Allahabad High Court
Brijesh Kumar vs State Of U.P. on 29 August, 2018
Equivalent citations: AIRONLINE 2018 ALL 3407
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment reserved on : 30.07.2018
Judgment delivered on : 29.08.2018
Case :- JAIL APPEAL No. - 3220 of 2011
Appellant :- Brijesh Kumar
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail, Ms. Anjum Haq (A.C.)
Counsel for Respondent :- A.G.A.
Hon'ble Sudhir Agarwal,J.
Hon'ble Om Prakash-VII,J.
(By Om Prakash-VII, J.)
1. This Jail appeal has been preferred by appellant Brijesh Kumar against judgment and order dated 29.04.2011 / 3.5.2011 passed by Additional Sessions Judge, Court No.11, Aligarh in Sessions Trial No.618 of 2008 whereby accused appellant Brijesh Kumar was convicted for offence under sections 302, 201, 394, 411, 419, 468, 471 IPC and sentenced for offence under section 302 IPC to imprisonment for life and a fine of Rs.10,000/-. Appellant was also directed to undergo six months additional R.I. in default of payment of fine. He was also sentenced for the offence under section 201 IPC to undergo 5 years R.I. and a fine of Rs.5000/- and in default of payment of fine to undergo three months additional R.I. For offence under section 394 IPC he was sentenced to 7 years R.I. and a fine of Rs.7000/- and in default of payment of fine, four months additional R.I. was also ordered. For offence under section 411 IPC, he was sentenced to 2 years R.I. and a fine of Rs.3000/- and in default of payment of fine, three months additional R.I. For offence under section 419 IPC, he was sentenced to 2 years R.I. and a fine of Rs.2000/- and in default of payment of fine, two months additional R.I. For offence under section 468 IPC, appellant was sentenced to 4 years R.I. and a fine of Rs.4000/- and in default of payment of fine, to undergo four months additional R.I. For offence under section 471 IPC, he was sentenced to 1 year R.I. and a fine of Rs.1000/- and in default of payment of fine, one month additional R.I. All the sentences were directed to run concurrently.
2. Facts of the case in brief are as follows :
On 28.08.2007, an information was sent by Railway Department to S.H.O., Hathras mentioning therein that Keyman Chandrapal has informed through memo Ex.Ka.1 in writing that one unknown dead body is lying near 1298 / 02 - 1298 / 04, Bhopatpur. It appears that on information given by Railway Department, local police reached at the place of occurrence entering information in the G.D. and took blood stained and plain soil from the place of occurrence and keeping same in sealed boxes prepared sample seal and also fard (Ex.Ka.7).
3. Dead body was kept in a sealed cloth and a sample seal was also prepared. Inquest report prepared in the matter is Ex.Ka.-2. In the process, relevant papers were also prepared i.e. Form No.13 (Ex.Ka.3), letter to C.M.O (Ex.Ka.4), photo lash (Ex.Ka.5), letter for photography (Ex.Ka.6), which are on record. Dead body was carried to mortuary for postmortem by concerned police.
4. Postmortem on dead body of deceased was conducted by P.W.3 Dr. A.K. Singh, Surgeon, District Hospital, Aligarh on 28.08.2007 at 6:00 P.M. as unknown body. On general examination, deceased was found aged about 42 years. Probable time of death was within ½ day. Deceased was average body built. Rigor mortis had passed in upper extremities and was present in lower extremities.
5. Following ante-mortem injuries were found on the body of deceased :
(i) Nails of both upper extremities cyanosed. Eyes congested. Tongue cyanosed and echynosed and trapped between upper and lower teeth.
(ii) Ligature mark 32 cm. x 1 cm. all around neck upper part except right side just below mandible.
(iii) Lacerated wound of 2 cm. x 1 cm. at back of skull.
(iv) Postmortem staining at both knee and dorsum of left foot.
6. On internal examination, clotting of blood was present inside head. Front bone of neck was found fractured. Blood was present in ligature mark. Both lungs were congested. Pasty food was present in stomach. Digested food and liquid were present in small intestine and large intestine contained gases and faecal matter. Cause of death was shown as asphyxia as a result of ante-mortem strangulation. Postmortem report is Ex.Ka.1A.
7. Dead body of deceased was identified by deceased's brother-in-law Dr. Vijay Gupta and Sister Dr. Kanika Gupta, which was handed over to these two persons after postmortem. On identification of dead body, first information report was lodged at crime no. 558 of 2007 under sections 302, 201 IPC at Police Station Hathras Junction. Brother-in-law and Sister of deceased had also tried to lodge a missing report at Delhi Railway Station, but could not do so, as one missing report had already been lodged at Kanpur. Deceased was going to meet his sister in Delhi on occasion of rakshabandhan and thereafter to another place from flight for admission of his daughter.
8. On inquiry, wife and other relatives of deceased informed local police about mobile numbers used by Dr. Anurag Mittal. Police started investigation on the basis of mobile phone numbers said to have been used by deceased during travel.
9. Prosecution case is also that Dr. Anurag Mittal was travelling on 27.08.2007 by Shramshakti Express in First A.C. Coupe from Kanpur to Delhi. He was possessing rupees one lakh and also American dollars. A missing report had also been lodged in the matter by P.W. 6 Dr. S.K. Agarwal, father-in-law of deceased, at G.R.P., Kanpur Central. During investigation, keeping the mobile phones used by deceased under surveillance, an inquiry was also made from Railway Department in regard to passenger travelling in the said Coupe along with deceased and it was traced out that one B.K. Singh was travelling in said Coupe on upper berth. On surveillance, accused-appellant was traced out using mobile hand set belonging to deceased by replacing the SIM used by deceased. Mobile numbers used by deceased were 9415042119 and 9935903222. On analysis of mobile phone call details, it was found that IMEI number of mobile handset Nokia - 6680 was 355664005184993 and IMEI number of other mobile handset (Nokia - CE-434) was 357608003187936. S.T.F., who was also assisting local police, traced out that mobile handset of deceased relating to mobile no. 9415042119 was used on 28.08.2007 on hutch mobile no.9918157750 and on 29.08.2007 same handset was used on another hutch mobile no. 9919085524. When call details of these two hutch mobile numbers were analyzed, it was ascertained that mobile no.9918157750 was in the name of Brijesh Kumar resident of Gajafarpur Paisra, Shafipur, Unnao and other mobile no.9919085524, which was recently activated, name and address of owner was not ascertained. On tracing out the call details and movement of mobile no. 9918157750, it was found that consumer of this mobile number is generally connected with hutch mobile tower of Fatehpur Chaurasi, which comes under Unnao District. On ascertaining history of call details, it was found that on 25.08.2007, this number was used by consumer in Fatehpur Chaurasi and thereafter on 26.08.2007, it was used in Unnao Ajgain and at several places near Charbagh Railway Station, Lucknow. On 27.08.2007, this number was used in the night at Kanpur. Thereafter, in the same night this mobile number had gone on roaming. Roaming call details were also obtained by S.T.F. from Western U.P. Circle of Telecom Department (mobile network operator) and it was found that on 28.08.2007 the said mobile number was used in Agra, Dhankaur, Khurja, Danipur Mandi Aligarh, Bevar Mainpuri, Chhibramau Kannauj and thereafter via Kanpur it reached Alambagh, Lucknow. Prosecution case is also that mobile handset of Dr. Anurag Mittal was started using by consumer of mobile no.9918157750 belonging to accused-appellant. Thus, on the basis of use of mobile handset of deceased Dr. Anurag Mittal by accused-appellant, police suspected accused-appellant and tried to trace out him on suspecting that accused-appellant had deep connection in the murder of Dr. Anurag Mittal. Police also traced out that user of mobile no. 9918157750 Brijesh Kumar is a habitual offender and used to visit Rajaji Puram, Lucknow.
10. On 01.09.2007, police received information that user of mobile no. 9918157750 Brijesh Kumar Verma is the person who obtained reservation in First A.C. Coupe of Shram Shakti Express in the name of B.K. Singh and has committed murder of Dr. Anurag Mittal after committing loot/robbery. It was also informed by informer to police that said B.K Verma after committing murder of deceased had thrown dead body from train and is coming for exchange of foreign currency looted by him from deceased. This information was communicated by Inspector P.K. Mishra to higher authorities and thereafter he along with other police personnel, on his vehicle, proceeded towards Medical Chauraha, Lucknow where all police personal were deployed at places near Charak Pathology after giving them direction according to information received from informer. At about 13:30 hours, one person keeping bag on his shoulder on a motorcycle without having number plate reached in front of Charak Pathology. On confirmation made by informer that person on motorcycle is accused Brijesh Kumar, police party apprehended him in front of Charak Pathology. On being asked, he told his name as Brijesh Kumar Verma son of Ram Nath Verma resident of Gajafarpur Paisra, P.S. Fatehpur Chaurasi, District Unnao. Police party also asked him about the incident caused by him in respect of deceased, on which he confessed his guilt and stated that he has committed murder of Dr. Anurag Mittal after committing loot. He also confessed that he had given Rs.2 lacs to one person for getting job in Railway Department after selling his agricultural land. Neither that person provided employment to him nor returned his amount due to which he was disturbed. Therefore, making a plan to commit loot in First A.C. Coaches of train, he travelled on 24.07.2007 in Shramshakti Express upto Delhi, but was not successful in his plan. On 26.08.2007, a reservation in the name of B.K. Singh resident of 17-B, Rajajipuram, Lucknow was obtained by him in First A.C. Coupe of Shramshakti Express from Kanpur to Delhi. Accused also confessed before arresting police that in night of 27.08.2007, he boarded the said train from Kanpur. He was having a rope with him. Deceased was also travelling in said train in same coupe on lower berth and accused was on upper berth. In the midnight at about 2:30 a.m., he came down from his berth and saw that deceased was sleeping. He also checked the coach in which all passengers including caretaker were sleeping. Thereafter, as per accused, he tried to kill deceased by throttling and on resistance made by deceased, accused tightened the neck of deceased with rope and caused his death. Since all passengers travelling in coach were sleeping, accused took the entire goods / valuables including currencies possessed by deceased. As per prosecution, accused also took mobile phones belonging to deceased and dragging the dead body of deceased through belt, threw the same by opening door of coach of the train. One briefcase belonging to deceased was also searched by accused-appellant, but no valuables were found in it. Accused-appellant also told police that keeping rope and spectacles belonging to deceased in same briefcase it was thrown out from train. When train stopped at Dhankaur station due to caution, accused got down from train, reached on road and taking lift on a motorcycle came to Khurja. Accused-appellant also told that he removed SIMs of deceased from handsets of deceased and inserted his SIM. Thereafter, accused proceeded to Kanpur by roadways bus from Khurja and reached at Kanpur and thereafter Lucknow in the evening of 28.08.2007 itself. As per prosecution, accused purchased one motorcycle in his name from looted money and on 29.08.2007 from the same looted money, a laptop was purchased by him. Accused also told to police that he was going to exchange dollars into Indian currency and in this regard one person had informed him to meet near Charak Pathology.
11. Police party after fulfilling formalities took search of accused-appellant and found laptop, motorcycle, mobile handsets of deceased as well as SIM cards used by accused in that handsets, which were taken into possession by police personnel. Total 8000 American dollars and Rs.4600/- were also recovered from possession of accused-appellant. Mobile handsets recovered from accused-appellant were found matched with handsets used by deceased. Accused-appellant was arrested in this crime. Recovery memo (Ex.Ka.11) was prepared and information was given to all concerned regarding arrest of accused.
12. Police party also took search of house of accused-appellant on 22.11.2007 in presence of family members and witnesses and one briefcase was recovered from a room in which one mobile handset nokia old, SIM, battery and seven duly filled reservation forms were recovered. Mobile handset was checked replacing the battery and it was found as Make / Model Nokia 2600 having IMEI No.35620700/355068/9 and SIM No.8991540703043317765. When it was switched on, message displayed as Welcome Note B.K. Verma @ K Brijesh 55 @ Yahoo.com and mobile number was traced as 9956710081. Validity of SIM was upto 26.11.2007 and balance was shown as Rs.18.90. Reservation forms recovered from house of accused-appellant belong to Shramshakti Express, First A.C. Coupe from Kanpur to New Delhi in the name of B.K. Singh (male) resident of Rajajipuram, Lucknow and signature was found made in english. Two forms were undated and two were related to date of journey as 27.08.2007, 26.08.2007, 08.08.2007, 07.08.2007 and 24.07.2007 respectively. In all forms, No.CM 251 was mentioned. Family members of accused-appellant told that mobile handset is related to accused-appellant and forms have also been filled in his handwriting. All articles / goods / forms recovered from the house were kept safely in a sealed cover and recovery memo (Ex.Ka.20) was prepared.
13. On pointing out of accused-appellant, concerned police on 14.09.2007 also made recovery of trolley-bag and articles / goods kept in said bag along with rope said to have been used in commission of crime, from shrubs near the railway track, as is clarified in site plan (Ex.Ka.-19). Recovery memo (Ex.Ka.-18) itself indicates that accused-appellant himself had shown the place from where recovery of said articles from trolley-bag is said to have been made in the matter. Following articles / goods were also recovered from trolley-bag :
(i) brown colour jeans full pant ready made
(ii) black pant ready made
(iii) light brown colour ready made pant
(iv) half sky blue shirt ready made
(v) half black shirt ready made
(vi) half white shirt ready made
(vii) three white briefs, one towel, one black leather belt, used shoe laces.
(viii) one meter long rope
(ix) one power spectacle
14. As per prosecution, accused told police personnel that rope recovered on his pointing out was used in commission of crime.
15. Police also arranged identification parade of articles recovered on pointing out of accused-appellant as well as mobile handsets belonging to deceased and same were correctly identified by P.W.5 Anita Mittal, wife of deceased. P.W. 13 Shyam Mohan Pathak was concerned Magistrate in whose presence and direction identification parade was arranged. Memo regarding identification of articles is Ex.Ka.-8. Police also took specimen signature of accused-appellant in Court after getting permission from Magistrate concerned for comparing the same with signature made on reservation forms said to have been recovered from the house of accused-appellant as well as forms obtained from the Railway Department, which were filled-up and furnished by accused-appellant for reservation in said train. Police also arranged Narco test of accused-appellant as well as co-accused Prabhakaran Singh alias Prabhakaran (acquitted). Specimen signatures of accused-appellant were compared with signatures made on forms mentioned above and report to this extent is Paper No.65 Ka/1, 66 Ka/1 and 66 Ka/2 which is on lower court record. Call details record (C.D.R.) was also obtained in the matter and same is on record (Ex.Ka.-14 and 15).
16. Concerned police also prepared site plan of different places, interrogated the witnesses and on the basis of evidence collected during investigation, finding a prima facie case against accused-appellant as well as co-accused Prabhakaran Singh alias Prabhakaran (acquitted), charge-sheets were submitted in the matter.
17. Concerned Magistrate took cognizance in the matter and the case, being exclusively triable by the Court of Sessions, was committed for trial. Both accused appeared and charges against present accused-appellant were framed for offence punishable under Sections 302, 201, 120-B, 394, 411, 419, 468, 471 IPC and against co-accused Prabhakaran Singh alias Prabhakaran (acquitted) for offence under Sections 302 read with 120-B IPC and Sections 394 read with 120-B IPC. Both accused denied charges framed against them and claiming themselves innocent pleaded for trial.
18. In order to prove its case, prosecution examined as many as fifteen witnesses in oral evidence and have also proved / filed documentary evidence.
P.W.1 is Lalaram, a porter in railways, who has informed local police through memo about lying of dead body in between the rail tracks on direction of railway department. This witness has proved information memo Ex.Ka.1.
P.W.2 is Constable Ram Singh, who has brought the dead body along with his companion Constable Rajendra Singh for postmortem to mortuary. As per this witness, dead body was identified as dead body of Dr. Anurag Mittal by his brother-in-law Dr. Vijay Gupta and sister Dr. Kanika Gupta. Clothes recovered from dead body, which were kept in a sealed cover by concerned doctor at the time of conducting postmortem, were also handed over by this witness at concerned police station. This witness has admitted receiving of dead body made by him on the inquest report.
P.W.3 Dr. A.K. Singh has conducted autopsy on body of deceased on 28.08.2007 at 6:00 P.M. Details mentioned in the postmortem report have already been furnished here-in-above.
P.W.4 Mahesh Prasad has prepared inquest report Ex.Ka.2, Challan Lash Ex.Ka.3, letter to C.M.O. Ex.Ka.4, photo lash Ex.Ka.5, photography report Ex.Ka.6. Blood stained and simple soil were also taken by this witness from place of occurrence and prepared memo Ex.Ka.7 keeping the same in sealed boxes.
P.W.5 Anita Mittal is wife of deceased Dr. Anurag Mittal. Although she was not travelling with deceased, but she has given to concerned police details of mobile phones used by deceased on the date and time of incident as well as articles / currencies carried by deceased. This witness has also identified the articles / goods belonging to deceased said to have been recovered in this matter before the identifying Magistrate. Memo prepared in this respect is Ex.Ka.8. Recovered article / goods / currencies have also been exhibited on the identification of this witness as material Ex. 2 to 16.
P.W.6 S.K. Agarwal is father-in-law of deceased, who has given details of articles / goods carried by deceased at the time of journey. This witness has also lodged a missing report at G.R.P., Kanpur Central. He has also identified the dead body of deceased. Extra judicial confession is said to have been made by co-accused Prabhakaran Singh alias Prabhakaran before this witness.
P.W.7 Dr. Kanika Gupta is sister of deceased, who tried to contact his brother on mobile phone, but could not contact him. This witness also tried to lodge a missing report at Delhi Railway Police, but report was not lodged because a missing report had already been lodged at Kanpur Railway Police.
P.W.8 Nizamuddin Khan, who was coach conductor in Shramshakti Express on the date and time of incident, has verified this fact that deceased was travelling in first A.C. coach in coupe C on lower berth. One B.K. Singh was also travelling in the same coupe on upper berth. This witness has proved the travelling chart of passengers as Ex.Ka.-10 Ka/1 to 10 Ka/6.
P.W.9 is Pradeep Kumar Mishra, Inspector, S.T.F., who has collected the call details of mobile sets and SIMs used by deceased as well as accused-appellant. He was also the arresting officer of the accused as well as witness of recovery of mobile sets and other articles from possession of the accused-appellant. This witness has also proved fard recovery (Ex.Ka.11) and sample seal (Ex.Ka.12).
P.W.10 Kaushik Ghoshal, who was posted as Zonal Officer at Lucknow in Vodafone, is witness of call details of Vodafone SIM Nos. 9918157750 and 9919085524 and also the details of mobile sets used in these SIMs.
P.W.11 Lokesh Kumar, who is Nodal Officer in Vodafone at Meerut, has also given details of mobile nos. 9918157750 and 9918940796 and mobile sets used along with IMEI numbers of the mobile sets used in these mobiles.
P.W.12 Sarvesh Kumar Tripathi, the then S.S.I, P.S. Sadabad, District Mahamayanagar, is the investigating officer, who has interrogated the witnesses and the accused.
P.W.13 is Shyam Mohan Pathak, the then S.D.M., Kol, Tehsil Kol, District Aligarh, who has conducted test identification parade of articles / goods belonging to deceased and has prepared identification memo Ex.Ka.8.
P.W.14 is Vishambhar Nath Dubey, who has also partly investigated the matter and has interrogated the witnesses. Trolley-bag and other articles / goods belonging to deceased were recovered by this witness on pointing out of accused-appellant. Fard recovery (Ex.Ka.18) has been proved by this witness. He has also recorded the call details and other information received in regard to mobile sets said to have been used by deceased and call details of SIM / mobile said to have been used by deceased as well as accused-appellant. He has also prepared site plan (Ex.Ka.21) and has submitted charge-sheet (Ex.Ka.22). This witness has also recorded the statement of members of S.T.F. On request of this witness, Narco Test of accused-appellant was done at F.S.L., Bangalore. This witness is also witness of recovery of forms and other articles / goods recovered from house of accused-appellant.
P.W.15 is Inspector Dilip Kumar Mittal, who has submitted charge-sheet separately against co-accused Prabhakaran Singh alias Prabhakaran. This witness has also obtained signature of accused-appellant in Court on the basis of order passed by concerned Chief Judicial Magistrate and same was sent for expert opinion. Letter sent for expert opinion is Ex.Ka.25. This witness has also taken co-accused Prabhakaran Singh alias Prabhakaran for Narco Test at Bangalore.
Prosecution has also proved reservation forms Ex.Ka.-27 to Ex.Ka.-33, Site Plan Ex.Ka.-17, Ex.Ka.-21 and Ex.Ka.-23 and also Material Exhibits - 1 to 162.
19. After closing prosecution evidence, statement of accused-appellant as well as co-accused Prabhakaran Singh alias Prabhakaran were recorded under section 313 Cr.P.C.
20. Accused-appellant in the statement recorded under section 313 Cr.P.C. has denied recovery of trolley-bag etc. Identification of dead body of deceased by witnesses was also denied by accused-appellant and has stated that postmortem was done on unknown dead body and name of deceased was added thereafter. Inquest report and police papers prepared in the matter were also said to be false. Accused-appellant has also stated that P.W.5 Anita Mittal has specifically stated that "she does not know accused-appellant". P.W.6 has made false statement. Nothing has been stated about statement made by P.W.7 Dr. Kanika Gupta. As regard statement of P.W.8 Nizamuddin Khan, accused-appellant stated that this witness did not specify his name, but told that person, who was travelling on upper berth in the said coupe, was B.K. Singh, whose parentage was not clear. It was also stated that P.W.9 Inspector Pradeep Kumar Mishra has made false statement. Call details collected during investigation of mobile no. 9918157750 as well as 9919085524 were also said to be false. Statement made by P.W.11 Lokesh Kumar is also false. Same facts were stated in regard to statement made by P.W.12 S.S.I. Sarvesh Kumar Tripathi. As regard to test identification parade arranged by P.W.13 is concerned, accused-appellant has stated that articles / goods / currencies / valuables were not correctly identified. He has also stated that PW.14 Inspector Vishambhar Nath Dubey has made false statement. Recovery was not supported by any independent evidence. Reservation forms, mobile set etc. have not been recovered from his possession. Narco test was arranged adopting illegal procedure. Expert opinion given by F.S.L. is not proved and is not admissible in evidence. All witnesses examined on behalf of prosecution have deposed before Court in connivance with police. It was specifically pleaded that one Neelam Verma daughter of Lalta Prasad, a constable posted at P.S. Husainganj, Lucknow, was to be married with him, but Lalta Prasad has denied. Accused-appellant and Neelam Verma both were ready to marry against wishes of Lalta Prasad, therefore, accused-appellant has been falsely implicated in this case at the behest of Lalta Prasad. He has not committed murder of deceased nor has made any loot.
21. Accused-appellant, in his defence, examined himself as D.W.1. No other evidence was adduced by accused-appellant.
22. Trial court having heard learned counsel for the parties and going through entire record vide impugned judgment and order convicted and sentenced accused-appellant as above and acquitted co-accused Prabhakaran Singh alias Prabhakaran. Hence this appeal has been preferred by accused-appellant.
23. Heard Ms. Anjum Haq, Amicus Curiae appearing for appellant, Sri Rishi Chaddha, learned A.G.A. for the State and perused the record.
24. Learned Amicus Curiae appearing on behalf of appellant submitted that prosecution was not able to prove its case beyond reasonable doubt. It is purely a case of circumstantial evidence. An unidentified dead body was recovered in this matter. Postmortem was also conducted on unknown dead body. Identification of dead body said to have been made is false. At this juncture, learned amicus curiae also referred to postmortem report. It was next contended that neither accused-appellant travelled in the night of incident in first A.C. coupe of said train nor committed present offence. Recovery is false and planted and is not supported by any independent evidence. Referring to test identification memo (Ex.Ka.8) prepared by P.W.13, it was next argued that correct identification was made by P.W.5 Anita Mittal, as all articles / goods / currencies put under identification were shown to concerned witnesses before arranging identification parade. It was also argued that identification parade was not arranged in accordance with law. Neither mobile sets said to have been used by deceased were recovered from possession of accused-appellant nor sets were ever used by him. Recovery said to have been made from house of appellant is also false. Expert opinion regarding signature of appellant is also not admissible in evidence, as the person concerned, who prepared said report, has not been examined before Court. It was further submitted that on the basis of call details collected in the matter, it cannot be conclusively held that appellant and only appellant has committed present offence. Referring to postmortem report, it was further argued that injuries found on body of deceased itself indicate that dead body was never thrown from a running train. Recovery of rope and other articles is also false. Appellant was arrested in this matter on the basis of suspicion. Circumstances shown against appellant are not of definite nature and no presumption can be drawn on the basis of said evidence against the guilt of appellant. Referring to entire evidence collected in the matter, it was further argued that there is major contradiction in statement of prosecution witnesses on material points as also on point of recovery of articles made from trolley-bag. It was next contended that there is no evidence adduced by the prosecution to connect the appellant with reservation forms obtained from railway department to show that appellant has filled-up those forms. At this stage, learned amicus curiae also referred to findings recorded by trial court and argued that impugned judgment and order suffers from perversity, infirmity and illegality warranting interference by this Court.
25. Learned A.G.A. for State argued that dead body of deceased was identified by brother-in-law, sister and father-in-law of deceased. Recovery of articles / goods / currencies carried by deceased was also made on pointing out of accused-appellant and same have been identified by wife of deceased in accordance with law. Mobile sets used by deceased during travel have also been recovered from possession of accused-appellant, which were used by him at different places replacing his SIM. At this stage, learned A.G.A. referred to statement of prosecution witnesses as well as call details collected by investigating officer. It was next contended that signature and handwriting on reservation forms recovered from house of accused-appellant and obtained in Court were found same as were in reservation forms submitted by accused-appellant at reservation counter of railways. Accused-appellant performed journey on the basis of said reservation in same coupe of Shramshakti Express on relevant date in the name of B.K. Singh (a fictitious person). Although, confessional statement made by accused-appellant before police is not admissible in evidence, yet recovery made in lieu of that confessional statement is admissible under section 27 of Evidence Act. It was further argued that if documents, showing ownership of mobile sets said to have been used by deceased and recovered from possession of accused-appellant, have not been furnished, call details collected in the matter and proved by prosecution cannot be disbelieved which clearly demonstrate that said mobile sets were being used by deceased before incident on date of journey. It was next contended that all circumstances i.e. recovery of mobile sets, call details and expert opinion clearly reflect the involvement of accused-appellant in committing present offence. Trial court findings given in the impugned judgment and order are based on correct appreciation of facts and evidence. Evidence adduced by prosecution regarding guilt of accused-appellant was not refuted by accused-appellant. Thus, appeal, having no merit, is liable to be dismissed.
26. We have considered the rival submissions advanced by learned counsel for the parties and have gone through entire record.
27. In this matter, as is evident from record, one dead body was found lying in between the rail tracks at Bhopatpur near Hathras junction. Information was given to local police of this fact by railway department. Thereafter, local police reached at the place of occurrence and prepared inquest report against unkonwn body as well as other police papers. Postmortem on dead body of deceased was conducted as unidentified (unknown) body. It appears that during course of postmortem, brother-in-law and sister of deceased reached at mortuary on information and they identified dead body as body of Dr. Anurag Mittal. On this basis, present case crime number was registered at police station concerned in District Hathras. A missing report was also lodged at G.R.P., Kanpur Central by P.W.6 S.K. Agarwal, father-in-law of deceased. Local police also took assistance of S.T.F. Mobile numbers said to have been used by deceased during journey were kept under surveillance. It is also evident from record that deceased boarded Shramshakti Express from Kanpur in the evening of 27.08.2007 in First A.C. Coach, coupe - C on lower berth. On same day, one B.K. Singh was also travelling in same coupe on upper berth. Prosecution case is also that on surveillance, it was traced out that accused-appellant travelled on 27/28.08.2007 in said two berths coupe on upper berth in fake identity name i.e. B.K. Singh and in the intervening night of 27/28.08.2007, accused-appellant committed murder of deceased by strangulation and took mobile sets, indian currency as well as american dollars possessed by deceased. Prosecution case is also that accused-appellant had thrown dead body of deceased from train and also the trolley-bag of deceased in which valuables and clothes of deceased were kept. It is also evident from record that on arrest of accused-appellant at Lucknow, mobile sets of deceased as well as american dollors said to have been possessed by the deceased, were recovered. Police also took search of the house of accused-appellant situated in District Unnao and recovered several SIMs and mobile sets including filled and unfilled railway reservation forms. Trolley-bag said to have been thrown by accused-appellant from train was also recovered on pointing out of accused-appellant. Clothes and other items kept in trolley-bag were put under test identification conducted by an Executive Magistrate, and P.W.5 Anita Mittal, wife of deceased correctly identified all items belonging to deceased and recovered on pointing out of accused-appellant. Investigating officer also obtained reservation form filled by accused-appellant in fake identity name of B.K. Singh from reservation counter at Lucknow and after obtaining specimen signature of accused-appellant on the basis of order passed by Magistrate concerned, specimen signature and reservation forms recovered from house of accused-appellant as well as obtained from reservation counter were sent for expert opinion of handwriting expert. It is also evident from record that handwriting expert opinion was tendered by prosecution under section 293 Cr.P.C. Although officer preparing the report could not be examined, yet it was prepared by an officer of Director level and could be read in evidence. Narco test of accused-appellant as well as co-accused Prabhakaran Singh alias Prabhakaran (acquitted) was also conducted on request of investigating officer, yet no evidence has been adduced on behalf of prosecution nor the same has found basis for conviction in the impugned judgment and order.
28. On surveillance and on the basis of call details record, it was found that mobile nos. 9415042119 and 9935903222 were being used by deceased on mobile handset nokia - 6680 having IMEI No. 355664005184993 and other mobile handset nokia - CE-434 having IMEI No. 357608003187936 respectively. On surveillance, it was also found that mobile handset nokia - 6680, as mentioned above, was used by owner of mobile no.9918157750 on 28.08.2007 and by owner of mobile no.9919085524 on 29.08.2007. This fact has been proved by witnesses belonging to telecom department (mobile network operator) examined on behalf of prosecution. When investigating agency tried to search owner of mobile no.9918157750, it was traced out that owner of this mobile number is Brijesh Kumar Verma - accused-appellant. Owner of other mobile number used on 29.08.2007 on mobile handset of deceased could not be traced out. On the basis of call details record, it was also traced out that owner of mobile no. 9918157750 had used this number on 27.08.2007 in Unnao, Ajgain, Kanpur and thereafter upto Dhankaur within the Western Zone near Hathras Junction. Later on, this mobile number was used by its owner in handset nokia - 6680 on 28.08.2007 and thereafter it was used in Dhankaur, Bevar, Kanpur and other places during journey by accused-appellant and lastly in Lucknow.
29. Admitted and specimen signature of accused-appellant when analyzed, same were found made by one person.
30. Thus, on the basis of above factual backdrop, when none has seen the accused-appellant committing the present offence, it is to be seen whether circumstances established by the prosecution are of a definite tendency unerringly pointing towards guilt of accused-appellant for committing murder of deceased.
31. Before summarizing the circumstances emerged in prosecution evidence, it will be useful to have a relook of the legal position.
32. For ready reference, paragraphs no.17 to 23 of Majenderan Langeswaran Versus State (NCT of Delhi) and Another, (2013) 7 Supreme Court Cases 192 are quoted below.
"17. In Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343, this Court observed as under:
"10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
18. In Padala Veera Reddy vs. State of A.P., 1989 Supp (2) SCC 706, this Court opined as under:
"10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351)
19. In C. Chenga Reddy & Ors. vs. State of A.P., (1996) 10 SCC 193, this Court while considering a case of conviction based on the circumstantial evidence, held as under:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."
20. In Ramreddy Rajesh Khanna Reddy vs. State of A.P., (2006) 10 SCC 172, this Court again considered the case of conviction based on circumstantial evidence and held as under:
"26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603)."
21. In the case of Sattatiya vs. State of Maharashtra, (2008) 3 SCC 210, this Court held as under:
10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
This Court further observed in the aforesaid decision that:
17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court - Bharat v. State of M.P., (2003) 3 SCC. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime.
22. In the case of State of Goa vs. Pandurang Mohite, (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction 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 person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath vs. State of Karnataka, (2010) 8 SCC 593, this Court elaborately dealt with the subject and held as under:
23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
33. Similar view has also been reiterated in Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37 as well as in Brajendrasingh vs. State of M.P., (2012) 4 SCC 289.
34. Court in Anter Singh Versus State of Rajasthan, (2004) 10 Supreme Court Cases 657 has held that the first condition necessary for bringing Section 27 into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded.
35. There is discovery on the basis of disclosure statement made by accused-appellant and said discovery is admissible in evidence, as has been held in Navaneethakrishnan Versus The State of Inspector of Police, 2018 (1) S.C.Cr.R. 531.
36. Information given by an accused person to a police officer leading to discovery of a fact which may or may not prove incriminatory is admissible under Section 27 of Evidence Act. (Selvi and others Versus State of Karnataka, (2010) Volume 7 SCC Page 263).
37. Again, Court in Madhu Versus State of Kerala, (2012) Volume 2 SCC page 399 has held that as an exception, Section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is that police may procure a confession by coercion or threat.
38. The exception postulated under section 27 of Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid is limited "... as relates distinctly to the fact thereby discovered.....". The discovery of facts itself, therefore, substantiates the truth of confessional statement and since it is truth that a court must endevour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Section 25 and 26 of the Evidence Act. It is also held that Section 27 of Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance is limited as relates distinctly to the fact thereby discovered.
39. Thus, on the basis of settled proposition of law, the various requirements of the section can be summed up as follows:
(i) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(ii) The fact must have been discovered.
(iii) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
(iv) The person giving the information must be accused of any offence.
(v) He must be in the custody of a police officer.
(vi) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(vii) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
40. If established facts from entire evidence adduced by prosecution in the present matter are summarized, then following facts emerge:
(i) Deceased travelled by Shramshakti Express on 27.08.2007. He boarded train at Kanpur for Delhi in first A.C. coach in coupe C on lower berth.
(ii) Accused-appellant also travelled by same train in same coupe in fake identity name of B.K. Singh.
(iii) Signature and handwriting on reservation forms filled by accused-appellant in fake identity name of B.K. Singh were found same in all documents i.e. reservation forms, forms recovered from house of accused-appellant as well as specimen signature. Thus, it is established that accused-appellant in fake identity name travelled in said coupe on upper berth of same train on the day of incident.
(iv) Mobile sets said to have been used by deceased were also taken by accused-appellant after committing murder of deceased throwing dead body in between rail tracks.
(v) Mobile sets said to have been recovered from possession of accused appellant belonged to deceased which were earlier being used by deceased, is also established by prosecution evidence.
(vi) Accused-appellant replacing his SIM (mobile no.9918157750) in the mobile handset Nokia - 6680 of deceased started using it from the night of 28.08.2007 and said SIM (mobile no.9918157750) was in the name of accused-appellant. Call details record (C.D.R.) proved by prosecution from witnesses examined in the matter clearly and cogently establish this fact.
(vii) Trolley-bag said to have been recovered on pointing out of accused-appellant and other items kept in it including rope said to have been used in committing the crime were identified correctly under test identification parade conducted by P.W.13 Shyam Mohan Pathak by P.W.5 Anita Mittal.
(viii) Test identification parade conducted in the matter and memo prepared in this respect is admissible in evidence and every precaution / measure was followed by Magistrate concerned while conducting test identification parade. Number of similar items had been kept mixing with items found in trolley-bag while conducting the test identification parade.
(ix) P.W.5 Anita Mittal and P.W.7 Dr. Kanika Gupta had contacted deceased from their mobile phones in the night when Dr. Anurag Mittal (deceased) started his journey. This fact is also established from the statement of P.W.7 Dr. Kanika Gupta and C.D.R. and also from the statement of P.W.5.
(x) From prosecution evidence, it is also evident that indian currency said to have been looted from possession of deceased by accused-appellant was used by accused-appellant in purchasing laptop and motorcycle.
(xi) 8000 American dollors said to have been looted from possession of deceased, have also been recovered from possession of accused-appellant, which were possessed by deceased, although there is no evidence to show how the said foreign currency was in possession of deceased.
(xii) Recovery of mobile sets, which were belonging to deceased, from possession of accused-appellant and trolley-bag including other items kept in it is admissible under section 27 of Evidence Act as it is based on disclosure statement of accused-appellant when he was in police custody.
41. Thus, circumstances emerged from prosecution evidence, as discussed here-in-above, clearly indicate hypothesis of the guilt of accused-appellant for committing murder of deceased. Circumstances established from prosecution evidence are also consistent and fully established. Chain of evidence is also complete and same does not leave any reasonable ground for a conclusion regarding innocency of accused. Since mobile sets said to have been used by deceased in the intervening night of 27/28.08.2007 were found in possession of accused-appellant and the same were used by him since 28.08.2007 at several places replacing his SIM in said mobile sets; accused appellant was travelling in same coupe on upper berth in fake identity name i.e. B.K. Singh; trolley-bag and others items belonging to deceased have been recovered on pointing out of accused-appellant, which were identified by wife of deceased and same is admissible in evidence; reservation forms filled by accused-appellant and handwriting on forms recovered from house of accused-appellant as well as specimen signatures made by accused-appellant were found same; recovery is in lieu of disclosure statement, which is admissible under section 27 Evidence Act, thus, on close scrutiny of prosecution evidence and comparing the same with the findings recorded by Trial Court on each and every issue, we are of the view that findings of Trial Court are in accordance with law and evidence. Presumption drawn by court below on the basis of circumstances established by prosecution about hypothesis of guilt of accused is based on correct appreciation of evidence. Chain of circumstantial evidence is complete and has been cogently and firmly established by prosecution. Defence evidence adduced by prosecution is of not such nature which rebuts the presumption drawn against accused-appellant by learned trial court.
42. Thus, impugned judgment and order dated 29.04.2011 / 3.5.2011 passed by Additional Sessions Judge, Court No.11, Aligarh in Sessions Trial No.618 of 2008 is found well discussed. No interference is required by this Court. Impugned judgment and order passed by Trial Court in regard to guilt of accused-appellant is liable to be affirmed and appeal, having no force, is liable to be dismissed.
43. Accordingly present jail appeal is dismissed and conviction and sentence imposed upon accused appellant vide impugned judgment and order is affirmed.
44. Copy of this judgment be sent forthwith to the court concerned for compliance. Copy of this judgment be also sent to accused-appellant through concerned Jail Superintendent. Compliance reports be also submitted to this Court.
45. Ms. Anjum Haq, amicus curiae has assisted the Court very diligently. We provide that she shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Ms. Anjum Haq, amicus curiae without any delay and in any case within 15 days from the date of receipt of copy of this judgment.
Order date : 29.08.2018 ss