State (Government Of Nct Of Delhi) vs Nitin Gunwant Shah

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 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 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 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.

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.

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 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.

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.