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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

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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 19 th 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.

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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.

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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

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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  

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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

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(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

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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

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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

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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.

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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

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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

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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

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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 ½ 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

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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

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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

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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

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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

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(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

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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:

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“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

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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.”

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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

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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  

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

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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

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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.

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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.

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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

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(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

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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

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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

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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.

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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