Pawan Kumar @ Monu Mittal vs State Of U.P. & Anr

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.

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.

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.

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

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.