STATE (GOVERNMENT OF NCT OF DELHI) versus NITIN GUNWANT SHAH
[2015] 10 S.C.R. 48, Supreme Court of India, 2015
Outcome: Dismissed (Dismissed)
Segment: Ratio
(2015] 10 S.C.R. 48 
A 
STATE (GOVERNMENT OF NCT OF DELHI) 
B 
v. 
NITIN GUNWANT SHAH 
Criminal Appeal No. 951 OF 2007 
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] 
G 
Atbir v. Government of NCT of Delhi (2010) 9 SCC 
1: 2010 (9) SCR 993 - relied on.
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 
Crl. A. No. 952 of 2007 
R. S. Suri, Nikhil Nayyar, T.V.S.R. Sreyas, Pallavi Layal 
for the Appellant. 
B 
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/A 1 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] 1 O S.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. 
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 
B 
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: 
c 
D 
E 
F 
"(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. 
(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. 
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.