REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 2194 OF 2011
Pawan Kumar @ Monu Mittal ... APPELLANT
Vs.
State of Uttar Pradesh & Anr. ... RESPONDENTS
WITH
Criminal Appeal Nos. 2195-2196 OF 2011
Rakesh Anand and Anr. ... APPELLANTS
Vs.
State of Uttar Pradesh & Anr. ... RESPONDENTS
Criminal Appeal No. 2198 OF 2011
Shiv Kesh Giri @ Lalla ... APPELLANT
Vs.
State of Uttar Pradesh ... RESPONDENT
Criminal Appeal No. 2199/2011
Devesh Agnihotri ... APPELLANT
Vs.
State of Uttar Pradesh ... RESPONDENT
Criminal Appeal No. 2200/2011
Rajesh Verma ... APPELLANT
Vs.
State of Uttar Pradesh ... RESPONDENT
JUDGMENT
N.V. RAMANA, J.
These appeals are directed against a common impugned judgment dated 11th
February, 2009 of the High court of Allahabad, Lucknow Bench, by which the
appeals of the appellants herein who are accused of murdering one
Manjunath, were dismissed.
2. Material facts of the case as per prosecution are that the father of
appellant Monu Mittal (Accused No. 1) was the owner of a petrol pump namely
M/s Mittal Automobiles situated at Gola, District Lakhimpur Kheri, Uttar
Pradesh. The deceased Manjunath was working as a Sales Officer with the
Indian Oil Corporation (IOC) at Gola. On 13.9.2005, the deceased inspected
the petrol pump of Accused No. 1 and on finding some irregularities, the
sales and supplies of the petrol pump were suspended by the IOC at his
instance. However, the same were restored on 19th October, 2005 after the
payment of fine of Rs.75,000/- by the owner of the petrol pump. Again on
19th November, 2005, the deceased, being suspicious of malpractices still
being carried on by Accused No. 1, inspected the said petrol pump.
3. On 20.11.2005, when the Head Constable (Ram Bhawan Singh) of P.S.
Mahaoli, District Sitapur, along with Constable Asha Ram (PW2) and Driver
Braj Kishore was on patrol duty on the National Highway, at about 8.00 am,
one Maruti Car bearing No. UP 51 E 5176 was coming from the direction of
Maigalganj and upon seeing the police jeep, the Maruti Car suddenly turned
back and tried to drive away from that place. On suspicion, the Maruti Car
was chased and intercepted at about 8.30 am near Green Gold Dhaba. One
Vivek Sharma (Appellant - Accused No. 7) was driving the car accompanied by
another appellant Rakesh Kumar Anand (Appellant-Accused No.4) who was
sitting on the back seat besides a blood stained dead body of S. Manjunath
(deceased). On interrogation, both accused Nos. 4 & 7 confessed that the
deceased was shot dead by Pawan Kumar alias Monu Mittal (Accused No.1),
Devesh Agnihotri (Accused No. 2), Sanjay Awasthi (Accused No.3), Lala Giri
(Accused No.5), Harish Mishra (Accused No.6) at M/S Mittal Automobiles and
they were carrying the dead body of the deceased in his car, to dispose of
the same at an unknown place. Both the accused Nos. 4 & 7 were taken into
custody and a recovery memo (Ext. Ka-1) was prepared and a case against all
the accused under Sections 147,148,149,302 and Section 201 read with
Section 34, IPC, was registered on 20.11.2005.
4. Mr. P.N. Saxena, Sub-Inspector took up the investigation and in the
presence of Dhan Raj Sahani (PW 3, landlord of the deceased) conducted
inquest. He collected blood stained seat covers and door mats (Ext. Ka-9)
from the Maruti Car besides several other belongings of the deceased,
prepared site plan (Ext. Ka-8) and sent the dead body for post mortem.
Thereafter, he transferred the investigation to P.S. Gola, and Parmesh
Shukla, SHO(PW21) who took up further investigation, arrested Shivkesh Giri
@ Lala Giri (Accused No. 5) on 22.11.2005. He also recovered a wet blood
stained cloth from behind the Petrol Pump which was allegedly used in
cleaning the murder spot at the instance of Accused no 5. Three cartridges
of 32 bore (Ext. Ka-16) were also recovered from behind the Petrol Pump on
his pointing. Based on the confession of Lala Giri (Accused No. 5), he
arrested the other accused Pawan Kumar, Sanjay Awasthi, Rajesh Verma and
Harish Mishra at 6.50 p.m. near railway crossing in a car bearing number UP
31 F4629. A revolver was recovered from accused Rajesh Verma, owner of the
car and a Pistol was recovered from accused Pawan Kumar (Ext Ka-17). On
23.11.2005 at 8:30 am, the IO recovered the car of accused Pawan Kumar, his
blood stained pant from Punerbhoo forest, Kheri. The IO also recovered
three empty cartridges from the diesel tank of the Petrol Pump on
24.11.2005 at 9:30 am on pointing of Accused No. 1 Monu Mittal. Accused
No.2 - Devesh Agnihotri was also arrested on the same day at 6:00 pm by TN
Tripathi, Sub-Inspector (PW 19) from Bheera and at his instance, four empty
cartridges (Ext. Ka-20) fired from the revolver of accused No. 8 - Rajesh
Verma were recovered from the house of one Jitendra Mishra uncle of Sanjay
Awasthi (A-3).
5. After investigation, the IO submitted charge sheet, and the case was
committed for trial. The trial court framed charges against all the accused
u/s 147,148, 302 r/w 149, 201 and 120 B, IPC. Additional charges u/s 404
and 411 of IPC, Section 30 of the Arms Act were framed against accused No.
1 - Pawan Kumar, charges u/s 212 IPC and Sections 25/30 of the Arms Act
were framed against accused No.8 - Rajesh Verma. Also charges under
Section 411, IPC were framed against accused No.7 - Vivek Sharma and
Accused No. 4 - Rakesh Kumar Anand.
6. The Trial Court convicted and sentenced the accused No.1 - Pawan
Kumar @ Monu Mittal to death for offences u/s 302 r/w 149, IPC and to pay a
fine of Rs 10,000/-, in default to undergo simple imprisonment (SI) for one
year. He was also sentenced to 2 years RI and to pay a fine of Rs. 5000/-,
in default 3 months SI for the offence u/s 404, IPC and 6 months
imprisonment u/s 30 of the Arms Act, 2 years RI and to pay a fine of Rs
5000/- u/s 404, IPC and in default to undergo 3 months S.I. The other
accused, namely accused No.2 - Devesh Agnihotri, accused No.3 - Sanjay
Awasthi, accused No. 4 - Rakesh Kumar Anand, accused No. 5 - Shivkesh Giri
@ Lalla Giri, accused No. 6 - Harish Mishra, accused No. 7 - Vivek Sharma
and accused No. 8 - Rajesh Verma were also convicted u/s 302 r/w Section
149, IPC and sentenced to suffer life imprisonment. They were further
sentenced to suffer one year RI u/s 148, 5 years RI u/s 201, IPC, 5 years
RI u/s 120 B IPC. Accused No.8 - Rajesh Verma was also convicted u/s 212,
IPC and sentenced to 3 years RI and to pay a fine of Rs 5,000/-, in default
to undergo 6 months SI u/s 25 of the Arms Act and sentenced to 1 year RI
and to pay a fine of Rs 1,000/-, in default to suffer SI for 3 months and 6
months RI u/s 30 of the Arms Act. Accused Rakesh Anand, Vivek Sharma and
Pawan Kumar were also sentenced to 2 years RI u/s 411 IPC. All the
sentences were, however, directed to run concurrently.
7. Aggrieved thereby, the accused-appellants preferred appeals before
the High Court. The High Court by the impugned judgment dated 11.12.2009
partly allowed the appeal of Pawan Kumar (Accused No. 1) and modified his
death sentence to life imprisonment u/s 302 r/w 149 but upheld the
convictions for the other offences they are charged with. The appeals of
the accused Devesh Agnihotri (A-2), Rakesh Anand (A-4), Shivkesh Giri
@ Lalla Giri (A-5), Vivek Sharma (A-7) and Rajesh Verma (A-8) were,
however, dismissed by the High Court. The appeals of other co-accused
Harish Mishra (A-6) and Sanjay Awasthi (A-3) were allowed giving them
benefit of doubt and acquitted them of all charges. Against the said
judgment passed by the High Court, Accused Nos. 1, 2, 4, 5, 7 & 8 filed the
present appeals before this Court.
8. Learned Counsel appearing for the appellants argued that the Courts
below have committed a grave error in convicting and sentencing the
appellants on the very evidence by which it acquitted the co-accused Harish
Mishra and Sanjay Awasthi of all the charges. The High Court relied solely
on the confessional statements of the accused/appellants made to the police
which is inadmissible in evidence under Section 25 of the Indian Evidence
Act. Taking support from a decision of this Court in Aghnoo Nagesia Vs.
State of Bihar, (1966) 1 SCR 134, learned counsel submitted that "a
confession made to a police officer under any circumstances is not
admissible in evidence against the accused. It covers a confession made
when the accused was free and not in police custody, as also a confession
made before any investigation has begun". Unfortunately, the High Court
has not considered Section 25 of the Evidence Act in its true spirit and
erred in holding that the confessional statement of accused given to the
police officer is admissible, because the same was not made to the
Investigating Officer but to some other police officer. Taking support from
a decision of this Court in State of Punjab Vs. Barkat Ram, (1962) 3 SCR
338, learned counsel submitted that the confession made to any member of
the police, of whatever rank and at whatever time, is inadmissible in
evidence as per Section 25 of the Evidence Act.
9. The learned counsel further submitted that the impugned judgement is
based only on conjectures and surmises and not on any cogent and reliable
evidence. There were no eyewitness to the occurrence and the case of
prosecution is based solely on the circumstantial evidence. The prosecution
has completely failed to prove the chain of events linking the accused
appellants to the commission of offence. There is no direct witness or
incriminating evidence against the appellants to establish the motive of
the accused to kill the deceased. The courts below have ignored the fact
that neither the Ballistic Report (Ext. 61) nor the Serological Reports
(Exts. Ka-60, 62, 62A) support the case of prosecution. In the ballistic
report, no special characteristics were found and no conclusive opinion was
given that the shots were fired from the gun of the accused. The Ballistic
Expert (Ext. Ka-61) clearly mentioned in the report that "the individual
characteristics are absent" for giving a definite opinion. In the absence
of a firm expert opinion, it cannot be conclusively held that the bullets
recovered from near and around the scene of offence were fired from the gun
of accused No .1 Pawan Kumar.
10. It is the contention of the learned counsel that according to the
Serological Report (Ext. Ka-60), no blood was found on the cloth recovered
from behind the petrol pump which was allegedly used to clean the site of
crime as also the pant of the accused No. 1 (Exts. Ka-62 & 62A) Pawan Kumar
allegedly recovered from his car. Another crucial loophole that is evident
from the prosecution story is that the body of the deceased was stained
with blood, but no blood stains were reported to be found on the clothes of
accused No. 7 - Vivek Sharma and accused No. 4 - Rakesh Kumar Anand who
were allegedly carrying the dead body of the deceased in his car to dispose
of the same. Also another dubious circumstance sought to be proved by the
prosecution is that when the car in which accused No.7 - Vivek Sharma and
accused No.4 - Rakesh Kumar Anand, were carrying the dead body of the
deceased was intercepted, P.W.3 - Dhanraj Sahni, landlord of the deceased
appeared from the crowd and recognized the dead body. Learned counsel
submitted that the landlord was living far away from the site where the
accused were apprehended, and no reason is given by the prosecution for his
presence at the spot where the car carrying the dead body of the deceased
was intercepted. This casts a doubt on the prosecution story about the
presence of the landlord at that point of time.
11. The learned counsel strenuously contends that another aspect that
probablises the factum of manipulation of the case by the prosecution to
implicate the appellants into the crime is that according to the
prosecution case, in all, eleven bullets were fired at the deceased, but
according to the post-mortem report (Ext. Ka-14), the deceased had suffered
six firearm injuries, out of which there were two exit wounds on his body
and four bullets were recovered from his body. There was no explanation
coming forward from the prosecution as regards not finding the other
bullets. It is not possible to imagine that other seven bullets did not hit
anywhere at the place of incident. This fact clearly establishes that the
prosecution manipulated the investigation. The prosecution thus totally
failed to prove the place of occurrence and the recoveries alleged to have
been made from the scene of offence were planted for the purpose of the
case.
12. Learned counsel further submitted that the Courts below have utterly
failed to take into account the important material contradictions before
convicting the appellants. PW 21 - Parmesh Kumar Shukla, SHO was said to
have taken control of the case on the evening of 20th November, 2005 and he
came to know about the place of incident only on 21st November, 2005 seems
improbable. The same stood fortified by the fact that as per Rojanama (GD
No. 38 dated 21-11-2005) he had visited the alleged place of occurrence
i.e. petrol pump on 21.11.2005. Whereas in his deposition before the Trial
Court he denied to have gone there on 21-11-2005 and he further stated that
he went to the place of occurrence for the first time only on 22-11-2005 in
the afternoon. It is, therefore, clear that the investigations are tainted,
vital and material portion has been deliberately concealed. The deposition
of PW 21 visiting the place of occurrence on 22-11-2005 ought to have been
rejected by the Courts below. Once a material portion of the evidence of
I.O. is found to be false, no reliance could be placed on his statement.
Such material contradictions would not only cast a doubt on his evidence,
but discredits the entire case of prosecution. Another discrepancy in the
prosecution story pointed out by the learned counsel is that as per
prosecution, accused No.5- Lalla Giri was arrested by PW 21 on 22-11-
2005 from Railway Station, whereas on 21-11-2005 at about 3.15 p.m. mother
of Lalla Giri (A-5) had sent a telegram (Ext. Kha-2) to the DIG, Lucknow
complaining therein that her son has been wrongfully confined by the PS
Gola since 20-11-2005. This uncontroverted fact belies his arrest and thus
the recoveries allegedly made at his instance cannot be relied upon.
13. Learned counsel further contended that the Courts below have wrongly
attributed the motive for the crime inasmuch as M/S Mittal Automobiles was
sealed by the deceased owing to alleged malpractices. It is admitted fact
that apart from Mittal Automobiles one more petrol pump L.D Service Station
was inspected by the deceased on the same day and samples taken were found
to be adulterated, but no investigation was carried out in this regard. In
fact, no adulteration was detected from the samples collected from M/S
Mittal Automobiles. As a matter of fact, Weights and Measurement
Department conducted test of HSD (1150 ltrs.) from June, 2005 to 13.9.2005.
Though the entries were made in the Daily Stock Register of M/S Mittal
Automobiles, no corresponding entry was made in the main stock register
which resulted in stock variation which led to the sealing of the petrol
pump. When M/S Mittal Automobiles clarified the same by reply dated 18-10-
2005, the petrol pump was restored. The fine of Rs.75,000/- was paid in
respect of technical defaults in order to ensure that the supply is
restored. Hence, the motive part advanced by the prosecution is not proved
and the Courts below have erred in not appreciating this fact.
14. Learned counsel appearing for Accused No. 2 - Devesh Agnihotri
submitted that the appellant was wrongly implicated in the crime. The
appellant has no previous association with the prime accused Monu Mittal.
The appellant-accused No. 2 was not even present at the scene of crime at
the relevant time as he was attending marriage of his brother in law in
District Etah which is far away from the place of occurrence. Moreover,
there is no incriminating evidence against accused No. 2.
15. On behalf of Accused No. 5-Lalla Giri it is specifically argued that
he has been wrongly convicted by the Trial Court merely because he was an
ex-employee of Pawan Kumar @ Monu Mittal (Accused No.1). Mere recovery of
empty cartridges at the instance of this appellant-accused is of no
consequence when there is no evidence linking his participation in the
crime. Moreover, the recovery of empty cartridges at the place of
occurrence itself is highly doubtful as they can easily be destroyed. In
support of the argument that in the absence of any link evidence, the
appellant cannot be convicted under Section 302, IPC learned counsel relied
on Mani Vs. State of Tamilnadu (2009) 17 SCC 273. Learned counsel further
argued that at the most the case against the appellant cannot be beyond
Section 201, IPC for which the maximum sentence is 10 years. The appellant
has already undergone about 9 years imprisonment.
16. Learned counsel appearing for Accused No.4- Rakesh Anand and Accused
No.7- Vivek Sharma submitted that the prosecution has failed to complete
the chain of events qua Accused Nos. 4 and 7 to bring home their
culpability. Both the courts below have gravely erred in holding that the
dead body of the deceased was recovered from the possession of these
appellants on 20.11.20005 at 8.00 am. As per prosecution, at the time of
their arrest, the dead body of the deceased was bleeding, but admittedly no
blood was found on their clothes. No weapon, driving licence, money etc.
were found from their possession. No relation between these two accused and
other accused has been proved. Moreover, there was no examination of any
independent witness to support the story of prosecution that the dead body
of the deceased was recovered from the possession of these two accused.
Allegedly, there was a mob of about 100 to 150 people at that point of
time, but no independent witness has been examined to prove the prosecution
story, and in the absence of any independent witness being examined, the
confession statement and consequent recovery, cannot be believed. Learned
counsel therefore submitted that it is in the interest of justice, the
appeals be allowed, as otherwise, the appellants would suffer irreparable
injustice, loss and injury.
17. Learned counsel appearing on behalf of Accused No. 8 -Rajesh Verma
argued that the appellant was merely an employee of an Urban Co- operative
Bank and had no previous enmity or motive to kill the deceased as he had no
interests in the business of Petrol Pump. His name neither figured in the
confessional statement of the accused nor in the F.I.R. According to the
prosecution, the licensed revolver of Accused No. 8 was recovered on 22-11-
2005, but it was not even sealed at the spot despite the I.O. having
specific knowledge about its use. There was no specific evidence to
establish the date, time and place of it being sealed. Only the oral
assertion of I.O. that the weapon was sealed a couple of days later by him,
shows the possibility of revolver or bullet being changed, thereby wrongly
implicating the accused in the crime. There was also no evidence of
conspiracy against this appellant nor was any evidence to establish the
intention, knowledge or prior meeting of the appellant with the other
accused to commit the crime. The I.O. in the cross examination admitted
that the appellant neither used his revolver nor was present at the time of
occurrence. There is also no absolute evidence of appellant giving his
revolver to the prime accused. The appellant was an active worker of a
political party and his political rivals being inimical towards him he was
falsely implicated, but the Courts below have failed to take into
consideration this aspect.
18. Learned counsel appearing for all the accused-appellants strongly
contended that the Courts below have committed grave error in convicting
and sentencing the accused. The impugned judgment is not based on the true
principles of law. It is not only gravely erroneous, but also against the
material available on record. The alleged circumstances do not form a
complete chain of events linking the accused to the commission of the
crime, and the incriminating circumstances having not been proved by the
prosecution, in accordance with law, the impugned judgment is, liable to be
set aside.
19. Mr. Gaurav Bhatia, learned Additional Advocate General appearing for
the State, on the other hand, supported the impugned judgment and submitted
that this is an unfortunate case where an Officer of the Indian Oil
Corporation was brutally murdered by the accused for honestly carrying out
his duties. This incident has shocked the entire nation and has shaken the
confidence of thousands of aspiring officers. He submitted that Accused
No. 1 Pawan Kumar @ Monu Mittal had developed grudge against the deceased
because he inspected the petrol pump run by him on 13.9.2005 and pointed
out certain irregularities, and on his intimation to IOC (Ext. Ka-34), the
sales and supplies of the pump were suspended. The supplies were, however,
restored only after payment of fine on 19th October, 2005. The deceased
again visited the petrol pump of the accused on 19th November, 2005 for
inspection and thereafter he was not seen alive.
20. The learned AAG, on behalf of the prosecution, submitted that the
incriminating articles including empty cartridges (Ext. 13) fired from the
licensed pistol of Accused No. 1, blood stained earth (Ext. Ka 60)
recovered from the petrol pump of Accused No. 1 and on his pointing out,
the mobile instrument of the deceased was recovered from the forest (Ext.
Ka 21). The Ballistic Expert in his report clearly mentioned that the
bullets found in the body of the deceased were fired from the licensed
pistol of Accused No. 1. The irregularities committed by the petrol pump
were writ large inasmuch as certain important documents and other materials
which were necessarily required to be kept in the show room were not found,
when the police along with IOC official and official of Weights and
Measurements Department inspected. Moreover, some articles used for
tampering of the seals of the machines and tank were found.
21. Learned AAG contended that the involvement of accused Rakesh Anand
(Accused No.4) and Vivek Sharma (Accused No.7) has been proved beyond all
reasonable doubt as they were caught by patrolling police officials PW1-
Head Constable Ram Bhawan, PW2 - Constable Asha Ram while they were
carrying the dead body of the deceased in his car. This fact is
corroborated by the independent witness Dhanraj Sahni-PW3, the landlord of
the deceased. Accused No. 2 - Devesh Agnihotri's involvement is evident
from the confession of the co-accused, namely accused No.7 - Vivek Sharma
and accused No.4 - Rakesh Kumar Anand and also by accused No.8 - Rajesh
Verma, who confessed that his revolver was used by accused No. 2 - Devesh
Agnihotri for the commission of crime. After his arrest, he confessed to
the commission of the crime and also led to the recovery of four empty
cartridges shot from the revolver of accused No. 8 - Rajesh Verma. Also
accused No.2 - Devesh Agnihotri along with accused No.4 - Rakesh Kumar
Anand were earlier charge sheeted for an offence u/s 307 IPC in 1998 which
is sufficient to establish their nexus. Accused No.5 - Lalla Giri's
involvement came to light from the confession made by accused No.7 - Vivek
Sharma (A-7) and accused No.4 - Rakesh Kumar Anand, at whose instance
accused No.5 - Lalla Giri was arrested on 22.11.2005, from the Railway
Station while he was trying to abscond. Accused No.5 - Lalla Giri, led to
the recovery of three cartridges from behind the petrol pump and three more
from the tank of the petrol pump. This clearly explains that accused No.5 -
Lalla Giri, has played an active role in the conspiracy in and commission
of the crime. Accused No.8 - Rajesh Verma was arrested along with Accused
No. 1 - Pawan Kumar and other accused when he was taking them in his car on
22.11.2005 and a revolver with two live and four missing cartridges were
recovered from his possession. Those four cartridges were recovered at the
instance of accused No.2 - Devesh Agnihotri. Thus, in the light of
confessional statements of the accused and the recoveries made at their
instance, their involvement in the crime is established by the prosecution
beyond all reasonable doubt. Therefore, no interference is warranted with
the concurrent findings of fact arrived at by the Trial Court as well as
the High Court, upon appreciation of entire evidence on record.
22. Learned AAG, placing reliance on Dalbir Kaur v. State of Punjab
(1976) 4 SCC 158 and Shivnarayan Laxminarayan Joshi v. State of
Maharashtra (1980) 2 SCC 465 finally submitted that when the cumulative
effect of the evidence against the accused persons is sufficiently
convincing for the trial court as well as the High Court to have come to
the conclusion that the offence with which the accused were charged were
established against them beyond all reasonable doubt, unless there is
substantial question of law involved, this Court should refrain from
interfering with the concurrent findings of fact given by the Courts below.
23. We have heard learned counsel for the parties at length and carefully
perused the material on record.
24. The contention of the learned Additional Advocate General for the
State that in view of the concurrent findings on facts recorded by the
trial Court and confirmed by the High Court, this Court should not
interfere with such findings, unless there is substantial question of law
involved. Before dealing with the above contention, it is appropriate to
refer to the judgments in Dalbir Kaur v. State of Punjab (1976) 4 SCC 158
and Shivnarayan Laxminarayan Joshi v. State of Maharashtra (1980) 2 SCC
465, wherein this Court laid down the guidelines.
In Dalbir Kaur (supra) it was held as under:
"8. Thus the principles governing interference by this Court in a
criminal appeal by special leave may be summarised as follows:
(1) that this Court would not interfere with the concurrent finding of fact
based on pure appreciation of evidence even if it were to take a different
view on the evidence;
(2) that the Court will not normally enter into a reappraisement or review
of the evidence, unless the assessment of the High Court is vitiated by an
error of law or procedure or is based on error of record, misreading of
evidence or is inconsistent with the evidence, for instance, where the
ocular evidence is totally inconsistent with the medical evidence and so
on;
(3) that the Court would not enter into credibility of the evidence with a
view to substitute its own opinion for that of the High Court;
(4) that the Court would interfere where the High Court has arrived at a
finding of fact in disregard of a judicial process, principles of natural
justice or a fair hearing or has acted in violation of a mandatory
provision of law or procedure resulting in serious prejudice or injustice
to the accused;
(5) this Court might also interfere where on the proved facts wrong
inferences of law have been drawn or where the conclusions of the High
Court are manifestly perverse and based on no evidence.
It is very difficult to lay down a rule of universal application, but the
principles mentioned above and those adumbrated in the authorities of this
Court cited supra provide sufficient guidelines for this Court to decide
criminal appeals by special leave. Thus in a criminal appeal by special
leave, this Court at the hearing examines the evidence and the judgment of
the High Court with the limited purpose of determining whether or not the
High Court has followed the principles enunciated above. Where the Court
finds that the High Court has committed no violation of the various
principles laid down by this Court and has made a correct approach and has
not ignored or overlooked striking features in the evidence which demolish
the prosecution case, the findings of fact arrived at by the High Court on
an appreciation of the evidence in the circumstances of the case would not
be disturbed.
9. Much time, energy and expense could be saved if the principles
enunciated above are strictly adhered to by counsel for the parties and
they confine their arguments within the four corners of those principles
and they cooperate in this sound and subtle judicial method without
transgressing the limits imposed by the decisions of this Court on its
power to interfere with the concurrent findings of fact."
In Shivnarayan Laxminarayan Joshi (supra), it was held as under:
"...On a perusal of the record and judgment of the High Court we are
clearly of the opinion that these appeals are concluded by findings of
facts. It is well settled that this Court in special leave will not
interfere with concurrent findings of facts unless the findings are
vitiated by a grave error of law or by an error which leads to serious and
substantial miscarriage of justice. After a perusal of the judgment of the
courts below we find ourselves in complete agreement with the view taken by
the High Court and are unable to find any special circumstances which
require our interference with the order passed by the High Court."
Therefore, what has to be appreciated in these appeals is whether any
findings are vitiated by grave error of law or by an error which leads to
serious and substantial miscarriage of justice, warranting interference of
this Court.
25. Coming to the facts of this case, there are no direct
eye-witnesses to the incident. The entire case of the prosecution is based
on the circumstantial evidence. The FIR came to be registered, based on
the confessional statement of accused No.7 - Vivek Sharma and accused No.4
- Rakesh Kumar Anand, made to the Head Constable - Ram Bhawan Singh - PW1.
They confessed before P.W.1 about the commission of the crime and
involvement of the other accused, when he along with another police
constable intercepted the car, while they were transporting the dead body
of the deceased to dispose it of. Based on the confession statement made by
them about the commission of the crime and involvement of other accused,
the accused were arrested and recoveries were made at their instance. The
contention that is put forth on behalf of the appellants is that the
confession made to the police is not admissible in evidence, as per Section
25 of the Evidence Act. It is settled principle of law that statements
made by an accused before police official which amount to confession is
barred under Section 25 of the Indian Evidence Act. This prohibition is,
however, lifted to some extent by Section 27 which reads thus:
27. How much of information received from accused may be proved.-Provided
that, when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody
of a police officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered,
may be proved.
26. In the light of Section 27 of the Evidence Act, whatever information
given by the accused in consequence of which a fact is discovered only
would be admissible in the evidence, whether such information amounts to
confession or not. The basic idea embedded under Section 27 of the Evidence
Act is the doctrine of confirmation by subsequent events. The doctrine is
founded on the principle that if any fact is discovered in a search made on
the strength of any information obtained from a prisoner, such a discovery
is a guarantee [pic]that the information supplied by the prisoner is true.
The information might be confessional or non-inculpatory in nature, but if
it results in discovery of a fact it becomes a reliable information [See:
State of Maharashtra Vs. Damu, (2000) 6 SCC 269.
27. The "fact discovered" as envisaged under Section 27 of the Evidence
Act embraces the place from which the object was produced, the knowledge of
the accused as to it, but the information given must relate distinctly to
that effect.
28. In the present case, Accused Nos. 4 & 7 disclosed the names of their
co-accused at whose instance various incriminating materials including
pistols, cartridges, bullets, blood stained articles were recovered. Simply
denying their role without proper explanation as to the knowledge about
those incriminating material would justify the presumption drawn by the
Courts below to the involvement of the accused in the crime. The
confession given by the accused is not the basis for the courts below to
convict the accused, but it is only a source of information to put the
criminal law into motion. Hence, the accused cannot take shelter under
Section 25 of the Evidence Act.
29. The next contention of the appellants is that the prosecution could
not prove the motive of the accused for the commission of the offence. We
feel that the motive behind the brutal murder of the deceased as brought
forward by the prosecution is trustworthy in the light of material
available on record. Considering the evidence on record, there is no doubt
in our mind that the deceased-Manjunath had inspected M/S Mittal
Automobiles on 13.9.2005 and on finding irregularities, he had reported the
same to the IOC and at his instance, the sales and supplies to the Pump of
accused No.1 were suspended [Ex Ka-34]. The IOC thereafter issued a show
cause notice to the father of Accused No.1. In reply, his father had
admitted that the pump was being managed by his son Pawan Kumar Mittal
(Exts. 29 & 30). The record shows that accused No.1 was made to pay a fine
of Rs 50000/- vide DD No.083226, dated 17.10.2005 and another Rs 25000/-
vide DD no. 083227, dated 17.10.2005 [Exts. Ka 29-30]. Though, the sales
and supplies were resumed on
19-10-2005, the deceased had again inspected the pump on 19.11.2005, a day
before he was found dead. Suspecting that the deceased would again give
report to IOC alleging irregularities in the supplies, in which event, he
would either be called upon to pay fine or may render his licence
suspended, accused No.1 bore grudge and with the assistance of other
accused, murdered the deceased. The fact that on the fateful day, the
deceased visited the petrol bunk of accused No.1, where he was brutally
murdered, is evident from the evidence of PW 4 - Ashok Kumar Agarwal,
Manager of M/S Agrawal Brothers Petrol Pump, who in his evidence deposed
that the Accused No. 1 was inquiring about the location and movement of the
deceased prior to the alleged incident on 19th November, 2005. P.W.5 -
Anurag Agarwal of M/s. Agarwal Brothers and P.W.8 - Ramesh Chandra Pandey,
Manager of M/s. Alankar Hotel, also deposed that the deceased was in Gola
on the day of incident. P.W.5 also deposed that the deceased left for M/s.
Mittal Automobiles from his pump at 9.30 pm. P.W.17 - R.K. Justi, the
immediate senior officer of the deceased deposed that the deceased had gone
to M/s. Mittal Automobiles for inspection on 19.11.2005. He further deposed
that in his presence, three cartridges were recovered from the tank of M/s.
Mittal Automobiles. This evidence clearly shows that on the fateful day,
the deceased went to M/s. Mittal Automobiles, and thereafter, he was found
dead. Considering the fact that at the instance of the deceased, IOC
imposed fine on accused No.1 for the irregularities found in the
dispensation of fuel, which lead to his paying up fine, there is every
possibility of accused No.1 bearing grudge against the deceased, when the
deceased visited his bunk on 19.11.2005, suspecting that the deceased would
again inspect the bunk and report the irregularities, in which event he may
end up either paying fine or it will result in his licence being cancelled,
accused No.1 with the assistance of other accused, had conspired to do away
with the deceased, and accordingly killed him.
30. We are in full agreement with the Courts below that the accused
conspired to commit the offence of murder of the deceased. The nexus
between the accused to do away with the deceased, has been established by
the prosecution beyond all reasonable doubt. Accused No.1- Pawan Kumar @
Monu Mittal, being the owner/in-charge of pump where the incident took
place, is an interested party in the crime to do away with the deceased,
because at his instance, the supplies were suspended and only upon paying
fine, the supplies were restored. Accused No.4 - Rakesh Anand and Accused
No.7 - Vivek Sharma, were caught by P.W.1 - Head Constable and another
police constable, while they were trying to dispose of the dead body of the
deceased in his own car. They confessed about the involvement of accused
No.5 - Lalla Giri. Lalla Giri (A-5) is an ex-employee of Pawan Kumar (A-
1), and at his instance, three bullets were recovered from the petrol pump,
which proves his presence at the spot and the time of occurrence. Accused
no.2 - Devesh Agnihotri's involvement is ascertained by the fact that he
had led to the recovery of four cartridges from the house of maternal uncle
of Sanjay Awasthi. Devesh Agnihotri (A-2) was earlier tried for a case
under Section 307 IPC along with Accused no.4 - Rakesh Anand, which proves
his previous association with the conspirators, though cannot be a basis
for the conviction. At the instance of Accused No. 2 - Devesh Agnihotri,
Accused No.8 - Rajesh Verma was arrested with Accused No. 1 - Monu Mittal,
while he was taking him in his own car, which proves his association with
the main accused. At the time of his arrest, a revolver with two live
cartridges was recovered. A rifle (Ext. Ka-18) belonging to Accused No.1 -
Pawan Kumar @ Monu Mittal, was also recovered from the house of Accused
No.8 - Rajesh Verma. Thus the nexus between the accused as well as their
participation in the crime is well established beyond reasonable doubt and
we find nothing on record to suggest that the accused were unnecessarily
implicated by the police.
31. There is also no doubt in our mind as regards the place of incident.
An effort has been made by the learned counsel appearing for the accused to
raise doubts over the same on the ground that the number of bullets used in
the crime is not proportionate to the number of bullets hitting the
deceased. It came on record in the evidence of PW-5 - Anurag Agrawal of
M/s Aggarwal Brothers Petrol Pump that the deceased had informed him at
9.30 p.m. on 19.11.2005 that from there he was going to M/S Mittal
Automobiles, to take his measuring instruments which he had forgotten
there. The recovery of bullets from the tank of M/S Mittal Automobiles and
from behind their petrol pump along with blood stained cloth cumulatively
establish the place of incident to be M/S Mittal Automobiles. In every
case of gun firing, it is not required that each and every bullet should
hit the target. There may be attempts by the deceased or the victim to
save himself from the raining bullets, and in which case, the bullets may
not hit the target. Merely because all the bullets fired from the gun did
not hit the target and were not recovered from the scene of offence, is no
ground to conclude that the incident did not take place.
32. As regards the allegation of contradictions in the statements of
prosecution witnesses, we do not find any major contradictions which
require our attention and consideration. When a witness is examined at
length it is quite possible for him to make some discrepancies. No true
witness can possibly escape from making some discrepant details. But Courts
should bear in mind that it is only when discrepancies in the evidence of a
witness are so incompatible with the credibility of his version that the
Court is justified in jettisoning his evidence [See: Rammi Vs. State of
M.P., (1999) 8 SCC 649]. There is no doubt that when two views are
possible, the one which favours the accused should be taken and the accused
should be acquitted by giving the benefit of doubt. But in the instant
case, the evidence on record is trustworthy and consistent, and there is
only one view, which points to the guilt of the accused. Though the
learned counsel for the appellants sought to point out minor discrepancies
in the evidence of the witnesses, but in the light of the above judgment of
the court, we are of the considered opinion that such minor discrepancies
should not come in the way of the other strong circumstantial evidence,
cumulatively taken together, forms a complete chain of events, pointing
towards the guilt of the accused in the commission of the crime.
33. In cases where the direct evidence is scarce, the burden of proving
the case of prosecution is bestowed upon motive and circumstantial
evidence. It is the chain of events that acquires prime importance in such
cases. Before analysing factual aspects it may be stated that for a
crime to be proved it is not necessary that the crime must be seen to have
been committed and must, in all circumstances be proved by direct ocular
evidence by examining before the court those persons who had seen its
commission. The offence can be proved by circumstantial evidence also. The
principal fact or factum probandum may be proved indirectly by means of
certain inferences drawn from factum probans, that is, the evidentiary
facts. To put it differently, circumstantial evidence is not direct to the
point in issue but consists of evidence of various other facts which are so
closely associated with the fact in issue that taken together they form a
chain of circumstances from which the existence of the principal fact can
be legally inferred or presumed [See: Bodhraj Vs. State of J&K, (2002) 8
SCC 45]. In the case on hand, the evidence adduced by the prosecution as
discussed above, clearly proves the chain of events connecting the accused
to the guilt of the commission of the offence. The entire evidence brought
on record by the prosecution, is not only convincing, but is also
trustworthy. Even if the confession of accused Nos. 4 and 7 made before PW
1 and PW 2, which is barred by Section 25 of the Evidence Act, is not taken
into account, the other evidence on record adduced by the prosecution, is
sufficient to hold the accused guilty of the offence.
34. This Court has been consistently taking the view that where a case
rests squarely on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are found
to be incompatible with the innocence of the accused or the guilt of any
other person. In the present case, on scrutiny of evidence on record, we
are convinced that the prosecution had established beyond reasonable doubt
the complete chain of events which points at the guilt of the accused.
35. Thus, in the light of above circumstances coupled with the complete
chain of events, this Court has no manner of doubt to hold that the
prosecution has succeeded in proving its case against the accused beyond
all reasonable doubt.
36. Taking the entire case in its totality, we do not find any merit in
these appeals requiring our interference. Resultantly, the appeals fail and
are dismissed.
......................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
......................................................J.
(N.V. RAMANA)
NEW DELHI
MARCH 11, 2015
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 2194 OF 2011
Pawan Kumar @ Monu Mittal ... APPELLANT
Vs.
State of Uttar Pradesh & Anr. ... RESPONDENTS
WITH
Criminal Appeal Nos. 2195-2196 OF 2011
Rakesh Anand and Anr. ... APPELLANTS
Vs.
State of Uttar Pradesh & Anr. ... RESPONDENTS
Criminal Appeal No. 2198 OF 2011
Shiv Kesh Giri @ Lalla ... APPELLANT
Vs.
State of Uttar Pradesh ... RESPONDENT
Criminal Appeal No. 2199/2011
Devesh Agnihotri ... APPELLANT
Vs.
State of Uttar Pradesh ... RESPONDENT
Criminal Appeal No. 2200/2011
Rajesh Verma ... APPELLANT
Vs.
State of Uttar Pradesh ... RESPONDENT
JUDGMENT
N.V. RAMANA, J.
These appeals are directed against a common impugned judgment dated 11th
February, 2009 of the High court of Allahabad, Lucknow Bench, by which the
appeals of the appellants herein who are accused of murdering one
Manjunath, were dismissed.
2. Material facts of the case as per prosecution are that the father of
appellant Monu Mittal (Accused No. 1) was the owner of a petrol pump namely
M/s Mittal Automobiles situated at Gola, District Lakhimpur Kheri, Uttar
Pradesh. The deceased Manjunath was working as a Sales Officer with the
Indian Oil Corporation (IOC) at Gola. On 13.9.2005, the deceased inspected
the petrol pump of Accused No. 1 and on finding some irregularities, the
sales and supplies of the petrol pump were suspended by the IOC at his
instance. However, the same were restored on 19th October, 2005 after the
payment of fine of Rs.75,000/- by the owner of the petrol pump. Again on
19th November, 2005, the deceased, being suspicious of malpractices still
being carried on by Accused No. 1, inspected the said petrol pump.
3. On 20.11.2005, when the Head Constable (Ram Bhawan Singh) of P.S.
Mahaoli, District Sitapur, along with Constable Asha Ram (PW2) and Driver
Braj Kishore was on patrol duty on the National Highway, at about 8.00 am,
one Maruti Car bearing No. UP 51 E 5176 was coming from the direction of
Maigalganj and upon seeing the police jeep, the Maruti Car suddenly turned
back and tried to drive away from that place. On suspicion, the Maruti Car
was chased and intercepted at about 8.30 am near Green Gold Dhaba. One
Vivek Sharma (Appellant - Accused No. 7) was driving the car accompanied by
another appellant Rakesh Kumar Anand (Appellant-Accused No.4) who was
sitting on the back seat besides a blood stained dead body of S. Manjunath
(deceased). On interrogation, both accused Nos. 4 & 7 confessed that the
deceased was shot dead by Pawan Kumar alias Monu Mittal (Accused No.1),
Devesh Agnihotri (Accused No. 2), Sanjay Awasthi (Accused No.3), Lala Giri
(Accused No.5), Harish Mishra (Accused No.6) at M/S Mittal Automobiles and
they were carrying the dead body of the deceased in his car, to dispose of
the same at an unknown place. Both the accused Nos. 4 & 7 were taken into
custody and a recovery memo (Ext. Ka-1) was prepared and a case against all
the accused under Sections 147,148,149,302 and Section 201 read with
Section 34, IPC, was registered on 20.11.2005.
4. Mr. P.N. Saxena, Sub-Inspector took up the investigation and in the
presence of Dhan Raj Sahani (PW 3, landlord of the deceased) conducted
inquest. He collected blood stained seat covers and door mats (Ext. Ka-9)
from the Maruti Car besides several other belongings of the deceased,
prepared site plan (Ext. Ka-8) and sent the dead body for post mortem.
Thereafter, he transferred the investigation to P.S. Gola, and Parmesh
Shukla, SHO(PW21) who took up further investigation, arrested Shivkesh Giri
@ Lala Giri (Accused No. 5) on 22.11.2005. He also recovered a wet blood
stained cloth from behind the Petrol Pump which was allegedly used in
cleaning the murder spot at the instance of Accused no 5. Three cartridges
of 32 bore (Ext. Ka-16) were also recovered from behind the Petrol Pump on
his pointing. Based on the confession of Lala Giri (Accused No. 5), he
arrested the other accused Pawan Kumar, Sanjay Awasthi, Rajesh Verma and
Harish Mishra at 6.50 p.m. near railway crossing in a car bearing number UP
31 F4629. A revolver was recovered from accused Rajesh Verma, owner of the
car and a Pistol was recovered from accused Pawan Kumar (Ext Ka-17). On
23.11.2005 at 8:30 am, the IO recovered the car of accused Pawan Kumar, his
blood stained pant from Punerbhoo forest, Kheri. The IO also recovered
three empty cartridges from the diesel tank of the Petrol Pump on
24.11.2005 at 9:30 am on pointing of Accused No. 1 Monu Mittal. Accused
No.2 - Devesh Agnihotri was also arrested on the same day at 6:00 pm by TN
Tripathi, Sub-Inspector (PW 19) from Bheera and at his instance, four empty
cartridges (Ext. Ka-20) fired from the revolver of accused No. 8 - Rajesh
Verma were recovered from the house of one Jitendra Mishra uncle of Sanjay
Awasthi (A-3).
5. After investigation, the IO submitted charge sheet, and the case was
committed for trial. The trial court framed charges against all the accused
u/s 147,148, 302 r/w 149, 201 and 120 B, IPC. Additional charges u/s 404
and 411 of IPC, Section 30 of the Arms Act were framed against accused No.
1 - Pawan Kumar, charges u/s 212 IPC and Sections 25/30 of the Arms Act
were framed against accused No.8 - Rajesh Verma. Also charges under
Section 411, IPC were framed against accused No.7 - Vivek Sharma and
Accused No. 4 - Rakesh Kumar Anand.
6. The Trial Court convicted and sentenced the accused No.1 - Pawan
Kumar @ Monu Mittal to death for offences u/s 302 r/w 149, IPC and to pay a
fine of Rs 10,000/-, in default to undergo simple imprisonment (SI) for one
year. He was also sentenced to 2 years RI and to pay a fine of Rs. 5000/-,
in default 3 months SI for the offence u/s 404, IPC and 6 months
imprisonment u/s 30 of the Arms Act, 2 years RI and to pay a fine of Rs
5000/- u/s 404, IPC and in default to undergo 3 months S.I. The other
accused, namely accused No.2 - Devesh Agnihotri, accused No.3 - Sanjay
Awasthi, accused No. 4 - Rakesh Kumar Anand, accused No. 5 - Shivkesh Giri
@ Lalla Giri, accused No. 6 - Harish Mishra, accused No. 7 - Vivek Sharma
and accused No. 8 - Rajesh Verma were also convicted u/s 302 r/w Section
149, IPC and sentenced to suffer life imprisonment. They were further
sentenced to suffer one year RI u/s 148, 5 years RI u/s 201, IPC, 5 years
RI u/s 120 B IPC. Accused No.8 - Rajesh Verma was also convicted u/s 212,
IPC and sentenced to 3 years RI and to pay a fine of Rs 5,000/-, in default
to undergo 6 months SI u/s 25 of the Arms Act and sentenced to 1 year RI
and to pay a fine of Rs 1,000/-, in default to suffer SI for 3 months and 6
months RI u/s 30 of the Arms Act. Accused Rakesh Anand, Vivek Sharma and
Pawan Kumar were also sentenced to 2 years RI u/s 411 IPC. All the
sentences were, however, directed to run concurrently.
7. Aggrieved thereby, the accused-appellants preferred appeals before
the High Court. The High Court by the impugned judgment dated 11.12.2009
partly allowed the appeal of Pawan Kumar (Accused No. 1) and modified his
death sentence to life imprisonment u/s 302 r/w 149 but upheld the
convictions for the other offences they are charged with. The appeals of
the accused Devesh Agnihotri (A-2), Rakesh Anand (A-4), Shivkesh Giri
@ Lalla Giri (A-5), Vivek Sharma (A-7) and Rajesh Verma (A-8) were,
however, dismissed by the High Court. The appeals of other co-accused
Harish Mishra (A-6) and Sanjay Awasthi (A-3) were allowed giving them
benefit of doubt and acquitted them of all charges. Against the said
judgment passed by the High Court, Accused Nos. 1, 2, 4, 5, 7 & 8 filed the
present appeals before this Court.
8. Learned Counsel appearing for the appellants argued that the Courts
below have committed a grave error in convicting and sentencing the
appellants on the very evidence by which it acquitted the co-accused Harish
Mishra and Sanjay Awasthi of all the charges. The High Court relied solely
on the confessional statements of the accused/appellants made to the police
which is inadmissible in evidence under Section 25 of the Indian Evidence
Act. Taking support from a decision of this Court in Aghnoo Nagesia Vs.
State of Bihar, (1966) 1 SCR 134, learned counsel submitted that "a
confession made to a police officer under any circumstances is not
admissible in evidence against the accused. It covers a confession made
when the accused was free and not in police custody, as also a confession
made before any investigation has begun". Unfortunately, the High Court
has not considered Section 25 of the Evidence Act in its true spirit and
erred in holding that the confessional statement of accused given to the
police officer is admissible, because the same was not made to the
Investigating Officer but to some other police officer. Taking support from
a decision of this Court in State of Punjab Vs. Barkat Ram, (1962) 3 SCR
338, learned counsel submitted that the confession made to any member of
the police, of whatever rank and at whatever time, is inadmissible in
evidence as per Section 25 of the Evidence Act.
9. The learned counsel further submitted that the impugned judgement is
based only on conjectures and surmises and not on any cogent and reliable
evidence. There were no eyewitness to the occurrence and the case of
prosecution is based solely on the circumstantial evidence. The prosecution
has completely failed to prove the chain of events linking the accused
appellants to the commission of offence. There is no direct witness or
incriminating evidence against the appellants to establish the motive of
the accused to kill the deceased. The courts below have ignored the fact
that neither the Ballistic Report (Ext. 61) nor the Serological Reports
(Exts. Ka-60, 62, 62A) support the case of prosecution. In the ballistic
report, no special characteristics were found and no conclusive opinion was
given that the shots were fired from the gun of the accused. The Ballistic
Expert (Ext. Ka-61) clearly mentioned in the report that "the individual
characteristics are absent" for giving a definite opinion. In the absence
of a firm expert opinion, it cannot be conclusively held that the bullets
recovered from near and around the scene of offence were fired from the gun
of accused No .1 Pawan Kumar.
10. It is the contention of the learned counsel that according to the
Serological Report (Ext. Ka-60), no blood was found on the cloth recovered
from behind the petrol pump which was allegedly used to clean the site of
crime as also the pant of the accused No. 1 (Exts. Ka-62 & 62A) Pawan Kumar
allegedly recovered from his car. Another crucial loophole that is evident
from the prosecution story is that the body of the deceased was stained
with blood, but no blood stains were reported to be found on the clothes of
accused No. 7 - Vivek Sharma and accused No. 4 - Rakesh Kumar Anand who
were allegedly carrying the dead body of the deceased in his car to dispose
of the same. Also another dubious circumstance sought to be proved by the
prosecution is that when the car in which accused No.7 - Vivek Sharma and
accused No.4 - Rakesh Kumar Anand, were carrying the dead body of the
deceased was intercepted, P.W.3 - Dhanraj Sahni, landlord of the deceased
appeared from the crowd and recognized the dead body. Learned counsel
submitted that the landlord was living far away from the site where the
accused were apprehended, and no reason is given by the prosecution for his
presence at the spot where the car carrying the dead body of the deceased
was intercepted. This casts a doubt on the prosecution story about the
presence of the landlord at that point of time.
11. The learned counsel strenuously contends that another aspect that
probablises the factum of manipulation of the case by the prosecution to
implicate the appellants into the crime is that according to the
prosecution case, in all, eleven bullets were fired at the deceased, but
according to the post-mortem report (Ext. Ka-14), the deceased had suffered
six firearm injuries, out of which there were two exit wounds on his body
and four bullets were recovered from his body. There was no explanation
coming forward from the prosecution as regards not finding the other
bullets. It is not possible to imagine that other seven bullets did not hit
anywhere at the place of incident. This fact clearly establishes that the
prosecution manipulated the investigation. The prosecution thus totally
failed to prove the place of occurrence and the recoveries alleged to have
been made from the scene of offence were planted for the purpose of the
case.
12. Learned counsel further submitted that the Courts below have utterly
failed to take into account the important material contradictions before
convicting the appellants. PW 21 - Parmesh Kumar Shukla, SHO was said to
have taken control of the case on the evening of 20th November, 2005 and he
came to know about the place of incident only on 21st November, 2005 seems
improbable. The same stood fortified by the fact that as per Rojanama (GD
No. 38 dated 21-11-2005) he had visited the alleged place of occurrence
i.e. petrol pump on 21.11.2005. Whereas in his deposition before the Trial
Court he denied to have gone there on 21-11-2005 and he further stated that
he went to the place of occurrence for the first time only on 22-11-2005 in
the afternoon. It is, therefore, clear that the investigations are tainted,
vital and material portion has been deliberately concealed. The deposition
of PW 21 visiting the place of occurrence on 22-11-2005 ought to have been
rejected by the Courts below. Once a material portion of the evidence of
I.O. is found to be false, no reliance could be placed on his statement.
Such material contradictions would not only cast a doubt on his evidence,
but discredits the entire case of prosecution. Another discrepancy in the
prosecution story pointed out by the learned counsel is that as per
prosecution, accused No.5- Lalla Giri was arrested by PW 21 on 22-11-
2005 from Railway Station, whereas on 21-11-2005 at about 3.15 p.m. mother
of Lalla Giri (A-5) had sent a telegram (Ext. Kha-2) to the DIG, Lucknow
complaining therein that her son has been wrongfully confined by the PS
Gola since 20-11-2005. This uncontroverted fact belies his arrest and thus
the recoveries allegedly made at his instance cannot be relied upon.
13. Learned counsel further contended that the Courts below have wrongly
attributed the motive for the crime inasmuch as M/S Mittal Automobiles was
sealed by the deceased owing to alleged malpractices. It is admitted fact
that apart from Mittal Automobiles one more petrol pump L.D Service Station
was inspected by the deceased on the same day and samples taken were found
to be adulterated, but no investigation was carried out in this regard. In
fact, no adulteration was detected from the samples collected from M/S
Mittal Automobiles. As a matter of fact, Weights and Measurement
Department conducted test of HSD (1150 ltrs.) from June, 2005 to 13.9.2005.
Though the entries were made in the Daily Stock Register of M/S Mittal
Automobiles, no corresponding entry was made in the main stock register
which resulted in stock variation which led to the sealing of the petrol
pump. When M/S Mittal Automobiles clarified the same by reply dated 18-10-
2005, the petrol pump was restored. The fine of Rs.75,000/- was paid in
respect of technical defaults in order to ensure that the supply is
restored. Hence, the motive part advanced by the prosecution is not proved
and the Courts below have erred in not appreciating this fact.
14. Learned counsel appearing for Accused No. 2 - Devesh Agnihotri
submitted that the appellant was wrongly implicated in the crime. The
appellant has no previous association with the prime accused Monu Mittal.
The appellant-accused No. 2 was not even present at the scene of crime at
the relevant time as he was attending marriage of his brother in law in
District Etah which is far away from the place of occurrence. Moreover,
there is no incriminating evidence against accused No. 2.
15. On behalf of Accused No. 5-Lalla Giri it is specifically argued that
he has been wrongly convicted by the Trial Court merely because he was an
ex-employee of Pawan Kumar @ Monu Mittal (Accused No.1). Mere recovery of
empty cartridges at the instance of this appellant-accused is of no
consequence when there is no evidence linking his participation in the
crime. Moreover, the recovery of empty cartridges at the place of
occurrence itself is highly doubtful as they can easily be destroyed. In
support of the argument that in the absence of any link evidence, the
appellant cannot be convicted under Section 302, IPC learned counsel relied
on Mani Vs. State of Tamilnadu (2009) 17 SCC 273. Learned counsel further
argued that at the most the case against the appellant cannot be beyond
Section 201, IPC for which the maximum sentence is 10 years. The appellant
has already undergone about 9 years imprisonment.
16. Learned counsel appearing for Accused No.4- Rakesh Anand and Accused
No.7- Vivek Sharma submitted that the prosecution has failed to complete
the chain of events qua Accused Nos. 4 and 7 to bring home their
culpability. Both the courts below have gravely erred in holding that the
dead body of the deceased was recovered from the possession of these
appellants on 20.11.20005 at 8.00 am. As per prosecution, at the time of
their arrest, the dead body of the deceased was bleeding, but admittedly no
blood was found on their clothes. No weapon, driving licence, money etc.
were found from their possession. No relation between these two accused and
other accused has been proved. Moreover, there was no examination of any
independent witness to support the story of prosecution that the dead body
of the deceased was recovered from the possession of these two accused.
Allegedly, there was a mob of about 100 to 150 people at that point of
time, but no independent witness has been examined to prove the prosecution
story, and in the absence of any independent witness being examined, the
confession statement and consequent recovery, cannot be believed. Learned
counsel therefore submitted that it is in the interest of justice, the
appeals be allowed, as otherwise, the appellants would suffer irreparable
injustice, loss and injury.
17. Learned counsel appearing on behalf of Accused No. 8 -Rajesh Verma
argued that the appellant was merely an employee of an Urban Co- operative
Bank and had no previous enmity or motive to kill the deceased as he had no
interests in the business of Petrol Pump. His name neither figured in the
confessional statement of the accused nor in the F.I.R. According to the
prosecution, the licensed revolver of Accused No. 8 was recovered on 22-11-
2005, but it was not even sealed at the spot despite the I.O. having
specific knowledge about its use. There was no specific evidence to
establish the date, time and place of it being sealed. Only the oral
assertion of I.O. that the weapon was sealed a couple of days later by him,
shows the possibility of revolver or bullet being changed, thereby wrongly
implicating the accused in the crime. There was also no evidence of
conspiracy against this appellant nor was any evidence to establish the
intention, knowledge or prior meeting of the appellant with the other
accused to commit the crime. The I.O. in the cross examination admitted
that the appellant neither used his revolver nor was present at the time of
occurrence. There is also no absolute evidence of appellant giving his
revolver to the prime accused. The appellant was an active worker of a
political party and his political rivals being inimical towards him he was
falsely implicated, but the Courts below have failed to take into
consideration this aspect.
18. Learned counsel appearing for all the accused-appellants strongly
contended that the Courts below have committed grave error in convicting
and sentencing the accused. The impugned judgment is not based on the true
principles of law. It is not only gravely erroneous, but also against the
material available on record. The alleged circumstances do not form a
complete chain of events linking the accused to the commission of the
crime, and the incriminating circumstances having not been proved by the
prosecution, in accordance with law, the impugned judgment is, liable to be
set aside.
19. Mr. Gaurav Bhatia, learned Additional Advocate General appearing for
the State, on the other hand, supported the impugned judgment and submitted
that this is an unfortunate case where an Officer of the Indian Oil
Corporation was brutally murdered by the accused for honestly carrying out
his duties. This incident has shocked the entire nation and has shaken the
confidence of thousands of aspiring officers. He submitted that Accused
No. 1 Pawan Kumar @ Monu Mittal had developed grudge against the deceased
because he inspected the petrol pump run by him on 13.9.2005 and pointed
out certain irregularities, and on his intimation to IOC (Ext. Ka-34), the
sales and supplies of the pump were suspended. The supplies were, however,
restored only after payment of fine on 19th October, 2005. The deceased
again visited the petrol pump of the accused on 19th November, 2005 for
inspection and thereafter he was not seen alive.
20. The learned AAG, on behalf of the prosecution, submitted that the
incriminating articles including empty cartridges (Ext. 13) fired from the
licensed pistol of Accused No. 1, blood stained earth (Ext. Ka 60)
recovered from the petrol pump of Accused No. 1 and on his pointing out,
the mobile instrument of the deceased was recovered from the forest (Ext.
Ka 21). The Ballistic Expert in his report clearly mentioned that the
bullets found in the body of the deceased were fired from the licensed
pistol of Accused No. 1. The irregularities committed by the petrol pump
were writ large inasmuch as certain important documents and other materials
which were necessarily required to be kept in the show room were not found,
when the police along with IOC official and official of Weights and
Measurements Department inspected. Moreover, some articles used for
tampering of the seals of the machines and tank were found.
21. Learned AAG contended that the involvement of accused Rakesh Anand
(Accused No.4) and Vivek Sharma (Accused No.7) has been proved beyond all
reasonable doubt as they were caught by patrolling police officials PW1-
Head Constable Ram Bhawan, PW2 - Constable Asha Ram while they were
carrying the dead body of the deceased in his car. This fact is
corroborated by the independent witness Dhanraj Sahni-PW3, the landlord of
the deceased. Accused No. 2 - Devesh Agnihotri's involvement is evident
from the confession of the co-accused, namely accused No.7 - Vivek Sharma
and accused No.4 - Rakesh Kumar Anand and also by accused No.8 - Rajesh
Verma, who confessed that his revolver was used by accused No. 2 - Devesh
Agnihotri for the commission of crime. After his arrest, he confessed to
the commission of the crime and also led to the recovery of four empty
cartridges shot from the revolver of accused No. 8 - Rajesh Verma. Also
accused No.2 - Devesh Agnihotri along with accused No.4 - Rakesh Kumar
Anand were earlier charge sheeted for an offence u/s 307 IPC in 1998 which
is sufficient to establish their nexus. Accused No.5 - Lalla Giri's
involvement came to light from the confession made by accused No.7 - Vivek
Sharma (A-7) and accused No.4 - Rakesh Kumar Anand, at whose instance
accused No.5 - Lalla Giri was arrested on 22.11.2005, from the Railway
Station while he was trying to abscond. Accused No.5 - Lalla Giri, led to
the recovery of three cartridges from behind the petrol pump and three more
from the tank of the petrol pump. This clearly explains that accused No.5 -
Lalla Giri, has played an active role in the conspiracy in and commission
of the crime. Accused No.8 - Rajesh Verma was arrested along with Accused
No. 1 - Pawan Kumar and other accused when he was taking them in his car on
22.11.2005 and a revolver with two live and four missing cartridges were
recovered from his possession. Those four cartridges were recovered at the
instance of accused No.2 - Devesh Agnihotri. Thus, in the light of
confessional statements of the accused and the recoveries made at their
instance, their involvement in the crime is established by the prosecution
beyond all reasonable doubt. Therefore, no interference is warranted with
the concurrent findings of fact arrived at by the Trial Court as well as
the High Court, upon appreciation of entire evidence on record.
22. Learned AAG, placing reliance on Dalbir Kaur v. State of Punjab
(1976) 4 SCC 158 and Shivnarayan Laxminarayan Joshi v. State of
Maharashtra (1980) 2 SCC 465 finally submitted that when the cumulative
effect of the evidence against the accused persons is sufficiently
convincing for the trial court as well as the High Court to have come to
the conclusion that the offence with which the accused were charged were
established against them beyond all reasonable doubt, unless there is
substantial question of law involved, this Court should refrain from
interfering with the concurrent findings of fact given by the Courts below.
23. We have heard learned counsel for the parties at length and carefully
perused the material on record.
24. The contention of the learned Additional Advocate General for the
State that in view of the concurrent findings on facts recorded by the
trial Court and confirmed by the High Court, this Court should not
interfere with such findings, unless there is substantial question of law
involved. Before dealing with the above contention, it is appropriate to
refer to the judgments in Dalbir Kaur v. State of Punjab (1976) 4 SCC 158
and Shivnarayan Laxminarayan Joshi v. State of Maharashtra (1980) 2 SCC
465, wherein this Court laid down the guidelines.
In Dalbir Kaur (supra) it was held as under:
"8. Thus the principles governing interference by this Court in a
criminal appeal by special leave may be summarised as follows:
(1) that this Court would not interfere with the concurrent finding of fact
based on pure appreciation of evidence even if it were to take a different
view on the evidence;
(2) that the Court will not normally enter into a reappraisement or review
of the evidence, unless the assessment of the High Court is vitiated by an
error of law or procedure or is based on error of record, misreading of
evidence or is inconsistent with the evidence, for instance, where the
ocular evidence is totally inconsistent with the medical evidence and so
on;
(3) that the Court would not enter into credibility of the evidence with a
view to substitute its own opinion for that of the High Court;
(4) that the Court would interfere where the High Court has arrived at a
finding of fact in disregard of a judicial process, principles of natural
justice or a fair hearing or has acted in violation of a mandatory
provision of law or procedure resulting in serious prejudice or injustice
to the accused;
(5) this Court might also interfere where on the proved facts wrong
inferences of law have been drawn or where the conclusions of the High
Court are manifestly perverse and based on no evidence.
It is very difficult to lay down a rule of universal application, but the
principles mentioned above and those adumbrated in the authorities of this
Court cited supra provide sufficient guidelines for this Court to decide
criminal appeals by special leave. Thus in a criminal appeal by special
leave, this Court at the hearing examines the evidence and the judgment of
the High Court with the limited purpose of determining whether or not the
High Court has followed the principles enunciated above. Where the Court
finds that the High Court has committed no violation of the various
principles laid down by this Court and has made a correct approach and has
not ignored or overlooked striking features in the evidence which demolish
the prosecution case, the findings of fact arrived at by the High Court on
an appreciation of the evidence in the circumstances of the case would not
be disturbed.
9. Much time, energy and expense could be saved if the principles
enunciated above are strictly adhered to by counsel for the parties and
they confine their arguments within the four corners of those principles
and they cooperate in this sound and subtle judicial method without
transgressing the limits imposed by the decisions of this Court on its
power to interfere with the concurrent findings of fact."
In Shivnarayan Laxminarayan Joshi (supra), it was held as under:
"...On a perusal of the record and judgment of the High Court we are
clearly of the opinion that these appeals are concluded by findings of
facts. It is well settled that this Court in special leave will not
interfere with concurrent findings of facts unless the findings are
vitiated by a grave error of law or by an error which leads to serious and
substantial miscarriage of justice. After a perusal of the judgment of the
courts below we find ourselves in complete agreement with the view taken by
the High Court and are unable to find any special circumstances which
require our interference with the order passed by the High Court."
Therefore, what has to be appreciated in these appeals is whether any
findings are vitiated by grave error of law or by an error which leads to
serious and substantial miscarriage of justice, warranting interference of
this Court.
25. Coming to the facts of this case, there are no direct
eye-witnesses to the incident. The entire case of the prosecution is based
on the circumstantial evidence. The FIR came to be registered, based on
the confessional statement of accused No.7 - Vivek Sharma and accused No.4
- Rakesh Kumar Anand, made to the Head Constable - Ram Bhawan Singh - PW1.
They confessed before P.W.1 about the commission of the crime and
involvement of the other accused, when he along with another police
constable intercepted the car, while they were transporting the dead body
of the deceased to dispose it of. Based on the confession statement made by
them about the commission of the crime and involvement of other accused,
the accused were arrested and recoveries were made at their instance. The
contention that is put forth on behalf of the appellants is that the
confession made to the police is not admissible in evidence, as per Section
25 of the Evidence Act. It is settled principle of law that statements
made by an accused before police official which amount to confession is
barred under Section 25 of the Indian Evidence Act. This prohibition is,
however, lifted to some extent by Section 27 which reads thus:
27. How much of information received from accused may be proved.-Provided
that, when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody
of a police officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered,
may be proved.
26. In the light of Section 27 of the Evidence Act, whatever information
given by the accused in consequence of which a fact is discovered only
would be admissible in the evidence, whether such information amounts to
confession or not. The basic idea embedded under Section 27 of the Evidence
Act is the doctrine of confirmation by subsequent events. The doctrine is
founded on the principle that if any fact is discovered in a search made on
the strength of any information obtained from a prisoner, such a discovery
is a guarantee [pic]that the information supplied by the prisoner is true.
The information might be confessional or non-inculpatory in nature, but if
it results in discovery of a fact it becomes a reliable information [See:
State of Maharashtra Vs. Damu, (2000) 6 SCC 269.
27. The "fact discovered" as envisaged under Section 27 of the Evidence
Act embraces the place from which the object was produced, the knowledge of
the accused as to it, but the information given must relate distinctly to
that effect.
28. In the present case, Accused Nos. 4 & 7 disclosed the names of their
co-accused at whose instance various incriminating materials including
pistols, cartridges, bullets, blood stained articles were recovered. Simply
denying their role without proper explanation as to the knowledge about
those incriminating material would justify the presumption drawn by the
Courts below to the involvement of the accused in the crime. The
confession given by the accused is not the basis for the courts below to
convict the accused, but it is only a source of information to put the
criminal law into motion. Hence, the accused cannot take shelter under
Section 25 of the Evidence Act.
29. The next contention of the appellants is that the prosecution could
not prove the motive of the accused for the commission of the offence. We
feel that the motive behind the brutal murder of the deceased as brought
forward by the prosecution is trustworthy in the light of material
available on record. Considering the evidence on record, there is no doubt
in our mind that the deceased-Manjunath had inspected M/S Mittal
Automobiles on 13.9.2005 and on finding irregularities, he had reported the
same to the IOC and at his instance, the sales and supplies to the Pump of
accused No.1 were suspended [Ex Ka-34]. The IOC thereafter issued a show
cause notice to the father of Accused No.1. In reply, his father had
admitted that the pump was being managed by his son Pawan Kumar Mittal
(Exts. 29 & 30). The record shows that accused No.1 was made to pay a fine
of Rs 50000/- vide DD No.083226, dated 17.10.2005 and another Rs 25000/-
vide DD no. 083227, dated 17.10.2005 [Exts. Ka 29-30]. Though, the sales
and supplies were resumed on
19-10-2005, the deceased had again inspected the pump on 19.11.2005, a day
before he was found dead. Suspecting that the deceased would again give
report to IOC alleging irregularities in the supplies, in which event, he
would either be called upon to pay fine or may render his licence
suspended, accused No.1 bore grudge and with the assistance of other
accused, murdered the deceased. The fact that on the fateful day, the
deceased visited the petrol bunk of accused No.1, where he was brutally
murdered, is evident from the evidence of PW 4 - Ashok Kumar Agarwal,
Manager of M/S Agrawal Brothers Petrol Pump, who in his evidence deposed
that the Accused No. 1 was inquiring about the location and movement of the
deceased prior to the alleged incident on 19th November, 2005. P.W.5 -
Anurag Agarwal of M/s. Agarwal Brothers and P.W.8 - Ramesh Chandra Pandey,
Manager of M/s. Alankar Hotel, also deposed that the deceased was in Gola
on the day of incident. P.W.5 also deposed that the deceased left for M/s.
Mittal Automobiles from his pump at 9.30 pm. P.W.17 - R.K. Justi, the
immediate senior officer of the deceased deposed that the deceased had gone
to M/s. Mittal Automobiles for inspection on 19.11.2005. He further deposed
that in his presence, three cartridges were recovered from the tank of M/s.
Mittal Automobiles. This evidence clearly shows that on the fateful day,
the deceased went to M/s. Mittal Automobiles, and thereafter, he was found
dead. Considering the fact that at the instance of the deceased, IOC
imposed fine on accused No.1 for the irregularities found in the
dispensation of fuel, which lead to his paying up fine, there is every
possibility of accused No.1 bearing grudge against the deceased, when the
deceased visited his bunk on 19.11.2005, suspecting that the deceased would
again inspect the bunk and report the irregularities, in which event he may
end up either paying fine or it will result in his licence being cancelled,
accused No.1 with the assistance of other accused, had conspired to do away
with the deceased, and accordingly killed him.
30. We are in full agreement with the Courts below that the accused
conspired to commit the offence of murder of the deceased. The nexus
between the accused to do away with the deceased, has been established by
the prosecution beyond all reasonable doubt. Accused No.1- Pawan Kumar @
Monu Mittal, being the owner/in-charge of pump where the incident took
place, is an interested party in the crime to do away with the deceased,
because at his instance, the supplies were suspended and only upon paying
fine, the supplies were restored. Accused No.4 - Rakesh Anand and Accused
No.7 - Vivek Sharma, were caught by P.W.1 - Head Constable and another
police constable, while they were trying to dispose of the dead body of the
deceased in his own car. They confessed about the involvement of accused
No.5 - Lalla Giri. Lalla Giri (A-5) is an ex-employee of Pawan Kumar (A-
1), and at his instance, three bullets were recovered from the petrol pump,
which proves his presence at the spot and the time of occurrence. Accused
no.2 - Devesh Agnihotri's involvement is ascertained by the fact that he
had led to the recovery of four cartridges from the house of maternal uncle
of Sanjay Awasthi. Devesh Agnihotri (A-2) was earlier tried for a case
under Section 307 IPC along with Accused no.4 - Rakesh Anand, which proves
his previous association with the conspirators, though cannot be a basis
for the conviction. At the instance of Accused No. 2 - Devesh Agnihotri,
Accused No.8 - Rajesh Verma was arrested with Accused No. 1 - Monu Mittal,
while he was taking him in his own car, which proves his association with
the main accused. At the time of his arrest, a revolver with two live
cartridges was recovered. A rifle (Ext. Ka-18) belonging to Accused No.1 -
Pawan Kumar @ Monu Mittal, was also recovered from the house of Accused
No.8 - Rajesh Verma. Thus the nexus between the accused as well as their
participation in the crime is well established beyond reasonable doubt and
we find nothing on record to suggest that the accused were unnecessarily
implicated by the police.
31. There is also no doubt in our mind as regards the place of incident.
An effort has been made by the learned counsel appearing for the accused to
raise doubts over the same on the ground that the number of bullets used in
the crime is not proportionate to the number of bullets hitting the
deceased. It came on record in the evidence of PW-5 - Anurag Agrawal of
M/s Aggarwal Brothers Petrol Pump that the deceased had informed him at
9.30 p.m. on 19.11.2005 that from there he was going to M/S Mittal
Automobiles, to take his measuring instruments which he had forgotten
there. The recovery of bullets from the tank of M/S Mittal Automobiles and
from behind their petrol pump along with blood stained cloth cumulatively
establish the place of incident to be M/S Mittal Automobiles. In every
case of gun firing, it is not required that each and every bullet should
hit the target. There may be attempts by the deceased or the victim to
save himself from the raining bullets, and in which case, the bullets may
not hit the target. Merely because all the bullets fired from the gun did
not hit the target and were not recovered from the scene of offence, is no
ground to conclude that the incident did not take place.
32. As regards the allegation of contradictions in the statements of
prosecution witnesses, we do not find any major contradictions which
require our attention and consideration. When a witness is examined at
length it is quite possible for him to make some discrepancies. No true
witness can possibly escape from making some discrepant details. But Courts
should bear in mind that it is only when discrepancies in the evidence of a
witness are so incompatible with the credibility of his version that the
Court is justified in jettisoning his evidence [See: Rammi Vs. State of
M.P., (1999) 8 SCC 649]. There is no doubt that when two views are
possible, the one which favours the accused should be taken and the accused
should be acquitted by giving the benefit of doubt. But in the instant
case, the evidence on record is trustworthy and consistent, and there is
only one view, which points to the guilt of the accused. Though the
learned counsel for the appellants sought to point out minor discrepancies
in the evidence of the witnesses, but in the light of the above judgment of
the court, we are of the considered opinion that such minor discrepancies
should not come in the way of the other strong circumstantial evidence,
cumulatively taken together, forms a complete chain of events, pointing
towards the guilt of the accused in the commission of the crime.
33. In cases where the direct evidence is scarce, the burden of proving
the case of prosecution is bestowed upon motive and circumstantial
evidence. It is the chain of events that acquires prime importance in such
cases. Before analysing factual aspects it may be stated that for a
crime to be proved it is not necessary that the crime must be seen to have
been committed and must, in all circumstances be proved by direct ocular
evidence by examining before the court those persons who had seen its
commission. The offence can be proved by circumstantial evidence also. The
principal fact or factum probandum may be proved indirectly by means of
certain inferences drawn from factum probans, that is, the evidentiary
facts. To put it differently, circumstantial evidence is not direct to the
point in issue but consists of evidence of various other facts which are so
closely associated with the fact in issue that taken together they form a
chain of circumstances from which the existence of the principal fact can
be legally inferred or presumed [See: Bodhraj Vs. State of J&K, (2002) 8
SCC 45]. In the case on hand, the evidence adduced by the prosecution as
discussed above, clearly proves the chain of events connecting the accused
to the guilt of the commission of the offence. The entire evidence brought
on record by the prosecution, is not only convincing, but is also
trustworthy. Even if the confession of accused Nos. 4 and 7 made before PW
1 and PW 2, which is barred by Section 25 of the Evidence Act, is not taken
into account, the other evidence on record adduced by the prosecution, is
sufficient to hold the accused guilty of the offence.
34. This Court has been consistently taking the view that where a case
rests squarely on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are found
to be incompatible with the innocence of the accused or the guilt of any
other person. In the present case, on scrutiny of evidence on record, we
are convinced that the prosecution had established beyond reasonable doubt
the complete chain of events which points at the guilt of the accused.
35. Thus, in the light of above circumstances coupled with the complete
chain of events, this Court has no manner of doubt to hold that the
prosecution has succeeded in proving its case against the accused beyond
all reasonable doubt.
36. Taking the entire case in its totality, we do not find any merit in
these appeals requiring our interference. Resultantly, the appeals fail and
are dismissed.
......................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
......................................................J.
(N.V. RAMANA)
NEW DELHI
MARCH 11, 2015
