STATE (GOVERNMENT OF NCT OF DELHI)versusNITIN GUNWANT SHAH

                        (2015] 10 S.C.R. 48


A          STATE (GOVERNMENT OF NCT OF DELHI)
                                 v.
                      NITIN GUNWANT SHAH
                Criminal Appeal No. 951 OF 2007
B
                      SEPTEMBER 16, 2015
     [PINAKI CHANDRA GHOSE AND R. K. AGRAWAL, JJ.]
         Penal Code, 1860: ss. 302134 ands. 120-B - Conviction
c by trial court set aside by High Court- State's appeal against
   acquittal - Prosecution case was that the victim-deceased
   was employee of accused-NS and that there was some
   dispute between them over money-Accused-NS hired the
   accused-OP to eliminate the deceased- Deceased was shot
D dead - Trial court convicted both the accused u/s. 302 rlw s.
   120-B on the basis of prosecution story revolving around the
  ·complaint which was filed by the victim-deceased
   complaining about the life threat received by him by the
   accus.ed - High Court reversed the finding of the trial court
E .on the ground that prosecution failed to prove the handwriting
   of the deceased in the said complaint and that the wife of the
   deceased also denied the signature on the same as that of
   her deceased-husband - Held: Prosecution failed to prove
   that the complaint was lodged by the deceased- Wife of the
F deceased denied the signature on the said complaint as that
   of her husband- Seizure of the complaint by the investigating
   officer-was highly doubtful as courts below had concurrent
   finding as to tampering in the police records - There was no
G evidence to prove threat to the deceased by the accused
   persons - 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
   accused-OP - High Court rightly dismissed this argument,
H as the involvement of the said vehicles in commission of the
                                 48
  STATE (GOVERNMENT OF NCT OF DELHI) v. NITIN              49
               GUNWANT SHAH

crime were never proved - Neither any prior meeting of mind A
of the accused was proved, nor any action, individually or in
concert, was proved against any of the accused - No
interference with the order of acquittal.

     Dismissing the appeals, the Court                     B

      HELD: 1. The High Court pointed out various
discrepancies in the said complaint. Neither any expert
evidence was examined nor any acquaintance was
called to establish that the complaint was written by c
deceased. PW1, wife of deceased also 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 o
forensic evidence. Apart from that, the said complaint
was shown as Entry No.605/2 in Register No.12 dated
23.7.1992. On examination, the High Court rightly pointed
out that there was overwriting which was visible to the
naked eye and apparently the original entry was changed E
in insert the.complai-nt. This entry was also commented
by the trial court as being manipulated and fabricated.
The High Court pointed out one another fact discrediting
the prosecution story, whereby the prosecution alleged
that the Investigating Officer (PW20) was provided with F
a photocopy of the complaint by PW15. However, in
reality there was no such copy in existence in the Police
File. The assertion that the said complaint was handect
over to the Police Station remained uncorroborated due
to lack of contemporaneous Police record. There existed G
no receipt of the said complaint. Hence the seizure by
PW20 was highly doubtful as the trial court and so did
the High Court had concurrent finding as to tampering
with Register No.12. The prosecution story suffered H
50        SUPREME COURT REPORTS              [2015] 10 S.C.R.


A 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
  reco.rd to prove any outstanding amount to be paid by
B deceased to respondent NS. On the contrary, the
  deposition of PW1 wife of deceased is important, who
  stated that she had never heard of any business
  relationship between her husband and respondent NS,
  nor she was aware of any hostility between the
C two.[Paras 9 to 11] [54-F-H; 55-A-G]

        2. The Court for the purpose of arriving at a finding
  as to whether the said offence was committed or not may
  take into consideration the circumstantial evidence.
D 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 ~o prove the evidence which establishes any·
  prior meeting of mind of the accused. The prosecution
E 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. Neither any prior meeting of mind of the accused
F was proved, nor any action, individually or in concert,
  was proved against any of the accused. [Para 16) [59-D-
  F]

         Atbir v. Government of NCT of Delhi (2010) 9 SCC
         1: 2010 (9) SCR 993 - relied on.
G
                        Case Law Reference

     2010 (9) SCR 993         relied on.           Para 15

H        CRIMINAL APPELLATE JURISDICTION : Criminal
     AppealNo.951 of2007
   STATE (GOVERNMENT OF NCT OF DELHI) v. NITIN                     51
                GUNWANT SHAH

     From the Judgment and Order dated 22.02.2007 of the           A
High Court of Delhi at New Delhi in Criminal Appeal No. ·519
of2006.

                             WITH
                                                                   B
     Crl. A. No. 952 of 2007

       R. S. Suri, Nikhil Nayyar, T.V.S.R. Sreyas, Pallavi Layal
for the Appellant.

     Harish N. Salve, Shekhar Naphade, Satish Mane Shinde,         C
Arunabh Chowdhury, Ankur Chawla, Amanpreet Singh Rathi,
VaibhavTomar, prashant Kumar, Karan Lahiri, Sahil Garg, D.B.
Goswami, Dr. Sanjay Gupta, Dr. Sushi! Balwada for the
Respondent.
                                                                   D
     The Judgment of the Court was delivered by

      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          E
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.

      2. The facts giving rise to these appeals, briefly stated, F
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 G
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/A 1 lodged in the name of Lal it H
52         SUPREME COURT REPORTS                [2015] 10 S.C.R.


A    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 carryjng on his business
B through a proprietary concern Mis. Sim.nit 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
C requested his friend Om Prakash 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
D the task for Rs.1,00,000/-. On 2"d 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 describ~d
E 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
F Om Prakash Srivastava and returned him the motor bike and
  pistol used in the crime.Accused Om Prakpsh 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.
G      4. Police filed challan against accused Manish Dixit and
  Manjeet Singh on 271h 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
H against accused Nitin Shah, Virender Pant and Om Prakash
   STATE (GOVERNMENT OF NCT OF DELHI) v. NITIN                    53
    GUNWANT SHAH [PINAKI CHANDRAGHOSE, J.]

Srivastava on 23.1.1993, 15.03.1995 and 03.01.1996,               A
respectively.

      5. After considering the material on record and hearing
the counsel for the accused persons, the Trial Court by its
order dated 61h January, 2003 framed charges against Om B
Prakash Srivastava, Nitin Shah and Manjeet Singh for offences
punishable under Sections 302/34 and 1208 of the Indian
Penal Code, 1860 ("IPC" for short). The charges were read
over and explained to the accu::ed persons, they pleaded not
guilty and claimed trial. Accused Virender Pant and Manish C
Dixit were reported to have died during trial.

      6. The Trial Court by its judgment and order dated 3rc1
July, 2006 convicted the respondents Nitin Shah and Om
Prakash Srivastava @ Babloo, for the offence punishable           D
under Section 302 IPC read with Section 1208 IPC and
sentenced them to undergo 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             E
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       F
there was nothing on the record to show that any of the two
respondents had anything to do with the murder of Lal it Suneja
and, consequently, both the respondents were set at liberty.

      7. The Appellant - State has challenged before us the G
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 H
54          SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A    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
     complaint Ext.PW15/A 1. Also, since the whole case deals with
     the alleged hatched up conspiracy to eliminate La lit Suneja,
B    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/A 1. The High Court also dealt
C    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, yetthe Trial Courty..tent on to rely on the said complaint.
     The High Court has examined at length the said complaint and
D    reversed the finding of the Trial Court.

           9. We shall at the very onset examine the said contention.
     The Complaint Ext.PW15/A 1 is alleged to have been filed by
     the deceased Lalit Suneja in his own handwriting in Hindi and
E    signed in English, addressed to the SHO, Police Station
     Nizamuddin, New Delhi. According to the p;·osecution, the said
     complaint forms the basis of the case, whereby the entire
     events are the apprehensions made out in the said complaint, .
     turned out to be true. The High Court pointed out various
F    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
G    written by qeceased 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
H    be proved as PW1 deposed .that she never saw her husband
     writing. The prosecution also failed to prove the signature by
   STATE (GOVERNMENT OF NCT OF DELHI) v. NITIN                     55
    GUNWANT SHAH [PINAKI CHANDRAGHOSE, J.]

forensic evidence. Apart from the above, the said complaint is     A
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. PVV15/A1 in Register No.12. This entry has also      B
been commented by the Trial Court as being manipulated and
fabricated.

      10. The High Court printed out one another fact
discrediting the prosecution story, whereby the prosecution C
alleged that the Investigating Officer (PW20) was provided with
a photocopy of Ext. PW15/A 1 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 D
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.                                  E

      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 F
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 she had
never heard of any business relationship between her husband G
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 ?f the Police Officer Hanuman Dan (PW15)          H
56         SUPREME COURT REPORTS                   [2015] 1OS.C.R.


A    who alleged that the complaint Ext.PW15/A 1 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
B    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/A 1 could
     have been handed over to PW15 since on that day i.e.
C    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.
D    She not only deposed that the signature on the complaint Ext.
     PW15/A 1 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
E    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
F accused Nitin Shah, one underSection 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
G suffering a weak case, over and above the non-proving of Ext.
  PW15/A 1. 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-
H bike. The prosecution could not have shored its boat by merely
   STATE (GOVERNMENT OF NCT OF DELHI) v. NITIN                     57
    GUNWANT SHAH [PINAKI CHANDRA GHOSE, J.]

proving that the accused were present in Delhi when the A
offence occurred. The vital links in the 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.
                                                                    B
       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 C
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 D
     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 E
     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 F
     statement is made by a person as to the cause of his
     death, or as to any of the circumstances of the 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 G
     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."
                                                                   H
58         SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A          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
B    under:

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

c         (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
D
          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
E         conviction unless it is corroborated. The rule requiring
          corroboration is merely a rule of prudence.

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

G         (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.

H    ' (2010) g sec 1
   STATE (GOVERNMENT OF NCT OF DELHI) v. NITIN                      59
    GUNWANTSHAH [PINAKI CHANDRAGHOSE, J.]

     (ix) When the eyewitness affirms that the deceased was A
     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 B
     make a false statement and if it is coherent anrl
     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         c
parameters to gauge the veracity of a dying declaration and
in the present case, the complaint Ext. PW15/A 1 thus fails to
adhere to these guidelines.

       16. The prosecution relies upon the existence of criminal    D
conspiracy, which resulted into the death of Lalit Suneja. This
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   E
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   F
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                G
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
                                                                    H
60          SUPREME COURT REPORTS                [2015] 10 S.C.R.

A the accused. Needless to say that the entire foundation of the
  prosecution story was never established.

           17. Thus, in the light of the above discussion, we are of
     the view that the present appeals are devoid of merits, and we
s    find no grounds to interfere with the judgment delivered by the
     High Court. The appeals are, accordingly, dismissed.

     Devika Gujral                                 Appeals dismissed.