“Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. — Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot  be procured without an amount  of  delay  or  expense  which,  under  the circumstances  of  the  case,  appears  to  the  Court unreasonable, are themselves relevant facts in the following cases:—

(1) when it relates to cause of death. —When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the

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transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in  which  the  cause  of  his  death  comes  into question.”

On bare perusal of Section 32(1) of the Evidence Act,  it is clear

that the statement as to death must be made by the person himself

and if  any discrepancy arises,  the same cannot be relied upon.

This  Court  in  Atbir  v.  Government  of  NCT  of  Delhi  1  has

summarized the principles laid down earlier,  as under:

“(i)  Dying  declaration  can  be  the  sole  basis  of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement  and  that  it  was  not  the  result  of tutoring, prompting or imagination.

(iii)  Where  the  court  is  satisfied  that  the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule  requiring  corroboration  is  merely  a  rule  of prudence.

1  (2010) 9 SCC 1

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(v)  Where  the  dying  declaration is  suspicious,  it should  not  be  acted  upon without  corroborative evidence.

(vi)  A  dying  declaration  which  suffers  from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x)  If  after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent  and consistent,  there  shall  be  no legal impediment  to  make  it  the  basis  of  conviction, even if there is no corroboration.”

This Court  has in a catena of judgments laid down the parameters

to gauge the veracity of  a  dying declaration  and  in the present

case, the  complaint  Ext. PW15/A1 thus fails to adhere to these

guidelines.

16. The  prosecution  relies  upon  the  existence  of  criminal

conspiracy,  which  resulted  into  the  death  of  Lalit  Suneja.  This

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Court has time and again laid down the ingredients to be made out

by  the  prosecution  to  prove  criminal  conspiracy.  It  is  now,

however,  well  settled  that  a  conspiracy  ordinarily  is  hatched in

secrecy. The Court for the purpose of arriving at a finding as to

whether the said offence has been committed or not may take into

consideration the  circumstantial  evidence.  However,  while  doing

so, it  must be borne in mind that meeting of  mind is essential;

mere  knowledge  or  discussion would  not  be  sufficient.  Yet,  the

prosecution has failed to prove the evidence which establishes any

prior  meeting  of  mind  of  the  accused.  The  prosecution  merely

proved that all the accused were present in Delhi on the date of

occurrence, and that the alleged motor-bike and the car used in

incident belonged to respondent No.2, Om Prakash Srivastava @

Babloo.  The High Court rightly dismissed this argument, as the

involvement of the said vehicles in commission of the crime were

never proved. Neither any prior meeting of mind of the accused was

proved,  nor  any  action,  individually  or  in  concert,  was  proved

against  any  of  the  accused.  Needless  to  say  that  the  entire

foundation of the prosecution story was never established.

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17. Thus, in the light of the above discussion, we are of the view

that  the  present  appeals  are  devoid  of  merits,  and  we  find  no

grounds  to  interfere  with  the  judgment  delivered  by  the  High

Court. The appeals are, accordingly, dismissed.

…....................................J                                                      (Pinaki Chandra Ghose)

…...................................J                                                            (R.K. Agrawal)

New Delhi;  

September 16, 2015.